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Baroness Hamwee: My noble friend makes a fair and entirely apposite point. It gives me no pleasure to feel as critical as I do of the Government with regard to this clause given that, in general, we support this part of the Bill. We want to see the best value scheme working and working well. However, the powers that we are discussing are extreme. The amendments address a situation considered by the Secretary of State to be sufficiently urgent as to make it appropriate for him to take action without giving the authority concerned an opportunity to make representations and without having regard to a statement which the authority concerned may have sent him.

I accept what the Minister says about these powers being applied only in circumstances where other attempts to put matters right have been exhausted. However, as they are so extreme, surely the Government must insist that their draftsmen consider which words it is proper to put on the face of the Bill. In these situations terms such as "the use of flexibility" are not good enough. We owe it to the best value authorities, their communities and all the interest groups they serve to be entirely clear about the triggers for the criteria in respect of the use of powers at the very end of the spectrum.

Of course I do not suggest that my wording is perfect and if the word "immediate" is inappropriate then that is the kind of thing that can be looked at. But when the Minister talks about systemic and persistent failure one has to qualify that kind of failure on the face of the Bill. One has to state what kind of failure merits urgent intervention. Systemic and persistent failure can comprise anything from a general failure--which should elicit a response from the local electorate at the ballot box--to something serious which greatly endangers people. I do not suggest that people should be harmed before any necessary powers are used.

We shall come back to this point. As I say, it does not give me pleasure to make this point as firmly as I do because I would like to see the best value duty work well and successfully and--to use current jargon--to see the partnership between local government and central government in this area work well too. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 69 not moved.]

Clause 14 agreed to.

Clause 15 [Power to modify enactments and confer new powers]:

Baroness Hamwee moved Amendment No. 70:


Page 11, line 21, at end insert--
("( ) If the Secretary of State thinks that an enactment prevents best value authorities from generating income directly related to the exercise of their functions he may, by order, make provision modifying or excluding the application of the enactment in relation to those authorities.")

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The noble Baroness said: In moving Amendment No. 70, I shall speak also to Amendment No. 75. I say for the record that these amendments are grouped with Amendments Nos. 71, 76 and 77 which stand in the name of the noble Lord, Lord Dixon-Smith.

We turn here to the Henry VIII powers which give the Secretary of State powers to modify enactments and to confer new powers. I freely admit that this section has given me a little difficulty, hearing from colleagues on the one hand how disgraceful it is to give the Secretary of State such powers, but knowing myself that they could be used to the great benefit of local government.

Amendment No. 70 relates to the range of powers given to local authorities which may be constrained by their inability to charge. The amendment seeks to enable charges to be made not as a separate income-generating activity, but as part of the best value regime.

I shall give the Committee some examples. Local authorities could often give better value if they were not restricted in what activities they could undertake connected with their functions.

When I chaired the planning committee in the London Borough of Richmond-upon-Thames, my vice-chairman commented very sensibly that the authority would be in a better position to advise developers of what they could do within the unitary development plan, what was worth taking forward and so on, if the cost of the time of that discussion could be recovered from the developers. We were only talking about £25 an hour. Sadly, that was found by the House of Lords to be ultra vires in the case of McCarthy and Stone.

Other authorities have had similar difficulties such as charging for discretionary services where it is very arguable that the council tax payers as a general body should not be paying. Other instances include licences for tables and chairs on the highway. The council can charge only for the cost of processing the licence but would like to be able to make a small charge to recognise the space occupied. There is a similar issue with regard to skips and other highways' obstructions. Again, there is noise pollution, when a noise team has to be called out.

In the City of Westminster, charging for public conveniences was discontinued following audit objections. On building control fees, local authorities can recover only reasonable costs; so there is no surplus. On filming on the public highway, it is sensible to allow the authority to charge for providing support services to organisations which film on the public highway.

There are a number of examples of such possible charging which, were they to be allowed, would enable the local authority to carry out its functions more effectively.

I am aware of an authority which has recently been advised that it is not permitted to sell advertising space in its own publications. It was advised that Section 111 of the Local Government Act 1972 does not apply, and express authority beyond that in the 1972 legislation would be required to enable it levy charges in

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connection with its own publicity. All it wants to do is charge advertising space in its own newspapers in order to carry out its functions of consultation and dissemination of information more effectively. This example is particularly telling in the context of best value which, by definition, requires wide consultation and the dissemination of information and, as we all know, there is a price attached to that. Through this amendment, I seek to ask Government to put local authorities in the position where they are able to consult economically, efficiently and effectively.

Amendment No. 75 is tabled in the hope that perhaps a little assurance may be given to those Members of the Committee who I know remain shocked at this proposal being in the Bill. Indeed, I have been under some pressure to seek to take out the whole of this clause. I have chosen instead to propose an amendment that no order is made under these powers unless its effect is to extend the powers of the best value authorities. That may be implicit. I believe it was a surprise to many noble Lords, and no doubt a great relief to the Government, that the Delegated Powers and Deregulation Committee dealt so gently with the Bill. I have heard various comments that it was bought off by Government assurances and I have talked before about whether we should always expect there to be a benign Secretary of State using his or her powers benignly. I hope that the Minister can give some assurances as to how this power would be used which will, I am sure, be to the interest of the House more widely than just to Members of the Committee. I beg to move.

4.15 p.m.

Lord Dixon-Smith: I have three small amendments in this group. They are very simple and the Minister could close his eyes, swallow and accept them should he so choose--I suspect he will not.

The first is to insert after the word "power" the words "or exemption". I put that in for the sake of clarity. With the exception of the Greater London Authority, which is not yet in being, local authorities work within a framework of law which exists; they are constrained by the law. I remember in my time in Essex that we used to have one solicitor who specialised in advising us whenever we came to the limits that the law permitted, which I may say was quite often. On occasions, we disregarded his advice on the grounds that no sane person would challenge us in what we were doing. So the law is an interesting concept.

The question that I ask myself is: are we asking for a power to extend the law, which is implicit in what the noble Baroness, Lady Hamwee, was saying, or are we rather asking for an exemption for that particular piece of law to apply to a particular circumstance, so that something can be done which is beneficial? It is a moot point whether a power to extend the boundaries of the law is positive or negative. In many instances, an exemption rather than a positive power will be required, which is why I added the words "or exemption".

I added Amendment No. 76 for consistency in the Bill. Wherever we mention authorities elsewhere in the Bill, we seem to have mentioned best value authorities.

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It might be beneficial for the Bill if, every time the word "authorities" appears, it is preceded by the words "best value". We would then all know exactly which bit of ground we are standing on.

We are discussing the obligation of the Secretary of State to consult. Clause 16(1) as drafted states:


    "Before the Secretary of State makes an order under section 15 he shall consult such authorities or persons as appear to him to be representative". I interpret that as a measure that is left to his discretion. I wish him to consult both best value authorities and persons. As the clause is drafted he could consult one or the other and would still be complying with the law. I simply suggest that for the sake of clarity of meaning we delete the word "or" and insert the word "and" to ensure that both groups are consulted. I look forward to hearing the Minister's reply.


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