Lord McKenzie of Luton
Main Page: Lord McKenzie of Luton (Labour - Life peer)Localism Bill
Lord McKenzie of Luton Excerpts
Baroness Hanham
My Lords, I confirm that the statutory instrument relating to this is in the Library and has been there since 15 June.
Clause 8 defines local authorities for the purposes of the chapter, which are the bodies that will have the new power. By restricting the definition to “eligible” parish councils, the clause provides a power for the Secretary of State to set conditions by order for which parish councils will have the general power.
We are not making the general power of competence available to all parish councils, as the noble Lord suggested. Our view is that, given the breadth of the power and the widely varying circumstances of parish councils, there should be some criteria in place to demonstrate that the parish is representative of its community and has some understanding of the power to help to prevent misuse.
The draft statutory instrument that we made available to the House in the Library on 15 June indicates our intention that, to access the power, two conditions need to be met. These are that two-thirds of the councillors are democratically elected and that the parish clerk has received training in the use of the new power. These criteria have been discussed with the National Association of Local Councils and other interested parties.
Our aim is to ensure that eligible parish councils will be able to use the new power at the same time as other local authorities—an improvement over what happened with the existing well-being power, which was extended to some parish councils only in 2009. However, the noble Lord asked me particularly about the criteria, and those are the criteria that will be in the statutory instruments.
Amendments 26 and 28 are being considered. I will come back on these at a later stage.
Lord McKenzie of Luton
I wonder if the Minister could help me on one point, although I have not participated in this debate. Is the order in the description of eligible parish councils for the general power the same one that will run for parish councils for neighbourhood planning?
Baroness Hanham
My Lords, I would have to get an answer to that for the noble Lord. I am not sure. This specifically refers to the general power. I think that it might be different for neighbourhood planning where there is a parish council, but I would like to be sure. Perhaps I can wave my hands and find out. No one seems to know. If my runner, my noble friend Lord Attlee, can achieve something, we can deal with this. I think that the noble Lord has asked a question that we will need to give a written reply to.
“Integrated Transport Authorities and Passenger Transport Executives
(1) After section 98 of the Local Transport Act 2008, insert—
“CHAPTER 2AGeneral powers98A General powers of Integrated Transport Authority
(1) An Integrated Transport Authority (“ITA”) may do—
(a) anything it considers appropriate for the purposes of the carrying-out of any of its functions, or otherwise for the purpose of improving the effectiveness and efficiency of transport in, through, to or from any part of the integrated transport area (its “functional purposes”),(b) anything it considers appropriate for purposes incidental to its functional purposes,(c) anything it considers appropriate for purposes indirectly incidental to its functional purposes through any number of removes,(d) anything it considers to be connected with— (i) any of its functions, or(ii) anything it may do under paragraph (a), (b) or (c), and(e) for a commercial purpose or otherwise anything which it may do under any of paragraphs (a) to (d) otherwise than for a commercial purpose and to do it anywhere in the United Kingdom or elsewhere.(2) An ITA’s power under subsection (1) is in addition to, and is not limited by, the other powers of the ITA.
98B Boundaries of the general power
(1) Section 98A(1) does not enable an ITA to do—
(a) anything which the ITA is unable to do by virtue of a pre-commencement limitation, or(b) anything which the ITA is unable to do by virtue of a post-commencement limitation which is expressed to apply—(i) to its power under section 98A(1),(ii) to all of the ITA’s powers, or(iii) to all of the ITA’s powers but with exceptions that do not include its power under section 98A(1).(2) If the exercise of a pre-commencement power of an ITA is subject to restrictions, those restrictions apply also to the exercise of the power conferred on the ITA by section 98A(1) so far as it is overlapped by the pre-commencement power.
(3) Where under section 98A(1) an ITA does things for a commercial purpose, it must do them through—
(a) a company within the meaning given by section 1(1) of the Companies Act 2006, or(b) a society registered or deemed to be registered under the Cooperative and Community Benefit Societies and Credit Unions Act 1965 or the Industrial and Provident Societies Act (Northern Ireland) 1969.(4) Section 98A(1) does not authorise an ITA to do things for a commercial purpose in relation to a person if a statutory provision requires the authority to do those things in relation to the person.
