Local Government in Scotland Bill: Stage 2
This is the second day of our stage 2 consideration of the Local Government in Scotland Bill. I am sure that committee members have all their papers, as they usually do.
Before I ask the Deputy Minister for Finance and Public Services to speak, I welcome Tricia Marwick from the Scottish National Party, who is a substitute for Duncan Hamilton, and who has been to the committee before. You are very welcome. I also welcome Robert Brown from the Liberal Democrats, who is here to substitute for Iain Smith. You have not been to the committee before, but I am sure that you will find it to be an absolutely wonderful experience. I introduce the Deputy Minister for Finance and Public Services, Peter Peacock. We will start right away.
After section 15
Amendment 33 is grouped with amendments 48, 52 and 53.
Amendments 33, 48, 52 and 53 are purely technical amendments. They are intended to clarify to whom the best value and accountability provisions in part 1 of the bill apply.
I move amendment 33.
No members wish to speak on the amendments. Does the minister wish to add anything to what he has said?
No.
Amendment 33 agreed to.
Section 16 agreed to.
Section 17—Community planning: further provision
Amendment 66 is grouped with amendments 67 and 68.
Amendments 66 and 67 are drafting improvements to clarify the respective roles of local authorities, as facilitators of the community planning process, and other bodies, as set out in section 17, as participants. The bill as presently drafted requires local authorities to initiate, maintain and facilitate the community planning process and requires other key bodies to participate in the process. Clearly, it is expected that local authorities themselves must also participate, so amendment 66 simply seeks to insert "a local authority" into section 17, alongside other key players, to clarify that beyond doubt.
Amendment 67 places bodies in section 17 under a duty to assist the local authority in performing its duties under section 16—that is, the role of facilitating the community planning process and the work associated with that. That does not mean that the role of the bodies in section 17 replicates the role of the local authority; it is simply a provision to require other bodies to assist the local authority in performing its duties under section 16.
Amendment 68 is a minor drafting change to improve the wording of section 17.
I move amendment 66.
Amendment 66 agreed to.
Amendments 67 and 68 moved—[Peter Peacock]—and agreed to.
Amendment 69 is grouped on its own.
The Scottish Executive's commitment to community planning has been clear throughout the preparation of the bill. The absence of a specific duty on ministers in the bill reflected a position that community planning was ostensibly about better local governance. However, it has become clear from the deliberations of the task force, our consultation exercise and the evidence that the committee took at stage 1 that the bill and community planning would be improved if the bill included a duty on ministers in relation to community planning. I am happy to be able to respond positively to the point that the committee made on the issue. I hope that that demonstrates that the Executive is serious about playing a part in making community planning work over a sustained period. Amendment 69 is therefore a significant amendment.
We have not altered our view that the key focus for community planning is at the local level, but the success of the community planning process will also be dependent on strong links between national, regional and neighbourhood levels of governance. Amendment 69 will help to develop those links by ensuring that community planning is promoted and encouraged in the day-to-day policy development and decision-making processes of the Scottish Executive. We recognise that one of the key reasons behind calls for a duty on ministers was the desire to secure the participation of Communities Scotland, and amendment 69 has been drafted to ensure that.
Amendment 69 responds to the committee's recommendations, the views of the community planning task force and the wishes of key stakeholders.
I move amendment 69.
I have a small point to make. I am glad that the minister took on board the recommendations of the committee and Communities Scotland. Does the minister have any plans to report annually to the Parliament on the performance of his department and his involvement in community planning, through either Communities Scotland or the local authorities?
Amendment 69 could be strengthened by the inclusion of an explicit requirement for ministers to have regard to and support the community planning process in the discharge of their functions. That would fit in with what Sandra White said about the minister making a report to the Parliament.
We have tried to make it clear throughout the bill process, and in the clarifications that I have just given, that we are placing a reporting function on local authorities with the support of the other members of the community planning partnership. It is not a question of reporting back to ministers; it is a question of local community planning partnerships reporting to the communities. To the extent that Communities Scotland is part of the local community planning partnership, it will be responsible for reporting locally what it has done.
