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The noble Baroness said: The amendment seeks to make a minor drafting correction to Clause 235. Before I speak to the amendment, I will say a little about the intention behind the clause. Your Lordships will know by now that there is a consistent policy theme underlying the Bill, which is our desire to enable ordinary members of local authorities to be more effective champions of and advocates for the communities that they represent. This innovative step is another measure in that direction. We want local authorities to be able to make arrangements by which they can enable their ordinary members, the back-bench councillors, to take action that will directly resolve some of the problems in their local areas. One model for such arrangements would be to make small budgets available to councils, coupled with ground rules defining what it may be used for, how it might be administered and so on. However, some authorities might want to consider other approaches. Within limits, we are content to leave it to authorities to set up the arrangements that best suit them.

Such an approach is not entirely new because many local authorities already provide budgets for their members to disbursed to the community by way of small grants. Staffordshire County Council’s local members’ initiative scheme, for example, is a good and worthwhile measure to provide just that. This clause does something different, and goes further. If authorities so wish, they will now be able to authorise their members to act on behalf of the council, for example to invoke the services of a contractor. We originally conceived this clause as an adjunct to the community call for action. It seemed to us that there were many minor issues of practical concern to

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communities about which they might rightly look to their councillors for help. The community call for action involves reference to an overview and scrutiny committee, but sometimes that will not be an appropriate response. It will sometimes be a problem such as an unresolved incidence of fly-tipping or the need for practical help for a community which wants to clean up the local park. People want to see immediate action from their councillors in such circumstances. This clause enables authorities to set up a framework of delegation for such things.

The clause is drafted in general terms to allow arrangements to be made for the discharge of an authority’s function by an individual councillor. It is important that the generality of that part can be constrained by the Secretary of State, who will have to make an order if so moved, as provided for in Clause 235(4). I shall say more on that in the next group of amendments. A small budget will sometimes be attached, but it does not necessarily involve that.

The amendment is necessary because the clause’s original drafting contains a minor defect which Amendment No. 242K will correct. The clause as drafted appears to allow the delegation of one local authority’s functions to a member of another local authority. That was clearly not the policy intention. The amendment makes it clear that such a delegation can only be to one of the authority’s own members. I beg to move.

Baroness Hanham: I apologise to the Minister; I was not here as the debate tipped over and missed the first couple lines of what she said. As I understood the last passage, any member of “a local authority” could be interpreted as “any local authority”, and the provision should read “a member of the” local authority. It is interesting because they are being entitled to perform a wide range of functions. “Any function” of a local authority could be anything at all. If they are going to be allowed to be charged with it, let us hope that this is adequate. I thank the Minister for her explanation.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Tordoff): In calling Amendment No. 243, I should point out to the Committee that, were it to be agreed to, I should not be able to call Amendment No. 244 because of pre-emption.

Baroness Hamwee moved Amendment No. 243:

The noble Baroness said: I shall also speak to Amendments Nos. 244, 245 and 245A. I am not at all surprised by the warning about pre-emption. I realised last night that my noble friend Lady Scott of Needham Market, who cannot be here this evening, tabled one pair of amendments, I tabled another, and both pairs have the same function. I apologise to the Minister if that made it harder for her officials to write a brief. I am sure that they all got the point.

In introducing the previous amendment, the Minister said that the Government want to leave it to authorities to set up their own arrangements and used the term “authorities” throughout her speech. My amendment is to provide precisely that in terms. It

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will be the whole authority and not an executive member—the relevant executive member or whatever—who makes the delegation. This is an important constitutional change. It should be for the council collectively as an authority to take the decision to pass certain functions to individual members and to take decisions on functions subject to the orders which we are used to.

6.45 pm

The bigger picture of a council’s constitution is largely a matter for the authority itself. As an authority, whatever the executive arrangements, it has, and will continue to have, certain major functions, including determining the budget. The council can currently promote decentralisation, even devolution, to neighbourhood committees and it sometimes even allocates budgets to neighbourhood or area committees. As I said, it is right for the council as a whole and not for an individual to take the decisions.

In Committee on this clause in another place, the Minister gave an example which the noble Baroness did not give here. I did not think that it was a good example. It was a situation where a local councillor, approached by a constituent who needed to have window locks fitted, used his budget to fit them. If that is how this provision will go, it is a very bad idea. It will leave individual members open to difficult pressures to spend money on that sort of individual matter rather than as part of the community spend. It is not unlike the argument about charities. Should one give to charity, as it will let government off the hook in dealing with the issue? The noble Baroness gave the much better example of how this could be used more appropriately. The Minister went on to use the argument that it is not right for a body that does not have a responsibility for a function to delegate it and that the executive member who has the function should have the right to delegate it as well. This is potentially such a significant matter that it ought to rest with the council. I beg to move.

