Baroness Butler-Sloss
Main Page: Baroness Butler-Sloss (Crossbench - Life peer)Local Government Bill [HL]
Baroness Butler-Sloss Excerpts
Lord Howarth of Newport
We were at very particular pains to draft these amendments and have benefited very much from the advice of the Clerk of Public and Private Bills, who has ensured that these amendments are not hybrid—and of course I respect his opinion on that particularly important and sensitive matter. What we propose is a model for all principal authorities, for district and county councils throughout the land. I am simply illustrating the case by reference to what might occur in Norwich, Norfolk, Exeter and Devon, because those are the particular authorities that the Bill deals with.
Just as I would imagine that the Permanent Secretary as accounting officer would certainly want the kind of audit that this report would provide, so, too, I think that Parliament would. As has been extensively debated in your Lordships’ House in recent days, Parliament wants to undertake more post-legislative scrutiny. If there is to be post-legislative scrutiny, we will need the data about the performance of the policy that the legislation implements. Does the noble Baroness agree with this amendment and feel that there is a good case for improving transparency and accountability as the amendment proposes? If she does not, what are her reasons for opposing- it?
Baroness Butler-Sloss
My Lords, I speak to oppose these amendments. I first apologise for not attending the Second Reading debate. I was attending a session on why I should not speed, which, as it required me to attend and not to have three points on my licence, took priority over your Lordships’ House. I successfully completed that training. Secondly, although I am not sure whether I need to declare this as an interest, I should say that I live 10 miles from Exeter and initiated the Motion of Regret when the previous Government were in power.
I find it odd that the noble Lord, Lord Howarth, should talk about the irresponsibility of this Government when the previous Government were patently acting entirely irresponsibly in putting forward both Exeter and Norwich at a time when the Permanent Secretary, as the accounting officer, was pointing out that that was not good value for money and that the government department was likely to lose on the judicial review, as, indeed, it quite properly did.
The noble Lord is speaking to your Lordships as though this were a new event and nothing had happened before. I regret to tell your Lordships that I have come without all the documents, because I really did not think that it was necessary, but we had an enormous amount of information in the latter days of the previous Government setting out the irresponsibility of making Exeter and Norwich unitary authorities, the enormous cost that that would imply and, indeed, the damage that it would do to Devon and to Norfolk. The creation of unitary authorities at the pleasure of these two cities—big cities, I recognise—would do a great deal of damage to the counties. As a small example, the biggest town in Devon if Exeter were a unitary authority would be Exmouth, with 37,000 people. Devon would be expected to run a huge county—the second largest in England, with small towns and large rural areas— with very little money. As the Permanent Secretary said in relation to Exeter and Norwich, that would not be good value for money.
Listening to what the noble Lord, Lord Howarth, was saying, one would think that there was no past to this story, but there is a long past. I hope that your Lordships will not accept these amendments.
Baroness Butler-Sloss
Does the noble Lord see any difference in a judicial decision at whichever level? As I understand it, the previous Government did not appeal the decision of the High Court judge, so that is as good a decision as that of the Supreme Court. If there was an appeal pending, that would be a different matter, but the noble Lord is not entitled to say that a decision of the High Court is not as good as a decision of the Supreme Court if the loser chooses not to take it to a higher court.
Lord Howarth of Newport
Technically, the noble and learned Baroness is of course right. I just make two points in response. I see this as part of the creep, the continuing extension of judicial authority to supersede parliamentary authority. The other point is that the district councils, Norwich and Exeter, did not have the money to appeal against the judgment. They could not afford to do so. There is no legal aid for local authorities which suffer rulings hostile to their interests. I do not think that CLG was going to pay for the cost of their appeal. So there has never been an appeal to test that point.
Baroness Butler-Sloss
Forgive me for rising again, but was not the decision made against the government department?
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.
Lord Howarth of Newport
I understand that that is what the judge said, but my question is whether it is within the competence of a judge, whether a Supreme Court or a High Court judge, to overthrow orders that have been duly made by Parliament. Parliament was fully aware of all the arguments that moved Mr Justice Ouseley to arrive at his judgment, but the fact is that if Parliament is the sovereign law-making body in this country, its authority ought to prevail. That is my opinion.
