Report stage in the Lords
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The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews)Labour- Quote
- My Lords, I beg to move that the Bill be now further considered on Report. Moved accordingly, and, on Question, Motion agreed to. Clause 125 [Reference of matter by councillor to overview and scrutiny committee]:
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Baroness HamweeLiberal Democrat- Quote
- moved Amendment No. 191:
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Baroness Scott of Needham MarketLiberal Democrat- Quote
- My Lords, my Amendment No. 192 is grouped with Amendment No. 191. It also deals with the question of overview and scrutiny committees and their remit. The Bill strengthens and builds on local area agreements. It certainly places much more emphasis on local area agreements as the vehicle by which local decision making is conducted in an area involving the local authority and other partners, including health organisations. The local area agreement will become key in determining future funding for local authorities and it is vital that local authority overview and scrutiny committees are able to scrutinise the way in which their local area committee is working. It is not clear from the debates we have had so far how the local area agreements will be scrutinised, both in terms of how they are formed and how the targets are arrived at and negotiated with central government. The amendment seeks, therefore, to place in the Bill the right of a local overview and scrutiny committee to scrutinise the way in which its leader behaves on behalf of the council when attending local area forums and agreeing targets.
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- Baroness AndrewsLabour
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- My Lords, we debated Amendment No. 191 in Committee. Subsection (1) requires a local authority to make arrangements which enable any member to refer a matter to the overview and scrutiny committee. One would expect—the noble Baroness understands this—that these arrangements would make clear the standards to be followed so that the recipient committee can have a clear idea of what the matter is about. In practice, it seems unlikely that that would mean anything other than that the member would be expected to put something coherent in writing to the committee. With regard to the noble Baroness’s concerns about oral representations, subsection (6)(b), which Amendment No. 191 seeks to strengthen, is clear that this is not about referring a matter to the committee but about persuading it to take the matter up and exercise any of its powers. The amendment therefore seeks to ensure that these representations may be made in writing or orally in person. I am not clear why the amendment would be necessary, simply because there is no reason why, when a member is referring a matter, he or she should not indicate at that point that they wish to make oral representations about the reasons the committee should exercise its powers under Section 21 of the LGA. There is no doubt that an ONS committee will be able to listen to oral representations if it so chooses, and the noble Baroness reiterated the point that the committee ought to have some discretion at that point. The amendment would provide something stronger by giving the councillors the right to appear in person before a committee. I am afraid that my argument has not advanced very much since we debated this in Committee. Given the spirit in which we are looking at how ONS committees are responsible for their own work and the whole devolution agenda, it would be rather heavy-handed and intrusive for the law to require committees to listen to oral representations from members who have referred matters to them. There is another danger. If the councillor knew that all he had to do was turn up and make an oral presentation, there would be a tendency to seek that route rather than preparing careful written representations. When it comes to making an argument, however, written representations are important. At that point there might also be a temptation for members of the committee to be confused between the process of being persuaded to take a matter up and actually listening to the substantive argument and investigating it at that point. There is a balance to be struck here, and we have got the balance right in allowing for this discretion. We can be assured, with regard to both this and the next amendment, that we can cover committee procedures in guidance so that people are not confused. On LSP, I accept the general argument that the noble Baroness has made. Under the terms of the ONS committee, it can require partner authorities that are partners in the LAA to come and give evidence. However, she is asking for the LSP itself, as the container for so much of what would be reflected in the local area agreement, to be able to come and do so. From the way the amendment is drafted and the fact that we have discussed this with regard to amendments tabled by the noble Lord, Lord Greaves, I am sure she knows that there are serious legal problems with the fact that the LSP is not a legal entity but a voluntary association. LSPs do not belong to local authorities; they are independent bodies, and do not have functions that can be discharged under them. For all those reasons it is difficult to conceive of the amendment on that basis, but the idea behind it is important. There would be profound difficulties in tackling the scrutiny of LSP partners that were not public authorities—for example, charities and voluntary organisations. The powers of the ONS committees are wide. The amendment does not seek to extend them, but it is worth reviewing them. By virtue of Section 21(2) of the Local Government Act they can tackle issues far beyond the direct responsibility of the executive. Specifically, they can review or scrutinise decisions made or other action taken in connection with the discharge of any functions that are not the responsibility of the executive, and make reports and recommendations about them. Indeed, they can make reports or recommendations to the authority or the executive on any matters that affect the authority’s area or the inhabitants. It is true that the powers of overview and scrutiny committees to require information and evidence from the world at large are limited, but there is no limit to the information they can request and the Bill extends their powers substantially in that respect. They will be able to require information from the authorities named in the Bill as partner authorities, and may require those authorities to have regard to the committee’s reports and recommendations in the discharge of their functions.
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- Baroness Scott of Needham MarketLiberal Democrat
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- My Lords, I thank the Minister for that reply. It has helped to clarify my concerns about an inconsistency of approach, because the thrust of the Government’s arrangements for the Executive was improving transparency so that we knew exactly who made decisions and that local people could hold them to account. Local strategic partnerships are becoming increasingly influential and powerful—I have no argument with that—but if they are chaired by someone who is prominent in the local business community, that person will not have been elected or be accountable to anyone. The body that is setting targets and negotiating with government about future funding streams will not be directly accountable to anyone. My amendment would create a mechanism whereby the local strategic partnership could be held publicly to account by someone—in this case, the overview and scrutiny committee—because they could publish its accounts. While I am prepared to accept that there may be some legal problems, a body is being created that is not accountable. That is at that heart of my difficulty with the provisions. Given that I know that the Government’s intention throughout the Bill is to create better lines of accountability, leadership and transparency, I cannot see how those things will match up.
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- Baroness HamweeLiberal Democrat
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- My Lords, my noble friend has made her concerns quite clear. Amendment No. 192 was not intended to require the local strategic partnership to be called before an overview and scrutiny committee; its purpose was to extend, “‘local government matter’ in relation to a member of a local authority” to include, “functions discharged under the authority’s local strategic partnership” when “a function of the authority” is being referred to. That seemed to be the route, albeit a slightly clumsy one, available to us to get to the leader’s position, because the leader will act on behalf of the authority. The Minister said that guidance may be issued in relation to both matters. I dare say that an overview and scrutiny committee which feels the need, and individual members who feel the need, to push at the boundaries will do so—I hope that they do. Amendment No. 191 is not about the overview and scrutiny committee taking up a matter, but about the representations from a member if it is. I am concerned not about whether the committee can decide to hear oral representations, but the right of a member to make it sit and listen to them. So the amendment is the other way round from how the Minister put it: it is about the rights of the member rather than those of the committee. The Minister said in effect that one cannot provide for every situation if a member is rather lazy about putting a matter in writing. I agree but, frankly, if the member does not express a matter in writing reasonably well—oral representations will inevitably be supplementary—I do not think that he will get very far and perhaps he will become aware of that with time. I know that the relevant words do not come from the Minister herself, but the response was a wee bit paternalistic, if I may say so. I hope that guidance will help everybody to understand where the rights lie in this situation. Having said that, rather impertinently, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 192 not moved.]
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Baroness HanhamConservative- Quote
- moved Amendment No. 192ZA:
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- Baroness AndrewsLabour
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- My Lords, the noble Baroness and other noble Lords have made a powerful case concerning the difficulties that there might be in the way that these two lines of approach on the CCfA have been developed. I am conscious that these amendments also broadly represent a body of opinion in the local government community. If the noble Baroness is content to withdraw her amendment today, that will give me a little more time to consider the position. I hope to respond substantively and I would be very grateful for her understanding on that point. I should add that, primarily in relation to Amendment No. 192A, I have real reservations about suggestions that the Secretary of State should not have any power to exclude matters from the procedure. In the public debate about the possible impact of community calls for action on the way in which local authorities do business, there have been a number of recurring themes. The noble Baroness mentioned one in relation to crime and disorder: will the public, or even councillors, use that power vexatiously or mischievously? Our answer to these worries has consistently been that we are content to rely on the good, robust sense of the O&S committees. On the other hand, we said in the local government White Paper, and since, that there must be circumstances in which the community call for action should not be available at all. We cited cases in which there is already a statutory appeals process; for example, planning, licensing, council tax and non-domestic rates. Having taken her amendments away, we propose that, in consultation with the Local Government Association and others, we will seek to work up the detail of these exclusions and bring them to the House by way of an order in due course. I assure the noble Baroness that we have listened very hard to what she has said and I am pleased to tell her that we will be taking the amendment away today.
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- Baroness HanhamConservative
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- My Lords, I thank the Minister for that. Will she confirm that, if I withdraw the amendment today, she will come back with something helpful at Third Reading?
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- Baroness AndrewsLabour
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- My Lords, I said that I would do that.
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- Baroness HanhamConservative
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- My Lords, I am grateful for that and for the meetings that we had during the Recess with the Minister in which the matter was raised. I hope that we have got some way with it. Given the Minister’s indication that she is likely to bring back an amendment on Third Reading, I will withdraw this amendment today, but on the clear understanding that if I am not satisfied with her amendment I shall return to the matter then. I hear what the noble Baroness says about excluding other things and that that will come back in an order. I assume that that order will relate to guidance that will be issued on the CCfA—or is that not the situation?
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- Baroness AndrewsLabour
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- My Lords, we have to discuss how best we do that, but there will be a vehicle for doing so by order. We will work through the processes over the next few days by taking advice and making sure that we have everything straight.
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- Baroness HanhamConservative
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- My Lords, I am satisfied with that and hope that we might have an opportunity to discuss the matter before Third Reading so that we all know what we are doing. With the Minister’s reassurances, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 192A to 192E not moved.] Clause 127 [Powers to require information from partner authorities]:
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- Baroness HanhamConservative
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- moved Amendment No. 192F:
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- Baroness AndrewsLabour
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- My Lords, we have debated the status of RSLs and their relationship with the Bill in different ways, and I wish that I could give the noble Baroness as positive a response as I could to the previous amendment. These amendments try to bring RSLs within the scope of the enhanced scrutiny powers for unitary and county councils, which relate to partners under the duty to co-operate. We have had some very eloquent debates about the concerns that there should be better co-operation between RSLs and local authorities in line with the Cave recommendations, and I agree absolutely that it is desirable that there are changes in how the two sectors interact, but the amendments, unfortunately, do not solve the problem. I shall start by saying a bit about the Cave review and the partnership arrangements. I absolutely agree with the noble Baroness that housing is bound to be part of what overview and scrutiny committees will be concerned with, because it is what the whole business of place-making is concerned with and what local authorities are concerned with in a local area agreement. It will obviously have a very large role to play in determining how people will be housed in future and the conditions in which they have lived and live in the past and present. The ability for registered social landlords to be represented and be part of this process is extremely important. I am sorry that the noble Baroness will not be here when we consider the Housing Bill, although she has a very worthy successor in the noble Lord, Lord Dixon-Smith. We shall be considering the partnership arrangement that would be most suitable between local authorities and RSLs. We must carefully consider the full implications of how that will work in practice, as we do not want to add disproportionate burdens on to the RSL sector. That was very clear in the Cave review. We do not want either to duplicate the responsibilities of the regulator or to compromise the independent status of RSLs. Nevertheless, we are absolutely clear that we need them to be part of the dialogue and the process, so we shall be addressing that issue. As the LAAs have worked through some of the early stages of the new statutory requirements as we have practised them across the country in different situations, that has been addressed. We shall certainly bring forward legislation in a future Bill to deal with this matter. It will be done in a robust way and will be something acceptable and wanted by all stakeholders. With that commitment, I hope that the noble Baroness will feel that she can withdraw her amendment.