(5) Section 98A(1) does not authorise an ITA to borrow money.
(6) In this section—
“post-commencement limitation” means a prohibition, restriction or other limitation imposed by a statutory provision that—
(a) is contained in an Act passed after the end of the Session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force on or after the commencement of section 98A(1);“pre-commencement limitation” means a prohibition, restriction or other limitation imposed by a statutory provision that—
(a) is contained in an Act passed no later than the end of the Session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force before the commencement of section 98A(1);“pre-commencement power” means power conferred by a statutory provision that—
(a) is contained in an Act passed no later than the end of the session in which the Localism Act 2011 is passed, or(b) is contained in an instrument made under an Act and comes into force before the commencement of section 98A(1);“statutory provision” means a provision of an Act or of an instrument made under an Act.
98C Power to make provision supplemental to section 98A
(1) If the Secretary of State thinks that a statutory provision (whenever passed or made) prevents or restricts ITAs from exercising power conferred by section 98A(1) the Secretary of State may by order amend, repeal, revoke or disapply that provision.
(2) If the Secretary of State thinks that the power conferred by section 98A(1) is overlapped (to any extent) by another power then, for the purpose of removing or reducing that overlap, the Secretary of State may by order amend, repeal, revoke or disapply any statutory provision (whenever passed or made).
(3) The Secretary of State may by order make provision preventing ITAs from doing under section 98A(1) anything which is specified, or is of a description specified, in the order.
(4) The Secretary of State may by order provide for the exercise by ITAs of power conferred by section 98A(1) to be subject to conditions, whether generally or in relation to doing anything specified, or of a description specified, in the order.
(5) The power under subsection (1), (2), (3) or (4) may be exercised in relation to—
(a) all ITAs,(b) particular ITAs, or(c) particular descriptions of ITAs.(6) Before making an order under subsection (1), (2), (3) or (4), the Secretary of State must (whether before or after the passing of this Act) consult—
(a) such ITAs,(b) such representatives of ITAs, and(c) such other persons (if any),as the Secretary of State considers appropriate.98D Procedure for orders under section 98C
(1) If, as a result of any consultation required by section 98C(5) with respect to a proposed order under section 98C(1), it appears to the Secretary of State that it is appropriate to change the whole or any part of the Secretary of State’s proposals, the Secretary of State must (whether before or after the passing of this Act) undertake such further consultation with respect to the changes as the Secretary of State considers appropriate.
(2) If, after the conclusion of the consultation required by section 98C(5) and subsection (1), the Secretary of State considers it appropriate to proceed with the making of an order under section 98C(1) the Secretary of State must lay before Parliament—
(a) a draft of the order, and(b) an explanatory document explaining the proposals and giving details of—(i) any consultation undertaken under section 98C(5) and subsection (1),(ii) any representatives received as a result of the consultation, and(iii) the changes (if any) made as a result of those representations.(3) Sections 15 to 19 of the Legislative and Regulatory Reform Act 2006 (choosing between negative, affirmative and super-affirmative parliamentary procedure) are to apply in relation to an explanatory document and draft order laid under subsection (2) but as if—
(a) section 18(11) of that Act were omitted,(b) references to section 14 of that Act were references to subsection (2), and(c) references to the Minister were references to the Secretary of State.(4) Provision under section 98C(2) may be included in a draft order laid under subsection (2) and, if it is, the explanatory document laid with the draft order must also explain the proposals under section 98C(2) and give details of any consultation undertaken under section 98C(5) with respect to those proposals.
(5) Section 98C(6) does not apply to an order under section 98C(3) or (4) which is made only for the purpose of amending an earlier such order—
(a) so as to extend the earlier order, or any provision of the earlier order, to a particular authority or to authorities of a particular description, or(b) so that the earlier order, or any provision of the earlier order, ceases to apply to a particular authority or to authorities of a particular description. 98E Limits on charging in exercise of general power
(1) Subsection (2) applies where—
(a) an ITA provides a service to a person other than for a commercial purpose, and(b) its providing the service to the person is done, or could be done, in the exercise of the general power.(2) The general power confers power to charge the person for providing the service to the person only if—
(a) the service is not one that a statutory provision requires the authority to provide to the person,(b) the person has agreed to its being provided, and(c) the authority does not have power to charge for providing the service.(3) The general power is subject to a duty to secure that, taking one financial year with another, the income from charges allowed by subsection (2) does not exceed the costs of provision.