I will briefly illustrate what I take to be part of an emerging pattern of disrespect on the part of the Government to Parliament. On 29 June, this House voted to approve a Motion, tabled by the noble Lord, Lord Steel, that called on the Government to table Motions to enable the House to approve or disapprove of four specific reforms that would enable this House to be more credible and effective. However, a week ago, on 7 July, the Leader of the House informed the House in a Written Statement that the Government do not intend to respect the will of the House in this regard and,
“do not consider it appropriate to table Motions”,—[Official Report, 7/7/10; col. WS 13.]
that the House has called upon them to table. He cited as justification the irrelevant fact that the Deputy Prime Minister has set in hand work on a draft Bill for an elected second Chamber. Why are the Leader of the House and the Government treating the House with this contempt?
The Deputy Prime Minister arrogantly breezes around declaring that our parliamentary institutions are not fit for purpose. This arrogance is particularly unbecoming in a Government with no mandate from the people and in a coalition that has been cobbled together and is tempted to use its majority to bulldoze this House in ways that this House has not tolerated and not expected from Governments for many years. The vote yesterday in this House on the Academies Bill on which the Government were defeated is a very salutary indication to them that they cannot simply take it for granted that they now have a majority in the House of Lords that entitles them to treat this House of Parliament with the same contumely with which Governments habitually treat the House of Commons.
We see this attitude in the big declarations and the small actions, and here in this amendment, which casually endorses the subordination of considered decisions of both Houses to an adventurous decision by a High Court judge that happens to suit the Government’s self-indulgent political agenda. How does the noble Baroness defend it?
Baroness Butler-Sloss
My Lords, perhaps I might be allowed to speak before the Minister replies. I start by bringing us back to what we are actually doing today, and by reminding the House that I am a Cross-Bencher. I do not support the Government or the Opposition; I support the belief that Exeter should not be a unitary authority. I have three or four points to make. I proposed a regret Motion under the previous Government that was overwhelmingly supported by this House by a large majority. The previous Government deliberately and arrogantly—I cannot resist using the word “arrogant” because the noble Lord, Lord Howarth of Newport, has used it of this Government—went ahead and ignored the will of this House, knowing that their Permanent Secretary to the relevant Ministry had said that the government department would be likely to lose when the judge took his decision. This House was in effect misled, because of course we did not have the judge’s decision; we had the facts. Most of us thought that what the Permanent Secretary said was right, but had to wait for a judicial decision. The Government decided to go ahead despite a judicial review and quite rightly lost. So it was that Government who insisted on putting through illegal orders, and that is what the judge found.
There is nothing adventurous about a High Court judge sitting in the Administrative Court deciding that local government or national government are actually acting illegally. That is the work of the Administrative Court at three levels—the High Court, the Appeal Court and the Supreme Court—and the order and decision of a judge in the High Court is as good as the decision of any court until it is reversed. So there is nothing adventurous about a High Court judge holding a government department to account. That has been happening for years and years. For the noble Lord, Lord Howarth of Newport, to talk about it being adventurous and to cast aspersions on the High Court is not what I, as a former judge, would have expected to hear in this House and I am saddened by it.
What is particularly important to remember is that this all started because the previous Government insisted on putting the orders before this House when they knew they were likely to lose before the judge, and that is what the situation has created. I am not a constitutional lawyer, but I cannot see anything wrong in orders of this House which should never have been presented because they were in fact illegal, having then been found by a judge to be so, being revoked. When the Minister said that it is not necessary for the Government to have this House revoke them because they could not stand, that was the point. They were illegal from the beginning, even though the announcement was not made until after this House was required, despite the vote against the Government, to accept that the Government would insist on going ahead.
Baroness Hollis of Heigham
Before I address the substance of Amendment 2, which is what I really want to speak on, I want to challenge the noble and learned Baroness, Lady Butler-Sloss, and the wider arguments she has made. I do not think she has been involved in all of the orders that have come before your Lordships since 2006, of which to my knowledge there have been at least half a dozen. Nearly all have been accompanied by judicial reviews. No one knew at that stage what the outcome of those judicial reviews would be. They were carried through by my noble friend Lady Andrews and on many occasions I tried to give her some support to that effect.