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- Baroness HanhamConservative
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- My Lords, I think that I have hammered this one as far as I shall be able to hammer it. I believe that the Minister sees the point that I have tried to make. I hope that these proposals will appear in other legislation so as to enable overview and scrutiny committees to call upon registered social landlords if necessary. As we have said, RSLs cover everything; they are responsible for ASBOs, so they take in crime and disorder, and they are responsible for the management of the estates, homelessness and the rest of it. Housing is such a mega part of the local authorities’ responsibilities, which have been put out to independent bodies, that it seems inconceivable that it should not be part of the ability of an overview and scrutiny committee to deal with housing matters and thereby ask registered social landlords to come and give evidence if necessary. I cannot take this matter any further—and I see that the Minister droops any time that I mention registered social landlords. However, I think that I have put my concerns on record sufficiently and I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 192G to 194 not moved.] Clause 128 [Overview and scrutiny committees: reports and recommendations]:
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- Baroness HamweeLiberal Democrat
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- moved Amendment No. 195:
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- Baroness AndrewsLabour
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- My Lords, I will address the point about the relationship between two forms of publication and the Local Government Act with pleasure. I did not over-egg that argument in Committee, so I have a chance to say something about it now. I will also address the other substantive points. Amendment No. 195 would require a local authority or an executive to publish its response to the report of an overview and scrutiny committee, including where the committee had not published its report. Some of our debate will turn on the idea of what it means to publish in this context. I shall explain why we are not convinced that this amendment is necessary or helpful. The Bill does nothing to alter or undermine the current framework and rights in relation to access to information. Section 21(11)(a) of the Local Government Act 2000 provides that overview and scrutiny committees are to be treated as committees for the purposes of Part 5A of the Local Government Act 1972. That is, unless exempt or confidential, as defined under the terms of the 1972 Act, overview and scrutiny papers, including committee reports, will be in the public domain by virtue of the public right to attend meetings and inspect documents. The only exclusion is whether they are defined as exempt or confidential. In fact, as noble Lords know, local authorities generally place agendas, meeting papers and reports, including those of overview and scrutiny committees, on their websites to make access to the documents easier and to fulfil their obligations under the Freedom of Information Act. However, there is currently no obligation on them to do anything over and above the requirements in Part 5A of the Local Government Act 1972. Clause 128, which inserts new Section 21B into the Local Government Act 2000, strengthens the position in two positive ways and has two aims. First, as we set out in the White Paper, it will for the first time require that councils or their executives must respond within two months to the reports of overview and scrutiny committees. Those are important new powers. I should explain that new Section 21D, also inserted by Clause 128, provides that these reports will be subject to Part VA of the Local Government Act 1972. Secondly, new Section 21B(2) provides scrutiny committees with an explicit additional power to publish their reports beyond the requirements of Part VA. We are in the realms of definitions and semantics because the definition of “publishing” in Section 21B goes much wider than keeping copies open to inspection; it means physically making copies freely available to the public, other than at council premises. To match that requirement, Section 21B also provides that the executive or council must provide a reciprocal level of publicity to any scrutiny report. Where an overview and scrutiny committee makes a report on, for example, the playgroup facilities in an area and gives additional publicity to a report or recommendations that is over and above its regular approach to access to information—for example, sending every playgroup or nursery a copy of the report—the executive or authority must give equivalent additional publicity to its response and ensure that it is read by the same people. This is to ensure that local people get to hear of the response to reports and that they know that action has been taken. That is, of course, about promoting accountability, engagement and trust. However, it would not be helpful for executives or councils to be required by Amendment No. 195 to publish in this way every report of the scrutiny committee. The argument for discretion is important. Everything that authorities do, unless it is exempt or confidential, will be published in some form, but it will not have that additional publicity. Authorities and executives will be required to make their reports publicly accessible under Part VA of the Local Government Act 1972, unless they are confidential or exempt. That is, responses to scrutiny committee reports will be required to be in the public domain under those terms. In Committee, Members were concerned that new Section 21B provided some sort of exemption over and above the well established principles of confidential or exempt information. I can assure noble Lords that it does not. We are simply providing for reciprocity where scrutiny committees give additional publicity. It is a useful provision for additional openness to this process. I hope that the noble Baroness will welcome that and, maybe, withdraw her amendment.
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- Baroness HamweeLiberal Democrat
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- My Lords, I would not advise anyone to place bets on that. I am left wondering why new Section 21B(3)(c) is required at all. My understanding of the noble Baroness’s argument is that the difference between us is the word “published”. In my mind, publishing means putting into the public domain. Having listened to the Minister’s argument on the application of the Local Government Act 2000, and looking at the new Section 21D, I do not understand the purpose of that paragraph. New Section 21D(1)(a)(ii) states that a response of a local authority has to be published. It may exclude the confidential information, but the basis is that there is publication with certain exceptions. Why is Section 21B(3)(c) necessary? Given that it has taken me until this moment, more or less, to work out that question, it would not be entirely fair to ask the noble Baroness for an instant response—unless one is forthcoming. I am grateful for her information, and perhaps she has some more assistance to give.
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- Baroness AndrewsLabour
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- My Lords, the answer is what I read from my speaking notes—we need the reference to publishing as it is set out in new Section 21B(3)(c), because it refers to a different sort of publishing beyond the definition used in the Local Government Act 1972—which is about making information accessible. I do not have the words of the 1972 Act here. Perhaps it would be best if I sent the noble Baroness a comparison of the two Acts and provide her with the lawyers’ definition.
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- Baroness HamweeLiberal Democrat
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- My Lords, I am grateful for that. I am particularly interested in knowing what “publish” means in the two contexts. I was not asking for an advert in the local paper or anything of that sort; as I said, to my mind, “publication” means putting the matter into the public domain so that it is accessible by anyone who wishes to find it.
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- Baroness AndrewsLabour
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- My Lords, for the record, I shall read the relevant section again. The reference to “publishing” in Section 21B goes much wider than keeping copies open to inspection. It means physically making copies freely available to the public, other than at council premises. I think it would be useful if the noble Baroness looked at the definitions in the two Acts and we could then clarify the matter once and for all.
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- Baroness HamweeLiberal Democrat
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- My Lords, I am grateful for that. I think that any local authority that does no more than keep copies of stuff available at its premises needs to be introduced to the world of technology. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 195ZA not moved.] [Amendment No. 195ZB had been withdrawn from the Marshalled List.] [Amendments Nos. 195ZC and 195ZD not moved.]
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- Baroness Scott of Needham MarketLiberal Democrat
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- moved Amendment No. 195ZE:
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- Baroness AndrewsLabour
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- My Lords, we did indeed debate this, and I remember the noble Lord, Lord Greaves, in particular pressing me quite hard on this point in Committee. I have also spoken to the Local Government Association about this matter and have tried to reassure it that this is certainly not a case of not trusting local authorities. The facility that we seek to make regulations is there for a purpose and it is a benign one. Perhaps I may explain that. Clearly, Amendments Nos. 195ZE, 195ZF, 195ZG and 195ZH would place the provisions on establishing joint overview and scrutiny committees in the Bill, and Amendments Nos. 195ZJ, 195ZK and 195ZL would place in the Bill the provisions on enabling the overview and scrutiny committees of a district council in a two-tier area to make reports and recommendations to its county council or to that county’s executive. I want to explain to noble Lords why we are doing it this way and assure them that there is nothing malign or devious about it. The use of regulations to provide for enhanced scrutiny is not without precedent. The House recently approved similar provisions being made through regulations on the scrutiny of health matters in the National Health Service Act 2006 and on crime and disorder matters in the Police and Justice Act 2006. I should also point out to noble Lords that the provisions in Clause 127, which provide for new powers to enable scrutiny committees to require information from local partners, apply to both shire district and upper-tier councils. I therefore hope that if noble Lords are concerned that we are putting all the provisions which enhance the scrutiny powers of upper-tier councils on the face of the Bill, and implementing all the respective provisions for shire district councils through regulations, they can see that that is not the case. We will be implementing the provisions for both upper-tier and shire district councils through a combination of primary and secondary legislation. There are no second-class citizens here. As I have been reading through the preparations that we are making for local area agreements, I am also struck by the heavy weight that is given throughout those processes to the role of the district council. I know that we debated this in Committee, when I sought to provide reassurances. Since then, the guidance on the making of local area agreements has come out, and there is an important and specific role for district councils, which is marked throughout the documents and guidance that we have issued. That leads me to my second point, which is that the use of regulations does not mean that we intend to prioritise the implementation of the enhanced arrangements for upper-tier councils over shire districts. Far from it. We know that the districts have a critical role to play in the making of local area agreements, and we discussed how that would be done in the early formative stages of negotiations through to delivery. It is our clear intention that we will commence the enhanced scrutiny powers, both in the Bill and through regulations, as a coherent package, and at the same time for all councils. The third assurance, and possibly the most important—this is the one about which I talked to the Local Government Association—is that we are not using regulations because we have any intention of returning to the days of micro-management of local authority functions. It is simply a reflection of the fact that the scrutiny of partners in two-tier areas will not operate in the same way as in single-tier areas. Regulations will provide us with the flexibility to ensure that we get the arrangements right. We shall not retreat to some dusty corridor to impose a set of regulations that do not reflect how things really work. We shall work closely with the Local Government Association, and local authorities, to develop the regulations. I can explain why we are using the regulations. In Committee, I said that to support councils in their role as place shapers, we were strengthening the ability of local authorities to hold local partners to account—that is, the duty to co-operate on local area agreements, and so on. Local partners will be required to provide information to scrutiny committees in relation to the attainment of LAA targets, and have regard to scrutiny committee reports and recommendations where they relate to these targets. The responsibility for co-ordinating LAAs rests with unitary councils—and in two-tier areas, county councils—but district councils are vital partners. In Committee, there seemed to be a general consensus that the enhanced scrutiny powers for shire districts should reflect the arrangements for LAAs and that providing the overview and scrutiny committees of shire district councils with exactly the same enhanced powers over LAA partners as county councils could cause confusion and duplication. That is what we are anxious to avoid. The consequence of that, for example, is that the Environment Agency could receive separate reports on two levels on similar matters containing conflicting recommendations, to which the EA would have to have regard, from a county and up to 13 district councils, and some of our larger areas. That would be the effect of Amendments Nos. 195ZJ, 195ZK and 195ZL. Clearly that is not satisfactory. It is our intention to provide the overview and scrutiny committees of shire district councils with enhanced scrutiny powers in relation to those partners that shire districts themselves have with partnership arrangements. There could be a district council, which might in the operation of the LAA make a partnership with, say, the Environment Agency in relation to a particular district issue on waste collection, for example. In relation to that specific partnership, reports could be produced, which honour LAA targets, and could be sent to the county council, thereby providing an important contribution to scrutiny. Those enhanced scrutiny powers apply to those specific partnerships at that level. As I have already explained, we need to ensure that the arrangements make sense and do not place unreasonable burdens on local partners. There are some important points of detail to address on these arrangements in two-tier areas. For example, which particular public service providers should be required to provide information to shire district scrutiny committees? What requirements should there be on county councils and local partners in relation to shire district scrutiny reports? All the regulations do is to give us the flexibility to ensure we can provide for a framework that does not see duplication and unnecessary burdens. It is really as simple as that. We also provided in the Bill, through regulations, that county and district councils may establish joint scrutiny committees, as the noble Baroness said, which would have the same enhanced powers of scrutiny over LAA partners as a county or unitary authority. Amendments Nos. 195ZJ, 195ZK and 195ZL would remove our ability to make such regulations. Again, we have not opted for that approach because we want to prescribe the fine details of how such local arrangements will work; far from it. Regulations simply ensure a broad framework and flexibility to address key questions, such as which of the powers in the Local Government Act 2000 underpinning individual scrutiny committees should apply to joint committees? Should councillors be able to take a councillor call for action to a joint committee? What requirements should there be on the councils or executives to which joint committees send reports? It is about providing some certainties for local councils on some of the powers and functions of the committees themselves. It is not about being prescriptive or saying how they should work or who should sit on these committees. It is nothing like that. It is enabling. It is about clarifying and ensuring that there is a clear path for them to take. There are some potentially broad powers here and, as I said in the White Paper, they need to be exercised responsibly by focusing on constructive challenge and consideration. Ultimately, everything is about improving services and benefits to people. I hope that the noble Baroness will feel that that fairly detailed explanation is reassuring enough for her to withdraw her amendment.
