Relevant documents: 24th Report from the Delegated Powers Committee, 12th Report from the Constitution Committee, Scottish, Welsh and Northern Ireland Legislative Consent sought
66: After Clause 7, insert the following new Clause—
“Environmental Impact Assessment(1) The Secretary of State must publish an environmental impact assessment 120 days after laying regulations under section 7.(2) Each year thereafter, the CCA must publish an environmental impact assessment in relation to their ongoing operation.”Member's explanatory statement
This means that an environmental impact assessment must be published following the establishment of a CCA.
My Lords, in moving Amendment 66 I will speak also to a number of amendments in this group in my name and that of my noble friend Lady Taylor of Stevenage.
Amendment 66 would require an environmental impact assessment to be published following the establishment of a CCA. We have heard in previous debates that the Bill will create a new model of combined authority through county deals, which will provide local leaders with powers to enhance local accountability, join up services and provide transparent decision-making to rejuvenate their communities. Although this is clearly an excellent ambition, previous debates have also demonstrated that there are many unknowns about how things are going to happen, particularly in a practical way, and what the impacts will be.
An environmental impact assessment would ensure that the likely environmental effects of any decisions are fully understood and then properly considered. An EIA would assess the direct and indirect impact based on a wide range of environmental factors—and it is a wide range, which is why an EIA must be considered and published. It could cover population and human health, biodiversity, land and soil, water, air, climate, landscape, material assets and cultural heritage. There is a lot here to be thought about. It is important, particularly given that we do not believe, as others have said in the previous debates around emissions, that the environment has been properly considered as one of the missions; it is not properly built upon throughout the Bill.
Amendment 74, tabled by my noble friend Lady Taylor of Stevenage, asks the Government to define and clarify the purpose of non-constituent members under Clauses 9 and 10, which relate to the appointment of the non-constituent and associate members of a CCA respectively. Our concern is that it is not clear whether there is to be any further guidance on whether certain types of non-constituent or associate members will be prescribed by the Secretary of State or recommended in further guidance, or whether it is entirely for the CCA to determine this class of membership according to what it believes local needs to be; for example, whether an ICS or a hospital trust is invited—because a major priority is to tackle health inequalities—or whether it is felt to be important locally that the local enterprise partnership be a non-constituent member to make a link with economic growth. Clarification on that from the Minister would be very helpful.
My Lords, I want to give very substantial support to what the noble Baroness, Lady Hayman of Ullock, has said. She has made several very powerful points. I hope that the Minister will be able to respond to those, because I am as concerned as the noble Baronesses, Lady Hayman and Lady Taylor, are about some of these issues. Some of what I want to say I will cover in the next group, so I will try to avoid getting on to the issue of voting powers.
It really is very telling. Amendment 74, in the name of the noble Baroness, Lady Taylor of Stevenage, says:
“Within 30 days of this Act receiving Royal Assent, a Minister of the Crown must publish a statement including a definition of ‘non-constituent member’ and a description of their purpose”.
If I may be so bold, I think that is really late. I had expected that we would have this before Report. With the concept of an associate member and the concept of a non-constituent member, I really think that, before this Bill gets any further, we have to understand what the Government are thinking of with those definitions. We can all hazard a guess. I can hazard a guess. Some things have been said and occasionally written, but we have to do better than this.
On page 10 of the Bill, in Clause 11, the Secretary of State is going to make provision by regulations for a whole set of matters about membership. Then, as the noble Baroness, Lady Hayman of Ullock, rightly identified, it is almost a whole side of the Bill which includes provisions on just about anything you could think of. I am at a loss to understand why these matters are not public at this stage in the consideration of a Bill.
Clause 11(4), “Regulations about members”, says:
“In this section ‘constituent member’, in relation to a CCA, means a member of the CCA (other than any mayor for the area of the CCA) appointed by a constituent council.”
My Lords, I will specifically address Amendment 66 in the name of my noble friend Lady Bakewell, but I will also refer to Amendment 86. On these Benches we broadly support these amendments because they ask some important questions.
Amendment 66 refers to the environment, which to all intents and purposes is a bit of an orphan in the Bill. One of the great advantages of CCAs, and of gathering together councils on a bigger area, is that you can have co-ordination and efficiencies of scale on environmental issues that are more difficult in smaller units. There are great disadvantages to having large units, but on the environmental issue you need to exploit the advantages. On everything from the management of areas of outstanding natural beauty to recycling schemes—I am trying to produce contrasting examples—and particularly on transport issues, there are huge advantages to running on a larger scale. For example, you have the efficiencies of running a bus network that is not just in the towns and cities but serves the rural areas that feed into them. It is therefore very important indeed that those issues are at the forefront of the decision-making of the CCAs and that they report back on those decisions.
