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Baroness Kramer: My Lords, this amendment follows on nicely from the previous amendment. It also illustrates the general confusion over the structure of transport in the London area. The purpose of the amendment is to remove from the Department for Transport the responsibility for rail franchising within the inner suburban area of London and transfer it to Transport for London. It is wholly within the spirit of the Bill to take from the centre and give to a regional
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Noble Lords will know that at present Transport for London effectively either manages or in some way regulates the Tube, the Docklands Light Railway, bus services, river transport services and taxi services, but when it comes to rail, it has only a very limited purview. It directly manages London Overground, which is one very minor line, and it will have oversight of Crossrail once it is completed. However, when it comes to the inner suburban rail services that criss-cross much of the London area, Transport for London's role is extremely limited. The Department for Transport lets and manages the franchises and Transport for London can simply specify and pay for either an increment to that service or-terrible bureaucratic word-a decrement to that service. Essentially, the consequence of that has not been very beneficial to passengers.
I would argue that London is different from much of the rest of the country when it comes to rail. Fourteen per cent of Londoners use the National Rail network to commute daily to work. Indeed, outside of London proper, in the south-east and east of London there are many more who use that rail network to commute to work within the London area. That makes it distinctly different from any other part of the country. There are 10 train operating companies, so it is a highly fragmented service. Demand in the area is so inelastic that the kind of competitive pressures that have effect in the rest of the country are virtually irrelevant when it comes to London, where demand is so high, capacity is constantly at breaking point and there is always a need for additional capacity. So the competitive issue that exists elsewhere is not relevant within London itself.
I said that there were 10 different train operating companies. That means 10 different brandings, 10 different fare structures, 10 different forms of marketing, 10 different commercial strategies and 10 different operating time horizons. As noble Lords will know, the McNulty review recommends that more power should go to the train operating companies and franchises should be longer. So trying to create an integrated London Transport service within this environment, where rail is so fragmented and Transport for London has so little direct power, is very significantly undermined. If your Lordships would like an example of what this does to, as it were, disadvantage passengers, I draw your attention to the Oyster card. I should declare that I am a former member of the board of Transport for London and was very involved with the rail side. Rows went on year after year to try to get any form of Oyster card available on National Rail. Then we got "pay as you go", which most people have now enjoyed only for the past couple of years. Technically it could have been done very easily, but the issue was never high on the priority list for the Department for Transport, which had to be involved because of the franchising structure. The TOCs saw it as a way to leverage money out of London Transport. The whole process was very much to the disadvantage of passengers. If your Lordships want another quick example, just go down to Waterloo. The next time you are stuck on a train that is slow
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Sometimes I seethe with envy when I talk to transport friends in Berlin as they are able to work with the bus and taxi services so that late-night trains are met by a co-ordinated timetable of buses and taxis, ensuring that train passengers have a seamless journey. The battle in London has been to look at travel as a single journey, whether you use one mode or multiple modes to get to your destination, and to create that kind of integration. It has been phenomenally successful, but leaving out rail makes no sense.
Sometimes people say that people from outside London use the services so they must not be too London biased. We can give them a voice by putting some directors from outside London onto the relevant board within Transport for London. It is also true that the department will continue to have a voice, but the balance needs to be shifted towards an entity which has a genuine interest, in a detailed way, in the quality of service, as Transport for London does.
Lord Spicer: Is the empty platform at Waterloo, which the noble Baroness has been describing, the reason why plays are being put on there now?
Baroness Kramer: Plays are not taking place on the adapted platform but it would be better to use it for a play than nothing at all. It is absolutely ridiculous.
I have two more points to make. Some people say that there must have been a lot of thought about how the franchises should be divided up and a reason for not giving far more influence over the rail franchising process to Transport for London. The rationale was, "We don't like Ken Livingstone". When the GLA Bill went through this House, particularly when TfL was under review, there was an attempt to minimise the London influence. We had the disastrous Tube public/private partnership, which was a key part of the structure and which ensured that Transport for London really could not manage the system as a whole.
There was very little appreciation of the benefits of integration. That is one of the other pieces, if you like, which came out of much of that kind of thinking. We have all moved beyond that and recognise the benefits of integration and the benefits of regional management. I argue that at this time, when the transport infrastructure in this area is desperately overstretched, when we really are in a situation of economic recovery in some areas of London and you practically have to strap people to the roofs of transport carriages, we need to maximise the use of that infrastructure. Therefore, the logic is to change the franchising responsibility, which is what this amendment attempts to do.
Lord Berkeley: This is an interesting amendment. I was particularly seized of the way in which the noble Baroness, Lady Kramer, proposed it because, following
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The other problem, which is particularly evident on the lines south of London, is that in many places you can get to two or three different London termini by train. It is a lovely service if it works-it usually does-but it is a very complex network. It compares strongly with the Underground lines which, on the whole-apart from the Northern line-may serve two destinations at each end, but not three or four. I can see a time when Transport for London might say that it would like to rationalise the services south of London, for example, by making them more frequent, but going to fewer destinations, and having cross-platform interchange in some places, because it thought that would be better for its electorate.
I mentioned the question of through-services and the debate regarding them and the shorter-term. There is also the question of access for freight-I declare an interest as chairman of the Rail Freight Group-although there is not much freight south of the Thames, so we can probably forget about that. However, I also recall a big debate during the many Crossrail debates, because when TfL thought it was in charge of Crossrail and the Great Western, it started off on the basis that it would have the sole use of the slow lines, to Maidenhead or Reading, and all the other trains could have the fast lines. TfL thought that was a brilliant idea, because it would run a very frequent service-there would probably be those lines of heavy cables that you see between London Underground lines-but it completely forgot that those lines are run as a network of four tracks. If anything goes wrong on one track, the trains are immediately switched to the other ones to keep the service going. I did a calculation at the time, which indicated that if Crossrail had got its way the passenger operators would have had to cut their service frequency to places such as Cardiff, Oxford and Bristol by at least 50 per cent, if not more. Only half the freight trains would have gone up that line, and when one of the lines was dug up, they would just have to stop.
That is the logical consequence of splitting responsibilities. There is work to be done with TfL and the Department for Transport to take into account the needs of people who live within the GLA area and then we can have a big debate on how the available
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Lord Faulkner of Worcester: My Lords, I was tempted to speak by the noble Baroness, Lady Kramer, as she was tempted to speak by me on the previous amendment. I have a great deal of sympathy with the points she is making. I will start with a correction-also for the noble Lord, Lord Spicer-that it is not only one platform at Waterloo that is out of use; it is platforms 21, 22, 23 and 24. I think I am right in saying that it is 21 and 22 which are being used by the production of "The Railway Children", which I can recommend unreservedly. I speak as a trustee of the National Rail Museum, as it is very much our play.
Baroness Kramer: Without being a train wonk on this, there is only one platform that has been converted for domestic use. The other platforms could be, but that work has not been done.
Lord Faulkner of Worcester: The noble Baroness, Lady Kramer, is quite correct. As I said, I have a great deal of sympathy with the point she makes but my concern is that the introduction of a new franchising authority, which the amendment proposes, would be in danger of creating greater fragmentation of the railway than we have at present. I agree with her that there are probably too many train operating companies. It is the Government's intention that franchises should be longer than they have been in the past, and I strongly support that. However, to introduce a new franchising operator could lead to confusion and fragmentation. My noble friend Lord Berkeley refers to services that serve London but go well beyond. The classic example of that is the Thameslink line, which starts in Bedford, goes through Luton and St Albans-none of which is covered by Transport for London or the GLA-and then goes south from Croydon to Brighton.
Services like that need to be looked at in a regional context, and I am not certain that looking at them in a London context would make a great deal of sense. However, I pay tribute to what Transport for London has done in the development of its Overground service. The opening up of the East London line is an extraordinarily successful venture. The trains are very popular and they provide new journey opportunities for people who probably did not make those journeys, or tried to do it by car, or struggled on buses. It deserves to be commended for that.
I agree with my noble friend that it is helpful to have this debate, but this amendment is not quite the way that we should go.
Earl Attlee: My Lords, I understand the intention behind my noble friend's amendment; namely, that the mayor and TfL should have greater control over London's commuter rail franchises, given their wider transport
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The devolution of other London commuter rail franchises to the mayor and TfL is not a straightforward matter. The geography of London's commuter rail network does not sit well with London's administrative boundaries, with many lines extending well into neighbouring counties, as pointed out by many noble Lords. Furthermore, capacity on much of the London commuter network is limited, and there are inherent conflicts between London-area and non-London services that need to be balanced in the best interests of all users, and to keep overall costs down.
I am afraid my noble friend did not satisfy me in how the balance would be struck between the needs of commuters who live in London, and who elect the mayor and the Assembly, and those living in Luton, Brighton and Woking, who do not. There is a real question of a democratic accountability deficit if other London commuter rail services are devolved to the mayor, as many commuters do not live in London so do not have the opportunity to participate in the elections.
Nevertheless, the Department for Transport is happy to engage TfL further about the devolution of local rail services, in the context of Sir Roy McNulty's independent study on rail value for money earlier this year. This study suggested that more local control of rail services could contribute to the development of lower-cost regional railways and, in line with the Government's localism agenda, we are considering options for more local control of some rail services in other parts of England. We will also continue to encourage operators to work more closely with TfL. The new working arrangements, put in place for the South Central franchise which was let in 2009, appear to be working well.
On this basis, I urge my noble friend to withdraw her amendment.
Baroness Kramer: My Lords, I am delighted that I have been able to stir up some debate on this issue and see it get some attention-rather than slip to its usual place at the bottom of everybody's priority list-because there are some genuine issues here.
I say to those who are concerned about passengers outside the London area that most people have London as their destination and are therefore intensely important to TfL; they are not marginal. Also, most people who come in contribute in some way to London's economic viability, either through business or entertainment, and so are very much a concern to Transport for London even though they do not actually live within the area. Again, we can also bring in other board members.
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I am delighted to have sparked off some of this debate. Given that, I beg leave to withdraw the amendment.
Clause 5 : Powers to make supplemental provision
109A: Clause 5, page 4, line 9, at end insert-
"(2A) An order under subsection (1) or (2) may not be made in respect of-
(a) this Act; or
(b) any of the provisions listed in Schedule (Statutory exemptions from section 5: supplemental provision).
(2B) The Secretary of State may by order amend Schedule (Statutory exemptions from section 5: supplemental provision) to include additional statutes or Regulations.
(2C) An order made under subsection (2B) is to be made by statutory instrument.
(2D) Before an order may be made under subsection (2B), a draft order must be approved by an affirmative resolution in both Houses of Parliament.
(2E) Schedule (Statutory exemptions from section 5: supplemental provision) has effect."
Lord Beecham: My Lords, when we discussed the provision about general competence in Committee, the noble Lord, Lord Newton, who is not in his place, chided me for my apparent diffidence in respect of the way in which I moved amendments at the time. I did and do welcome the conferring of the power of general competence that the Bill provides, especially in the light of the general perception in the media by such august bodies as the TaxPayers' Alliance and even occasional Ministers that "general incompetence" is the term that should be applied to much of local government-something that I certainly refute. However, there are flaws in the Government's proposals and the amendment addresses at least some of them.
The two amendments in this group relate to what can only be described as a dispensing power which the Secretary of State will take to disapply, repeal or amend legislation that he conceives somehow inhibits the exercise of the general power of competence. It is fair to say that in Committee the noble Baroness addressed concerns that had been raised about, for example, the application of human rights legislation on matters of that kind, and indicated that these were not envisaged as being embraced by the Bill. Certainly I accept that point. However, a great many pieces of legislation, on the face of it, appear to fall within the provisions of Clause 5(1) and therefore are subject to amendment, repeal or revocation, in the words of the clause. They extend over a wide area of public policy. A number of them are listed in the proposed new schedule that is the subject of the second amendment in this group. They cover such areas of law as part of the Childcare Act, the Child Poverty Act, the Care Standards Act, disabled persons regulations, carers legislation, parts of the Mental Health Act, the Community Care Act and the Environment Act. The
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It is a formidable list of legislative requirements that can, simply by order, be revoked. That raises a significant question about the role of the Executive. It is not clear whether Clause 5(1) requires any such changes to be made by affirmative resolution. Certainly that was the view of the Delegated Powers Committee. Other provisions in the clause are subject to affirmative resolution, or would be subject to it. The noble Baroness indicated in Committee that that was probably the case, and it would appear so. However, it does not necessarily seem to be the case in relation to Clause 5(1). Perhaps the noble Baroness will comment on that.