If Sandra White's point is a separate one—as I think that it may be—about whether ministers will report annually, I must say that we have not hitherto given any consideration to that matter. Nonetheless, I am quite prepared to reflect on that suggestion over the next few weeks before we get to stage 3. That is a fresh point. If that response also addresses Keith Harding's point—as I think that it does—I have nothing further to add. I hope that the committee will approve amendment 69 as it stands, with the assurance that I shall consider the points that have been raised.
Amendment 69 agreed to.
Section 17, as amended, agreed to.
Section 18—Reports and information
Amendment 70 is grouped with amendments 71 and 72.
Amendments 70 and 71 respond to points that were made by the committee about section 18(1), which concerns the matters on which local authorities will have to report. One of the committee's recommendations involved the publication of a community plan, which would contain objectives to provide a basis for assessing performance. We have always made it clear that the focus of community planning should be the overall process of better planning of services and the delivery of those services. The statutory basis for community planning has been framed with that on-going process in mind.
I have no doubt that, as part of that process, community planning partnerships will want to produce a plan and we would encourage them to do so. However, we must not see the production of a plan as the statutory purpose of community planning. Indeed, we tried to keep to a minimum in the bill mention of the production of plans and to concentrate on the process of doing. The consultation responses backed that approach. Although a plan is an important tool, I am not persuaded that a statutory requirement to produce one is needed.
Community planning is about co-ordinating the planning and provision of services and achieving specific outcomes that make a difference to people's lives and to Scotland's communities. That is why the bill emphasises that community planning partnerships should report to communities, rather than to ministers or to the Parliament. Nevertheless, I agree with the committee's view that outcomes are important in the context of reporting and I am happy to present amendment 70, which tries to achieve that. The amendment will require a report to be produced on the community planning that has been done. The report should include information about the improvement in outcome that is attributable to the community planning process. It should also contain outcomes set against objectives and related performance outcomes that have been agreed by the partnership.
The guidance will expand on that matter and, in time, it will offer suggestions on the range of joint outcomes and indicators to which partnerships may aspire. We want to give local authorities and community planning partnerships the necessary scope to develop specific outcomes within the framework.
I turn to amendment 72. The duty to report on community planning should rightly rest with local authorities, which will be the facilitators of community planning. However, I recognise that other key partners must participate in the reporting process. The committee's view was that the duty to report should apply to the bodies in section 17 as well as to the local authority, but we are concerned that that could be interpreted as a duty to report separately, which is neither the committee's wish, nor mine. A single collective report must be prepared for the community planning partnership, with the local authority, as facilitator, being responsible for its preparation and publication. However, I am persuaded that we must commit other key partners to assisting in the reporting process.
Amendment 72 will ensure that the bodies in section 17 provide any information that the local authority might reasonably require in preparing a report on how the local authority has implemented its community planning duties. For example, that might be information that is necessary to publish a report or information relating to a body's participation in community planning.
I move amendment 70.
Amendment 70 agreed to.
Amendments 71 and 72 moved—[Peter Peacock]—and agreed to.
Section 18, as amended, agreed to.
Section 19—Guidance
Amendment 79 is in a group on its own.
Amendment 79 relates to the third line of section 19, which contains the phrase
"about participation in community planning."
That suggests that only the element of guidance that relates to participation should be considered. If the committee's recommendation that a community plan should be published is accepted, those who are involved in community planning should be required to have regard to all guidance that the Scottish ministers provide, not only guidance about participation. Therefore, I recommend that section 19(1) be amended by deleting the words "participation in".
I move amendment 79.
The Executive supports Sylvia Jackson's amendment. It is likely that ministers will want to issue general guidance on community planning as well as on participation specifically. Amendment 79 is helpful.
Amendment 79 agreed to.
Section 19, as amended, agreed to.
After section 19
Amendment 73 is in a group on its own.
As the committee is well aware, community planning is a developing process. At its heart is a desire for closer working between public agencies at local level and for the agencies to work better with communities, including the voluntary and private sectors. It is also about the better delivery of national priorities at the local level, aligned with local priorities.
As community planning partnerships develop over time, they will wish to innovate and develop their co-operative working relationships and arrangements. We want to create as few limitations as possible on the ways in which the partnerships wish to develop. We want to give them the powers and abilities to accommodate their local decisions on how best to work together.