On the argument of the noble and learned Baroness, the fact that there was a judicial review suggests, before we know the outcome, that by definition it must have been illegal. With the benefit of hindsight with regard to the judge’s ruling, the noble and learned Baroness has said that the orders were illegal.
Baroness Butler-Sloss
I said that only in relation to these orders were they illegal, and they were found to be illegal after the judge made the order. But they were illegal from the moment that the Minister insisted on presenting them to the House.
Baroness Hollis of Heigham
I entirely accept that. In the same way that if any Minister—myself in a former capacity, my noble friend or the noble Baroness opposite—were to make an administrative decision within their department—in my case it might have been about the Child Support Agency or whatever—which did not go through parliamentary scrutiny, it would be perfectly proper, and occasionally happens, that there should be a JR. At that point a judge might well say, “Minister, you have exceeded your administrative power”, and that would be fine. That is exactly what judges should do—they do it all the time—both for central government Ministers and for local government councillors. No one is challenging that. Of course there is an important key role for JR to ensure propriety of behaviour by people in official positions who carry official responsibilities.
However, that is a completely different situation from the one described by my noble friend. Parliament had seven hours of debate on these orders and—knowing all the facts alleged by Members opposite and ourselves and what they entailed—decided to support them. One judge, 1,000 parliamentarians, seven hours of debate. You can see why some of us feel that this was perhaps an intrusion on parliamentary sovereignty too far. I do not recede from that line.
Baroness Butler-Sloss
The noble Baroness said that the House decided to support the orders. The point is that the House did not support them; it followed me into the No Lobby and opposed them by a considerable majority. The Government overruled the decision of the House of Lords not to accept these orders.
Baroness Hollis of Heigham
My Lords, if I may put it delicately, the noble and learned Baroness misunderstands the import of her own amendment. She tabled a Motion of regret, but the orders went through. Had Members opposite chosen to do so they could have put down a Motion opposing them, as the Lib Dems did. The House chose not to support the Lib Dems. I understand why the Lib Dems opposed the Motion—it is a convention that we have established—but, none the less, when the House chose not to support the Lib Dems’ Motion it did not say, “We do not support these”; instead, it called on the Government to consider and review their position—which they did—and then to proceed, as the Government are perfectly entitled to do. Noble Lords had a choice between two Motions: one to nullify, the other to regret. They chose not to nullify, only to regret. Therefore, I say to the noble and learned Baroness, Lady Butler-Sloss, that this House supported through that mechanism the Government’s intent, as did the other place. I am sure that, on reflection, she will accept that that is a proper interpretation of what happened on that night.
In bringing forward Amendment 2, the noble Baroness, Lady Hanham, seeks essentially to strike out the orders for Norwich and Exeter over and beyond the impact of the JR. I do not want to talk about the election issue, which is part of the subsequent clause—I shall come back to that on Amendment 4—but to refer to the arguments made by the Minister at Second Reading, together with her follow-up letter of 8 July. At Second Reading the Minister said that her position and this debate was not about the,
“value or virtue of unitary government: it is about the mismanagement and mishandling of two applications for unitary government”.—[Official Report, 30/6/10; col. 1831.]
So it was not about the virtues of unitary government but about the process. She said—rightly—that this was because two additional criteria were added late and were not consulted on. This was because, as we know, an ineffably incompetent Boundary Committee delayed its final report by some nine months.
The Minister may also know that her officials in DCLG, as the judge states in his conclusions, could have met the judge’s concerns by sending out a letter on behalf of the Secretary of State in the December or January preceding the introduction of the orders. The judge made it very clear that DCLG officials could have asked the Secretary of State to do so—the Secretary of State may have refused to follow their advice, of course. Had such a letter gone out in December or January, the transcript of the judge’s conclusion makes it clear that that would have satisfied his concerns and that he would not have squashed the orders—although I do not doubt that he might still have had serious concerns about the process. Why that letter, telling the relevant four authorities of Norfolk, Devon, Norwich and Exeter that there were compelling reasons—that is, the issue of economic development in a period of economic recession on the one hand and the concern with Total Place on the other—was not sent out, I do not know. I can only assume that it was cock-up and not conspiracy.
