Localism Bill

My Lords, this is an important clause. It is almost a case of the Secretary of State giveth and the Secretary of State may take away, and there are some significant concerns about it. The clause begins with what I think is intended to be a helpful provision, Clause 5(1), where if the Secretary of State thinks that a statutory provision may prevent or restrict an authority exercising the general power, he may by order amend, repeal, revoke or disapply it. Following debate in another place, some limitations on the exercise of that power under subsection (1) are set out in Clause 6. However, there remains real concern about much of the legislation that might be disapplied. That is certainly one key provision to which I will return. There are problems also in other parts of the clause. Subsection (2) deals with the position where if the Secretary of State ““thinks””—it is odd that that word is used in legislation, but so be it—that the general power is overlapped by another power then he may by order amend, repeal, revoke or disapply any statutory provision, whenever passed or made. In respect of that provision, the Delegated Powers Committee has expressed significant reservations. I refer to paragraph 17 of its report on this part of the Bill, which states: "““Where this power is exercised in the same instrument as the power in clause 5(1), the procedures applicable to orders under clause 5(1) apply. But where the power is exercised separately, the order is, despite being the exercise of a Henry VIII power, subject only to negative procedure””." The committee was not persuaded by the memorandum that the case had been made for a departure from the normal presumption that the power should be subject to affirmative procedure. It did not think that it should be displaced and recommended that, "““orders under clause 5(2) which amend Acts should, where not combined with orders under clause 5(1), be subject to affirmative procedure””." I would be grateful if the Minister could indicate whether the Government are prepared to accept that recommendation, or, if a conclusion on that has not been reached, whether she would in due course provide a view. The next two subsections also provide very wide powers for the Secretary of State. Subsection (4) states that he may, "““by order provide for the exercise of the general power by local authorities to be subject to conditions, whether generally or in relation to doing anything specified, or of a description specified, in the order””." In other words, the general power of competence may be qualified significantly simply by order. Subsection (3) states that the Secretary of State may prevent local authorities doing anything which is specified, or is of a description specified, in the order. Those are two substantial qualifications. The Secretary of State can, effectively at a stroke, by order cut down the power of general competence, disapply it completely in relation to activities which he considers should not be carried out or make them subject to conditions. On that point the Delegated Powers Committee commented: "““We do not consider that this is justified. We recommend that orders under clause 5(3) amending earlier orders so as to extend the earlier order to other authorities should be subject to the affirmative procedure. This applies equally to orders under clause 5(4)””." Again, I would ask the Minister to indicate the Government’s response—if she can, today—to the committee’s view. Reverting to the dispensing power with which Clause 5(1) provides the Secretary of State and acknowledging that the Government sought to clarify the position in what is now Clause 6, I nevertheless point out, as does Amendment 14, that there are many Acts of Parliament which could under the Bill as it stands see their impact significantly diluted by a dispensation on authorities no longer to have to comply with duties that are imposed on them. I shall not, of course, read out the long list, but matters affected could include those relating to equalities—about which the Equality and Human Rights Commission has expressed clear views—the Chronically Sick and Disabled Persons Act, the Public Health Act, environmental legislation and much else besides. As indicated, all that would be required in terms of process for this dispensing power to be exercised would be an order, which your Lordships might think is not satisfactory in the context of the conflict that would then arise with the very principle of the power of general competence which, like the noble Lord, Lord Tope, I welcome. I share with him the qualification that one does not quite know how far it extends present powers, but it is nevertheless a welcome indication of the Government’s overall approach. In addition to those significant reservations, there are questions arising under other amendments that I propose in relation to consultation. Amendment 15 suggests that all local authorities which may be affected by an order that might be contemplated under previous provisions should be consulted, not merely those which the Secretary of State may select. In addition, two further groups should be consulted: persons or organisations representing local government, including organisations representing members of staff of local authorities, who would clearly have an interest in this matter, as well as such other persons as the Secretary of State considers appropriate. These would be, I suggest, fairly straightforward matters, and I would hope that the Minister felt able to accept those suggestions. In addition, Amendments 22 and 23 are based on, or certainly reflect, submissions made by a number of bodies, including the Equality and Diversity Forum. The amendments seek to insert some safeguards. Amendment 22 provides that, "““the policy objective intended to be secured by the provisions is necessary because it could not be satisfactorily secured other than by the provision proposed””." So there would be a greater onus on the Secretary of State to satisfy that condition. Amendment 23 seeks to add that, "““the provision does not relate to any statutory measure having constitutional significance, including, but not limited to, the Human Rights Act 1998””." Both proposals are made by the Equality and Diversity Forum, which represents a wide range of national and non-governmental organisations. In its briefing material it welcomes the Government’s proposals for the creation of the big society and the decentralisation of power, as it puts it, but states that it is very concerned about the far-reaching powers set out in Clause 5 that, "““permit the Minister by order to ‘amend, repeal, revoke or disapply’ any statutory provision that he thinks ‘prevents or restricts local authorities from exercising a general power’””." In its view, "““such extensive powers could be used to revoke or repeal a number of important statutory provisions, such as the Public Sector Equality Duty created by the 2010 Equality Act, with minimal parliamentary scrutiny””." It continues: "““This has to be seen in the context of the red tape challenge website which proposes the removal of the whole of the Equality Act 2010 on the basis that it is a ‘burden on business’””." Perhaps when she replies the Minister will tell us how that consultation exercise is going and what the weight of demand is for change to the statutory requirements that have been, as it were, put up for review or possible abolition. In welcoming new Clause 6, the Equality and Diversity Forum, as I say, finds that it does not go far enough. Taking the Government at their word, one anticipates that they would wish to see the general power as unfettered as possible. These provisions in the Bill, unless amended, would leave too much power in the hands of the Secretary of State of the day effectively to curtail the general power of competence on the basis of little protection in the way of scrutiny by Parliament. At the very least, as the Delegated Powers Committee suggests, there should be an affirmative procedure for any order to be made. This ought to follow, as these amendments suggest, a proper and thorough consultation process before any disapplying orders are made and before conditions are laid down, let alone the hugely overriding provision in Clause 5(3) which would prevent local authorities doing anything described or specified in the order. It is a wide-ranging power effectively to cripple the exercise of the power of general competence. I cannot believe that that is intended, but that is what the drafting suggests. Again, I hope that the Minister will take this away and enter into further discussions about this strange contradiction to the thrust of the part of the Bill we are now discussing.