Turning to Amendment 86, I am sure the Minister will forgive me for some cynicism here. The first round of the UK shared prosperity fund and two rounds of levelling-up funding have posed more questions than answers on the criteria on which this sort of government funding is now being based. It seems that areas favoured by the Government are doing well, sometimes not for any good reason. There therefore needs to be accountability in the funding of CCAs.
If we look at the current patchwork of local government funding in England, there always tend to be huge discrepancies and illogicalities because you are always inheriting what has gone before. Areas change and develop, and sadly some areas decline relatively. Sometimes political decisions put some areas at a disadvantage while others thrive. The point I am making is that with CCAs you are starting afresh. It is therefore very important to explain why they are being funded as they are, not just through bald accounting but with a cost-benefit analysis. Amendment 86 is a very good idea.
My Lords, I am grateful to members of the Committee for such an interesting debate about statements and guidance on combined county authorities. We agree completely with the need for transparency on the wide range of issues in these amendments.
Amendment 66, tabled by the noble Baroness, Lady Taylor of Stevenage, seeks to place a requirement on the Secretary of State to publish an environmental impact assessment 120 days after making regulations that establish a combined county authority. I hope I can reassure the noble Baroness that in making the regulations, government and Parliament will have already considered the environmental impact of doing so. When deciding whether to make regulations to establish a combined county authority or change arrangements for an existing one, the Secretary of State has to consider statutory tests, including whether it would improve the environmental well-being of some or all of those who live and work in the area. Indeed, the regulations cannot be made unless the Secretary of State considers that this test would be met. There is therefore in our view an ample opportunity for Parliament to consider this.
This amendment would also require a combined county authority to publish an annual environmental impact assessment of its ongoing operation. As a form of local government body, CCAs will be subject to the same requirements as other local authorities to publish environmental impact assessments for specific pieces of work and decisions where necessary.
Amendment 74, tabled by the noble Baroness, Lady Taylor of Stevenage, seeks a public statement of the definition and description of a non-constituent member of a combined county authority. I hope I can reassure her that there is already a definition for a non-constituent member in Clause 9. Paragraph 135 of the Explanatory Notes explains that:
“A non-constituent member of a CCA is a representative of a local organisation or body—such as a district council, Local Enterprise Partnership or university—that can attend CCA meetings to input their specific local knowledge into proceedings”.
As a further point of clarification, if the Minister will allow, is that saying specifically that district councils represented on a CCA will not have a vote, whereas the CCA can decide that other non-constituent members can vote? I am not clear about this at all. Unless what is intended is more clearly set out, we could end up in what I would consider to be an unfortunate situation of elected district councillors who sit on a CCA not being able to have a vote, and the potential for that to be manipulated in a political way would still be there. We need to understand the situation around voting and non-voting for non-constituent members.
I understand the noble Baroness’s point. I do think that I covered that in my remarks, but I will reread what I said and, to the extent that I was unclear, I will be happy to write to the noble Baroness. The broad point is that it will be up to the CCA what voting rights it allows to whom, including district councils.
Amendment 76, tabled by the noble Baroness, Lady Hayman of Ullock, seeks to allow a combined county authority to be able to request that the Secretary of State makes regulations in relation to its membership. In agreeing a devolution deal with councils in an area, we will be discussing what governance arrangements would be appropriate, including the institution to operate the devolved powers, and membership and decision-taking arrangements.
The combined county authority would be able to make such a request to the Secretary of State. Such a request would be formalised through submitting a proposal to the Secretary of State, as set out in Clause 43 for establishing a new CCA and Clause 45 for making changes to the arrangements for an existing CCA. The Secretary of State has to consider such a proposal and, if they deem the statutory tests to be met, can decide to make the regulations. Such regulations can be made only with the consent of the local area—including the combined county authority if one is already established—and with parliamentary approval.
I turn to Amendment 86, tabled by the noble Baroness, Lady Taylor of Stevenage. The Government recognise the importance of transparency with regard to allocations of funding and regular reporting on the impact of wider and deeper devolution. Section 1 of the Cities and Local Government Devolution Act 2016 requires the Government to produce an annual report on progress with devolution to combined authorities and local authorities, which covers the areas suggested by the noble Baroness’s amendment; namely, funding and regular progress reporting on devolution of additional public functions.
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I can confirm that government Amendment 152, which we have not yet debated, brings combined county authorities into the scope of this annual report. This measure will ensure that combined county authorities operate in a transparent manner and are held to account for successful delivery in the same way that other institutions in England with devolved powers already are. The Government therefore feel that we have already provided for effective proportionate reporting mechanisms for combined county authorities that will cover what the noble Baroness is seeking to achieve.