If the Minister’s opposition is on grounds not of principle but of process, as she said on 30 June, then why not allow Norwich and Exeter to follow any or all of the due processes that she thinks were cut short and resubmit their bids? Why cancel this clause? The courts have JR’d the original orders and therefore squashed them, but if the Minister agrees with what she said on 30 June—that she was opposed not to the virtues of unitary authorities but merely to the process—we could make a fresh start.
We cannot know the outcome of further consultation, which was short cut because of the inexcusable behaviour of the Boundary Committee, until it happens. So I presume that we go back to what the Minister said on the previous amendment, that her residual reason for objecting to the orders was not the issue but cost. We debated that on the previous amendment, when the noble Baroness—I really do not want to be personal about this; I am sure that it was not intentional—was again in danger of misleading the Committee by telling us that the cost of transition would be £40 million. She was not going to go on to the second part of her own impact analysis, which showed that the savings over the six years would be £39.4 million—funny, that. The net cost, therefore, would not be £40 million but £600,000—£300,000 per authority, £50,000 a year. Moreover, the Minister was unwilling to commit again to say what she said in her letter and in the impact analysis: that, after those first six years, the net savings between the two authorities would be more than £6 million a year, or more than £3 million per authority per year. I repeat: on any cost/value-for-money argument, the net costs—which is what matters despite what the noble Lord, Lord Tope, and others have argued—for the first six years are £50,000 a year and the savings thereafter per authority are £3 million per year. That £300,000 over the first six years would be recovered in the first six weeks of the seventh year. If the Minister thinks that that is bad value for money, I find it hard to understand what will ever meet with her approval for being good value for money.
What is for sure is that the option that she is arguing for today, the status quo, is the most expensive option of the three. It costs far more than unitary Norwich and Exeter and far more than unitary counties, which is what the Permanent Secretary argued for. On the previous amendment, however, the Minister was not giving the Committee the full picture. I assume that most of your Lordships will have read the impact analysis and know the stats for themselves; they will know that what I am saying is accurate. Is a net cost of £50,000 a year for six years and £3 million of savings per authority thereafter really bad value for money?
Baroness Hollis of Heigham
My Lords, such warnings had effectively occurred on all the previous JRs—I should note that the noble Baroness did not take part in those debates. We have had something like six or eight rounds of councils becoming unitary authorities, which for the most part had the full support of Members of this House, and at each stage—
Baroness Butler-Sloss
The noble Baroness rightly reminded me that I was not in the House during the period covering all eight previous JRs, but I have been here long enough to have learnt a little—although not as much as the noble Baroness. In all previous JRs, did the Permanent Secretary ask for the letter exonerating him as the accounting officer from the cost of all of this, because it was inappropriate for the Minister to be doing what he was doing? My understanding was that that was an unusual process for a Permanent Secretary.
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.
Baroness Butler-Sloss
Following on from the noble Viscount, Lord Eccles, perhaps I may ask what the point of this amendment is. Everything that is being said by the noble Lord, Lord Rosser, and the noble Baroness, Lady Hollis, we have heard before, but the amendment does not help on any of the points that are currently being made. I wonder why that is and why other, useful amendments were not put forward.
Lord Howarth of Newport
Because we are trying to deal with the wreckage left behind by Mr Justice Ouseley. The judges can interpret the law regardless of the practical consequences, but it is open to government and Parliament to repair this judicial damage.
Baroness Butler-Sloss
In opposing these amendments, I shall give a slightly different perspective. I am not in a position to say what happens in Norwich and Norfolk, but I have just been taking some advice from a senior representative of Devon County Council who has been listening with great interest to this debate. I am told that for the past 10 years, Exeter, in joint stewardship with Devon County Council, has outperformed the national average in a very successful way. There has been a fruitful partnership between Devon and Exeter. The relationship between them, despite all of this, is good, and as soon as the inconveniences that have arisen because of the order in relation to Exeter have finally been put to rest, it is the intention of Devon County Council and Exeter City Council to look to go further and better on economic development in a way that has already been successful, and they expect to be even more successful in future.
