My Lords, I beg to move that the Bill be now further considered on Report.
My Lords, my noble friend Lady Scott will speak to Amendment No. 192.
Amendment No. 191 relates to the right of a councillor to make oral and not only written representations to an overview and scrutiny committee. My noble friend Lord Greaves raised the matter at the previous stage of the Bill and, like him, I found it, and still find it, odd that we need the new Section 21A at all. It is difficult to imagine that authorities operate in such a manner that there are restrictions on individual members who could not, without the benefit of this new section, raise matters. But if there are such restrictions, it is right that we should consider how a reference by an individual member to an overview and scrutiny committee might be dealt with.
In Committee, the Minister said:
"How to approach it"— that is the reference to overview and scrutiny—
"is best left to the discretion of the member and the committee".—[Hansard, 17/7/07; col. 210.]
In fact, the new provision leaves it to the committee. I assume that the committee sets its own procedure. If it is not left to the committee, then it is left to the authority as a whole. But it does not leave it to the member in question, and that is my point. My instincts are that authorities should set their own procedures, but if it is necessary for primary legislation to provide for the reference to overview and scrutiny we should consider the mechanisms as well.
I am surprised that a member might be required to confine himself to written representations. My noble friend Lord Greaves asked the Minister to consider the guidance that might back up this new section and, particularly, to make clear that what is in the Bill is a minimum provision. He made that point just before he withdrew his amendment and so the Minister did not have an opportunity to answer. I hope that the amendment will give the Government a chance to commit to considering whether this is a point for guidance. I beg to move.
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.
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 the 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.
If the LSP is chaired by the leader of the authority, he can certainly be required to appear to represent its views. However, there is a growing tendency for LSPs not to be chaired by the leader of the authority. Some of the most effective LSPs are chaired by businessmen, or they may be chaired by someone from the voluntary sector. There is no power in the legislation to require those people to appear to represent the views of the LSP in relation to the local area agreement. However, it would be astonishing if they were asked to appear to review progress and did not turn up. I hope that the scope of the Bill is good enough for the noble Baroness, because the powers to refer local government matters given to individual members by Clause 125 are substantial. The powers of overview and scrutiny of the various partner arrangements and the presentation of arguments, progress and policies will be effective enough to give the overview and scrutiny committee not only a good view of what is going on but the ability to hone in on what is most challenging. I hope that the noble Baroness will be able to withdraw her amendment.
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.
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.
My Lords, I wish to speak also to Amendments Nos. 192A to 192E.
Amendment No. 192A is a probing amendment to seek further clarification on aspects of the community call for action. Amendments Nos. 192B to 192E would provide for a single community call for action—CCfA—process for all local issues by including crime and disorder matters in the Local Government and Public Involvement in Health Bill process and would remove the Secretary of State's discretion to exclude matters from the CCfA process.
Despite the growing opportunities for participation through increased empowerment in both national and local government, recent research suggests that people are beginning to feel disconnected from matters in the public realm. As we have discussed many times, this has been seen in falling turnout and reduced trust in political structures. The community call for action could therefore be used as a valuable method of ensuring that communities could ask questions and hold local authority and other decision-makers to account. Yet the Bill's proposals for community call for action indicate that local people and groups can request a CCfA only with a ward councillor.
Amendments Nos. 192B to 192E deal with the specific problem of having a separate crime and disorder procedure; in other words, not allowing crime and disorder to be tackled via a community call for action. In Committee, the noble Baroness argued that there were important differences between community safety issues and other matters which necessitated a separate community call for action procedure. However, as we discussed then, crime and disorder is one of the matters which most concern residents and this is all the more reason to bring it under the community call for action procedure in the Bill and not have it as a separate procedure in the Police and Justice Act.
Furthermore, this separate process for crime and disorder running alongside the procedure in this Bill runs the risk of being unnecessarily difficult to operate in practice and of causing a great deal of confusion to local people, who see everyday policing matters as something to do with local authorities even when they may not be. Our debate in Committee also highlighted that a unified CCfA process would enable crime and disorder problems to be tackled alongside the underlying socio-economic factors that cause them using a single approach.
The Police and Justice Act process enables a member of the public to appeal to the council executive if a councillor declines to refer a matter to an overview and scrutiny committee whatever the councillor's reasons for doing so and whether or not he or she has dealt with the matter in some other way. This clearly gives greater licence for vexatious appeals. I should be grateful if the Minister will take note of our anxiety—I think and hope that she will do so—about having these two separate functions within two separate aspects of legislation when they should be dealt with together. I hope that she will give us good news on that. I beg to move.
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.
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?
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.
My Lords, in reference to a discussion that we had on the previous parts of the Bill, my concern remains that nowhere within it do we have any reference to registered social landlords. This becomes important when we talk about overview and scrutiny committees, because registered social landlords are by and large running the whole housing programme in many local authorities but there seems to be no indication that they can be called to speak to an overview and scrutiny committee. I seek a reassurance that they will not be excluded from this part of the Bill and that local government will be able to hold debates on housing. I appreciate that there may be an ALMO or remote social housing management, but most local authorities or many of them still hold the freehold of the properties and many still have a large role to play in housing matters. It is extremely important that housing is part of the responsibilities of the overview and scrutiny committees and that it is possible to ask registered social landlords to come before the committee if that is required. I beg to move.
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 he 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.
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.
My Lords, again, we return to a matter that was raised at the previous stage by my noble friend Lord Greaves; the obligation or otherwise on an entity that is the subject of an overview and scrutiny committee report or recommendations to publish its response whether or not the overview and scrutiny committee has published its report or recommendations.
The Minister's objection, in brief, was that this would undermine the discretion of the O&S committee, would be overly bureaucratic and would indicate a lack of trust in the judgment of O&S committees. I approach it from a different angle; that there is general agreement that overview and scrutiny committees are at different stages of development in different authorities but, by and large, could do with a bit of a boost to their powers and influence. If the executive or authority knew that there would always be publication it would, I hope, take the O&S committee that much more seriously. The amendment is about supporting the O&S committee. These days, publication is not difficult; with the internet one can publish at the drop of a hat or the click of a mouse.
I have summarised the Government's objections to the previous version of the amendment. The noble Baroness may be able to give me some comfort on how the existing provisions of the Local Government Act on publication and access to information and to reports fit in with this part of the Bill. I hope that will help us to develop our understanding of how this might work. I beg to move.
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.
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.
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.
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.
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.
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.
My Lords, this group of amendments deals with overview and scrutiny in district councils operating in two-tier areas. At the Commons Report stage, the Government introduced new clauses which would allow district shire councils to set up joint overview and scrutiny committees with county councils in order to review local area agreements and enable district scrutiny committees to report independently on improvement targets within that. However, as currently drafted, the new government clauses will depend on the Secretary of State bringing forward appropriate regulations to allow district councils to use that power.
I tabled this amendment to try to gain an understanding from the Minister as to why the community call for action has not been treated in this way. Members of the public are trusted to bring items to the attention of the local authority, whereas, in the case of county and district councils, we will have to wait for a raft of regulation. It seems to me and to the Local Government Association that that is unnecessarily bureaucratic and that it will cause delay. A lot of regulation arises from the Bill and I know that the department will have its work cut out in producing all that. Therefore, these amendments represent one more attempt to persuade the Minister. Given that the principles to be applied are now clear in the Bill, is it not possible to trust local authorities and leave them to get on with the job, rather than having to wait for detailed regulation? I beg to move.
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 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.
My Lords, I am grateful for the Minister's assurances that the intentions are benign and that this does not represent a return to micromanagement. 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 their 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.
moved Amendment No. 195A:
Clause 134, page 94, line 12, at end insert—
"( ) Section 236 (procedure for byelaws) is amended as follows—
(a) in subsections (3) and (3A) omit "by the confirming authority";(b) in subsection (4)—(i) for "application for" substitute "the proposed", and(ii) for the words "apply for confirmation" substitute "confirm";(c) in subsection (5) for "application for" substitute "the proposed";(d) in subsection (7)— (i) for "the confirming authority" substitute "the authority by whom the byelaws are made",(ii) for "submitted" substitute "made", and(iii) omit "for confirmation";(e) omit subsection (11)."
