Localism Bill

Lord Taylor of Holbeach Excerpts

Thursday 30th June 2011 Lords Chamber

[Earl Cathcart]

My Lords, I may have misunderstood, but regarding this business about local councils calling for referendums, I thought the Minister said previously that,

“following a request from a member, a referendum may not be held unless the full council has resolved that it be held”.—[Official Report, 28/6/11; col. 1746.]

I therefore thought that we had moved on from that argument.

[Lord Taylor of Holbeach]

My Lords, I thank all noble Lords for their contributions to this debate and indeed the noble Lord, Lord Greaves, for tabling these amendments. I should reassure him that councils in neighbouring wards can get together to hold a referendum covering a community. I cannot help the way that warding is done. Generally speaking, we have to have building blocks in local government and the ward system is the one that is used, but under the provisions of the Bill it would be possible to hold a referendum that just addressed the interests of Keighley or Burnley, which he illustrated.

Perhaps I can address the implications of the amendments and say why I will resist them. Amendments 120B, 120C, 126ZZA, 128QA, 128R, 128VA and 128W would remove the provisions that would allow councillors to call for local referendums and councils to pass a resolution to hold a referendum. These amendments would have the effect that if an authority were keen to hold a referendum on a local matter, it would not be able to use the powers to hold a formal referendum conferred by the Bill and would only be able to use the rather informal powers contained in Section 116 of the Local Government Act 2003. We accept that local authorities have the power to hold advisory polls under Section 116, but those polls are limited to the council’s services or its expenditure on such services and are therefore not as far-reaching as the provisions in the Bill.

We want to enable councils to hold referendums on any issue of local importance. We believe that as leaders in their areas, it is right for them to be able to do so. It is open to a council under the provisions to hold a referendum on any matter. However, any decision must be taken within the parameters of administrative law. It would need to be a rational decision with reasoned grounds for it. In answer to the point made by the noble Lord, Lord Beecham, these provisions apply also to mayoral councils. Clearly it would not be rational to hold a referendum on a matter about which no practical decision would be possible by those who were able to take the decision. For example, a decision on whether the country should invest in a programme—the illustration that I have here is rather far-fetched, to send a person to Mars; I am not sure who the drafters of this text had in mind—would not be a rational subject for a referendum by a local authority. Further, the local authority would need to consider very carefully the holding of a referendum on a matter over which it, its partner authorities or the people of the locality had little or no influence. It is not rational for the authority to incur the cost of a referendum which can serve no possible purpose.

I do not see any great advantage in denying authorities access to the referendum framework that we are setting up under this Bill if they want to use it. Nothing in the provisions that my noble friend seeks to omit imposes any obligations on authorities, so I urge him to withdraw the amendment and to support the localism that they promote.

Some of these amendments, Amendments 129K and 129L, refer to the mayor as a member, and I am grateful to my noble friend for bringing them forward. They would remove elected mayors from the definition of “member”, meaning that they could not use the power in Clause 45 to call for a referendum in the area of the council that they have been elected to lead. In fact, this may not be such a great hardship for elected mayors, since they could initiate a referendum by seeking a resolution of the authority under Clause 50. I accept the point made through Amendment 129L—to remove the Mayor for London from the provisions set out in Clause 58(2)—and we will want to consider these points carefully with a view to returning to them at a later stage. I thank my noble friend for submitting those amendments.

With the explanations which I have given in support of the Bill’s provisions, I hope that my noble friend will feel able to withdraw his amendment.

[Lord Tope]

I am grateful to the Minister for that reply. Unless I missed it, I do not think that he addressed the particular concerns referred to by both noble Lords, which is what happens with split wards. What would happen to a three-member ward where two are from one party and the third is from another? In my own borough, one-third of the wards are in that position, so it is a significant point. A long time ago I was an opposition councillor, and I would suspect that in the run-up to the council elections, which in London is only a one-in-four-year opportunity, it would be almost irresistible for two opposition councillors seeking to oust their third, unwelcome friend from another party, to seek to trigger a referendum, if only to force the majority party to turn it down shortly before the election. I am sure that that is not what the Government have in mind. I speak with the confidence that none of the opposition councillors in my borough will ever read Hansard and know that I am saying this, but I suspect that this is a tactic that may well enter the minds of some. It is not what the Government intend. I therefore wonder whether we ought not to think a bit more about tightening the provisions to prevent what I must not call frivolous campaigning, but very opportunistic opposition campaigning, by whichever party, because I am sure that, in opposition, we would all do it. Perhaps we should consider that point.

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[Earl Cathcart]

My Lords, I cannot quite understand where we are, which is why I got up before. Earlier this week I moved Amendments 125 and 126, which provided that a councillor could not call for a referendum unless he had a petition signed by 5 per cent of the electorate. I have before me the Hansard report where the Minister, the noble Lord, Lord Taylor, said:

“I believe that the safeguard we have in place—that, following a request from a member, a referendum may not be held unless the full council has resolved that it be held”.—[Official Report, 28/6/11; col. 1746.]

Surely that is the check. I admit that it is far better than the one we proposed, which was getting 5 per cent of the vote.

[Lord Taylor of Holbeach]

Indeed I can confirm that, and I apologise to the noble Lord, Lord Beecham, because both he and my noble friend Lord Cathcart asked me about it. I will repeat what I said: councillors may call for a referendum, but it will go ahead only if the full council decides that it should. However, the points raised by my noble friends Lord Tope and Lord True need some consideration. The Bill makes no reference to a political party. It does not even talk about controlling councils or membership of groups because that is not the principle on which this piece of drafting was done, and indeed my noble friend Lord True will understand that sometimes it is difficult to provide definitions in legislation. I have explained that our building block is the ward system.

We are going to go on to talk about neighbourhood planning in the future, and it will be useful to consider this debate in the light of that. Meanwhile, we will consider the point made about the risks that could be involved. However, my noble friend Lord Cathcart has kindly given me an opportunity to explain that the whole council has to approve whether a referendum at the bid of an individual councillor or group of councillors should go ahead.

[Lord Greaves]

My Lords, I am grateful to everyone who has taken part in this short debate and for what the Minister has said. While the question of a council being able to call a referendum under these provisions seems unnecessary and more in the way of detailed prescription, I understand that it is not a significant issue. The one significant issue that has come out of the debate is the question of whether individual members should be able to call referendums in their own wards. I just want to take the Committee through what the Bill says.

Clause 45 is about a request for a referendum by members. It says that a request complies with this section if a member for a ward—or, if it is a multi-member ward, a majority of members for that ward or division—asks for that referendum. That is subject to Clause 46(2):

“The principal local authority must determine whether it is appropriate to hold a local referendum in response to the petition or request”.

That is the point that the noble Earl, Lord Cathcart, made. But Clause 47, which we will come onto in some detail in the later group, clearly says in subsection (1):

“A principal local authority may only determine that it is not appropriate to hold a local referendum in response to a petition or request”—

and that request is a member request—

“on one or more of the following grounds”.

The way in which the local authority, the council, treats a member request as far as grounds for determination—that is, deciding whether it can go ahead—is exactly the same as if a petition is received. We will discuss some of the stuff in Clause 47 a little later but the point is that, if it complies, the council does not have any discretion. It still has to make a formal decision but that decision is whether it complies. If it does, the referendum goes ahead. In an absolute way, the case made by the noble Earl, Lord Cathcart, is not what it says in the Bill. If I am wrong, this is a crucial issue that needs to be settled and sorted out.

On that basis, and the basis that more discussion has to take place about member-requested referendums, I beg leave to withdraw the amendment.

