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Lord Whitty: My Lords, I am not sure whether I understand clearly the noble Baroness's case. I do not know whether she proposes that fewer people than provided by the clause should have pensions or that the possibility of pensions should be extended to others. In her latter remarks, she seemed to believe that pensions should not be extended to anyone because

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they encouraged individuals to stay on. As Members of your Lordships' House will know, it is not always pension rights which encourage people to stay on. I suspect that the same applies to councillors.

I understand the anxiety that the provision might be divisive. However, we have to face the fact that if we move to an executive structure many of those executive posts--perhaps by no means all--will effectively be full- time jobs. Although in general the tendency to full-time councillors is not necessarily supported by this side of the House, let alone the other side, the executive function will be equivalent for the time one is on the executive to a full-time job for many executive members. They will, therefore, miss out on pension rights in what would otherwise be their full-time job. It is that situation that we have to address; and we address it here in relation to executive members.

As regards general members of the council, or those who have been but cease to be members of the executive, the same arguments do not apply. If we were to make pensions more available to non-members of the executive, it would encourage a drift towards full-time councillors, which in general we are attempting to resist.

8 p.m.

Baroness Thomas of Walliswood: My Lords, I understand the drift of the Minister's response. However, if, as my noble friend suggested, many members of the council do a considerable amount of work, will there be an option to change the attitude towards pension remuneration? Once the provision is in the Act without guidance attached to it, we might be in difficulty and might have to return to statute in order to make a change.

Lord Whitty: My Lords, the noble Baroness is right. Were we to extend this beyond the executive level, the Bill as it stands would have to be amended in primary legislation. Our position is that this is a facility--not a compulsory one--provided to executive members who would effectively be full-time. We recognise that other councillors would be able to choose whether they are in that position, whereas executive members would be full-time in some situations when they took on the executive position. It is a way of dealing with circumstances which may arise as a result of people taking up particular executive positions. The more general voluntary principle in relation to public service and council service would be appropriate in other circumstances.

With the leave of the House, and as we are dealing with this part of the Bill, perhaps I may mention that it is our intention to table an amendment at a later stage concerning issues relating to other allowances which were raised by noble Lords during the Committee stage. I have written to noble Lords on the Front Bench about that. I am not able to do so today, but I hope to be able to do so during the passage of the Bill.

Baroness Hamwee: My Lords, before the Minister sits down--and I thank him for his last remark--does he agree that we are not talking about equivalent

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pensions in cash terms for executive and other members of the authority? The pension is likely to be related to the amount that each member receives in salary remuneration. The divisiveness, to which my noble friend referred, is in treatment rather than in cash. I should not like it to be thought that we are suggesting that there should be a cosy financial arrangement for all members, but we want to make the point that equality of treatment is most important.

Baroness Miller of Chilthorne Domer: My Lords, I apologise to the Minister if in my attempt at brevity clarity was forgone. It is plain that I am asking for the independent panel to set the allowances for each council as appropriate in each local circumstance. I ask the Minister to consider that request before the Third Reading of the Bill. As the shadow arrangements have been running for only a short time in the various councils, there is no proof that being an executive member will take more time than being, for example, chairman of the scrutiny and overview committee. The arrangements have not been in place long enough for anyone to know which position will take more time. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 79 and 80 not moved.]

Lord Campbell of Alloway moved Amendment No. 81:

    After Clause 82, insert the following new clause--


(".--(1) A local authority shall not cause or permit discrimination as regards the provision of facilities or services save in respect of counselling, health care, education and in the prevention of the spread of disease.
(2) The Secretary of State may make and, from time to time revise, a code of practice on the discharge by local authorities of the duty under subsection (1).
(3) Any provision of a code of practice under subsection (2) which appears to a court or tribunal to be relevant to any question arising in any proceedings in connection with the application of the duty under subsection (1) shall be taken into account in determining that question.
(4) A code of practice or a revised code of practice under this section shall be contained in a statutory instrument which shall be laid before, and subject to approval by resolution of, each House of Parliament.
(5) For the purposes of this section discrimination in the provision of facilities or services is provision which confers upon any group of persons exclusive benefit of such facilities or services not generally available.").