Perhaps I could add, for the noble Baroness’s benefit and that of the noble Baroness, Lady Randerson, that alongside budgets for specific functions, such as the adult education budget and CRSTS, the Government have sought to provide long-term certainty to areas with devolution deals—including through the provision of a 30-year investment fund, and settlements around that, worth over £11 billion for deals agreed to date. The funding for individual devolution deals is negotiated on a case-by-case basis, as noble Lords would expect. Long-term investment funds will be considered only for those level 3 proposals that represent the strongest governance and opportunities for greater efficiency and economic growth.
Amendment 100, tabled by the noble Baroness, Lady Taylor, would require the Secretary of State to explain how a local government area will have access to combined county authority functions if it leaves the area of the CCA. We consider that provisions in Clause 23 already provide for the amendment’s aims. Clause 23 sets out the statutory requirements for changing the area of a combined county authority, including the removal of a local government area. Any changes to the delivery of functions because of a combined county authority’s boundary changing must of course be considered. Such changes to the delivery of functions will be set out in the regulations the Secretary of State will make to change a combined county authority’s boundary, which require the consent of the local area and parliamentary approval.
As I mentioned earlier, Parliament will be provided with a statement in the Explanatory Memorandum to the regulations explaining any changes to the combined county authority’s area or conferral of powers, the views of the consultees, and how these changes meet the statutory test of improving economic, social and environmental well-being. If a local government area wishes to leave a combined county authority, it is possible those functions will be discontinued in that area. The clause already includes provisions that, when changing an area of a CCA, the regulations can transfer functions to another public authority if that is decided to be appropriate. For some areas, a public authority will continue to undertake some of the functions in the area. For some, it may be decided that the function is no longer to be exercised in the area—a point I made earlier, in a previous debate. As such, Parliament will already have this information via the above means, and the amendments are, I consider, unnecessary.
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We have concerns that Clauses 9 and 10 appear to be qualified by Clause 11, which gives significant powers to the Secretary of State to make regulations in relation to non-constituent members. These include the number of non-constituent members; the appointment, disqualification and resignation, or even removal, of non-constituent members; the appointment of a substitute member to act in place of a constituent member; the maximum number of non-constituent members; and the things that may or may not be done by a non-constituent member. There are also equivalent Secretary of State powers relating to associate members. A circumstance could be imagined where, if the Secretary of State took such powers, the outcomes could end up being the exact opposite of the localism and devolution that the Bill purports to enshrine.
That is our big concern with these clauses, and why the amendment seeks clarification and further definition relating to the role of non-constituent and associate constituent members of the CCA. It is important to understand this properly. We do not want any part of the Bill to start pulling powers back centrally when the Government appear to want the exact opposite.
Amendment 76 in my name carries on from this. It would mean that a CCA could request that regulations are introduced in relation to it. Again, it is about the control that the CCA itself has when looking at regulations and at how it needs to operate and behave effectively for its local community, rather than everything being driven centrally by the Secretary of State.
Amendment 86, from my noble friend Lady Taylor, means that an annual statement must be published to show how much funding is given to each CCA. This should include a cost-benefit analysis. We have talked a lot about funding today and last week. It is a critical central part of achieving success from these clauses and the proposed devolution for England.
Clause 14 specifies the process by which the Secretary of State may draw up regulations for the funding and costs of a CCA to be met by its constituent councils, and how that amount payable will then be determined. While the clause specifies that this has to be done with the consent of constituent councils and the CCA, it does not tell us how any additional funding that may be provided by the Secretary of State, for example through the different competitive bidding pots that exist or any grants that may be given, will be included in the accountability process for the CCA. Clarification around that would be very helpful.
We also cannot ascertain from the clause how the overview and scrutiny committee—or the general public, for that matter—would be able to determine by cost-benefit analysis just how effective, with the funding being contributed to it, the CCA is at then delivering against its objectives for the area. We believe that our amendment provides a simple, straightforward way to provide that accountability through an annually published statement.
Amendment 100 in Clause 23, in the name of my noble friend Lady Taylor, would require the Secretary of State to explain how a local government area will, in future, have access to the powers that it has lost through removal from a CCA. My noble friend referred to this earlier. If the Secretary of State exercises the powers set out in Clause 23 to change the boundary of a CCA and remove a local government area from the existing area of the CCA, they can either transfer those functions to another public authority or remove a particular function of the CCA altogether for that area. While there is provision that the relevant councils must consent to this removal, there is nothing in the Bill as it stands that requires the Secretary of State to specify how any powers or functions will be delivered in future once that membership of the CCA has been terminated. So, again, it would be very helpful if the Minister were able to explain how that would move forward.