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- Baroness Scott of Needham MarketLiberal Democrat
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- My Lords, I am grateful for the Minister’s assurances that the intentions are benign and that this does not represent a return to micro-management. I am sure that district councils will also welcome her words on the importance of district councils in local governance. I conclude with two remarks. First, I hope that we do not wait too long for these regulations. There are examples of regulations taking up to two years after the Bill is passed. That would make life very difficult for the local authorities concerned. Secondly, I emphasise to the noble Baroness that we must remember that county and district councils have each been elected, and each has its own mandate. While we do not on the one hand want unnecessary bureaucracy and burdens on partners, on the other hand the response of an organisation to a county council will have a county council focus. It may be that the legitimate aspiration of a district council is rather different. They will have been elected on that basis. There is sometimes a tension—which I recognise is uncomfortable for the Government—between respecting the democratic institutions on the one hand and bureaucracy on the other. In developing these, we must be careful to ensure that we respect that district councils are elected and have a separate mandate from the county council. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 195ZF to 195ZH not moved.] Clause 130 [Overview and scrutiny committees of district councils: local improvement targets]: [Amendments Nos. 195ZJ to 195ZL not moved.] Clause 134 [Alternative procedure for byelaws]:
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Lord Dixon-SmithConservative- Quote
- moved Amendment No. 195A:
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Baroness CrawleyLabour- Quote
- My Lords, I am very grateful to the noble Lord, Lord Dixon-Smith. I hope that I will be able to clarify further than I did in Committee the points that he has raised on other departments confirming by-laws. We are also grateful for the general support which has been given to our provisions to simplify and streamline by-law-making procedures throughout the passage of the Bill. In particular, we are grateful for the consensus surrounding the approach taken in Clause 134, whereby the by-laws which will no longer require central confirmation will be specified in regulation made by the Secretary of State. I shall recap briefly. We have taken the regulation-making approach so that decisions on whether exceptionally—and it will be exceptional—the confirming role should be retained by the Secretary of State can be taken on a case-by-case basis, taking account of the subject matters of the by-laws and the locations in which they might apply. This approach also allows as necessary for elements of the by-law-making process to be the subject of certain minimum requirements; for example, consultation on draft by-laws and publicity of by-laws following their enactment. I appreciate that the noble Lord, Lord Dixon-Smith, and other noble Lords would like to know the details of the particular by-laws which will be specified in these regulations. First, I assure noble Lords that there is a will across Whitehall to remove the Secretary of State’s confirming role unless there are strong grounds for retaining some level of central scrutiny. We intend that as many local authority by-laws as possible will be included in the first set of regulations, which will remove the Secretary of State’s confirming role. Of course those regulations have already gone out to consultation. That is why we are further ahead for the confirming of local authority by-laws than other departments. I can reaffirm that all by-laws currently confirmed by CLG will be included. This accounts for the vast majority of by-laws made by local authorities, and includes by-laws for pleasure fairs and roller-skating rinks, which are referred to in Amendment No. 195C. Furthermore, subject to the outcome of the consultation referred to by the noble Lord, Lord Dixon-Smith, on the contents of our regulations, by-laws confirmed by the DCMS applying to libraries, museums and by-laws for walkways confirmed by the Department for Transport will no longer need central clearance before they can be enacted by local authorities. I also assure noble Lords that all departments and agencies are actively considering the by-laws which they confirm on a subject-by-subject basis. That includes Defra, the Department of Health and the Maritime and Coastguard Agency, which respectively confirm by-laws relating to hairdressers, barbers and seaside pleasure boats, which are the subject of Amendment No. 195C. As to the timetable for removing the central confirming role referred to by the noble Lord, Lord Dixon-Smith, and which other noble Lords referred to in Committee, we plan to consult on our regulations at the end of the year with a view to having them in place for April 2008 if at all possible. That is as precise as I can make it. I hope that the noble Lord will accept the Government’s clear and committed intentions in respect of devolving responsibilities for making and enacting by-laws to local authorities, and agree to withdraw the amendment.
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- Lord Dixon-SmithConservative
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- My Lords, I am grateful to the Minister for that reply. It gives us some indication of the timescale. April next year is not that far away, and at least we shall then know what will be devolved and what will not and whether more departments than the immediate department promoting the Bill will be involved. It was a helpful reply and, in the circumstances, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 195B and 195C not moved.] Clause 188 [Conduct that may be covered by code]:
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- Baroness HamweeLiberal Democrat
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- moved Amendment No. 196:
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The Deputy Speaker (Baroness Thomas of Walliswood)Liberal Democrat- Quote
- My Lords, I remind the House that, if Amendment No. 196 is agreed to, I cannot call Amendments Nos. 197 to 199DA because of pre-emption.
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- Baroness AndrewsLabour
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- My Lords, I will try to clarify the questions, but as this is our first debate on the conduct regime, it is worth saying that Clause 188 deals with the remit of the principles that govern the conduct of members of authorities and the provisions of the moral code of conduct which they are required to follow. The clause responds to the interpretation of the remit of the code of conduct by the High Court judgment in 2006 in the appeal of the Mayor of London, which cast doubt on the ability of the code to cover the conduct of members in their private capacity. Subsequent amendments explore some of the issues that arise. Amendment No. 196 would delete subsections (1) to (3) and would remove the provisions which provide that the principles governing the conduct of members, the provisions of the code of conduct itself and the provisions which authorities may add to their code may apply to a member’s conduct at all times. I know that the noble Baroness has used her amendments as a hook to explore the real issues about which she is concerned, which I shall move on to. We take the view that the ethical regime should apply equally to appointed and co-opted members as to elected members. Essentially, the indisputable point is that the same concerns about the appropriateness of behaviour and access to the decision-making process apply to all members, not just elected ones. I understand that noble Lords have concerns about whether appointed members are co-opted members for the purposes of the ethical regime. I shall set out how we intend to deal with appointed and co-opted members under the terms of the conduct regime. I am not sure that it adds up to an audit trail, but it will indicate the pathway. Clause 82 provides for a parish council to appoint people to be councillors. The intention is that the council will be able to appoint people who it feels would strengthen and widen the range of interests represented on the council, including members who could not be elected councillors, such as those below the age of 18. Under the terms of the clause, appointed members will be councillors of the council, which will mean that the ethical regime applying to members will also apply to appointed members. I can confirm that it is our intention that the code of conduct and the other elements of the ethical regime will apply to appointed members, as it already does to elected and co-opted members. Powers are already available to authorities to co-opt people to serve on councils. The Local Government Act 2000 already provides that the principles which members must follow and the provisions of the code of conduct which apply to members should also apply to co-opted members. Our intention is not therefore to provide for appointed members to be treated as co-opted members for the purpose of the ethical regime. The Bill makes separate provision for appointed members to be treated in the same way as elected councillors for this purpose. I can assure noble Lords that appointed and co-opted members will be subject to the same standards regime as elected members. I hope that is sufficient indication of the route by which appointed members will be included and reassures the noble Baroness that there is a proper arrangement for that.
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- Baroness HamweeLiberal Democrat
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- My Lords, I am grateful for that. It is new Section 16A(3)(e) in Clause 82. When I referred to it earlier, I could not remember which clause it is in. It states that regulations may make provision about the purposes for which a person appointed is to be treated as an elected councillor. Not for the first time over the years, I find myself in this building as if a bit behind the looking glass. It is a little odd to have a specific provision in primary legislation for co-optees and to have to pull appointees in through the back door. I am mixing my metaphors but I am sure that the noble Baroness understands what I mean. Having to look to regulations to see how an appointee is treated as an elected councillor is not an entirely desirable way of going about things. Despite what the Minister said, I have the audit trail I was seeking, for which I am grateful. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Baroness AndrewsLabour
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- moved Amendment No. 197:
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- Baroness HanhamConservative
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- moved, as an amendment to Amendment No. 197, Amendment No. 197A:
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- Baroness Scott of Needham MarketLiberal Democrat
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- My Lords, I welcome the Government’s amendments, which will bring clarity to private conduct. Noble Lords may remember my expressing in Committee grave reservations about the current situation, where the private conduct of a councillor could be treated in such a way as to result in their suspension from office and all that that entails, whereas were they a private citizen it would result in no action being taken. I know that the Human Rights Committee had expressed concern that that situation was possibly contrary to human rights legislation. I used in Committee the analogy of the courts martial system, which has come in for criticism in Europe for introducing a quasi-legal framework and sanctioning individuals for offences which, were they to be committed by someone who was in another profession, would not be prosecuted. Councillors should not be treated as a separate species, so I am glad to see that private conduct is to be removed from the code. The difficulty that we now face is how we draft legislation that deals with criminal conduct. Like the noble Baroness, Lady Hanham, I am concerned about framing the amendment with the expression “would constitute a criminal offence”. How might the procedure work? Does the ethical standards regime kick in after the court has decided that someone is guilty of a criminal offence? In that case, “would constitute” are not the right words for the legislation. I suspect that “would constitute a criminal offence” is in the Bill because an individual who is charged with a criminal offence and is going through the legal process would remain a councillor until found guilty, which in a sense is right because we are all supposed to be innocent until proven guilty. However, I suspect that people in a locality would find it difficult to be represented by an individual who had been charged with, for example, child pornography. We have reached a difficult point. When a councillor is suspended from office, it is serious not just for the individual but also for the area that they represented. How do we deal with that situation while the legal process is going on?