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[Lord Rennard]

My Lords, this amendment stands in my name and in the name of my noble friend Lord Greaves. I shall speak also to Amendment 129A, Amendment 129H and Amendment 188 within this group. Amendment 120G simply requires that the electoral registration officer should check that the signature of the person on one of these petitions requesting a referendum is the signature of that person on the register. Amendment 129A says that they must be on the register, not just entitled to be on the register. That is an important issue of clarification. Amendment 129H says that they must be on the register on the date that they sign. Amendment 188 says that this process cannot really start effectively and properly until we have individual voter registration, so that we have on the register the signatures of the people signing these things and those can be checked against it.

On Tuesday, we listened to many discussions about how many signatures should be required to trigger a request for a referendum of this nature. Apart from the arguments over whether it should be 5, 10, 15 or 25 per cent, it is of considerable importance that, if we are collecting any signatures demanding that such a referendum be held, we know that the people signing petitions are on the electoral register, on it on the relevant day and that their signature on the petition matches what is recorded by the electoral registration officer. That is as will be the case in future for all voters with individual voter registration but is at present the case only with postal voters. At the moment, people sign nomination forms for elections but it is not possible to check their signatures. There are so few signatures required on a nomination form that it is possible quickly to make enough inquiries to see whether those signatures really are the signatures of those people nominating a candidate. However, if in future we are going to trigger perhaps expensive referendums requiring dozens, hundreds, thousands or tens of thousands of signatures, we must have a process for checking that they are genuinely the signatures of local electors. There will be nothing to check that these signatures are really the signatures of those people until we have individual voter registration in place. We will have it before the next general election campaign. Otherwise, there will be accusations that small groups of people may be able to fill in the forms with different signatures from names that they simply find on the register. There will be no effective way of checking that they really are the electors that they are supposed to be.

I have often argued in this House that we need greater security in our election process. We do not really know how much abuse there is of the election process. If more people knew how easy it would be to cheat on some of our election rules, there would perhaps be much more cheating in elections. The previous Government moved and this Government are moving to tighten up our electoral processes as a safeguard against potential fraud. We should have proper safeguards against fraud in relation to these petitions.

For example, there have been a lot of problems with the Electoral Commission dealing with donations made to political parties from people on or perhaps not on the electoral register. One of these amendments makes plain that you should be on the electoral register if you are signing this petition—not simply that you should be entitled to be on it. This principle was a matter of significant debate when we considered the Political Parties, Elections and Referendums Act 2000. It was clearly the view of this House, the other place and the Government that if you make a donation to a political party as an individual you should definitely be on the register—not simply able to claim that you are entitled to be on it, had not gone on it and had been missed out. The same principle should apply for these petitions.

Finally, in these various provisions considering how referendums may be triggered, what consultation has there been with the Electoral Commission about such matters? I beg to move.

[Lord Taylor of Holbeach]

My Lords, before we consider the implications of these amendments, it is important to remember that we are not actually talking about voting in the referendum itself but about the petition. It is the view of the Government that it is up to a local authority to determine the validity of any referendum that is presented to it.

Amendment 120G would introduce a new layer of bureaucracy requiring that an electoral registration officer must validate each petition to check the names, addresses and signatures of each person who signs a petition. This potentially places a significant burden on the ERO and could lead to delays in the holding of a referendum. An authority will clearly be able to check signatures on the petitions if there is a serious thought that it might be filled with forgeries but it must be for the local authority to decide how it wishes to do so. The authority may consider it unnecessary to verify every signature before it can determine whether the petition is a valid expression of local opinion. Those authorities that wish to devote their time and resources to check each signature may do so. The Government’s view is that most will take a sensible approach. There is no need to impose this extra burden.

It would also be impossible for local authorities to comply with the amendment at present. As my noble friend Lord Rennard admitted, our voter registration does not require the signatures of each elector on the voter registration form, only a signature from one member of the household. As such, local authorities do not hold the signatures of each individual voter, as this amendment would require. My noble friends may have sought to address this point through Amendment 188, which provides that the whole chapter on local referendums cannot be commenced until universal voter registration has been introduced. This would delay commencement of the local referendums regime and thus delay giving local people the mechanism to make their voice heard on issues that matter most to them. I do not believe that is the thinking of the coalition.

Amendment 129A suggests a drafting change to the definition of who would be entitled to vote in a local referendum, probing why we have used the form of words that are currently in Clause 54(1). The answer is somewhat technical: there are some categories of people who are local government electors but who are not entitled to vote in a local election; for example if they are in prison.

Amendment 129H would restrict the category of person who can sign a petition calling for a referendum to those who are registered by a particular date specified in the petition. This is just the sort of procedural technicality that certain lawyers would love to seize on to challenge the validity of a referendum. There really is no need for it. It would implicitly give rise to an obligation on all petitioners to include such a date expressly.

I therefore hope that with these assurances the amendment will be withdrawn. There is no requirement for a signature as part of our plans for individual voter registration because that would prevent registration by phone or e-mail, for example, which may be included in those proposals. With those considerations, I hope that the noble Lord will be able to withdraw his amendment.

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[Lord Taylor of Goss Moor]

My Lords, I have a particular interest in this amendment because parishes in many rural communities are far more relevant than local authority or council boundaries. They are not only historic but often relate to particular communities in a way that local authority wards do not, certainly in my part of the country. That is because wards are driven by numbers, not by community. This seems a good and proper issue to raise. There is of course already the power for parishes to call their own referendums, so the query might be whether this is necessary because, if a community wanted it, one might argue that there is provision for it already.

However, the legislation here is making reference to particular issues relating to local authorities. Frankly, I therefore see more relevance to allowing a power in relation to a parish as a community than to having specific reference to the electoral division for the primary local authority. I would hope that the Minister can respond positively to the principle here, whatever the means might be to achieve it.

[Lord Taylor of Holbeach]

My Lords, I think that I can respond positively. I say to my noble friend and namesake that I do not know how big Goss Moor is, but Holbeach has a population of some 8,500 people in one parish. Some parishes are remarkably large and other parishes are remarkably small, so it is very difficult. One size, or system, fitting all is very difficult. There are provisions, of course, for a local referendum, or parish poll, under the provisions of the Local Government Act 1972, to which the noble Lord, Lord Taylor of Goss Moor, has referred.

The amendment would include parishes in the definition of a “relevant area” as that applies to a principal local authority. We do not think that this is appropriate, particularly because we are looking at how we might look at referendums at parish level in legislation within the Bill and as a result of a consultative process, as I said before. Indeed, I mentioned to the noble Earl, Lord Lytton, that I foresaw his organisation being very much involved in this consultative process.

Our approach to local referendums is to enable referendums on local matters at the relevant council area, but for the issue at hand. If it is a district council matter, or a matter over which the district council has influence, the referendum can be held at the district council level, whether it be across one or more wards of the district, or the entire area of the district council, but it is the district council that is the triggering authority for this poll, other than having a parish poll. If it is a parish matter, we believe that a parish poll is the most appropriate method. We will discuss our intended approach to parish council referendums later, and I can assure noble Lords that the parish sector will be fully catered for. We want to see a modernised and proportionate local referendums regime for parishes, on which we will fully consult. I hope, therefore, that with these assurances my noble friend will withdraw his amendment.

[Lord Greaves]

My difficulty is that I do not know what that regime might be, or even what the Government are talking about. Whether the Minister will give a little more information when we touch briefly on Clause 56 later, I do not know, but I will not talk about that now.

Let me just give one example. In the parish of Laneshaw Bridge, which is in Pendle in the ward of Boulsworth, a huge issue that has split the village is the question of whether the village school should be very considerably expanded to take in a much larger area than the village. The village was split. Nobody knows what the majority opinion in the village is; what we know is that there were campaigning groups on both sides. Yet a referendum within Boulsworth ward relating to that issue—which would be a classic and typical example of a referendum—would be irrelevant, because the village is only one fifth or so of the entire ward. The rest of the ward consists of another much larger village, another couple of larger villages in a different parish, in which I live, and part of the town of Colne. Having the referendum in that arbitrary area would be irrelevant to knowing what the people of Laneshaw Bridge think.