Baroness Hanham: I slightly jumped the gun in replying to the Minister’s amendment because I, too, have considerable concerns about the breadth of the proposal. “Any function” of a local authority could cover a wide spectrum of services. If this can be passed down to “a member” of the local authority and “through an executive member”—so it is clearly not the executive member who will be doing it—where will accountability lie for what the member is doing? If it is limited in scope to a small aspect of the local authority’s responsibility, that is a different matter. But that is not what the Bill says. We need some clarity on whether the function might start as a little mouse and finish as a roaring lion. There has got to be a middle point where a member cannot be responsible for a function.

I take the point of the noble Baroness, Lady Hamwee, that this should not simply be passed through an executive member. If the principle is that a member can perform a function, then that should have the full authority of the local authority. Otherwise the issue of accountability will be very difficult to understand.

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Baroness Andrews: I shall deal with those points first because they straddle the amendments. There was always going to be tension between whether this measure went too far or not far enough. We have tried to provide discretion for the council; we know that some already use a version of this power, but this is a specific way of delegating the authority’s own power.

As for whether the measure goes too far, the clause allows us to prescribe. If we so wish, we can take powers to prescribe the delegation of some functions. That is an important reserve power. We will discuss with the sector whether any functions should be prescribed at the outset. That power would be available to us if we thought that councils were acting in a disproportionate way or for some reason—which is hard to imagine—did something bizarre by way of delegation. We would not expect any functions connected with billing, childcare or highways to be delegated.

I think that people understand that the purpose of this measure is to give local councillors a local power to act. An individual can say to a councillor, “The community is suffering because there is a persistent problem with litter. It is not worth taking it to the overview and scrutiny committee. We think that with your small budget, or just with your power, you can get something done”. I take the point that it is actually a community function rather than one that supports individuals.

The power that we have kept to make it possible to contain some of those powers is very important, and I shall return to it later. Some of the most appropriate powers would be environmental, in terms of the cleanliness of the community, the state of the local parks, and so on. That is the context in which we envisage the provision being used and the circumscription surrounding it.

We noticed some inconsistency in the amendment, which has now been explained. We are missing some of our regular cast this evening. Amendments Nos. 243 and 245A suggest that the power should rest with the whole council rather than the executive model. In framing the clause, we adopted a fairly straightforward principle, which we have discussed in many instances during the Bill’s proceedings. Arrangements for delegation of a function should be settled by whoever is ultimately responsible for that function. In an authority operating executive arrangements, that person is, for the vast majority of functions, the senior executive member. The powers of that person to arrange for delegation to members of the executive or to committees are set out in Section 14 of the Local Government Act 2000. The Bill updates the terminology of Section 14. We are using a generic term—“senior executive member” covers leaders, elected mayors and directly elected leaders. It does not change the substance. We are arguing, from the point of view of consistency, that as the executives have that power, that is where this power should rest as well.

The clause is drafted in very general terms. It permits local authorities to operate in a very different way from that which was contemplated when the 2000 Act was passed. In those circumstances, we think it would be rash to put it into law without retaining any

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power to influence the way it is used and to prevent people using it inappropriately.

Moreover, if these amendments were to be adopted, we would be in the very strange position of the 2000 Act vesting in the senior executive member power to delegate functions to executive members, committees and officers, with the Bill going in the opposite direction of travel and vesting power in the whole council to delegate to individual members. That cannot be right. It would allow a situation in which the whole council might choose to delegate some function to individual members which the senior executive member chooses not to delegate at all and would keep to himself or herself. For example—and it is a perverse example, which I use just to make the point—we would not tolerate a situation in which control of daycare centres for vulnerable children were delegated to a local councillor against the wishes of the council leader and the executive member responsible for social services. I cannot imagine that that would happen but we have to ensure that it does not. If Amendment No. 245A were accepted, the Secretary of State would be powerless to straighten things out, which is a reason for opposing the amendment.

We expect the clause to be used to empower individual members to take executive action and, in some circumstances, to sort out quickly minor problems afflicting their communities. It provides local authorities with the flexible means to make that happen. I hope that Members of the Committee will accept that we have the balance and the range of powers right.

Baroness Hanham: The previous clause, which the Minister amended, refers to “any function”. Does the Minister consider it would be worth amending that to “a function”? There is a great difference between “any function”, which has an extremely broad scope and “a function” which can be delineated. You cannot claim that you can do anything under the Bill, but specifying “a function” allows you to be specific about what it is. I remain concerned that the clause still goes very wide, despite what the Minister has said.

Baroness Andrews: I am not entirely sure of the implications. May I take it away, think about it and check with our lawyers? It may not be much more significant than we both think, but I should like to discuss it.

Baroness Hamwee: I knew that I would not win on this amendment. One reason was that I realised as I listened to the Minister that we have different views about the notion of leadership and the desirability of the models which we have been debating for seven and a bit days. It was telling that in answer to the noble Baroness, Lady Hanham, the reassurances about the scope of the clause are in the fact that the Secretary of State can prescribe what shall not be transferred. That says a lot, and the noble Baroness put her finger on it when she talked about accountability.