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Even so, the clause gives very extensive power to the Secretary of State to deal, either by order or perhaps even without the authority of the usual procedure involving statutory instruments and resolutions of both Houses, with significant primary legislation. That does not appear to the Opposition to be an appropriate use of ministerial powers. Dispensing powers have occasionally caused problems in our country's history. I recall that they probably led to the plight that James II faced, because he sought to use dispensing powers to relieve Catholics of their obligations under the Test Acts. It was probably a laudable objective, but certainly was regarded as constitutionally very troublesome and played no small part in his loss of the throne. I am not suggesting that the noble Baroness will be out of a job, let alone that her superiors in the department will be out of a job-much though that might be desirable, except of course in her case. Nevertheless, it is a serious principle that dispensing legislation of this kind should not invest such wide powers in the Secretary of State. The amendment that I am moving would restrict that. Changes in relation to other matters in the Bill that are less controversial would have to be made by statutory instrument and approved by both Houses in what I trust will be regarded as the normal way.
As I indicated at the outset, the Government's intentions are laudable. In dealing with the next amendment, I will point to provisions that run counter to those laudable aims. Genuine concern about the provisions has been expressed by a wide range of organisations. I hope that the Minister will think again about the necessity of proceeding in particular with Clause 5(1) in the way that the Bill currently provides. We are meeting her tomorrow. There may be an opportunity to take these matters further. I hope that we will have some indication that the Government will be willing to move.
There is one other aspect of the clause that perhaps is worth mentioning. In a debate in the other place, the Select Committee looking at the Bill considered the general powers of competence and suggested that the Government should consult others, including the Local Government Association, to exemplify ways in which the general powers would go beyond current powers to promote the social, environmental and economic well-being of an area. Perhaps the noble Baroness will
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The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, I am glad that the noble Lord, Lord Beecham, is not seeking to get me out of my job just yet. I thank him for that. There is a little overexcitement about Clause 5(1)-not that the noble Lord ever raises his voice excitedly. However, there are concerns that are not necessary. Amendment 109A would prevent the Secretary of State making any orders under Clause 5(1) and (2). That would mean that he could not even amend the long list of legislation set out in Amendment 119E. However, it would give him order-making powers to add to the legislative list; he would be able to add but not to take away.
The power in Clause 5(1) is a power to remove restrictions and limitations to the legal capacity of local authorities that prevent them exercising the general power of competence. I think that we all want to see them have this general power. The clause must be read in the context of that power, which is a power to do things that an ordinary individual can do. It is not a power to remove any duty or obligation placed on local authorities, such as many of those listed in Amendment 119E, where such duties or obligations do not restrict or limit the capacity of the local authority to do things that the individual can do.
Noble Lords must hang on to the word "individual"; that is the important aspect. We do not consider that Clause 5(1) could be interpreted-the noble Lord addressed this and understands it-as allowing the Secretary of State to amend the requirements of, for example, the Equality Act or the Human Rights Act as they apply to local authorities. These Acts place broad duties on public authorities, including individuals, so they cannot be part and parcel of this power of competence. These Acts are not a restriction or limitation on the legal capacity of the local authority, so the power could not be used in the way suggested for these or any other similar legislation, just as it could not be used to exempt local authorities from prohibitions contained in criminal law.
We have listened to concerns, and amendments were brought forward in the other place, which are now in Clause 6, to place restrictions and limitations on the power in Clause 5(1). We believe these provide additional safeguards so that there can now be no doubt about the scope of the power. It does not permit the removal of essential duties, protections or rights from the Secretary of State. I also confirm that, as part of the consultation required by Clause 5(7), it will be appropriate to consult every person or group of persons, or their representatives, who will be substantially affected by the proposal. The results of any such consultation would have to be presented to Parliament, and then Parliament could veto the order.
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The noble Lord asked me whether Parliament would be involved in this. As I said, Clause 5(7) is also modelled on what is in the Legislative and Regulatory Reform Act. The procedure to be followed would be negative, affirmative or superaffirmative, and that would be ultimately determined by Parliament. This matter has been put to the Delegated Powers Committee, which has no difficulty with that and has expressed itself on side with the procedure.
We believe that these amendments are unnecessary. We are trying to give local authorities as much power as we can, but we realise that some of that is going to come eventually from Parliament. There are restrictions on the powers of the Secretary of State in these procedures. Local authorities are not going to have completely unfettered power with the general power of competence, but it will be much wider than it is at the moment.
I hope that I have answered the noble Lord satisfactorily about the involvement of Parliament if the Secretary of State were to use these powers, so I hope that he will feel able to withdraw his amendment.
Lord Beecham: I am grateful to the Minister for her reply. I accept that there now appears to be at least a parliamentary procedure here. I still think it is difficult to accept the notion that primary legislation imposing duties that were imposed for a purpose on local authorities and others should be varied or revoked in the way set out in the Bill. Having noted the point about the affirmative procedure, however, I accept her assurances and beg leave to withdraw the amendment.
Lord Beecham: Amendments 109B and 109C relate to the same provision under the Secretary of State's powers, but in this case they seek the deletion of the power of the Secretary of State in effect to nullify the power of competence which the Bill purports to represent. This is really quite an exceptional provision and is not at all acceptable. The Secretary of State takes upon himself, having conferred or purported to confer this very broad power, the right to,
- "by order make provision preventing local authorities from doing, in exercise of the general power, anything which is specified, or is of a description specified, in the order",
or, under Clause 5(4), to make that subject to conditions. That is a very far-reaching incursion on the principle that the Bill seeks to advance, and it is simply not acceptable.
Amendment 109C in this group deals with the rather strange phrase, "any necessary protection", which is contained in the clause and is in no sense defined. It is presumably left to the Secretary of State to determine what a necessary protection is. These are the limits under the power contained in Clause 6. In the absence of any sensible definition, I do not think this is an
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Baroness Hanham: Amendment 109B, as the noble Lord said, would remove subsections (3) and (4) of Clause 5. These subsections provide reserve powers to allow the Secretary of State to prevent authorities from exercising the general power or to set conditions around the use of this power. We believe that these powers provide a necessary and proper safeguard, given the breadth of the new power-to ensure, for example, that risks to both local government finances and the Exchequer are properly managed. The Government have no plans-I think I said this earlier on-to use the powers in subsections (3) and (4). At present, there is nothing in mind; the Secretary of State is not sitting there with great excitement, his pen poised, waiting to take away what he has already given. The Government actually expect them to be used very rarely, if at all. They are, however, an insurance policy. They might, for instance, have to be used to deal with any risks that might arise from authorities' use of the new general power-I think I said this in Committee-to engage in novel financial transactions using public money. That might require the Secretary of State to step in. The use of the power is subject to consultation and to the affirmative procedure, which would ensure suitable parliamentary scrutiny. I just want to stress that, occasionally in legislation, we need to provide for the very end of the road when something might go wrong, and that is all the clause is for.
Amendment 109C would remove one of the conditions that place restrictions and limitations on the use of Clause 5(1). The provision in question must not remove, as the noble Lord said very clearly in his opening remarks, "any necessary protection". This condition ensures that protections-which might relate, for example, to the economy, health and safety, civil liberties, the environment or national heritage-are not removed. A similar condition is used in the Legislative and Regulatory Reform Act 2006, so this is not new to legislation. It is quite deliberately wide. Any Secretary of State seeking to make an order under Clause 5(1) must be satisfied that the condition is met and must explain why to Parliament. We believe, therefore, that this and the other conditions in Clause 6 are a useful additional safeguard and should be retained.
Before the noble Lord or others intervene, I will speak to government Amendments 234, 235 and 236, because it might help the debate coming afterwards. Amendment 234 gives effect to the recommendations of the Delegated Powers and Regulatory Reform Committee in relation to Clause 5(2). Clause 5(2) is entirely benign; it can be used only to remove wholly overlapped, and therefore unnecessary, powers. It cannot be used to remove duties. The amendment ensures that orders made under Clause 5(2), if not made in conjunction with orders under Clause 5(1) and subject to special procedures set out in Clause 7, will have to be subject to an affirmative procedure. We believe that those safeguards, coupled with the intense level of parliamentary scrutiny provided, give sufficient protection.
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Government Amendment 235 gives effect to recommendations of the Delegated Powers and Regulatory Reform Committee about the parliamentary procedure for orders made under Clause 5(3) and (4). It removes the exemption that permitted orders made under these subsections would be subject to the negative procedure if they did no more than extend the scope of previous orders. We accept that such an extension could be significant for the authorities concerned and therefore that the affirmative procedure is more appropriate. Government Amendment 236 makes the power of the Secretary of State to extend the general power to certain parish councils subject to an affirmative procedure in line with the committee's recommendation.
I hope that my reply will allow the noble Lord to withdraw his amendment.
Lord Beecham: I am grateful to the Minister for her reply, and I have no difficulty with the government amendments to which she spoke. However, I continue to have difficulty with the response to my amendment. The Secretary of State is clearly not prepared to trust local government with the powers that he is conferring on local government. He retains significant power to override the exercise of the general power which he has purported to confer or to impose conditions, admittedly subject to a parliamentary procedure. The whole case is redolent of the Government simply not being prepared to trust their partner in local government, a point that was made by the noble Lord, Lord Newton, when he was castigating me for being insufficiently robust on the previous occasion. I hope I have not failed his test today.
On this and on the previous occasion the Minister referred only to some novel financial practices, as if these were the most likely candidates for the invocation of the powers conferred by the Act. So far as financial practices are concerned, if there is any suggestion that they are likely to damage the finances of the local authority, there are existing mechanisms to deal with that within and outside the authority in the proper financial officer and audit, albeit perhaps not for much longer under the auspices of the Audit Commission. There are perfectly proper safeguards, and the additional powers that the Secretary of State seeks to reserve for himself under this Bill are not needed. I still do not understand what is meant by the "necessary protection" to which Clause 6 refers. Protection from what, against what and to what extent it is necessary are entirely opaque. In these circumstances, I must test the opinion of the House.
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Contents 137; Not-Contents 220.
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Crathorne, L.
Crickhowell, L.
De Mauley, L.
Deben, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eaton, B.
Eccles, V.
Eden of Winton, L.
Edmiston, L.
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Empey, L.
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Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Feldman, L.
Feldman of Elstree, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glasgow, E.
Glendonbrook, L.
Goodlad, L.
Goschen, V.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Hayman, B.
Henley, L.
Heyhoe Flint, B.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Home, E.
Hooper, B.
Howard of Lympne, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
Kakkar, L.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lee of Trafford, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Linklater of Butterstone, B.
Listowel, E.
Liverpool, E.
Loomba, L.
Lothian, M.
Lucas, L.
Luke, L.
Lyell, L.
Lytton, E.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
McNally, L.
Maddock, B.
Mancroft, L.
Maples, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Murphy, B.
Naseby, L.
Newby, L.
Newlove, B.
Nicholson of Winterbourne, B.
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Northover, B.
Norton of Louth, L.
O'Cathain, B.
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Palmer, L.
Parminter, B.
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Perry of Southwark, B.
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Selsdon, L.
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Shutt of Greetland, L.
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Waldegrave of North Hill, L.
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Warnock, B.
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Wheatcroft, B.
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Wright of Richmond, L.
Young of Hornsey, B.
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6.16 pm
Clause 6 : Limits on power under section 5(1)
Clause 9 : General powers of certain fire and rescue authorities
Baroness Hanham: My Lords, government Amendments 110, 111 and 113 accept the recommendations of the DPRRC to change the procedures to be followed when making orders relating to the general powers of fire and rescue authorities. Amendments 110 and 111 make orders to expand the scope of an existing order subject to the affirmative procedure, as recommended by the DPRRC.