The guidance that accompanies the bill—the committee has a copy of the working draft—will help considerably in setting a framework for community planning throughout Scotland, while allowing community planning partnerships space to deliver based on their particular circumstances.
Community planning is evolving. However, opportunities for primary legislation come round infrequently so we should always be looking ahead when we design such legislation. That is why I have been attracted to examining how some community planning partnerships might—I stress the word "might"—want to evolve in the future.
I do not want unnecessary barriers to stand in the way of greater co-operation and integration between our public bodies in co-ordinating the delivery of services. I can envisage circumstances in which a community planning partnership might wish to undertake some of its joint activity on a basis different from that of an informal partnership, which a community planning partnership currently constitutes. One means of facilitating that in the public sector framework would be through the formation of a corporate body comprising a membership from a range of bodies participating in the community planning partnership. The corporate body would be a legal entity that was distinct from any one partner.
The possibility of incorporation, as it was termed, was raised in several stage 1 evidence sessions by the Society of Local Authority Chief Executives and Senior Managers, the Society of Local Authority Lawyers and Administrators, the community planning task force and by me. Following a period of discussion and consultation, undertaken jointly with the community planning task force, I am satisfied that we have a consensus to lay an amendment before the committee.
I will describe the key features of the section that is proposed in amendment 73. Any such corporate body would be intended for the purpose of better securing co-ordination to further community planning; it would not be intended to substantively deliver services. Any such corporate body would be enabling and any decision to go down such a route would rest completely at the local level between the local authority and other members of the partnership making an application. The case that is made by the community planning partnership should result from wide consultation and would have to set out the views of those who were participating in the process on the functions that a corporate body would take on. In other words, there would be a need to demonstrate broad agreement.
Ministers would have the ability, through an order-making power, to set out the functions to be undertaken by the corporate body along with the membership of the body, the accountability arrangements and, if necessary, any other conditions. Ministers could not initiate the process or require it to happen, and the process would be subject to parliamentary scrutiny. Provision is being made to supersede existing legislation that would inhibit a body's participation in a corporate body for that purpose.
I emphasise that the power to use the provision would be in local hands. If local authorities and agencies do not wish to use the power, it will not be used.
I know that there are some questions about accountability and potential costs and I want to address those briefly. A separate body will require its own accountability arrangements. That being the case, it would be preferable to have such accountability systems through a public route rather than through the likes of a company. A corporate body with a public accountability route will make it clearer that community planning is about joint accountability when agencies, communities and voluntary bodies act together.
The committee raised a concern about cost, which is entirely understandable. As I have made clear, community planning cannot be about duplicating activity and additional funding. The same is true of a corporate body. The case for the formation of such a body should be grounded in a genuine co-ordination of functions on behalf of the wider community planning partnership. If the body were simply about adding to or duplicating the functions of its constituent members, there would be no point to proceeding with it. I want to be absolutely clear that I do not envisage a corporate body that is created under an order-making power under the section that amendment 73 would insert to be responsible for the substantive delivery of services. There are other vehicles to bring about the joint delivery of services between those bodies. The power to advance well-being gives local authorities powers to enter into partnerships for that purpose. Other vehicles are tailored to specific policy areas, such as in community care. The section that amendment 73 would insert is an enabling provision.
I move amendment 73.
I have a few concerns about amendment 73, which the minister's comments went some way to alleviating. On the idea of incorporation, the Local Government Committee's stage 1 report said that the minister said:
"he was sympathetic to the idea as long as it was based on the voluntary agreement of all partners, and that any partner had the ability to veto incorporation".
The wording in subsection (1) of the proposed new section is:
"The Scottish Ministers may—
(a) on the application of the local authority together with one or more of the bodies, office-holders and other persons participating in community planning in the area of the local authority".
There is no mention of the veto or of the fact that all the members are responsible and that they should all be signed up. That is my first concern.
Secondly, I welcome the minister's statement that he does not see incorporation of the bodies as a way of delivering the services and that the services should still be delivered by the local authority and the other partners. Despite what the minister said, I am concerned that amendment 73 perhaps does not make the position as clear as was the minister's statement. I would have liked a lot more clarity in amendment 73.
