§ 11.16 a.m.
§ Report received.
§ Clause 94 [Power to charge for discretionary services]:
§ Lord Hanningfield moved Amendment No. 1:
§ Page 51, line 18, leave out subsection (3).
§ The noble Lord said: My Lords, we consider that the new power to charge for discretionary services is important, and we welcome it. In my county of Essex, we are keen to make the most of this new freedom to maintain as many of our discretionary services as possible. However, we are disappointed to find that, having been granted this freedom, local authorities will have their hands tied by the unnecessary caveat of having to ensure that the income from charges for a service does not exceed the cost of its provision.
§ We are concerned that this restriction will prevent local authorities improving the quality of services that they provide. We understand that the power is to be exercised primarily to promote the economic, social and environmental well-being of our communities and is not to be seen as a money spinner. That is fine. However, for local authorities to be able to provide a service and raise their standards of service provision, it is clear that they may on occasions want to over-recover their costs in order to invest in service improvements. To prevent them doing so is likely to lead to a gradual deterioration of service. It seems to me to be a topsy-turvy world in which the instruction that we send out to local authority managers is, "You must not make a profit. By all means make a loss, but do not make a profit".
§ In Committee, the noble Lord, Lord Rooker, mentioned the dangers of allowing authorities to enter into an unrestricted commercial activity. He did not say what those dangers were. As the leader of an authority under financial pressure, I believe that the key danger is that the service would lose money, which would put pressure elsewhere on the authority's budget. From my perspective, the danger of authorities making a profit is a somewhat lesser concern.
§ The amendment does nothing to affect the scope of powers to charge for discretionary services. That is not the issue. The issue is whether a local authority providing a service that it does not need to provide should be able to charge what the market is happy to pay for that service. The Minister says that it should not be allowed to do so. I say that in principle it should. If the only reason standing in the way of that is the effect that it might have on powers elsewhere in the 434 Bill—that is what the Minister said in the other place—it surely cannot be beyond the wit of the Minister and his civil servants to work out a way of resolving the problem. I am also concerned that insisting that local authorities enter local markets on a non-commercial basis will distort local markets and will not be welcomed by local businesses.
§ I appreciate that the Minister will probably take the view that the purpose of these powers is to enable local authorities to step in to provide services where the local market cannot or will not do so. In many cases, that may be true. But should we not also see these powers as providing an opportunity to stimulate local markets? That would not have the effect of a large, uncommercial player taking part.
§ As well as the principled objections we have to this measure, we are also concerned about how it will operate in practice. What will happen if the calculations go slightly wrong and against all the odds local authorities make a slight profit on the discretionary services? We might have to make adjustments the following year to the pricing structure—perhaps reducing charges—but that might only have the effect of leading to more people taking up the service and an even higher profit. I suppose that we could consider that as a way of providing the service. Perhaps local authorities may be carrying out the work too efficiently. Therefore, we could try to meet the Government's requirements by increasing our cost base. It seems to me that the provision is wrong in principle and difficult to police in practice. I hope that the Minister will think again. I beg to move.
§ The Chairman of Committees (Lord Brabazon of Tara)
My Lords, I have to tell the House that if this amendment is agreed to, I cannot call Amendment No. 2.
§ Baroness Hamwee
My Lords, Amendment No. 2 stands in my name, and I would be delighted if it were to be pre-empted by the deletion of subsection (3). My amendment is less ambitious. While I fully agree with what the noble Lord, Lord Hanningfield, said, if the subsection is retained, I am concerned about a point in it.
In Grand Committee I said that I wondered whether a local authority would be caught out—to use demotic language—if its income slightly exceeded its costs. That was because of the very precise and technical point of the local authority's vires—less demotic—or its powers. If a local authority were to be challenged on the basis that income, even taking a number of years together, was just a little over its costs, what would be the position?
I accept that it would be difficult for all income to be attributed to a particular charging activity. If the Government seek to take that approach, I understand why they have done so in that way. It does not seem to me that what is being done addresses the dangers of the challenge on the ultra vires basis. Although I do not for a moment support some of the activities that happened in the 1980s that led to the cases in regard to what were local authorities' powers, I am alert to the dangers that they articulated at some length.
435 My amendment seeks to provide that the income from charges does not significantly exceed the cost of provision—I used different language at the last stage. The noble Lord, Lord Rooker, said in Grand Committee:I would hate to think that a local authority would fall foul of some crazy interpretation of the Bill and that because its costs turned out to be a little lower than it thought and it made a profit of a quid, that nullified the whole exercise … Obviously, if the noble Baroness tables such an amendment I will be happy to give her a considered response to it".—[Official Report, 17/6/03; col. GC 262.]
I have tabled this amendment in order to hear the Minister's considered response.
§ Lord Bassam of Brighton
Good morning, my Lords. What a wonderful day—back on local government finance! With Amendment No. 1, we have a choice between the ambitious and the less ambitious. I do not favour either of the approaches, although I entirely understand them. Thinking back to the time when I led my local authority, we could have done with some more flexibility in terms of costs and charges. I can understand where noble Lords are coming from in this regard.
Clause 94 is designed to allow authorities to cover the costs of providing discretionary services, but not to provide a new source of income, a new profit line. Amendment No. 1 understandably seeks to remove part of the clause, the part designed to ensure that authorities do not profit from the provision of discretionary services.
In Clause 94 the costs of provision are deliberately not defined so as to give authorities the maximum amount of discretion and flexibility in its interpretation, both now and in the future. We have built in flexibility and it is guaranteed in the clause as it is written. Our belief is that authorities should be enabled and free to establish their own robust methodology for assessing the costs of providing a discretionary service.
I believe that that is the way it should be left. If we become overly prescriptive—that was our original intention—and if we over-regulate we shall create more of a problem for ourselves. We want the flexibility; that is what we have tried to achieve in the way in which the clause is designed. I suggest to noble Lords that it is probably best left that way. If the determination is made locally, and if the assessment is made locally, I am sure that in the localities the local authorities will exercise their powers and duties sensibly.
Amendment No. 2 differs as the noble Baroness, Lady Hamwee, explained. She has put the word "significantly" into the script. Our problem with that is that it is open to very variable interpretation. It is hard to see what it would mean and what it adds in terms of the clause. That is why we have adopted the formulation,taking one financial year with another",436 because we recognise that one cannot have an exact balancing act in organising costs. I believe that to add the word "significantly" would raise the possibility that year in, year out best value authorities could make a profit from charges for discretionary services without any real gain being made in terms of service quality.
The noble Lord, Lord Hanningfield, suggested that local authorities need an extra bit of up-front income generation to ensure that they do not run at a loss or there is not a deterioration in service. I do not believe that that will happen. My belief is that there is already sufficient flexibility. I say that because I want it to be understood by the local authorities. I think that what we have will work. Obviously, it is something that we shall watch for carefully in the future.
We do not want to blur the line between trading and charging. We are clear that we want trading to be achieved through companies, but we want to give local authorities the ability to charge for discretionary services where they wish and where there is no current power or current prohibition. That is why I believe that we should stick with what, ultimately, is quite sensitive wording in the Bill.
Having heard those words of encouragement, I hope that the noble Lord and the noble Baroness will feel happy to withdraw their amendments. I believe that we have the situation about right. The freedoms and flexibilities that we have provided up front will give the local authorities the scope and the freedom to work well in that area.
§ Baroness Hamwee
My Lords, is the Minister able to answer my precise question about tires, which I also raised at the previous stage?
§ Lord Bassam of Brighton
My Lords, I apologise to the noble Baroness. I should have had an answer for her at the Dispatch Box, but I have not. I shall undertake to ensure that she receives a more precise answer than I can honestly give her today. It would be wrong of me to answer her now as the noble Baroness deserves a more precise response.
§ Lord Hanningfield
My Lords, I thank the Minister for his comments. This is a very difficult area. As noble Lords are aware, I have considerable practice and involvement in this area at this moment. In Committee stage I mentioned, and I shall mention it now, an archaeological team working in Colchester, Essex, one of the oldest towns in the country, which is covered in archaeological sites. Every time a new building is built another site is found. The county council is in danger of having to give up its service in that regard because it is a discretionary service and the priority is care of the elderly, children's services, schools and so on. If one could use those services one would probably keep them.
Although I have listened carefully to what the Minister has said, he did not give us enough encouragement in the area of work that local authorities carry out very well, and local authorities are in danger of having to give up that work because 437 of the pressure on finances. We need to look at the wording again, because the Minister suggested that the wording left enough flexibility for local authorities to perhaps receive enough back from those services to continue them. I shall look at that wording again. I beg leave to withdraw the amendment, but reserve the right to return to it at Third Reading.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 2 not moved.]
§ 11.30 a.m.
§ Clause 95 [Power to disapply section 94(1)]:
§ Baroness Hamwee moved Amendment No. 3:
§ Page 52, line 7, leave out sub-paragraphs (ii) and (iii)
§ The noble Baroness said: My Lords, Clause 95 allows the "appropriate person"—I imagine the Secretary of State or the National Assembly—to disapply Section 94(1) either for "particular descriptions" of authority or with regard to a particular service by all best value authorities; or by particular best value authorities or particular descriptions of best value authorities. I seek to remove the second and third of those from the Bill.
The noble Lord, Lord Bassam, said in Grand Committee that he was sure that I would acknowledge that the power to disapply, which I do acknowledge is a reserve power that the Government hope will not be used, was needed in case the power to charge for discretionary services, under Clause 94, was misused or abused. I then asked why it was necessary to have the power to disapply if Clause 94(3), which we have just debated, was retained in the Bill. That has clear restrictions. I tabled the amendment, hoping that the Government could answer why it is necessary to have a discriminatory power to disapply—albeit a discretionary one—but which allows them to discriminate between best authorities if the power is limited in the way that Clause 94(3) requires. I beg to move.
§ Lord Bassam of Brighton
My Lords, I understand the spirit behind the moving of this amendment and I shall try to explain further why it is unacceptable. The power in Clause 95 is a reserve power and one that we expect to use only in exceptional circumstances. It means that the Government could take action if a single authority or a number of authorities were to misuse the power to charge, and the power to disapply could be applied to one particular discretionary service or to all discretionary services of one or more authorities.
I explained in Committee on 17th June in Hansard, col. GC 264, that Clause 95 might be of use where it became clear that an authority was not complying with the duty in Clause 94 to ensure that,taking one financial year with another, the income from charges … does not exceed the costs of provision".
If the result was that the authority was effectively undertaking unauthorised trading activities, Clause 95 would enable the general power to charge to be 438 withdrawn from that particular authority. But if we were to accept the amendment we would only be able to withdraw the power to charge in relation to all discretionary services of that authority, or in relation to a particular discretionary service provided by all authorities.
