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Lord Williams of Mostyn: I am grateful to the noble Lord for the explanation of his thinking. May I deal first with Amendments Nos. 65 to 67. I appreciate that the amendments seek to bring the bail arrangements

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more closely into line with Section 24 of the Criminal Procedure (Scotland) Act 1995. I see the virtue of that. The amendments recognise, however, that the provisions in the 1995 Act cannot be followed exactly because the new concept of "proportionate" conditions is introduced. The virtue of our present wording, which I am obliged to stand to, is that it closely follows the approach in Section 9(3) of the Extradition Act 1989. It has been a well-tested model. I am not convinced that we should go away from it.

With regard to Amendments Nos. 70 to 71, I sympathise with the reasoning put forward, which I fairly summarise as if the ICC recommendations on bail in Clause 18(1) are notified, then the person most particularly concerned with release should have an opportunity to address the court and make representations. That will happen in the ordinary course of events because Clause 18(1)(c) states that,

    "bail shall not be granted without full consideration of any recommendations made by the ICC".

It is necessary for full consideration to occur that representations are made. Therefore, it would not add anything to that provided by the normal court procedure. The same applies to subsection (2)(c).

In Amendment No. 71 the suggestion that a person should be granted bail unless clear and convincing evidence were put forward as a reason for refusal goes against the absence of a presumption either for or against bail, which we consider important. Perhaps a little more fundamentally, it goes against Clause 59(4). For that reason, although I understand the noble Lord's motivation, I am not able to accept these amendments.

Lord Howell of Guildford: I am grateful to the noble and learned Lord. I paraphrase what he said about the first amendment: if it ain't broke, don't fix it. That is what he is saying in relation to the procedures which, he says, have worked well in the past, despite the apparent anomalies drawn to our attention. In the light of that and his comments on the later amendments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 66 and 67 not moved.]

Lord Kingsland moved Amendment No. 68:

    Page 9, line 36, leave out ("on").

The noble Lord said: In moving Amendment No. 68, I shall speak also to Amendment No. 69. Amendment No. 68 is consequential upon Amendment No. 67. It needs no further explanation. Amendment No. 69 seeks to extend the ambit of Clause 16(5). It would ensure that a court cannot release on bail a person who is on remand pending trial in a national court. If the national court has remanded a person in custody pending trial, then a court could not grant bail subsequently to that person in respect of an ICC matter. As currently drafted, the Bill covers

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those serving a sentence of imprisonment but does not deal with those on remand. The amendment seeks to clarify the position. I beg to move.

Lord Williams of Mostyn: I shall deal with both amendments at the same time. Amendment No. 68 is entirely consequential on Amendment No. 67.

On Amendment No. 69, the noble Lord, Lord Kingsland, has raised some interesting points. For the record, shock and horror were registered on the otherwise beatific countenance of the noble Lord, Lord Kingsland. I should like to consider this matter quite carefully. I cannot accept the amendment in its present form but I recognise readily that a point of substance has been raised. I undertake that we will seek to provide a suitable amendment to reflect the purpose of the noble Lord, Lord Kingsland. I am more than happy--when we have a preliminary amendment to hand--to have a discussion with him. I hope that we shall be able to come to an amicable agreement.

Lord Kingsland: With my features suitably readjusted, I should thank the noble and learned Lord for his response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 69 not moved.]

Clause 16 agreed to.

Clause 17 agreed to.

Clause 18 [Bail and custody: consultation with the ICC, &c.]:

[Amendments Nos. 70 and 71 not moved.]

Clause 18 agreed to.

Clauses 19 to 21 agreed to.

Clause 22 [Unscheduled landing]:

[Amendment No. 72 not moved.]

Clause 22 agreed to.

Clause 23 [Provisions as to state or diplomatic immunity]:

Lord Lester of Herne Hill had given notice of his intention to move Amendment No. 73:

    Page 13, line 9, leave out subsection (4).

The noble Lord said: Under the Bill as it stands the Secretary of State may--

Lord Williams of Mostyn: I think we had agreed that at about this time we would ask that the House resume. The noble Baroness, Lady Hamwee, has come in on that basis. Would it be convenient to resume the House at this stage?

Lord Lester of Herne Hill: I began with a few words. I apologise in advance that I will never complete that sentence because I cannot be here for the next day in Committee; otherwise, it is plainly for the convenience of the House that I should not do so.

[Amendment No. 73 not moved.]

Baroness Ramsay of Cartvale: I beg to move that the House do now resume.

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Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Children's Commissioner for Wales Bill

7.26 p.m.