In response to the amendment tabled on 20 June by the noble Baroness, Lady Smith of Basildon, I said that it was never the Government's intention to enable charging for all community fire safety or prevention activities and that I would reflect on the best way of achieving that aim. Amendment 113, tabled in respect of England and Wales, retains the existing position that fire and rescue authorities cannot charge for the giving of advice, on request, about preventing fires and means of escape in any premises. The amendment retains the existing ability of fire and rescue authorities to charge for the giving of advice in relation to non-domestic premises unless that advice is requested under Section 6(2)(b) of the Fire and Rescue Services Act 2004 which sets out the criteria for fire safety; the noble Baroness will know more about this than I do. Fire and rescue authorities will not be able to charge for the
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Baroness Smith of Basildon: My Lords, I rise to speak to our Amendment 112 and comment on the government amendments in this group.
I welcome the Government's amendments and I am grateful to the noble Baroness for her comments. I appreciate that it caused some confusion when I first raised this. As the noble Baroness generously said, when she first wrote to me, her officials and government Ministers had understood that the legislation as drafted would not allow for charging. It was completely inadvertent, as she said, and they had not appreciated that a consequence of the Government's proposals to expand and increase charges would lead to community fire safety being charged for. Indeed, she wrote to me to that effect. I thank her because, when it was recognised that our concerns on this were justified, she raised the matter in the House and immediately wrote to me as well to clarify the position and agreed to bring forward government amendments to correct the error. I am grateful to her for doing that.
I have to say to her that this is a fairly large Bill, about 500 pages long. It is very detailed and quite technical in parts, and some of the discussions we have had have sometimes seemed quite complex. We have concerns that some parts of this Bill may have been rushed through to the House before they were fully and properly drafted. It is to the great credit of the noble Baroness that she has been ready to engage and debate on these issues, and at times has been prepared to concede and bring forward amendments to try to improve this legislation. So I am grateful to her for the amendments she has brought forward today, in so far as they go.
I am sorry to raise the matter in this way, but I am looking at the difference between the amendment in my name and the amendment from the Government, which refers to Section 6(2)(b) of the 2004 Act. Our Amendment 112 would not allow charging for community safety or fire prevention work, whereas the government amendment refers to Section 6(2)(b) of the 2004 Act, which is purely about the fire safety work that a fire authority must undertake as part of its core functions. I entirely agree that that is right and proper in so far as it goes. The last Government recognised that fire safety should be a core function, and therefore placed a duty on fire authorities to undertake fire safety. No fire authority should be allowed to charge for that core function, as the noble Baroness rightly agrees. Where I think there is a grey area-and some clarification on this would be helpful, as this is another unintended consequence-is that many fire authorities have extended this work to the related, but slightly wider, community safety remit.
I have some particular examples of this work, which I am sure the noble Baroness would never want to see lost to the community. For example, my authority in Essex runs a number of courses for young people, such as one called "Firebreak" and another called
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For example, there is a page on the Essex County Fire and Rescue Service website about Darren, 18, of Ashingdon Road in Hawkwell. He has just joined the crew of his local fire station as the newest recruit, and he said:
"It was Firebreak which really showed me what I wanted to do with life and how I could do it. I had got into the wrong crowd and was getting in trouble with the police and then bringing that trouble with me into school and getting into worse trouble".
His head teacher referred Darren to the "Firebreak" course-it is a long quote but I will read it-and, as Darren says,
"When I got back to school I ditched my mates and really buckled down. Almost straight away I saw my grades improving and my predicted exam results shot up. Firebreak made me realise that there is more to life than getting in trouble and mucking about and gave me something to work towards".
That is not technically fire safety, but the benefits to the community are enormous. Another person mentioned is Craig, who is 20 and attended this course in 2005. He says:
"I was taking drugs, drinking and stealing cars. Basically I was completely off the rails. Firebreak has changed my life, I no longer drink or take drugs and am now working to become a firefighter myself".
The Cheshire fire service signs up to missdorothy.com. I do not know whether the noble Baroness is aware of missdorothy.com. When I was Fire Minister I went to see some of the work that it is doing, which is about community safety for younger children. Given the trust placed in firefighters, and their very respected position in the community, they were engaging very young children in community safety. Part of that was about fire safety and being safe, but also about being safe in their broader lives. The Cheshire fire service is also one of the employers involved with the Prince's Trust programme. I certainly think that nobody in your Lordships' House would want to lose the fire service's involvement with the Prince's Trust. There is a 12-week personal development course, and the fire service is one of the employers doing that.
Devon and Somerset is another authority that has a personal development scheme, also called "Firebreak", for key stage 4 pupils from 14 to 16. Its website says that it provides a
- "themed educational diet designed to complement and enhance the school curriculum. It aims to raise achievement, improve self motivation, increase educational engagement",
Looking around the country, I see that Suffolk authority is another one to engage actively with children and young people. One of its objectives is to prevent
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All of those have proven successes in deterring young people not only from a life of crime but from social disorder as well. My fear is, if it was the Government's intention, which I suggest it probably was not, that these should be charged for-and I think that, under the Government's amendments, they would be able to be charged for-then those very young people who can benefit most from these courses would not be able to do so.
Another issue is that, if these courses were chargeable, who would pay? In many cases it would be another public authority. What we would be doing is introducing a bureaucracy to move money around the system. So it would be helpful if the Minister, perhaps not today, could reflect on the advice she was initially given that this would not be covered by fire safety. Perhaps there may be some kind of guidance that could be issued. I think that this is the kind of work that so many people in the community benefit from.
In my own authority, at Basildon fire station, Martin Trevillion leads the community safety programme, and it is an exceptional programme. Having spoken to so many young people that have benefitted from it, I would be reluctant for us to lose that programme simply through inadvertent drafting of legislation.
Finally, I want to raise one other issue, which is that of carbon monoxide safety and awareness. I am also not clear that Section 6(2)(b) of the 2004 Act, which talks about advice on how to prevent fires and on means of escape from buildings, would cover carbon monoxide safety. This is a particular issue: there have been a number of deaths and serious injuries due to carbon monoxide, and it is something that fire authorities are able to take on and work with, and I know that some of them already do so. I would not think that the noble Baroness intended that that should be charged for as well.
When at Second Reading I first raised the issue of charging for community safety, it was clear that the Government had not thought about the implications, quite inadvertently, and this had slipped through. The Minister was able to respond to those concerns very positively. I hope she understands that my raising these tonight is in exactly the same tone, as this is a service provided by the fire authorities, working with their community, which we really would be very loath to lose, if they had to charge for it. I ask the Minister-I think she has had time to reflect, or to receive enlightenment on this issue quite soon-even if she cannot give me a full answer today, to reflect on that so some guidance can be issued, because this resource that is provided by our fire and rescue services is very valuable for the community.
Lord Berkeley: My Lords, I would like to support what my noble friend has said about the problem of charging for fire advice. When I read the second part of Amendment 113-proposed new subsection (5B)-I thought, "Well, any fire authority that is able to charge will probably do so". Is it really the Government's
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6.30 pm
Baroness Hanham: My Lords, I am struggling to get a response on both matters. I understand that we are working within the framework of the fire and safety Act, so whatever that includes will be included. I am very reluctant to answer the noble Baroness today. I do not have the answer. It is quite wide in terms of what we are seeking to do. The same applies to the noble Lord, Lord Berkeley. I always hate having to say that I do not know the response to something, but I will have to do so today. If the noble Baroness and the noble Lord will forgive me, I will write to them before Third Reading to make sure that there is a clear understanding of the answer to both questions. My gut feeling is that probably there is wriggle room here for the fire authorities to decide whether or not to charge, but we should be clear about that. I will write and will make sure that that response is in the Library so that we can come back to it before Third Reading, if necessary.
Clause 10 : Fire and rescue authorities: charging
113: Clause 10, page 18, line 17, at end insert-
"(5A) Subject to subsection (5B), section 18A(1) does not authorise charging for action taken under section 6.
(5B) Subsection (5A) does not prevent charging for the giving of advice, other than advice of the kind mentioned in section 6(2)(b), in relation to premises where a trade, business or other undertaking is carried on (whether for profit or not)."
114: After Clause 10, insert the following new Clause-
"CHAPTER 2ATransfer and delegation of functions to certain authoritiesPower to transfer local public functions to permitted authorities
(1) The Secretary of State may by order make provision-
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(a) transferring a local public function from the public authority whose function it is to a permitted authority;
(b) about the discharge of local public functions that are transferred to permitted authorities under this section (including provision enabling the discharge of those functions to be delegated).
(2) An order under this section may modify any enactment (whenever passed or made) for the purpose of making the provision mentioned in subsection (1).
(3) The power to modify an enactment in subsection (2) is a power-
(a) to apply that enactment with or without modifications,
(b) to extend, disapply or amend that enactment, or
(c) to repeal or revoke that enactment with or without savings.
(4) An order under this section may disapply, or modify the application of, Chapter 4 of Part 1A of the Local Government Act 2000 (changing local authority governance arrangements) in relation to a county council or district council to which the order transfers a local public function.
(5) The Secretary of State may not make an order under this section unless the Secretary of State considers that it is likely that making the order would-
(a) promote economic development or wealth creation, or
(b) increase local accountability in relation to each local public function transferred by the order.
(6) For the purposes of subsection (5)(b), in relation to a local public function, local accountability is increased if the exercise of the function becomes more accountable to persons living or working in the area of the permitted authority to which it is transferred.
(7) The Secretary of State may not make an order under this section unless the Secretary of State considers that the local public function transferred by the order can appropriately be exercised by the permitted authority to which it is transferred.
(8) The Secretary of State may not make an order under this section transferring a local public function to a permitted authority unless the authority has consented to the transfer.
(9) Before making an order under this section, the Secretary of State must consult such persons as the Secretary of State considers appropriate."
Lord McKenzie of Luton: My Lords, in speaking to Amendment 114, I shall speak to the other amendments in this group. Given that they each also bear the names of the Minister and the noble Lord, Lord Shipley, I have some expectation that they may be acceptable to your Lordships. The Bill currently includes provisions which enable the Secretary of State by order to transfer a local public service function from any person to its elected mayor. In Committee, we sought to amend that by widening its application to local authorities that operated a leader and cabinet executive model of governance. That amendment was eventually withdrawn.
Additionally, in Committee, we tabled amendments which were prompted by the Core Cities group. These amendments sought equivalent opportunities for the transfer and delegation of functions as were provided to the Mayor of London under the Bill. It was suggested that this approach had cross-party support among the Core Cities group, growing support from the Members of Parliament of the core cities and support from Ministers. In the event, these amendments were not moved on the final day in Committee. Over the Recess, the Government have taken the issue forward with the Core Cities group, hence the amendments today. They also cover the original proposals for transfers to mayors which are replaced.
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Amendment 114 provides for the transfer of local public functions from a public authority to a permitted authority. A public function is a function of a public authority. A permitted authority includes a county council in England, a district council and an economic prosperity board. The transfer is achieved by an order of the Secretary of State and may not be made unless it considered that the order would promote economic development or wealth creation, or increase local accountability in relation to each local public function. The Secretary of State must be satisfied that the permitted authority can exercise the function appropriately and has consented to the transfer.
Amendment 115 permits the delegation to a permitted authority of a Minister's eligible functions, mirroring the provisions of Clause 210, which cover such delegation to the Mayor of London, and on which we touched on earlier amendments. Amendment 116 allows the Secretary of State to make a scheme for the transfer of property rights or liabilities to give effect to a transfer of functions and a delegation of a Minister's eligible functions or their revocation.
Amendment 117 imposes a duty on the Secretary of State to consider any proposals for the exercise of these powers which come from a permitted authority and to establish criteria by which they must be considered. Amendment 118 crucially sets out a robust super-affirmative procedure for any order which seeks to transfer functions to a permitted authority. Amendment 119 covers definitions. Amendments 151, 161, 163 and 241 are consequential.