We want to ensure that best value authorities have the freedom and flexibility to charge for discretionary services if they choose to do so, but we need some flexibility and that is why we have proposed this power for exceptional cases. It would enable us to be very selective so as not to penalise other authorities that were playing by the rules—and indeed other parts of the offending authority which were using the new power properly. It is therefore a precise tool which can be brought to bear if one small part on an authority with a particular discretionary service is not playing the game. It is right that we have that power. The noble Baroness would probably accept that if, in an area where there were competing local authorities, an authority decided that it wanted to exploit the opportunity provided by the marketplace to provide a service, and then did not play by the rules, one would have to accept that that would be wrong. We would want the power to make a critical intervention where an authority was stepping out of line.
However, we wish overall to allow best value authorities, and the way in which they provide those services, to operate with the maximum freedom and flexibility. We shall use this power with great care and caution.
§ Baroness Hamwee
My Lords, I am grateful to the Minister for that explanation. At earlier stages of the Bill there were a number of provisions which began to be described as hackneyed provisions, and this is perhaps another example. It raises an interesting point. We are told that in order to ensure that another provision of the Bill is not violated, the Government need this power to disapply that provision. It opens up questions as to what all the other parts of the Bill which cannot be disapplied might mean, what the sanctions might be and what the force of those provisions might be. The Government are saying that the only—or perhaps, to be fair, the best—way that they can ensure that a provision of the very same piece of legislation is observed is by disapplying it. That is a major issue, which perhaps I am not qualified to expand on, and one that is certainly not appropriate to examine now, although the matter is serious. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ "FREEDOM AND FLEXIBILITY
- (1) The powers in this Act shall be exercised by the Secretary of State in accordance with a general duty to increase the freedom and flexibility of operation of any local authority that has been assessed as "excellent" or "good" in its most recent comprehensive performance assessment.
- (2) When issuing any regulations or directions under this Act or the Local Government Act 1988 (c. 9) or the Local Government Finance Act 1992 (c. 14) that he intends to apply to a local
439 authority or local authorities that have been placed in the top two tiers of classification in accordance with the provisions set out in section 100 of this Act, the Secretary of State shall at the same time publish a statement explaining how the regulation or direction concerned will increase the freedom and flexibility of such authorities and in what way it will devolve decision-making to local level.
- (3) In exercising powers to make an order under section 101 the Secretary of State must have regard to subsections (1) and (2) above.
- (4) The Secretary of State shall, in accordance with the classifications provided for in section 100, ensure that the following reductions in inspection activity for all inspectorates are made so that—
- (a) for authorities in the top tier of classification there shall be no external inspections during the period of the order made in section 100(4), and
- (b) for authorities in the next tier of classification there shall be a reduction in inspections of at least 50 per cent during the period of the order made in section 100(4).
- (5) Regulations made under Sections 11 and 26 of this Act shall not apply to any authority that has been placed in the top two tiers of classification in accordance with the provisions set out in section 100, except with the prior agreement of the local authority concerned.
- (6) In section 11 of the Local Government Act 2000 (c. 22) (local authority executives), after subsection (5) there is inserted—
- (5A) The duty under this section does not apply to authorities that are classified under section 100 of the Local Government Act 2003 in the top two tiers of performance."
The noble Lord said: My Lords, in introducing this new clause, we are trying to establish in the Bill where the comprehensive performance assessment should stand given that it is a major plank of the Government's local government policy.
When the Government introduced the comprehensive performance assessment they said that it—I shall call it the CPA—would be the vehicle for delivering freedoms and flexibilities to local authorities. When they introduced local public service agreements they said that PSAs would he the vehicles for delivering freedoms and flexibilities to local authorities. When the Government introduced the beacon councils scheme, they said that they would be the vehicle for introducing freedoms and flexibilities for local authorities.
If there is scepticism on this side of the House about the Government's promises of freedoms and flexibilities, it is the product of experience rather than ideology. If distinguishing between service providers on the basis of their ability to deliver the goods is a central plank of the Government's policy for public services—as seems to be the case—then the introduction of a clear statutory commitment on freedoms and flexibilities for local authorities should be an important component of that strategy. It would be welcomed in local government as a statement of the Government's good intentions.
In addition to the general principle set out in the amendment that would give real flesh to the Government's public utterances on freedoms and flexibilities, I have suggested a number of areas on which a freedoms and flexibilities clause could bite. First, we should remember that the Government first introduced the CPA on the back of a promise that it would lead to an overall reduction in inspection activity. It is on that basis that local authorities have engaged with the 440 process. However, there are some worrying reports that although the Audit Commission may be willing to play ball, other inspectors—Ofsted, SSI—are perhaps less willing to reduce their inspection activity.
That may or may not be true. The key point is that there should be a statutory agreement on the level of reduction in inspection activity for each class of authority. That would send a powerful signal from the Government to the local authority community that they really do mean business and will compel inspectors to comply with their targets.
Setting statutory targets for reductions in inspection activity does not mean a less flexible system. It would still be possible to tailor individual inspection programmes to the needs of individual authorities. It does mean, however, that authorities will know in advance exactly how much inspection activity they can expect in the medium term. That would aid the budgetary stability and forward planning processes for local authorities and would be welcomed.
Secondly, the amendment would remove the power of the Secretary of State to make regulations binding good and excellent authorities on the use of capital receipts and on minimal levels of reserves. As other amendments will demonstrate, we are opposed to these provisions on principle, but find them particularly objectionable in relation to authorities that have been classified as good or excellent.
Thirdly, the amendment would allow those authorities that have been classified as good or excellent to determine for themselves whether they want to continue to operate under the new executive structures set out in the Local Government Act 2000. If they choose not to be bound by those provisions, then they would be subject to the laws governing executive structures that existed prior to the 2000 Act.
The purpose of the provision is not to suggest that one form of executive structure is better than another. It is not about turning the clock back. The amendment is about choice. It is about providing good or excellent authorities with the power to determine for themselves their internal governance structures.
Why might the Government resist choice? I do not want to put words into Ministers' mouths, but I foresee that the Government might claim that it is not helpful for authorities to revisit their executive structures; that this might cause unnecessary upheaval when an authority should be concentrating on service delivery. Funnily enough, that is precisely why we are opposed to the creation of elected regional assemblies and the reconstitution of the whole local government structure beneath the region. So I do not disagree with the Minister on that.
The authorities themselves, it might be argued, have benefited axiomatically from these executive structures—after all, they are good or excellent. Why then change a winning formula? I would not disagree with that. I would simply say that it is for good and excellent authorities to judge these things for themselves. They are in a position genuinely to consider the costs and benefits of changing their executive structures. The point is whether the Government trust local government. Do they trust local 441 government to judge for itself whether its current executive structure or a committee-based structure is the right way forward?
I think that the Government, with their belief in freedoms and flexibilities, must welcome this helpful amendment that gives flesh to so mar y of the things they have promised over the past few years. I hope Ministers will look favourably on the amendment. I beg to move.
§ Baroness Hanham
My Lords, I support the amendment moved by my noble friend Lord Hanningfield, which stands in both our names. The Bill has been heralded as the Bill of freedom and flexibility. Those two words are mentioned in almost every second breath. It has been hard to find during the proceedings on the Bill—the Committee stage was held off the Floor of the House—where those freedoms and flexibilities are. So the purpose of the amendment is to try to pick out some of those areas where the excellent and good councils in the performance assessments might be able to find some freedom and flexibility. My noble friend Lord Hanningfield has described those very well.
It would be helpful for local government to have those issues put together in one statutory clause. The inspection regimes have caused a great deal of angst; and that angst has not necessarily produced any very sensible or useful results. There have been far too many inspections. Most people now accept that that was the situation. I have always thought it absurd for the Government to be laying down from the centre exactly and definitively how local authorities should run themselves and how they should make their decisions. It is my belief that what has happened and what is happening is that we are making local government unattractive, except to the very few at the top who have a job to do and a job to lead. If we are not careful we will end up having to advertise for councillors who can perform specific roles rather than being generic.
I support my noble friend Lord Hanningfield. I very much hope that the Minister will receive the amendment sympathetically.
§ 11.45 a.m.
§ Baroness Hamwee
My Lords, it seems to us that the Conservatives have bought into the Government's notion of earned autonomy for local government. We on these Benches have made it clear on many occasions that we believe local authorities should be treated as inherently autonomous. I have said before—I do not want to go through the matter at great length—that Audit Commission review can be very helpful. I have experienced it being helpful. But the inspection regime which is now in place and to which the noble Lord and the noble Baroness have referred—the inspections are often carried out by people who do not know as much about the subject as one might like to think they should and, indeed, who sometimes do not know as much as those who actually deliver the service—has got quite out of hand.
442 Categorisation is quite a different matter. The Government think that outside assessment, other than by the electorate, is a driver for councillors and officers. I do not think that that brings job satisfaction, but that doing the job well does. I really fear that the route which the Government are taking will mean that it will become a self-fulfilling prophesy; that one looks at the assessment through the eyes of other people who perhaps are not doing the job well for its own sake.
We do not support the Government's approach, which is more or less, "Here is a freedom provided you are good boys and girls". But, at least, the Bill as drafted gives freedoms which are not necessarily confined to those at the top of the class. Some of the powers to disapply are discretionary powers. We have heard throughout from the Government that they hope in many cases not to use them.
It seems to us that the amendment would consolidate rather than ease the distinctions. It frankly does not make Sections 11 and 26—I share the distaste for those—any more palatable. I find the suggestion of disapplying Section 11 of the Local Government Act 2000 curious: that is, disapplying the duty—as I read it—to put in place an executive scrutiny structure which is one of the models provided by Section 11. We had considerable criticisms of that Act as it was passing through the House. Indeed, I was able at the final stage to persuade the Government to exempt small authorities from the provision. Saying that is probably enough to confirm that we do not like Section 11 of the 2000 Act any more than the others that are referred to. However, we do not feel that this amendment is the solution to the problem. If anything, as I say, it would consolidate and not relieve what we see as a very real issue and difficulty inherent in the Government's approach. I am afraid we could not support the amendment.
§ Lord Bassam of Brighton
My Lords, this amendment is a curious and interesting one in terms of debate about the general direction of local government—where it should go, the nature of its leadership, how it works, its relation with central government and the degree of deregulation that should take place. I am intrigued by the amendment. I should like to congratulate noble Lords opposite because they have bought into what the Government are trying to achieve. I can see that they are trying to exercise political imagination in extending where we are going, though not in all regards. It is a useful contribution to what I genuinely believe to be a very important debate. The noble Baroness, Lady Hamwee, has seen that. This has moved the debate on. I congratulate the noble Lords opposite for having seized that opportunity.
