Local Government Bill [HL]
Debate between Viscount Eccles and Lord Howarth of Newport
Lord Howarth of Newport
The decision was made against the government department. Again, I gently point out to the noble and learned Baroness that it would be very unlikely that the government department headed by Mr Eric Pickles, who spent most of the election campaign denouncing the iniquities of unitary status for Norwich and Exeter, would appeal against the judgment by Mr Justice Ouseley. I think that is a rather fanciful objection.
We are witnessing a constitutional development that we need to ponder and that we should deliberate on very seriously. It seems to me—this perhaps reflects my old-fashioned view of the British constitution—an improper and dangerous development. I read with enormous interest, admiration and pleasure the recently published book by the noble and learned Lord, Lord Bingham, The Rule of Law. In that book, he counselled judges to walk delicately, like Agag in the Old Testament, and to proceed with very great caution when tempted to usurp the authority of Parliament. When the noble Baroness, Lady Neville-Jones, last Thursday repeated the Government’s Statement on their response to the ruling of the European Court of Human Rights on Section 44 of the Terrorism Act 2000, I asked whether the Government still accept that Parliament is the sovereign law-making body. She replied:
“As for the supremacy of Parliament, yes, of course it is supreme”.—[Official Report, 8/7/10; col. 385.]
That was, to a degree, comforting, but there seems to be an inconsistency between her outlook upon this and the outlook of CLG because the noble Baroness, Lady Hanham, made what seemed to me a very peculiar statement, coming from a Minister, in the debate at Second Reading:
“Judicial review became possible because they were orders, so it was a judgment not on a parliamentary decision, but on secondary legislation that arose from primary legislation”.—[Official Report, 30/6/10; col. 1833.]
I think that is a curious statement. Does the noble Baroness really believe that the votes in Parliament to approve the structural change orders were not decisions made by Parliament? If not, what is the status of statutory instruments? Why does Parliament spend all these hours considering secondary legislation? There are thousands of statutory instruments every year.
In proposing to delete Clause 1(3), why are the Government hiding behind the High Court? Why do they not want Parliament to use its authority to cancel the laws that Parliament has made? Do this Government, or do they not, believe that Parliament and not the High Court is sovereign? Can the noble Baroness persuade us that this Government respect Parliament? The noble Baroness urged the House not to follow the procedure approved by the Speaker to refer a Bill to the Examiners where a reasonable case is made that it is hybrid. When the noble Baroness spoke at Second Reading, she described the moving of that Motion as,
“a somewhat dubious delaying tactic”.—[Official Report, 30/6/10; col. 1798.]
I simply observe to the noble Baroness that among those who took a different view and voted in favour of the reference were two former heads of the Civil Service, three other Permanent Secretaries, four bishops, three very senior and distinguished judges, including the noble and learned Baroness, Lady Butler-Sloss—and I pay tribute to her because I thought it was an honourable vote on her part—and other extremely distinguished Cross-Benchers. They listened to the argument and took the view that the Government were misbehaving in opposing the reference to the Examiners. Whatever the noble Baroness thinks of my motives, I hope she will be respectful of their view.
Viscount Eccles
I am grateful to the noble Lord for giving way. Is his argument that once Parliament has made a decision—let us accept for a minute that he is right that the affirmative instruments were approved—it is in no position to change its mind and reverse its decision?
Lord Howarth of Newport
On the contrary, that is exactly my argument. I have asked the noble Baroness why she is simply relying on the High Court to quash the decisions of Parliament rather than having Parliament exercise its own authority to quash the decisions that it previously took. That is precisely the point at issue. I suggest that this is part of a pattern that we are beginning to see emerge in this coalition Government of an habitual disrespect for Parliament. If I may, I shall give one other instance.
Lord Howarth of Newport
My Lords, I add my support to the arguments made by my noble friends Lord Rosser and Lady Hollis on Amendment 4. Significant and unbudgeted additional costs would be created by these by-elections, if they occurred. I refer not just to the cost to the authorities—£80,000 for Exeter and no less for Norwich—but to the costs for the parties and candidates. This would come at a time of severe financial pressure on the local authorities.
This situation has been brought about through no fault of either Norwich or Exeter. The judicial review was taken out by the counties against the CLG and not against Norwich and Exeter, and it seems unjust that council tax payers in Norwich and Exeter should have to foot the bill for it. In Exeter, the cost has already been computed at no less than a 1.8 per cent increase in council tax, which is a significant burden to land on local people.
It would be open to the Government to amend the Bill to reinstate the councillors who were unseated by the High Court on 5 July and to defer the elections on the original plan until next May. That would save money and would restore an orderly situation. As it is, if Section 2 is simply deleted, the leaders of all the opposition groups in Norwich will be unseated.
Viscount Eccles
My Lords, I am grateful to the noble Lord for giving way. The amendment does not go to the point of how elections should be held; it goes only to the point of a report being prepared. Surely the proposers of the amendment are simply suggesting an ex post facto report, and the statutory obligations of Exeter and Norwich to deal with the matters that arise from the High Court judgment is being left to them. We are not being asked, either in the Bill or by the amendment, to interfere in those statutory arrangements.
Lord Howarth of Newport
My Lords, my noble friend Lord Rosser has explained the statutory situation fairly compellingly. The reality is that a mess—a chaotic situation—is being created by a combination of this legislation and the judgment in the judicial review. In looking at the predicament of these authorities, it is our responsibility as parliamentarians to consider what can best be done to help them. After all, if all the opposition leaders in Norwich are unseated and in Exeter the leader of the Labour group is unseated, a third of the seats on the city council are vacant and 13 by-elections are required to be held at short notice in the summer holiday period, that is not good for local democracy, although the Government profess to be interested in improving the quality of local democracy.