Core Cities is a network of the local authorities of England's eight largest city economies outside London. It includes Birmingham, Bristol, Leeds, Liverpool, Manchester, Newcastle, Nottingham and Sheffield. The cities drive their local economic areas and make a significant contribution to the national economy. They work in partnership with government to influence policy and to develop new ideas based on knowledge of what works on the ground to improve economic performance and reduce dependency. The Core Cities group has a track record of more than 15 years led by city leaders across all parties.
The powers in this amendment could be available to anywhere that meets the criteria. However, England's core cities are the main drivers of the country's economy outside London and the south-east. Together, their primary urban areas deliver 27 per cent of the national economy, more than London, and contain 16 million residents. The role of cities is central to delivering national economic outcomes, reducing dependency on public spending, and in driving growth, productivity and tax revenues. Supporting growth in the core cities is vital to rebalance the UK economy.
With more decentralised arrangements for governance and public finance, these cities would be able to deliver greater economic outcomes for the UK. Recent independent economic forecasts commissioned by Core Cities have demonstrated that the local enterprise partnership areas, given greater control over the drives of growth, are capable of delivering an additional 1 million jobs and £44 billion economic output over the next decade.
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The Bill offers an opportunity through these amendments to create a binding narrative around other localist and decentralising policy, enabling this Government to deliver a distinctive set of urban policies and a legacy of empowered cities driving private sector growth and jobs. The Bill proposes to transfer powers from the London Development Agency and the Homes and Communities Agency to the Mayor of London, and makes provision for further ministerial delegation. Other major economic areas need the same opportunity to be able to drive growth and prosperity for their business and residents, and for the wider economy. The country needs London to do well but, to create an equitable and multicentred national economic strategy, the same chance needs to be given to other areas that are capable of growing employment. England needs a London-plus national economic policy.
It is the intention of the Core Cities group to seek these powers for its members but it will not be restricted to the core cities and their urban areas. Any economic area that fulfils the eligibility criteria could be able to request these delegations. The overarching aim of the amendment is to drive economic growth and productivity, and reduce dependency. Now is a critical moment for economic recovery and we need to boost local investment and investor confidence. This amendment would support private sector growth and jobs; create new opportunities for efficiency, innovative finance and investment; enable distinctive urban policy and a legacy of empowered cities; ensure continued buying from private sector partners on LEPs; support the implementation of a local government resource review and further incentivise local authorities and their partners; support the implementation of enterprise zones; clarify existing routes of delegation; support double devolution to local communities; support the wider restructuring of subnational economic development architecture; create a route to delegate to further emerging governance structures; and be a significant-I suggest popular-and symbolic step towards decentralisation and localism. I beg to move.
Lord Tope: I am grateful to the noble Lord, Lord McKenzie, for moving the amendment. As he rightly said, my noble friend Lord Shipley has added his name to it and was hoping and expecting to be here to speak in support of it. He has been in Manchester all day on government business. I have just heard that he has only just got on a train in Manchester, so I suspect that he will not be here in time to contribute to this debate. However, I have a fairly good idea of what he would have said had he been here, and I speak on his behalf. As someone who has been a London councillor all his adult life, I must say that I had not expected to be speaking on behalf of Core Cities. It is a rare privilege and something I do enthusiastically because I very much support these amendments.
Both this Government and the previous Administration have made firm commitments to devolution and decentralisation. The Bill now offers an opportunity to hand decision-making powers from central to local government, working in partnership with the private
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Devolution has happened at different speeds in different geographies. London will receive further powers through the Bill, and the devolved Assemblies already have powers that are not available directly to cities in England. Without further decentralisation there is a risk that England's core cities, which generate 27 per cent of England's GVA-my noble friend Lord Shipley points out that that is more than London-and other towns and cities will be unable to perform to their full potential and support nationwide growth and enterprise. Recent independent forecasts by Oxford Economics demonstrate that the core cities' eight local enterprise partnership areas are capable of delivering an additional 1 million jobs and £44 billion GVA over the next decade, given the tools to do so.
This enabling amendment creates a route to these tools to ministerial delegation and the transfer of public service functions for economic development and wealth creation to single and combined authorities in England. Any such actions would be subject to competency tests, including strong local governance and private sector buy-in, evidence that growth can be delivered and sound arrangements to work across administrative boundaries.
The potential of the amendment would be open to any place, as the noble Lord, Lord McKenzie, has said, that can demonstrate that it can pass the competency tests that the Government will set out. It will ensure that local areas have the powers and financial autonomy to deliver local solutions to their challenges, and that further legislation will not be needed to pass these powers to cities' civic and business leaders. Any major transfers will be subject to parliamentary scrutiny.
The amendment would support private sector growth and new opportunities for investment, ensure continued buy-in from private sector partners on LEPs, support the implementation of policy to incentivise places to deliver growth, support double devolution to local communities, and be a significant step towards decentralisation.
As the noble Lord, Lord McKenzie, has said, these amendments enjoy support from at least three sides of the House and, I hope, passive support from the fourth. Therefore, I am very pleased to be able to support them.
Lord Jenkin of Roding: My Lords, having heard the case in favour of these amendments, I am not in the least surprised that my noble friend on the Front Bench has added her name to them. My only comment is to say how much has changed since I was in charge of local authorities back in the 1980s. It is a change that is entirely welcome. This is a far more positive approach than anything I had to deal with at that time. Perhaps a veil might be drawn over that period; it was a very unhappy period for much of local government. I thoroughly support these clauses and I congratulate the core cities on the work they have done to bring all this forward.
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6.45 pm
Baroness Gardner of Parkes: My Lords, I am very impressed with the way the amendment was moved and by the universal support that there seems to be in the House on this. I do not want to be a wet blanket but I am slightly concerned about the sweeping powers that will be given to the Minister, and I should like to feel satisfied that the super-affirmative resolution that was referred to will come into force and work. It is very important, particularly as over the years we will get changes of government. The provision is universally approved of, and when I hear my noble friend Lord Jenkin, who has vast experience in this field, favouring it, then I can do nothing but agree.
Lord Beecham: My Lords, I congratulate my noble friend Lord McKenzie on moving the amendment, working very hard to ensure that it is in an acceptable form and persuading the Minister that it represents the right policy. I must congratulate the Minister and the Government on making the most significant concession, if you will, that we have had so far in terms of the Bill. This is the most localist part of the entire Bill, and the Minister and her colleagues deserve to be congratulated on that. Indeed, the noble Lord, Lord Tope, also should be congratulated. We have had an almost biblical experience tonight. The voice was the voice of the noble Lord, Lord Tope, but the words were the words of the noble Lord, Lord Shipley-however, they were none the less persuasive for that.
Incidentally, the noble Lord, Lord Shipley, has done well to be in Manchester today. Were he travelling down by the east coast main line this afternoon he would not get here. I understand that winds have blown down trees on the east coast line and things are massively disrupted. Perhaps one day somebody will do something about the rail network and make sure that these incidents are less apt to cause damage.
However, I must say in reference to the noble Lord, Lord Jenkin, that it was my pleasure to work with him, up to a point, when he chaired the Inner City Partnership committee as Secretary of State in Newcastle and Gateshead in the 1980s. I was then the leader of the council, a position that I relinquished-not before time, many people thought-some 17 years ago. It would have been helpful to have had the kind of powers conferred by this amendment-assuming it is passed, as I take it it will be-on local government.
As some of your Lordships will be aware, I am not an enthusiast for elected mayors by any means. I am therefore glad that the original restriction has been abandoned because it seems to me important that councils with the more conventional model of leader and executive should have this opportunity. Indeed, they have earned this opportunity. I refer particularly to the leader of Manchester City Council and his authority, which has blazed a trail in terms of urban regeneration and activities, not just for its authority but as one of the leading authorities in the Greater Manchester area of the Association of Greater Manchester Authorities, which now has parliamentary authority for a unique structure so far in terms of English local government.
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Certainly the conferment of these wider powers is very welcome, particularly as I fear that some of the other changes in government policy will have an adverse effect on what everybody intends to happen, which is that the economic prosperity of these areas should be reinforced and, we hope, expanded.
I think that the Government erred in dismantling the regional structures, acknowledging that much of the work has to be at the sub-regional level, and therefore led by local authorities, in particular by the core cities. The disappearance, certainly in the north-east region of the Regional Development Agency has not been helpful. LEPs may be working in some places, but I do not think that they necessarily fill the gap. While I cannot speak for other parts of the country, certainly in the north-east I am bound to say with regret that an outbreak of parochialism, if not tribalism, is actually diminishing the capacity of what is a fairly compact region to deal with these issues. One hopes that the conferment of powers under this Bill will to a degree remedy that deficiency, but it is not axiomatic that authorities which are not so far being regarded as core cities will either seek these powers or use them in a collaborative way.
Later in the Bill we will talk about the duty to co-operate. It is a political duty rather than a legal one at the moment, so it remains to be seen how, in terms of planning, that duty can be strengthened. If the good intentions of this amendment are to be implemented, that will require a more constructive attitude on the part of some authorities than has been evident in the recent past. However, more than that is needed; it also requires a buy-in from a range of government departments and agencies. The Department for Communities and Local Government has set out its stall, but it remains to be seen whether other departments will, as it were, shop at that stall. There are some reasons to be concerned about that. One stems from the decision of the Government to abolish the regional offices and take back into Whitehall those civil servants up and down the country who became part of the dialogue between local areas and the Government in Whitehall. In my and others' view, that local intelligence cannot simply be replaced by people sitting, in the case of Newcastle, in an office nearly 300 miles away, although the distances will differ. These people will not have a day-to-day acquaintance with the needs of an area or with local leaders, whether they be political or business leaders. In the north-east and no doubt elsewhere we found over many years that those who served in the Government offices became powerful and useful advocates for the regions and cities with the main departments in Whitehall. That, I think, is currently missing.
Beyond that, there is the question of what is happening to the community budgets. These are the replacement for the Total Place programme initiated at the suggestion of the Local Government Association, but adopted by the previous Government. The intention has been to pool resources across government departments and work to a common agenda which would differ according to each locality. That is the principle which has been piloted with some success. However, I have been making inquiries through Parliamentary Questions about the degree to which there has in fact been any buy-in by government departments to this agenda. It is totally
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One can imagine a range of such functions, not least in the area in which my noble friend will have the good fortune to lead for the Opposition tomorrow and for some time hence, that of welfare reform. There are clear possibilities for much of the work being carried out in terms of employment, benefits and getting people from welfare into work to be done through local government and for responsibilities to be devolved in that respect. I hope that the Government will not simply wait for departments to come forward with proposals, but will positively promote the idea of piloting different approaches and services in authorities with a track record and whose capacity will in any event have to be recognised under the terms of the amendment.
It seems that this amendment has great potential for changing the way we respond to local needs and circumstances in a manner that reflects the strengths and opportunities as well as the weaknesses of a local and regional economy, and indeed those who make the decisions within it. But it needs to be driven across Whitehall. I do not know whether that would be a function of the Minister for Cities. Potentially it might be one, and I understand that the noble Lord, Lord Shipley, is an unpaid adviser in that department. After spending many years in opposition and a few years in power in Newcastle, he is well qualified to assist the Minister, if that is the position. But again, this really does need to be driven from the top of Government, let alone by the Department for Communities and Local Government, however worthy it is in this respect. It is early days of course, and I do not know whether the Minister will be able to indicate whether there have been any discussions across the departments about how these matters might be progressed. Of course, we have only just had the amendment put before us so these are early days, but it would be reassuring if the Minister could say whether, at the very least, the Secretary of State would seek to work with Cabinet colleagues, the Local Government Association and perhaps a selection of the local authorities to explore in a coherent way how, while allowing for variation and experimentation, the intentions of this very worthy amendment could be implemented. I look forward to hearing what the Minister has to say.