Brought from the Commons; read a first time, and to be printed.


Lord Carter: My Lords, before we move to the Motion and the Prayer, it may be for the convenience of the House if I say a word about the procedure that will follow in relation to these two items. The noble Baroness, Lady Hamwee, will move her Motion and in so doing will make her speech. There will then follow a single debate. The noble Lord, Lord Dixon-Smith, will speak next. The Minister will speak at the end. The noble Baroness, Lady Hamwee, will then have the opportunity to reply and will either press her Motion or withdraw it. If the noble Baroness presses her Motion to a Division and wins, the House authorities have advised that the Motion in the name of the noble Lord, Lord Dixon-Smith, will be pre-empted and he will not be able to move it. If, however, the noble Baroness loses her Motion or withdraws it, the noble Lord, Lord Dixon-Smith, can choose whether or not to move his Motion. If the noble Lord, Lord Dixon-Smith, moves his Motion, he may do so formally. We will then have any further Division without any debate. I hope that that clarifies the position.

Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000

Baroness Hamwee: My Lords, I beg to move the Motion standing in my name on the Order Paper. It is a long Motion but with a short point of principle at its heart.

The regulations in question--whose title runs for two lines--are required by the Local Government Act 2000 but they are also--I hope that I may say this without offence--more importantly required by their principle of maximum openness in government at every level. On this occasion we are talking about local government.

During the passage of the Local Government Bill, as it then was, we on these Benches made it quite clear that our support for the Bill depended, in part, on acceptable access to information provisions. We tabled amendments that required meetings to be open to the public and the press, who are a very important part of the democratic process, providing information about what goes on locally. The amendments required those meetings to be open when councils were

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discussing matters pertaining to decisions. We did not press our amendments because the Government produced their own inevitably more carefully crafted amendments which we were happy to support. They are now reflected in Section 22 of the Act.

On 24th July 2000 (at col. 59 of the Official Report) the noble Lord, Lord Whitty, explained to the House that the amendments provided the foundations of the robust regime for public and media access to ensure that people will know what decisions the executive of the local authority is planning to take, how they can make their in-put to those decisions, what decisions have been taken and the reasons for those decisions. That statement was helpful and very important. It spelt out what accountability is: it is not simply being able to point to the person or the group who makes the decision; it is the whole process of decision making--access by those who have an interest and a contribution to the final decision.

The Act allows--in parliamentary terms that means "requires"--the Secretary of State to make regulations. A draft was published last summer. We now have regulations that are in force together with statutory guidance regarding their application. After the publication of the regulations, it was drawn to our attention that they do not wholly achieve the access which we sought and which I believe the Government intended when the matter was debated last summer.

We know that there are problems with orders. We are all aware of the convention that we do not vote on--that is, vote against--orders, or at any rate only in the rarest of circumstances. I should point out that "convention" is a term which has a different definition depending on the occasion. We know also--it is particularly important in this context--that orders are unamendable. There is no opportunity to influence their content during the formal legislative process. My own view is that I would much prefer to be able to amend orders, but that is not the issue for the House today. We need to consider what can be achieved in the context of an unamendable order accompanied by guidance issued by the Government--guidance that can be reissued.

Aware of these difficulties in procedure, we decided that the mature way to proceed was to approach the Government to discuss our concerns. We did not simply produce those concerns like a rabbit out of a hat and bring them before the House. Discussions have taken place with Ministers in both Houses. It is perfectly right that, in the context of a discussion about access to information, I should make that point clear. I do not know whether the Conservatives have made a similar approach. No doubt we shall hear from the noble Lord, Lord Dixon-Smith, on that matter.

We approached the Government in order to see what could be done to meet our concerns. I hope that the Minister will be able to assure us and, more importantly, the House on the points that I raise. I shall do so as briefly as I can, recognising that, to those who have not lived with this issue, the points may appear a little opaque. I apologise for that.

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First, under the provisions, the "key" decisions must be made in public. Under Regulation 8(1)(a), the first type of key decision is one likely to result in a local authority incurring expenditure or making savings which are,

    "significant, having regard to the local authority's budget, for the service or function in question".

The term "significant" is not an easy one. Different authorities will inevitably take a different approach to the matter. The Government have referred to the term in their guidance but we are concerned to ensure that there are financial thresholds above which decisions are key; or, to put it another way, below which they can be decided in private. That is what we are seeking to minimise. We need to be satisfied that the levels cannot be set ridiculously high by an individual local authority.