The focus of the amendment is on the best performing authorities. They are important, but I should make clear to your Lordships' House that greater freedom for all authorities is central to the approach in this Bill. Much of this additional freedom to charge for discretionary services and the introduction of the new prudential regime for capital finance will be available to all authorities. Many of the 443 burdens that we are removing, whether through this Bill or in other ways, will be removed for all authorities. In this we are going a great deal further than some of the more recent converts on the Benches opposite thought we would go and perhaps at an earlier stage in the debate, were prepared to go themselves. So I am grateful to the Opposition for joining in the discussion.
We do see the need, in some cases, to be able to take account of capacity of authorities in deciding whether to provide an additional flexibility. That is why we are providing higher performing authorities with further substantial freedoms. Our commitment to greater freedom for all authorities in order to remove barriers to improvement, and for higher performers to give them the opportunity to do more is absolutely clear.
I ought to turn to the amendments in more detail. The first amendment seeks to impose a requirement that everything that we do in exercising powers under the Bill should be directed at increasing the freedom of the best authorities. Secondly, it seeks to write into statute a rather disparate wish list that the noble Lords opposite have put together to exempt good and excellent councils from certain requirements. As far as concerns the first point, I have already set out our commitment to greater freedom, but it seems to me that the proposal is fundamentally flawed. I am not sure that I understand what a general duty to increase freedom and flexibility would actually mean in practice. Noble Lords opposite might want to flesh this out in more detail. It can only be given effect by specific policies and decisions of the kind that we have set out, many of which are included in this Bill. The only point on which I am certain is that it would be likely to create absolute confusion about the use of powers under the Bill.
As an ex-leader of an authority, I have some sneaking sympathy with what I take to be the basic point that underlies another part of the amendment—looking at how regulation affects freedom of operation for authorities. We agree that there is a need to look at the way in which government engage with local authorities, particularly authorities that are performing well. Being more refined in our approach and seeking a more variegated engagement depending on their performance across different service areas is indeed something that we are seeking to develop. However, I do not think this is well served by asking the Secretary of State to produce in each case some kind of certification that the use of a regulation-making power will increase freedom and flexibility. This seems like the long hand of centralism gone mad. In practice it would be inoperable as I suspect the promoters of this amendment are well aware. The way forward here is to strengthen and deepen what we have been doing—less control over process for authorities, more of a focus on outcomes, more freedom about how to achieve them and support and engagement that is proportionate to the performance of the authority. I do not believe that can be quantified and written into statute.
444 I wish to turn briefly to the second set of issues. On inspection, it is indeed our policy that the very best authorities should have a holiday from most inspection activity and that good authorities should see the level of inspections cut by at least a quarter. But the duties under which inspectorates operate preclude this being written into law even were that a sensible approach in the first place. We cannot write into legislation an absolute ban on all inspection activity. Excellent councils are clear that in some cases inspection may be required. Take for example the significant concern of serious child abuse. Inspectorates also have statutory obligations to inspect certain functions, such as residential care homes and day nurseries, as part of their registration process. Our policy on reducing inspection activity is clear and we shall shortly be making announcements on what has been achieved to date. Good progress is being made on working with the inspectorates under a shared commitment to coordinated and proportionate inspection.
On the powers that we have to make regulations about the use of capital receipts in Clause 11, this amendment would exempt certain classes of authorities from the requirement to contribute to the redistribution mechanism that underpins housing investment in this country. As I have made abundantly clear in earlier debates, it is a fundamental principle of local government finance that resources are allocated in line with need. Anything else would be irresponsible. I simply do not accept that some authorities should have significantly more resources to spend than others, regardless of the condition of their stock or their other housing needs. This proposal is neither fair nor logical. It could lead to either higher taxes or a reduction in government funding for the most needy authorities. I doubt whether your Lordships would find that outcome acceptable.
On the power under Clause 26 to set minimum reserves, we have set out the very limited circumstances in which we would seek to use that power. I hope that no authority in the top tiers would be a candidate for a statutory minimum. But we have also made clear the very great importance that we attach to sound finances in the local authority sector. The new freedoms and flexibilities that we are giving re-emphasise the need for a sound financial base on which to operate them. If an authority in one of the top tiers for any reason neglected the need for adequate reserves we would not want to be deprived of the means of setting that right.
Finally we have that old bugbear about allowing authorities in the top two performance categories to opt out of the requirement for executive arrangements. We have heard that the Liberal Democrats do not like Clause 11. That is clear from the way they performed in local government. I respect their different viewpoint. The purpose of requiring authorities to have a cabinet executive or alternative form of political management arrangements for smaller councils is well recorded. Our commitment is to maintain this reform, and to promote efficient, transparent, and accountable decision-making.
We believe that the current arrangements are working very well. We set a target of all authorities having their new form of political management 445 arrangement in place by the end of last year. We met this, primarily because of a lot of hard work by authorities. To suggest unravelling the process, even if only for highly performing authorities, would signal that that hard work was in vain and would undermine our determination and that of well led Conservative, Liberal Democrat, Labour and Independent authorities. It would also undermine the shared and collective recognition of the need for good quality, well understood and transparent leadership in local authorities, something which I thought had become a commonly accepted value and was widely supported.
What appears to underlie this amendment is the clear view of the Benches opposite that political management arrangements are in some way a burden on authorities from which they need to be freed. I take the contrary view. The new system provides councils with exactly the kind of flexibility they need to sharpen up leadership and delivery, and to be properly held to account. Indeed, the irony of the position adopted by the Opposition is this: certainly in my time in local government I constantly encountered Conservative council leaders who said, "If only I had the freedom as a leader to act more decisively and authoritatively, I could do so much more for my authority". We have now provided the framework for that kind of dynamic leader to enjoy the freedom to get on with the job, because that is what people want their leaders of local authorities to do.
I believe that this amendment, although well intentioned, does not add in a sensible way to the freedoms package that we have developed and put in place. Nor do I think it would add anything to the reforms that we have set in train over the past three or four years. The amendment is useful because it demonstrates a recognition that the world of local government has moved on. I congratulate the movers on that recognition and I am pleased to see that they are now beginning to catch up with the general drift of the Government's thinking.
I hope that, having heard my encouraging words on some of this, noble Lords opposite will feel able to withdraw the amendment.
§ Lord Hanningfield
My Lords, I have listened with interest to what the Minister had to say about our proposed new clause. As a past leader of a local authority himself, he knows very well how local government operates. I would not say that noble Lords are converts—to repeat the word used by the noble Lord at one stage—to the Government's policy on local government, but we are realistic. We have before us a piece of legislation that we are trying to improve. This amendment therefore seeks to improve the Bill which, in one way or another, I am sure will shortly become the law of the land.
446 I, along with others, do not like comprehensive performance assessments any more than does the noble Baroness, Lady Hamwee, but we have them and we can see which authorities are designated as good or excellent. However, I think we would all agree that the subjective judgments in this area are not all that we would desire. However, we have comprehensive performance assessments and the Government talk consistently about those authorities enjoying greater freedoms and flexibility. That has been a theme running through the legislation, which is why we felt very strongly that the theme should be brought together in a single new clause.
The most important element of the assessment is the inspection. Over the past five or six years of Labour government we have seen a consistent and continuing growth of inspections. Now literally hundreds of millions of pounds are spent on inspections, which is money that we would rather see spent on services for children, the elderly and schools. We are facing so many problems with regard to school budgets that it would be much better if some of the enormous sums being spent on inspections were directed towards school budgets. The amendment would tie into the legislation a theme of reduction of inspection.
I was interested to hear the noble Lord remark that he thought the best authorities might see a 25 per cent reduction in inspections, although until today there has been talk of a reduction of around 50 per cent. This is an extremely important issue.
I read with interest what was said by the Prime Minister last weekend. He commented that he was keen to take Labour policy forward on the delivery of services by imposing fewer targets, carrying out fewer inspections and thus spending more money on the services themselves. This amendment would help in that process by enabling the Government, in their dealings with local government, to provide greater freedoms. Although there were some thoughtful words from the noble Lord, Lord Bassam, we did not hear all that we wanted to hear.
I turn now to the structure of local government in this country. It is quite absurd that we have to retain such a totally rigid structure for local government. The noble Baroness, Lady Hamwee, mentioned that there was a clause to exempt, but that applies only to very small district authorities which do not have to make provision in many service areas. By contrast, large authorities must have 10 cabinet members; they cannot have 11 or 12, although for larger authorities it would be much better if they could operate with a degree of flexibility on such matters. In the amendment we suggest that good authorities should be allowed to experiment.
As I have said, it is absurd that in a country of this size, with some 50 million people, that there is only one system of local government. No other country in the world has such a rigid structure. Elsewhere people are allowed to introduce their own systems of management within a guidance framework. This approach is objectionable and 447 demonstrates the fact that national government do not trust local government. Greater trust is a theme that I should like to see pursued in this legislation.
On this side noble Lords feel strongly that some of these matters should be included in the Bill, so I shall now test the feeling of the House on this proposed new clause.
§ 12.6 p.m.
§ On Question, Whether the said amendment (No. 4) shall be agreed to?
