Localism Act 2011 (Consequential Amendments) Order 2012

Lord Beecham Excerpts

Wednesday 21st March 2012 Grand Committee

[Lord Shipley]

My Lords, I thank my noble friend the Minister for the explanation of these two orders. I will speak to them both because, substantially, I have only one point to make.

I am particularly happy with the general power of competence applying to parish councils. It is absolutely right that clerks should be qualified and that there is a clear democratic mandate for the parish to undertake the general power of competence. But I have one question that relates to the duty to co-operate. I seek confirmation that there will be an application of the duty to co-operate.

One of the issues that arose when we discussed the Localism Bill was that neighbourhood planning had been addressed from a rural rather than an urban perspective. Of course it applies in both. Albeit that 1973 is a long time ago, the consequences of the policy in those days are broadly with us today. In rural areas, some parish councils were created to lie within what are now urban areas. My concern relates to a failure of a duty to co-operate between parish councils and the areas around them.

There could, for example, be a situation in which parishes have a neighbourhood plan but the adjacent non-parish area does not have a neighbourhood forum, or where a parish does not have a plan and the adjacent neighbourhood forum has been created and it does. Or there could be a situation where both the parish council and the adjacent neighbourhood forum could be contiguous and the plan of one would impact on the other. It is very important that where they both want to have a plan there is clear co-operation between the two.

There is a whole set of issues around whether urban neighbourhood councils or parish councils should be extended. That is for others to decide. But it is important, particularly in the context of the community infrastructure levy potentially applying, that a clear duty to co-operate should be imposed on parish councils and on other councils in exactly the same way that there is a duty to co-operate between neighbouring district councils.

In short, with a general power of competence, it is important that there is a general duty to co-operate as well. I simply seek the Minister's assurance that that is what is planned.

[Lord Beecham]

My Lords, I am pleased to join two fellow north-easterners in the Minister and the noble Lord, Lord Shipley, in reviewing these revisions. I certainly endorse their commending the extension of the general power of competence to parish councils.

I do, however, have questions about the detail of the proposals. I confine myself to the second instrument that the Minister proposes. My first question relates to the provision about the resolution, which will allow a council to proceed with the exercise of the general power. The council, having passed such a resolution, is able to continue to exercise that power until the next relevant annual meeting—even if, for example, it loses its clerk at some point during that period. I hesitate to say so, but parish councils do not have the highest reputation for stability in relationships between their own members or between members and clerks. They have been the source of vast numbers of complaints to the now abolished standards board. It is conceivable that a clerk, perhaps because of a disagreement or perhaps simply because he or she moves, leaves a parish council for the greater part of a four-year period. Yet the council could continue to exercise its general powers without the benefit of the kind of advice which, very sensibly, as the Minister outlined, can be secured through qualifications and training. Is it wise to allow for such a potentially long period?

There is also a transitional provision safeguarding those who have to deal with the parish council in those circumstances. I understand this. The Explanatory Memorandum states that the provision would ensure that councils,

“do not lose the incentive to continue to meet the conditions once they have initially become eligible. It also provides certainty for third parties in their dealings with parish councils as to the extent of a particular council’s powers”.

That is the point. It would seem to apply to not just existing projects but new projects to which a parish council, in between the appointment of clerks or resolutions, might embark upon. Is it all that sensible to make that provision? On similar lines, the Explanatory Memorandum points out that if a council does not pass at the “next relevant annual meeting”, for whatever reason, a resolution, either because it does not qualify through having a qualified clerk or because it changes its mind, an,

“activity that has been begun but not completed may be continued”.

I can see the logic of that, but I wonder about the word “completed”. Let us suppose, for example, that a parish council decides to undertake the maintenance of playing fields or provide a facility—it could be anything from a public convenience to meeting rooms or something of that kind. In that example, what does completing that project actually mean? If it is a contract, I can understand it; if it is not, I do not quite understand how it could be judged to be completed. Therefore, it would potentially seem that something could just continue indefinitely, even though the council has either become ineligible or does not pass a further resolution. There is a possibility for difficulties there.

The Explanatory Memorandum says:

“The Government’s expectation is that eligible parish councils will strive to fulfil the conditions at all times”.

That is in the motherhood-and-apple-pie part of the Explanatory Memorandum. If anything, what do the Government have in mind, preferably in conjunction with the National Association of Local Councils, to see that that expectation is fulfilled? I would hope that the national association would be helpful in supporting the Government’s expectation. Of course, not all councils are members of the national association; some have deliberately absented themselves from it, including some of the larger ones—unless they have rejoined since my time, when I was engaged with them on behalf of the LGA. So there is potentially an issue there as well.

There are two other points on which I seek clarification of the present position, or on whether the Government might be interested in pursuing them. The first, in a sense following the point made by the noble Lord, Lord Shipley, is whether the general power extends to councils combining for particular purposes. Would the power extend to allowing two neighbouring parish councils to set up something jointly in the way that councils in, for example, Greater Manchester have come together to do things together across the piece, serving a wider area than the individual parish? I assume that it is intended, but it would be as well perhaps to have that on the record.

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[Baroness Hanham]

My Lords, I thank both noble Lords for their comments and their questions. With regard to the last point raised by the noble Lord, Lord Beecham, it would probably be proper that parish councils should be associated with those regulations as well. It conjures up all sorts of possible things that might happen, but it would be appropriate that they were covered.

First, on the point raised by the noble Lord, Lord Shipley, regarding parish councils and their neighbouring area, the power would work only provided that they both had powers to do so. So in perhaps part of a parish, if the neighbourhood did not have that power because it either was not a parish council or it was not a neighbourhood forum, that would not work; but as long as it does have that power, they are able to and, indeed, ought to co-operate, because it seems very clear to me that that should be what is required. I thank the noble Lord, Lord Shipley, for his support on that point.

With regard to what happens when the department of a clerk or one of the councillors gives up, it is correct that they would be eligible and able to carry on using their power until the next election. That was the case also with the well-being power; there was always an assumption that they could continue. However, they will have to continue doing it under their own mandate to ensure that they do not breach any of the other laws. The order recognises that, if there are longer-term projects in train, they can carry on. The noble Lord asked, “How long is a piece of string?”, and I take his point, but the string is as long as making sure that the project comes to a conclusion. It might be a contract; it might be that a council is deciding whether to make a playground or to ask for the listing of a piece of land; but they can properly do that and cannot be challenged for it. A council is eligible to complete a project for up to four years if that is the time between elections.

I was asked about peer review. Peer review at the moment is voluntary, being carried out by the Local Government Association. With parish councils, I suspect that it would have to be with the co-operation of the National Association of Local Councils—I cannot see anything to stop that happening. As with other local authorities, peer review is often helpful and often produces some very useful results. However, there is no legislation to say that it should happen. If a council wishes to do it, and someone in the local associations feels that it is appropriate, it can happen.

[Lord Beecham]

Would the Minister feel able, in the language that government use these days, perhaps to nudge the association into suggesting such an idea to its members?

[Baroness Hanham]

The most that I can do is to record the fact that we see the value of it at the moment and it would seem appropriate, therefore, for people to consider doing it subsequently. I think that I have covered most of the points raised.

--- Later in debate ---

[Lord Beecham]

Could you comment on the scope for authorities to act jointly?

[Baroness Hanham]

Under the general well-being power, they would be able to act together, but, as I said to the noble Lord, Lord Shipley, that would be as long as they both had the power to co-operate.

I hope that I have covered the points made. That concludes our work on the order.