These amendments would require the Government to identify those local government by-law matters, across all government departments, on which the Secretary of State's approval would be retained, and to devolve the rest. The amendments would also require the Government to regularly review those by-laws it wishes to retain, and the confirmation powers over them.
The Government rightly propose to end the Department for Communities and Local Government's confirmation for its local authority by-laws in the Bill. That is very welcome. This will enable local councils to respond more immediately to local needs, cut bureaucracy and modernise government processes. Councils have more understanding of what issues matter in their area and require by-laws than a central government Minister can possibly have.
The Bill devolves to councils only by-laws confirmed by the Department for Communities and Local Government. Many local by-laws are controlled by other government departments, such as Defra, the Department for Transport, the DCMS and the Department of Health. We believe that government proposals to give councils control over by-laws under a procedure that does not require central government confirmation should be applied equally to local authority by-laws confirmed by other government departments.
In Commons Committee, in response to the Local Government Association amendments on extending by-law devolution, the then local government Minister Phil Woolas confirmed that the Bill aims to allow the devolution of by-law-making powers to councils across the board and that other government departments are enthusiastic about handing powers to confirm by-laws to councils under this new procedure. The Minister said that regulations had already been prepared to allow by-laws for museums and libraries, which are the responsibility of the DCMS, and tattooing, which is the responsibility of the Department of Health, to be handed down to councils once the Bill is passed. However, in the Lords Committee, the Government were unable to confirm whether any local government by-laws beyond those controlled by the Department for Communities and Local Government would be devolved to local councils. The Minister said:
"We have taken this approach to ensure that the Government can retain their function of confirming certain types of by-laws where it is considered important to do so. That is why I cannot simply give a list, as the noble Lord, Lord Greaves— who is not in his place today—
"asked. It will be appropriate for some departments not to be devolved in relation to by-laws and for others to be devolved".—[Hansard, 17/7/07; col 227.]
We would like clarification from the Government on which by-laws they will devolve to councils under the alternative procedure set out in the Bill, which they will retain confirmation powers over and why.
I understand that in conversation the noble Baroness, Lady Andrews, and the Department for Communities and Local Government have said that other departments are keen to devolve their by-laws. However, until we get a full list from the department of what is to happen, we believe that we should push this matter yet again to find out what the picture is.
The amendment requires the Government specifically to list by-laws they wish to retain confirmation powers over and to devolve all other issues to councils. Furthermore, we would like the Government to review their confirmation powers regularly to ensure that they continue to devolve by-laws to councils to give them the responsibility that they should exercise properly in respect of local problems.
For communities and their representatives to have comprehensive control of behaviour and rules in their localities, they need to have control over by-law-making powers which are at present controlled by government departments other than the department that is promoting the Bill. For example, the Bill does not currently enable the devolution of by-laws that regulate the use of taxis, walkways and horse-drawn omnibuses—of all things—which are Department for Transport matters; guided transport systems other than railways, countryside recreation and local nature reserves, which are Defra matters; public libraries, which are DCMS matters; or acupuncture, piercing and tattooing, which are Department of Health matters. There is no good reason for treating these by-laws differently from those that have been confirmed by the Department for Communities and Local Government, which it proposes to cede to local government. Matters appear to be held in what I can only call a limbo of departmental indecision or, worse still possibly, a limbo of ministerial indecision. Can the Minister offer us any encouragement about whether these matters are to be clarified, and, if so, what sort of timescales they are looking at for action? I beg to move.
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.
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.
My Lords, the amendment takes us to the part of the Bill on ethical standards. The amendment is to probe the status of appointed councillors. Subsections (1) to (3) of Clause 188 extend certain sections of the Local Government Act 2000 that already apply to members and co-opted members. They are referred to at the beginning of Section 49(1) of the 2000 Act:
"The Secretary of State may by order specify the principles which are to govern the conduct of members and co-opted members".
"The Secretary of State may by order specify the principles which are to govern the conduct of members and co-opted members".
In that Act, a co-opted member is someone who is a member of a committee or subcommittee or represents the authority on a joint committee and is entitled to vote. I asked then and have the same question now: does an appointed member fall within that definition? If there is a difference between appointment and co-option—and we are told that there is—an appointed member does not fall within the definition.
New Section 16A(3)(e) allows for regulations as to the,
"purposes for which a person appointed is to be treated as an elected councillor".
As I said privately to the Minister, I have not followed the audit trail as to how an appointed member comes within the regime. The definitions do not seem to do it, and I cannot quite see that regulations are adequate to change the definition, if that is the way in which it is being approached. I beg to move.
My Lords, I remind the House that, if Amendment No. 196 is agreed to, I cannot call Amendments Nos. 197 to 199DA because of exemption.
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.
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.
moved Amendment No. 197:
Clause 188, page 130, leave out lines 23 to 25 and insert—
""(2A) An order under subsection (1) must provide as respects each specified principle—
(a) that it applies to a person only when acting in an official capacity; or(b) that it applies to a person only when not acting in an official capacity;but the order may provide as mentioned in paragraph (b) only as respects a principle within subsection (2B).
(2B) A principle is within this subsection if it prohibits particular conduct (or conduct of a particular description) where that conduct would constitute a criminal offence.
(2C) An order under subsection (1) may define, for the purposes of the order—
"official capacity"; and
(2D) An order under subsection (2)—
(a) may specify principles which are to apply to a person at all times;(b) may specify principles which are to apply to a person otherwise than at all times.""
My Lords, these government amendments address concerns raised by noble Lords in Committee about the remit of the ethical regime for local authority members. In Committee, I said that I was willing to consider suggestions to make it clear in the Bill that our intention and conduct in a local councillor's private capacity would come within the remit of the ethical regime, including the code of conduct, only where he or she has committed a criminal offence. These amendments put that policy objective into effect.
Amendments Nos. 197, 198 and 199 amend Clause 188 to provide on the face of the Bill the limitation that the ethical regime applies only to conduct of members in their private capacity where that conduct would constitute a criminal offence. Specifically, subsection (2A) in Amendment No. 197 provides that the principles which govern the conduct of members, the provisions of the code of conduct they must follow and the provisions which authorities may add to their code, may include principles and provisions which apply in a member's official and private capacity. Subsection (2B) seeks to place on the face of the Bill a limitation on the remit of the ethical regime in a member's private capacity by providing that the principles and provisions may apply only to a member's conduct in a private capacity where that conduct would constitute a criminal offence.
Amendments Nos. 200 and 201 are consequential amendments to remove the provision allowing previously existing principles and the model code of conduct for members of relevant authorities in England and police authorities in Wales to continue in place after the amendments come into effect. The reason for that is that following the coming into force of the amendments, new orders in respect of the principles and the model code will now need to be issued.
I will come in a later amendment to discuss why we believe a criminal offence rather than a criminal conviction is the right and only way to go but, essentially, our intention is to specify through secondary legislation the serious criminal offences—such as assault, harassment, fraud, offences relating to child pornography—that should be included in the remit of the ethical regime. However, it may well be appropriate for criminal offences for which the offender has the opportunity to pay a fixed penalty instead of facing conviction—for example, a minor motoring offence, a parking offence, dropping litter—should be excluded. I can assure noble Lords that we intend to consult on this matter so that we get the full views of the local government world on what types of criminal offences it thinks should be included or excluded from the remit of the ethical regime.
Noble Lords who are well versed in this matter probably know that an elected member who has been convicted of an offence by a court and received a sentence of imprisonment of three months or longer is already automatically disqualified from being a local councillor for five years under Section 80(1)(d) of the Local Government Act 1972. As such, the only conduct in an elected member's private capacity with which we are concerned is conduct that constitutes a criminal offence and for which a member has not received a sentence of imprisonment of three months or longer.
We consider that serious criminal behaviour is capable of having an adverse impact on the general public's level of trust of local authority members and local government as a whole and should come within the remit of the code. If we did not have such a provision, for example, an assault resulting in a criminal conviction and a prison sentence of less than three months would not of itself prevent an elected member from continuing as a member of an authority. I am sure noble Lords agree that it is very important that members set an example of leadership in their communities and we expect them to follow high standards and act within the law even when not acting as members, as the vast majority of members already do. That approach is certainly supported by the majority of the local government world following consultation, including the LGA. I commend the amendments to the House. I beg to move.