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Moved by

[Lord Taylor of Holbeach]

121A: Clause 44, page 39, line 2, leave out “as follows” and insert “to subsection (2),”

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Moved by

[Lord Taylor of Holbeach]

124B: Clause 44, page 39, line 2, at end insert—
“(1A) Subject to subsection (2), “the required percentage” in section 43(1)(ba) means 1%.”

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Moved by

[Lord Taylor of Holbeach]

124D: Clause 44, page 39, line 3, after “(1)” insert “or (1A)”

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[Lord Beecham]

I beg the noble Lord’s pardon: that is right. I withdraw my last remarks and accept the noble Lord’s amendments to my comments. However, whatever we have in the regulatory framework, the key thing is that the minimum should be prescribed and that whatever is prescribed should be done in conjunction with the Local Government Association and subject to affirmative resolution.

[Lord Taylor of Holbeach]

My Lords, perhaps I may start by saying that the Government are inclined, as I indicated, to accept the concept of affirmative resolution for the regulations. I can also say that the inclination of the Government is for a light touch in this area. We have already seen that there are tensions between a rigorous procedure for the collection of names and the necessary legal restrictions placed on the conduct of elections. The difference between the two is that a referendum is not mandatory, it merely advises a local authority and it is therefore not unreasonable to say that it may be covered by a lighter touch than an election whose outcome is definitive, where the problems to which noble Lords have referred apply. I have spent a lifetime in active party politics, and I know how important it is to try to create a proper framework. I was grateful to both my noble friend Lord True and the noble Lord, Lord Collins, for pointing out the problems that could arise if we tried to set up regulations that criminalised activities in collecting petition names, and the like.

Amendment 129E creates a criminal offence, and Amendment 129C broadens the Secretary of State’s regulating powers to allow the regulations to provide for referendum results to be questioned in court. The creation of criminal offences is simply unnecessary for a regime that is, effectively, non-binding.

One problem that the coalition is trying to deal with is the profusion of unnecessary criminal offences on the statute book. I suggest that the incurring of expenditure to pay someone to campaign to collect signatures falls well below the hurdle that needs to be cleared before persons should be at risk of receiving a criminal record.

I have not examined the situation fully, but my first impression was that the noble Lord, Lord Collins, might well be right, because the reason why it is possible to pay people to work in elections is that their fees are part of the election expenses. It could create problems if they were also involved in a referendum.

Amendment 129B expands the scope of the Secretary of State's power to make regulations on the conduct of referendums to include regulations about the limitation of expenditure in connection with a referendum. The noble Lord, Lord Greaves, is right about what the Bill states on that. We will be discussing the wider issues about publicity arrangements for referendums in a later group.

Clause 46(6)(b) distinguishes between the procedural regulations that may be made in respect of local referendums which are not binding and those which may be made in respect of binding referendums, such as whether to have an elected mayor. We intend that local referendums should be more light touch, given their non-binding nature. The intention behind the amendments may be to limit restrictions on authorities in connection with the question. In fact, the equivalent provision in regulations for binding referendums is used to impose spending limits on petition organisers and those opposing petitions, and they are invariably accompanied by criminal offences for breaching spending limits. We are not convinced that such requirements are necessary for this scheme of non-binding referendums.

We will discuss publication arrangements in a later group and our intentions on that issue. In the mean time, Amendment 129E, which, in hindsight may have been better grouped with Amendment 129D, seems to have little practical effect. It would remove the words “of the referendum” from Clause 55(8). These words may be considered unnecessary but they do not cause any harm and to a small degree remove any doubt that may exist. I cannot say that I am convinced that it is worth making the amendment.

The amendment moved by the noble Lord, Lord Beecham, would insert a statutory requirement to consult the Local Government Association in making regulations about voting in, and the conduct of, local referendums. The Electoral Commission is expressly included in the Bill as it is standard practice in all such electoral matters. I neglected to say in reply to the previous debate that we are consulting the Electoral Commission. However, I can assure noble Lords that we intend to consult widely before making regulations, which will include local government associations. I hope that noble Lords will see these non-binding referenda becoming a very different category from ordinary electoral law and I hope that with these assurances, my noble friend will withdraw the amendment.

[Lord Greaves]

Before my noble friend decides whether or not to divide the House, I should say that these are extremely important matters and we do not believe that the Government have given them the importance that they merit. Whether we like it or not they are all about the possibility for graft and corruption—perhaps not at the same level as for an election itself, but nevertheless graft and corruption over an important matter. If they are not important matters, why are we spending all this money having these referendums?

I just want to make two very brief points. First, within electoral law for elections there is a clear and well understood distinction between paying canvassers and paying people for doing other things, such as delivering leaflets, manning committee rooms, or whatever. You can pay helpers in elections but you are not allowed to pay canvassers. There is a growing area between the two but the distinction is well understood and by and large adhered to.

My second point, which is more fundamental, is the point I made about joint campaigns. It is inconceivable that there will not be joint campaigns of trying to get someone to vote for or against a referendum and an election campaign at the same time, with joint literature, posters and other things that money is spent on. Unless the regulations referring to the referendum are similar to those referring to the election, it will drive a coach and horses through the limits on election expenditure. There must be the same rules for the same two things if people are campaigning for the two things together in the same place at the same time. That is common sense otherwise it is a recipe for a huge amount of misunderstanding and chaos, and as I said, driving a coach and horses through some of the local election rules, not least on the limits on expenditure. That question needs a bit more thought by the Government.

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[Lord Taylor of Holbeach]

I think the agent would be in danger of falling foul of this amendment, not this clause. That is an important distinction. The noble Lords, Lord True and Lord Collins of Highbury, join my noble friend Lord Newton of Braintree in pointing out the difficulties of the heavy hand of regulation.

[Lord Rennard]

My Lords, perhaps there is not an easy answer to the question just posed by the noble Lord, Lord Newton, but the point is well made that there are grey areas and some difficulties. When we are looking at this petition process and these referendum issues, we have to look rather more carefully than we have done up to now at how we avoid abuse within the system. From my noble friend Lord Greaves and the noble Lord, Lord Beecham, we have heard some genuine concerns about how the system could be open to abuse. We have also heard from the noble Lords, Lord True and Lord Collins, that there is no appetite for what might be considered to be further regulation or offences.

The position from these Benches, and why we are testing out these issues, is not that we want more regulation and more offences, but rather that we want some of the safeguards which properly apply in elections, to avoid abuse of the electoral system and, perhaps, situations in which people could say that pound notes can buy more influence than people’s votes. That is a fundamental principle of democracy. We try to have fair rules in elections; they are not perfect and are often grey. Many of us are trying to work to improve them, but we try to have some rules to make sure there is a balance in funding and safeguards to avoid people cheating. Some of those rules and regulations are important in elections and they should also be considered as relevant and necessary in the petition process and for these referendums.

I do not think we have necessarily got quite right the model of what we should do, on which basis I am happy to withdraw the amendment. However, all of us who are concerned must look further at this issue and consult further, as suggested in the amendment by the noble Lord, Lord Beecham, on advice that may come to us from the Electoral Commission and the Local Government Association.

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[Lord Newton of Braintree]

My Lords, I apologise to my noble friend but tempted again I have been—on this occasion just to show how even-handed I am—to join in a little bit with the noble Lords, Lord Beecham and Lord McKenzie, with due apologies to my noble friend Lord Jenkin. It is the third arm of this that worries me most. It says,

“any other person whom the authority considers to have an interest which is likely to be affected by any steps that the authority may take to give effect to the result of the referendum”.