We will take a view over the summer on whether we will continue to press the matter. For now, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendments Nos. 244 to 245A not moved.]

Clause 235, as amended, agreed to.

Clause 236 agreed to.

[Amendment No. 245B not moved.]

[Amendment No. 246 had been withdrawn from the Marshalled List.]

Clause 237 agreed to.

Clause 238 [Contracting out]:

On Question, Whether Clause 238 shall stand part of the Bill?

Baroness Hanham: I have given the Minister notice that I will speak to Clause 238 stand part as I want to try to get in something sensible about registered social landlords.

The preamble to the Bill states that it will make provision for local government and the functions and procedures of local authorities. Yet one area is missing—the function of local authorities in respect of registered social landlords. I think we have all agreed during the Bill’s proceedings that local authorities should be the community champion in their area. It is up to them to ensure the quality and delivery across all housing providers and tenures, including registered social landlords.

For local authorities to meet their targets on housing, they need to be able to ensure that registered social landlords are performing against agreed local set targets and priorities, as set by the local authority. In particular, there are two key omissions that we feel should be addressed. First, there is a need to give local authorities powers to ensure that social housing providers conform with important local strategies that have a bearing on housing. We touched on this throughout the other stages of the Bill. Secondly, a local authority should have the power to serve a notice on a poorly performing registered social landlord, so that he would have to explain himself to the local authority and so that the local authority could recommend what action the registered social landlord needed to take.

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Currently, local authorities do not have powers to ensure that social housing providers, housing associations or other social landlords engage with and contribute to local strategies. Despite the key importance of these organisations—we have all agreed that they are important in delivering the targets at local level—problems with poorly performing social housing providers are particularly evident where those providers have only a few units in a particular area. They tend to focus more on managing areas in which they have more stock at the expense of their tenants who live outside those areas. We have given these figures before, but I shall repeat them: there are 390 registered social landlords in London, of which 266 have fewer than 10 units in some local authorities. One can easily imagine that poor management by housing associations or registered social landlords and failure to deal with anti-social behaviour can have a knock-on effect on other residents living nearby.

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We do not believe that local authorities have adequate powers that would enable them to take action against poorly performing RSLs who let housing in their areas. All social housing tenants deserve a good service and a landlord who is responsive to their needs. While council landlords have to perform against national performance targets and are always in the lead in improving tenants’ quality of life, RSLs do not have the same obligations. Local authorities are accountable to their communities, so they should also be accountable for RSLs. Given that RSLs are an important part of housing provision and receive a large amount of public money, does the Minister accept that local authorities need to have powers to ensure that they meet priorities and targets? Although my remarks are probing for today, it might be helpful if I table amendments at a later stage for the Minister to consider so that we might get this issue, which we have discussed all the way through our deliberations, into the Bill.

Lord Livsey of Talgarth: I shall be brief. I note that in the previous sitting Clause 234 in Part 15 was not debated. It is not my duty to debate it now, except to say that I welcome all the transfer of powers to the Welsh Assembly contained in it. Some MPs in the other place have said that these aspects of the legislation are slipping through the net, but I note that the Secretary of State for Wales has said that he will now brief Welsh MPs on those aspects of Bills such as this.

Proposed new Section 79B in Clause 238 actually defines local authorities in Wales and how the legislation is brought about in relation to Wales. It was certainly not my wish to drag civil servants here from Cardiff to listen to what I was going to say, because that would be unnecessary, but the clause relates to contracting out, which is important in a Welsh context in which contracting out is well established, as in other local authorities in other parts of the UK. I am sure that Members of the National Assembly for Wales will have wished to have had some input into this part of the legislation, as contracting out can be contentious. I have a Welsh Assembly briefing note on new powers for the Assembly in which best value is matter 12.5. The briefing note—“Annex A: memorandum on new powers for the National Assembly for Wales” in the 11th report of the Select Committee on Delegated Powers and Regulatory Reform—talks about best value in the context of the Beecham review on local government in Wales, and states:

I note that it refers to the “Assembly Government”, but there is no comment on what other Members of the National Assembly for Wales felt about it. I would be very grateful if the Minister would write to me and let me know what consultation there was with anyone who is not a Member of the Assembly Government and what they think about this. I realise that the agreement in Wales for the Assembly Government has only just been completed. None the less, the briefing note, which is dated May, refers to it, and I simply wonder how the Assembly Members have been consulted.

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Lord Best: The noble Baroness, Lady Hanham, talked about bringing housing associations and requirements on them within the scope of the legislation. I have two or three comments to make. First, we encounter the problem of landlords’ poor performance and not dealing with anti-social behaviour in the private sector as well as in what I like to think is a very small minority of cases in the social housing sector. There is no suggestion that private landlords, who I admit receive no subsidy but who do receive tax relief to help them to produce homes, would be encompassed by any part of this legislation.

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