§ Their Lordships divided: Contents, 101; Not-Contents, 138.448
|Division No. 1|
|Aberdare, L.||McColl of Dulwich, L.|
|Ackner, L.||MacGregor of Pulham Market, L.|
|Anelay of St Johns, B.|
|Astor of Hever, L.||Marlesford, L.|
|Attlee, E.||Mayhew of Twysden, L.|
|Baker of Dorking, L.||Miller of Hendon, B.|
|Biffen, L.||Montrose, D.|
|Blackwell, L.||Mowbray and Stourton, L.|
|Blatch, B.||Naseby, L.|
|Bowness, L.||Noakes, B.|
|Brooke of Sutton Mandeville, L.||Northesk, E.|
|Burnham, L.||Norton of Louth, L.|
|Byford, B.||O'Cathain, B.|
|Campbell of Alloway, L.||Palmer, L.|
|Carlisle of Bucklow, L.||Peel, E.|
|Carnegy of Lour, B.||Peyton of Yeovil, L.|
|Chalfont, L.||Pilkington of Oxenford, L.|
|Cooke of Islandreagh, L.||Platt of Writtle, B.|
|Cope of Berkeley, L.[Teller]||Plumb, L.|
|Crickhowell, L.||Plummer of St. Marylebone, L.|
|Cuckney, L.||Pym, L.|
|Denham, L.||Quinton, L.|
|Dixon-Smith, L.||Quirk, L.|
|Dundee, E.||Rawlings, B.|
|Elles, B.||Reay, L.|
|Elliott of Morpeth, L.||Rees, L.|
|Emerton, B.||Renton, L.|
|Feldman, L.||Roberts of Conwy, L.|
|Ferrers, E.||Ryder of Wensum, L.|
|Flather, B.||Saatchi, L.|
|Fookes, B.||Saltoun of Abernethy, Ly.|
|Forsyth of Drumlean, L.||Sanderson of Bowden, L.|
|Freeman, L.||Seccombe, B. [Teller]|
|Gardner of Parkes, B.||Selkirk of Douglas, L.|
|Geddes, L.||Selsdon, L.|
|Glentoran, L.||Sharpies, B.|
|Gray of Contin, L.||Shaw of Northstead, L.|
|Hanham, B.||Skelmersdale, L.|
|Hanningfield, L.||Soulsby of Swaffham Prior, L.|
|Harris of Peckham, L.||Stokes, L.|
|Hayhoe, L.||Strange, B.|
|Higgins, L.||Strathdyde, L.|
|Hodgson of Astley Abbotts, L.||Swinfen, L.|
|Howe, E.||Thatcher, B.|
|Howell of Guildford, L.||Thomas of Gwydir, L.|
|Jenkin of Roding, L.||Trefgarne, L.|
|Knight of Collingtree, B.||Trumpington, B.|
|Lane of Horsell, L.||Ullswater, V.|
|Lang of Monkton, L.||Vivian, L.|
|Luke, L.||Wade of Chorlton, L.|
|Lyell, L.||Walker of Worcester, L.|
|Acton, L.||Irvine of Lairg, L.|
|Addington, L.||Janner of Braunstone, L.|
|Alderdice, L.||King of West Bromwich, L.|
|Alli, L.||Lea of Crondall, L.|
|Alton of Liverpool, L.||Lester of Herne Hill, L.|
|Amos, B.||Linklater of Butterstone, B.|
|Andrews, B.||Lipsey, L.|
|Archer of Sandwell, L.||Lockwood, B.|
|Ashton of Upholland, B.||Lofthouse of Pontefract, L.|
|Bassam of Brighton, L.||McCarthy, L.|
|Berkeley, L.||Macdonald of Tradeston, L.|
|Bernstein of Craigweil, L.||McFarlane of Llandaff, B.|
|Billingham, B.||McIntosh of Haringey, L.|
|Blood, B.||McIntosh of Hudnall, B.|
|Borrie, L.||MacKenzie of Culkein, L.|
|Bradshaw, L.||Mackenzie of Framwellgate, L.|
|Brett, L.||McNally, L.|
|Brooke of Alverthorpe, L.||Maddock, B.|
|Brookman, L.||Maginnis of Drumglass, L.|
|Burlison, L.||Mar and Kellie, E.|
|Carter, L.||Marsh, L.|
|Chan, L.||Masham of Eton, B.|
|Christopher, L.||Massey of Darwen, B.|
|Clarke of Hampstead, L.||Miller of Chilthorne Domer, B.|
|Clinton-Davis, L.||Mitchell, L.|
|Cohen of Pimlico, B.||Morgan, L.|
|Corbett of Castle Vale, L.||Nicol, B.|
|Crawley, B.||Paul, L.|
|Dahrendorf, L.||Pendry, L.|
|David, B.||Pitkeathley, B.|
|Davies of Coity, L.||Plant of Highfield, L.|
|Davies of Oldham, L. [Teller]||Prys-Davies, L.|
|Desai, L.||Puttnam, L.|
|Dholakia, L.||Ramsay of Cartvale, B.|
|Dixon, L.||Randall of St. Budeaux, L.|
|Dubs, L.||Redesdale, L.|
|Elder, L.||Rendell of Babergh, B.|
|Evans of Parkside, L.||Rennard, L.|
|Evans of Temple Guiting, L.||Richardson of Calow, B.|
|Ezra, L.||Rogan, L.|
|Falconer of Thoroton, L. (Lord Chancellor)||Rooker, L.|
|Sainsbury of Turville, L.|
|Falkland, V.||Sandberg, L.|
|Farrington of Ribbleton, B.||Sawyer, L.|
|Faulkner of Worcester, L.||Scott of Needham Market, B.|
|Filkin, L.||Sharp of Guildford, B.|
|Finlay of Llandaff, B.||Sheldon, L.|
|Fyfe of Fairfield, L.||Shutt of Greetland, L.|
|Gale, B.||Simon, V.|
|Gavron, L.||Slim, V.|
|Gibson of Market Rasen, B.||Stone of Blackheath, L.|
|Goldsmith, L.||Strabolgi, L.|
|Goodhart, L.||Taylor of Blackburn, L.|
|Goudie, B.||Temple-Morris, L.|
|Gould of Potternewton, B.||Thomas of Gresford, L.|
|Graham of Edmonton, L.||Thomas of Walliswood, B.|
|Greaves, L.||Tordoff, L.|
|Grocott, L.[Teller]||Tumberg, L.|
|Hamwee, B.||Turner of Camden, B.|
|Harris of Haringey, L.||Wallace of Saltaire, L.|
|Harris of Richmond, B.||Walmsley, B.|
|Harrison, L.||Watson of Invergowrie, L.|
|Haskel, L.||Weatherill, L.|
|Hogg of Cumbernauld, L.||Wedderburn of Charlton, L.|
|Hollis of Heigham, B.||Whitaker, B.|
|Howells of St. Davids, B.||Whitty, L.|
|Howie of Troon, L.||Williams of Elvel, L.|
|Hoyle, L.||Williams of Mostyn, L. (Lord President of the Council)|
|Hughes of Woodside, L.|
|Hunt of Kings Heath, L.||Woolmer of Leeds, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.449
§ 12.16 p.m.
§ [Amendments Nos. 5 and 6 not moved.]
§ Baroness Hanham moved Amendment No. 7:
§ Page 60, line 7, leave out paragraph (a).
§ The noble Baroness said: My Lords, with Amendment No. 7, I will speak to Amendments Nos. 8 and 9. Amendment No. 7 would leave out Clause 104(1)(a), which refers to local elections. Amendments Nos. 8 and 9 would leave out subsection (1)(b) and subsection (2)(b), which refer to elections to the Greater London Assembly and parish councils respectively.
§ The amendments return us to a debate that we had in Committee on the Government's stated intention to change the date of the local government elections in 2004 from their statutory position in early May. The rationale is that the local elections should coincide with the European elections in June. Consultation took place some time ago and the Government have made it clear since that they intend to implement the change. Legislative recognition of that is now being sought.
§ There are a number of reasons why the Government should not be allowed to change the date of elections, particularly those that are set in law to a precise timescale. The only election that is not set to a precise timescale is, of course, the general election; all others are set to a timescale and framework in law. The Government are proposing unaccountably to bring together the dates of the European election, the mayoral election in London, the election for the Greater London Assembly and any other local government elections that are due to take place in May 2004. Those elections are all to be lumped together and held on a date in June 2004.
§ I understand that the Government believe that that would be a one-off—presumably for the moment. However, if it can be done once, it can certainly be done again. In our view, an extremely undesirable precedent would be set. It is undesirable for a number of reasons, not only constitutional and practical, but relating to principle and motive. As I said, constitutionally, dates of elections are set in law by Parliament; they should not be moved lightly. Indeed, they should not be moved unless there is a major emergency. Your Lordships will remember the foot and mouth catastrophe, when it was agreed on a cross-party basis that it was inconceivable that the elections should be held when a great number of people who would be voting were unable to leave their houses because of the restrictions that were in force at that time. But that is not the case here. The only reason seems to be that voters may not want to turn out twice in a short period—five weeks, in fact. But they have done so in the past and I have no doubt that they could manage to do so again.
§ If voter turnout is a concern—and indeed it is to all of us—that will not necessarily be resolved by having a whole lot of elections put together that are all done on a different basis. This is not even about elections all 450 to be carried out on first past the post; each one will be carried out in a different form. They will involve a number of policies and projects.
§ However, the overriding concern is that any government should feel able to change elections when they think that they have a rational reason to do so. If we do not stop this now, we feel that the Government will return to it in future on the basis of low turnout or it being more convenient, saying, "Oh, let us not worry about returning officers having to deal with several forms of election at the same time; that just looks convenient". That may be convenient for some people—and some voters—but I suspect that most voters would rather stick to the principles enshrined in law and would perfectly willingly turn out in the usual way for two elections. There should be no suggestion that those elections should be brought together. I beg to move.
§ Baroness Hamwee
My Lords, it is perhaps proper that I declare my interest. I will be a member of my party's list for the London-wide vote in the London Assembly election, so I have a quite substantial interest; if I am not elected, I will have drawn another month's salary by virtue of the provision, if enacted. The noble Baroness said that voters have done it in the past, but the problem is that they have not necessarily done so in great numbers.
For me, the overriding issue in what is a difficult situation—I do not minimise the noble Baroness' point about different electoral systems, and so on—is what is convenient for voters. Although I thoroughly enjoy elections, it is pretty obvious that voters do not like being asked to keep on turning out. I am not sure that the balance is overwhelming. The overriding consideration is voters' convenience, but it is a difficult judgment. That is the long and short of it.
The noble Baroness talks about principles being forfeited. I find it difficult to see what principle is forfeited. Of course I agree that governments should not be allowed on a whim to move election dates around. I should like—this is our clear party policy—fixed dates for general elections. This will not be on a whim but to co-ordinate elections that would otherwise come inconveniently close to one another.
§ Lord Forsyth of Drumlean
My Lords, I had not intended to speak to the amendment, although I certainly support it, but I am moved to respond to the speech that we have heard from the Liberal Benches—I say, "Liberal" because people might be amazed to hear such a speech from those Benches. Those people who choose not to vote in elections are often expressing as much of a view as those who do. Recently, in elections for the Scottish Parliament, half the voters did not turn out because they were so disgusted by the performance of the Scottish Parliament—in particular, by the cost of its building, which had risen from £40 million to £400 million.
Perhaps the advocates of constitutional reform on the Liberal Democrat Benches might reflect that many of their innovations have resulted in complete disillusion on the part of voters and fragmentation of 451 our parliamentary system. It is not the voters' problem that they cannot be bothered to turn out; the problem is that there has been so much constitutional tinkering and meddling that voters have become completely confused and cynical about the political process.
Far from changing the dates of elections so that the manifest dismay on the part of voters is hidden—which is what the Government's proposals amount to—surely those who advocated constitutional change and setting up more and more bodies of politicians should reflect on what they have brought about and show some respect for the established traditions and way in which we have carried out our electoral process with considerable success, until the tinkering which came from Charter 88 and its friends got us into this mess.
