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Law Reform (Succession) Bill [H.L.]

The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 1 [Intestacy and partial intestacy]:

Lord Mishcon moved the following amendment:


Page 1, line 10, leave out ("14") and insert ("28").

The noble Lord said: On Second Reading I ventured to suggest that the survivorship period under an intestacy should copy what the practitioners in the law have been doing for a long time in regard to the making of wills. I then suggested that the period of 14 days was too short and that the period of 28 days would be more satisfactory.

The noble and learned Lord, with his usual graciousness, considered that suggestion and was kind enough to write to me in certain terms. I prefer that he paraphrases those terms, not I. I beg to move.

The Lord Chancellor: When the Law Commission considered this question it took the view that 14 days was an appropriate survivorship clause interval to adopt as part of the general law. In the light of his great

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experience as a solicitor, the noble Lord, Lord Mishcon, suggested at Second Reading, as he mentioned, that that was a rather short period in present circumstances and that in practice a period of 28 days would be better.

I have considered the suggestion carefully in the light of the information I have about current practice, and I have concluded that the noble Lord, Lord Mishcon, is right and that it would be an improvement to the Bill to substitute 28 days for 14 days. I advise the Committee to accept the amendment.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Remaining clauses and schedule agreed to.

House resumed: Bill reported with an amendment.

Avon (Structural Change) Order 1995

3.12 p.m.

Viscount Ullswater rose to move, That the draft order laid before the House on 9th February be approved [9th Report from the Joint Committee].

The noble Viscount said: My Lords, I beg to move that the draft Avon (Structural Change) Order 1995, which was laid before your Lordships on Thursday 9th February, be approved.

I am conscious that this is the second of these orders which has been put before your Lordships recently, and that we are likely to be considering many more over the coming months. I shall therefore try to focus my remarks on those issues which are specific to Avon.

Apart from a few minor points, this order implements the Local Government Commission's recommendations for Avon. Its effect will be that on 1st April 1996 the Avon County Council will be abolished and replaced by four unitary authorities. The existing authorities of Bristol and Woodspring will be retained, and will be given unitary powers. Woodspring is to be renamed North West Somerset. The existing authorities of Bath and Wansdyke will be abolished, and replaced by a single unitary authority to be called Bath and North East Somerset. The existing authorities of Kingswood and Northavon will also be abolished and replaced by a further unitary authority to be called South Gloucestershire. There is a point here about continuing and new authorities, to which the noble Baroness, Lady Farrington, refers in her amendment, and to which I shall return later.

In the absence of clear agreement on alternative names for the unitary authorities, the Government have concluded that they should not make any change to the names recommended by the commission. However, authorities retain the power to make changes to names if they resolve to do so. No doubt that is an issue which some of the unitary authorities in Avon will wish to consider.

I should like to emphasise that this order is not a judgment on the performance of the existing local authorities in the area. That is not what the review of

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local government is about. It is about finding the best form of local government for the future in each area, and that is why this order is before your Lordships today.

I should say also that in Avon there has been a generally constructive debate about reorganisation and the implementation of change. The Government have not agreed with every point that has been put to them but have considered them all very carefully. The debate has been conducted in a sensible and non-partisan way. The Government welcome that.

The Government believe that authorities which are to assume unitary status should be given a fresh democratic mandate. There will, therefore, be whole council elections to all four unitary authorities in May this year. All four authorities will then have responsibility for planning and budgeting for change before they assume responsibility for the full range of local government functions on 1st April 1996.

In future, the three councils outside Bristol will hold whole council elections every four years, although if they decide later that they want to move to elections by thirds it will be open to them to ask for this. The Government have no view about which system is preferable. Bristol will return to its current arrangement of elections by thirds from 1997, as was requested by the authority.

Warding arrangements for the two new authorities are as recommended by the commission, except for the correction of a minor technical error in South Gloucestershire. There are no changes to the current warding arrangements for Bristol and North West Somerset.

The commission also recommended the abolition of the county of Avon and its return to Somerset and Gloucestershire for ceremonial purposes. The order abolishes the county area of Avon and provides for Bristol to be a county in its own right as it was before 1974, with its own lord lieutenant and high sheriff.

As in the case of other areas for which orders have already been placed before your Lordships, we shall be making separate provision to put into effect the Local Government Commission's recommendations for ceremonial arrangements elsewhere in the present County of Avon. We shall be providing that, for ceremonial purposes, Bath and North East Somerset and North West Somerset will be part of Somerset, and South Gloucestershire will be part of Gloucestershire.