(4) The duty under subsection (3) applies separately in relation to each kind of service.”.
(2) Chapter 3 of Part 5 of the Local Transport Act 2008 is repealed.
(3) In section 9A of the Transport Act 1968, after subsection (2) insert—
“(2A) Chapter 2A of Part 5 of the Local Transport Act 2008 applies to the Executive of each integrated transport area as it applies to the Authority.
(2B) The powers exercisable by an Executive by virtue of subsection (2A) are exercisable by the Executive in its own capacity.”
(4) In section 1(4) of the Local Authorities (Goods and Services) Act 1970, after the words “and any joint authority established by Part IV of the Local Government Act 1985” insert “and any passenger transport executive established under section 9 of the Transport Act 1968”.”
Lord McKenzie of Luton
Amendment 32 introduces a new clause related to integrated transport authorities and passenger transport executives. The form of the clause should come as no surprise, as it was moved in exactly this form in Committee in the other place. Indeed, if we took it forward at Report, it would need some updating—for example, to touch on some of the issues we discussed earlier on Clause 5, and so on. In that debate, the Minister, Andrew Stunell, said:
“Integrated transport authorities and passenger transport executives are the responsibility of the Secretary of State for Transport. I am sure that he will be interested in the points that have been made, so I will ensure that the relevant parts of Hansard are drawn to his attention. I am sure that the appropriateness of the available powers is something that he will want to consider in light of the views of the sector and, more widely, of the local government community”.—[Official Report, Commons, Public Bill Committee on the Localism Bill, 10/3/11; col. 961.]
The purpose of retabling the amendment is to give the Minister the opportunity to give us an update.
Noble Lords will probably be pleased to know that I do not propose to go through the amendment line by line, but perhaps I could spend a few moments to explain what it would do and why for those who have not joined our debate before. The new clause would give the six integrated passenger transport authorities a general power in recognition that integrated transport authorities are single purpose authorities. The provisions have been drafted using the same structure as those setting up the general powers for fire and rescue authorities, but with changes to reflect the differences between integrated transport authorities and fire and rescue authorities. The six integrated transport authorities and their passenger transport executives represent the six largest city regions outside London, which are home to 11 million people. The integrated transport authorities and passenger transport executives are the strategic bodies that plan, promote, procure and provide the public transport networks on which those conurbations rely to keep them moving, and which are vital for their development.
The impact assessment on the general power of competence for fire and rescue authorities states:
“Stand-alone fire and rescue authorities will need a similar power”—
to that of local authorities—
“to address the lack of sufficient freedoms and flexibilities to do things that they might properly wish to do which could benefit or contribute to their purposes. Freeing up fire and rescue authorities by providing general powers in the same vein as for local authorities, will therefore … promote the radical devolution of power away from Westminster and Whitehall”.
It would therefore seem perverse, having discussed those powers, if integrated transport authorities were not seen to need similar powers to address the lack of freedoms and flexibilities that may affect what they may properly wish to do.
The major reason why integrated transport authorities require a general power is the straightforward fact that they want to deliver better services more efficiently through collaborative working, which will become increasingly important in current times. It is considered that, without a general power, the integrated transport authorities and their passenger transport executives will not have the legal compass that local authorities will enjoy. Services in the public sector are being challenged to do more with fewer resources and to work in different ways to deliver services. Transport authorities should be able to support growth through local enterprise partnerships, so their ability to work collaboratively across partners will be increasingly important as the new structures develop.
A functional general power would facilitate such working much more readily. It would put beyond doubt the legal uncertainty that might hold back innovative initiatives in metropolitan areas. In non-metropolitan areas, the transport function sits with the local authority, which will have the general power of competence, so there starts to be a divide between transport authorities that have a general power and those that do not.