My Lords, I shall speak also to Amendment No. 197B. It may be convenient if I speak also to the amendments in the next group—Amendments Nos. 197BA to 197E, Amendments Nos. 198A to 198E and Amendments Nos. 199A to 199E—which all come within the same discussion.
I thank the Minister for bringing forward the government amendments. We have had discussions on private conduct and the impact of a criminal conviction on a council member but I should like to probe a little further.
The Joint Committee on Human Rights had quite a lot to say about these amendments, and it will be worth us going through what it said. The amendments the Government have brought are still wider than present code of conduct, and the government amendments, the principles and the code can prohibit conduct that "would constitute a criminal offence"—not conduct that would be a criminal offence, or a conviction. Unlike the model code, that is not confined to conduct that has subsequently led to a criminal conviction; it is only an anticipatory fact that it might do. A standards committee would therefore have to determine whether criminal offences were committed and the code would be able to extend to situations where a criminal offence that may have been committed was so minor that the prosecuting authorities have decided not to bother with it. Under the Government's amendments that would be caught, but under ours it would not. The Government's amendments also allow an offence to be a breach of the code where it has no relation to the councillor's position as a councillor.
I refer to the report of the Joint Committee on Human Rights, Legislative Scrutiny: Fourth Progress Report, Eleventh Report of Session 2006-07, which states at paragraph 1.19,
"We see no reason why the Bill should not expressly state on its face the exact extent to which the code shall apply to private conduct by members, for example by providing that the only private conduct to which the code applies is conduct which has resulted in a criminal conviction. There is no reason, legal or otherwise, why such a limitation should only be contained in the code. On the contrary, in our view, there are very good reasons why such a limitation should be on the face of the Bill, to make it less likely in practice that the power will be exercised incompatibly with Articles 8 and 10".
Paragraph 1.20 states:
"We agree with the view of the Committee on Standards in Public Life that only private conduct resulting in a criminal conviction which is relevant to the member's official duties should be within the scope of the code of conduct".
Noble Lords will recall that Article 8 is the right of respect for family life and Article 10 is freedom of speech. The Joint Committee's 13th report referred to a reply from Ministers but said, at paragraph 2.3,
"We note that although the Government's position is that the code of conduct should not cover a councillor's private life unless that conduct has resulted in a criminal conviction, the Bill as presently drafted neither states the basic principle that private conduct should not be covered by the code nor defines the exception to this principle where private conduct has resulted in a criminal conviction. Instead, the Bill provides for the code, and the principles on which it is based, to apply to a member 'at all times', and it is merely the Minister's 'current intention' to confine the code to private conduct which has resulted in a criminal conviction. In our view, not only is there a serious mismatch between the Government's stated intention and the provisions of the Bill as presently drafted, but the breadth of the power in the Bill to regulate members' private conduct itself gives rise to Article 8 and 10 ECHR compatibility concerns because of the uncertainty it creates about the private conduct, including speech, which is or might be covered".
The offending words in the Minister's amendments, if I may say so, are "would constitute a criminal offence". We need to see amendments that make it clear that a criminal offence has been tried by a court and accepted as such so that there is a criminal conviction, not just a matter that might result in a criminal conviction if it were prosecuted and the court came to that conclusion, which is effectively where we are at the moment. I hope the Minister will be able to come back at Third Reading and make some changes to the wording so it will conform to the Convention on Human Rights and make it clear in the Bill that in the private capacity the code will only cover a criminal conviction that has some relation to the councillor's role. I beg to move.
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?
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 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 and 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.
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.
Amendments Nos. 197A, 197BA, 197D, 198A, 198D, 199A and 199D would provide an additional limitation on the remit of the ethical regime so that members' conduct in their private capacity would fall within the remit only where that conduct has resulted in a criminal conviction directly relevant to the performance of the official functions of the member. That is in contrast to another set of amendments, which I will consider in a moment, which would provide that no conduct in members' private capacity, including private conduct linked to official capacity, would be included at all. These amendments are contrary to our policy intention that the remit of the regime should include conduct in a private capacity where that conduct would constitute a criminal offence.
I have said at earlier stages of the Bill that we consider that certain serious criminal behaviour—such as assault and offences relating to child pornography, even where there is no direct link between the conduct and a member's official role—is capable of having an adverse affect on the general public's level of trust of local authority members and the local government world as a whole. That objective is not achieved by these opposition amendments, which is why I could not accept them.
Part of this group, Amendments Nos. 197C, 198C and 199C would replace the word "may" with the word "shall" in new subsection (2A) of Section 49, new subsection (4A) of Section 50 and new subsection (4A) of Section 51 of the Local Government Act 2000, as introduced by Clause 188. As we do not intend to take forward Clause 188 in its existing form, the parts of the clause that are the subject of these amendments will be withdrawn.
Noble Lords may wish to note that the amendments that I have tabled refer to "must" instead of "may". It is appropriate to use "must" in these circumstances, because our amendments refer explicitly to members' conduct in their official and private capacity, rather than to "at all times", which was the original language. Our amendments require that the principles and the provisions of the code of conduct must specify whether they apply in a member's official capacity or in a member's private capacity. I think that would make it clear. I think that the amendments that we have tabled meet the concerns raised by noble Lords, so I hope that noble Lords will not move their amendments.
Amendments Nos. 197E, 198E and 199DA seem contradictory to the previous amendments because they provide that the principles that govern members' behaviour, the provisions of the model code of conduct and the terms of any provisions added to the code should apply only in respect of a member's official capacity and not in his or her private capacity at all. That is in contrast, of course, to the previous group. These amendments are not acceptable because they are not consistent with everything that we are trying to do in the Bill and in the amendments that I have tabled.
In addition, taken together with the previous amendments which provide for the ethical regime to apply in respect of behaviour in members' private capacity where directly relevant to members' official functions, I think that these amendments would lead to confusion and a lack of clarity as to what behaviour, if any, in members' private capacity was to be included. For example, would an assault by a councillor be excluded from investigation under the regime if it took place in the member's own home, or would it need to take place in the council chamber before it came within the remit of the rules?
These are complex amendments and it has been useful to explore some of their implications. I hope that noble Lords will feel reassured and will not press their amendments.
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.
moved Amendment No. 198:
Clause 188, page 130, leave out lines 27 to 29 and insert—
""(4A) A model code of conduct issued under subsection (1) must provide, as respects each provision of the code which relates to the conduct expected of the persons mentioned in that subsection—
(a) that the provision applies to a person only when acting in an official capacity; or(b) that it applies to a person only when not acting in an official capacity;but the code may provide as mentioned in paragraph (b) only as respects a provision within subsection (4B).
(4B) A provision is within this subsection if it prohibits particular conduct (or conduct of a particular description) where that conduct would constitute a criminal offence.
(4C) A model code of conduct issued under subsection (1) may define for the purposes of the code—
"official capacity"; and
(4D) Provision included under subsection (4A) or (4C) in a model code of conduct—
(a) must be consistent with the provision for the time being included in an order under section 49(1) by virtue of section 49(2A) or (2C);(b) is to be mandatory except to the extent that it relates to an optional provision;(c) to the extent that it relates to an optional provision, is to be mandatory where that optional provision is incorporated in a code of conduct under section 51.
(4E) A model code of conduct issued under subsection (2) may include—
(a) provisions which are to apply to a person at all times;(b) provisions which are to apply to a person otherwise than at all times.""
[Amendment Nos. 198A and 198B, as amendments to Amendment No. 198, not moved.]
On Question, Amendment No. 198 agreed to.
[Amendments Nos. 198C to 198E not moved.]
moved Amendment No. 199:
Clause 188, page 130, leave out lines 32 to 34 and insert—
""(4A) Where under subsection (4)(c) a provision relating to the conduct expected of persons is included in the code of a relevant authority in England or police authority in Wales, the code must provide—
(a) that the provision applies to a person only when acting in an official capacity (within the meaning given by the code); or(b) that it applies to a person only when not acting in an official capacity (within that meaning);but the code may provide as mentioned in paragraph (b) only as respects a provision within subsection (4B).
(4B) A provision of a code is within this subsection if it prohibits particular conduct (or conduct of a particular description) where that conduct would constitute a criminal offence within the meaning of the code.
(4C) The provisions which may be included under subsection (4)(c) by a relevant authority in Wales other than a police authority include—
(a) provisions which are to apply to a person at all times;(b) provisions which are to apply to a person otherwise than at all times.""