Once the order is made, all authorities in the area will have extra duties and powers to start preparing for reorganisation. They will each be under a duty to co-operate in implementing change. Unitary authorities will have access to the information which they will need. Once the new councils for the four unitary authorities have been elected, they will have further powers to make the necessary preparations, including setting budgets and recruiting staff, for the functions they take over on 1st April 1996. They will be required to consider whether any of their new functions would best be discharged through voluntary joint arrangements with other authorities. Taken together, these provisions will ensure that there is a smooth transition to the new structure, with proper safeguards for essential services.

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In addition to the legal framework, I understand that all of the local authorities in Avon have been working well together for a considerable length of time now to ensure a smooth transfer of services. The council leaders and chief executives, as well as specialist officer groups, have been working in the county. In the area of each unitary authority, members of all the councils involved have been working formally together, following an agreed work programme.

In her amendment to the Motion, the noble Baroness, Lady Farrington, regrets that two of the present authorities in Avon are to continue and gain unitary status. I am sure it would help noble Lords if I set out the Government's thinking on this. Where an existing authority, as a result of reorganisation, assumes responsibility for new functions but its area is unchanged, that authority continues. The Government simply have no powers to abolish it. However, where a unitary authority has new boundaries not based on the existing boundaries of a previous authority then that authority may be new. Therefore, in Avon, Bristol and North West Somerset will be continuing authorities. South Gloucestershire and Bath and North East Somerset will be new.

Much has been made of this. Fears have been expressed. The Government have been told that it is unfair, since the continuing authorities will have an advantage. For instance, it is said that they will have an inside track on recruitment since they can get the recruitment process under way now, before the new authorities have come into existence and therefore will get the first pick of the staff available.

The Government do not agree. As soon as the order is made, all the authorities involved have new powers and duties to start preparing for reorganisation. They also all have to co-operate. So, Bath and Wansdyke, for example, can start work towards reorganisation just as much as Bristol. But the Government are very clear that the decisions on how the new authorities will run their affairs should be made only after a new mandate has been obtained. The order says the authorities cannot make decisions or appointments until after the elections in May. But in May all four unitary authorities will have identical powers to do those things. So the essential point is that when new powers are given to authorities, they are given to all who need them.

I know that there is concern about the impact of reorganisation on local government staff. The Government have always made it clear that in areas affected by reorganisation, they expect that the majority of local government staff (some 90 per cent.) will simply become employees of the successor authorities. All front-line service providers, such as teachers, care workers, etc. will transfer by statutory transfer order, ensuring continued provision of services during reorganisation. The Government accept that TUPE (the Transfer of Undertakings (Protection of Employment) Regulations) are also capable of application to local government reorganisation, but each case will depend on its facts.

The Government have also made regulations (which came into force on 28th December) providing for compensation in cases of redundancy arising from

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reorganisation. They have also recently consulted on draft regulations on general staffing matters and are considering the responses. Those regulations will provide, for example, for continuity of employment for transferred staff and appointment to new chief officer posts by open competition.

The order also makes specific provision in respect of a number of services. For the police, Articles 12 and 13 provide for the representatives of the four unitary authorities to replace Avon County Council's nominees on the Avon and Somerset Police Authority from 1st October 1995 for certain purposes, essentially so that they can be involved in decisions on the budget for 1995-96 and policing plans. Avon County Council's representatives will remain on the authority for all other purposes until that council is abolished.

For the fire service, the order provides for each of the unitary authorities to be fire authority areas. The Government will, in due course, be bringing forward proposals for a fire combination scheme, under the Fire Services Act 1947, so that the fire service will continue to be delivered over the present area.

As unitary authorities, the four Avon districts will be responsible for both strategic and local land-use planning for their areas. The Government are determined that there should be adequate arrangements for strategic planning in areas where reorganisation takes place. In the case of Avon, the commission proposed that the four unitary authorities should maintain separate local plans but work together on a joint structure plan. The Government have accepted that recommendation.

The draft order gives effect to it by transferring the county's strategic planning responsibilities to the four district councils. The Government look to them to make the necessary voluntary arrangements for joint working on the structure plan. The Government expect that the authorities in Avon will establish satisfactory arrangements to fulfil this important planning function.

The Government's policy is that there should be statutory arrangements only where absolutely necessary; they believe that voluntary arrangements are more accountable. In addition, they do not think that they should tie the hands of the authorities which will be elected in May.

In accordance with the commission's recommendations, each of the unitary authorities in Avon will inherit the county council's responsibilities for minerals and waste planning within their respective areas. This will enable them to work together on strategic minerals and waste planning policies in their joint structure plan.

The unitary authorities will also become responsible for preparing minerals and waste local plan policies and proposals for their areas. Article 15(2) of the order empowers the authorities to include such policies and proposals in their district-wide local plans.