It is not just airports. Major commercial developments, for example, have effects over a wide area. Leaving aside Stansted, about which I know a good deal, and which would certainly be said to have effects over 30, 40, 50 or 100 or more miles, Lakeside at Thurrock has had effects on shopping centres all over Essex. It is unimaginable that the local authority would really have to consult the people of Thurrock, Chelmsford, Colchester, Braintree and Brentwood—to name the Secretary of State’s constituency and indeed that of the noble Baroness, Lady Smith. We need some caution before going down the path scripted in this amendment. That is all I would say. There may be merit in the purpose but the wording needs very careful consideration.

[Lord Taylor of Holbeach]

I have been rather eager to stand because I feel that this gets to the nub of the issue. I am not entirely sure whether my noble friend Lord Jenkin, who has presented these amendments, is the same noble Lord who just the other day was urging me to trust local people to run these affairs. Localism is the name of the Bill; localism is what it is about. I urge him to read his own speech in Hansard to realise why it is that the Government do not want to bind this policy up. If any organisation of significance feels that it is vulnerable to popular opinion and is so out of touch with local opinion that it is not able to realise that a referendum is being carried on which might affect its interests, it deserves all the expression of popular opinion that may come its way. I am sorry to be so frank but I am motivated by the nature of this argument.

I do not think that the noble Baroness, Lady Valentine, was in the Chamber when I introduced government amendments earlier today which excluded planning applications from the referendum process. That is very important to understand in this context.

[Baroness Valentine]

I was aware that the noble Lord had introduced the amendments and I am delighted that he did.

[Lord Taylor of Holbeach]

I am most grateful. I take on board what the noble Baroness said but noble Lords opposite and my noble friend Lord Newton have made it clear that this process should not be so burdensome that it kills off the very expression of local opinion that we want to generate.

As regards the amendments tabled by my noble friend, I share his concerns that no person should find himself featuring in a referendum without an opportunity to make representations on the matter. But that I am sure is in the nature of these things and the dialogue within local communities. I understand that my noble friend is using the word “person” in the strictly legal sense of meaning company and corporate activity. In my estimation, it would be a rare case, as I have said, that a referendum will in practice concern a situation where people are totally unaware of the issues that are subject to a referendum.

Similarly, in deciding whether to give effect to a referendum result, the local authority will have regard to the need to balance the views of all interested groups. It will have regard to the economic interests of the area as perceived by it as a local authority and as elected representatives. To take such decisions is what local government has to do all the time. If there was any doubt that it would be appropriate for authorities to consult people directly affected by referendums, I hope that what I have said will dispel that. We believe that the amendments are unnecessary burdens on authorities and I hope that my noble friend will not press them.

[Lord Jenkin of Roding]

I am grateful to all those who have expressed their views so frankly on this group of amendments. Of course, this is intended primarily to raise the issue and there have been a number of quite forceful responses. I am very grateful to the noble Baroness, Lady Valentine, and the noble Earl, Lord Lytton, for their support. Nevertheless, in response to my noble friend on the Front Bench, I feel myself in a sense wanting to say touché. Of course, I am not seeking to impose centrally or to tell local authorities the details of how they should do this. But it is part of the function of central government to protect local communities and ratepayers against possible abuse of processes by local government. One would always say that. But it does not need the great mass of legislation in this Bill.

Having said that, I am sure that those who have advised me on this will study the issue carefully and will decide whether it will be necessary to come back to this on Report. We will have quite a lot and it may be that this will not achieve enough support at that stage but we will look at it. In the mean time, I beg leave to withdraw the amendment.

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[Lord Lucas]

I would add that Amendment 128D also gives authorities a complete get-out: they simply say that they are already considering the matter, and that is it.

[Lord Taylor of Holbeach]

This has been a useful debate. I am very grateful to the noble Lord, Lord Greaves, for opening it, but even more grateful to my noble friend Lord True and the noble Lord, Lord Beecham, for their contributions. They recognised that there are difficulties in seeking to restrict the use of referenda too far. For example, Amendments 126A and 126E would replace the generic reference to,

“action taken to promote or oppose a referendum question leading to a contravention of an enactment or rule of law”.

I suspect that my noble friend Lord Greaves is presenting this as a probing amendment to find out what this is about and what sorts of enactments are considered unlawful. Clearly, no local authority could be obliged to consider through a referendum something which is unlawful. I hope that I can reassure my noble friend that the provision as drafted achieves the result that he requires. The Equality Act 2010, for example, is clearly “an enactment”. The way in which Clause 47(2) is drafted actually caters for all the sorts of things that we would all want to catch and leaves no space for mischievous attempts to get round the protection, such as by phrasing a question cleverly so that it is not “the action requested” that would be unlawful, but the campaign surrounding the referendum.

The second ground that my noble friend mentioned was that the matter was not a local one over which the local authority has influence. My noble friend wanted to know what influence was and what would be the effect of replacing the word “influence” with the word “power”. Amendment 126D removes Clause 47(4)(b), which contains the definition of “influence”. We can appreciate the intention behind these amendments; nobody wants councils to be forced to hold irrelevant referendums and we have seen how the unconstrained power for electors to force parish polls has sometimes been misused by particular lobby groups to force polls on matters that are far removed from the remit of parish councils. However, if my noble friend is asking whether “influence” in Clause 47(4)(b) includes the general power of competence, I would say that indeed it does.

I do not believe that the alternative drafting suggested by noble Lords improves on what is in the Bill. When one considers the impact of Clause 1, one needs to be quite cautious about referring to situations where local authorities have “power” in future. I hope that noble Lords will accept my assurance that the formulation in Clause 47 is framed broadly enough to differentiate the circumstances where there is a manifestly inappropriate attempt to abuse the referendum system from one where there is an issue of local importance in which the local authority has a genuine role. My noble friend has acknowledged that his amendment is unnecessary in the light of the government amendment.

Amendments 126H and 128D seek to expand the fourth ground to give local authorities greater scope to reject a petition. We accept that there is a case for giving councils the flexibility to reject repetitive petitions or requests for referendums, and I hope that my noble friend will accept that the proposals set out in the government amendments that I outlined earlier will meet his concerns. I contend that the arrangements in those amendments offer a better solution to what we all hope will not in fact become a problem in practice. The key to deterring frivolous calls for a referendum is to have in place a robust system for dealing with such things.

I am not sure that my noble friend is right. The noble Lord, Lord Beecham, grasped the point that cost is not the proper equation to be taken into account in judging whether a council should be able to refuse a referendum. Something may be extremely important to a local community that may involve little expenditure in terms of its implementation but would have a great impact on people’s lives, and it is perfectly proper that that should be a subject for a referendum if the local authority feels that that is correct. So long as we get the framework right, and I believe that we have, there will be no point in anyone attempting to abuse the system and so they may not bother.

On Amendment 128A again, I agree with my noble friend Lord True. As he has said, that amendment would enable any referendum to be refused. I cannot see that that is the purpose of the legislation, and I hope that my noble friend Lord Greaves will reflect on that.

Amendment 126CA of the noble Lord, Lord Beecham, seeks to provide that a local matter will be a matter determined to be so by the local authority. We agree that it is for local authorities to determine whether or not it is appropriate to hold a local referendum. Our provisions give local authorities discretion to do that, subject to certain safeguards that we have discussed today. I am therefore not convinced that this amendment either is necessary or would make any practical difference, given the wording of Clause 47(3), which refers to whether the local authority,

“thinks that the matter to which the referendum question relates is not a local matter”.

So, that phrasing is already there. I hope that, given these assurances, the amendment will be withdrawn.

[Lord Greaves]

My Lords, I will think carefully about whether to withdraw it. Clearly I am not going to win on some of the amendments in the group, such as Amendments 128A and 128D, and it may well be that the clear majority view in the Committee is right. However, this has been a useful discussion and I thank noble Lords who have taken part.