[Amendment Nos. 199A and 199B, as amendments to Amendment No. 199, not moved.]
On Question, Amendment No. 199 agreed to.
[Amendments Nos. 199C to 199E not moved.]
moved Amendments Nos. 200 and 201:
Clause 188, page 131, line 13, leave out "49 or 50" and insert "49(2) or 50(2)"
Clause 188, page 131, line 15, at end insert "in Wales other than a police authority"
On Question, amendments agreed to.
Clause 196 [Ethical standards officers: investigations and findings]:
My Lords, the amendment would put into effect the commitment that I gave in Committee that we would provide for the order-making power in Clause 196(4) in Part 10 to be subject to the affirmative resolution procedure.
I indicated in Committee that I was minded to agree to the recommendation of the Delegated Powers and Regulatory Reform Committee that orders under Section 63(1)(j) of the Local Government Act 2000, inserted by Clause 196(4), should be made subject to the affirmative resolution procedure. That power will provide for the Secretary of State to specify by order those persons to whom ethical standards officers of the standards board may disclose information.
Amendment No. 202 inserts the order-making power under new subsection 63(1)(j) of the Local Government Act 2000, as introduced by Clause 196, into the list in Section 105(6) of the Local Government Act 2000 to provide that the order-making power is subject to the affirmative resolution procedure.
I hope that noble Lords will agree that this is a positive response to the concerns they expressed earlier and that it reflects my commitment to respond constructively to suggestions about how to ensure that the ethical conduct regime applying to local government members is sensible, proportionate and fair to all parties.
My Lords, the Local Government Act 2000, which introduced the ethical standards regime that we are debating, contains provision for the case tribunal to suspend from office for up to 12 months a councillor found guilty of a particular act. A number of councillors in recent years have been suspended in this way. It was interesting that the noble Baroness, Lady Hanham, said on the last but one group of amendments that the issue was being debated as a result of a case involving the Mayor of London, Ken Livingstone. Many other people have been subjected to this imperfect regime, but because they do not have the money, are not vocal or do not have friends in high places, their cases have often not been discussed. It has taken Ken Livingstone to bring this issue to the fore.
This question of suspension from office for a year troubles me on account of the democratic process, because, if a councillor is suspended from office for 12 months, the area that they represent remains unrepresented. In other contexts—for example, if a local councillor gets a job that takes them away from the area—they can take leave of absence for six months, after which there would have to be a by-election. It seems inconsistent that an area can be left unrepresented for a year because of a suspension from office, whereas six months is considered long enough for other reasons.
I would be interested to hear whether the Government have had any thoughts about the issue of suspension from office for a year and how the question of a democratic deficit—not even that, but a democratic hole—in representation should be addressed. I beg to move.
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.
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.
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.
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.
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.
My Lords, we have a subtle shift of subject to health. I shall also speak to government Amendments Nos. 205 and 207. The amendments deal with the activities to which Clause 226(2) refers.
In Committee the noble Earl, Lord Howe, sought to establish that the activity of a LINk to monitor and review the commissioning and the provision of health and social care services was for the purpose of securing and maintaining improvements to those services, and to put a requirement to this effect in the Bill.
At the time, in the context of the debate, I certainly agreed that this definition of purpose was a useful and positive indicator of what LINks would do, but improving local services already seemed an explicit, overarching aim of LINks—what would they have been set up to do otherwise? Moreover, in the same clause, we set out that the purpose of the reports and recommendations of a LINk was to suggest how services might be improved. While accepting the intention, we were concerned about needless duplication. I agreed to take the amendment away for more careful consideration and, in particular, to think about whether it could be applied to all of LINks' activities rather than just one of them. On reflection, we agreed with the noble Earl, Lord Howe, that an amendment setting out the purposes of LINks' monitoring and reviewing of local care services would be particularly valuable—more so than referring to all LINks services as originally thought. I have, therefore, brought forward these amendments, which aim to achieve the purpose that he sought, but without causing duplication.
I hope that noble Lords will agree that the revised amendments strengthen and capture the policy intent of the noble Earl's proposal and set out the specific purposes of LINks' monitoring and reviewing of local care services in a way which can be clearly understood, commended and followed by LINks themselves. That is what we all want. Explicitly, these purposes are threefold: the standard of provision of local care services; whether and how local care services could be improved; and whether and how local care services ought to be improved.
Amendment No. 207 amends Clause 226(2)(d)(ii) to make it clear that the reports made by a LINk may refer to ways in which local care services could or ought to be improved. I hope that the scope of the amendments will commend itself to the noble Earl and that he can accept them. I beg to move.
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.
My Lords, I apologise for the slight delay. I also speak to Amendment No. 220. These amendments are the same as Amendments Nos. 238LZA and 245B which I spoke to in Committee when I highlighted a number of issues around social mobility for disabled people, the freedom to live where they like and local authority responsibilities in this area.
Each year, disabled people are being prevented from moving home, or moving from residential care to independent living, because of bureaucratic delays and disputes about who should pay for their care. The root cause of these problems is the definition of someone's place of ordinary residence, a means whereby local authorities and primary care trusts determine which authority has responsibility for personal support for disabled people who live in their area. There is no legal definition of "ordinary residence" and the guidance is unclear.
Some local authorities are using this confusion to delay or avoid paying the costs of the care for those for whom they should be responsible. The amendments struck a chord with noble Lords who, speaking with great experience of both the statutory and voluntary sectors, stressed that this problem has been crying out for a solution for decades. There was widespread support for the notion that it is a fundamental principle that the ability to change one's place of ordinary residence should not be dependent on purely administrative considerations or the convenience of health and social care systems, and that a framework should be put in place for the transfer of funds between authorities so that the issue of ordinary residence can no longer be used as a basis for refusing to provide care and support.
In Committee on
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 longstanding one. I hope that the reply we are about to hear will be suitably constructive.
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.
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?
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.
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.
moved Amendment No. 207:
Clause 226, page 160, line 33, at end insert—
"(2A) The matters referred to in subsection (2)(b) are—
(a) the standard of provision of local care services;(b) whether, and how, local care services could be improved;(c) whether, and how, local care services ought to be improved."
On Question, amendment agreed to.
Clause 227 [Arrangements under section 226(1)]:
My Lords, in moving Amendment No. 207A, I shall speak also to Amendments Nos. 208A, 209ZA, 210ZC and 210ZD. We have come to a group of amendments, most of which in their different ways, relate to the same problem. I use the word "problem" as the most neutral term I can readily think of for what many of us regard as a most serious and regrettable weakness in this part of the Bill; namely, the absence of even the slightest hint of a statutory identity for LINks. There is a complete lack of any descriptive reference to what a LINk might look like and practically no definition of a LINk, apart from it having to be a person, which is simply a piece of legal jargon and gets us almost nowhere.
We know why this is. The Government say that they do not want to be prescriptive about the form that LINks should take because this issue should be up to local determination and local circumstances. That approach is all very well, but the result of it is that the law does not confer on a LINk any sort of functions or powers. If a LINk has no statutory functions or powers, it can never, by definition, act contrary to its functions or powers, and hence can never be accountable in any proper sense for what it does. Nor can it call anyone else to account because it has no right in law to do so. The only rights and duties that feature in this part of the Bill are conferred on other people, such that the identity of a LINk is defined only as a reflection of what other people are duty-bound to do in relation to a LINk. It is an extraordinarily contorted and unsatisfactory way to go about things.
My view is that the Government should not have lived with this arrangement; they should have gone back to the drawing board and started again. Nevertheless, taking the Bill as we have it, there are several issues which I believe we need to deal with if these arrangements are to stand any chance of working.
The first of these issues is addressed in Amendments Nos. 209ZA and 210ZD. As the Bill stands, there are no provisions for LINks to have any form of governance arrangements; it is left completely open as to how a LINk would be able to make decisions or authorise people to act on its behalf. This is a major issue because without some form of governance you cannot have accountability. If there are no people authorised to act on its behalf, a LINk cannot be accountable for the proper use of public money; it cannot be judged on its effectiveness or lack of effectiveness; nor, indeed, can it operate in any meaningful sense. For example, it cannot take decisions about what it should be doing. We debated in Committee the risk of bias within a LINk arising from single issue groups. We also flagged up the risk of a conflict of interest between a LINk and its host, if that host were a provider of services. Neither of those risks can be adequately addressed unless a LINk has some sort of system of governance.