Baroness Hanham: My Lords, I am delighted to have been able to put my name to these amendments. There is no doubt that the core cities have worked extraordinarily hard to make sure that what they are hoping to achieve is well understood. The amendments
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I am grateful for the support of the noble Lords, Lord Shipley and Lord Tope, and the noble Lord, Lord Beecham, for all the questions he has asked me. I hope that I shall be able to answer some of them. However, we have learnt from him that the railway line to Newcastle is not operating because of fallen trees. That is useful to know at this stage in case we all suddenly want to run off and go there. I am also grateful to my noble friend Lord Jenkin for expressing his support. We recognise that things have moved on a long way from the days when he was a very distinguished Secretary of State who was extremely supportive of local government. But I do not think that even he at that stage could have envisaged that we would have been able to do this.
As has been said, the new clauses proposed in the amendments allow for the transfer of public functions and the delegation of ministerial functions to local authorities and other permitted authorities. They combine the amendments that allowed for the transfer and delegation of functions to local authorities as originally tabled by the opposition Front Bench in Committee with a power a transfer functions to elected mayors as set out in new Section 9HA which, as a consequence, we are now withdrawing.
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These new clauses have the support-indeed, they have been inspired by-the Core Cities Group, which championed the Opposition's original amendment that allowed for the transfer of public functions to local authorities. I do not want to upset the noble Lord, Lord McKenzie, but his amendment would have been inspired by the Core Cities Group and we need to acknowledge that.
These new powers will be an important lever that will enable us to empower our cities and other localities to increase their competitiveness. Where local partners come up with innovative and creditable proposals for doing things differently, we will listen carefully to them and, under the provisions of the Bill, try to implement them.
We envisage that often proposals for the transfer or delegation of functions will be made in support of local enterprise partnerships-the noble Lord, Lord Beecham, was not quite so keen on that. Any such proposals that were to come forward would need the clear support of local enterprise partnerships.
My noble friend Lady Gardner asked whether these would have the approval of Parliament. I confirm that final decisions over whether to approve proposals to transfer a function to one of the core cities will rest with Parliament. Any order covering the transfer of functions to a permitted authority would be subject to
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Last autumn we published our Local Growth White Paper, which set out the Government's approach to the delivery of economic development functions following the abolition of regional development agencies. The White Paper stated that while the Government will look to devolve functions to the local level where it makes sense, certain functions are best co-ordinated at a national level. I need to stress to the House that this new power, to which we are all signed up, does not mean that we intend to unpick the arrangements for the national delivery of certain economic development functions as set out in publications such as the Local Growth White Paper and skills strategy. Those would not be able to be devolved.
If noble Lords accept these amendments, the provisions in Schedule 2, which insert new Sections 9HA and 9HB to the Local Government Act 2000 to transfer functions to elected mayors by order, are redundant. Accordingly, Amendment 151 deletes Sections 9HA and 9HB from Schedule 2 to the Bill.
I have also asked about other departments' agreement to the transfer of functions and how that would come about. Decisions relating to the transfer of functions would be a collective agreement by all of government; not only individual departments but government as a whole would be willing to take that on.
We expect to respond-the noble Lord, Lord Beecham, asked about this-to proposals from cities for functions and powers that they wish to take on, and each city will need to put forward its proposal and a case for piloting new approaches. Those are the nuts and bolts of how this will work.
I do not think I can say any more. I could go through what each of the amendments do, but that would probably be otiose. However, if at any stage anyone wants to know either from me or from the noble Lord, Lord McKenzie, what the amendments achieve, I would be delighted to explain it to them, but I do not think the House need be worried with them all at this stage. I am delighted to support the amendments.
Lord McKenzie of Luton: My Lords, I thank the noble Baroness, Lady Hanham, for her reply and all the noble Lords who have spoken in support of the amendments. It seems that we have unanimity, I think for the first time during our deliberations. I thank the noble Lord, Lord Jenkin, in particular. As he said, the climate has changed since he was Secretary of State. I remember some of those days with a district authority in Luton. If I except Newcastle, there was the odd Labour-controlled authority in those days to which we, even on these Benches, would not have been overly keen to transfer these sorts of powers.
The noble Baroness, Lady Gardner, asked about the superaffirmative procedure. Amendment 118 very clearly sets out that, as the Minister has described, these orders have to go through the superaffirmative process before they can proceed.
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My noble friend Lord Beecham made the valid point that the Government have to play their part in all this, because Amendment 117 requires and places an onus on government to respond or to consider proposals that are made to it by core cities or whoever. I should reiterate that credit for this goes to the Core Cities Group. It originated it and raised it with us. I know that it raised it with the noble Lord, Lord Shipley, and I thank the noble Lord, Lord Tope, for speaking on his behalf today. It is good that the Government took it up over the Recess and knocked it into technical shape so that it works properly. I will not press my luck further. I beg to move.
119A: After Clause 10, insert the following new Clause-
"CHAPTER 2AOther authoritiesIntegrated Transport Authorities
In Part 5 of the Local Transport Act 2008 (integrated transport authorities etc) after section 102A insert-
"CHAPTER 4General powers102B Powers of Integrated Transport Authorities
(a) anything the ITA considers appropriate for the purposes of the carrying-out of any of the ITA's functions (the ITA's "functional purposes"),
(b) anything the ITA considers appropriate for purposes incidental to the ITA's functional purposes,
(c) anything the ITA considers appropriate for purposes indirectly incidental to the ITA's functional purposes through any number of removes,
(d) anything the ITA considers to be connected with-
(i) any of the ITA's functions, or
(ii) anything the ITA may do under paragraph (a), (b) or (c), and
(e) for a commercial purpose anything which the ITA may do under any of paragraphs (a) to (d) otherwise than for a commercial purpose.
(2) Where subsection (1) confers power on an ITA to do something, it confers power (subject to section 102C) to do it anywhere in the United Kingdom or elsewhere.
(3) An ITA's power under subsection (1) is in addition to, and is not limited by, the other powers of the ITA.
(4) Subsection (5) applies if there is, in relation to an ITA-
(a) a Passenger Transport Executive established under section 9 of the TA 1968 for the integrated transport area of the ITA, or
(b) an executive body established by virtue of section 79(1)(a) or 84(2)(d).
(5) The ITA may delegate to the Executive or body the ITA's function of taking action under subsection (1) (but not the function of determining what action to take).
102C Boundaries of power under section 102B
(1) Section 102B(1) does not enable an ITA to do-
(a) anything which the ITA is unable to do by virtue of a pre-commencement limitation, or
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(b) anything which the ITA is unable to do by virtue of a post-commencement limitation which is expressed to apply-
(i) to the ITA's power under section 102B(1),
(ii) to all of the ITA's powers, or
(iii) to all of the ITA's powers but with exceptions that do not include the ITA's power under section 102B(1).
(2) If exercise of a pre-commencement power of an ITA is subject to restrictions, those restrictions apply also to exercise of the power conferred on the ITA by section 102B(1) so far as it is overlapped by the pre-commencement power.
(3) Section 102B(1) does not authorise an ITA to borrow money.
(4) Section 102B(1)(a) to (d) do not authorise an ITA to charge a person for anything done by the ITA otherwise than for a commercial purpose (but see section 93 of the Local Government Act 2003 (power of ITAs and other best value authorities to charge for discretionary services)).
(5) Section 102B(1)(e) does not authorise an ITA to do things for a commercial purpose in relation to a person if a statutory provision requires the ITA to do those things in relation to the person.
(6) Where under section 102B(1)(e) an ITA does things for a commercial purpose, it must do them through-
(a) a company within the meaning given by section 1(1) of the Companies Act 2006, or
(b) a society registered or deemed to be registered under the Co-operative and Community Benefit Societies and Credit Unions Act 1965 or the Industrial and Provident Societies Act (Northern Ireland) 1969.
"post-commencement limitation" means a prohibition, restriction or other limitation imposed by a statutory provision that-
(a) is contained in an Act passed after the end of the Session in which the Localism Act 2011 is passed, or
(b) is contained in an instrument made under an Act and comes into force on or after the commencement of section (Integrated Transport Authorities)(1) of that Act;
"pre-commencement limitation" means a prohibition, restriction or other limitation imposed by a statutory provision that-
(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or
(b) is contained in an instrument made under an Act and comes into force before the commencement of section (Integrated Transport Authorities)(1) of that Act;
"pre-commencement power" means power conferred by a statutory provision that-
(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or
(b) is contained in an instrument made under an Act and comes into force before the commencement of section (Integrated Transport Authorities)(1) of that Act;
"statutory provision" means a provision of an Act or of an instrument made under an Act.
102D Power to make provision supplemental to section 102B
(1) The Secretary of State may by order made by statutory instrument make provision preventing ITAs from doing under section 102B(1) anything which is specified, or is of a description specified, in the order.
(2) The Secretary of State may by order made by statutory instrument provide for the exercise by ITAs of power conferred by section 102B(1) to be subject to conditions, whether generally or in relation to doing anything specified, or of a description specified, in the order.
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(3) The power under subsection (1) or (2) may be exercised in relation to-
(a) all ITAs,
(b) particular ITAs, or
(c) particular descriptions of ITAs.
(4) Before making an order under subsection (1) or (2) the Secretary of State must consult-
(a) such representatives of ITAs,
(b) such representatives of local government, and
(c) such other persons (if any),
as the Secretary of State considers appropriate.
(5) Subsection (4) does not apply to an order under subsection (1) or (2) which is made only for the purpose of amending an earlier such order-
(a) so as to extend the earlier order, or any provision of the earlier order, to a particular ITA or to ITAs of a particular description, or
(b) so that the earlier order, or any provision of the earlier order, ceases to apply to a particular ITA or to ITAs of a particular description.
(6) Power to make an order under this section includes-
(a) power to make different provision for different cases, circumstances or areas, and
(b) power to make incidental, supplementary, consequential, transitional or transitory provision or savings.
(7) The Secretary of State may not make an order to which subsection (8) applies unless a draft of the statutory instrument containing the order (whether alone or with other provisions) has been laid before, and approved by a resolution of, each House of Parliament.
(8) This subsection applies to-
(a) an order under subsection (1), other than one that is made only for the purpose mentioned in subsection (5)(b);
(b) an order under subsection (2), other than one that is made only for that purpose or for imposing conditions on the doing of things for a commercial purpose.
(9) A statutory instrument that-
(a) contains an order made under this section, and
(b) is not subject to any requirement that a draft of the instrument be laid before, and approved by a resolution of, each House of Parliament,
is subject to annulment in pursuance of a resolution of either House of Parliament.""
Earl Attlee: My Lords, in moving Amendment 119A, I shall also speak to Amendments 119B, 119D, 119DA and 119BA, in the name of the noble Lord, Lord McKenzie of Luton. The amendments will allow integrated transport authorities and their executive bodies, passenger transport executives, to properly undertake activities that benefit or contribute to their purposes. The enabling power goes beyond the existing incidental powers and can extend outside their geographical boundaries and immediate hinterland. These bodies are not local authorities and will therefore not have the benefit of the general power of competence that is already contained in the Bill.
The matter was debated in another place and in this House on 20 June. In response to an amendment tabled by the noble Lord, Lord McKenzie, the Secretary of State for Transport sought agreement to include suitable provisions in the Localism Bill, and this was given. The amendment provides an appropriate broader general power for integrated transport authorities and their passenger transport executives. For consistency,
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The main reason why these bodies need such a power is that local authorities using similar powers to the ITA's existing incidental and well-being powers have been the subject of successful legal challenge. Integrated transport authorities and their passenger transport executives have therefore been unwilling to undertake activities and enterprises that are not expressly prescribed in law. The view that they could be successfully challenged has been supported by legal opinion obtained by the Passenger Transport Executives Group. An example provided by PTEG of the activities that they are seeking to use the new powers for is the provision of back-office functions for transport smart cards, similar to Oyster cards in London, to local authorities not in an ITA area or in another integrated transport authority area. Because providing and charging for such an activity is not expressly permitted by existing legislation, they fear legal challenge.