Clause 23(8) refers to consent being required from only the county council and not from any district councils that may be constituent members. My noble friend spoke earlier about the important role that district councils should play. They should not be seen just as a stakeholder, a secondary authority that does not have a say in such matters. This would mean that, in effect, an area could be removed from the CCA with the consent of only the county council but not of the constituent district councils that make up the area of the CCA being removed from its boundary. Surely they should have some kind of say in this. Is this what the Bill is intending or is this an oversight? If it is what the Bill is intended to do, would the consent vote required in Clause 23(9) specifically exclude the votes of district council members of the CCA? This is a really important area that we need to clarify.
Amendment 129, again in the name of my noble friend Lady Taylor of Stevenage, would require the Secretary of State to produce guidance on the establishment and operation of CCAs within six months of the Bill receiving Royal Assent. The current clause simply states that the Secretary of State,
“may give guidance about anything that could be done”
in relation to this chapter. Well, in view of the fundamental changes to the structure of local government that this chapter on CCAs is introducing, we believe that that is far too vague, and very likely to leave local government with a cloud of uncertainty hanging over it. In view of the fact that there have already been many iterations of the devolution agenda in recent years, we do not believe that it is unreasonable to expect that the Government will work with the sector in order to have, very quickly, clear and detailed guidance in relation to the establishment and the operation of CCAs as soon as possible after Royal Assent. That is why we have asked for this to happen within six months.
I turn finally to Amendment 130, which aims to probe whether the public will be informed of their CCA’s functions. With this amendment, we want to determine whether the Secretary of State will be responsible for setting out the purpose and aims of the CCAs, and how they are to be established and operated; or whether that responsibility will fall to local government. If the latter is the case, will there be new burdens that will require funding in relation to the communications aspects of informing the public about the functions of a CCA? Will any such new burdens extend to any public consultation funding? This may well be required when an area decides to proceed with the establishment of a CCA. We discussed consultation a lot in the last group but one, and the Minister seemed to believe that there was going to be support for any new burdens—so, again, clarification on that would be very welcome. With that, I beg to move.
I am sure that is correct, but that is the only definition we have. We have no definition of an associate member or a non-constituent member. Yet, as we will discover in the debate on the next set of amendments, the CCA will have discretion to give those people full votes. There is a big issue here, and I intend to take it further when we get to Report.
All I am trying to do is to support the noble Baroness, Lady Hayman of Ullock, and say to the Government: here we have a number of very serious proposals that, as they stand, are unacceptable.
The Explanatory Notes go on to explain how a non-constituent member would be chosen. First, the combined county authority may designate an organisation or body as a “nominating body” of a combined county authority if that organisation or body consents to the appointment. A nominating body would be a local organisation such as a district council. The nominating body will then suggest the representative to attend for its body—for example, the leader of the council—and that individual is the non-constituent member.
An associate member is an individual person such as a local business leader or an expert in a local issue whom a CCA can appoint. This enables the associate member to be a representative at CCA meetings and to input their specific local knowledge into proceedings.
I hope I can allay the doubts and fears of the noble Baroness, Lady Hayman, on this issue. This model is designed to allow for genuine localism. It allows the local area to decide which local organisations or bodies will bring the greatest benefit to the combined county authority, and then appoint them. No two areas are the same. Depending on the local area, this will be different stakeholders, but examples of bodies that we expect to see combined county authorities engaging with are, as I mentioned, district councils, local enterprise partnerships, local universities, local health organisations and local registered providers, to name just a few.
The clause provides that district councils can be non-constituent members of a combined county authority. This will facilitate district councils having a formal seat at the table in putting their local expertise and ensuring join-up. Non-constituent members could attend the combined county authority’s cabinet meetings, be on sub-committees, and sit on overview and scrutiny committees and audit committees, giving those organisations that want them a role and voice in the combined county authority.
The model allows for local flexibility to reflect the different situations of different areas. If the combined county authority and all district councils wish to be involved, they can all be non-constituent members. However, if one does not, a devolution deal will not fall, as it would under the current combined authority model.
As stated in the levelling-up White Paper, we expect the upper-tier local authorities that we are agreeing devolution deals with to work with district councils to deliver the powers most effectively being provided. In discussions thus far, we have been pleased to see collaboration between upper- and lower-tier councils on devolution proposals to deliver for their area.
I emphasise that it is down to the combined county authority to decide what voting rights a non-constituent member should have rather than this being imposed by us in Westminster. Depending on the decision of the combined county authority, its non-constituent members can be given voting rights on the majority of matters.
I hope that this provides sufficient clarity on non-constituent members. I shall, of course, read Hansard and pick up any further questions that I feel I have not covered adequately, and I will write to noble Lords on those points.