The Government say that they do not want to be prescriptive but this, but the process contemplated in the department's advice document on LINks is not realistic. Each LINk is urged to,
"work to develop governance arrangements that are easy to understand and implement, not bureaucratic and exclusive".
Three questions arise from that. How long will this process take? How different will each model be? How will we be able to judge the quality of the many governance models if there is nothing laid down against which to measure them?
The purpose of these amendments is therefore to make sure that LINks have the means to be effective and accountable. The key issues around governance are really three: how decisions are to be made; how activities are to be undertaken; and, who is to do these things? Without those minimum requirements we would be left with a situation where someone who has joined a LINk, but who never attended any meetings or received any training or signed any code of conduct, could demand a meeting with a chief executive of an NHS trust in the name of a LINk and raise whatever issue he or she thought appropriate without any accountability to the LINk or, indeed, to the community. That is only one example, but I suggest to the House that for us as legislators it is an unacceptable situation. Therefore, we need to have some sort of minimum provision about governance in the Bill.
The second issue arising from the fact that LINks have no statutory identity is that in the final analysis they have no voice. What is to happen if a LINk decides to enter and view a set of premises and the door is shut in its face for no good reason? What happens if a LINk asks for information and that information is withheld when it should not be? What is the LINk then to do? And who can it turn to? At the moment, this kind of situation, which I am told happens frequently with patients' forums, is referred to the Commission for Patient and Public Involvement in Health, which does its best to adjudicate on the dispute and to sort it out. Under the Bill there will be no equivalent body able to bang heads together. The LINk will be on its own. To be sure, it can try to shame the services provider into action by going to the local press or to the overview and scrutiny committee of the local authority; but with private providers, in particular, that approach will almost certainly not work. Informal pressure is not the same as having a quick and simple means of arbitration that is binding on both sides.
Amendment No. 210ZC proposes a mechanism to achieve this. I have in mind the appointment of a LINks' monitor, whose job it would be to arbitrate in disputes, but who would also be charged with gaining an overview from a national perspective about how well or badly patient and public involvement was working, and to be a reference point to government in this area of policy making. There is a precedent for this in the field of immigration; but the model is a simple and straightforward one.
The next issue is one I have referred to briefly already; that is the scope for conflicts of interest. As the Bill is worded, the body acting as a host for a LINk can be any body at all apart from a local authority. In Committee I raised my concerns about that—if a host were also a provider of local services, a LINk in carrying out its monitoring activities would be monitoring its host. Furthermore, the host would be responsible for writing the reports of a LINk. A critical report on the host as a services provider would place both parties in an invidious position and could seriously prejudice their working relationship in the future.
In Amendment No. 207A I propose that it is as inappropriate for an NHS body to be a host as it is for a local authority. There is simply no need for us to allow for the possibility of this situation arising; and there is an easy way of avoiding it.
Finally in this group I turn to government Amendments Nos. 208 and 209, which under the rules of Report I hope the Minister will allow me to comment on. These amendments are extremely welcome. I am very grateful to the Minister for having taken away the arguments put forward in Committee about the need for the Bill to allow explicitly for collaboration between LINks. However, I need to ask the Minister whether she is satisfied that the amendments in her name deliver everything that is necessary. The problem is that it is not clear what LINks would be able to collaborate on, given that their activities are explicitly only local in nature. The point of having a LINks umbrella body would be to take a national or regional view of health and social care services. That is particularly pertinent at the moment in the light of the review of the NHS by the noble Lord, Lord Darzi, which may come up with some far-reaching proposals that cannot be considered properly by LINks acting individually. Will the Minister assure me that her amendments would enable LINks, while collaborating, to consider the report of the noble Lord, Lord Darzi, in its regional or national context? I beg to move.
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? What will happen if a voluntary organisation is a member of a LINk, but also acts as its 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.
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.
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 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.
The noble Baroness raised an important point when she said that the Bill should make explicit a LINk's ability to use host funding to collaborate with other LINks. On reflection, while we do not want to impose partnerships on LINks, we have agreed with her. Amendment. No. 208 therefore sets out the arrangements made to ensure a LINk's activities can be carried out,
"may (in particular) make provision as respects co-operation between a local involvement network and any English network or English networks".
Amendment No. 209 ensures that such networks can carry out the same activities as a LINk can individually. Those specific provisions therefore ensure that the contractual arrangements made by a local authority with the host can include arrangements for a LINk to co-operate on a local, regional or national basis as a means of undertaking its core activities.
We have also included a specific reference to the host organisations supporting LINks in,
"joint working where necessary between LINks locally, regionally or nationally", which is a very important capacity for enabling them to inspire and support. That is in the model contract specification, which was published in the summer, for local authorities to use when procuring host organisations for LINks. That makes the position absolutely clear.
The noble Earl, Lord Howe, and the noble Baroness raised whether we are satisfied that, by doing this in this way, local organisations which are joined regionally, locally or in a national organisation can address the big issues raised by the Darzi report, or even by Dentistry Today and patients' forums. The answer is that there is absolutely no reason why they should not. There is no problem. They are not restricted to commenting on local activities if they choose to work collaboratively. It would be very unlikely that they would not want to be part of a national dialogue or address a national agenda. It would be invaluable if they did.
Amendment No. 208A seeks to amend our Amendment No. 208, the goal being to make it clear that any co-operative network of LINks which is established can have as broad a remit as possible with respect to the services in different areas. Perhaps I may reply to the question raised by the noble Baroness, Lady Masham, on hospital-acquired infection and addressing it locally, as have some patients' forums in their specific work with institutions. With LINks coming forward and representing people on the receiving end of care services, acquired infections will be an important challenge for people to engage with. I appreciate the sentiment behind Amendment No. 208A, but, having made it explicit that LINks are able to establish such networks, it is important to let them get on with the job and determine their own priorities and agenda.
On Amendments Nos. 209ZA and 210ZD, the noble Earl powerfully set out a sustained and sceptical description of LINks, judged by the absence of prescription. In Committee, we went to some lengths to explain why we have made such a radical departure from the forms of governance that we normally expect organisations and policies to have. Our intention has been to enable people whose voices are not normally heard to come forward and make their concerns and contributions felt in what we admit are new and radical ways. I appreciate that the intention behind the amendments is to address concerns that, without proper governance arrangements, LINks will be hampered in carrying out their activities—certainly, that is not what we intend—and will not be properly accountable to their local communities. The noble Earl referred to the models we put forward in different forms of guidance. He raised very important questions about how decisions will be made if you do not have governance, how they will achieve what they want to achieve and who will do what.
We have been clear from the outset that part of the role of the host is to ensure that a LINk has proper governance arrangements in place. We are not advocating complete anarchy in any sense. I do not think that the dire predictions of the noble Earl would be fulfilled, not least because our publication, Getting ready for LINks, Contracting a host organisation for your Local Involvement Network, makes it very clear that the host will be working closely with the LINk precisely to establish terms of reference for those arrangements.
Given the principle of trying to hand this over to the local community and say, "You tell us your concerns and devise a means of governance which fits your particular ways of working in partnerships", we wanted to retain the flexibility. But the most cheerful news is that when you look at the early adopter projects—I hope that it does not get transcribed this time in Hansardas "earlier doctors", bearing in mind the contractual arguments at the moment—many different models are emerging, but they all have specified, or anticipate, some form of governance arrangement. They vary enormously in the way in which they will do things and the models will vary. Ultimately, they will have governance arrangements. It is extremely unlikely that this would not happen.
We intend to publish further guidance about possible governance mechanisms in due course, which will enable effective governance. I am impressed by the passion with which the noble Earl has spoken, by the consistency with which he has drawn attention to the problem and the seriousness of his diagnosis, although I do not entirely agree with him. I appreciate that there are residual concerns about whether these responsibilities are discharged effectively. I welcome the breadth of the amendment. Therefore, I propose to take the principle of the amendment away to consider further before Third Reading.
Finally, Amendment No. 210ZC provides for an arbitrator. I take the noble Earl's point that there are many instances where access to information, or access to premises, disputes arise. It is desirable that it should be settled as quickly and smoothly as possible. We have set out in guidance that the host should have a clear responsibility to support LINks in resolving disputes.