The potential benefits of integrated transport authorities being able to let their passenger transport executives undertake such operations for others is that they will be able to realise the economies of scale from providing similar services to a number of bodies. The bodies wishing to use these services will also benefit from obtaining the service more cost-effectively from an organisation that is already doing something very similar. The cost savings realised by both provider and client can be passed on to council tax payers. In the case of the service provider, this will be the metropolitan district councils in the area concerned. In the case of the client organisations, this will be either local authorities outside an ITA area or the metropolitan district councils within another ITA area.
The suggested amendment to government Amendment 119B in the name of the noble Lord, Lord McKenzie of Luton, is unnecessary because we are satisfied that where it serves some purpose in relation to a body's function, collective action is already covered in the drafting of the new broader general power to be found in proposed new Clause 102B(1). Noble Lords will be aware that the parliamentary draftsmen undertake their work with great care. We are at one with what powers we want to grant and we should trust the parliamentary draftsmen to get it right on our behalf.
On government Amendment 119D, I have just explained to your Lordships our argument for providing integrated transport authorities and PTEs with wider general powers. This amendment seeks to do the same for combined authorities and economic prosperity boards, which are intended to provide stable governance mechanisms for long-term strategic decision-making on economic issues. In bringing groups of relevant authorities together, both are expected to be based upon meaningful economic geography. Where a combined authority is established for an area, it will be responsible for the transport functions in place of an ITA as well as having economic development and regeneration powers. Currently, one combined authority has been established in Greater Manchester. Economic prosperity boards are similar to combined authorities but without the transport functions. There are presently no economic prosperity boards.
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Given that broader powers are being given to integrated transport authorities, it is essential that these powers are also made available to combined authorities and economic prosperity boards to ensure that they can effectively discharge their economic objectives. Indeed, given the close interrelationship between economic development and transport, it would be unreasonable not to confer these broader powers upon both bodies and would undermine their ability to deliver sustainable economic growth. I beg to move.
Lord Berkeley: My Lords, this is an interesting group of amendments. The Minister explained their purpose very well, but it seems to me that the pendulum is swinging from local authorities, PTEs and ITAs et cetera getting a bit frightened of what they are allowed to do to something that is beginning to look like a Henry VIII clause in the transport field. That is probably quite a good thing, actually. It seems that they are going to be given powers to do anything. Perhaps the noble Earl could explain whether this could include, in respect of the integrated transport authorities or the passenger transport executives, things such as operating rail franchises if they felt like it. Could they take a bigger role in sponsoring and deciding how the franchises were run, and what would be the extent of their financial commitment to it?
Could those authorities go as far as was recently planned in Merseyside: for Merseytravel to run a vertically integrated railway and take over the infrastructure from Network Rail? It was interesting that that authority had been lobbying to do this for at least five years, if not 10, but then just as the McNulty report, which might have encouraged them to do it, came out it decided that it was not going to do it because it was too risky. However, it is an interesting option that may be open to other authorities. What will they do in running trams and operating buses? The prospect of even better integration between different types of services would be good, if it happened.
7.15 pm
Would those authorities run something like Crossrail? I do not know, but then comes another question. Since they cannot borrow money-that seems quite clear-could they introduce road user charging or a congestion charging system, as Manchester tried to do? It was a great mistake that that was voted down in a referendum, but then I suppose you do not really need to ask motorists whether they would like to pay more to come into a town. You know what the answer is going to be. If the money was going to be used for some pretty good transport system such as Manchester has, especially with trams, it is a bit sad that it did not go that way. However, those authorities might be able to do this in future if these amendments are accepted.
I wonder whether those authorities would be able to become developers in their own right. We know that there will be a few pence on the business rates to pay for Crossrail within London, but one way to earn revenue for what you might call urban transport schemes is to make some money out of the developments that will happen above the interchange points or stations
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I have one specific point on proposed new Clause 102C(5), on page 15 of the Marshalled List, which I do not quite understand. It says:
"Section 102B(1)(e) does not authorise an ITA to do things for a commercial purpose in relation to a person if a statutory provision requires the ITA to do those things in relation to the person".
I am no parliamentary draftsman, but the noble Earl, Lord Attlee, said that they always get it right. If that is the case, and I am sure that it is, perhaps he can explain what it means because it does not mean a lot to me. I also notice that if any local authority gets something wrong, if the Secretary of State does not like what it is doing he seems to be able to stop anything that he wants. However, that could be quite a breath of fresh air to local authorities, and I hope that they will grasp the nettle and try things out. I hope that they will be able to raise money from those who can afford to pay, because we would get a much better transport infrastructure network in these important areas if that happens.
Lord Beecham: My Lords, I very much endorse my noble friend's observations but, like him, I also have one or two questions about how things might work. I come from an area that has been well served by a passenger transport authority and executive for many years. We have a pretty good bus system and a metro system, which was initiated by a Conservative Government in the 1970s-ad idem again across the Floor-and extended more recently. It is very successful but its powers in relation to private bus companies are circumscribed. That is a source of frustration, at least to that passenger transport executive, and I wonder whether the Bill will actually open the possibility of a different relationship between the authority and the bus companies. Incidentally, I suppose I ought to declare an interest as the holder of a bus pass and a concessionary metro pass.
I know from my own experiences as a ward councillor, but also from general issues arising from transport, that the feeling is that there is insufficient leverage in the hands of the executive in relation to private contractors. That is one question, and, again, if it is not possible to give an answer immediately, subsequently will be quite satisfactory.
The other issue relates to the Highways Agency. One can well envisage circumstances in which the role of the Highways Agency may be quite important to the transport plans of an executive, and, indeed, to the delivery of transport services. Again, in my experience, it is not always the most amenable government agency that one has to deal with. I know that the experience of the noble Earl, Lord Attlee, is different-we have had a conversation to that effect-but, certainly, there is at least some potential for a different relationship between an authority with the powers that will conferred on it by this Bill and the Highways Agency.
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Going back to where we left the discussion on core cities, the same principle applies. Will there be buy-in not only from the Department for Transport but in particular from that executive agency, which is very influential and needs to co-operate with the body charged with the delivery of local transport? Of course, the Highways Agency does not deal, generally speaking, with the road network in towns and cities. Nevertheless, in a sub-regional area such as Tyne and Wear, Greater Manchester or elsewhere, there is a relationship between their activities and programmes and those of the executive. I wonder whether any enlightenment might be cast upon that issue. Again, I do not necessarily expect a reply off the cuff, and if it is more convenient I would be happy to receive a written communication in due course.
Lord McKenzie of Luton: My Lords, I shall speak briefly in support of these amendments, subject to any issues that come out of the very forensic questioning of my noble friends. Amendment 119BA seeks simply to ensure that the powers conferred can be pursued either alone or collectively with one or more ITA. I accept entirely the Minister's confirmation that it can and that this amendment is not necessary. I am pleased that that is on the record. As the noble Earl said, we moved amendments in Committee to achieve a general power of competence for ITAs similar to that given to fire and rescue authorities in the Bill. These replicated amendments moved by my honourable friend Barbara Keeley in another place. The Minister there explained that these were matters for the Department for Transport and were under consideration. That, indeed, was the response when we debated the amendments in Committee here, but the Government committed to take matters further, which they have done. They have fulfilled their obligation to the House and we are happy to support these amendments.
Earl Attlee: My Lords, I am grateful for the welcome to these amendments. The noble Lord, Lord Berkeley, asked about extension of powers possibly covering rail franchising and Henry VIII powers in this amendment. Primary legislation would be required to allow the ITAs to be involved in franchising outside their area. If such changes are required, the Government will look for a legislative opportunity.
The noble Lord, Lord Beecham, mentioned the Highways Agency. He will understand that the Highways Agency is concerned with the strategic road network, but I am confident that it will work closely with local authorities. The noble Lord also asked about powers relating to local bus services in ITA areas. ITAs set a broad strategy for public transport, including buses. Most bus services in an ITA area are run on a commercial basis. ITAs are responsible, where they see fit, for topping up-in other words, adding extra services. There are some detailed questions and I will ensure that we get a full answer to all the questions. A copy will of course be placed in the Library. I beg to move.
Amendment 119BA, as an amendment to Amendment 119B, not moved.
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119B: After Clause 10, insert the following new Clause-
"Passenger Transport Executives
(1) In Part 2 of the Transport Act 1968 (integrated transport authorities etc) after section 10 insert-
"10A Further powers of Executives
(1) The Executive of an integrated transport area in England may do-
(a) anything the Executive considers appropriate for the purposes of the carrying-out of any of the Executive's functions (the Executive's "functional purposes"),
(b) anything the Executive considers appropriate for purposes incidental to the Executive's functional purposes,
(c) anything the Executive considers appropriate for purposes indirectly incidental to the Executive's functional purposes through any number of removes,
(d) anything the Executive considers to be connected with-
(i) any of the Executive's functions, or
(ii) anything the Executive may do under paragraph (a), (b) or (c), and
(e) for a commercial purpose anything which the Executive may do under any of paragraphs (a) to (d) otherwise than for a commercial purpose.
(2) Where subsection (1) confers power on the Executive to do something, it confers power (subject to section 10B) to do it anywhere in the United Kingdom or elsewhere.
(3) The Executive's power under subsection (1) is in addition to, and is not limited by, the other powers of the Executive.
10B Boundaries of power under section 10A
(1) Section 10A(1) does not enable the Executive to do-
(a) anything which the Executive is unable to do by virtue of a pre-commencement limitation, or
(b) anything which the Executive is unable to do by virtue of a post-commencement limitation which is expressed to apply-
(i) to the Executive's power under section 10A(1),
(ii) to all of the Executive's powers, or
(iii) to all of the Executive's powers but with exceptions that do not include the Executive's power under section 10A(1).
(2) If exercise of a pre-commencement power of the Executive is subject to restrictions, those restrictions apply also to exercise of the power conferred on the Executive by section 10A(1) so far as it is overlapped by the pre-commencement power.
(3) Section 10A(1) does not authorise the Executive to borrow money.
(4) Section 10A(1)(a) to (d) do not authorise the Executive to charge a person for anything done by the Executive otherwise than for a commercial purpose, but this does not limit any power to charge that the Executive has otherwise than under section 10A(1)(a) to (d).
(5) Section 10A(1)(e) does not authorise the Executive to do things for a commercial purpose in relation to a person if a statutory provision requires the Executive to do those things in relation to the person.
(6) Where under section 10A(1)(e) the Executive does things for a commercial purpose, it must do them through-
(a) a company within the meaning given by section 1(1) of the Companies Act 2006, or
(b) a society registered or deemed to be registered under the Co-operative and Community Benefit Societies and Credit Unions Act 1965 or the Industrial and Provident Societies Act (Northern Ireland) 1969.
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"post-commencement limitation" means a prohibition, restriction or other limitation imposed by a statutory provision that-
(a) is contained in an Act passed after the end of the Session in which the Localism Act 2011 is passed, or
(b) is contained in an instrument made under an Act and comes into force on or after the commencement of section (Passenger Transport Executives)(1) of that Act;
"pre-commencement limitation" means a prohibition, restriction or other limitation imposed by a statutory provision that-
(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or
(b) is contained in an instrument made under an Act and comes into force before the commencement of section (Passenger Transport Executives)(1) of that Act;
"pre-commencement power" means power conferred by a statutory provision that-
(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or
(b) is contained in an instrument made under an Act and comes into force before the commencement of section (Passenger Transport Executives)(1) of that Act;
"statutory provision" means a provision of an Act or of an instrument made under an Act.
10C Power to make provision supplemental to section 10A
(1) The Secretary of State may by order make provision preventing the Executive from doing under section 10A(1) anything which is specified, or is of a description specified, in the order.
(2) The Secretary of State may by order provide for the exercise by the Executive of power conferred by section 10A(1) to be subject to conditions, whether generally or in relation to doing anything specified, or of a description specified, in the order.
(3) The power under subsection (1) or (2) may be exercised in relation to-
(a) all Executives,
(b) particular Executives, or
(c) particular descriptions of Executives.