There are three areas to which I shall refer in particular. The first is economic development, which I have already mentioned. The second is highways—there has been very close co-operation between both councils on highways—and the third is cultural activities, which have also been very successful. These proposed amendments are bureaucratic and, in my view, unnecessary. They are undoubtedly unnecessary for Devon and Exeter, and I very much hope that the Committee will not wish to support them.
Lord Howarth of Newport
I shall speak in support of Amendments 5 and 6. They must surely meet with the Government’s approval, making, as they do, for transparency, accountability, equity and localism. Mr David Cameron, setting out Conservative Party policy in November 2009—before he was Prime Minister—said:
“We will require the people and organisations acting for the state to be directly accountable to the people they are supposed to serve ... Through decentralisation, transparency and accountability we can give people power over the services they use, over the way their tax money is spent, over how their local area is run”.
It is surely self-evidently right that people in Exeter, Norwich, King’s Lynn and Yarmouth and people across the whole of Devon and Norfolk should have the right to know how the county council’s resources are being spent, district council by district council, across the range of service areas: social care, children’s services, highways maintenance, culture and libraries.
I have a report from Exeter that is rather different from the report that the noble and learned Baroness, Lady Butler-Sloss, has just received from her friend on Devon County Council. I am advised by a very senior person in Exeter that, as in Norwich, they simply cannot establish with any accuracy or confidence how much the county council spends on services in Exeter or what its performance in delivering them is.
We recommend from Norwich that, by 30 September each year, Norfolk County Council should be obliged to provide a detailed analysis of the money that it has spent and the services that it has delivered in each district council area in the previous financial year. Moreover, I propose that, when the county makes its budget for the year to come, it should equally set out in detail what money it proposes to spend on what services in each district council area. It would not be difficult for the authority to produce the financial information in that form. If it were to do so, that would cast light on whether Norfolk or Devon has been in good faith in claiming to be equally committed to the good of all the communities in the county, with their greatly varying needs, and how effective these counties have been in addressing those needs. We will see, for example, what progress the counties have made in tackling inequalities in educational attainment and in ameliorating social deprivation. Such issues are enormously important in themselves but are particularly so in this context because, in rejecting the case for unitary authorities in Norwich and Exeter, the counties, supported by the Government, claimed that they could deal with these problems better. Taxpayers and citizens are entitled to see the evidence on that as it emerges.
This clarity of accounting would also better enable productive partnerships between the districts and the counties. We believe that there should be a Norwich City Council scrutiny committee with the responsibility of scrutinising Norfolk County Council’s policies and spending in the area of the city. It is remarkable, as has been mentioned before in our debates, that not one member of Norfolk County Council’s cabinet lives in or represents any part of the Norwich City area, yet that cabinet routinely takes decisions that have major impacts on the lives of people in the city. My noble friend Lady Hollis explained to the House just now the fatuity of the Norwich area committee. Does the noble Baroness, Lady Hanham, defend this lack of accountability? Having unitary authorities would have dealt with this problem. These are the last amendment of the afternoon and this is her last chance to accept at least these amendments.
Baroness Hollis of Heigham
My Lords, I thank all noble Lords for contributing to the debate. Perhaps I may run briefly through the comments by individual contributors. The noble and learned Baroness, Lady Butler-Sloss, said that she represented the views of a senior county councillor in Devon. I am sure that is the case, but forgive me for noting that, as county councillors, they would say that, wouldn’t they? Of course they would say that the arrangements are fine. I have met senior—
Baroness Butler-Sloss
I am grateful to the noble Baroness for allowing me to interrupt. If I said “county councillor”, that was absolutely wrong. It was a senior executive working for Devon County Council.
Baroness Hollis of Heigham
Forgive me, but that does not affect my point. If I misheard the noble and learned Baroness, I apologise. I understood her to say that it was a senior county councillor, but if it was a senior county official, none the less it is from the county perspective. Like my noble friend Lord Howarth, I have met district councillors in Exeter from all the political parties, so far as I am aware—I am not sure whether the Conservatives were there, but the Liberal Democrats certainly were—who have given us a very different view and say that such co-operation as is being recommended and extolled by the noble and learned Baroness, Lady Butler-Sloss, is simply not happening on the ground.