Local Government and Public Involvement in Health Bill

House of Lords

Session 2006 - 07
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Local Government and Public Involvement in Health Bill

Local Government and Public Involvement in Health Bill
Part 8 — Local services: inspection and audit
Chapter 3 — Auditor General for Wales and auditors
118

166
Disclosure of information obtained by the Auditor General for Wales or an
auditor
(1)
The Public Audit (Wales) Act 2004 (c. 23) is amended as follows.
(2)
In section 54 of that Act (restriction on disclosure of information), after
subsection (2) insert—
5
“(2ZA)
A person who is, or acts on behalf of a person who is, a public authority
for the purposes of the Freedom of Information Act 2000, may also
disclose such information—
(a)
in accordance with section 145C(5) or (8) of the Government of
Wales Act 1998; or
10
(b)
in any other circumstances, except where the disclosure would,
or would be likely to, prejudice the effective performance of a
function imposed or conferred on the person by or under an
enactment.
(2ZB)
An auditor who does not fall within subsection (2ZA), or a person
15
acting on his behalf, may also disclose such information except where
the disclosure would, or would be likely to, prejudice the effective
performance of a function imposed or conferred on the auditor by or
under an enactment.
(2ZC)
A person who does not fall within subsection (2ZA) or (2ZB) may also
20
disclose such information in accordance with consent given by the
Auditor General for Wales or an auditor.
(2ZD)
Section 54ZA makes further provision about consent for the purposes
of subsection (2ZC).”.
(3)
Omit subsection (2A) of that section.
25
(4)
In subsection (3) of that section, for “subsection (2)” substitute “this section”.
(5)
In subsection (4) of that section—
(a)
in paragraph (a), omit “to imprisonment for a term not exceeding six
months or” and “or to both;”;
(b)
omit paragraph (b).
30
(6)
After that section insert—
“54ZA
Consent under section 54(2ZC)
(1)
Consent for the purposes of section 54(2ZC) must be obtained in
accordance with this section.
(2)
A person requesting consent (“the applicant”) must make a request for
35
consent which—
(a)
is in writing,
(b)
states the name of the applicant and an address for
correspondence,
(c)
describes the information in relation to which consent is
40
requested, and
(d)
identifies the person to whom the information will be disclosed.
(3)
Consent must be given except where the disclosure would, or would be
likely to, prejudice the effective performance of a function imposed or

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Part 9 — The Commission for Local Administration in England
119

conferred on the Auditor General for Wales or an auditor by or under
an enactment.
(4)
Consent may be given or refused orally or in writing; but where it is
given or refused orally the consent or refusal must be confirmed in
writing.
5
(5)
A refusal (or, where the refusal is oral, the confirmation of the refusal)
must contain the reasons for the refusal.
(6)
A person to whom a request for consent is made must give or refuse
consent not later than the twentieth working day following the day on
which the request is received.
10
(7)
“Working day” means any day other than a Saturday, a Sunday,
Christmas Day, Good Friday or a day which is a bank holiday under the
Banking and Financial Dealings Act 1971 in any part of the United
Kingdom.”.
(7)
Omit section 54A of that Act (disclosure of information by or on behalf of
15
public authorities).
(8)
Nothing in this section has effect in relation to a disclosure made before the
commencement of this section.
Part 9
The Commission for Local Administration in England
20
167
Appointment and removal of Commissioners
(1)
Section 23 of the Local Government Act 1974 (c. 7) (appointment and removal
of Commissioners) is amended as follows.
(2)
In subsection (4) (appointment of Commissioners) omit from “after
consultation” to the end.
25
(3)
After subsection (4) insert—
“(4A)
Subject to subsections (5) to (6), a Commissioner shall hold and vacate
office in accordance with the terms of his appointment.”
(4)
For subsection (5) substitute—
“(5)
A Commissioner’s appointment may be a full-time or part-time
30
appointment and, with the Commissioner’s consent, the terms of the
appointment may be varied as to whether it is full-time or part-time.
(5A)
A Commissioner must be appointed for a period of not more than 7
years.
(5B)
A Commissioner shall, subject to subsection (6), hold office until the
35
end of the period for which he is appointed.”
(5)
In subsection (6) (removal of Commissioners and obligation to vacate office at
end of year in which Commissioner attains age of 65) omit from “, and shall in
any case vacate office” to the end.

