Local Government Bill [HL]

Baroness Hanham Excerpts

Tuesday 8th June 2010 Lords Chamber

In the matter that we are dealing with now, the responsibilities of us all are as parliamentarians. We are dealing not with the merits of the Government’s policy but with the status of the Bill and with the responsibility of Parliament to ensure that it is scrutinised according to the correct procedure. It may be that the Examiners will, after due consideration, endorse the Government’s view of the Bill’s status, but we owe it to those whose lives and fortunes will be affected by the Bill to ensure that we do indeed follow the correct procedure. I beg to move.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)]

My Lords, I am not sure how many noble Lords will want to take part in this debate, but I thought that it might be helpful if I put forward the Government’s view now, so that both views are available for further consideration. I thank the noble Lord, Lord Howarth, for explaining the reasoning behind his Motion and the opinions that he has received. I assure him that this Government have their view, which I shall put forward now.

The Local Government Bill was introduced into this House on 26 May and is scheduled to have its Second Reading, as the noble Lord mentioned, once this Motion has been disposed of. The Motion refers the Bill for determination of its status and so has taken precedence over Second Reading.

As the noble Lord said, the aim of the Bill is to stop the proposed restructuring of councils in Devon, Norfolk and Suffolk, which will save the taxpayer some £40 million. I will not take up the House’s time by presenting the rationale for the Bill, as we hope to get to that later this afternoon, after the Motion has been considered.

The Motion tabled by the noble Lord asks the House to refer the Bill to the Examiners. He has expressed doubts that the Bill should be treated as a public Bill on the basis that he believes—he has cited other authorities, too—it to be hybrid. I need to say at the outset that, despite what the noble Lord has said, he has left it to this very late moment to bring the matter to the House and has given little notice for the House to be able to deal with it. I must make it clear that the Government strongly believe that, whatever the noble Lord has said, the Bill is not hybrid.

That is not only my view. The noble Lord should be aware of the letter I received from the Clerk of Public and Private Bills on 3 June, which states that the advice of the Public Bill Office was that,

“the Local Government Bill currently before the House is not prima facie hybrid”.

A copy of this letter has been placed in the Library of the House, and I drew the noble Lord’s attention to it earlier. The letter also sets out clearly the reason why the Public Bill Office does not consider the Bill to be hybrid. It may assist the House, for those who may not have had an opportunity to see it, if I quote the relevant sections of the letter. This is a subject that not all Members will be intimately familiar with, hybridity being something which we do not often consider.

The letter begins by giving a definition of hybrid Bills—which act as the noble Lord, Lord Howarth, has already described. It states:

“A hybrid bill is defined as ‘a public bill which affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category or class’”.

The letter goes on to give the Public Bill Office’s reasoning as to why the Local Government Bill is not prima facie hybrid. It states:

“The concept of ‘class’ is therefore crucial to deciding whether a bill is hybrid or not. Erskine May states that: ‘A class must be defined by reference to criteria germane to the subject matter of the bill’.

The Local Government Bill is a tightly drafted one-topic Bill which relates only to proposals made, but not yet implemented, for the creation of unitary authorities under Part 1 of the Local Government and Public Involvement in Health Act 2007. It does not affect Orders made under Part 1 of the 2007 Act which have already been implemented. So for the purpose of judging hybridity, the class, defined by reference to criteria germane to the subject matter of the bill, is those councils which have made proposals—as yet un-implemented—for unitary status under Part 1 of the 2007 Act.

Section 1 of the bill contains the substantive provisions preventing the implementation of proposals under Part 1 of the 2007 Act. Subsection (1) prevents any further Orders being made under Part 1 of the 2007 Act to implement existing proposals for unitary authorities. I understand that at the moment, the only proposal which has not been the subject of an Order is that which was made by Ipswich Borough Council. Subsection (3) revokes the Orders which have already been made (but not implemented) in respect of Norwich and Exeter.

The class of bodies affected by the bill is clear, and all members of that class are treated equally, so we do not think”—

this is from the Public Bill Office—

“that any hybridity arises. The fact that Norwich and Exeter are named on the face of the Bill, in the Titles of the Orders to be revoked, while Ipswich is not, does not make any difference to our view on hybridity. All three bodies are being treated equally”.

Those are the terms of the letter that has been sent out. It gives the full basis for why the Government do not believe that hybridity is an issue.

I am slightly surprised that the advice of the Public Bill Office does not satisfy the noble Lord, Lord Howarth, that the Bill is not prima facie hybrid. I hope that, having aired his concerns—which has given me an opportunity to clarify this issue—the noble Lord will withdraw his Motion requesting that the Bill be sent to the Examiners, not least because of the considerable delay to the future of the Bill. We have a long tradition in this House of respecting the advice of the Public Bill Office. The noble Lord would need to make a very good case for the House to depart from that advice, and I do not believe that he has done so.

[Lord Lloyd of Berwick]

Is not the problem—I am not sure that the noble Baroness has dealt with it yet—that the advice given by the Public Bill Office was given, as I understand it, before it had seen the evidence to which the noble Lord, Lord Howarth, referred? If there is, as a result of that evidence, any real doubt—a prima facie case, or whatever you like to call it—the Bill ought to go the Examiners. That is perfectly clear.

[Baroness Hanham]

My Lords, my understanding is that the Public Bill Office has not changed its view as a result of that advice, and I intend to proceed on that basis. Before I sit down, I should make it clear that if the noble Lord decides to put his Motion to a vote, I will have no option but to ask the House to oppose it as, were he to succeed, it would delay the passage of the Bill and clarity for the future of the local authorities concerned, which need a decision.

[Lord Elystan-Morgan]

I rise to support the Motion. Even in my greatest delusions of grandeur, I do not consider myself a constitutional lawyer. However, with very great respect to the House, I believe that this matter turns on a fairly narrow point to which I shall come in a moment.

The definition of hybridity stems from a ruling of the Speaker of the House of Commons in the Session 1962-63, and very much follows the words of the Companion which have already been quoted. The issue, therefore, is whether or not certain bodies or private interests, which stand on the same ground in respect of being private or being limited as bodies, are treated in exactly the same way. What is not spelt out in Erskine May, as I understand it, is whether or not there might be justification for treating bodies of that nature, which are of the same class, differently as different considerations relate to them. As I understand it, nothing in Erskine May casts light on that fundamental issue.

Since the enactment of the Local Government and Public Involvement in Health Act 2007, 13 orders have been made creating unitary authorities in Cornwall, Durham, Northumberland, Shropshire, Wiltshire, east Cheshire, west Cheshire and the city of Chester, Bedford County, mid-Bedfordshire, south Bedfordshire, Norwich and Exeter. The first 11 of those authorities gained unitary status in 2008. By 2009, those procedures were well set and, indeed, the transitional stages had been completed. The other two bodies with which we are concerned were dealt with by this House—if I remember rightly—on 22 March and, clearly, the transitional provisions have not begun to operate. Therefore, their situations are very different. If that be the basis of distinction, there would be justification for dealing with them differently. However, as far as I know, there is no rule which says that special cases need special exemptions: either you deal with all bodies in exactly the same way or you fall foul of hybridity. As I say, 13 orders have been made since 2007 and there has been no challenge in 11 of them. The other two were challenged in this House. Is that challenge valid, or not? That is the narrow issue that this House should consider.