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Lord Graham of EdmontonLabour- Quote
- My Lords, this is probably one of the most difficult aspects of councillorship, and a council’s stewardship on behalf of its electorate. I do not envy the Minister or her advisers one bit. They must ultimately stand by an Act of Parliament whose wording is robust and gets to the heart of the matter. Although the noble Baroness, Lady Scott, said that we are all innocent until proven guilty, once the hare begins to run, an issue becomes public and a court is involved, one forms an opinion based on the evidence. Many of us will know that from experience of being members of a council or working in another sphere of public scrutiny and accountability. It is no less true in my home when I am with my sons and whenever I am sitting in the Tea Room. We will all have had experience over the years of coming to the wrong conclusion or giving the wrong verdict. This is therefore a delicate matter. But I think that the Government are entitled to some satisfaction, given the explanations that we have had and which we are still to get. The Minister has the difficult task of trying not to try the person who may or may not be guilty of the offence but who may be guilty of an offence that is not directly related to his ability and integrity as a councillor. The illustration that the noble Baroness, Lady Scott, gave is perfectly fair. However, in my experience, when Members of this House have been subject to court proceedings—that is, when they are guilty of a matter—the hare begins to run. From my experience many years ago in the London Borough of Enfield, I remember one or two instances—though only one or two—when a councillor’s behaviour outwith his stewardship and responsibilities to his constituents was the subject of proceedings. This is not exactly a grey area but one in which there will always be personal views that will colour the outcome. We all know of times when individuals whom we have known have faced horrendous charges yet have got off and not been convicted. I think that the Minister should take heart from the fact that this House, and the people who represent local government, are conscious of the great burden that she carries. Whether she has got it right or not, the solution will have to be robust and stand the test of time, and she is entitled to our support.
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- Baroness AndrewsLabour
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- My Lords, it is always daunting when someone says that they do not envy the Minister and that the Minister has a difficult job, even when it is said by as good a friend as my noble friend Lord Graham of Edmonton. We are in very sensitive areas here. My explanation why the words of the amendment were chosen as they were and why we have difficulty in accepting the noble Baroness’s amendments turns on some complex issues of legal interpretation and in relation to process—to the relationship between the courts and standards committees as well as the work as it interacts and relates to the conduct of the member. The opposition amendments relate to Clause 188 and the remit of the ethical regime to include conduct in a local authority member’s private capacity. The amendments spread over quite a number of separate issues, so I shall address them all as I go on. Amendments Nos. 197A to 197D, 198A to 198D, 199A to 199D and 199E taken together aim to provide that the principles which govern the conduct of members, the model code of conduct that they are required to follow and any additions to the code adopted by an authority should include conduct in members’ private capacity only when that conduct has resulted in a criminal conviction that is directly relevant to the official functions of a member. I understand the concerns of noble Lords, which we discussed a little in Committee. They were worried that the operation of the ethical regime for local councillors, especially the provisions that we are proposing in respect of members’ private capacity, can sometimes result in unfounded allegations being made. The process of investigation, including the media scrutiny that can sometimes occur, can have an effect on a member’s reputation, even when the case is later decided in the member’s favour. I believe that we have to address that alongside the principles that we all share, because local councillors should set an example, but we need proportionality here. I appreciate the intention behind the amendments to moderate the effect of the ethical regime by linking the remit of the code to conduct in members’ private capacity that has resulted in a criminal conviction directly relevant to the member’s official role. The noble Baroness argued, drawing on the comments of the Joint Committee, that by doing so there will be greater clarity and greater security. The problem is that this would not be delivered by the amendment. That is the case, for good but technical reasons, as I shall explain. For practical and sensible reasons we have tried to provide in the Bill that the principles and the code should apply in members’ private capacity only where that conduct constitutes a criminal offence. I agree that there should be no right to condemn a councillor for acting in his private capacity in the absence of a conviction, but the problem is not that easily solved. The amendments that refer to the phrase “criminal conviction” do not achieve their objective because at the time of undertaking the conduct it is impossible for it ever to have resulted in a conviction, as the amendments provide. A member who has been accused, for example of an offence relating to child pornography, cannot have been convicted of the offence at the time of committing it, but the code would have to be applied in respect of that timeframe. As these amendments would mean that the relevant rule of the ethical regime would have no effect at the time the offence was committed, the member could never be guilty of having breached the code of conduct for members for any behaviour he committed in his private capacity. Since conduct cannot be designated as conduct for which the member has been convicted at the time it was committed, an approach which included reference to criminal conviction would mean that a claim that a member had breached the code in respect of conduct in his or her private capacity could never be taken forward for investigation. So even if the allegation was made after the member had been convicted by the court, the member’s action when undertaken would not necessarily be action in respect of which there was at the time a criminal conviction. I understand that the argument has an element of the surreal and it may seem to miss the point that the noble Baroness addresses, but I assure noble Lords that having taken best advice on this our approach is the only sensible and practical way of dealing with the law in this respect. On the human rights aspect, we consider that the proposals are consistent with the ECHR requirement since the rules relating to members’ behaviour in their private capacity do not interfere in any person’s human rights to any extent which is greater than the criminal law already provides; that is to say, where a member’s conduct constitutes a criminal offence. The Bill provides for the remit of the regime to include conduct in a member’s private capacity which is capable of being regarded as a criminal offence. I understand the problems that noble Lords see with this and I take the point made by the noble Baroness, Lady Scott. However, there is no question of our seeking or expecting the standards committee or the Standards Board to pre-empt a criminal prosecution. Reference in our amendments to conduct which constitutes a criminal offence is a means of identifying what conduct should be proscribed by the ethical regime. The standards committee will not decide this question. It will not make decisions on criminal offences. The judgment on whether a criminal offence has been committed will remain a matter for the courts to decide. As regards an allegation involving a criminal prosecution, we shall follow what for many years has been the usual practice in the operation of the code in relation to criminal charges arising from a member’s official capacity. As in the case of conduct in a member’s official capacity, if an allegation were made which potentially involved a criminal prosecution, the practice set out in guidance from the Standards Board would apply. If it decides to investigate the case—as the noble Baroness, Lady Scott, said—the committee would have to await the outcome of the criminal processes. Therefore, the court conviction triggers the committee decision on what happens next. We intend to issue regulations to define the offences which should be included in the code. For a standards committee to conclude that there has been a breach of the code, it will need evidence that can be ultimately provided only by the court convicting the member. I believe that this is a complex but fair relationship.
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- Baroness HanhamConservative
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- My Lords, I am sure that the Minister will not be surprised when I say that I am going to have to look at Hansard and study what she has said. I have done my best to take in all that she said, but I am not going to say now that I will not return to the matter at Third Reading because, in view of what she said, it is only fair that I should be able to—and I will. There is still conflict between us about how these provisions are made and how they deal with private life and a conviction. The Minister has in effect agreed that it will be a conviction on a criminal offence that will trigger the Standards Board taking additional action. Being contradictory again—let us be clear, we are talking about an offence that would bring with it a conviction of between none and three months, so it is at the lower end of judicial responsibility—action, even a prosecution, is not necessarily a conviction. It may never end up as a conviction. Allegations can be made for all sorts of reasons, some of which are not at all proper and may be mendacious and vexatious. For a Standards Board to be able to leap in at that stage and take action would be completely improper. That could happen under the Bill as it stands, including the phrase, “would constitute a criminal offence”. I need to concentrate on the words “would constitute”, because the Minister’s explanation was confusing, and it will not give us the clarity that we need. I am mindful that this all started when the Mayor of London got himself into a tangle in a public matter that ultimately went to the courts—although it was an appeal to the courts by him and not the other way round. We are dealing with a slightly different thing here. I am keen that we get this as near right as we can. I would like to have another go to see whether I can get the Minister to agree a different form of wording, or for us all to agree on an explanation. For today, I will withdraw the amendment, but I will come back to it on Third Reading. I beg leave to withdraw the amendment. Amendment No. 197A, as an amendment to Amendment No. 197, by leave, withdrawn. [Amendment No. 197B, as an amendment to Amendment No. 197 not moved.] On Question, Amendment No. 197 agreed to. [Amendments Nos. 197BA to 197E not moved.]
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- moved Amendment No. 198:
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- Baroness AndrewsLabour
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- moved Amendment No. 199:
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- Baroness AndrewsLabour
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- moved Amendments Nos. 200 and 201:
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- Baroness AndrewsLabour
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- moved Amendment No. 202:
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- Baroness Scott of Needham MarketLiberal Democrat
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- moved Amendment No. 203:
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- Lord Graham of EdmontonLabour
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- My Lords, I was interested in how bereft a constituency would be if the member was absent for a long period. Forgive me if I have got it wrong, but many areas are represented by more than one councillor. I do not know the precise breakdown, but in my day—and I do not think that there has been much change—you often found that when absences took place for whatever reason, the burden was carried by the other members. Even if the member is not there and there is no one else to look after that ward, most parties have a system whereby a neighbouring councillor or someone else is able to step in. If a misdemeanour has occurred, perhaps by sharp practice, avoidance of declarations or another offence, the punishment must be short and sharp—and a year is a short time, because they serve for a longer period. The public must be made aware that something serious has happened. Reducing the suspension period would not improve the situation; 12 months is a long time and there are duties that must be performed, but not many council meetings or committee meetings would be forgone. This view of the general councillorship would weaken the sanctions available.
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Baroness MaddockLiberal Democrat- Quote
- My Lords, I support my noble friend, not because I do not think that it is serious if someone is not allowed to take part for a year due to a misdemeanour but because of what would happen in the area in which I live. My co-ward councillor, who had been a councillor before I joined him in the ward in the borough of Berwick-upon-Tweed, had to be out of office for a year for a misdemeanour which, under the new code, would not count as such. He tried to represent his constituents on planning but was slightly foolish in that he did not take the advice of the borough solicitor and contravened the rules at the time. Now, I would step into the breach. However, under the reorganisation, in the wards in question, which constitute a small part of the county division that I represent, there will be one councillor for the whole of my county division. If I were that councillor and were out of office for a year, that would be quite serious for my part of the county. I can think of all sorts of scenarios in which someone not being allowed to take part would be detrimental, and my noble friend makes a very good point. It does not make sense to say that someone can be dismissed from a council because they have not attended for six months, yet they can be out of office for a year for a misdemeanour. As I have already said in these proceedings, given that in my part of Northumberland the number of councillors is going down from 306 to 67, I think that the Government should look at this matter rather more carefully. I therefore have a great deal of sympathy for what my noble friend said.