A general power for the integrated transport authorities and their passenger transport executives would assist them in joint procurement, partnership work and innovative service provision. For example, the Government have said that they want the majority of public transport journeys to be made using smart ticketing by 2014, and they have provided passenger transport executives and Bristol, Nottingham and Leicester local authorities with funding to achieve that. The PTEs are working with Bristol, Nottingham and Leicester authorities on issues such as systems testing, data analysis and ticketing equipment to ensure that that government objective is met in a timely and cost-effective way. However, without any change to the general power of competence, local authorities in those three areas will have that power to engage in joint enterprises and deliver such programmes, but passenger transport executives will not. There are other similar reasons that could be advanced for why these general powers are needed.
My question to the Minister is: please can we have an update on whether the Government will support this general power for integrated transport executives? If the Government do not feel able to support that currently, perhaps the Minister can spell out why she believes that the powers of those transport authorities are sufficient as they stand. The detail of the clause would need some tidying up if we returned to it on Report, but I hope that we could do that with the assistance of the Government. I beg to move.
Lord Shipley
My Lords, I support the amendment. It is important that we understand the important role that ITAs and PTEs have in those metropolitan areas. I come from one of those areas. We have always had joint board arrangements, of which fire and rescue has been one, and there have been others. The ITA, and the PTE as part of the ITA, needs to have similar powers at least to fire and rescue authorities, although it is better to have a complete power of general competence. Perhaps I may give an example. The Government are keen to have smart-card operations across the country by 2014. That is being led by PTEs in the areas where PTEs have been directly financed. However, three councils—Nottingham, Leicester and Bristol—do not have PTEs, although they are financed for smart-card ticketing and supported by the PTEs from those other urban areas. Unless the Bill is amended those PTEs will not have a power of general competence, whereas the other areas will, as will those three councils. I think that there will be some complications in procurement policy unless that issue is addressed. It will be interesting to hear the Minister’s views on the situation because, as things stand, there appears to be an anomaly.
Baroness Hanham
My Lords, as the noble Lord has said, this was discussed in the other place. My honourable friend Andrew Stunell gave an assurance that this matter would be looked at and that the attention of the Secretary of State for Transport would be drawn to the debate in Hansard, which would have been very much along the lines of the debate here this evening about making decisions on what should be done.
I cannot go further than to say that discussions are taking place between the Secretary of State for Communities and Local Government and the Secretary of State for Transport. I will expect to have details of them in the not too distant future. It would be sensible, if and when we know the outcome of the discussions—and I am sure we will—for the noble Lord to come and talk to me about it before Report, when we can discuss whether the amendment is appropriate and correct. I am happy to offer him that discussion, depending on the outcome of the discussions between the two Secretaries of State.
Lord McKenzie of Luton
My Lords, I thank the noble Lord, Lord Shipley, for his support for the amendments. Clearly he is knowledgeable about what goes on in ITAs and PTEs and about the importance of this extended power. The noble Lord, Lord True, was astute to spot that the amendment was a version of one moved in the Commons—it was the original one, tabled before the amendments to Clause 5 and other clauses that we debated tonight. As I indicated when I moved it, if we took this forward on Report we would need to align it with where we were hoping to lead the others.
I am grateful for what is probably a quarter of a loaf from the Minister. Clearly, we will hope for clarity and a decision to be made by the Secretaries of State by the time we get to Report. This is an important issue that we want to take forward, and if we can do so on the basis of agreement, so much the better. I should be grateful if the noble Baroness could keep me and other noble Lords who have an interest in this informed as the discussion unfolds so that we will have the opportunity to consider the matter in good time before Report. Having said that, I beg leave to withdraw the amendment.
Lord McKenzie of Luton
My Lords, I shall speak also to the other amendments in this group. Amendment 33 sits alongside Amendment 85. I will revert to those amendments shortly. Amendments 59 to 62 inclusive seek to make the provisions of proposed new Section 9HF more acceptable. The Delegated Powers and Regulatory Reform Committee described the provisions in their current form as an inappropriate delegation of legislative power. We agree.
New Section 9HF enables the Secretary of State by affirmative procedure to enable or require,
“a … local authority operating a mayor and cabinet executive to confer a local public service function of any person or body on its elected mayor”,
and to transfer a local public service function from any person or body to the elected mayor. Local public service function is widely defined, and public service is defined as a service provided to the public or a section of the public that is provided either under statutory authority or that is wholly or partly funded by central and local government. As the Delegated Powers Committee points out, this is a remarkably wide power and could cover many activities carried out in the voluntary sector, as well as other public services such as those provided by the NHS, the police and other elected authorities. For example, what is done by a local charity—perhaps a housing charity, supported by Supporting People funding—would come within the definitions here. It could also include the functions of integrated transport authorities which we have just discussed and on which an amendment focused.
