Localism Bill

That is a little further down the road, is it not? If the clause states that that advice is being given, then that advice is being given. Therefore, if the Secretary of State is directly giving a service that is ultimately challenged, I would have thought that that had to be, quite frankly. However, that is a little further down the road and it will not happen tomorrow. Nevertheless, it is there that advice can be given and I hope that that will be helpful to my noble friend. I will look at these notes and respond accordingly. Amendment 197CA would remove relevant authority employees as a relevant body, meaning that they would be unable to express an interest in running a relevant service. The coalition programme for government committed to empowering public sector staff to take control of their own services in new enterprises such as mutuals. That was reinforced in the recent publication of the Open Public Services White Paper. The Cabinet Office is leading on implementing this commitment by introducing a new right to provide. The inclusion of employees of the relevant authority as relevant bodies under the right to challenge will implement the right to provide in relation to local authority services. To accept this amendment would be a great shame. Employees are often best placed to see how services could be improved and their ideas could make a huge difference in delivering more efficient, effective and responsive services. The amendment could prevent those good ideas from seeing the light of day by forcing employees to organise themselves as a charity, voluntary or community body simply in order to express an interest. Employees may not be prepared to be in a position to undertake such a process before an expression of interest has even been accepted, although of course they will have to comply with the requirements for what must be in an expression of interest. In addition, this could create a parallel process with employees putting their ideas to local authorities outside the procedure set out in the right. This would risk jeopardising the transparency of the process: proposals should be evaluated consistently whether they originate from existing employees, a parish council or a voluntary or community body. It is worth noting that in the policy statement, the Community Right to Challenge, which was made available in the House Library on 8 September, we make it clear that safeguards will be in place to prevent the kind of abuse of the right that is concerning some noble Lords. For example, the policy statement states our intention to provide that expressions of interest will have to set out the relevant body’s case that they are capable of providing the service and of competing in a procurement exercise. That will work to ensure that only employees serious about running a service express an interest in running it and should discourage any abuse of the right. In addition, employees submitting an expression of interest will need to set out how they propose to engage with staff affected by the expression of interest in the development of their proposal. Amendment 197CB, tabled by the noble Lord, Lord Beecham, deals with employee support for challenges. I understand that the intention behind the amendment is to apply a condition to Clause 69(5)(e) that employees must first obtain the support of a majority of employees affected by their expression of interest before they can be considered a relevant body. The policy statement I referred to previously also set out our intention to require employees to set out in their expression of interest their proposals for staff engagement. However, we do not want to be prescriptive about how this is to be achieved. It is best decided locally rather than centrally. The experience of the way the right to request has worked in the National Health Service shows that existing, well established communication channels are likely to play an important part in engaging staff. There is no requirement for a ballot to demonstrate staff support for a proposal under the right to request. However, the face-to-face meetings, intranet updates and staff clinics undertaken when some 1,200 staff from the Hull primary care trust used the right to transfer to a social enterprise show that good communication between the staff involved is likely to be at the heart of any successful challenge. Requiring employees to demonstrate that the majority of staff support a proposal in order for their idea to get a fair hearing is an unnecessary burden and risks deterring employees from exercising the right. It would require employees to identify all affected members of staff, which may not be straightforward if they operate from several sites. Then they would have to spend time, and potentially money, carrying out an exercise to seek views and gather evidence of approval. Such a prescriptive and formal process is disproportionate. There are, of course, a number of issues that staff will need to consider and actions they will need to take where they wish to form an organisation to deliver a service, including engaging affected staff. That is why we are requiring authorities, in setting periods between an expression of interest being accepted and a procurement exercise starting, to have regard to factors such as allowing relevant bodies sufficient time to prepare the bid for a procurement exercise. Amendment 197DA requires community bodies to operate in the area the service is delivered. This would amend the definition of a community body to require that the body carries on its activities in the area in which a relevant service is being provided. This is an unnecessarily restrictive requirement which could work against the interests of the communities for which services are delivered. It could deny to those within a community of interest, for example people with learning difficulties, the expertise of a national organisation experienced in delivering services geared to their needs. It would also prevent community bodies successfully delivering services elsewhere from using the right to expand that service provision into a different area. For example, Bulky Bob’s is a social enterprise based in Liverpool that collects, reuses and recycles bulky household waste. It began delivering services for Liverpool City Council, but has expanded to deliver its services in other areas. Bulky Bob’s reuses and recycles 65 per cent of the furniture and white goods it collects, thereby reducing the impact on the environment and saving the council money in landfill tax. The commitment to recycling has helped more than 30,000 low-income families gain access to affordable, ““pre-loved”” furniture since 2000. It also runs training programmes that enable long-term unemployed people to gain the necessary skills and experience for a future career in logistics, recycling, warehousing and distribution, retail and administration. We want to encourage more service providers like Bulky Bob’s rather than limiting them to working only for the benefit of one community. I am aware of the concerns that noble Lords have expressed that this well intentioned community right might get hijacked by private companies that may have the experience and the resources to win contracts that might otherwise be awarded to community groups. There is a particular concern that local authority employees may abuse the right by expressing an interest as a proxy for private sector organisations. We intend to make provisions in regulations that will help to safeguard against these risks. These are set out in the policy statement that we made available in the House Library on 8 September, which I hope noble Lords will have seen. We have sought to balance the need for safeguards with the need to allow relevant bodies to take up the right and deliver real improvements for people using public services. We do not want to put disproportionate obstacles in the way of relevant bodies and risk harming the chances of good ideas from groups that are serious about delivering services seeing the light of day. In the policy statement that I have referred to, we were clear that we intend to provide that the relevant body must make the case in their expression of interest that they are capable of providing the service. If there is no evidence or if the evidence is not convincing, the authority will be able to reject the expression of interest. This will also be the case if the authority considers that expression of interest to be vexatious or frivolous. We also intend to provide that an expression of interest from authority employees must include details of how they plan to engage staff affected by it. Prescribing that this should be done by requiring approval from the majority of staff would be disproportionate and would fall into the trap of over-engineering the right. It could have the effect of making it harder for employees than for other relevant bodies to take up the right. We strongly believe authority employees have a lot to contribute in their local knowledge and connection, their experience of delivering services to the community, and their capacity for innovation. It is therefore right that they should be able to challenge and we should not put disproportionate hurdles in their way. Clearly, were employees proved to have sought to subvert the purpose of the right, however, for example, by taking bribes or secret commissions which arise out of their employment, or by revealing confidential information, their employer would have legal recourse. Equally, others would risk damaging the reputation of their organisations, and possibly facing a legal challenge from trustees, members or other interested parties if they were found to have participated in such underhand activity. It is, however, important to be very clear that the ultimate aim of the right to challenge is to see improvements in local services. Where a successful expression of interest triggers a procurement exercise, the result should be an improvement in the service. This means a better outcome for service users, whoever wins the exercise. I trust that in the circumstances, after that lengthy explanation, the noble Lord will feel able to withdraw his amendment.