(4) Before making an order under subsection (1) or (2) the Secretary of State must consult-
(a) such representatives of Executives,
(b) such representatives of local government, and
(c) such other persons (if any),
as the Secretary of State considers appropriate.
(5) Subsection (4) does not apply to an order under subsection (1) or (2) which is made only for the purpose of amending an earlier such order-
(a) so as to extend the earlier order, or any provision of the earlier order, to a particular Executive or to Executives of a particular description, or
(b) so that the earlier order, or any provision of the earlier order, ceases to apply to a particular Executive or to Executives of a particular description.
(6) Power to make an order under this section includes-
(a) power to make different provision for different cases, circumstances or areas, and
(b) power to make incidental, supplementary, consequential, transitional or transitory provision or savings.
(7) A statutory instrument containing an order to which subsection (8) applies (whether alone or with other provisions) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(8) This subsection applies to-
(a) an order under subsection (1), other than one that is made only for the purpose mentioned in subsection (5)(b);
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(b) an order under subsection (2), other than one that is made only for that purpose or for imposing conditions on the doing of things for a commercial purpose.
(9) A statutory instrument that-
(a) contains an order made under this section, and
(b) is not subject to any requirement that a draft of the instrument be laid before, and approved by a resolution of, each House of Parliament,
is subject to annulment in pursuance of a resolution of either House of Parliament."
(2) In section 10(1) of the Transport Act 1968 (powers of a Passenger Transport Executive)-
(a) in paragraph (xxvii) (power to invest sums not immediately needed) for "any sums which are not immediately required by them for the purposes of their business" substitute "their money", and
(b) in paragraph (xxviii) (power to turn unneeded resources to account) omit "so far as not required for the purposes of their business".
(3) In section 22 of the Transport Act 1968 (orders under Part 2 of that Act to be subject to annulment) after subsection (2) insert-
"(2A) Subsections (1) and (2) of this section do not apply in relation to orders under section 10C of this Act (but see subsections (7) to (9) of that section)."
(4) In section 93(9) of the Local Government Act 2003 (authorities with power under section 93 to charge for discretionary services) before paragraph (b) insert-
"(ab) the Passenger Transport Executive of an integrated transport area in England;".
(5) In section 95(7) of the Local Government Act 2003 (power to authorise certain authorities to do for commercial purposes things that they can do for non-commercial purposes) in the definition of "relevant authority" before paragraph (b) insert-
"(ab) the Passenger Transport Executive of an integrated transport area in England;"."
Amendment 119C had been retabled as Amendment 119DA.
119D: After Clause 10, insert the following new Clause-
"Economic prosperity boards and combined authorities
(1) In Part 6 of the Local Democracy, Economic Development and Construction Act 2009 (economic prosperity boards and combined authorities) after section 113 insert-
"General powers of EPBs and combined authorities113A General power of EPB or combined authority
(1) An EPB or combined authority may do-
(a) anything it considers appropriate for the purposes of the carrying-out of any of its functions (its "functional purposes"),
(b) anything it considers appropriate for purposes incidental to its functional purposes,
(c) anything it considers appropriate for purposes indirectly incidental to its functional purposes through any number of removes,
(d) anything it considers to be connected with-
(i) any of its functions, or
(ii) anything it may do under paragraph (a), (b) or (c), and
(e) for a commercial purpose anything which it may do under any of paragraphs (a) to (d) otherwise than for a commercial purpose.
12 Sep 2011 : Column 577
(2) Where subsection (1) confers power on an EPB or combined authority to do something, it confers power (subject to section 113B) to do it anywhere in the United Kingdom or elsewhere.
(3) Power conferred on an EPB or combined authority by subsection (1) is in addition to, and is not limited by, its other powers.
113B Boundaries of power under section 113A
(1) Section 113A(1) does not enable an EPB or combined authority to do-
(a) anything which it is unable to do by virtue of a pre-commencement limitation, or
(b) anything which it is unable to do by virtue of a post-commencement limitation which is expressed to apply-
(i) to its power under section 113A(1),
(ii) to all of its powers, or
(iii) to all of its powers but with exceptions that do not include its power under section 113A(1).
(2) If exercise of a pre-commencement power of an EPB or combined authority is subject to restrictions, those restrictions apply also to exercise of the power conferred on it by section 113A(1) so far as that power is overlapped by the pre-commencement power.
(3) Section 113A(1) does not authorise an EPB or combined authority to borrow money.
(4) Section 113A(1)(a) to (d) do not authorise an EPB or combined authority to charge a person for anything done by it otherwise than for a commercial purpose (but see section 93 of the Local Government Act 2003 (power of EPBs, combined authorities and other best value authorities to charge for discretionary services)).
(5) Section 113A(1)(e) does not authorise an EPB or combined authority to do things for a commercial purpose in relation to a person if a statutory provision requires it to do those things in relation to the person.
(6) Where under section 113A(1)(e) an EPB or combined authority does things for a commercial purpose, it must do them through-
(a) a company within the meaning given by section 1(1) of the Companies Act 2006, or
(b) a society registered or deemed to be registered under the Co-operative and Community Benefit Societies and Credit Unions Act 1965 or the Industrial and Provident Societies Act (Northern Ireland) 1969.
"post-commencement limitation" means a prohibition, restriction or other limitation imposed by a statutory provision that-
(a) is contained in an Act passed after the end of the Session in which the Localism Act 2011 is passed, or
(b) is contained in an instrument made under an Act and comes into force on or after the commencement of section (Economic prosperity boards and combined authorities)(1) of that Act;
"pre-commencement limitation" means a prohibition, restriction or other limitation imposed by a statutory provision that-
(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or
(b) is contained in an instrument made under an Act and comes into force before the commencement of section (Economic prosperity boards and combined authorities)(1) of that Act;
"pre-commencement power" means power conferred by a statutory provision that-
(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or
12 Sep 2011 : Column 578
(b) is contained in an instrument made under an Act and comes into force before the commencement of section (Economic prosperity boards and combined authorities)(1) of that Act;
"statutory provision" means a provision of an Act or of an instrument made under an Act.
113C Power to make provision supplemental to section 113A
(1) The Secretary of State may by order make provision preventing EPBs or combined authorities from doing under section 113A(1) anything which is specified, or is of a description specified, in the order.
(2) The Secretary of State may by order provide for the exercise by EPBs or combined authorities of power conferred by section 113A(1) to be subject to conditions, whether generally or in relation to doing anything specified, or of a description specified, in the order.
(3) The power under subsection (1) or (2) may be exercised in relation to-
(a) all EPBs,
(b) all combined authorities,
(c) particular EPBs,
(d) particular combined authorities,
(e) particular descriptions of EPBs, or
(f) particular descriptions of combined authorities.
(4) Before making an order under subsection (1) or (2) the Secretary of State must consult-
(a) such representatives of EPBs or combined authorities,
(b) such representatives of local government, and
(c) such other persons (if any),
as the Secretary of State considers appropriate.
(5) Subsection (4) does not apply to an order under subsection (1) or (2) which is made only for the purpose of amending an earlier such order-
(a) so as to extend the earlier order, or any provision of the earlier order, to a particular EPB or combined authority or to EPBs or combined authorities of a particular description, or
(b) so that the earlier order, or any provision of the earlier order, ceases to apply to a particular EPB or combined authority or to EPBs or combined authorities of a particular description.
(6) Power to make an order under this section includes-
(a) power to make different provision for different cases, circumstances or areas, and
(b) power to make incidental, supplementary, consequential, transitional or transitory provision or savings."
(2) For section 117(2) and (3) of the Local Democracy, Economic Development and Construction Act 2009 (affirmative procedure applies to orders under Part 6 other than certain orders under section 116) substitute-
"(2) An order to which subsection (2A) applies may not be made unless a draft of the statutory instrument containing the order (whether alone or with other provisions) has been laid before, and approved by a resolution of, each House of Parliament.
(2A) This subsection applies to an order under this Part other than-
(a) an order under section 113C(1) that is made only for the purpose mentioned in section 113C(5)(b),
(b) an order under section 113C(2) that is made only for that purpose or for imposing conditions on the doing of things for a commercial purpose, or
(c) an order under section 116 that amends or revokes provision contained in an instrument subject to annulment by resolution of either House of Parliament.
12 Sep 2011 : Column 579
(3) A statutory instrument that-
(a) contains an order under this Part, and
(b) is not subject to any requirement that a draft of the instrument be laid before, and approved by a resolution of, each House of Parliament,
is subject to annulment by resolution of either House of Parliament.""
119DA: After Clause 10, insert the following new Clause-
(1) In section 146A of the Local Government Act 1972 (application of provisions to certain joint and other authorities)-
(a) in subsection (1) for "or (1A)" substitute ", (1ZD) or (1ZE)", and
(b) after subsection (1ZC) (which is inserted by section 9 of this Act) insert-
"(1ZD) An Integrated Transport Authority is not to be treated as a local authority for the purposes of section 111 above (but see section 102B of the Local Transport Act 2008).
(1ZE) Neither an economic prosperity board, nor a combined authority, is to be treated as a local authority for the purposes of section 111 above (but see section 113A of the Local Democracy, Economic Development and Construction Act 2009)."
(2) In section 93(7) of the Local Government Act 2003 (provisions that do not count as prohibitions on charging for the purposes of section 93(2)(b)) after paragraph (c) insert-
"(d) section 100(2) of the Local Transport Act 2008 (well-being powers of Integrated Transport Authorities and combined authorities),
(e) section 102C(4) of that Act (Integrated Transport Authorities),
(f) section 10B(4) of the Transport Act 1968 (Passenger Transport Executives), and
(g) section 113B(4) of the Local Democracy, Economic Development and Construction Act 2009 (economic prosperity boards and combined authorities).""
Amendments 119D and 119DA agreed.
Schedule 2 : New arrangements with respect to governance of English local authorities
119F: Schedule 2, page 207, line 27, at beginning insert "Subject to receiving a proposal under sub-paragraph (5),"
Lord Beecham: Amendment 119F and the other amendments in the group refer to the additional permitted governance arrangements contained in the schedule. The legislation as drafted allows the Secretary of State to make provision for changes in such arrangements. The thrust of these amendments is to ensure that the changes stem from proposals made by the individual authorities affected, rather than being initiated from Whitehall and the Secretary of State himself. The amendments go on to refer to the principles upon which such changes should be made. Clause 9BA(6) says that:
"The conditions are ... that the operation by the authority of the proposed arrangements would be an improvement on the arrangements which the authority has in place for the discharge of its functions".
12 Sep 2011 : Column 580
That seems to me an unnecessarily narrow prescription. They ought to be, as the Bill goes on to say,
- "likely to ensure that the decisions of the authority are taken in an efficient, transparent and accountable way".
My amendment incorporates that phrase, but goes on to say that the arrangements would be appropriate for all local authorities, or for any particular local authority, to consider and-this is the important part of the amendment-that the arrangements are consistent with the principles of localism and representative local democracy, a phrase that, as far as I am aware, does not appear anywhere else in the Bill.
In our discussion at Second Reading and from time to time in Committee, noble Lords on all sides of your Lordships' House stressed the importance of representative local democracy as a necessary part of any localism agenda. That should be reflected in the consideration of any Government's arrangements. I do not think that it is necessary to confine any changes to where they would after all, in the view of the Secretary of State, represent an improvement. There is no particular need, in my judgment, for that. They should certainly not represent any lessening of the efficacy of those arrangements, but they could be different without necessarily representing an improvement, in the eyes of the Secretary of State, as long as they meet the criteria of transparency, efficiency and accountability and are consistent with the principles of localism and representative local democracy. That should be sufficient.
I hope that the Minister, if she is dealing with these amendments, will regard them as friendly rather than unfriendly. They are designed to reinforce what is said to be the thrust of the legislation but in a way that, first, places the initiative with the local authority rather than the Secretary of State for providing that the criteria are met, but secondly-again, I stress this-emphasises that the principles of representative local democracy should be met in any such change. I beg to move.