I accept that this is a sensitive matter for authorities. If the Government are able to tell us that they can move forward on this point, I hope that they will also tell us that that will be through consultation with local authorities.

Secondly, a key decision under the regulations is one that is significant for communities in two or more electoral wards. The guidance, which puts a gloss on this, provides that large rural wards can be regarded by a local authority as two wards. I do not think that the two-ward test meets the test of common sense. Frequently, decisions are taken which have a huge effect--but an effect on a limited number of people. I shall not weary the House with examples. I am sure that noble Lords will be able to think of them from their own experience.

My third point concerns draft reports. Local authorities should not be able to get away with using the label of "draft report" on what is substantively a final report. Such a report should be treated as final and should be dealt with in public. Nor should an authority be able to use the urgency procedures, with which I am sure the House will be familiar, to avoid the requirement to make reports available three days in advance when the only urgency is a failure to finalise the report in time for the normal procedures.

My fourth point concerns briefing meetings with officers. Under Regulation 7(2), a meeting is not a meeting to which the access provisions attach if it is for an officer to brief the decision-makers. I ask the Minister to give the House an assurance that it will be made clear that this cannot be used as a get-out. Regulation 7(2) applies to Regulation 7(1)(b) and (c). I am sure the Minister follows what I am saying. I apologise again to other noble Lords. I ask him for a further assurance that any key decision of an executive or of a committee of an executive must be taken in public, subject to the usual provisions about exempt confidential and commercial matters.

My next point concerns matters where there is a change of policy. Under the new executive scrutiny split, policy is a matter for the full council. But policy does not spring fully formed onto an agenda. There is a process of policy-making. The involvement of the public in that policy-making--both access to it and,

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because of access to it, ability to contribute to it--is most important. I should like to be assured that a decision by an executive in the course of developing policy proposals will be treated as a key decision.

Finally, I return again to the helpful statements made by the Minister on 24th July 2000. He said that the Government would ensure that their intention,

    "for open meetings cannot be subverted by an executive separating a pertinent discussion about a key decision from the meeting where it collectively agrees that decision or through its scheme for delegating formal decision-taking to an individual member of the executive or an officer of the authority. The principle is clear. Where executives meet formally to discuss key decisions, they should do so in public regardless of who will formally take the decision".--[Official Report, 24/7/00; cols. 59-60.]

That is an important point. Decisions should not be delegated through a formal procedure in order to avoid their being discussed and debated in a public and accessible fashion. The guidance needs to be clear on that point.

I turn to the guidance. We have the two documents at the moment--the regulations and the guidance. We already have a provision in the guidance that alters the provisions of the regulations. That relates to the number of wards affected. I hope that the Minister can explain to the House that we are not in the uncomfortable constitutional position of what appears to be a subordinate document over-ruling the primary document--the regulations. I believe that, given the status of statutory guidance, local authorities need to have regard to it. Can the Minister assure noble Lords that no conflict exists between the two? I refer not only to the question of wards, but also as regards the matters I have raised this evening, if they should be included in guidance rather than put on the face of an order.

Finally, we are entering new waters in local government. I believe that, assuming that we finish this evening's proceedings with the regulations in place, it would be reasonable to review them after a short period of implementation and experience. Can the Minister say whether the Government would be prepared to review the regulations; namely, to consult fully and openly and then to revise in short order on the basis of that consultation? If that is so, when? I beg to move.

Moved, That this House calls on Her Majesty's Government to revoke the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000 (S.I. 2000/3272), laid before the House on 19th December 2000, and to lay before it in their place regulations which would-- (a) improve the definition of "key decisions" such that one of the tests is whether a decision is significant in terms of its effects on people in one ward or a wider area rather than in two wards as defined at present; (b) specify the minimum financial thresholds for expenditure or savings decisions by an executive above which a decision is a key decision in such a manner as to minimise arbitrary variations between authorities;

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(c) require that a decision which makes a significant change to the existing policy or established practice of an authority, even within the framework of matters delegated by that authority to the executive, is a key decision; (d) remove the conflict between Regulations 2 and 9 so that it is explicitly required that all reports relating to key decisions shall be deemed to be in a final form, and not in draft, at least three clear days before the decision is taken in order that executives shall not be able to avoid advance disclosure of such reports; and (e) prevent avoidance of the requirement for cabinets to meet in public by barring officers from briefing a full cabinet of a local authority executive in secret unless the subject matter of the briefing is confidential or exempt within the terms of Part VA or Schedule 12A of the Local Government Act 1972.--(Baroness Hamwee.)

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