§ Baroness Maddock
My Lords, I, too, did not intend to speak to the amendment, but I find it extraordinary that matters that have been decided through election—especially the Scottish Parliament—are now considered to be tinkering by people on the edges.
§ Lord Bassam of Brighton
My Lords, I cannot resist a quiet chuckle on this one, but I will stick to the point.
We disagree with the amendments because they would remove the Secretary of State's ability, in different combinations, to move the date of elections to district councils, parish council elections and elections for the Lord Mayor—sorry, the London mayor; although that is a dream is it not?—and the Greater London Assembly. If we accepted Amendment No. 7, we could move only the GLA elections but not parish or local elections; if we accepted Amendment No. 8 we could move only the local and parish elections but not the GLA elections; and if we accepted Amendment No. 9, we could move only the local and GLA elections but not combine parish elections with them on 10th June.
The accusation was made that we were acting willy-nilly. That is just not the case. We consulted on moving the local, GLA and parish elections in order to combine them with the European Parliament elections. We received support for moving all three sets. Most respondents agreed—172 out of a total of 310 who expressed a preference. Many of those were local authorities and ordinary members of the public. Also, it must be put on record, two of the three major political parties agreed—a position reflected in this debate. The Local Government Association supported our proposal, as did the National Association of Local Councils—a body that supports and encourages parish councils.
We judge that that support is sufficient to justify our view that we should put the needs of voters first and reject the inconvenience of asking the electorate to turn out twice in five weeks. In an age in which we are concerned about participation in the electoral process, it would be absurd to do otherwise than to have those elections on the same day in 2004. The amendments would wreck Clause 104 and run wholly counter to the perfectly logical aim of increasing voter convenience.
452 I greatly respect the views of the noble Baroness. Lady Hanham, on local government, but I cannot support what she proposes. I cannot see how she can justify ignoring the support that we have identified in our consultation exercise. I cannot resist making this point: it is not as though we are abandoning wholesale a set of local authority elections. That is not something that this party has a track record of doing; as I look at those on the Benches opposite. I recall that that is something that they delighted in doing some years ago.
We are trying to encourage electoral participation in what is an important set of local and national elections. All parties should have it within themselves to encourage maximum participation. I heard what the noble Lord, Lord Forsyth, said about that: that people were exercising the option of abstention to express their disagreement with a particular Parliament. That is his view; he is entitled to it. We should encourage participation and try to do all we can to undermine what I would argue sometimes happens in politics, that is the "cynicisation" of the proces. As politicians we have nothing to gain by encouraging that.
§ Lord Forsyth of Drumlean
My Lords, I am most grateful to the Minister. However, the Minister did refer to me and before he sits down, I should like to raise a serious issue.
In the Scottish elections the Electoral Commission spent large sums of public money running advertising campaigns. In the advertisements, the commission said that if you do not vote, it means you do not care about the health service or about public education. As the Labour Party would be disadvantaged if there were a low turnout, I think that is of questionable propriety. Many of the people who did not vote did not do so because they did not care about the services, they were expressing a particular view. The notion that turnout as such is something which should be encouraged is right. However, many people are actually expressing a view by deciding not to vote in particular elections.
§ Lord Bassam of Brighton
My Lords, the noble Lord, Lord Forsyth of Drumlean, makes a perfectly valid point. Incidentally, I think the Electoral Commission has done good work and its independence is something we should be proud of and value. There were those who questioned whether a commission could ever be independent. I applaud them for encouraging people to vote. As the noble Lord said, turnout is very important and an acid test of effective elective democracy. That is something we should all encourage. However, he is right to say that people have a right to abstain and to express a view in that way. One has to respect that.
§ Baroness Hanham
My Lords, I thank the Minister for his reply. If he had only 310 responses to the consultation, then I am slightly concerned. How many 453 authorities are there in this country and how many organisations are there that deal with local government? It seems to me quite extraordinary.
There is a point that the Minister did not mention about the Electoral Commission. We may get to it by the next amendment, it depends on how we get on with this one. I have a copy of the Electoral Commission's response to the consultation paper, and the response to the proposals is hardly glowing. It would be fair to say that the Electoral Commission has the greatest possible reservations about what the Government are doing. I have the paper here and if the Minister wishes to take that point from it, he can.
It is very clear from the Electoral Commission's response that it feels that this proposal is fraught with hazard. It is fraught with the hazards which, to some extent, I have already outlined. It is a perfectly reasonable suggestion that there should be a greater voter turnout. However, what about voter confusion? We have a very sophisticated electorate, but why should it have to try to decide between two or three—and in London three or four—forms of voting? Why should it be pestered with different pieces of paper and propaganda for the same day? My view is that the more you try to do on one day, the less likely it is the electorate will turn out. Voters will simply throw their hands up in despair and say, "Why should we even bother?".
The only rationale for this proposal that I have heard from the Minister today is that it will increase voter turnout. I do not agree with that. I do not think the Electoral Commission feels that the proposal will achieve anything. I think there are real problems about having legislative dates for elections and then changing them. I am sure this Government are benign. There could be other governments that are not benign. While I do not suggest any question of governments abandoning elections, I think that tinkering with election dates looks very curious. I wish to test the opinion of the House.
§ 12.35 p.m.
§ On Question, Whether the said amendment (No. 7) shall be agreed to?
§ Their Lordships divided: Contents, 97; Not-Contents, 142.455
|Division No. 2|
|Aberdare, L.||Camegy of Lour, B.|
|Anelay of St Johns, B.||Chalfont, L.|
|Astor of Hever, L.||Cooke of Islandreagh, L.|
|Attlee. E.||Cope of Berkeley, L. [Teller]|
|Biffen, L.||Cox, B.|
|Blackwell, L.||Crathome, L.|
|Blatch, B.||Crickhowell, L.|
|Bowness, L.||Croham, L.|
|Bridges, L.||Cuckney, L.|
|Brooke of Sutton Mandeville, L.||Denham, L.|
|Burnham, L.||Dixon-Smith, L.|
|Byford, B.||Dundee, E.|
|Carlisle of Bucklow, L.||Eden of Winton. L.|
|Elks, B.||Northesk, E.|
|Elliott of Morpeth, L.||Norton of Louth. L.|
|Feldman, L.||O'Cathain. B.|
|Ferrers, E.||Peel, E.|
|Flather, B.||Pilkington of Oxenford. L.|
|Fookes, B.||Plan of W'rittle, B.|
|Forsyth of Drumlean, L.||Plumb, L.|
|Freeman, L.||Plummer of St. Marylebone, L.|
|Gardner of Parkes, B.||Quinton. L.|
|Geddes, L.||Rawlings, B.|
|Glentoran, L.||Reay, L.|
|Gray of Conlin, L.||Renton. L.|
|Hanham, B.||Roberts of Conwy. L.|
|Hanningtield, L.||Ryder of Wensum, L.|
|Harris of Peckham, L.||Saatchi, L.|
|Hayhoe, L.||Saltoun of Abernethy, Ly.|
|Higgins. L.||Sanderson of Bowden, L.|
|Hodgson of Astley Abbotts, L.||Seccombe, B. [Teller]|
|Howell of Guildford, L.||Selkirk of Douglas. L.|
|Jellicoe, E.||Selsdon, L.|
|Jenkin of Roding, L.||Sharpies, B.|
|Knight of Collingtree, B.||Shaw of Northstead, L.|
|Lane of Horsell. L.||Skelmersdale, L.|
|Luke, L.||Soulsby of SwafTham Prior. L.|
|Lyell. L.||Stokes, L.|
|McColl of Dulwich, L.||Strathclyde, L.|
|McFarlane of Llandaff, B.||Sutherland of Houndwood, L.|
|MacGregor of Pulham Market, L.||Swinfen. L.|
|Marlesford. L.||Thatcher. B.|
|Mayhew of Twysden, L.||Thomas of Gvvydir, L.|
|Miller of Hendon, B.||Tombs, L.|
|Monson, L.||Trumpington, B.|
|Montrose, D.||Ullswater, V.|
|Mowbray and Stourton, L.||Vivian, L.|
|Noakes, B.||Walker of Worcester. L|
|Acton, L.||Donnand of Easington, L.|
|Addington, L.||Dubs. L.|
|Alderdice, L.||Eider. L.|
|Alli, L.||Elis-Thomas. L.|
|Amos, B.||Evans of Parkside. L.|
|Andrews, B.||Evans of Temple Guitirk, L.|
|Archer of Sandwell, L.||Ezra. L.|
|Ashton of Upholland, B.||Falconer of Thoroton, L. (Lord Chancellor)|
|Bassom of Brighton. L.||Farrington of Ribbleton, B.|
|Berkeley, L.||Faulkner of Worcester, L.|
|Bernstein of Craigweil, L.||Filkin, L.|
|Billingham, B.||Finlay of Llandaff, B.|
|Blackstone, B.||Fyfe of Fairfield. L.|
|Boothroyd, B.||Gale, B.|
|Borne, L.||Gavron, L.|
|Bradshaw, L.||Gibson of Market Rasen. B.|
|Brett, L.||Goldsmith, L.|
|Brooke of Alverthorpe, L.||Goudie, B.|
|Brookman, L.||Gould of Pottemewton, B.|
|Burlison, L.||Graham of Edmonton, L.|
|Campbell-Savours, L.||Greaves, L.|
|Carter, L.||Grocott, L. [Teller]|
|Chan, L.||Hamwee, B.|
|Christopher, L.||Harris of Haringey, L.|
|Clarke of Hampstead, L.||Harris of Richmond, B.|
|Clinton-Davis, L.||Harrison, L.|
|Cohen of Pimlico, B.||Haskel, L.|
|Corbett of Castle Vale, L.||Hogg of Cumbemauld, L.|
|Crawley, B.||Hollis of Heigham, B.|
|Dahrendorf, L.||Holme of Cheltenham, L.|
|David. B.||Howells of St. Davids, B.|
|Davies of Coity, L.||Hoyle, L.|
|Davies of Oldham, L. [Teller]||Hughes of Woodside. L.|
|Desai, L.||Hunt of Kings Heath, L.|
|Dholakia, L.||Irvine of Lairg, L.|
|Dixon, L.||Janner of Braunstone. L.|
|Judd, L.||Redesdale, L.|
|King of West Bromwich, L.||Rendell of Babergh, B.|
|Lea of Crondall, L.||Rennard, L.|
|Lester of Herne Hill, L.||Rogan, L.|
|Link later of Butterstone, B.||Rooker, L.|
|Lipsey, L.||Sandberg, L.|
|Lockwood, B.||Sawyer, L.|
|Lofthouse of Pontefract, L.||Scott of Needham Market, B.|
|McCarthy, L.||Sharp of Guildford, B.|
|Macdonald of Tradeston, L.||Sheldon, L.|
|McIntosh of Haringey, L.||Shutt of Greetland, L.|
|McIntosh of Hudnall, B.||Simon, V.|
|MacKenzie of Culkein, L.||Stone of Blackheath, L.|
|Mackenzie of Framwellgate, L.||Strabolgi, L.|
|McNally, L.||Taylor of Blackburn, L.|
|Maddock, B.||Temple-Morris, L.|
|Mar and Kellie, E.||Thomas of Gresford, L.|
|Masham of Ilton, B.||Thomas of Walliswood, B.|
|Massey of Darwen, B.||Tope, L.|
|Miller of Chilthorne Domer, B.||Tordoff, L.|
|Mitchell. L.||Turnberg, L.|
|Morgan, L.||Turner of Camden, B.|
|Moms of Aberavon, L.||Uddin, B.|
|Nicol, B.||Wallace of Saltaire, L.|
|Ouseley, L.||Walmsley, B.|
|Patel of Blackburn. L.||Walpole, L.|
|Paul, L.||Warnock, B.|
|Pendry, L.||Watson of Invergowrie, L.|
|Pitkeathley, B.||Weatherill, L.|
|Plant of Hig,hfield, L.||Whitaker, B.|
|Prys-Davies, L.||Whitty, L.|
|Put tnam, L.||Williams of Elvel, L.|
|Radice, L.||Williams of Mostyn, L. (Lord President of the Council)|
|Ramsay of Cartvale, B.|
|Randall of St. Budeaux, L.||Woolmer of Leeds, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 12.45 p.m.
