Localism Bill

Lord Dixon-Smith Excerpts

Monday 20th June 2011 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I have considerable sympathy with the sentiment behind the proposed new clause. Ever since I was a schoolboy, I have been arguing for devolution in one way or another, and I have not changed. In the past few months, in regard to the boundaries Bill, the police Bill and the Public Bodies Bill, a great deal of the House’s time has been taken up by me arguing devolution points, as I am sure the noble Lord, Lord Taylor of Holbeach, will remember. My sympathies are all with the new clause, but a constitutional issue of immense magnitude is raised by it.

Pepper v Hart, as mentioned by the noble Lord, Lord Jenkin, caused a massive upheaval in the whole concept of interpretation by a court of what was contained in an Act of Parliament. Up until then, the same rule had abided for utterings in an Act of Parliament as for the interpretation of a will. It was the golden rule of interpretation. That was very simple. It was that the strict grammatical meaning of the words should determine the matter unless there was some obvious or latent ambiguity. In other words, it was in any event restricted to solving the problem that arose from an ambiguity. It was not of general content. When Pepper v Hart came along, it did not change that rule; all it did was change the machinery by which one tried to deal with that conflict.

The new clause, whose intentions are admirable, seems to be an attempt to go well beyond that. It is not confined to situations of latent or patent ambiguity but deals with a whole host of general situations. I will be corrected if I am wrong, but it seems to be an attempt to act as if we had a written constitution at the limits of the Bill, and those limits are very wide indeed. But we do not have a written constitution. Therefore, we could have endless argument as to whether there is a patent or latent ambiguity. To speak for a moment of my former occupation, I have no doubt that clever lawyers would seek to persuade courts that there were ambiguities and conflicts where there were none. Here we have a presupposition that one can pretend in legislation that there is a written constitution, as set out in the new clause, when in fact we do not have such.

The new clause is titled “Purpose of this Act”, but the purpose of an Act is set out in its preamble, which is not part of the Act itself. It is very much like the memorandum of a limited company: it sets out the metes and bounds of what can be contained in the legislation. With the best will in the world, the new clause, laudable though it is, would, if carried, create a massive constitutional problem to which there is no real answer.

[Lord Dixon-Smith]

My Lords, it seems a long time ago now, but I spent 28 years in local government. The noble Lord, Lord Greaves, has done the House a favour in tabling this amendment because it has enabled us to have this useful, fundamental debate before we get into the detail. As I was unable to speak at Second Reading, I should declare myself as a landowner in Essex, in case anyone wishes to raise it at any point.

The noble Lord, Lord Elystan-Morgan, has pointed out the problem with the amendment. There is much in it with which one could agree in principle. I think similarly to the noble Lord that, the more one tries to define localism, the more one is at risk of destroying it. Once you start to spell it out in words of one syllable which ordinary people can understand, you begin to restrict freedom of action. As I understand it, the purpose of localism is to get local matters back into the control of local people as much as one reasonably can. However, the Bill does not tackle the fundamental problem that is faced by all, which is the issue of local government finance. When I was first a Member, my county received less than 50 per cent of its finances from the centre. I remember warning the council in those days of the dangers if that balance shifted. Today, the balance is somewhere near 80 per cent from the centre. Whatever we do in the Bill, there will always be that fundamental weakness: the ability of the centre to control events at a local level because of a lack of financial independence.

If anyone wants to try to interpret the Bill, they should first read this debate. Everything that has been said is appropriate and relevant and it has been very useful to have this discussion. I look forward to hearing what my noble friend on the Front Bench has to say, but I hope that the noble Lord, Lord Greaves, will not take the amendment any further. It seems to me that he has achieved what he wanted in having this debate. If we tried to put this down in writing, I am sure that we could all think of additional words and words that we would prefer not to see, but if an issue came before the courts on this basis, I think we would be giving them an impossible task. Having had the debate, I hope that the matter goes no further.

[Baroness Byford]

My Lords, I was very disappointed not to be able to speak at Second Reading as this is a matter very close to my heart. On this occasion, I do not believe I have an interest to declare in that I have never been a local councillor. My family has farming interests in Suffolk, which perhaps I should declare, as that will come up later. Clearly, over many years, I have been involved in local organisations and charities, some of which are declared in my interests.

The amendment has given us an opportunity—particularly those of us who could not speak at Second Reading—to speak on this matter. I am a staunch believer that decisions should be taken at the lowest level. I welcome the Bill and look forward to taking part in the various aspects of it, when we may want to strengthen, improve or alter it slightly. That is the nature of the Bill; it is huge and covers a wide section of specifics.

However, I have slight difficulties, even with this amendment. It is headed “Purpose of this Act”, and proposed new subsection (1)(a) says that,

“there is a presumption that the local level will prevail unless there are clear and over-riding reasons why it should not”.

It does not explain what would happen then or what that would achieve. I do not think that it is appropriate to nitty-gritty one’s way through the amendments at this stage. Various questions need raising on them, word by word and sentence by sentence.

I actually rose to say that, although we have had this worthwhile short debate, I do not believe that my noble friend’s amendment is necessary. The Bill clearly sets out what it wants to do. When we come to the individual clauses within it, there may well be important issues that we want to look at and reflect on in greater detail. At this stage, I want merely to say that while I have sympathy with the amendment, it is not one that I support.

--- Later in debate ---

[Lord Jenkin of Roding]

My Lords, I wish to add something to what my noble friend Lord Newton of Braintree and the noble Lord, Lord Best, have said. The anxiety is not so much that any Government would be so stupid as to try to repeal essential provisions on welfare of the sort that have aroused some alarm but that this Government might be succeeded by another who are not so keen on the whole process of localism, devolution and subsidiarity and might therefore use the powers in a way that would restrict the general power, which might go contrary to the purposes of this legislation. I declare once again that I am joint president of the London Boroughs Association, which is certainly concerned about this possibility. The chances of any Government wanting to make material inroads into the welfare legislation to which reference has been made, and much of which is in the list in the amendment tabled by the noble Lord, Lord Beecham, are a little unreal. No doubt, however, reassurance will be necessary, and I hope that my noble friend on the Front Bench will be able to reassure those who have expressed anxieties that that is not the intention.

As I understand it, the purpose of this clause—the whole of the purpose of the power that is given—is simply to enable a local authority to exercise its general power of competence. If there are obstacles in previous legislation that prevent that, or if there is overlap, then to that extent the order may then remove the obstacle. It cannot just sweep away whole legislation; as I understand it, the provision in question has to be specifically related to the general power. I have had a lot of representations as well, and it is right that these fears should be aired on the Floor of the House so that reassurances can be given. However, the noble Lord, Lord Beecham, made the point that there is a distinction between the clauses as to whether the resolution is affirmative or negative.

I have two things to say. The first is that if the Joint Committee on Statutory Instruments makes a recommendation—I, too, read the wording that the committee recommends strongly that it should all be affirmative—it would be very unusual indeed for a Minister not to accept it. I have been through a number of Bills, most recently the Energy Bill, where that has been accepted. The whole range of recommendations was accepted, and government amendments were put down to achieve that. The second point is that if you have sufficient parliamentary supervision, that should be a sufficient assurance of protection. The power is necessary if you are going to make a reality of the general power of competence but it has to be defined, as I think it is intended to be, and it has to be subject to affirmative resolutions as recommended by the Joint Committee.

[Lord Dixon-Smith]

My Lords, I had not intended to intervene but I am tempted because I need to ask the Minister one question: could this subsection not be used by some other Secretary of State at some point in future to amend this legislation because it has a power in it to which he or she objects?