The Minister said, and I think I quote him accurately, “So long as we get the framework right, then it’ll all be okay”. However, we are talking here about some of the framework, and you cannot rely on local authorities to get the framework right unless the legislation is right.

There are two areas that require more thought. The first and by far the most important concerns things that are illegal or contrary to council codes of conduct. The Minister said, rightly, that no council would want to carry out actions as the result of a referendum, or indeed to carry out a referendum, calling for things that were not legal. However, I think that what words say in legislation is important. As I read the proposal, and as I said when I was moving the amendment, the unlawful thing set out there is not the request in the referendum question—not what the question is calling for—and it is not the outcome of the referendum if it were successful; rather, it is the campaign, or action taken to promote or oppose the question in the referendum. That must mean what happens during the referendum campaign, not what happens after people have voted and the consequences that occur if the council decides to go ahead with a proposal as the result of a referendum being passed. There is a real difference there. Perhaps the Minister can tell me why I have got it wrong.

[Lord Taylor of Holbeach]

My Lords, I may have misunderstood my noble friend. I have listened to what he is saying, and there is no way that any campaign of any description can be based on illegal acts. I hope that I have not misunderstood my noble friend. If I have, perhaps he might have a word with me and explain where I have gone wrong. Not only is it not possible for a referendum to be put that demands a council to perform illegally, it is clearly wrong for campaigners to offend against the law in the nature of the campaign or statements that they make in seeking to petition for a referendum.

[Lord Greaves]

The Minister is absolutely right. The law is the law, and if people break the law, they break the law. My point is that, as I read the legislation, the illegality refers to the likelihood of people breaking the law during the election campaign as a ground for refusing to have a referendum. Although I tabled an amendment to remove that, it was a probing amendment and I am not suggesting that it should be removed. I am suggesting that it should be made absolutely clear that the ground for refusing to have a referendum is that what is being asked for as the outcome of the referendum is not legal. I cannot understand why that should not happen. That is different from the conduct of the campaign, but I am happy to discuss this informally with the Minister.

Briefly, the Government should think about the “trivial” point. This clause currently refers to questions which are “vexatious or abusive”, wording which comes from the Local Democracy, Economic Development and Construction Act 2009 in relation to petitions. That Act is being repealed, and we will probably have the same debate over that.

A council ought to be able to reject a petition for a referendum on the grounds that the issues in it simply are not worth the candle—that they are “trivial”, or whatever wording the Government would come up with; that they are de minimis in some way. Perhaps the Government will reflect on that. I beg leave to withdraw the amendment.

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[Lord McKenzie of Luton]

My Lords, I shall speak briefly to the amendments, and say that we are with the noble Lords, Lord Best and Lord Lucas, on this. It is an opportunity for the Government to set out quite broadly their view on the exclusion, not only for particular planning applications but for the broader role of planning briefs and everything that goes with the planning process. Like the noble Lord, Lord Best, I think that we should congratulate the Government on their earlier concessions. That has helped our deliberations to move on a lot.

I say to the noble Lord, Lord True, that of course it must be right that people have the opportunity to engage and influence their neighbourhood and place. That is just what the neighbourhood planning provisions in the Bill are designed to do, with a referendum attached to that. We have some amendments coming now suggesting that there should be earlier consultation in the process of those engaged in developing plans, so we are with you on that. That is within the structure of the Bill. The noble Lord, Lord Best, made an important point about LDFs. We need to get on with that as so many of them are not yet completed. We have a lacuna, with regional spatial strategies going before many of these plans were in place, and the data associated with all of those are in danger of disappearing. We propose to deal with that by transition arrangements but that is a debate for another day, if not another week at the rate we are going. I hope that the Government will take the opportunity to clarify, as far as they are able, the scope of the exemption around planning as that is hugely important.

[Lord Taylor of Holbeach]

My Lords, I am grateful for this opportunity as it was a key area and the decision to table the amendments has helped to move the Bill forward. I am, however, in a less than satisfactory situation in the sense that we can see that a number of factors now come into play. The definition of planning appeals, an appeal process, and the rest of it means that it will require some further thought to see what the implications are. It is clear that a referendum on planning applications can be ruled out, but indicative planning and the like with consultative processes are a matter that we need to consider, as well as how exactly they might be brought into this process. My noble friend Lord True carefully articulated the importance of making sure that the public voice in these matters is not stifled. We accept that, but on the other hand we do not want the whole referendum process to be totally absorbed on planning matters.

I promised my noble friend Lord True that I would write to him. Indeed, I will write to all noble Lords and place a copy in the Library of our position on this issue, so that it is quite clear. However, I do not from this Dispatch Box want to give an on-the-hoof answer which may mislead noble Lords in this regard; I do not think that helps to take the debate forward and I apologise.

[Lord McKenzie of Luton]

We appreciate what the Minister has said because we are likely to get into planning issues next week—maybe on Tuesday at some stage, or maybe not even till Thursday. It would really help our deliberations if by then the Government had been able to focus more specifically on these issues, and perhaps we could have some reassurance on that.

[Lord Taylor of Holbeach]

I thank the noble Lord for assisting me. Knitting it into the neighbourhood planning proposals is clearly going to be important as well.

The noble Lord, Lord Brooke of Alverthorpe, was worried not so much about his car-parking charges as the fines when he did not pay them, if I heard him correctly. At any rate, perhaps one may lead to the other. Our amendments put in place a framework for councils to decide to refuse a referendum in certain cases. The issues raised by noble Lords clearly illustrate how difficult it would be to compile a list. This is why we have adopted our approach in our recommendations generally about how councils may determine particular referendum petitions.

[Lord True]

May I briefly assist the Committee and perhaps my noble friend if I made it clear that Clause 47(6), whether we like the word “vexatious” or not, helps to guard against some of the fears of my noble friend Lord Lucas and the noble Lord, Lord Best? If there were a case where hundreds and thousands of people had been involved in indicative planning and the process of planning, clearly a referendum that then came along from a group would potentially be vexatious. A local authority could resist that. Maybe “vexatious” is not the right word, but what concerns me is the case that I cited of a regional body, London, interfering with a lower body where there has been no effective consultation, it was a choice between two visions of the future and there has not been adequate public involvement. It might in those cases not be vexatious to have a referendum. It might be illuminating and that is the difference. Perhaps in considering this, my noble friend might want to look at the application of Clause 47(6) and how that would bite on these potential powers.

[Lord Taylor of Holbeach]

Again my noble friend makes a valuable contribution and points out how complex this is going to be in terms of definition. I would like to thank him for his contribution and my noble friend Lord Lucas for tabling the original amendment which has given rise to this debate. I hope I can persuade him to withdraw it, but I think the noble Lord, Lord Brooke, wants to come back.

[Lord Brooke of Alverthorpe]

I am grateful to the noble Lord for helping me to differentiate between charges and fines. I was indeed referring to fines and, as somebody asked me which was the borough, I say that it was Wandsworth. It has the lowest council tax in the country, but some of the highest fines and charges. Was he saying to me that, in his view, an attempt to have a referendum in that area would probably be ruled out?

[Lord Taylor of Holbeach]

I can say to the noble Lord that the first indication I had about the correct response had a simple two-letter word: no—that it would not be possible. However, I sought further elaboration and gained a slightly more elaborate response, though the short answer is probably correct—that this would not be a subject on which a local referendum could be held.

[Lord Lucas]

My Lords, that is a pity. I hope that my noble friend, as he is in letter-writing mood, will let the noble Lord, Lord Brooke, and me know why this could not be the subject of a referendum. It is one of the main ways in which local authorities choose to beat their residents about the head—one of the main reasons why the residents of Richmond are now happy to have my noble friend Lord True there rather than the previous incumbent. It seems to be very much the sort of thing that local referendums should be about. However, I am sure that my noble friend will be able to give us some comfort on that—or at least point out where in the Bill is the clause that stops us having referendums on this issue, so that we can take it out on Report.