§ [Amendments Nos. 8 and 9 not moved.]
§ Baroness Hanham moved Amendment No. 10:
Page 61, line 8, at end insert ", provided that the conditions in subsection (6A) below have been complied with.
(6A) In consulting the Electoral Commission under subsection (5) above, the Secretary of State must invite the Commission to report publicly on whether, in their view, the making of an order under this section is likely to—
The noble Baroness said: My Lords, I alluded in my final remarks on the previous amendment to the Electoral Commission—the Government's own creature—the views of which are extremely important in terms of electoral progress and probity. A little while ago I asked the Electoral Commission for its views and received a perfectly public document—that is, its response to the consultation paper.
It is fair to say that the Electoral Commission has considerable reservations in regard to these proposals. Its reservations are important because they relate to the constitutional principle of changing the dates fixed in law 456 by Parliament; the complexities for the voters of the range of votes and electoral systems; the risk of confusing or obscuring the issues at stake in each of the elections; and the difficulty for returning officers of conducting several elections, particularly with different voting systems.
The Electoral Commission has stated that it sees the potential benefits as the possibility of maximising voter turn-out and removing the inconvenience for electors and party workers of two separate polls within five weeks. But, as far as I can see, those are the only two benefits. The others are overtaken by the concerns it expresses.
The amendment seeks to ensure that the views of the Electoral Commission are taken again—because, I understand, there should be a second consultation—and that those views are made widely known. I beg to move.
§ Lord Harris of Haringey
My Lords, I declare an interest as someone who will be contesting the elections next summer.
Cynicism is, unfortunately. part of my personality make-up. I have listened with enormous interest to the contributions made by both the noble Baroness. Lady Hanham, just now and. a few minutes ago, by the noble Lord, Lord Forsyth, who, I regret to say, is no longer in his place. The noble Baroness displayed an enormous respect for the Electoral Commission, whereas her colleague, the noble Lord, Lord Forsyth, a few minutes ago said that it was a dreadful organisation which promoted increased turn-out in elections.
I wonder what is the purpose of the amendment. It requires the Electoral Commission to produce a report—a report which, I suspect, will be something of a no-brainer. In London, for example, if elections are combined, electors going to the polls will be asked to mark ballot papers five times; they will be given three separate pieces of paper; and candidates will be elected under four different electoral systems. If you present a detailed report on whether or not that is potentially confusing and require the Electoral Commission to publish it—and, no doubt, spend an enormous amount of money in so doing—you are actually seeking to frighten people from going to the polls. If we end up with a great debate about how complicated voting will be in the elections next summer—because it is all so difficult with the different systems and different ballot papers—we will succeed in putting off people and reducing the overall level of turn-out.
We can have enjoyable debates in the House about the mechanisms of the D'Hondt system for allocating additional members and how the system will work, but that does not matter to the people who are voting. They want to know, quite simply, that they go to the polling station, or vote by post, or whatever it may be, and that they cast their vote for the parties of their choice. It is as simple as that. That is all they have to do. That is the only message that is required. The more that public organisations, politicians and other opinion formers seek to tell people that this process is 457 very complicated and difficult and that they will find it hard to express their point of view when they get there, the more likely it is that we will have a reduced turnout.
The reality is that this amendment calls for a report to be published—I do not know at what expense—which will tell us something we already know but in a way that will increase the sense that these elections are somehow difficult and to be avoided. The amendment has an underlying strand running underneath it. The noble Lord, Lord Forsyth, let the cat out of the bag earlier when he said, essentially, that it is Conservative Party policy to depress turnout whenever possible, because higher turnouts favour the Labour Party.
If that is the motivation, fine. Let us be explicit about that. The amendment is about confusing the electorate by telling them that voting is difficult. I do not believe it to be worthy of the support of your Lordships' House.
§ Lord Bassam of Brighton
My Lords, the amendment sets out a range of issues about which the Secretary of State would be obliged to invite the views of the Electoral Commission. Although I reject the need for the amendment, for reasons that I will explain, at least it shows that the noble Baroness, Lady Hanham, is thinking a little more constructively.
I listened with interest to what the noble Lord, Lord Harris of Haringey, had to say about the matter. I think that he is right. There is a tendency to talk down turnout, which is the danger of this amendment and may explain the politics that lie behind it.
I want to focus on the constructive and make it plain that we as a Government value the view of the Electoral Commission. It is important, otherwise we would not have sought to create a commission in the first instance. The commission's views could be embarrassing to the Government. It could be interpreted as being in disagreement with the Government, but it was established to have independent view. We welcome the commission's comments. That is why we consulted the commission on the principle of this particular combination, why we have regular exchanges and why we will consult it about any orders moving the date or amending the rules necessary for the conduct of the combined elections before putting them before Parliament.
We reject the need for Amendment No. 10. We want the commission to report its views on these issues in its own way reflecting its impartiality. Indeed, the commission has commented on all of the issues raised in the amendment, so requiring it to do so is mysteriously superfluous.
Some important things were said in the Electoral Commission's response. It was recognised that combining elections could be beneficial and would help to maximise the turnout. It would also remove the inconvenience factor for voters, and for party workers and activists in terms of running two separate sets of elections within five weeks—we know how inconvenient that can be. We wholly agree with the commission. I continue to be puzzled about why members of the party opposite are so opposed to having two elections on one 458 day. It is not as if they were not involved in the great experiment. In 1979, there was a very high turnout for the local elections that were held on same day as the general election.
The noble Baroness, Lady Hanham, is a member of the party that ensured that there was a combination election on that occasion. and I do not remember them trotting off to seek consultation. They were happy with the outcome, as they were with the outcome whenever there have been other combinations of elections during the period that they were in office.
The commission was plain about its concern about the risk of confusing or obscuring the issues at stake in different elections. There is a need to explain the different voting systems to the public as well as the practical difficulties for returning officers and their staff of administering a combined election, especially when different voting systems are used. Those are issues that we and others—including the commission and electoral administrators—are addressing.
We accept that there are areas of concern, but we do not accept that they should prevent us from combining elections. We can address the issues that have been raised and will continue to have a dialogue with the commission on those matters. We have already discussed the benefits of combining elections, so we think that the amendment is superfluous. I hope that the noble Baroness, Lady Hanham, will feel able to withdraw it.
§ Baroness Hanham
My Lords, I thank the Minister for that reply. I am not sure whether to thank the noble Lord, Lord Harris of Haringey, for his contribution, because it was unusually unworthy. To play down turnout is certainly not something that my party is trying to do. It would be hard to do such a thing, because turnout in local elections keeps going down. To reduce turnout would not be to anyone's benefit.
I refer briefly to the Minister's comment about 1979. We were on a different playing field then. The 1979 general election was held on the date of the local elections, which had already been set. Although the two elections were combined, they were held on the same basis—first past the post. What has happened in the interim is that there is now a great run to adopt proportional representation, but not a proportional representation that has any logic. We have several varieties taking place on the same day.
The purpose of this amendment, and also the purpose of the previous debate, is to try to draw attention to the fact that there is a great deal of incoherence about what is predicated for June 2004. It is unsatisfactory that the Government can set about changing the dates of elections for not terribly good reasons. It will be interesting to see whether voter turnout is affected by the manner in which the elections are conducted. Having said that, I do not intend to pursue the matter further and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 11 not moved]459
§ "DISCHARGE OF FUNCTIONS
A member of a local valuation tribunal is not liable for anything done or omitted in the discharge or purported discharge of his functions as a member of that tribunal unless the act or omission is shown to have been in bad faith.
§ The noble Baroness said: My Lords, this amendment concerns members of local valuation tribunals. I raised this matter in Committee, and having looked at what the noble Lord, Lord Bassam of Brighton, said at that time, and following discussions with representatives of LVTs, I wish to pursue it further to see whether we can clarify the position.
§ Over many years, LVT members have expressed serious concern about their potential liability should a disaffected appellant decide to bring an action against them. It is an accepted fact that judges enjoy immunity from suit. Likewise, arbitral and administrative tribunals have long been held to have judicial immunity at common law. The LVT members accept that, as tribunal judiciary, they also have immunity in respect of their judicial function and their judicial decisions.
§ LVT members are concerned, however, about the amount of protection that they would have should they be attacked as a result of their decisions or their involvement in administrative functions. Such functions may not be directly related to the hearing of a case, but about which an aggrieved person may have a complaint—a claim of being disadvantaged by an adverse agenda setting or alleged administrative mismanagement, for example. That is the issue.
§ The position of arbitral tribunals has been clarified. Parliament, in its wisdom, decided to accept the advice provided to it by the Department of Trade and Industry's Departmental Advisory Committee on Arbitration Law. To remove any doubt, Section 29(1) of the Arbitration Act 1996 clarifies the situation. My amendment is based on the wording of that Act.