On those grounds, I do not see how an additional arbitrating body can help in this respect. It would add to bureaucracy and obscure the clear responsibility we have set out for the host to ensure that there are means and ways for disputes to be effectively resolved. Once again, as with the governance arrangements, I do not think that a centrally prescribed arbitrator, who would also limit the host's ability to respond flexibly, is appropriate. Even if a dispute cannot be immediately remedied by the host's arbitration, it is clear that there are number of ways for the LINk to ensure that its voice is heard, including by complaint to an appropriate local body—whether a PCT, a local authority, a regulatory body, the press or the local MP. Acknowledging and exploiting those publicly available and transparent mechanisms are more effective than establishing another arbitrating body whose powers and functions would be obscure. It might get in the way of the host.
With that rather long explanation and response, I hope that the noble Earl feels he can withdraw his amendment. I hope he accepts my assurance that we will take away the amendment on governance.
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.
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—
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.
moved Amendment No. 208:
Clause 227, page 161, line 23, at end insert—
"( ) The arrangements may (in particular) make provision as respects co-operation between a local involvement network and any English network or English networks."
[Amendment No. 208A, as an amendment to Amendment No. 208, not moved.]
On Question, Amendment No. 208 agreed to.
moved Amendment No. 209:
Clause 227, page 161, line 26, at end insert—
"( ) In this section "English network" means a person who, in pursuance of arrangements made under section 226(1) by any local authority, is to carry on activities specified in section 226(2)."
On Question, amendment agreed to.
[Amendment No. 209ZA not moved.]
Clause 228 [Duties of services-providers to respond to local involvement networks]:
My Lords, the noble Baroness, Lady Meacher, has been called away from the House and sends her apologies. I shall speak to her amendments, which of course I support.
The context in which the amendments have been tabled is the rising proportion of hospital, mental health and ambulance care provided through foundation trusts, which was amply outlined during Second Reading. I do not want to repeat the arguments here that the noble Baroness spoke to then, but I remind the House of one or two key issues. I declare an interest as a board member of Monitor, the regulator of foundation trusts, and in the light of Monitor's strong support for the Government's wish to give practical expression to the very important role of foundation trust governors, in particular, but also the wider trust memberships' engagement in their local hospitals and services.
Each foundation trust has now some 10,000 or more members, any of whom may seek information from the trust. Also, every foundation trust will have a board of governors of some 40 members, many of whom will be service users, patients, carers, members of the public and staff. I draw to the attention of the House that there are currently in excess of 800,000 people serving in these roles, and we expect within three years or so to have more than 2 million governors and members engaged in interest in their local NHS services. The boards of governors have powers and duties in relation to the future planning of the trust, the annual report and accounts, appointing and possibly firing the chairman and non-executive directors, and the very important role of acting as a communication link between the board and the local community. The board of governors will be given considerable information on the work of the trust. Foundation trust boards need to ensure that governors are fully informed so that they can undertake their functions effectively, yet informed in such a way that does not divert resources excessively from patient care.
It cannot be in patients' best interests for two organisations with a mass membership and core group to be working alongside each other purporting to represent the interests of patients, carers and the community and seeking information to undertake their representative role. The potential for overload and confusion within the acute hospital, mental health and ambulance services is obvious. We hope that the Minister will assure the House that we will find some way to ensure that such duplication is avoided, while overall giving strong support to the improvement that LINks provide over what went before. This is a very important issue.
As to the second amendment, obviously LINks will want to visit wards and community facilities, as do foundation trust governors and, on occasions, members. But governors, in particular, will want to challenge their boards if they have concerns. I am sure that just as the Mental Health Commission successfully visits unannounced, so will the governors of foundation trusts choose to make unannounced visits. We would have concerns if some of these ways and means of members and governors involved in a trust are again duplicated by LINks.
I hope the noble Baroness will be sympathetic to the confusion that we see arising if these matters are not clarified as the Bill passes through the House. I beg to move.
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.
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.
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.
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.
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.
I know that the noble Baroness is concerned that the two types of organisation will not co-ordinate their work when visiting institutions. She made an important point on that. I know from my officials' discussions with governors of foundation trusts which are members of the Foundation Trust Network that the majority of board members see LINks as a real opportunity to be able to influence wider service improvement. If a mental health trust has the capacity to reach out into the community and identify at an earlier stage of intervention people who might otherwise find themselves institutionalised, offering care through self-help groups and mental health groups in the community, it is a valuable LINk. We would want to see that happen.
I acknowledge my noble friend's concerns. I shall ensure that an explicit reference to how LINks and foundation trust boards should work together is made in our guidance. It will address visits to institutions—the next amendment will relate to that further. The guidance can set out protocols that LINks and foundation trusts can use to ensure no overlap of activity. That is a better way forward than trying to make provision in the Bill and then having to amend it later. Guidance can set out good practice and make useful suggestions of ways of working. It will ensure that LINks and foundation trusts work together as well as possible.
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.
My Lords, I shall speak also to Amendment No. 210ZAA. Clause 229 deals with the duty of services providers to allow entry by local involvement networks. If we read the wording of subsection (1), we see that the duty consists of allowing,
"authorised representatives to enter and view, and observe the carrying-on of activities on, premises owned or controlled by the services-provider".
The worry that I have with this wording, as the Minister knows, is that it conveys the impression of a LINk pursuing its activities in a manner that is both passive and mute. It is as if all a LINk is able to be when it visits premises is a fly on the wall. The word that I want to introduce, and which still has a lot going for it, is "inspect", because it carries with it the connotation of active questioning and monitoring. However, the Government have made it amply clear both in Committee and in correspondence that they regard the word "inspect" as inappropriate, because inspections are the function of the health and social care regulators.
I have therefore attempted to find a word which would make it explicit that LINks will be able to enter premises and ask whatever questions they need to ask to carry on the activities set out in Clause 226(2); that is, monitoring and reviewing the provision of local care services. The word is "enquire". I should like the Minister to consider that word if she will.
As background, the Minister will know that the key to a patients' forum being able to gauge the quality of a local service—exactly the same was true of CHCs—is its ability not only to enter and view premises but to talk to service users and staff. It needs to be able to ask the necessary questions of the right people. The mere notions of entering, viewing and observing do not seem to carry with them that essential capability. We need to correct that shortcoming.
Although the Minister has not yet spoken to Amendment No. 210, I would like to know the intention behind it. To one reading the amendment cold, it would appear to permit the Government to exclude LINks from whole categories of premises and whole classes of services provider. On the face of things, that is an extremely sweeping provision. I cannot help being rather concerned about what lies behind it. Paragraphs (b) and (c) of Clause 229(2) already contain provisions which allow the Government to place restrictions on the duty of services providers to allow LINks to enter and view premises, so why do we need yet more restrictions? I beg to move.
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 addressthat 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.
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.
I am sorry that the Minister does not see merit in my amendments. She referred to Clause 229(4)(a), which refers to the purpose underlying the viewing or observation carried out by LINks while on the premises of services providers. I accept the point that the purpose of any viewing or observation carried out by LINks needs to be the carrying on of the activities in Clause 226(2). Incidentally, I take issue with the Minister for using the word "power" as regards the activities listed in Clause 226(2); that clause does not contain a power—indeed, that is one of the bones of contention that has divided us. But while the LINks representatives may have this as their purpose, there is no duty on the part of the services provider to facilitate the fulfilment of that purpose beyond allowing LINks to enter, view or observe. If LINks were to be denied the ability to ask questions of staff and service users, it would be no use LINks protesting that their purpose would be frustrated unless they did so; at the moment, the services provider would just be able to turn round and say, "I am sorry, that's not our concern—we don't have to allow you to do this".
As for private providers, how many existing contracts with private and independent providers allow for patients' forums to enter and view premises? I have a worry about this side of LINks' activities. What confidence does the Minister have that LINks will be afforded the ability to enter and view private providers' premises, given that we are constantly assured that the contracts with private providers are the means by which this facility will be afforded to them? I am not sure whether the Minister can answer that question now; if she cannot, I shall happily accept a letter from her.