As to what we were supposed to be talking about, I am very grateful to my noble friend for offering to write. It is a very complicated area and not one where I profess any expertise: I was mainly concerned that we were producing something that would cut across the bit of the Bill which really interests me, namely neighbourhood planning and how it works. My noble friend and other noble Lords—including my noble friend Lord True—have raised many subjects to which I will be very interested to read the answers. My particular worry is that proposed new subsection (4)(b)(i) in Amendment 128E seems to suggest that this is a matter in which injured and adversely affected persons have a right of appeal. In the case of most planning applications, one can consider oneself adversely affected if one has to look at an ugly monstrosity across the street, yet one does not have the right to appeal because there is no third-party right of appeal. I am concerned that the wording of the amendment does not exempt most planning applications, but I am sure that the Minister will cover that in his reply.

[Lord Taylor of Holbeach]

My Lords, U-turns are allowed nowadays in politics, are they not? I will correct an answer that I gave. I misread the answer that I was given to the question of the noble Lord, Lord Brooke, about a referendum. Councils could not refuse to hold a referendum on car-parking charges: the referendum would need to be held.

[Lord Lucas]

I want to just stand here and feel happy for a bit, but I will beg leave to withdraw my amendment.

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Moved by

[Lord Taylor of Holbeach]

128E: After Clause 47, insert the following new Clause—
“Petitions: special cases in which holding of referendum is discretionary
(1) Where a principal local authority has under section 46 made a determination that it is appropriate to hold a local referendum in response to a petition, the authority (if it has not already done so) must cause the petition to be—
(a) considered for the purposes of subsection (2) by its chief finance officer, and(b) considered for the purposes of subsections (3) and (4) by the proper officer.(2) The petition is a special-case petition if the authority’s chief finance officer estimates that the cost of holding a local referendum in response to the petition would be more than 5% of the amount last calculated by the authority before it received the petition as its council tax requirement for the financial year in which the petition was received by it.
(3) The petition is a special-case petition if the proper officer of the authority is of the opinion that the matter to which the referendum question relates has been, or has substantially been, the subject of at least one local or other referendum held—
(a) in the four years ending with the date on which the petition was received by the authority, and(b) in the area to which the petition relates (whether or not in that area alone). (4) The petition is a special-case petition if the proper officer of the authority is of the opinion that—
(a) there is a statutory process and it is the case, or is substantially the case, that the process involves giving—(i) members of the public, or(ii) members of a section of the public,an opportunity to make representations in relation to the matter, and(b) it is the case, or is substantially the case, that persons adversely affected by the matter or a decision made in relation to it have—(i) a statutory right of appeal in respect of the substance of the matter or decision, or(ii) a statutory right to instigate a review of the substance of the matter or decision.(5) A person is not to be taken as having a right within subsection (4)(b)(i) or (ii) as a result of being able to—
(a) make an application for judicial review,(b) make a complaint under Part 3 of the Local Government Act 1974 to a Local Commissioner, or(c) make a complaint to a housing ombudsman under a scheme approved for the purposes of Schedule 2 to the Housing Act 1996.(6) In this section—
“council tax requirement”, in relation to the Greater London Authority and a year, means the aggregate of—
(a) the component council tax requirement for the year for the London Assembly, and(b) the component council tax requirement for the year for the Mayor of London;“chief finance officer”, in relation to a principal local authority, means the officer having responsibility, for the purposes of—
(a) section 151 of the Local Government Act 1972,(b) section 6 of the Local Government and Housing Act 1989, or(c) section 127(2) of the Greater London Authority Act 1999,for the administration of the authority’s financial affairs;
“the referendum question” has the meaning given by section 47(7);
“statutory” means provided for by an Act or an instrument made under an Act.”

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Moved by

[Lord Taylor of Holbeach]

128F: Clause 48, page 41, line 1, after “referendum,” insert “and
(b) the petition is not a special-case petition,”

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[Baroness Whitaker]

My Lords, some noble Lords may think that my one question for the Minister might have sat more easily with amendments in previous groups, but I hope they will indulge me because then I had to be in the Education Bill Committee, to which I shall shortly have to return. My question can loosely be attached to this group of amendments.

The problem that has been brought to my attention is that when local authorities are bound to publicise and take the outcomes of referendums into account in decision-making, it could result in them being pressured by local communities into disregarding welfare issues and the rights of Gypsies, Travellers and others. We know that there is form on this. Local communities have had that kind of attitude. My question for the Minister is: is there any safeguard to deter that?

[Lord Taylor of Holbeach]

Perhaps I may help the noble Baroness, Lady Whitaker. She may not be aware that one of the government amendments makes it clear that planning applications—it is often under planning applications that these matters arise—are excluded from the provisions for referendums. The noble Baroness will remember that we had a brief exchange about this earlier. The whole business of provision for Traveller populations is subject to direction and regulations as far as local authorities are concerned, so it is an area in which local authorities are obliged to act properly. It is also an offence for people to campaign on these issues in a way that breaks the law. I hope that the noble Baroness is content on that matter.

The amendments tabled by the noble Lord, Lord Greaves, require the council at all times to publish its reasons for such a determination. We believe that the vast majority of local authorities—in fact, almost without exception—will publish their reasons for such a determination. They want local people to know why their petition or the request from their councillor was not considered appropriate. However, removing the discretion not to publish those reasons could mean that the council is required to publish details that may be confidential or otherwise inappropriate. For example, the petition could relate to an individual for whom it would cause further embarrassment to publish details of the petition or breach their human rights. In such a case, the authority would be able to report that the petition had been rejected but without any further detail.

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[Lord Tope]

My Lords, that is exactly my point. I thought that the Minister had just given the reason which the local authority would give in those circumstances for not accepting it. If I remember rightly, the question asked by my noble friend Lord Greaves was, “What are these exceptional circumstances?”. The example that has just been given is not one of them because the local authority would give the reason which the Minister has just given us.

[Lord Taylor of Holbeach]

Perhaps in continuing to respond to this set of amendments the answer might become clearer. The noble Lord went on to suggest that with the words “designated in the petition” and in seeking to get a particular person named as the petition organiser, it would be reasonable to expect that a petition will usually make clear who an organiser is and that in most cases the organiser will welcome being the contact point for the petition. However, it is possible that a petition could fail to specify the organiser and we expect authorities to act reasonably in seeking to identify who might take on that responsibility. Little is added to this clause by imposing a requirement on anyone to provide a notification. Where the petition is clear, the person identified will be the organiser; where it is unclear, the discretion in Clause 48(6)(b) enables an authority to decide who appears to be carrying out the role of organiser. My reaction in considering this amendment is rather overshadowed by my political campaigning background. I have explained the difference between electoral processes and the petition process, but I see what my noble friend is driving at. If there is ambiguity in this matter, I am prepared to look at this again.

I am not convinced that Amendments 129CAA and 129D are necessary. It is reasonable to expect that if a council or partner authority decides to give effect to a referendum they will tell people about how they have listened and acted on their views or that local people will notice it anyway. However, the provision in Clause 55 is important in that it ensures that where partner bodies decide not to give effect to a referendum result, local people are made aware of the reasons why. I hope that that explains that. Sometimes giving the reason for the rejection can give the game away; for example, it could identify that an individual had a criminal conviction. This is another reason why it might be essential to have discretion in the Bill. However, given the contributions made by noble Lords, we will look at this and see if the wordings do reflect exactly what it is the Committee would wish to see in the Bill.