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- Baroness AndrewsLabour
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- My Lords, I am grateful to all noble Lords who have spoken in this short debate. These are important points—especially that raised in the closing remarks of the noble Baroness, Lady Maddock. Opposition Amendment No. 203 would amend the maximum sanction of suspension of a local councillor from office that a case tribunal of the adjudication panel could impose from the current one year to six months. It may be useful if I put this proposal in the context of the maximum sanction available to standards committees, which, in the new conduct regime, will deal with most misconduct allegations. At the moment, standards committees are able to impose on a member a maximum sanction of suspension from office of only three months, and this is set by regulations. As, for all the reasons that we have discussed at various stages of the Bill, it is likely under the new regime that committees will consider a larger number of more serious cases, we intend shortly to consult on a proposal to increase the maximum sanction available to committees to six months. In that context, we consider it appropriate that a legally constituted quasi-judicial tribunal of the adjudication panel should be able to impose a higher penalty than a local standards committee. The consequence of a decision to suspend a member from office is that the member must cease to act as a councillor. Notwithstanding the difficulties in large areas with single-member wards—of which the noble Baroness, Lady Maddock, spoke and to which I listened carefully—for the period of suspension electors are required, rightly, to rely on other councillors in the same ward or neighbouring wards, as appropriate, to represent their interests. That is not always easy to do but clearly it is an obligation.
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- Baroness MaddockLiberal Democrat
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- My Lords, I should have declared an interest as a member of a standards board on both Berwick-upon-Tweed Borough Council and the county council.
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- My Lords, I am very grateful that we have that on the record. The current rules relating to the maximum sanction available to the adjudication panel have been in operation since the provisions were enacted in 2000. I know how seriously noble Lords take the local government world, but we have received no indication from that quarter that the time limits on suspension are a matter of concern. Up to March 2007, suspension from office for one year occurred in less than 4 per cent of the adjudications made by the adjudication panel, so the power is not being used extensively, let alone misused. In addition, we consider that the retention of the one-year maximum is appropriate to allow the panel to be able to reflect the seriousness of the conduct which might attract such a penalty. The types of behaviour that have attracted the maximum penalty include threatening or abusive behaviour which has not resulted in a criminal charge but is a very serious breach of the code of conduct. I think it right that in such cases the sanction available should be proportionate to the seriousness of the offence, and I believe that the provision provides for that. Therefore, I hope that the noble Baroness will feel able to withdraw her amendment.
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- Baroness Scott of Needham MarketLiberal Democrat
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- My Lords, I am relieved to hear that this sanction has been used only in a small proportion of cases; nevertheless, as we heard from my noble friend Lady Maddock, it does happen. I remain of the view that a year is a very long time for a local area to be unrepresented, particularly in a single-member ward. It is all right to say that that work can be pushed on to someone else, but more councillors are already pretty busy looking after their own wards. To have to take on all the casework that relates to another ward for a year because of the misdemeanours of one of these colleagues is a bit rough for them. It is less than satisfactory for the community involved. If the proposed sanction is a year in areas of conduct that are so serious, such as threatening behaviour, to which the noble Baroness referred, perhaps a better way from the point of view of the electorate would be to end someone’s term of office. At some point later they would become eligible to restand. To leave an area unrepresented for a year is dangerous and wrong. To argue that it does not matter is to undermine the democratic principle. I remain unconvinced but I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 226 [Health services and social services: local involvement networks]:
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- moved Amendment No. 204:
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Earl HoweConservative- Quote
- My Lords, I am grateful to the noble Baroness for having taken our concerns from Committee and examined them so constructively. The amendments that she now proposes go a long way towards meeting the objectives behind my amendments tabled in Committee. They improve the whole flavour of this part of the Bill. I hope that other noble Lords will feel similarly, and I am pleased to accept the government amendments. On Question, amendment agreed to.
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- moved Amendment No. 205:
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Lord Low of DalstonCrossbench- Quote
- moved Amendment No. 206:
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- Earl HoweConservative
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- My Lords, the noble Lord, Lord Low, has admirably summarised the issue in relation to these amendments. I merely rise to say that I should like to give him the fullest support from these Benches. I recognise that this is not an easy problem to solve. It is, however, a long-standing one. I hope that the reply we are about to hear will be suitably constructive.
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Baroness NeubergerCrossbench- Quote
- My Lords, I support everything that the noble Lord, Lord Low of Dalston, and the noble Earl, Lord Howe, have said. It has been a long-standing problem, causing considerable distress to a large number of people over the years. We on these Benches strongly support these amendments.
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Baroness Howarth of BrecklandCrossbench- Quote
- My Lords, this problem lives in the “too difficult” box. No one will apply his mind to take it apart to assess the parts that can be tackled and dealt with. After all these years, the Government have a responsibility to do something about a problem that causes extreme anxiety and distress to a large number of vulnerable people. The noble Lord, Lord Low, indicated and I emphasise that they are usually people who find it difficult to speak and argue for themselves. A move from one place to another will often make a real difference to their lives; they might be closer to their family or to someone they love. A young disabled woman I know fell in love—people do—with a young man but, as she was in a particular placement, she found it impossible to be moved to another placement because another local authority would not accept the payment for her move. That happens across the spectrum. There are complex difficulties about people moving from residential homes into special housing or even into ordinary housing. I have been pressing that with Ministers in the other place for some time. It is difficult, but it should be possible to resolve this issue with the Local Government Association. I understood that guidance had been put in place to ensure that vulnerable people are not made more anxious and their lives are not made more difficult by this administrative burden. If the Minister does not have an answer today about how this might be resolved, will she or the Government go back to the Local Government Association to seek a resolution once and for all?
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Baroness Morgan of DrefelinLabour- Quote
- My Lords, I am again speaking on this issue and I hope I can continue the constructive and positive tone of Committee. I will explain some practical and straightforward steps that the Government plan to take. I thank noble Lords who spoke and particularly thank the noble Lord, Lord Low, for continuing to keep this discussion out of the “too difficult” box. I am sure that we will have opportunities to keep it out of that box in the new Session. This amendment seeks to ensure that LINks can have an overview on issues including, for example, if a local authority wants to move someone to a care home out of the area. I confirm that the activities of a LINk in relation to a local authority area, as they are described in Clause 226(2), apply to care commissioned and provided to people who have moved their place of ordinary residence into that area. The definition of “local care services” given in Clause 226(5) is, “care services provided in the authority’s area; and … care services provided, in any place, for people from that area”. Therefore, anyone living even temporarily within a given local authority area will be able to share their experiences of care services with the LINk for that area, even if the services they receive are from outside that area—I wish to stress that. Any healthcare commissioned by the PCT will fall under the remit of a LINk, even if it is provided in, for example, a prison. I understand that Amendment No. 220 is a means to secure what the noble Lord, Lord Low, eloquently described as social mobility by ensuring that local authorities should be under a duty to co-operate, for example, in the sharing of needs assessments to facilitate and speed up payments if people move from area to area. I understand the examples given by noble Lords today. This is an important issue and not something that we wish to be seen not understanding. I thank noble Lords for clarifying the issues around the mobility of disabled people and the local authority’s responsibilities in this area. Officials from the Department of Health met representatives from the Voluntary Organisations Disability Group—VODG—in mid-September to discuss these matters. At that meeting, it was agreed that, as part of the department’s priority-setting round, which begins soon, they would consider the case for updating and revising the ordinary residence rules and that any future work would involve the VODG and other key stakeholders. That is an important development. We will be making three small technical changes to the ordinary residence rules in the health and social care Bill that is likely to come before the House in the new Session. The first change involves the situation where the dispute involves an authority in England and an authority in Wales. At present, such a dispute can be resolved only through an arrangement between the National Assembly for Wales and the Secretary of State for Health. The second change addresses the fact that the statutory provisions governing how a person’s ordinary residence is affected by receiving NHS in-patient treatment in non-NHS settings—for example, care homes and private hospitals—are out of step with those for patients receiving such treatment in NHS settings. We plan to remedy that. The third change relates to ordinary residence disputes involving Section 2 of the Chronically Sick and Disabled Persons Act 1970. At present, disputes that cannot be resolved locally must be referred to the court for a decision. The amendment will allow the Secretary of State to make a determination thus simplifying the process and reducing potential costs for all involved. I hope that we can keep this important issue out of the “too difficult” box. I am aware that the department is looking forward to continuing to work with organisations such as the VODG and other stakeholders and continues to be grateful to noble Lords for raising these important issues. I imagine that they will continue to do so when we discuss future legislation on this matter. I hope the noble Lord feels able to withdraw his amendment.
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- Lord Low of DalstonCrossbench
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- My Lords, I am grateful to the noble Baroness for her reply. It is clear that things are moving forward positively, so I will be able to withdraw the amendment. I am grateful for the changes that the Government propose to make to legislation and regulations. However, there is more work to do. The noble Baroness said that the department is going to consider whether it can undertake further work on this issue and what priority it can give it in its work programme for the period ahead. I do not have a great deal of confidence in the department’s priorities on this issue because in 1984 there was undertaking to revise the relevant guidance, but it has not yet been done. We will need to continue to be vigilant about the priority this is given in the department. I hope that the noble Baroness will continue to keep a vigilant eye on it and will use her good offices and her best endeavours to ensure that it is given appropriate priority. Noble Lords have indicated that this problem is long overdue for solution, and I hope the Minister will do her best to ensure that it is accorded some priority in the department’s programme. If there are any difficulties about this I am sure the noble Baroness will be more than happy to meet noble Lords who have expressed an interest in these issues. Having heard what the noble Baroness has had to say, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Baroness AndrewsLabour
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- moved Amendment No. 207:
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- Earl HoweConservative
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- moved Amendment No. 207A:
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- Baroness NeubergerCrossbench
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- My Lords, the noble Earl, Lord Howe, has said virtually everything that needs to be said on these subjects. I just have a couple of points to add at this stage. First, I think that we are all concerned about possible conflicts of interest for hosts. It is critical that NHS bodies are included in the Bill as bodies that cannot be hosts. Will the Minister comment on how we deal with possible conflicts of interest that may exist when voluntary organisations that are members of LINks—a point we raised several times in Committee also act as their host? How does one deal with such conflicts of interest? Secondly, will she add to what the noble Earl just said about LINks being able to network together and the extent to which that will be helpful and useful, given the restriction to local activities that exist at present, as far as we understand the legislation? This has been raised with me as a key point by some of the ambulance organisations and mental health organisations. They say that, particularly when one is dealing with specialised issues, one needs to have some comparison of what is going on over a larger patch. That is equally true of relatively rare diseases where you would expect user groups to be able to compare one patch with another. It would be helpful to know from the Minister what she thinks the LINks will be able to do in their network activities. I echo the noble Earl in thanking the Minister for enabling some form of LINks networking to take place. That will be much appreciated.
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Baroness Masham of IltonCrossbench- Quote
- My Lords, I thought that other noble Lords were going to speak. If LINks do not have a structure and an administrator, how will they be organised? Fragmentation will not be productive, will it? How do priorities get heard? The public are now very worried about hospital-acquired infections. Is that not something that LINks could speak up about? Hospitals have illustrated that they brush the problem under the carpet until a report is made public. Surely, one wants to act on prevention rather than cure, because cure is a difficult thing to accomplish with the spores of C. difficile.