My third point is that although SOLACE and the community planning task force came up with the idea at stage 1 that we should consider incorporation, I am not convinced that we examined that idea as fully as we could have done. I am conscious of the fact that we heard no voices that could have put an opposing view to the committee at the time. I do not think that the issue has been thought out properly. Although I welcome what the minister said, I want him to return to the evidence that he gave at stage 1 and tell us why he has moved away from the voluntary agreement of all partners towards the agreement of just one of them. I want the minister to explain why he has moved away from providing for even one of the partners to be able to veto incorporation.
My final point is that subsection (9) of the proposed new section states:
"An order under subsection (1) above shall be made by statutory instrument and, if made without a draft of it having been approved by resolution of the Scottish Parliament, shall be subject to annulment".
Do I take it from that that when the order is made, although we might have powers of scrutiny and we may vote against an order, we will not be able to make amendments to the order at that time?
I want to raise a couple of points of information, which might show my ignorance. First, I assume that this sort of arrangement would apply to social inclusion partnerships, which I imagine are under the general umbrella of community planning. Is that right and is it the intention that social inclusion partnerships might be converted into bodies corporate in suitable instances? There might be advantages to that, but that is another issue.
The second point is on the format, which is something that we will have to discuss with regard to reserved issues around different sorts of company. Will the company be limited by guarantee? Has any thought been given to the most suitable mechanism for such a public sector body?
I will deal with Robert Brown's questions first. If I understood him, he asked whether amendment 73 would allow a SIP to become incorporated. I do not think that it would, but I will confirm the position in writing to Robert Brown. If a SIP were constituted locally and were part of a community planning partnership, I understand that it could be part of an incorporated body.
Robert Brown asked about companies limited by guarantee. The closest analogy to what will be created is a local authority joint board. It will be not a company limited by guarantee, but a body corporate, whose establishment is in the gift of ministers under the procedure that amendment 73 will introduce. Joint boards involve local authorities co-operating. The amendment widens the potential for partnerships and uses a similar model.
I have considerable sympathy with Tricia Marwick's comments about the drafting, as I asked officials the same questions when I saw the amendment. The amendment is intended to initiate the process. It simply ensures that an application is made in line with some minimum criteria. I hope that a request will not be made only by the local authority and one other body, but if it were, paragraphs (a), (b) and (c) of subsection (2) would nonetheless ensure that the application makes clear
"(a) what consultations were conducted on the question whether to apply for an order under that subsection;
(b) what were the views on that question of the persons participating in community planning in the area …
(c) what were the views of persons (other than those referred to in paragraph (b) above) consulted on that question".
When an application is made, a minister will apply tests of whether to proceed by checking whether the application is from two people or represents the views of a wider group of people. If ministers felt that the community planning partnership had not reached genuine consensus, they could decide not to proceed with the matter.
When drafting the provision, the more that we reflected, the more that we asked whether, if the principal players in a large community planning partnership—the local authority, the health trust, Communities Scotland and whoever else was round the table, such as the police or enterprise companies—felt that that was the right way to proceed but one organisation in the partnership felt that it was not, it would be right for that organisation to veto the big players' will. That is the reason for the drafting.
If local views were that consensus had not been reached, I would not envisage a minister agreeing to proceed. That said, I am always willing to reconsider ways of clarifying such matters, if possible. First, I suggest that we proceed with amendment 73. I am happy to give an undertaking to re-examine the matter and to consider whether the amendment can be improved. I am happy to let the committee know about that and to discuss it with the committee before stage 3, to see whether we can resolve the issue. I have considered the matter quite a lot and I am satisfied that the amendment allows the right balance.
I will deal with Tricia Marwick's other comments. The purpose of a body corporate relates to co-ordinating functions, not delivering service functions. Tricia Marwick asked about consultation after evidence had been taken at stage 1. That was conducted jointly by the Executive and the community planning task force, with all the organisations to which she referred, which were also consulted at stage 1. A fairly wide consultation was held before we lodged the amendment. On balance, there was consensus for the proposal, because the amendment provides an enabling power—it does not put a prescriptive power in ministers' hands, but simply enables things to happen when a local decision has been made.
