Localism Bill

Lord Elystan-Morgan Excerpts

Monday 20th June 2011 Lords Chamber

[Baroness Hamwee]

My Lords, I take issue with my noble friend Lord Taylor only to the extent that we should start with not just the “how” but the “why”. It does not matter what you call something, provided you do not then use your term as an excuse for sloppy thinking. That is a danger. It would be easy during our debates on the Bill to say that such-and-such is local or localist, without analysing what that means and what it should mean in each context.

The noble Lord, Lord Jenkin, referred to Pepper v Hart. I must say that it worries me when people who have not been closely involved with our proceedings say, “Parliament clearly must have thought such-and-such”, and one wonders whether Parliament has thought at all about a particular issue.

Representative democracy is so valuable for lots of reasons, but I have written down four: balance, priorities, nuance, and wide objectives. When the noble Baroness, Lady Farrington, spoke about community groups being self-selecting, I thought that she was going to say that they were self-serving—just occasionally, they are and I, too, recognise the examples she gave. The issue of bail hostels precluded my party from taking control of our local authority in 1978. My noble friend Lady Tonge was elected in a by-election shortly afterwards, having failed to be elected at that earlier point. However, the issue was of concern in a community that one should have thought was most sympathetic to the problem that the establishment of the bail hostel was addressing. The centre has a role, but its role is not to protect local people against their own local authority.

The noble Lord, Lord Jenkin, asked what the clause would achieve. It sets criteria against which the detail of the Bill can be tested. Something that is superficially local or localist is not sufficient.

[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.