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- Baroness AndrewsLabour
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- My Lords, the debate opened with the noble Earl being very sceptical about the form that the LINk would take. We had extensive debate in Committee on that. I will return to that argument as I go through the amendments because I have something to say. I will also pick up some of the other points made in the Chamber. The group of amendments includes some government amendments, so I will take things in grouped order. Amendment No. 207A would clarify that an NHS body cannot take on the role of host for a local involvement network. I understand why the noble Earl is returning to this point at Report, because it is important to deal with potential conflicts of interest. In this clause we explicitly exclude NHS bodies from being LINks, but not from being hosts. It is formulated in that way because it follows the principle that we have so firmly addressed in the vision that we have for LINks because it is ultimately for a local authority to decide who ought to be a host. We have made the premise and purpose of a LINk clear in the Bill and in guidance. A LINk will be a body able to independently scrutinise health and social care services. Given that purpose, I entirely agree with the noble Earl that it is clearly undesirable, not least on the grounds that there might be a potential conflict of interest, that an NHS body should take on the role of host. We have made it clear throughout the whole debate on Part 14 that it is deliberately permissive. The issue of who and what can be a host is a good example. We have said from the beginning that we want LINks to reflect the local ecology of health and, for the first time, local care services. It is an extremely important and radical development. A LINk will reach out into communities beyond the normal networks in a way that will be different from the excellent work of the patients’ forum. It is a different organisation and we congratulate members of the patients’ forum on all the work they have done. We are indebted to them and I am confident that they will be working very closely to pursue the same objectives with the LINks. They are very dedicated people. We have placed a duty on local authorities to make arrangements and those arrangements are to procure the services of a host. Local authorities are extremely knowledgeable, none more so than about what makes up their local communities—what concerns they have, what services are provided locally and what services are best suited to the needs of local people. The Bill is deliberately permissive about who can be a host. Only the local authority itself, as the noble Earl said, can explicitly not be chosen. I also accept that NHS bodies would not be appropriate hosts. It is not our call. We believe that local authorities are best placed to make that choice—not Parliament, the Department of Health or the Department of Communities and Local Government. I do not fear that there will be a dearth of people coming forward. As soon as the commissioning process is under way—it has already started in many local authorities and it is going well—many different authorities and organisations will want to come forward to be hosts. Many will come from the voluntary sector, which is particularly well placed. It is well used to the role of advocacy. Some will come from the forum support organisations. For those reasons, the balance that we have tried to strike is between making sure that the host is a responsible body, and not proscribing, other than excluding the local authority, who it should be. I hope that the noble Earl will take that point. I am very pleased that both the noble Earl and the noble Baroness, Lady Neuberger, have welcomed what we have been able to do with government Amendments Nos. 208 and 209. I will come to the point about whether we have satisfied every criterion in a moment. The probing amendment put by the noble Baroness in Committee was useful because it clarified whether LINks would be able to collaborate with other LINks either regionally or nationally. In particular, she sought assurance that there would be the potential for LINks to form a national association and that will obviously provide an important focal point for LINks. She also sought to clarify the budgetary arrangements for possible LINks collaboration. At the time, I recognised that further thinking was needed around collaborative arrangements. It was not clear enough, not least because we had always envisaged that some LINks would be bound to want to forge relationships with others. They would want to share ideas. There is a huge wealth of experience, not least that generated by the patients’ forums. They would want to share information and good practice. We wanted to be sure that there were no barriers to that happening. The Bill is written in such a way as to allow local authorities, hosts and LINks organisations to create their own models of working, because we believe that local communities know best how to form their own partnerships. But the flexible nature of the arrangements under the Bill would in any case allow for arrangements to be made which enable groups of LINks to be able to join together to form a national association. What could happen was never in doubt.
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- My Lords, will there be any independence for LINks or will they be organised and ruled by the hosts? Power is a very dangerous thing. How can the Minister be sure that this will not happen?
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- My Lords, the analogy I used in Committee was that the host would be the Civil Service. The host will not tell the LINks what to do. The LINks will drive the host. The host will facilitate and help the membership of the LINk to determine its priorities, what it wants to focus on and how it should go about its tasks. In no way will the host either drive the LINk or compromise its independence.
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- Earl HoweConservative
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- My Lords, I am grateful to the noble Baroness for her detailed reply and particularly grateful that she has agreed to take the amendment relating to governance away with her for further consideration. I just add to what I said—I am sure that she appreciates this—that my amendment does not seek to be prescriptive about particular governance systems. All it does is try to ensure that some form of governance arrangement exists within a LINk. To that extent it is prescriptive, but its prescriptiveness is fairly mild. I am grateful for the reassurance that the Minister gave on collaboration, which I can only accept. It is good to know that there is no question of LINks acting ultra vires if they choose to engage in activities that are regional or national in their scope. I was disappointed with the Minister’s reply about the conflict of interest question. To imagine an NHS body as a host is to imagine something undesirable and inappropriate. Indeed, those were the words the Minister used to describe that situation. Yet she also said that the Bill was deliberately permissive. I find that very strange. But even if we are able to live in hope that such a situation will not arise, I have a nagging worry that under the rules of statutory construction the explicit exclusion of NHS bodies from LINks would suggest their implicit acceptability as hosts. I can only suggest that the debate we have just had is flagged up in some appropriate way to deter anyone from even supposing that an NHS body might prove an acceptable host. The Government are being rather precious about this issue in not countenancing the matter being sorted out on the face of the Bill. As regards dispute resolution, again I was sorry that the Minister did not warm to the proposal that I put forward. I simply ask: who out there will be capable of advising Government how well the LINks system is working nationally? It surely cannot be the LINks themselves nor, realistically, can it be local authorities. The role of a monitor would not simply be a tier of bureaucracy, as the Minister put it, but a function that Government and LINks would find invaluable. Nevertheless, I am grateful to the Minister for having considered the issue. We may reserve the right to revisit the amendment at Third Reading, but—
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- My Lords, I certainly do not want to be considered precious. I listened hard to what the noble Earl said on the amendment on the NHS and he has come back equally powerfully. I cannot imagine that a local authority would procure the services of an NHS body to be a host—if it did, it would have to have exceptional reasons—but I shall take the matter away, have a final look at it and consider over the coming week whether there is anything to be gained by this.
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- Earl HoweConservative
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- My Lords, that is a helpful offer on the part of the Minister. I am most grateful. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- moved Amendment No. 208:
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- Baroness AndrewsLabour
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- moved Amendment No. 209:
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Baroness MurphyCrossbench- Quote
- moved Amendment No. 209A:
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- Earl HoweConservative
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- My Lords, it is with some hesitation that I intervene in this debate, because I have the highest regard for the noble Baronesses, Lady Murphy and Lady Meacher, and their views. However, I have to say I disagree with the approach they have taken in these amendments. I shall quote from the report on the Bristol inquiry to explain why I do so. Paragraph 14 of the report says that, “if the quality of the care given to patients is to be taken seriously, there are some matters on which only patients are qualified to speak, for example, the extent to which any particular service accords with the needs of the patient … The views of patients and the public are relevant not only to the standards to be observed by healthcare professionals; but also to the standards and performance of hospitals”. To argue that patients in a given locality are adequately represented by boards of governors misses the key point that boards of governors are concerned only with what is done or not done in their particular organisation. The patient perspective on local services encompasses more than just a single trust; it also encompasses groups of people who may be completely unrepresented on trust boards. Foundation trust members are a self-selected group of people who officially have no duty towards the wider community served by the trust. The Department of Health website says: “The main function of the Board of Governors will be to work with the Board of Directors to ensure that the NHS Foundation Trust acts in a way that is consistent with its terms of authorisation and to help set the strategic direction”. None of that has anything to do with the activities of a LINk. Indeed, I venture to say that a board of governors cannot fulfil its duties towards the trust while also attempting to fulfil the role of a LINk. Amendment No. 210ZA would confer on boards of governors a role that, I humbly suggest to the noble Baroness, they have neither the vires nor the funding to undertake. If there is still doubt about this, we have only to consider a situation in which major changes to local health services are being proposed to appreciate how the perspective of a trust board could not possibly be an adequate substitute for that of local patients and their representatives. If a LINk were to be denied access to information from a particular foundation trust or denied entry into that trust, it would be impossible for it to take a measured and informed view of locally provided services across the whole area. I hope the noble Baroness will, on reflection, reconsider her amendment.
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- Baroness NeubergerCrossbench
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- My Lords, I rise with not only some hesitation, as the noble Earl has said, but also a certain amount of trepidation, given that the two noble Baronesses are people I respect enormously and have worked with over many years, particularly the noble Baroness, Lady Murphy. However, I too have some concerns about the amendments. If we are now moving to a system of LINks, and if, although some of us have had our doubts about it, the system is particularly to be recommended because it goes right across the piece, including social care as well as healthcare, then it is wrong to exclude any element of what might be seen as provision of health or care services from the scope of LINks. It may well be that the members of the board of governors of a foundation trust might also be members of a local LINk; in fact, that may well solve the problem. But excluding them would be the wrong way to proceed. I hope the Minister will be able to give us some assurance that LINks will apply across the patch whoever the provider is, whatever kind of provider it is and whatever other governance arrangements there are for that particular body.
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- Baroness Masham of IltonCrossbench
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- My Lords, I go along with the noble Baroness and the noble Earl. Banning LINks from foundation trusts would not be wise. LINks, if they are going to be any use at all, will be interested in the standard of care in health and social care.
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Baroness MeacherCrossbench- Quote
- My Lords, I apologise that I have arrived rather late. I had to be at a rather important meeting in relation to the regulator and was therefore unable to be here. The noble Baroness, Lady Murphy, and I strongly support LINks’ activities in social care and all other healthcare that is not already dealt with by an existing organisation—for example, a foundation trust—where there is a board of governors with, in my own experience, a strong commitment to the communication role between the foundation trust and the public, the users, carers and others. A good proportion of members of the board of governors are users and carers. They are not, as mentioned by the noble Earl, a self-selected group; they are elected by some 10,000 members of the public, many of whom, again, are users or carers. They are representative and have a tremendous commitment to raising the quality of services for, as they see it, themselves—us, the users, the carers and the public. We have to be careful not to assume that somehow these are professional representatives; that is not how they see themselves at all. In proposing the amendments I was trying to achieve the best possible information, visits to wards by members of boards of governors and commitment to the interests of users, carers and the public while ensuring those functions were not performed twice over. It is for the Minister to decide whether she needs to go back and change the regulations and so on regarding boards of governors, or to make some amendment to the way in which the LINks would function. Otherwise, I fear that these two bodies with considerable public membership will duplicate each other’s effort in some areas, causing some confusion and, particularly, taking resources away from the front-line delivery of services, which we all want to achieve to the maximum degree. While I have a high regard for the speakers on the other side of the House and have much enjoyed working with them in the short time I have been here, I hope they will understand the motivation behind the amendments, which is to achieve the best possible outcome for patients, carers and the public—but not twice over.