7.30 pm
Baroness Hanham: My Lords, we debated both these amendments in Committee. We accept that most proposals for additional governance models will come from local authorities. That will be how the impact will go given their expertise as practitioners. However, Amendment 119F still fails to recognise that ideas and proposals about new governance models may also come from other sources. The amendment says that the Secretary of State cannot do anything without having a proposal put to him. We need to make it clear that those proposals could come not only from local government but from local government representatives, think tanks or research units. Therefore, they might not be sufficiently well formed for the Government to take them on board. Saying that the Secretary of State may implement something only after a suggestion has been put forward may be restrictive, although the noble Lord is also saying that the Secretary of State should not be able to dream up a form of governance and then try to implement it. That is not the sense of this legislation. I hear what the noble Lord says, but that is not the intention.
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In any case, if the Secretary of State decided to do that, he would be forcing local authorities to do something that they may not want to do and that is not the intention behind these provisions. We are not going to force local authorities. They would not have to adopt arrangements set out in any regulations made under this provision. This is an empowering clause not a diktat clause.
In Amendment 119G, the conditions that the noble Lord suggests are, if I may put it politely, less useful for local authorities than the existing ones. It does not seem unreasonable that there should be an explicit requirement that any proposed new arrangements should be an improvement on what is already there. There are three areas of governance listed in the Bill and anything else would have to be an improvement on what is there. I believe that the existing conditions give clarity for local authorities that may be considering submitting a proposal and we would not want to change that.
Finally, I remind noble Lords that any regulations made under this provision would simply extend the range of choice of governance models available to local authorities. They would not have to adopt those arrangements. They would be one more in addition to that list of three if somebody can think of something remarkable to do.
I hope that with that explanation the noble Lord will be able to withdraw his amendment.
Lord Beecham: I am grateful to the Minister although it is entirely unclear who would judge and on what basis whether the change was an improvement or not. However, in the circumstances, I beg leave to withdraw the amendment.
Consideration on Report adjourned until not before 8.34 pm.
Charities Bill [HL]
Bill Main Page
Copy of the Bill
Committee (on Recommitment)
7.34 pm
Clause 2 : Meaning of "charitable purpose"
Lord Phillips of Sudbury: My Lords, it is a strange feeling to be moving a group of amendments that comprise the totality of the amendments to this 250-page Bill. But this is a consolidation Bill. As one who has served on the Joint Committee on Consolidation Bills, I know well enough that on consolidation one is not allowed to change substantive law. I emphasise that the amendments that I have tabled and the comments
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However, with a Bill that affects the voluntary sector in particular, one must seek to make that measure as comprehensible as possible. I could not refrain from tabling a set of amendments to attempt to make the crucial definition clauses of the Bill fractionally more understandable to the lay reader. The last thing one wants in the world when legislating for the voluntary sector is to force it into the hands of lawyers who will do their best but who, I am afraid, are expensive beasts. I speak as one of 53 years duration. The amendments taken as a group effect no change but they see the definition of "charitable purpose" or "charitable purposes" brought into one clause, Clause 2, which will then enable Clause 11 to be removed from the Bill. In practical terms, that will be of considerable benefit.
Before explaining why, I should say to the Committee that I am aware that Section 73 of the Charities Act 2006 requires a review of the 2006 Act, which is about to commence, which will end with a report being placed before Parliament. Indeed, I was instrumental, with others, in getting that unusual provision written into the 2006 Act. But there is nothing in the Act to say that anything shall flow from the report. I produced this amendment determined that at least in the interim years-one could be talking about quite a few years, even an eternity, before any amendments are made to this Bill-the definition clause should be a little more understandable.
Why is it more understandable? I wish sometimes that one could annex to technical amendments such as this a copy of the clause they seek to amend, incorporating the amendments. The amendments seek to get rid of Clause 11, which defines "charitable purposes" or "charitable purpose" differently from the definition in Clause 2. Clause 1 defines "charity" in a way which is difficult to reconcile. It is reconcilable but only by dint of considerable legal subtlety. It is already difficult to reconcile Clause 1 with Clause 2. The last thing in the world one wants is for the unwary reader-that is to say he or she who does not plough all the way through the Bill-then to find that there is a different definition of "charitable purposes" in Clause 11. As I say, that in itself represents a significant practical improvement in the Bill because the definition of "charitable purpose" or "charitable purposes"-those two phrases are used in different places in the Bill-and the definition of "charity" itself are the linchpin definitions of the entire Bill.
I had hoped to simplify the Bill further. However, I received a communication from the Bill team which made clear that the extent of the use of the phrase "charitable purposes" or "charitable purpose" is unknown. The Committee may think it rather extraordinary that we have no place to which anyone, including the parliamentary draftsman, can go to be informed about all the uses of the phrase "charitable purposes" throughout our primary and secondary legislation. There is no such source of information. In the age of technical wizardry that defect could and should be resolved, not just for the benefit of the experts but for the many who
12 Sep 2011 : Column 583
"While we are able relatively easily to search the database of General Public Acts for references to 'charitable purposes', the same cannot be said of subordinate legislation (as defined for the purposes of clause 2), not all of which is stored in the available databases, or private Acts, hardly any of which are in the available databases".
I have tabled my modest but, I think, significant amendment in the hope that the Government may say that they think it is an improvement but in the expectation that, given the complexity of the whole-I nearly used a Saxon word-business, they will need further time in order to clear the decks as regards simplifying these crucial clauses. I look forward to hearing what my noble friend has to say in replying to these amendments. I am grateful for the Committee's patience.
Baroness Finlay of Llandaff: I rise briefly to support the spirit of what the noble Lord, Lord Phillips of Sudbury, has said because when people are setting up charities they often try to find ways around the complexity of registering a charity. There is an enormous number of charities and sometimes it is extremely difficult to be clear whether they truly are charities. I say that as a patron of several small charities from their outset. One often has a sense of when a "charitable purpose" really is a charitable purpose and when it is stretching the limits, but that has implications for donors and the Charity Commission. The reference to "known unknowns" is reasonable. In many aspects of life we know that new situations will arise but we do not know what they will be. The danger is that matters can be contested at a later stage. The noble Lord has thrown down a rather wonderful challenge to the Government. I look forward to hearing their response.
7.45 pm
Baroness Smith of Basildon: My Lords, this may be one of those rare occasions when I am pleased not to be the Minister answering the noble Lord's questions. As the Minister knows, we welcome this consolidation. The comments that have been made highlight what the legislation seeks to achieve. The noble Lord raised similar issues at Second Reading. I have to confess that he lost me somewhat when he spoke in that debate. However, I have carefully read the points that he made. It strikes me that we are attempting to make the legislation more straightforward, less complex and easier but we are not making it easy. I noted that the noble Lord mentioned making the measure more understandable to the lay person. I am not sure that we are ever able to make such legislation more understandable to the lay person. This is very much a lawyer's issue. My noble friend Lord Boateng has queried whether people need a lawyer to help them set up a charity. If the noble Lord, Lord Phillips, will forgive my saying so, I fear that we have two lawyers and three opinions on this issue as it seems to comprise an argument between lawyers.
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I confess that I do not understand the legal complexities which would allow me to make a distinction between "charitable purpose" or "charitable purposes". I cannot see the difference between those two phrases. However, I fully understand the necessity to get definitions right so as to avoid long drawn out arguments in court. I have carefully read the report of the Joint Committee on Consolidation Bills. We should be grateful to it for considering the points that we put to it. It has also considered the point that the noble Lord has made. All I can do is to seek advice on this from the Minister. I am sure that she has received legal advice on whether this is a justifiable concern. Is she able to share that legal advice with us? If there is an issue around the definition, how significant will that be in terms of interpretation? Her advice would be helpful in enabling the Committee to reach a conclusion on this matter and in reassuring us that the Bill does what it seeks to do and that the definition is satisfactory.
Baroness Verma: My Lords, I start by thanking all noble Lords who have taken part in this important but short debate. I welcome the opportunity to try to explain the Government's position as clearly as I can.
I welcome the knowledge and expertise of my noble friend Lord Phillips in charity law and his assiduousness in scrutinising legislation that affects charities. I know that he has taken a very close interest in the consolidation Bill. Earlier this year he raised a number of points with the noble and learned Lord, Lord Carswell, the chairman of the Joint Committee on Consolidation Bills. He has also since then discussed various points with the Bill team in considerable detail. As a result, we have been able to make some important drafting improvements at the Joint Committee stage and we are extremely grateful to my noble friend for that.
The amendments tabled by my noble friend concern the relationship between Clauses 2 and 11. I know that my noble friend's object here is to make further drafting improvements. However, the discussions we have engaged in with him have indicated that his concerns go deeper than that. As a result, we have already undertaken to address the underlying problem that he has raised. This can be done only outside the consolidation process. I shall explain that in a little more detail in a moment but perhaps I may just set the context for this discussion. Clauses 2 and 11 reproduce the existing law as it has stood since the passing of the Charities Act 2006. We are not aware of anyone having expressed concerns about these provisions at the time of the passing of the 2006 Act. Furthermore, at no point in the consultation process on the present Bill has anyone expressed any concerns about the relationship between Clauses 2 and 11. The draft Bill was the subject of full public consultation in 2009 and has the support of the charities sector and the Charity Commission.
I should explain that Clauses 2 and 11 contain two subtly different definitions of "charitable purpose", one of a very general application and the other of a much more limited application. Two types of suggestion have been made about the relationship between these clauses. The first involves changing the law; the second aims simply to improve the drafting of the Bill. The suggestion between Second Reading and the Joint Committee proceedings was of the first type. It was
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The amendments that my noble friend has now tabled aim to improve the drafting of the Bill without changing the law. However, we are not convinced that this is the right response to the real issue that my noble friend has raised. The fundamental issue-it is one that we recognise-is that it is awkward to have two definitions of "charitable purpose" applying in different contexts. The amendments that the noble Lord has tabled do not remove this awkwardness; they merely present it differently. We think that the right thing to do is not to make drafting changes to the Bill, but instead to seek to address the underlying issue.
We recognise that it could be a desirable simplification to substitute the two definitions applying in different contexts by a single definition applying across the board. However, it is clear that this cannot be done through this Bill. I have therefore already suggested to my noble friend that it can be considered as part of the forthcoming review of the Charities Act 2006. It appears that there is a case for simplification here, and we believe that the review is the right place to explore thoroughly the legal changes that would be required to achieve this simplification.
I return to the amendments before us. The drafting of the consolidation Bill is a very technical business and the provisions have already been very clearly considered and given a clean bill of health by the Joint Committee. However, my noble friend has tabled what amount to detailed drafting points so I will explain why we resist these amendments.
I will begin by saying that we think that the way in which the definitions of "charity" and "charitable purpose" are structured in the Bill is an improvement on the current legislation. In particular, putting the 1993 Act definitions in Part 1 of the Bill next to the 2006 Act definitions makes them more visible to the reader. In the Government's view, my noble friend's amendments would not improve this drafting. First, we think that the amendments would damage the logical structure of Part 1 of the Bill by taking a definition that belongs in Chapter 2 and putting it into Chapter 1 where it does not belong. I will explain that in a little more detail. As is clear from its title, Part 1 of the Bill is concerned with the definitions of "charity" and "charitable purpose". Chapter 1 of Part 1 deals with definitions that apply generally-that is, in legislation generally and in documents, and in England and Wales as well as, for certain purposes, Scotland and Northern Ireland. Chapter 2 of Part 1 deals with definitions that have a much more limited application-that is, they apply only in England and Wales, and only to provisions deriving from the Charities Act 1993. The different scope of the two chapters is signalled by
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Furthermore, we think it is undesirable to confuse the picture for readers in Scotland and Northern Ireland by injecting into Chapter 1 a definition that concerns the interpretation of provisions that relate only to England and Wales. Chapter 1 affects the law of Scotland and Northern Ireland for certain purposes relating loosely to fiscal matters.
Finally, in our view the amendments would be inconsistent in that they would leave two alternative definitions of "charity" in Chapters 1 and 2. If the two alternative definitions of "charitable purpose" are brought together in the way suggested, it would seem illogical to leave the two definitions of "charity" in separate places.
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