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(6)
After subsection (6) insert—
“(6A)
A person appointed to be a Commissioner is not eligible for re-
appointment.”
168
Responsibilities of Commissioners
(1)
Section 23 of the Local Government Act 1974 (c. 7) (appointment and removal
5
of Commissioners) is amended as follows.
(2)
For subsections (8) and (9) (allocation of cases by geographic area) substitute—
“(8A)
The Commission must—
(a)
divide the matters which may be investigated under this Part of
this Act into such categories as they consider appropriate, and
10
(b)
allocate, or make arrangements for allocating, responsibility for
each category of matter to one or more of the Local
Commissioners.”
(3)
In subsection (10)(a), for “to accept cases for which they are not responsible”
substitute “to deal with matters for which they do not have responsibility
15
pursuant to subsection (8A)”.
169
Annual reports
(1)
Section 23A of the Local Government Act 1974 (annual reports) is amended as
follows.
(2)
In subsection (1), after “functions” insert “(an “annual report”)”.
20
(3)
In subsection (2)—
(a)
for “The report” substitute “The annual report”;
(b)
for “their own report” substitute “their annual report”.
(4)
In subsection (3), for “the report submitted by them under subsection (1)
above” substitute “the annual report”.
25
(5)
After subsection (3) insert—
“(3A)
The Commission must lay a copy of the annual report before
Parliament.”
(6)
Omit subsections (4) and (5) (comments on Commission’s annual report).
170
Power to investigate
30
Before section 25 of the Local Government Act 1974 insert—
“24A
Power to investigate
(1)
Under this Part of this Act, a Local Commissioner may investigate a
matter—
(a)
which relates to action taken by or on behalf of an authority to
35
which this Part of this Act applies,
(b)
which is subject to investigation under this Part of this Act by
virtue of section 26, and
(c)
in relation to which subsection (2), (3) or (5) is satisfied.

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(2)
This subsection is satisfied if, in relation to the matter, a complaint
which satisfies sections 26A and 26B has been made to a Local
Commissioner.
(3)
This subsection is satisfied if, in relation to the matter—
(a)
a complaint which satisfies sections 26A and 26B has been made
5
to a member of an authority to which this Part of this Act
applies, and
(b)
the complaint has been referred, or is treated as having been
referred, to a Local Commissioner under section 26C.
(4)
Any question whether subsection (2) or (3) is satisfied in relation to a
10
matter shall be determined by a Local Commissioner.
(5)
This subsection is satisfied if—
(a)
the matter has come to the attention of a Local Commissioner,
and
(b)
section 26D applies to the matter.
15
(6)
In determining whether to initiate, continue or discontinue an
investigation, a Local Commissioner shall, subject to the provisions of
this section and sections 26 to 26D, act in accordance with his own
discretion.
(7)
Without prejudice to the discretion conferred by subsection (6), a Local
20
Commissioner may in particular decide—
(a)
not to investigate a matter, or
(b)
to discontinue an investigation of a matter,

if he is satisfied with action which the authority concerned have taken
or propose to take.”
25
171
Authorities subject to investigation
(1)
Section 25 of the Local Government Act 1974 (c. 7) (authorities subject to
investigation) is amended as follows.
(2)
In subsection (4), for paragraphs (b) and (c) substitute—
“(b)
to a committee or sub-committee of that authority (including a
30
joint committee or joint sub-committee on which the authority
are represented),

and (for the avoidance of doubt) subsections (4ZA) to (5) apply for the
purposes of this subsection.”
(3)
After subsection (4) insert—
35
“(4ZA)
Any reference to an authority to which this Part of this Act applies also
includes, in the case of a local authority operating executive
arrangements, the executive.”
(4)
In subsection (4A) (Greater London Authority), omit paragraphs (b) and (c).
(5)
Omit subsection (4B) (sub-committees of the London Transport Users
40
Committee).
(6)
In subsection (5)—
(a)
in paragraph (c), after “constituted” insert “by the authority”;