Tricia Marwick's final point was about the resolution. I understand that the same procedures are in the Scotland Act 1998 and that there is a choice as to which procedure is followed. Without prejudice, I would be happy to consider whether there are any changes that we could make to that. I believe that Tricia Marwick was arguing for an affirmative order rather than for the choice being available. Having the choice may well be the right thing to do, but I am happy to reflect on that point before stage 3.
The question is, that amendment 73 be agreed to. Are we agreed?
No.
There will be a division.
For
Brown, Robert (Glasgow) (LD)
Godman, Trish (West Renfrewshire) (Lab)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Jackson, Dr Sylvia (Stirling) (Lab)
Thomson, Elaine (Aberdeen North) (Lab)
White, Ms Sandra (Glasgow) (SNP)
Against
Marwick, Tricia (Mid Scotland and Fife) (SNP)
The result of the division is: For 6, Against 1, Abstentions 0.
Amendment 73 agreed to.
Section 20—Extension of Controller of Audit's reporting functions to best value and community planning: amendment of section 102 of 1973 Act
Amendments 34 and 35 moved—[Peter Peacock]—and agreed to.
Section 20, as amended, agreed to.
Amendment 36 moved—[Peter Peacock]—and agreed to.
Section 21—Power to advance well-being
Amendments 37 and 58 moved—[Peter Peacock]—and agreed to.
Section 21, as amended, agreed to.
Section 22 agreed to.
Section 23—Limits on power under section 21
Amendment 38 moved—[Peter Peacock]—and agreed to.
I invite the minister to speak to and move amendment 74, which is in a group on its own.
Amendment 74 is a simple but important amendment, which responds to a committee concern. It relates to the power to advance well-being and provides a safeguard against the problem of unreasonable duplication, about which the committee raised concerns in relation to section 23(4).
On the basis of evidence taken at stage 1, the committee recommended that section 23 be amended to make it clear that the power to advance well-being could be used to carry out the functions of another body where prior consent had been given by the body concerned. Once prior consent has been given, unreasonable duplication cannot occur. The concern was that the bill as drafted did not make that sufficiently clear.
Local authorities expressed concern that carrying out the functions of another body would be deemed unreasonable even if there were agreement between the parties concerned. Amendment 74 puts the matter beyond doubt. If, after best value has been considered, there is a case for a local authority to undertake a function that is the responsibility of another body, and if that other body consents, that would not be considered unreasonable duplication.
I move amendment 74.
Amendment 74 agreed to.
Amendment 59 moved—[Peter Peacock]—and agreed to.
Amendment 75 is grouped with amendment 77.
A primary objective of the bill is to shift the focus in local government legislation away from process and cost to embrace outcomes and delivery as well. For the most part, service users simply want better services—they are not hung up about who delivers them or about how they are delivered. We expect local authorities to adopt the approach and the delivery mechanism that secure the best value in meeting the basic criteria.
In the past, local authorities have involved themselves in various sorts of corporate body, such as companies or trusts. We have never sought to regulate the choices that local authorities make in that regard. Most of those bodies are not, and cannot be, bound by the provisions that have been carefully developed and approved in local government legislation.
It is clear that the power to advance well-being clarifies and strengthens the statutory basis for company formation by local authorities. Whether such formation is done under the power to advance well-being or by using other statutory justification, we believe that certain basic principles should apply as a consequence of local authority involvement in corporate bodies. Corporate bodies that discharge local authority functions should fall within the accountability framework of local government. That is essential to ensure protection and account for the public pound. Amendments 75 and 77 are intended to address that issue directly.
The "Following the Public Pound" guidance by the Convention of Scottish Local Authorities and the Accounts Commission for Scotland has proved a valuable guide to local authorities. We support the principles that are set out in that guidance and we welcome the fact that the guidance will be updated to reflect the new landscape of Scottish local government.