§ In like manner, members of LVTs also carry out both a judicial function, and frequently, administrative functions to support it. The Government's position, which was clarified in Committee, is that it is standard practice for departments sponsoring non-departmental public bodies to indemnify their members and staff against costs arising from or incurred while carrying out their official functions. However, there is a caveat to that indemnity, which was clarified again for us in Committee by the noble Lord, Lord Bassam. The caveat is that the indemnity is available only where they are seen not to have acted recklessly. The problem is that that is another variation of the imprecise wording which has been used at various times. Other examples include, "conduct has not been unreasonable", "acted reasonably", "acted responsibly" and "not acted in bad faith".
§ Local valuation tribunal members must therefore rely on the Civil Service being sufficiently kind to interpret such imprecise wording in a way that provides local valuation tribunal members with proper indemnity in relation to any action that might be 460 brought against them and to decide quickly on whether the indemnity is to be provided. Unpaid volunteer members of local valuation tribunals are very apprehensive about being reliant on such a system. Clerks and tribunal support staff will continue to be covered effectively as employees. However, even post-2004, local valuation tribunal members will continue to be locally appointed and subject to regulatory supervision by the Secretary of State. They will have no direct connection with the new non-departmental public body and the new valuation tribunal service.
§ If the current arrangement is continued, civil servants and/or politicians would take the final decision on whether to indemnify. They appear not to be able to settle, as I explained, on a precise test for that support or to agree on the wording. I therefore maintain that the procedure is not very transparent. More importantly, the process could take quite a long time and could even go to judicial review.
§ All the concerns of local valuation tribunal members could be removed by the simple expedient of Parliament statutorily confirming that the current common law judicial immunity is extended to include administrative matters. The Government seem very concerned—I know that the noble Lord, Lord Bassam, raised this in Committee—about the possible financial consequences of such action. However, immunity can prevent actions from being initiated. It could therefore prevent some of the problems that we may get anyway.
§ I think that I have fairly fully explained the situation. As I said, the wording of the amendment is in line with wording in another Act covering this type of issue. The inclusion of this clause would remove the anxiety from the minds of local valuation tribunal members. Like members of the service, I believe that it will reduce the possibility of a tribunal's decisions being affected by the fear of potential action. I beg to move.
§ 1 p.m.
§ Lord Bassam of Brighton
My Lords, as I think I made plain in Committee, I do not see a need for such amendment. Amendment No. 12 seeks to introduce into legislation a clause to remove any liability from members to local valuation tribunals for any acts or omissions by them while undertaking their tribunal functions, unless those were in bad faith. Members holding office have public policy immunity from an action in negligence. Similar protection already exists for members of local valuation tribunals through the standard procedures governing the relationship between public bodies and their sponsoring departments. Departments will indemnify members against any personal civil liability provided they have acted honestly, reasonably, in good faith and without negligence. That seems to me to cover it.
Furthermore, Clauses 106 and 107 are primarily concerned with the creation of a new body, the valuation tribunal service, and the framework for that new body. They are not about local valuation tribunals. Ultimately, therefore, I think that it is inappropriate to introduce 461 such a new clause. We have had no complaints about the way in which the current system works on this issue. Although I realise that the noble Baroness wants to provide a further comfort blanket for members of the service, we do not think that that is necessary. If a problem emerges in future, we can review the situation and deal with it then. I do not think that this amendment is required and I hope that the noble Baroness will feel able to withdraw it.
§ Baroness Maddock
My Lords, I thank the Minister for his next to last comment—that the Government will keep an eye on the situation and ensure that there are no problems. The purpose of the amendment is not to provide a total blanket, but to clarify that we are talking about the words "bad faith" and not all the other descriptions used in this regard. However, in view of the Minister's comments, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Hanham moved Amendment No. 13:
Before Clause 113, insert the following new clause—
§ "REGULATION OF BODY PIERCING ESTABLISHMENTS OUTSIDE LONDON
§ "36A REGULATION OF BODY PIERCING ESTABLISHMENTS OUTSIDE LONDON
- (1) The Secretary of State shall, within twelve months of this section coming into force, by regulation make provision for the extension of powers to all local authorities in England to regulate establishments carrying out body piercing.
- (2) Powers under this section to make regulations shall be exercisable by statutory instrument.""
§ The noble Baroness said: My Lords, this amendment was first moved in another place by my honourable friend Philip Hammond. I understand that it is appropriate to raise this issue within the terms of this Bill. I do so only because I seek some assurances. When I briefly mentioned the issue at Second Reading and—because of Mr Hammond's concerns—asked for an assurance that Ministers were considering it, some noble Lords quizzically raised their eyebrows. The Minister in another place, Mr Nick Raynsford, said that discussions were taking place. I wonder whether there has been any progress on those talks and where we go from here. I also realise that my amendment may not be drafted correctly. If so, I am willing to take advice.
§ Body piercing may seem an odd issue to raise. However, increasing numbers of people, particularly young people, are undergoing the procedure. All parts of the body can end up with bits and pieces stuck through them. The procedure is undertaken also by some who are not quite so young. No one is concerned at all about that; it is up to them. We are simply concerned about whether those doing the piercing are under any form of regulation or licence.
§ We are concerned for several reasons. First, it is an invasive procedure that involves needles and should involve sterile procedures and a hygienic location. I think that parental consent also should be required in 462 the case of those in their early teens, and certainly those under 16. Such consent is currently not required. The Greater London Authority Act regulates the procedure in London, where all premises carrying out such procedures are regulated and licensed. As I understand it, however, that is not the position in the rest of the country.
§ Therefore, several issues arise, the first of which is consent. The second is the need to ensure that these establishments maintain clean and sterile procedures. People have contracted septicaemia when the procedure was performed in unclean conditions. There is also the issue of whether young people should be allowed to have their bodies abused in this way without their parents being informed and giving consent. Furthermore, those performing the procedure ought to know that the procedure can affect various medical conditions. That issue was brought to the attention of another place as the result of the death of a young man of 17 who had a congenital heart defect. Those performing the procedure were unaware of his condition. He contracted septicaemia, to which he was susceptible as a result of congenital heart disease, and he died.
§ That is the burden of the amendment. The amendment asks that, within a reasonable time—the amendment provides for one year—regulations be issued to ensure that premises cannot carry out these procedures without being regulated. However, I do not want anyone to say that I am trying to stamp on anyone's enthusiasm for self-decoration. It is just that if they are going to undergo the procedure, they should survive it. I beg to move.
§ Baroness Hamwee
My Lords, we support the noble Baroness: she raises an important point. When the noble Baroness responds, I wonder whether she can give us any idea of how well the system is operating in London. Also—and I am sure that this is dear to her heart—can the noble Baroness say, bearing in mind that we are not looking for a straight read across, whether the current regime requires fees to be paid and whether they cover the costs of local authorities in undertaking the licensing? The noble Baroness may not know and I appreciate that. Although it is important, it is not so important as ensuring people's health and their survival.
When dealing with the matter in another place, the Minister raised a concern about there being two different regulatory regimes if this measure were introduced. He said that there would be,a registration and bylaws regime for ear-piercing, tattooing, electrolysis and acupuncture and a licensing regime for body piercing".—[Official Report, Commons Standing Committee A, 13/2/03; col. 604.]
§ That is an important point to be ironed out. I hope that she will be able to say "Yes" to the fact that regulations will address and co-ordinate the regime.
§ The Minister of State, Office of the Deputy Prime Minister (Lord Rooker)
My Lords, I am grateful to the noble Baroness for raising this issue. She referred to it at Second Reading, but there was not an opportunity during Committee to discuss the matter. We are very 463 sympathetic towards the concern that local authorities outside London should have powers to regulate cosmetic body-piercing businesses.
The Government are committed to giving local authorities outside London powers to regulate cosmetic body-piercing businesses so that the position across the country is consistent. We intend to bring forward an amendment to achieve that at Third Reading.
For the record, the proposed amendment does not take into account the existing legislation, which already gives local authorities outside London powers to regulate ear piercing, tattooing, electrolysis and acupuncture. That is contained in the Local Government (Miscellaneous Provisions) Act 1982, which needs to be amended and that is what we intend to do. We also intend that local authorities outside London should have powers to regulate businesses providing micropigmentation or similar services and our amendment will cover these activities.
I do not have advice at the moment on the question of consent. It is a double-edged weapon. I have brought with me to the House today my own catalogue of sophisticated body adornment products. It contains every product that one can think of for fitting on any and every part of the human anatomy. The House is a family place so I shall not read them all out, but these products are not just for young people.
The reason I have the catalogue is that there was an occasion when an issue arose regarding parents with young children aged three or four, and even babies, wishing to have them pierced. Consent could not be given by the child and that was the issue. I walked into the studio expecting a real towelling from various people and the parents. I was met by a couple of dozen people who had ball bells hanging from all the parts of the body which I could see and they assured me that they were hanging from all the parts which I could not see. I thought "Wow, I'm in trouble here". But, no, they said that they were on my side because they were adults who had gone into the matter openly and had made a free choice. They said that they had gone to places with air conditioning, clinically clean and where business was conducted properly. They said that children should not have it done to them. Therefore, consent works both ways.
I shall take advice between now and Third Reading, which will not be for some time because of the approaching Recess, and return to the issue. I have a line to take on the age of consent, but I am not really clear whether it meets the point. We do not have any plans currently to introduce a minimum age of consent for body piercing.
But that answers only one part of the question: it does not answer the question about parents with young children who cannot give consent to be pierced for the gratification of the parents. On the same television programme I was accompanied by a consultant from a hospital in the Midlands. He spent part of his time digging out attachments to bodies. There is a serious issue if the matter is not dealt with properly.
464 In no way do we seek to curtail people's choice as regards what sophisticated body adornments they wish to have and on which parts of the body they wish to attach them. Nevertheless, it needs to be done safely and so that the attachments can be removed. It is made clear in the catalogue that some of the items are intended to be worn for a short period of time and also you must make sure that the internal diameter is correct. There are all kinds of caveats and warnings in such a catalogue. In view of the fact that I am going to return to the matter at Third Reading when I may share more of the contents of the catalogue with noble Lords, I ask the noble Baroness to withdraw her amendment.
§ 1.15 p.m.
§ Baroness Hanham
My Lords, I am extremely grateful for the Minister's reply. I am delighted to learn that there will be an amendment at Third Reading. I knew that we had got the Act wrong because I believe that the Local Government Act 1988 has been abandoned. I am tantalised by the Minister's catalogue. I did not know that he went to such lengths to conduct research. He is certainly one up on me in that regard.