The amendments press on three areas. Amendments 59 and 60 seek to include in the circumstances in which such powers operate a leader and executive model of governance as well as a mayor and executive model. I acknowledge that further consequential amendments relating to the transfer of functions would be needed, for example, to new Section 9HF(1)(b)—I say this before the noble Lord, Lord True, gets to it. Incidentally, in talking of transfers of functions, I do not see any tax provisions relating to these transfers. Of course, a whole raft of tax provisions, particularly referring to transfers in London, were introduced at the Bill’s final stages in the other place, so I have a query about whether something is due in respect of them.
Lord Jenkin of Roding
I have a question on this which arises from the extremely helpful statement that my noble friend made this afternoon. This part of the Bill contains the provisions about the roles of mayors and chief executives being combined. My noble friend has indicated that that in fact is not going to happen. I have just revisited the amendments that were down to deal with that, and they would have taken out large parts of the clauses that we are now discussing. If they had been taken in a different order, I suspect that the Chairman would have had to say that, if the amendment was carried and all these parts taken out, the amendments moved and spoken to by the noble Lord, Lord McKenzie, would have fallen with them. As it is, that has not happened yet.
Of course, what we do not know—and I hope my noble friend at some stage will be able to tell us—is how the Government intend to implement the concession that she announced earlier today, to my great delight, that the part of the Bill dealing with mayors and chief executives was going to be dropped. I hope my noble friend sees the difficulties we are in: we are discussing a clause, much of which may disappear. I do not want to disappoint the noble Lord, Lord McKenzie, because he has made two or three very valid and interesting points, but it is because of the order in which these have been taken that he is able to discuss those things at all, because otherwise they might have fallen with the amendment to take out the combined roles.
Lord McKenzie of Luton
No doubt the Minister will clarify this for us. I have not had a chance to go through all of the amendments that will be affected by the earlier announcement but I did not think that this was one of them. If it were, I would be very content.
Lord Jenkin of Roding
I am grateful to the noble Lord for clarifying that, but in fact there are some amendments, that take several pages right out, that were intended to remove this whole part of the Bill.
Lord Jenkin of Roding
If I may express a view, I have to say that I think that that is the right course because it may well be that when the amendments to reflect the change announced this afternoon have been made, this whole passage of the Bill, several pages of it, may look very different. It would then be necessary to consider which of the remaining parts of the Bill the noble Lord, Lord McKenzie, might still like to amend. At the moment I do not see how we can do that.
Lord McKenzie of Luton
My Lords, I thank the Minister for her brief reply. Clearly, we need to get back to these serious issues on Report. I say to the noble Lord, Lord Jenkin, that, from reading the Bill, I understand that this issue is not linked to how someone becomes a mayor; it is focused on a mayor and executive arrangements, however they are created. I do not think that what we discussed earlier would strike those down. If it did, the amendments would become otiose.
Notwithstanding that point, I say to the noble Baroness that there were a series of questions which deserve a serious answer about why this power is limited to mayors and executives, and does not apply to executive and cabinet arrangements. Why is it only that one model that can be the recipient of the Secretary of State’s powers? More particularly, the protections and the fettering of that very wide power that needs to be undertaken is not just my worry—the Delegated Powers Committee is very clear on it. We will certainly wish to return to that.
The noble Lord, Lord True, made reference to an each-way transfer. My main point was that, if it is to apply at all and if sufficient safeguards can be put in, it should be when there are leader and executive arrangements, and when there are mayor and executive arrangements, as well as the supplementary point about what happens if you go from one to the other.
I do not know whether the noble Baroness has any further information as a result of the missive. If not, I will withdraw the amendment and leave the issue until Report but this is most certainly a matter to which we will return, if we have to, on the basis of the point made by the noble Lord, Lord Jenkin.
Baroness Hanham
My Lords, I am grateful for that. It would be helpful if we came back to all this. In the mean time, before Report, I will make sure that the noble Lord and the rest of the Committee have a full answer.