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- Baroness AndrewsLabour
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- My Lords, I am glad that the noble Baroness, Lady Meacher, was able to join us in the Chamber for the debate. Her amendments were brilliantly moved by her colleague. We are all pretty trepidatious when it comes to taking her on with her experience of trust work. There is no one in this House more committed to that work, especially in mental health. I understand that the noble Baroness is concerned with the best possible outcomes; she has spoken to me about this herself. But with her Amendments Nos. 209A and 210ZA there is a risk of not joining up activities across LINks and foundation trusts, and there might be some overlap. The noble Earl described more eloquently than I could the differences between LINks and foundation trust boards. The functions of the two bodies are different. Foundation trust boards are institution-based and focus only on healthcare, while LINks are area-based and cover both health and social care. LINks will be networks of individuals and organisations and are about bringing work together; they are certainly not about duplicating it. There will be enough to do without duplicating the work of the foundation boards. Crucially, LINks will include organisations that might have little attachment to health, but whose members will be affected by health provision. Foundation trusts may wish to work with LINks or contribute to LINk research, and they may see the benefit of developing relationships with LINks as a useful means of gathering additional information to inform the development of services.
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- Baroness MeacherCrossbench
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- My Lords, I thank the Minister for her response. As she knows, I agree with her about the importance of LINks in developing communication with community services. I am pleased that she felt able to give a commitment to include in the guidance words that would exclude the possibility of duplication. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 229 [Duties of services-providers to allow entry by local involvement networks]:
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- Earl HoweConservative
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- moved Amendment No. 209B:
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- Baroness AndrewsLabour
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- My Lords, I appreciate that the noble Earl has tried hard to address the issue which we raised in Committee of what LINks will do when they carry out their activities on premises. He has come up, ingeniously, with the words “enquire into”. I am afraid that I shall have to disappoint him, but I hope that I will be able to reassure him at the same time. My understanding, which was confirmed by what the noble Earl said, is that the amendments are inspired by a concern that, when visiting premises, authorised representatives of LINks will not be able to ask staff, patients or patients’ families for their views on the level of service being provided. If that were the case, one would worry about it, because it would render the role of the LINks member essentially passive: they would become a fly on the wall or an observer. It would be a diminished role when compared with that of patients’ forums and leave them unable to judge how people really felt about their local care services. The noble Earl was right that we were unable to accept the word “inspect”, but the power “to enter and view” means the same thing. The phrase was deliberately chosen to recognise the fact that LINk participants are not inspectors. “Inspect” applies to the professional regulatory bodies; those involved in LINks are lay people and, as such, are able to take a view from the patient and user perspective. I reiterate that LINks will have exactly the same powers as the patients’ forums to enter and view. Their members will be bound to have training and support that will equip them to do that job properly. I think that I can reassure the noble Earl by helping him to understand how Clauses 226 and 229 fit together. Clause 229(4) makes it clear that while an “authorised representative” of a LINk is conducting a visit, any viewing or observation should be carried out for the purposes of the carrying on of the arrangements set out in Clause 226. In other words, while LINks members carry out only the activities listed under Clause 226(2), one of those activities is precisely to obtain the views and experiences of people relating to local care services. That power will enable them to listen closely and ask questions of the people who experience services in situ. I hope that the noble Earl will therefore agree with me that “to enquire into” as a separate provision is unnecessary. We certainly see the ability of LINks members to be able to talk to staff, patients, users of care services, families and carers as an absolutely vital and integral part of their role. That will enable them to fulfil one of their core activities, obtaining the views and experiences of people about their local care services. Of course, the arrangements are very similar to those that currently exist under patients’ forums; they are certainly no less powerful. To ensure that this is something that LINks will not overlook, we shall reflect it in the LINks guidance to be published next year. This is the only opportunity that I have in the context of this short debate to tell the House what the Government have decided to do about the gatekeeper role and the unannounced inspections with regard to enter and view. We had a lively debate about that in Committee, where it was raised as a key concern. The main worry seemed to be that installing a gatekeeper would remove LINks’ ability to conduct spot checks and services, because they would have to give a period of notice for their visits to allow the regulator to respond with suggestions that would streamline visiting efforts. We listened hard because the voices around the Chamber were very strong. A few people disagreed, but the majority were strongly in favour of us changing this. Over the summer we secured cross-government clearance to change our policy and not require LINks to write to the relevant regulator to inform it of the intention to conduct a visit. This would have been included in the draft regulations. Consequently, as part of our consultation on the draft LINks regulations, we have publicly announced our decision to drop the gatekeeper role, which will allow LINks the freedom to visit appropriate premises at short notice and enhance their ability to highlight any concerns and raise them with the proper bodies. Given the extension into care, that is a really important provision. We shall ensure that more detail on how it would be considered reasonable and proportionate visiting practice will be included in LINks guidance to be published in the spring. We certainly endeavour to reassure Parliament that removing the gatekeeper role would not place a significant burden on health and social care providers—and I hope that that in part meets the anxieties that the noble Baroness, Lady Meacher, feels. As with what I said in response to the previous amendment in relation to ensuring that the visits were co-ordinated, we shall need to address that point in some shape and form, because it is important. I shall try to reassure the noble Earl on government Amendment No. 210. The amendment provides that the power to make regulations imposing a duty on services providers to allow authorised representatives of LINks to enter and view their premises may restrict authorised representatives’ access to certain premises and to the viewing of certain activities. The noble Earl asked why we needed more restrictions. I know that he would accept that it is important to prevent the invasion of privacy or possible risk of harm. It will mean, for example, that we will be able to restrict authorised representatives’ access to certain premises such as staff accommodation and premises providing only children’s social care. We feel that this amendment is an essential safeguard to protect people’s rights to privacy and dignity. I think that the noble Earl will find that that is acceptable; it is certainly not a way in which to reduce access to places and people that need to be covered. I hope that he accepts my explanation.
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- My Lords, first, I welcome very warmly the Minister’s change of heart on the issue of the gatekeeper role for the health and social care regulators. I am certain that that is a positive step, for all the reasons that we debated in Committee, and I thank her for the thought and sympathy that she has given to the arguments put forward. On government Amendment No. 210, I am not sure that I totally accept the Minister’s explanation. Subsections (2)(b) and (2)(c)—and I should have made it clear that I was talking about those subsections earlier—seem to afford ample scope already for achieving the kinds of things that she was talking about. Nevertheless, I must take her answer at face value. Should the regulations turn out to be more restrictive than we expect, there will be an opportunity for noble Lords to challenge them.
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- Baroness AndrewsLabour
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- My Lords, I do not have the details of numbers that the noble Earl seeks, but I shall write to him on his point about the contracts currently held. We are aiming for consistency in this, but I shall write with detailed explanations of how we think that this is going to work.
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- My Lords, I am most grateful. It is clear that we shall have to return to this issue at Third Reading, which is a slight pity. In the mean time, I hope that we may be able to arrive at an understanding. With that hope in mind, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- moved Amendment No. 210:
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- Baroness NeubergerCrossbench
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- moved Amendment No. 210ZB:
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- Baroness AndrewsLabour
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- My Lords, we debated this matter in part in Committee and during the summer we thought about what the noble Baroness seeks to do. She is a very powerful advocate for this. I shall have to disappoint her, although I hope not entirely. I understand the concerns that she raised. I committed to taking the proposal away. As she said, I addressed the point in my letter to noble Lords of 3 October. I am certainly aware that the regulators are not opposed to involving people in their inspection activity. Indeed, CSCI, as we know, already does so, using experts by experience, and the Healthcare Commission uses lay representation on a number of visits, so the practice is well established. That shows how much value they put on the volunteer with experience and people involved in the front line of the health service. That is extremely important. Both regulators are keen for the new health and social care regulator to involve patients and/or the public, as appropriate, in follow-up inspections carried out for the annual health check and in other site visits associated with service reviews. I am not sure that I accept that experts by experience is the default position with CSCI, as a lot of this comes down to the regulators’ need to use their own judgment. We have spoken to the Healthcare Commission and CSCI and we are not clear that they support routinely involving lay representatives in every visit they undertake, as it is not always appropriate to do so; rather, they seek lay involvement as and when it is appropriate, as I said. In the context of the Bill I understand that they have envisaged locally organised lay involvement, designed to suit the purpose of each inspection, via the new LINks. I believe that this is the best and most practical and proportionate way forward. However, I shall think about whether we can include something on this in guidance. Although I cannot endorse the proposal—it would be difficult to do so on behalf of the regulators without being absolutely certain what they are after—I shall consider whether we can indicate that we are at least partially in favour of it.
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- Lord Low of DalstonCrossbench
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- My Lords, I cannot add a lot to the very expert deployment of the case by the noble Baroness, Lady Neuberger, from her long experience and knowledge of these issues. However, as my name is added to the amendment, I hope that noble Lords will allow me to apologise for inadvertently misstating a date when I spoke to Amendments Nos. 206 and 220. I referred to updating of guidance having been promised from 1984; I should, of course, have said 2004. I apologise for the rush of blood to the head that must have come at that moment, which led me to impute even more nefarious motives to the Government than they have.
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- Baroness AndrewsLabour
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- My Lords, the noble Lord is forgiven on all counts.
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- Baroness NeubergerCrossbench
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- My Lords, I thank the Minister for what she said. I am delighted that she will take the measure away and see what can be done in guidance. Perhaps between now and Third Reading she and I could discuss where we go from here. If we cannot get a little more reassurance, we might wish to bring this back at Third Reading. That said, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 210ZC and 210ZD not moved.]
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- Earl HoweConservative
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- moved Amendment No. 210ZE:
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- Baroness NeubergerCrossbench
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- My Lords, the noble Earl, Lord Howe, has, as ever, said most of what needs to be said. But perhaps I can emphasise again to noble Lords around the House just how many letters those of us who have been involved in this Bill have all had about all the issues to do with LINks and, most of all, about the pace of change and the abolition of patients’ forums before the new system is up and running. I have had literally hundreds of letters. We have also had support from the Local Government Association. It sent me a note today supporting our concerns, saying that local authorities need adequate time to implement these measures. It is also worth saying that David Pink—who will be well known to many people around this House as chief executive of the Long-term Conditions Alliance—has argued that, although the delay should not be too long, because there has already been enough uncertainty, “in most areas of the country little preparation has been done, and there is precious little time left. There is a danger that, after a long, long uncertainty, the new LINks will fail to thrive because of lack of preparation. That is not to say we would favour an indefinite stay on the change—there has already been far too long a period when everyone knew that the Government intended to reform the PPI and Forums. A further long delay would certainly anger loyal volunteers working on Forums, and would frustrate those who have done some preparation based on the expected April 2008 date”. He is advocating something between three and six months. One of the reasons for six months to be in the amendment is that that is the view of people who are not necessarily pleading their own corner but are trying to work with the new system. He adds that he is making the statement, “on behalf of the 110 national service user organisations”, that are members of the Long-terms Conditions Alliance, and says that, “most have yet to be contacted about involving their branches in LINks, and very few have the information they need about LINks to support them when they start”. For that reason, I very much hope that the Minister will support the amendment and recognise that some time for a transition arrangement is needed.