If parents are voluntarily having their children pierced for the parents' gratification, that is quite difficult. My problem is those cases where children are having it done without their parents knowing about it and then running into all kinds of problems. I agree with the Minister that there are two sides to the question of consent. It may be that better brains than mine will be able to tangle with that. In the mean time, it seems to me that better brains are really tangling with the matter. I am extremely grateful and thank the Minister for his reply. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ "ADOPTION: CONSCIENTIOUS OBJECTIONS
- (1) No person employed by, working for or acting as an adviser to a local authority shall be under any duty whether by contract or by any statutory or other legal requirement to participate in—
- (a) any placement under section 18 of the Adoption and Children Act 2002 (c. 38) (placement for adoption agencies); or
- (b) any application under section 49 of that Act (application for adoption)
- (2) The grounds referred to in subsection (1) are that the placement is with, or the application is made by—
- (a) a couple who are not a married couple; or
- (b) one person who is in fact part of a couple within the meaning of section 144(4)(b) of the Adoption and Children Act 2002 (general interpretation etc).
- (3) In any legal proceedings the burden of proof of conscientious objection shall rest upon the person claiming to rely on it.
- (4) A local authority shall not treat less favourably any person who relies on subsection (1) above."
§ The noble Baroness said: My Lords. we have some wonderful professionals involved in the work of placing children for adoption. Many are excellent, competent and effective professionals. However, Dawn Jackson and Nora Ellis were hounded out of their work as social workers because they held a conscientious belief that children for adoption should be placed with married couples.
§ My amendment simply asks for a conscience clause for such people like that enjoyed by doctors as regards abortion and by teachers as regards religious belief. Neither of these conscience clauses, which have been on the statute book for quite a long time, has caused difficulties in any way either to the medical or the education professions. No employee who is otherwise good in every respect in their work should be intimidated to the point of losing their jobs. A conscience clause would therefore be a way of helping to keep excellent professionals involved in the important work of placing children for adoption. I beg to move.
§ Lord Hunt of Kings Heath
My Lords, I have some interest in this matter because noble Lords will know that we debated the change in the adoption law extensively in the previous Session of Parliament. I believe that the measures taken will lead to a very great improvement in the way in which adoption procedures are conducted. Anyone who has looked at the outcome statistics comparing children in care to the outcome for children who had been adopted would find it very hard not to conclude that we should do everything we possibly can to increase the number of children who are adopted in this country.
Whatever one's view about the issue of same-sex couples being able to adopt, I believe that most noble Lords who took part in those very extensive debates agreed that there was a very good purpose in seeking to improve adoption procedures.
I do not want to re-open the question as to whether that was the right thing to do as regards same-sex couples: I believe very strongly that it was. As regards a question of conscience undertaken by individual social workers who do not agree with such adoptions, I do not believe that it is a matter of such moment that social workers should be given that ability. I hope that noble Lords will not agree to the amendment.
I do not think—and it is a value judgment after all—that one should be able to equate a matter of conscience in relation to the abortion law to a matter of conscience in relation to gay adoption. At the end of the day it is a matter of individual decision as to how one equates the issues and whether there is a hierarchy of conscientious objection, but as this Parliament approved the new adoption law that allows same-sex couples to adopt after going through a thorough process it does not seem reasonable to pass this amendment to allow an opt-out for social workers.
As for the alleged intimidation against social workers. I would always regret any act of intimidation by an employer against an employee under any such circumstances. One would always hope that adoption 466 agencies and local authorities would be good employers and that where intimidation does take place, staff have recourse to the law. But accepting the noble Baroness's amendment would chip away at Parliament's intention when we passed the Adoption and Children Act in the last Session. I hope that noble Lords will not go down that path.
§ Lord Campbell of Alloway
My Lords, I too have something to do with the matter. I shall not take much time, because I agree with everything the noble Lord, Lord Hunt, said, especially that the amendment seeks to chip away at the clear decision by the House in which I supported the Government and was opposed by my noble friend Lady Blatch. It was one of the toughest fights in which I have been involved, but we made it and it became an Act of Parliament. To come back here and chip away at the decision of both Houses by such an amendment is not playing the game. I oppose it.
§ Lord Marsh
My Lords, one of the problems of these debates is that we all know perfectly well that most of us could go around the Chamber and work out exactly who is going to go through which Lobby; none the less we go through the debate out of politeness. Not only do we know which way through the Lobby noble Lords will go, but we could precis all the speeches that will be made on each subject.
There is a pattern, an irreconcilable division. Some believe, for religious reasons, or what they call moral reasons—by which they mean their moral reasons—that people should not be allowed to adopt children if they are homosexual. There are many arguments against this but the key issue is that everyone involved in the placing of children believes that it would be a disastrous decision because, although some people go away from the debate with a glow of satisfaction, a large number of children would fail to be placed with a loving couple.
The other issue that arises time and time again is that people who live together as opposed to having a formal marriage are somehow a sub-species. Yet the House has to recognise that a large and growing number of people, for different reasons, choose not to get married. For two and a half years my wife-to-be and I lived together because we regarded marriage as an important step that we did not want to take lightly. When we eventually did, it was primarily at the insistence of our accountants.
We do not all have the same religious beliefs and it is arrogant to seek to impose one's belief on people who do not share it on the simple grounds that. "I am right and you are wrong". I find it a sad situation that there is such intolerance of other people's opinions on these issues that many of us define as private matters for personal opinion.
§ Baroness Massey of Darwen
My Lords, I rise to say a few words about the needs of children being paramount as expressed in the UN Convention on the Rights of the Child and the Children Act. I declare an 467 interest as a co-chair of the All-Party Parliamentary Group on Children, which has considered the matter deeply.
As noble Lords have said, last autumn we debated the issue of unmarried and same-sex couples in adoption and agreed that it was right in the best interests of the child. I recall a great deal of evidence being considered during the debates and a well thought-out decision being made with the welfare of children at its heart. To attempt to go back on that decision is retrospective. I oppose the amendment.
§ Baroness Hamwee
My Lords, I agree with almost everything in the last raft of speeches. The amendment is against the background of a recent decision. We have heard of the large numbers of children in care. I add to that the difficulty that social services departments have in struggling to cope with a variety of clients' needs. In the South East one might almost say that they are at crisis point. I wonder about the management of the organisation if there were an opportunity to opt out of certain matters on this basis.
I hope that good management in a social services department, as anywhere, would mean that people were directed to their skills being used for what they are best at. A social worker with an objection to a particular matter might not be so good at it. I am not suggesting that that would be deliberate, but it is human nature.
At the last stage I asked the noble Baroness if a social worker with a problem of conscience over the issue could work in adoption at all because by definition they would have to consider the whole pool of potential adopters. I cannot equate the matter with abortion. I have been trying to work out why not. One of the reasons is that abortion is a discrete procedure with many matters surrounding it other than the medical procedure. In the case of a child seeking placement one needs to consider all the child's needs.
The amendment is about particular placements. In the light of what I have said I wonder whether it would be workable. We oppose the amendment.
§ Lord Rooker
My Lords, we have just heard six speeches in 11 minutes, so I will be as commendably brief in responding to the amendment in the name of the noble Baroness, Lady Blatch, and the right reverend Prelate, the Bishop of Winchester. It seeks to ensure that no person working for. or on behalf of, a local authority shall be under any duty, whether by contract or statutory or other legal requirement, to participate in adoption placements or processing adoption applications to which they have a conscientious objection.
That refers to cases where children are to be placed for adoption with an unmarried couple or with one person who is in fact part of a couple living together as partners in an enduring family relationship. It also covers the processing of those adoption applications.
468 As noble Lords have said, the Adoption and Children Act 2002 allows, for the first time, unmarried couples, regardless of their sexual orientation, to apply to adopt a child jointly. However, it has long been possible for a person in an unmarried relationship to apply to adopt as a single person.
Therefore, the Adoption and Children Act does not raise any fundamental new issues, and thus we do not believe that there is any need whatever to make special provision in terms of "conscientious objections" as a result of the change to enable unmarried couples to adopt jointly. Arguably, the key benefit for children of the change in the 2002 Act is that it gives a child adopted by an unmarried couple the permanence and security of having two parents.
Essentially, the proposed new clause raises an employment issue because it relates wholly to the adults concerned. As I suggested in Grand Committee, these matters are being more suitably addressed by the Employment Equality (Religion and Belief) Regulations 2003, which were approved by both Houses of Parliament on 17th June. Those regulations, when made, will prohibit discrimination in employment and vocational training on the grounds of religion or belief.
Local authorities have a clear duty to maintain an adoption service in their area that meets the needs of those who may adopt a child. That includes unmarried couples and individuals who are in fact part of a couple. The proposed new clause would make it more difficult for local authorities to meet their duties and could well lead to delays in the assessment of prospective adopters who are able to meet the needs of the children waiting for adoption. The Government believe that it is unacceptable to risk vulnerable children losing out on the chance of, or experiencing delays in, finding a new family.
The comparison drawn at the Grand Committee stage with conscientious objection to abortion is wholly unhelpful in that conscientious objection to participating in an abortion procedure often raises strong ethical issues around the sanctity of life, whereas objecting to non-married couples adopting is a matter of judgmental attitudes towards other people's lifestyles and personal choices, which. in the current times, seems entirely inappropriate. Therefore, I invite the noble Baroness, on her own behalf and on that of the right reverend Prelate, to withdraw the amendment.
§ Baroness Blatch
My Lords, I am grateful for the full answer given by the Minister. My amendment does not cut across what Parliament has decided. Parliament has made a decision, and that is that. In the case of abortion, Parliament decided; and in the case of religious education, Parliament decided. No doctor loses his job simply because he will not take part in the abortion process, and no teacher loses his job if he will 469 not take a religious assembly. Therefore, why should a social worker lose his job simply because he has a conscientious belief that children should be placed with a married couple?
The issue is simple: it is whether a professional should he refused employment on the ground of his conscientious belief. He is not imposing that belief on anyone else; he is simply saying that he does not wish to do something. He is not even arguing against the legislation—the legislation is what the legislation is.
But the logical conclusion that I draw from all that has been said in the debate is that, frankly, a professional who wishes to be involved in the adoption processes for all the right reasons—that is, because he believes it is in the interests of the child—should be refused employment if he cannot accept that children should be placed in families other than those where the parents are married. That is the logic and, if the Government are really honest, that is the law that they should pass if that is what they mean. However, I should prefer to fight for Dawn Jackson and Nora Ellis, who have been hounded out of their jobs on those grounds. I consider that to be objectionable. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Bassam of Brighton
My Lords. this may be a convenient moment to move that consideration on Report be adjourned until after Starred Questions.
§ Moved accordingly, and, on Question, Motion agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 1.34 to 2 p.m. for Judicial Business and to 3 p.m.for Public Business.]