The noble Lord said: My Lords, I rise to move the amendment, which was accepted by the Table as complementary to the Bill as amended in Committee. However, when I spoke to it on Report on Monday, 28th February, on Amendment No. 1 to Clause 2, it was suggested that it should be withdrawn as pre-empting negotiations and discussions as to general amendments to this Bill and perhaps another Bill to be tabled in due course.

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Of course, such discussions must ensue, but, surely, not in total secrecy at a late stage of a Bill so as to preclude the due exercise of the revisory role. The amendment proposes the introduction of a new type of prohibition on the decision-making by a local authority, whether an LEA or not, which is wholly compatible with the European Convention on Human Rights. It is a prohibition of positive discrimination in favour of any group of persons, irrespective of any particular sexual orientation, as regards the provision of facilities and services not generally available. This is not the occasion on which to deploy the argument as recorded in Monday's Official Report.

It is not known whether the Government in these discussions and negotiations are proposing any type of prohibition on the decision-making of a local authority. That is the problem which requires to be addressed. These negotiations--attended by certain noble Lords to my knowledge on the Cross Benches, but there may be others, and a right reverend Prelate, but there may be others--are held in strict confidence behind closed doors, albeit that already as a result of these negotiations amendments have been tabled; for instance, Amendment No. 86 by the noble Lord, Lord Whitty, and Amendment No. 235 to the Learning and Skills Bill by the right reverend Prelate the Bishop of Blackburn. As yet, no amendment has been tabled as to the prohibition on any kind of decision-making by a local authority, save by this amendment and Amendment No. 82, which I shall move in due course.

The House as a whole--and I suspect the usual channels, but of course I do not know--is kept in the dark as to the Government's intentions, other than one intention to repeal section 82. Already, part of section 82 relating to teaching (section 2A(1)(b) of the Local Government Act 1986) could be subsumed by Amendment No. 235 to the Learning and Skills Bill by amendment to the Education Act. But what about the other part, section 2A(1)(a), which could well be subsumed by Amendments Nos. 81 or 82, or by any other amendment which imposed a statutory prohibition on a local authority concerning decision-making?

We have heard a lot of talk about codes of practice without knowing whether they are to have legal efficacy or none. No draft of any implementing document, code of practice, regulations or anything has been laid before this House. We are still kept in the dark. We are now on the second day of Report and negotiations continue in confidence. Shall we be told one day, perhaps today, where the Government stand on this issue and on the merits of this amendment, apart from the objection that it ought not to be discussed because it is premature? Shall we be told on Third Reading that new amendments will be tabled by the noble Lord, Lord Whitty, which represent where the Government then stand as a result of the negotiations? Will then the drafts of any relevant implementing documents be available for us to see?

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Is it at all satisfactory, I respectfully ask at this hour of night, that such amendments should be tabled or that such amendments, if tabled, should be first tabled on Third Reading? According to our procedures, we will have foreclosed upon effective scrutiny.

Having said that, I wish to point out that there is no suggestion whatever of any improper motive or impropriety, in particular so far as concerns the noble Lord, Lord Whitty. However, this is an unusual practice. It seems to have crept up quite suddenly on this House. I hope that noble Lords will agree that it needs to be watched carefully. I gave the noble Lord notice that I was going to raise this point so that, if he was so advised, he would be able to deal with it.

Although I understand that the amendments to be tabled by the Government on Third Reading would need to be complementary to the Bill as it stands and that Clause 82 may only be rejected by another place, I do not understand why in principle Amendment No. 81 should not be debated on its own merits. Why must such a debate be precluded on the grounds that, having regard to the negotiations in train, it is premature?

In order to correct the record, I should like to make one point on the drafting which was taken against me in error at the previous stage. I do not believe, as was suggested by the noble Earl, Lord Russell, that the amendment ran into trouble. The difficulty that the noble Earl sought to identify is clearly avoided by subsection (5) of my amendment, which refers to,

    "provision of facilities or services is provision which confers upon any group of persons exclusive benefit of such facilities not generally available".

There is nothing to prevent the noble Earl's PE teacher from providing a slightly different regime for someone with a club foot. Furthermore, I am prepared to address again the matter of definition with the noble Earl and any other noble Lord, if so required.

In due course I shall, as I always do, defer to the opinion of the House should any noble Lord wish to express such opinion. In the meantime, I beg to move.

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