However, in the Parliament and elsewhere, there have been calls for greater certainty in accountability arrangements on these matters. We need to ensure that the "Following the Public Pound" guidance is applied rigorously and uniformly. We have concluded that, in future, following that guidance should be a precondition of involvement in corporate bodies, not an optional extra. We want to remove any ambiguity. Amendment 75 puts the issue beyond doubt.
On amendment 77, it is essential that, once a local authority has decided to use a corporate body to discharge some of its functions, the authority's auditors have a right of access to the body's accounts. Involvement in corporate bodies can be profitable for a local authority. We are considering how such profit should be regarded within the accounting framework that is set out in part 1 of the bill. If necessary, we will clarify the issue formally at stage 3.
I move amendment 75.
I seek some clarification on amendment 75, particularly its reference to
"any code or other document which the Scottish ministers direct".
The minister mentioned the guidance for local authorities. The language that is used in amendment 75 worries me, as it makes me think that ministers will put forward codes or documents—for example, in relation to the power of well-being. I want to clarify that the Executive will not produce various documents just because of amendment 75.
In his comments about incorporation, which he made in relation to amendment 73, the minister stated that he did not expect an incorporated body to discharge the functions of local authorities or of any other partners. However, in supporting amendment 77, he indicated that incorporated bodies could discharge some of the functions of local authorities. I am concerned that incorporated bodies might be allowed to discharge responsibilities that elected officials and local authorities should discharge. In view of the remarks that the minister has just made, I seek clarification on what he is saying about incorporated bodies.
On Sandra White's point, amendment 75 does not represent a Trojan horse for other bits of guidance that we want to use. We seek to ensure that the "Following the Public Pound" guidance, which will be updated over time, is applied rigorously and consistently in relation to local authorities' involvement in corporate bodies. That is not to say that ministers could not use the power at some future date, but there is no intention to do so. In our mind, the issue is straightforward: we want the power that amendment 75 will provide so that we can ensure that "Following the Public Pound" is followed more rigorously. We are responding to significant representation that has been made since the Parliament was established about the current arrangements.
On the point that Tricia Marwick made, we need to be absolutely clear that the body corporate that we discussed in the context of amendment 73 is a body corporate for the co-ordination of the community planning function. It is not our intention to use that body to deliver primary functions.
However, existing arrangements allow local authorities to establish corporate bodies, trusts and other mechanisms to deliver services. Perhaps the best anecdotal example that I can give is the leisure trusts that local authorities have set up to run swimming pools, sports facilities and the like. Those already exist in a number of council areas in Scotland.
Amendment 75 will provide a mechanism to bring those trusts within the scrutiny of public accountability. Rather than encouraging more things to happen outwith local authorities—and potentially, therefore, unaccountably—the amendments will ensure that there is an accountability mechanism for such bodies. We seek to resolve that issue, which has been raised in the Parliament on a number of occasions.
The question is, that amendment 75 be agreed to. Are we agreed?
No.
There will be a division.
For
Brown, Robert (Glasgow) (LD)
Godman, Trish (West Renfrewshire) (Lab)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Jackson, Dr Sylvia (Stirling) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Thomson, Elaine (Aberdeen North) (Lab)
Abstentions
White, Ms Sandra (Glasgow) (SNP)
The result of the division is: For 6, Against 0, Abstentions 1.
Amendment 75 agreed to.
Amendments 45 to 47 moved—[Peter Peacock]—and agreed to.
Section 23, as amended, agreed to.
Before section 24
Amendment 76 is in a group of its own.
Amendment 76 is intended to ensure that there is statutory provision so that best value and community planning can be taken into account in the regular inspections of fire services by Her Majesty's chief inspector of fire services for Scotland and in the regular inspections of police services by Her Majesty's inspectorate of constabulary for Scotland. Amendment 76 would simply make the powers of the inspectorates clear in that regard.
I move amendment 76.
Amendment 76 agreed to.
Section 24 agreed to.
Section 25—Excess of power: enforcement
Amendment 65 moved—[Robert Brown]—and agreed to.
Section 25, as amended, agreed to.
That is our stage 2 consideration of part 4 of the bill finished. We will stop for a couple of minutes to stretch our legs, before we deal with the Dog Fouling (Scotland) Bill.
Meeting suspended.
On resuming—