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.
moved Amendment No. 210:
Clause 229, page 162, line 15, at end insert—
"(za) providing for a duty to apply in relation to premises owned or controlled by a services-provider only if, or not to apply in relation to any such premises if, the premises are of a particular description;(zb) providing for a duty, so far as applying in relation to any premises, to apply in relation to activities carried on on the premises only if, or not to apply in relation to any such activities if, the activities are of a particular description;"
On Question, amendment agreed to.
[Amendments Nos. 210ZA and 210ZAA not moved.]
moved Amendment No. 210ZB:
After Clause 229, insert the following new Clause—
"Local involvement networks: accompanying visits
(1) Any person proposing to act pursuant to a relevant authorisation has a duty to invite any relevant local involvement network to provide one or more authorised representatives to accompany that person.
(2) In this section a "relevant authorisation" means any authorisation by—
(a) the Commission for Healthcare Audit and Inspection under section 66 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43),(b) the Commission for Social Care Inspection under section 88 of the Health and Social Care (Community Health and Standards) Act 2003,(c) the Mental Health Act Commission under section 121(5)(a) of the Mental Health Act 1983 (c. 20).
(4) No duty shall arise under subsection (1) when, in exceptional circumstances, the person considers that issuing an invitation will compromise the effective provision of health services or patients' safety, privacy or dignity.
(5) For the avoidance of doubt, the provisions of section 229 and regulations under section 229 apply to the activities of authorised representatives of local involvement networks entering premises in connection with an invitation under subsection (1).
(6) In this section "authorised representative," "local involvement network" and "services-provider" have the same meanings as in section 229."
My Lords, this amendment takes us back to long discussions which the noble Earl, Lord Howe, and I have had at various times with present patients' forum members and voluntary organisations. I have since held some of those discussions—partly wearing my new hat in looking at the issue of volunteering for the Prime Minister.
At Second Reading, I raised the possibility that the default position should be that LINks members—appropriately trained, of course—should be part of the team carrying out Commission for Social Care Inspection and Healthcare Commission inspections. As the noble Earl has just said, that should apply across any kind of provision of service, whether in the statutory, private or voluntary sector. The noble Lord, Lord Hunt of Kings Heath, at that time said that he would take the suggestion back; I raised it again and we had widespread support for it in Committee, and the Minister agreed to look at it again. In her letter to me, which other noble Lords will have seen, she stated that this was not exactly the position that the regulators wanted and that they would be happier not,
"routinely involving lay representatives in every visit they undertake".
"it is not always appropriate to do so, rather than seek lay involvement as and when it is appropriate".
I think that there is a bit of a misunderstanding here. I do not think that any of us is suggesting that any member of a LINk should be able to join any CSCI or Healthcare Commission visit of inspection; rather we are suggesting that this should be the default position, with the assumption being that if there are suitable people involved in LINks—as there must be if the system is to work at all—they would be included. That would be the way forward. After all, this is what happens with the experts by experience system in CSCI. Indeed, Denise Platt has made it clear to me that the voluntary organisations—many of which will be involved in LINks at a local level—do the actual recruiting and then experts are trained and involved. I have met some of these experts by experience and I am enormously impressed by their knowledge and skill.
Similarly, there is some lay involvement in Healthcare Commission inspections and a serious growth more widely in expert patient groups. Both Denise Platt of CSCI and Anne Walker of the Healthcare Commission are broadly supportive of this. Neither wants any Tom, Dick or Harry, or Joan, Jane or Harriet for that matter, joining inspections. However, trained expert patients and service users going on inspections as the default position would give LINks a hugely greater sense of their own worth and influence—and, above and beyond that, be the right thing to do. We all accept that there will be times when the inspection is too rapidly arranged or there is a crisis, but if the default position is to be positive vis-à-vis this role of accompanying inspections, it would do a great deal to make the many hundreds of people who have written to me in disquiet at the lack of powers and the lack of clarity of role for LINks feel better.
A lot of us were distressed by the letter in today's Guardian signed by Sharon Grant and various others on behalf of some of the major voluntary organisations. It concerned what is happening with patient watchdogs. If we could make it the default position that members of LINks would accompany regulators' inspections, it will reassure the people who are so disquieted. It would also show that we greatly value those who volunteer in health and social care in this watchdog role. It would be possible to train and support them as part of the role of supporting LINks networks generally. I ask the Minister to look again at whether this would be possible. It would make things a great deal better and ease much of the disquiet. I beg to move.
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
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.
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.
My Lords, the noble Lord is forgiven on all counts.
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.
moved Amendment No. 210ZE:
After Clause 232, insert the following new Clause—
(1) Each local authority must make transitional arrangements for the purpose of ensuring that there are means by which the activities specified in section 226(2) for the local authority's area can be carried on during the transitional period.
(2) A local authority must have regard to any guidance issued by the Secretary of State with regard to the transitional period.
(3) For the purposes of this section something is done by a local involvement network during the transitional period if—
(a) it is done by a person who in pursuance of the transitional arrangements made under subsection (1) above is to carry on activities specified in section 226(2); and (b) it is done by that person in the carrying on, under those transitional arrangements, of activities so specified.
(4) For the purposes of this section, the transitional period is the period of six calendar months beginning with the commencement of this Part."
My Lords, we come to an issue which has exercised me and, I venture to say, a number of us, perhaps more than any other; and that is the very real prospect of a complete hiatus in patient and public involvement activities once this Bill comes into force. Why do we fear that? First, there is the strong evidence of precedent, when community health councils were abolished four years ago. At that time a large number of dedicated volunteers were so discouraged that they simply gave up and went home; and a great deal of corporate memory and skill was dissipated in the process. I have been told that exactly the same thing is now happening again with patients' forums members. Looking ahead, we can see that there is almost zero likelihood that when patients' forums and the commission are abolished on
Whatever we think of these reforms, one thing is surely clear: we have to do all that we possibly can to avoid what would amount to a wholesale suspension of patient and public involvement next year. The NHS needs to be monitored and held accountable by informed patients and their representatives. That is particularly pertinent at a time when proposals for a major reorganisation of the NHS are emerging from two reports of the noble Lord, Lord Darzi. A local perspective on both these sets of recommendations is vital.
There is a further issue. The Government have invested around £34 million of public money a year into the current system of patient and public involvement. The public and the taxpayer are entitled to see that investment protected as far as it possibly can be as we move across to the new arrangements. It is really not acceptable for the accumulated corporate memory and expertise that currently reside in patients' forums to be squandered.
The amendment would put in the Bill an obligation on local authorities to put transitional arrangements in place for a six-month period. It focuses on the activities set out in Clause 226(2) and requires that these activities should be carried on immediately the Act comes into force. Guidance from the department would spell out how best these transitional arrangements might be made. What that means is that, while patients' forums would be abolished on
The guidance would put a range of options forward and local authorities would then choose the most appropriate one depending on their circumstances. Options would include temporarily co-opting willing patients' forum members on to overview and scrutiny committees, supporting them as a sub-committee of the overview and scrutiny committee or as a stand-alone committee undertaking the activities. If a local authority manages to procure a contract with a host and set up a LINk that is effective and able to undertake the activities within the six-month period, this could constitute the transition arrangements until the end of the official transition period, when they would simply continue as the LINk. It would be important, however, for evidence to be supplied to the Department of Health for publication showing that the activities were in fact being undertaken.
If the amendment, or something like it, is accepted, it could go a long way towards making sure that there will be real continuity of activity and that the expertise of patients' forum members, which is critical to the early success of LINks, is not lost to their local communities.
The other obvious option—delaying the abolition of patients' forums for a period of months—though superficially attractive, is less desirable because it would swallow up a disproportionate amount of the PPI budget and therefore leave local authorities with a great deal less money than they otherwise would have had to set up and finance the new arrangements. Nevertheless, depending on the Minister's reply, that option may have to be revisited between now and Third Reading. I beg to move.
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.
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
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
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 that is 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.
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.
My Lords, I know that we are not supposed to bring visual aids to the Chamber.
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.
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]:
My Lords, I hope the House will forgive me if I take a few moments to speak to the amendments in this group. The government amendments in this group are connected; for simplicity, I shall not deal with them strictly in numerical order, but rather in a way that best explains what we are aiming to achieve with them.