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(b)
in paragraph (d), after first “school” insert “maintained by the
authority”;
(c)
in paragraph (e), after “constituted” insert “by the authority”.
(7)
After subsection (5) insert—
“(6)
Subsection (7) has effect where an authority to which this Part of this
5
Act applies exercise a function entirely or partly by means of an
arrangement with another person.
(7)
For the purposes of this Part of this Act, action taken by or on behalf of
the other person in carrying out the arrangement shall be treated as
action taken—
10
(a)
on behalf of the authority, and
(b)
in the exercise of the authority’s function.
(8)
Subsection (7) does not have effect where, by virtue of another
enactment, the action would be treated as action taken by the
authority.”
15
172
Matters subject to investigation
(1)
Section 26 of the Local Government Act 1974 (c. 7) (matters subject to
investigation) is amended in accordance with subsections (2) and (3).
(2)
For subsection (1) substitute—
“(1)
For the purposes of section 24A(1)(b), in relation to an authority to
20
which this Part of this Act applies, the following matters are subject to
investigation by a Local Commissioner under this Part of this Act—
(a)
alleged or apparent maladministration in connection with the
exercise of the authority’s administrative functions;
(b)
an alleged or apparent failure in a service which it was the
25
authority’s function to provide;
(c)
an alleged or apparent failure to provide such a service.
(1A)
Subsection (1) is subject to the following provisions of this section.”
(3)
Omit subsections (2) to (4) (procedure for making complaints).
(4)
In Schedule 5 to that Act (matters not subject to investigation), for paragraph 3
30
substitute—
“3    (1)
Action taken in matters relating to contractual or other commercial
transactions of any authority to which Part 3 of this Act applies
relating to—
(a)
the operation of public passenger transport;
35
(b)
the carrying on of a dock or harbour undertaking;
(c)
the provision of entertainment;
(d)
the provision and operation of industrial establishments;
(e)
the provision and operation of markets.
      (2)
Sub-paragraph (1) does not include transactions for or relating to—
40
(a)
the acquisition or disposal of land;

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(b)
the acquisition or disposal of moorings which are not
moorings provided in connection with a dock or harbour
undertaking.
      (3)
Sub-paragraph (1)(a) does not include action taken by or on behalf of
the London Transport Users Committee in operating a procedure for
5
examining complaints or reviewing decisions.
      (4)
Sub-paragraph (1)(e) does not include transactions relating to—
(a)
the grant, renewal or revocation of a licence to occupy a pitch
or stall in a fair or market, or
(b)
the attachment of any condition to such a licence.”
10
173
Complaints and matters coming to Commissioners’ attention
(1)
After section 26 of the Local Government Act 1974 (c. 7) insert—
“26A
Who can complain
(1)
Under this Part of this Act, a complaint about a matter may only be
made—
15
(a)
by a member of the public who claims to have sustained
injustice in consequence of the matter,
(b)
by a person authorised in writing by such a member of the
public to act on his behalf, or
(c)
in accordance with subsection (2).
20
(2)
Where a member of the public by whom a complaint about a matter
might have been made under this Part of this Act has died or is
otherwise unable to authorise a person to act on his behalf, the
complaint may be made—
(a)
by his personal representative (if any), or
25
(b)
by a person who appears to a Local Commissioner to be suitable
to represent him.
26B
Procedure for making complaints
(1)
Subject to subsection (3), a complaint about a matter under this Part of
this Act must be made—
30
(a)
in writing, and
(b)
before the end of the permitted period.
(2)
In subsection (1)(b), “the permitted period” means the period of 12
months beginning with—
(a)
the day on which the person affected first had notice of the
35
matter, or
(b)
if the person affected has died without having notice of the
matter—
(i)
the day on which the personal representatives of the
person affected first had notice of the matter, or
40
(ii)
if earlier, the day on which the complainant first had
notice of the matter.
(3)
A Local Commissioner may disapply either or both of the requirements
in subsection (1)(a) and (b) in relation to a particular complaint.