[Lord Tope]

My Lords, I am grateful to the noble Lord. I suspect that as he was speaking he was remembering many of the things that I am only too well aware of in the reality of petitioning. On the question of the exceptional circumstances, if they were reasons of a confidential nature I imagine that the local authority would use the words that they use now when they are going into confidential session as the reason for not pursuing the Bill. These are not major points that will hold up the Bill but we should look at them to see whether there can be better wording. If there really are exceptional circumstances that the local authority is unable to state—and I am bound to say that I cannot think what that might be, because if something is of a confidential nature then that would be the reason—then we should say what they would be. I cannot think that there are any that cannot be covered by the appropriate form of words.

Amendment 128H, which is in the name of my noble friend Lord Greaves and refers to “designated in the petition”, once again reminds me of the happy hours we spent on the local democracy Bill and all that that legislation prescribed on petitions. I recall that my noble friend brought in some petitions to his council, which did not look like petitions to Parliament in any sense. We all know that they are not usually neat and tidy, with the petition organiser’s name at the top. Again, this is not a major point. My noble friend has suggested an alternative wording which I think would meet it very well. However, the term “designated in the petition” does not meet it. Most of the petitions to my council that I have seen—and I suspect that the Minister has had similar experience—do not designate anyone in the petition itself. It just does not work that way. Therefore, a rather simpler, looser way would serve the point much better and save people getting into an unnecessary tangle.

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Moved by

[Lord Taylor of Holbeach]

128K: Clause 49, page 41, line 20, leave out “arrange for a meeting” and insert “—
(a) if the authority is not the Greater London Authority, arrange for a meeting of the authority to decide on a resolution that the referendum should be held, or(b) if the authority is the Greater London Authority, arrange for the authority”

[Lord Taylor of Holbeach]

My Lords, government Amendment 129G makes a change to Clause 57. The purpose is to make it clear that the,

“function of passing of a resolution”,

in this chapter is, in the case of the Greater London Authority, a joint function of the mayor and the Assembly, and that the function is to be discharged in the same way as the Greater London Authority discharges any other functions that are specified as the joint responsibility of the mayor and the Assembly.

Government Amendment 128K removes the requirement for the Greater London Authority to hold a meeting to decide on a resolution to hold a referendum. It reflects the constitutional arrangements of the authority, which does not hold joint meetings of the mayor and the Assembly and will instead enable appropriate arrangements to be made for the mayor and the Assembly to come to a decision about whether to hold a referendum.

Government Amendments 128N and 128P make consequential changes to Clause 49(3), again removing the requirement for the Greater London Authority to hold a meeting. I hope that noble Lords will agree that this clarification is helpful and I urge them to accept these amendments.

In this group we have some amendments from my noble friends Lord Greaves and Lord Rennard. Amendment 128L seeks to make it clear that a resolution to hold a referendum may be taken at the next ordinary meeting of the authority following determination that it is appropriate to hold a referendum. Amendment 128M in consequence removes Clause 49(3), which requires a meeting to discuss a resolution to be held as soon as practicable. These amendments assume that the wording of Clause 49(2) currently requires a meeting to be specifically convened for the purpose of resolving whether to hold a referendum. I can assure noble Lords that that is not our intention. We believe that the inclusion of the word “for” in Clause 49(2) makes it clear that a meeting must not be specifically convened but that the issue may be added to the agenda of any meeting of the full council. I will listen to the debate of my noble friend and then perhaps I can respond to his proposal.

[Lord Greaves]

My Lords, I have two amendments in the group, Amendments 128L and 128M. Amendment 128L says “arrange a meeting”, and Amendment 128M says,

“as soon as is reasonably practicable after the determination is made”.

Clearly, if it is two and a half months until the next full council meeting of that authority,

“as soon as is reasonably practicable”,

could be taken to mean that the meeting has to be called more quickly than that. I am perfectly happy to accept the assurances that the Minister has already given. I was just concerned about the cost of these referendums to local authorities. The cost of organising an extra meeting of the full council is not cheap for any authority, especially for a small one where the cost is a larger proportion of its budget. It is not a trivial expense. If the Minister is putting that assurance on the record, then my amendments have achieved their purpose.

[Lord Taylor of Holbeach]

I thank my noble friend for that observation. It is a matter of the precision of the language, and the key phrase is,

“the proper officer of the authority must arrange for a meeting”,

to be held. Had the phrase been that the proper officer “must arrange a meeting”, it would have been clear that a meeting must be specifically arranged. We believe that the wording in the Bill is clear. If it proves not to be the case, we are prepared to reconsider it. However, we believe that the meaning is clear. I would be grateful if my noble friend would withdraw his amendment.

Amendment 128K agreed.

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Moved by

[Lord Taylor of Holbeach]

128N: Clause 49, page 41, line 22, leave out “meeting must be held” and insert “arrangements under subsection (2)(a) or (b) must be such as to enable the decision concerned to be made”

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[Lord Beecham]

The noble Lord will become very familiar with that sort of drafting in the course of discussions on this Bill and others.

[Lord Taylor of Holbeach]

First, I heard what my noble friend said about the word “misleading” in the Bill and will reflect on whether that might be improved in some way. I hope that he welcomes the general principle that the authority should be able to make sure that the question being put is relevant and accurately reflects the situation, in relationship with the petition organiser. The last thing that one wants is a matter of semantics, where the petition organiser has to go back and get all the names and addresses again. This gives a necessary flexibility. I hope that my noble friend will be able to withdraw that amendment.

My noble friend indicated that he will withdraw Amendments 128T and 128V. Amendment 128U would require the local authority to hold a referendum on the same day as an election or other referendum within the next 12 months. Our provision currently requires that the referendum will be held on the same day as a referendum or election in the next six months. As I have already said, we believe that the provision in Clause 52(3) as drafted is sensible and practical. Councils may not know 12 months in advance whether a poll will be triggered. Generally, local people will want a referendum to be held as soon as practicable. The amendment proposed by my noble friend would tend towards delaying it. We are sympathetic to my noble friend Lord True’s general approach of leaving this to the local authorities to manage at their discretion. We do not consider this amendment necessary. If there are good reasons to delay a referendum for more than six months then the council can do so.

I hope that with the assurances I have given, and in particular the agreement to look again at the word “misleading”, that my noble friend will feel free to withdraw his amendment.

[Lord Greaves]

I am grateful for that and will certainly do so on that assurance. I clearly put these down as probing amendments. On the timing, having listened to the discussion I agree with the noble Lord, Lord True, that it ought to be down to the local authority. If they want to call a referendum immediately, they ought to be able to do so. It may well be an issue that will be dead in 12 months anyway. On the other hand, the wording ought not to preclude having the referendum on the same day as the next round of elections, as far as fixed elections are concerned—general elections now appear to be fixed but we will see—so long as they are not more than 12 months away. It may well be that some authorities that do not elect their council every year will not have an election within 12 months. Those that do ought to be able to have it on that day if that is what they think best on the principles set out by the noble Lord, Lord True. I beg leave to withdraw the amendment.

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I do not know quite where we end up with this, but I am not particularly happy with the thrust of some of the noble Lord’s amendments. I would not like to see much in the way of constraint on how councils can respond to petitions.

[Lord Taylor of Holbeach]

My Lords, the debate has shown that this is a complex and sensitive area. We would certainly not want councils to be innocent bystanders when important local issues were being debated. I am grateful to my noble friend for tabling these amendments because at least they give us an opportunity to check whether the words in the Bill reflect what we want out of this process. I suspect that not just the Electoral Commission but the LGA itself will want to reflect on this area. Currently, any publicity published by an authority will have to be in accordance with the code of recommended practice on local authority publicity, which means that it has to be even-handed and responsible. It is necessary for the recommended practice to allow local authorities to put their case in a proper fashion. Generally, authorities are restrained from publishing any publicity material relating to a referendum question on issues such as whether to adopt executive arrangements. The scope of local referendums, however, is such that there is the possibility of questions being put which could have significant impact on communities. We believe that it is right that councils should be able to play a part in the process when the referendum has been triggered by a petition or request. Referendums such as have been proposed by my noble friend unnecessarily restrict the position of local councils.