Amendment No. 211 relates to the suggested reinstatement of "involve" in the duty on NHS bodies to consult patients and the public. In Committee, I committed to giving the issue further consideration over the Recess, following opposition amendments. As noble Lords are aware, the issue of what constitutes and differentiates consultation and involvement under Section 242 of the National Health Service Act is a complex one that has been subject to recent judicial review decisions. In last year's case of North East Derbyshire, Mr Justice Collins was unable to find any differences of meaning between references to "involve" and "consult". It was this judgment that initially led the Government to exclude "involve" from the duty on NHS bodies to make arrangements to consult the users of health services.
However, noble Lords may know that, over the summer, the Court of Appeal in its judgment on Fudge, held that in that case "involvement" could be seen as something less than "consultation". That is certainly not the Government's intention. The amendment therefore restores the reference to "involvement" and results in NHS bodies being subject to a duty to make arrangements to involve the users of health services. It is our intention that, depending on the circumstances, "involvement" can include actions such as passing on information, consultation and active participation in the planning and provision of services, and the wording of the amendment reflects that.
Amendments Nos. 218 and 219 make consequential amendments to Clause 236 arising from Amendment No. 211.
Amendments Nos. 212 to 217 seek to deal with the removal of the word "significance" in Clause 236 and the lowering of the threshold for making arrangements for involvement, which in Committee I also agreed to take away and consider. We discussed this at some leisure in Committee, and we considered it to be important. As stated in Committee, Section 242 of the National Health Service Act 2006 is a wide-ranging duty, which currently provides no sense of scale to enable NHS bodies to apply the duty meaningfully. In inserting a threshold, the intention was to ensure that arrangements for consultation by English NHS bodies in England under Section 242 applied where a decision or proposal would have a substantial impact on the range of services and the manner of their delivery.
However, I understand the concerns, which noble Lords raised effectively in Committee. That is why we are proposing to amend the Bill by changing the threshold from proposals and decisions having a "substantial impact" to proposals and decisions having an "impact" and we have removed all references to "significant" in Clause 236. This means that the duty on English NHS bodies to make arrangements for involvement will apply where proposals or decisions have an impact on the range of services and the manner of their delivery.
I now turn to some important new elements to the involvement and consultation regime provided for in Section 242 of the National Health Service Act 2006. I am particularly grateful to the noble Earl, Lord Howe, for identifying two key areas by which we can strengthen the involvement duties. I am also grateful to the noble Baroness, Lady Neuberger, for her contribution to our discussions on this issue. I believe that these two areas strengthen the way by which patients and the public can have direct influence over their health services.
Although the duty to involve in the amended Section 242 applies to strategic health authorities, this section applies only in respect of services for which a strategic health authority is responsible. Strategic health authorities are responsible only for the national commissioning of a limited number of specialised services. However, there are times when, although they have no direct responsibility for the provision of services, strategic health authorities, as we all know, take the lead in formulating strategic frameworks for a whole area within which more localised services are then developed and implemented. It is in cases such as these, when strategic health authorities are developing these kinds of strategic frameworks, that we think it right that they involve patients and the public.
Therefore, Amendment No. 219ZA places a duty on the Secretary of State to make regulations imposing a duty on strategic health authorities to make arrangements to involve users of health services in certain matters. The amendment also provides that in complying with this duty, SHAs must have regard to statutory guidance. I am sure that noble Lords will agree that the level of detail needed to clarify what activities are needed and when they apply is more appropriately set out in guidance.
Amendment No. 219ZA also provides for the Secretary of State to make regulations which provide for SHAs to make directions to primary care trusts to ensure that there is no unnecessary duplication of involvement activity. If we were not to do that, I am sure that noble Lords could imagine that all sorts of duplication could come into play. The regulations provide for the directions to specify that a strategic health authority may take over responsibility for involvement activity, thus freeing the PCT from its existing obligation under Section 242. The regulations also enable directions to make provision about circumstances where involvement activity by a PCT might have already commenced prior to the making of directions.
The Government have listened carefully to the observations of the noble Earl, Lord Howe, in his meetings with my noble friend Lady Andrews on government Amendment 219ZA. However, I am content that our amendment provides for his objectives under Amendment No. 219ZAA and I hope that he will agree—although he may wish to discuss the matter further. The term "form" allows for the guidance to set out the fullest possible variety of methods or activities of involvement that might be necessary in any given circumstance and certainly does not limit SHAs to involvement in any lesser way than might be necessary or desirable.
Government Amendment No. 219ZA provides also that SHAs must have regard to when and how often the involvement duty is to be fulfilled; and the guidance can also make clear when certain circumstances apply that the duty should be fulfilled. I resist Amendment No. 219ZAA of the noble Earl, Lord Howe, and I would be interested to hear how much he wishes to push it.
I understand the point of Amendment No. 219ZAB but I am going to resist it for very good reasons. We are keen for the involvement and consultation requirements to come into force as soon as possible. I am sure that all noble Lords will agree that patients and the public should be involved and consulted at every level of the NHS, and the requirement on SHAs that the government amendment imposes is a particularly important one. We do not want now to hold that duty up by requiring a lengthy consultation process on the regulations. That is not because we do not want stakeholders to inform the detail of the regulations. Indeed, we are committed to developing regulations with the NHS and organisations representing the interests and concerns of patients. We have been assisted greatly by officers of HealthLink in working through the detail of these amendments and I know that it is committed to helping the development of regulations and statutory guidance.
We are committed to two crucial issues: first, that the guidance and the regulations are developed in partnership with stakeholders and, secondly, that the duty is put in place as soon as possible. With those comments I commend the amendments to the House and I hope that the noble Earl will consider not moving his amendments.
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 onto 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 as to 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?
There is also a lack of clarity about this provision. Surely the guidance needs to cover not the form to be taken by involvement but, rather, which forms of involvement are applicable to which sorts of circumstances. That is what matters here. In some cases, the requirement will be satisfied by the strategic health authority simply providing a LINk with certain information; in others, the LINk will need to be consulted by the strategic health authority on the set of proposals; and, in others, it will need to be fully involved from the outset as the proposals are put together. Those are only three examples but involvement could take other forms as well. My Amendment No. 219ZAA may not consist of the most elegant drafting but it seeks to encapsulate a requirement to flesh out what involvement means, or should mean, in different situations.
Why, in new Section 242B(3)(b), do the Government require the power to direct primary care trusts on involvement and even to suspend involvement that has already been started? I ask that because we are constantly being told about devolution of power to the front line. Here, we have a power that allows Ministers to interfere directly in the relationship between a PCT and a local community, and I am nervous about that.
Amendment No. 219ZAB concerns consultation on the regulations proposed in the government amendment. I believe in consultation as a rule anyway but, here, there is a special justification for it because of the vagueness of the phrase "prescribed matters". There is a strong case for consultation, too, in relation to new Section 242B. I have not tabled an amendment on that, although I should have done. In these provisions we have the possibility of strategic health authorities, which are effectively branches of the Department of Health, taking over or bringing to an end involvement undertaken by PCTs when it has already started and excluding the involvement of certain people whom another body will involve. Therefore, it is essential that there is public consultation on whatever regulations, guidance or directions are produced; otherwise, we are likely to face the prospect of further ambiguity.
I listened to what the Minister had to say. I understand that she has not warmed to this amendment but I wonder whether she would consider the idea of an informal process of consultation with key stakeholders so that there is at least an inclusive approach as the regulations and guidance are put together. It would be somewhat ironic, as well as regrettable, if the Government provided for regulations and guidance on involving people without involving them in what the regulations and guidance will say. Therefore, in that loose sense, I hope that the Minister will look favourably on the notion of prior consultation and that she will also consider the other points of difficulty that I have tried to highlight.
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.
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.
moved Amendments Nos. 211 to 217:
Clause 236, page 168, line 21, leave out "are, directly or through representatives, consulted on" and insert ", whether directly or through representatives, are involved (whether by being consulted or provided with information, or in other ways) in"
Clause 236, page 168, line 23, leave out "significant"
Clause 236, page 168, line 25, leave out "significant"
Clause 236, page 168, line 27, leave out from beginning to "if" in line 28 and insert "Subsection (1B)(b) applies to a proposal only"
Clause 236, page 168, line 29, leave out "a substantial" and insert "an"
Clause 236, page 168, line 33, leave out from beginning to "if" in line 34 and insert "Subsection (1B)(c) applies to a decision only"
Clause 236, page 168, line 35, leave out "a substantial" and insert "an"
On Question, amendments agreed to.
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.