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- Baroness AndrewsLabour
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- My Lords, there is no doubt that this is a critical amendment on a critical issue. In Committee, I tried to explain how anxious we were to maintain momentum and focus on the way in which transition would occur. I will return to some of those arguments this evening. The amendment would ensure that there would be no gap in activity in the transition between the end of patient and public involvement forums and the establishment of LINks. Let me be quite clear that it was never our intention to leave a gap between patients’ forums and LINks such that there would be potential for a gap in the local accountability of services. We all know the history of these arrangements over the years. We have been clear with all key stakeholders, including local authorities, in the Getting Ready for LINks guidance, that the timetable and momentum are important, because preparations have begun in so many different ways. We value enormously what the noble Earl, Lord Howe, described as the collective, corporate memory that the patients’ forums have built up in their work over the years, as well as their experience and commitment. We did not want any local authority to feel that it or any LINk was in danger of losing that. Part of the reason for keeping the focus on a deadline was to ensure that people were concentrating on the task in hand, so that we could have as energetic a transfer as possible. We have tried in that process genuinely to make it possible for local authorities to have as much help and incentive as possible to move to a position in which they could commission and procure the host, identify and map the potential scope of the LINKs networks and identify the sort of tasks that would be needed in the transitional arrangements. When you do not have an organisation to look at and you are setting one up, it is awfully difficult to be quite clear about what you are doing. However, we have published the Getting Ready for LINks guidance and we have run countless events. Department of Health officials have been incredibly assiduous in making themselves available and in putting out—in easy-read format not least—the information and guidance. We have put out a lot of communication material and we have made it clear that it is the local authority’s responsibility to ensure that, as of 1 April 2008, the activities assigned to a LINk should be able to be carried out. A huge amount of activity is under way, as noble Lords will know if they have followed the progress of the early adopter projects. The nine projects have worked across the country, offering invaluable insight and experience, everywhere from Dorset to Durham to Kensington and Chelsea. They are looking at different ways of tackling the challenging idea of how to involve people who have never been involved before and how to amplify their voice in relation to health and social care. The interim report of the nine early adopter projects was published in July 2007. We have run regional events for local authorities and stakeholders from other sectors and we have published two guidance documents Getting Ready for LINks: Planning your Local Involvement Network and Getting Ready for LINks: Contracting a host organisation for your Local Involvement Network. In addition, we have given £10,000 to each local authority to help them get started with the procurement process. We have done our best to make sure that we have done the things that we could do from the centre. I know from what noble Lords have said that there is still public concern that, despite the best efforts of a given local authority, should that local authority experience difficulties in the procurement of a host, for example, or should there be any other impediment to the LINk being in place on 1 April 2008, the activities assigned to LINks may not be able to be carried out. The noble Earl openly talked about the difficulties of delay. He mentioned the fact that delay would mean less money; it might bring more time but it would certainly bring less money because we cannot afford to fund parallel systems. The other thing about delay, which was alluded to by the Local Government Association, is the element of frustration that a long delay might cause. We do not want to see that either. We want to make sure that this works. We do not want the leading local authorities to be held up because there are other local authorities that are slower, more laggard, less involved and less energetic. We must balance that. Acknowledging that concern, and bearing in mind the need not to undo the good work already being undertaken, not wanting to slow progress or wanting any transitional arrangements to be over-complicated, I think that the noble Earl has come up with something very appealing. Therefore, I undertake to take this amendment away and consider it further. It is a thoughtful and careful amendment. What attracts me is that it is focused around the duty that we are already placing on local authorities to make arrangements to ensure that the activities of a LINk can be carried on. It is about preparation, and it supports the development of the arrangements that we are moving into rather than retaining the old regime. It supports the direction of travel, and it is consistent with what local authorities are already putting in place. I ask the noble Earl to give me a little more time to explore this in detail, and I hope that the amendment will be withdrawn.
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- Earl HoweConservative
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- My Lords, the Minister’s reply opens up a ray of hope, and it is very welcome for that reason. I thank her for agreeing to consider the amendment. I hope that we can arrive at a satisfactory agreement between now and Third Reading. Because of her reply, I shall not move the next group of amendments. The general level of help and support to local authorities from the Department of Health is decidedly welcome, and I noted everything that the noble Baroness said on that. How much specific guidance are the Government giving to local authorities to enable them to undertake procurement? That is particularly important if we are not to see the new arrangements implemented with varying degrees of success and effectiveness. We all hope to see consistency of outcome in the formation of LINks, and the way to achieve that is to have consistency of procurement. The Government’s support for local authorities in the procurement exercise and the way in which they set about it is critical. I will briefly flag up an issue that was referred to earlier by the noble Baroness, Lady Neuberger. Some health-related services, such as ambulance trusts and cancer networks, straddle more than one local authority area. How will the Government ensure that from the outset of those arrangements monitoring of those services by informed patients and their representatives will be undertaken? I am not convinced that the draft guidance takes full account of that dimension, and it would be helpful if between now and Third Reading the Minister would write to me on that.
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- Baroness AndrewsLabour
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- My Lords, I know that we are not supposed to bring visual aids to the Chamber.
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- Baroness AndrewsLabour
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- My Lords, I have a document on host procurement entitled, Getting Ready for LINks and I will make sure that the noble Earl has a copy. I will write to the noble Earl on his second point about how we cope with services that run across areas and how we monitor them. The guidance should reflect that, if it does not do so already.
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- Earl HoweConservative
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- My Lords, I am very grateful to the noble Baroness. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 233 [Abolition of function of Patients' Forums]: [Amendment No. 210ZF not moved.] Clause 234 [Abolition of Patients' Forums]: [Amendment No. 210ZG not moved.] Clause 235 [Abolition of Commission for Patient and Public Involvement in Health]: [Amendment No. 210ZH not moved.] Clause 236 [Duty to consult users of health services]:
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- Baroness Morgan of DrefelinLabour
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- moved Amendment No. 210A:
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- Earl HoweConservative
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- My Lords, I thank the Minister for this extremely welcome group of amendments and for her detailed comments. She will know that these are issues to which we on these Benches have attached great importance and I am grateful to her for taking away the concerns we expressed in Committee and for treating them positively. The reinsertion of “involve” is very positive, as is the removal of words which would have inserted a threshold for the involvement of service users. It is equally good news that the Government have agreed to place involvement responsibilities on to strategic health authorities. I wish to ask the Minister a number of questions. First, in new Section 242A(1), there is reference to “prescribed matters”. Can she clarify what those matters are to be? I would have expected to see here explicit provisions directly analogous to those in new Section 242 of the 2006 Act, as amended, for the planning and provision of services, the development and consideration of proposals for changes in the way that those services are provided, and for decisions to be made by the body affecting their operation. Those are the issues on which health service users should be involved by strategic health authorities, but it is unclear why we cannot say this directly in the Bill. Secondly, regarding my Amendment No. 219ZAA, I listened carefully to the Minister, but, with all due respect, I do not think that the wording of new Section 242A(4) is all that it should or could be. This is not meant to sound ungrateful, because my gratitude for the amendments as a whole is unbounded, but the phrase, “as to the form to be taken by involvement”, could be improved. It sounds as if there is only one possible form of involvement, whereas involvement can take several forms. The word “form” is puzzling in itself, because “ways” is used in new subsection (1). While I never wish to tilt at windmills, the last thing that we would wish to do is confuse the court if these provisions were subject to a legal challenge. If “ways” is used in one part of the section and “form” in another part, the obvious question is whether they are intended to mean different things. If the same meaning is intended in each case, why use two different words where one would be better?
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- Baroness NeubergerCrossbench
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- My Lords, I shall be brief because the noble Earl, Lord Howe, has said virtually everything on this great long string of amendments. I want to make two points. First, I very much support the noble Earl on Amendment No. 219ZAA, to which I put my name, because we have received a large number of representations on making very clear the full context of LINks and consultation. We need further clarity. The involvement network, which the Minister will know well, is very clear that it would be better if the LINks legislation could, at appropriate points, make specific reference to the duty owed by health and social care commissioners and providers to inform, involve and consult the people affected by their decisions. This is a part of that, and it is very clear that we want further information and guidance in the Bill on how this fits together. It is not only us who are saying this; it has been put forward strongly by the involvement network. My other point is very different and concerns government Amendments Nos. 218 and 219 concerning the duty to consult under proposed new subsection (1H) in Clause 236(2). Here, the Government propose to leave out “consultation” and insert “involvement”. We are all delighted to see the word “involvement” brought back, but we are not clear why “consultation” has to be removed. I know that we are likely to be told that involvement includes consultation but we would feel happier if both “consultation” and “involvement” were included, as no one would then be in any doubt.
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- Baroness Morgan of DrefelinLabour
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- My Lords, I thank noble Lords for giving me the opportunity to come back on these points. Perhaps I may start in reverse order and pick up the noble Earl’s point concerning an informal process of consultation around the development of regulations and guidance. I may not have been clear enough about the intention. We intend to develop regulations and guidance with stakeholders, and therefore they will be involved in the development of the regulations. At this stage, we envisage that these stakeholders will include the NHS Confederation, the NHS Alliance, strategic health authorities, PPI leads and organisations such Health Link, the Patients Forum, the Long-term Medical Conditions Alliance and even the National Voices initiative, on which everyone here knows I am very keen. So we are planning that the process suggested by the noble Earl should go ahead. Perhaps I may comment on why strategic health authorities should be empowered to suspend PCT PPI activities. This is all about avoiding duplication, and it is important to put that on the record. For example, if a PCT and a strategic health authority are planning to consult on the same matter, the strategic health authority would be empowered to say to the PCT, “No, you’re not doing that. We’re doing that but it mustn’t be seen that you are not fulfilling your duty in not doing it”. That is the proposal for that power. I turn to the noble Earl’s Amendment No. 219ZAA and the question of the word “form”. We are very happy to consider the wording and come back to the House. However, because the noble Earl’s amendment is an amendment to our amendment, a little help on how to move these amendments would be very welcome. Therefore, we are definitely prepared to consider his concerns in that regard. We envisage strategic health authorities’ prescribed matters being those set out in the original Clause 242. However, we did not want that list to be exclusive, because the role of strategic health authorities is much wider than that of PCTs, so there may well be a desire on the part of stakeholders to include additional matters underneath that heading. That was our intention: rather than being very prescriptive, we were trying to be less so in order to give ourselves the facility to come back following our informal consultation. I hope that I can clarify why we are removing the word “consultation”. I am advised that the terminology means “consultation and involvement”. Therefore, we are not removing “consultation” but saying “and involvement”. I hope that with those clarifications noble Lords will not press their amendments, although I am aware that we may need to do further work on this before Third Reading. On Question, amendment agreed to.
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- Baroness Morgan of DrefelinLabour
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- moved Amendments Nos. 211 to 217:
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- Baroness AndrewsLabour
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- My Lords, I beg to move that further consideration on Report be now adjourned. In so moving, I suggest that Report stage begin again not before 8.40 pm. Moved accordingly, and, on Question, Motion agreed to.
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