Finally, the order vests the superannuation fund maintained by Avon County Council in Bath and north-east Somerset and designates Bristol as the relevant authority for the purposes of certain financial regulations.

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The local government review and reorganisation in Avon have been the subject of a long and vigorous discussion. This has, not unnaturally, resulted in a degree of uncertainty for all those involved with local government in the area. This order will end that uncertainty. It is now time for authorities to set aside their past differences and work together to make a success of reorganisation and future local government in the area. The Government are confident that they will do so. I commend the order to your Lordships.

Moved, That the draft order laid before the House on 9th February be approved [9th Report from the Joint Committee]. —(Viscount Ullswater.)

3.25 p.m.

Baroness Farrington of Ribbleton rose to move, as an amendment to the above Motion, at end to insert ("but that this House regrets that the draft order incorporates the unsatisfactory principle of "continuing" authorities and fails to deal adequately with the detail of the transfer of services.").—(Baroness Farrington of Ribbleton.)

The noble Baroness said: My Lords, my amendment to the noble Viscount's Motion refers simply to my anxieties—they are widely shared—about the legal framework put in place by the Government for the implementation of reorganisation. I wish to put on record in some detail what those shortcomings are. I begin of course by declaring an interest in this matter as chair of the Association of County Councils. However, I do not speak to your Lordships this afternoon in that capacity but as a Member of this House.

Before I proceed, perhaps I may argue that any change in local government is dependent on the widest basis of support from the local community within that locality. If the local community feels that its functions will be better provided for and carried out by the new, stronger framework, then the case for change can be made. I believe that other speakers, in particular the right reverend Prelate the Bishop of Bristol, will put before your Lordships local views drawing on local circumstances and detailed knowledge.

There are grave reservations about the changes proposed. Those are views with which I may wholeheartedly agree. However, the amendment does not deal with that basis but with some of the issues on implementation.

When the House debated the Cleveland (Structural Change) Order a few weeks ago, noble Lords described with great clarity the services, such as social services and education, which many perceived to be at risk during a process of fragmenting existing county services. In that debate the noble Lord, Lord Gisborough, was able to cite an expressive list of organisations which had questioned that change. I believe that your Lordships are aware of a variety of organisations in Avon which have expressed views. It is a point to which other speakers may return.

However, the process of change must not fracture or damage the continuing provision of services on which people rely. Therefore the amendment concentrates on grave doubts about the effectiveness and equity of the

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legal procedure followed by the Government. Despite its criticism of the structure proposed, Avon County Council has, as the Minister said, worked co-operatively with the full party support of members and officers from the district councils. I hope that noble Lords will join me in paying tribute to those members and officers in the Avon County Council area who have served their community so well during the past 20 years.

Avon County Council has a record of innovation and pursuit of excellence in its services of which it can be proud. Latterly the county has diligently sought improvements to the order. If there is a smooth transition from the current structure to the new structure, it will be due to the efforts of all those concerned in existing authorities. It is in that context that I wish to draw attention to some of the anxieties.

The Motion before the House refers explicitly to what I have called the unsatisfactory principle of "continuing" authorities to which the Minister referred in his introduction of the order. As your Lordships will be aware from our earlier debate on Cleveland, a flaw in the drafting of the Local Government Act 1992 means that wherever a new unitary authority is established on the same boundaries as an existing district or county, that authority is in legal terms a continuation of the existing authority rather than being wholly new, despite the radical change to its functions. The principle of the completely fresh start has been lost. This is quite against what was understood on all sides at the time of the Bill's passage.

The Government were warned, as soon as this flaw became apparent, of the damage it would cause. As the Isle of Wight—a unitary authority to be based on the area of the existing county council—proceeds to full-blown reorganisation this April, it is becoming sadly apparent how right the warnings were. Your Lordships will recall that the decision to have a unitary authority for the island was not controversial between any of the existing authorities. Moreover, officers and members from the county and districts deserve only praise for the hard work they have put in to make the transition to the new structure as successful as possible. However, all three authorities on the Isle of Wight are quite clear that they perceive the unsatisfactory nature of the procedure, as a continuing authority principle is enacted.

Planning for a fresh start with the new authority has been seriously impeded by the continuing authority problem. In particular, morale and motivation in the two district councils is low. Given the history of agreement on the island over the principles of the review, there is no reason to believe that it will suffer these problems more acutely than continuing authorities to be established elsewhere. Quite the opposite, indeed.

