Local Government Bill [HL]

Lord Howarth of Newport Excerpts

Tuesday 8th June 2010 Lords Chamber

Moved by

[Lord Howarth of Newport]

That the Bill be referred to the examiners.

[Lord Howarth of Newport]

My Lords, I declare an interest as a resident of Norwich. I want to put it to the House that there is a strong prima facie case that the Local Government Bill is hybrid, and that it should therefore be referred to the Examiners to determine whether that is so. As soon as they saw it, a number of experienced colleagues said surely this Bill is hybrid.

The noble Lord the Leader of the House just told us the definition of hybrid Bills in the Companion, but perhaps it would help the House if I quoted the words again. The definition states that they are,

“public bills which are considered to affect specific private or local interests, in a manner different from the private or local interests of other persons or bodies of the same class, thus attracting the provisions of the Standing Orders applicable to private business”.

In the next paragraph, the Companion goes on to say:

“It is open to any member who considers that a public bill may be hybrid … to move that the bill be referred to the Examiners. Such a motion is usually moved immediately before second reading”.

These semi-mythological creatures, the Examiners, are the Clerks of Private Bills in both Houses.

I recognise that hybridity is not for amateurs. These are deep waters and a prudent politician does not even get into his bathing trunks, let alone plunge in. But I fear that, unlike my right honourable friend the former Prime Minister, prudence has never sufficiently been my watchword.

I regret that I was unable to give the House more notice of this Motion. The difficulty has been that the Government have advanced this Bill with extraordinary speed. We saw the Bill only on the eve of the long bank holiday weekend. That was followed by a day when the House was not sitting, so I was not able to consult the Clerk of Public and Private Bills until the following day, last Wednesday. I then had to discuss with Norwich and Exeter City Councils whether they wished to seek the advice of parliamentary agents and counsel. The lawyers then worked at top speed, with e-mails flying around all over the weekend and late at night. Counsel's formal opinion and a letter of advice from parliamentary agents were delivered yesterday, and in the light of them I tabled the Motion on the Order Paper for today. We could not have got to this point more quickly, and I have had no desire to wrong-foot the House.

In any case, while the concept of hybridity may be obscure and elusive, the issue before us now is simple. Do we consider that there are sufficient reasonable arguments that the Bill is hybrid to warrant referring it to the Examiners?

Plainly, the Government have sought to draft this Bill so that it is not hybrid. However, they are navigating tricky waters, and the House ought to satisfy itself on this point, since there are major implications for how we proceed depending on it. If the Bill were judged by the Examiners to be hybrid, after Second Reading, as I understand it, the Bill would go to a Select Committee which would receive and examine petitions and question witnesses and then report to the House before following the usual course of a Public Bill.

It seems clear to me that the Bill is hybrid on this ground most obviously, although there are others. Norwich and Exeter are treated differently from other local authorities under this legislation for the following reason. Since the Bill, significantly, does not repeal Section 1 of the Local Government and Public Involvement in Health Act 2007—the Act that permits the Secretary of State to invite a local authority to make a proposal for reorganisation into single-tier government—the Bill contemplates that authorities will in the future, after the Bill has become law, have the opportunity to make such proposals. However, the Bill specifies that Norwich and Exeter—just those two named authorities—are not to become unitary authorities. It seems plain as a pikestaff that the local interests of Norwich and Exeter are especially prejudiced for the future. In the language of the Companion, Norwich and Exeter are affected,

“in a manner different from the … local interests of other … bodies of the same class”—

other councils that may wish to propose unitary reorganisations.

However, I speak merely as a politician and not as a lawyer. Far more significant are the views of learned counsel. I will not attempt to paraphrase either the lengthy opinion of Mr Peter Oldham QC or the shorter but densely argued advice of Mr Alastair Lewis of Sharpe Pritchard, parliamentary agents. Both those documents came in after the Clerk of Public and Private Bills had given his opinion that this particular Bill was not hybrid. I will just say that Mr Oldham concludes his opinion with the words:

“In my view, there are proper and reasonable arguments that this Bill is hybrid”.

Mr Lewis says he believes that a further line of argument that he has put forward,

“represents a strong argument in favour of saying that the Bill is hybrid”.

What I am not proposing to the House in this Motion is that the House should decide here and now that the Bill is hybrid. Nor is this a debate about the rights and wrongs of the Government's policy on Norwich and Exeter—that is for Second Reading. What I am proposing is that the House should recognise that there are various views about whether this Bill is hybrid, all put forward in good faith by serious people—professionals who are competent to make such a case—and agree that all these arguments should be considered carefully and expertly by the Examiners so that they can determine whether the Bill is hybrid in accordance with the procedure that Parliament has provided.

--- Later in debate ---

[Lord Richard]

My Lords, perhaps I may make two or three points. First, this Motion is certainly not about the merits of the Bill. As far as the Bill is concerned, I was not in favour—and I am still not in favour—of Exeter becoming a unitary authority. On the contrary, as someone who spends a large part of his time down in Devon, it is important that Exeter should remain with the rest of Devon. However, that is not the issue. I totally agree with my noble friend Lord Elystan-Morgan when he said that it is a simple point—it is. Where are we? What is the dilemma facing the House? It is simply this: on the one hand, we have the Clerks. They have given their respected, respectful and highly considered opinion which states that the Bill is not hybrid. On the other hand, we are now in a position whereby an eminent Queen’s Counsel, who is experienced in this branch of the law, has also given a firm and unequivocal opinion that the Bill is, or could well be, hybrid. How can we resolve that? We cannot.

I am not in a position this afternoon to argue whether or not the Bill is hybrid, but I am in a position—and I hope that the rest of the House will follow me in this—to say that there is a clear argument as to whether the Bill is or is not hybrid. That being so, the procedures on how to resolve that are perfectly clear: the Bill has to go to the Examiners. The Examiners are there to assist the House in coming to a conclusion. It seems to me that we cannot come to a conclusion today, except by ignoring one or other reputable opinion by reputable people. I am not prepared to ignore one set of views in favour of another; I am not in a position to make up my mind. There is a clear issue here and, that being the case, the Bill should go to the Examiners and I shall support the Motion.

[Lord Howarth of Newport]

My Lords, it is appropriate that this has been a short debate. The noble Baroness, Lady Hanham, trailed her Second Reading speech but this is not a debate about the merits of the Bill. She told us that the Government strongly believe that the Bill is not hybrid. We know that they strongly believe that but others, equally strongly, take the contrary view. I perfectly respect the views of the Clerk of Public and Private Bills and I respect his role. I make no criticism whatever of the advice that he has given, which I think has been entirely proper. However, I think that it is wrong of the noble Baroness to invite the House to agree with her that the Bill is not hybrid, because that is not the issue or the role of this House.

The question is whether there are reasonable arguments for saying that the Bill is hybrid. The crucial point, made very well by the noble and learned Lord, Lord Lloyd of Berwick, was that opinion that this House should not ignore was provided to us after the Clerk had given his view. Therefore, we cannot question that there is doubt about the status of the Bill. The Speaker’s rulings have made it absolutely clear that, where there is such doubt, the Bill should be referred to the Examiners so that they can determine the matter. The noble Lord, Lord Elystan-Morgan, explained the nature of the doubt. My noble friend Lord Richard, a former Leader of the House and a QC—incidentally, not a supporter of unitary status for Exeter and Norwich—advised the House that it would be appropriate to refer the Bill. I do not think that this House can ignore the advice received from QCs or eminent parliamentary agents, and I very much hope that we will therefore refer the Bill to the Examiners.