The arrangements for authorities to control expenditure are already set out in Clause 53, coupled with an authority’s wider duty to have regard to the code of recommended practice on local authority publicity. They are adequate to ensure that excessive amounts of public money are not spent on publicity material for referendums. I hope that these explanations and assurances persuade my noble friend that he can withdraw his amendment. This is an area where local authorities are likely to want to satisfy themselves that the arrangements as set out in the Bill meet their need to protect community interests as they see them. With that, I hope that my noble friend will withdraw his amendment.

[Lord Greaves]

I am grateful to noble Lords for the discussion. It is an indication of the complexity of the issue that I have agreed with most of the things that most noble Lords have said on all sides; it is in no circumstances straightforward. As I hope I said, I moved the amendment to probe and, in order to probe, I proposed something quite different from what was in the Bill. There are good arguments on both sides. I firmly believe that local authorities, faced with what they might think of as a hostile referendum question, should be able to put their point of view forward and, if it is a complex question, should be able to explain it.

It is quite possible, of course, that the local authority will be in favour of the referendum question, in which case it is not clear why they should spend any money at all. Perhaps they think that the people organising it are incompetent and will not do it very well. Who knows? One can imagine lots of different circumstances.

I am firmly of the countervailing view that local authorities ought not to be able to get involved in promoting referendum campaigns which are effectively being put forward by parties or party-political candidates—or any candidate in local elections—for political purposes. That would be quite wrong and quite contrary to the present code of publicity. It is difficult to see how to draw up regulations which cater for both the extreme circumstances of a hostile referendum which the authority thinks would seriously wreck its strategy and policies in key areas and, on the other hand—

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[The Earl of Lytton]

My Lords, I welcome the amendment in so far as it opens up an opportunity to make a contribution on this point. I fundamentally support the Bill’s provisions to provide for the Secretary of State to make specific provision for parish council referendums. There are many reasons for that, of which I am sure the noble Lord, Lord Greaves, will be aware. I am sorry that I cannot elaborate on the question of the times of day and the hours when certain things relating to parish polls might take place. I am afraid that I am only the humble president of the National Association of Local Councils and not a fully paid-up clerk of one of the more go-getting parish councils. Noble Lords will have to suffer second best on this occasion.

As I said on Second Reading, parish councils are not a homogenous institution. They are so highly variable in size and many other ways that it is difficult to think of a standardised approach. I suspect that this is very much work in progress in terms of discussions going on with the department on how to deal with this rather difficult issue because of the problem of trying to make one size fit all. Not only are there differences in size of electorate but their budgets, capacity, degree of training and even their expertise differ widely, even within a particular size category.

My purpose was to flag up some of the things that the Secretary of State might need to consider. As I say, I am aware of ongoing discussions and I certainly do not want to be in any way prescriptive. In the parish council, being the smallest unit of local government, there must be a proper balance between engagement with representative democracy and the referendum facility. That is likely to be exacerbated in future because, as localism brings the involvement of parish councils with a larger range of things that may have been dealt with traditionally by principal authorities, the opportunities for things to be called into question will inevitably increase. We must have robust systems to guard against that. It is also the case that that can add to the risk of people wanting to reach for the referendum solution. It is beginning to look like a question of how many bites of this not very large cherry in some places is to be provided for the public.

I will not labour the point about the engagement with the democratic and representative function of parish councils. The burdens of referendums on parish councils are by and large disproportionately high. I mentioned that in a previous Committee sitting and gave an example. Currently, the trigger for a parish poll under paragraph 18 of Schedule 12 to the Local Government Act 1972 is by common consent too low. But that is no argument for removing it altogether. I was very pleased to hear the noble Lord, Lord Greaves, say that that was not his intention. I look forward to something better than that provision in the Local Government Act coming forward at a later stage, but I do not know whether discussions will have proceeded that far ahead. There is a need to prevent the parish being hijacked by the referendum provision. To that end triggers must be in some way relevant to the issue and possibly to the parish size. I cannot go further than that because we are dealing with tiny parish councils on the one hand and some very large town councils on the other, some of which have budgets that would exceed principal authority sizes.

There has to be a genuine local interest. I was very pleased when, some time ago, one of the smaller political movements tried to hijack the process for national political aims. I seem to recall it was something to do with the European Union and it was ruled out of order. Quite right too, because what should a small parish be doing with something concerning the European Union? Small parishes in particular are vulnerable, if we are not careful, to these sorts of pressures.

In addition, there needs to be protection for referendums cutting across other issues that have to be dealt with—the other powers and functions. I mentioned this earlier in connection with principal authorities. The same thing needs to be built in; not necessarily on exactly the same model, but in essence something similar. There needs to be a cost benefit out of all this, not for it to be completely disproportionate in the manner that I explained when I addressed this issue at our last Committee sitting.

[Lord Taylor of Holbeach]

My Lords, this is an important area. The Bill that addresses localism must indeed address the issue of parish councils, the most local form of government. In providing for referendums in this Bill, the Government have said that they will be consulting about the way they take place. I am grateful for the contribution of the noble Earl, Lord Lytton; and perhaps I can make amends to my noble friend Lord Cathcart for my dismissive ways with his previous contributions on this subject.

I value the contributions made by both noble Earls because I consider parish councils to be important. My noble friend Lord Greaves has an amendment in this group, Amendment 129F, which we can consider at the same time. It relates to parishes where electors have long enjoyed the power to demand a local referendum or parish poll under the Local Government Act 1972. It removes the power of local government electors to demand a parish poll. However, as my noble friend says, he has no intention of anticipating that this amendment might achieve that objective until replacement facilities are in place.

We know that a poll must be organised if the chairman consents, or if it is demanded by 10 or one-third of the electors present at the meeting, whichever is the lesser figure. So the triggers for parish polls can be quite small. None the less, I understand the concerns expressed about the varying size of parishes and this is a matter that will be considered by the review that the Secretary of State has put in train. This, along with whether parish provisions apply to parish meetings as well as parish councils, are all part and parcel of the mix. We will see if there is pressure to bring this in and if it is possible within the review that the Bill provides.

I agree that the current parish poll rules need reform, but accepting the amendment moved by the noble Lord, Lord Greaves, would remove the provisions without replacing them with anything. We want a modernised and proportionate referendum regime for the parish sector and we propose to create this with regulations under Clause 56, which empowers the Secretary of State to apply the scheme to parish councils with such modifications as may be necessary. The effect of the clause would be to allow the replacement of the existing archaic parish poll regime with a modernised local referendum regime tailored to the particular circumstances of parish councils. While we seek to retain this important element of direct democracy that has been enjoyed for years by voters in parish areas, we want to modernise the existing regime and make it fit for purpose in the modern world.

Before making any regulations, we will consult widely on the reforms that people want. We will consult on whether all or some of the referendum provisions in the Bill should apply and on whether the ability of electors to demand a poll at a parish meeting should be retained; and, if it is, on what the threshold should be. Decisions on the appropriate modernised regime for parishes will be taken following the consultation, and subsequent regulations will be subject to affirmative resolution, giving noble Lords the opportunity to ensure that the replacement regime is better than the existing provisions. I hope that the assurances I have given will allow noble Lords to accept that Clause 56 should form part of the Bill.

Clause 56 agreed.

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Moved by

[Lord Taylor of Holbeach]

129G: Clause 57, page 45, line 1, leave out from “Authority,” to “by” in line 2 and insert “a function of passing a resolution under this Chapter is to be exercisable (in accordance with this Chapter)”

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Moved by

[Lord Taylor of Holbeach]

129J: Clause 58, page 45, line 40, at end insert—
““special-case petition” has the meaning given by section (Petitions: special cases in which holding of referendum is discretionary).”