The order before the House abolishes Avon County Council, which currently provides services such as education, social services, libraries and highways. It will be replaced by four new unitary authorities. Two of these will continue. That is to say, the existing districts will continue and all the Avon services will be added on to that base. The two other new authorities will be totally new, with services and staff from both the county and the districts being taken on the same terms within a

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framework of equality of treatment. The latter two authorities will have no legal existence at all until after the shadow elections. This mixture of continuing and wholly new authorities has brought to light a complication not seen in either the Isle of Wight or Cleveland, and that difference matters very greatly. There are difficult decisions to be reached about the destinations of key staff and the future of county-wide services.

Were the Government to give a head start to some of the authorities in the Avon area but not others, it would be quite inequitable. The view that I have to put forward is shared by the districts destined to be subsumed into the two wholly new authorities. This issue was raised and discussed in another place. The Minister responsible for local government and housing sought to clarify and place on record the effect and meaning of the order. The legislation is extremely complicated, as the Minister speaking in another place confirmed.

I should therefore be grateful if the Minister could confirm in his reply that the Government recognise that it would be inequitable were some authorities to have a head start on others. The Minister in another place stated that the order prevents a continuing authority from making any decisions before the shadow elections on behalf of that authority take place.

I shall prevail upon your Lordships' patience and set out as succinctly as I can the detail of the matter which the Government could help to clarify. Between the making of the order and the shadow elections this May, Article 20(1) enables transferor and transferee authorities to


    "take such steps as appear to them to be necessary for the purpose of preparing for the transfer and exercise of functions which will, on and after the reorganisation date, be exercisable by the transferee authorities by virtue of this Order".

However, the scope of that preparatory power is limited by sub-paragraph (2) (a). It states that after shadow elections transferee authorities alone shall,


    "make such arrangements for organisation and management and such appointments of officers as are necessary to secure the proper performance of those functions".

It would be very helpful if the Minister were to provide in his reply a few examples of things that authorities may and may not do between the making of the order and the shadow elections. Also, could he confirm the view of the Minister responsible for local government and housing that, before the election of the new authorities, existing authorities cannot make appointments? In particular, I should be grateful if he would confirm that continuing authorities may not draw up job specifications for posts relating to the new functions and advertise and interview for such posts.

Finally, can the Minister also confirm that when references are made to joint preparatory work before the May elections, it is his understanding that that work should include both the existing tiers in the area of the new authority, whether or not that authority is, in legal terms, continuing or wholly new.

If the Minister can provide reassurance on those issues, it will go some way to establishing a fairer basis for change, although it would be unrealistic to believe that even after the shadow elections the continuing

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authorities will not have something of a head start in purely practical terms. The secondary legislation can only ameliorate the problems caused by the Act itself, not overcome them.

I should be grateful if the Minister can also spell out in detail why it is that Article 19(2) requires transferor authorities to furnish other authorities with information, but does not require transferee authorities to do the same. Is there a thought that authorities winding down their operations will never need to know anything from the new authority taking them over?

Out of respect for your Lordships' time, I wish to refer only briefly to the fact that Avon County Council and members have sought some clarification on the issue of continuity. There is also a concern about how the transfer of functions is being carried out with regard to the new authorities. Can the Minister clarify the loose arrangement of statutory responsibility during the transfer? Does he understand that a transferor authority may retain a power associated with a statutory duty, even if it no longer has that duty? What actual difference in law and practice does he understand placing the duty with the new authority, rather than leaving it with the outgoing one, makes for the transferor? Lastly, does Article 11(2) (c) of the general regulations apply automatically to the areas of the wholly new authorities? If so, how is the clear prohibition on certain activity reconciled with the interpretation of the order by the Minister responsible for local government and housing?

I apologise for the detail of the questions which I have raised. This is an extremely important and serious issue. The order does not have enough detail about the areas of transfer of services and functions and the problems that will face those who are trying to cope with the area referred to by the Minister—the transfer of the police and the transfer of other functions. Strategic planning remains a concern; statutory bodies are important to provide vital services. I know that the Council for the Protection of Rural England will have regrets that the umbrella bodies which hold the services together will be undermined by this order.

The Government's intention as to the final pattern of local government in England is not yet known. But that need not lead to a piecemeal approach to dealing with the technical issues that are raised by any reorganisation. Detailed discussion needs to take place. Avon County Council is concerned that it does not feel that it has been consulted either through meetings or through correspondence with the department on the detail of transferring these functions. I hope that the answers that I shall receive to some of the important questions I have raised will help to resolve some of the very real, detailed and grave concerns at local level. I beg to move.

Moved, as an amendment to the Motion, at end to insert ("but that this House regrets that the draft order incorporates the unsatisfactory principle of 'continuing' authorities and fails to deal adequately with the detail of the transfer of services.").—(Baroness Farrington of Ribbleton.)

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