Local Government Bill [HL]

Viscount Eccles Excerpts

Wednesday 14th July 2010 Lords Chamber

[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.

[Viscount Eccles]

I am grateful to the noble Lord for giving way. Is his argument that once Parliament has made a decision—let us accept for a minute that he is right that the affirmative instruments were approved—it is in no position to change its mind and reverse its decision?

[Lord Howarth of Newport]

On the contrary, that is exactly my argument. I have asked the noble Baroness why she is simply relying on the High Court to quash the decisions of Parliament rather than having Parliament exercise its own authority to quash the decisions that it previously took. That is precisely the point at issue. I suggest that this is part of a pattern that we are beginning to see emerge in this coalition Government of an habitual disrespect for Parliament. If I may, I shall give one other instance.

--- Later in debate ---

[Lord Howarth of Newport]

My Lords, I add my support to the arguments made by my noble friends Lord Rosser and Lady Hollis on Amendment 4. Significant and unbudgeted additional costs would be created by these by-elections, if they occurred. I refer not just to the cost to the authorities—£80,000 for Exeter and no less for Norwich—but to the costs for the parties and candidates. This would come at a time of severe financial pressure on the local authorities.

This situation has been brought about through no fault of either Norwich or Exeter. The judicial review was taken out by the counties against the CLG and not against Norwich and Exeter, and it seems unjust that council tax payers in Norwich and Exeter should have to foot the bill for it. In Exeter, the cost has already been computed at no less than a 1.8 per cent increase in council tax, which is a significant burden to land on local people.

It would be open to the Government to amend the Bill to reinstate the councillors who were unseated by the High Court on 5 July and to defer the elections on the original plan until next May. That would save money and would restore an orderly situation. As it is, if Section 2 is simply deleted, the leaders of all the opposition groups in Norwich will be unseated.

[Viscount Eccles]

My Lords, I am grateful to the noble Lord for giving way. The amendment does not go to the point of how elections should be held; it goes only to the point of a report being prepared. Surely the proposers of the amendment are simply suggesting an ex post facto report, and the statutory obligations of Exeter and Norwich to deal with the matters that arise from the High Court judgment is being left to them. We are not being asked, either in the Bill or by the amendment, to interfere in those statutory arrangements.

[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.

--- Later in debate ---

[Baroness Hollis of Heigham]

I can only say that that is not the view that I or my other friends have been given by senior members of the district council. Perhaps I may also say, for what it is worth, that if the noble Lord were to ask his noble friend Lord Tope whether that was the view that he was given when the delegation from Exeter came to see him, I think that in all honour the noble Lord, Lord Tope, would support the comments that I am making.

I come next to the noble Earl, Lord Cathcart. He asked, perfectly reasonably, “Why these two councils and not other councils?”. The reason why this amendment was tabled and the reason—I shall come on to this—why this should go through Parliament is precisely that, as a number of noble Lords have said, the benefits of unitary status that Norwich and Exeter have sought can be achieved by partnership arrangements. That is why we are talking about Norwich and Exeter. We are not talking about other places that are not seeking such arrangements. We are talking about two authorities that have been denied unitary status, which they believe would produce best value for money and the most effective delivery of services. In place of that, constructive partnership arrangements can have the same effect. That is why this amendment concentrates on those two authorities.

I would be delighted if other district councils in Norfolk, in Devon and across the country equally benefited from the ability to disaggregate county council statistics about the value for money, effectiveness and cost of the delivery of services in their district. That would be splendid. However, it is these two authorities that are being told that this is an effective, value-for-money alternative to unitary status—hence the amendment.

Why are we saying that this should go through the Secretary of State? The noble Baroness, Lady Shephard, the noble Lord, Lord Rennard, and I think the noble Baroness, Lady Hanham, said that this is not a matter for Parliament. My problem is this. If the Government are seriously arguing that collaborative partnership arrangements are, in the Government’s eyes, a proper and appropriate alternative to unitary status, that collaborative partnership arrangement depends on both parties—the county council and the district council—co-operating fully, which I am sure happens elsewhere in the country. If, for that co-operative arrangement, information about the costs and delivery of services is required by the cities involved so that they know what is happening in their cities as a result of county council services, but the county councils refuse to divulge the information, on which partnership must rest, what does the noble Baroness suggest can be done?

We cannot have unitary status because that has been denied to us. We cannot have collaborative partnership because the information is being withheld. What does she suggest we do? That is why I have moved this amendment: to focus Parliament’s attention. Warm words are nice—

[Viscount Eccles]

I thank the noble Baroness for giving way. I think that what she is suggesting is to pass an unenforceable law.

[Baroness Hollis of Heigham]

My Lords, no one has asked the Committee to make a judgment on this, so I think that the noble Viscount is being just a little premature.

The point of the amendment is to test the validity and the viability of the noble Baroness’s assertion, which has been reinforced by a number of noble Lords during the debate, that constructive partnership arrangements are a viable alternative to unitary status. We were promised that in 1994-95, but despite those promises it did not happen. Norfolk County Council has already promised some of this to the Boundary Committee, but so far it has not happened. For these arrangements to work, we must have the information, but so far the council has refused. The noble Baroness says in all conviction, I am sure, that these alternative partnership arrangements are a viable option in place of unitary councils, but how is she going to advise us to make it stick? What advice can she give Norwich when Norfolk refuses to give it the information that it needs to make those partnership arrangements work? Will she please tell me? I will give way to the noble Baroness, because I have run out of remedies.