Lords amendment: No. 10, in page 3, line 25, at end insert
for the guidance of local authorities in determining whether to incur expenditure on publicity.
§ Mr. Deputy Speaker (Mr. Paul Dean)
With this it will be convenient to take also Lords amendment No. 14.
§ Mr. Waldegrave
The amendment deals with the codes which is the other principal commitment which my right hon. Friend has had to make on this matter. We believe that more power is needed to the elbow of the code which we seek to agree with local authorities and for which my right hon. Friend has the ultimate responsibility. We greatly regret the loss of the words "have regard to" which the Lords removed from the Bill. We do not think that the code is left with enough power as it stands and we will seek to consult the local authorities to try to agree the code in the meantime.
§ Mr. Meadowcroft
The Minister's words almost stuck in his throat as he moved that we should accept the Lords amendment. He faced similar difficulties in Committee in response to his hon. Friend the Member for Halifax (Mr. Galley) and when he promised to look at the matter on Report. In Committee, the Minister tried out a code and faced such overwhelming objection to parts of that code and over the problem whether the code should be enforced in statute, that in the end he was forced to withdraw it.
§ Mr. Waldegrave
I know that the hon. Member is a fair man and I know that he would not want to misrepresent the matter. In response to the Committee asking us to produce some outline ideas about the kind of material which might be in the code, we quickly produced those ideas. The ideas were not a code or a draft and it was not withdrawn. The hon. Gentleman is misleading the House on this matter.
§ Mr. Meadowcroft
If the Minister did not want to try out on the Committee a code which might have had some effect, he should not have produced one at all. As I understood it, the code that was produced was an adapted code of the sort used in the Civil Service. That is what it 913 was incumbent for the Government to adhere to in their practices, and the same type of code and principles should apply to local government.
The hon. Member for Halifax argued very cogently that if a code was brought in it should have the force and approval of the House and of another place. As it was not possible to do that in such a form, the Minister understandably withdrew the code and undertook to reexamine it again on report.
On Report, the Minister said that we should look at the code after the amendments had been tabled in another place. Of course, in another place an amendment was passed that went counter to what the Government wished, rather than being in their favour. It is significant that in the other place it was accepted that the code should be voluntary. It was not suggested that it would be other than for guidance. At that point, the all-party amendment that was eventually passed in the other place was moved by the noble Lord from the Conservative party, Lord Campbell of Alloway. That made the point very logically that, if the code was for guidance only there was clearly no point in having the words "have regard to" in the Bill. Lord Campbell argued that it would not be subject to judicial review and that there would be no power behind it to go to judicial review if it was for advice only. The other place therefore agreed, understandably, to take out that provision.
The point behind the Bill is that local government processes and conventions on acceptable action have broken down. If it is argued that a local government is abusing its powers by putting out propaganda, there is clearly no point in producing a code of practice based on good will because, by definition, good will has gone.
It is incumbent on the Minister either to produce a code of practice to which authorities must adhere and which has the force of law or to abandon the code completely. Their Lordships did the next best thing and simply said, "Let us accept explicitly that the code is for guidance only." They removed subsection (6), which contained the words "have regard to". That was at least partially sensible. We therefore wish to support the Lords amendment.
§ Mr. Michael Forsyth
I very much regret that we are asked to support these key amendments, because they make a mockery of the code. I take issue with the hon. Member for Leeds, West (Mr. Meadowcroft), because I believe that the "have regard to" provision would have meant that councils were bound to treat the code of practice seriously. If they chose to ignore it, it would not be an offence in itself. If litigation resulted, the judges would have to take a breach of the code into account in reaching their verdict. The other place has deleted that provision, and the code is now for guidance only. If we accept the Lords amendments, provided the local authority has read the code, it can proceed on the basis of ignoring it.
Members in the other place seemed to be confused because, having effectively destroyed the code, they insisted that it should be subject to approval by both Houses of Parliament. If the Lords amendments are accepted, the code will have more parliamentary weight and dignity but no legal effect, which must be nonsense. To have such a code seems to be worse than having no code. It will bring the authority of Parliament into 914 contempt. Left-wing councillors will be able to thumb their noses at the code, although it has been approved by Parliament.
This is a serious matter. Those of us who served on the Standing Committee referred to a number of worries about how the legislation would be interpreted in relation to the finer points we had noted in our constituencies. My hon. Friend the Minister was at pains to point out that, before the other place made its decision on clause 4, it would have been necessary to have measures to deal with those finer points.
These amendments are not helpful. They go to the heart of the Bill. I hope that my hon. Friend the Minister can assure us that this matter will be dealt with in future legislation. The code is a vital element in ensuring flexibility in the legislation.
§ Mr. Roy Galley (Halifax)
As my hon. Friend the Member for Stirling (Mr. Forsyth) said, these amendments emasculate clause 4, which was one of the Bill's major pillars. The term used by my hon. Friend the Minister—"regret"—was meek in the light of the actions by the other place. As has been stated, the object of the amendments, which were passed across party lines with a substantial majority in Committee, was to give extra force to the code of practice by having it approved under the affirmative procedure by this House so that the courts would need to take it into account when making their judgments on whether propaganda issued by councils came within the provisions of the Bill.
It makes a mockery of Parliament and of the law to say that, the Bill having come from their Lordships' House, the code will be subject to the affirmative procedure, yet will be only for the guidance of local authorities. That sets the will of this House at naught.
I hope that my hon. Friend will give us some clear assurances that a firm code of practice that will be approved under the affirmative procedure and applicable in the courts will be brought before the House at the earliest possible opportunity.
§ Mr. Peter Bruinvels
Like my hon. Friend the Member for Halifax (Mr. Galley), I am concerned about the code of practice and its relevance to the law. I am fearful that it will be for guidance only and will not be taken seriously by the local authorities concerned.
I appreciate that the code has to be approved by both Houses of Parliament. The fact is that any local authority could read it and ignore it. The Minister, I know, has received a letter from the chief agent for Leicester city Conservatives regarding a proposed new company called Leicester Publicity Ltd., which appears to be trying to circumvent the code which I should like to see have the force of law. I refer particularly to the aims:the Committee accepts the need for the continued provision and publication of information in the City which is not restricted to that concerning the functions of the City Council".It continues:It would, therefore, clearly be of benefit if a way could be found for the publicity and information material to continue to be produced, albeit not, of course, by the city council who would not have the statutory powers".Will Leicester Publicity Ltd. be prevented from taking over the statutory requirements which at present the local authority is carrying out? If not, there is a problem with the code and its relevance.
915 There is another point of concern. The chief executive of Leicester city council says:I recommend that the objects of the proposed company should be orientated towards the provision of publicity and information upon issues or matters relating to or affecting the city of Leicester or any part of it or some or all of its inhabitants.Surely the code should stop any other local organisation from being set up by the local authority to promote political propaganda and deny the ratepayers a rightful say in the administration of the local authority. That must be an abuse of ratepayers' money.
§ Mr. Straw
When the hon. Member for Stirling (Mr. Forsyth) spoke, I had the impression that he thought that, if the amendments were agreed to, there would no longer be any code. I am glad to see that my impression was mistaken, and that these will continue to be provision for codes. The only effective difference is that, under clause 4 as originally drafted, authorities would have to have regard to the code, whereas under clause 4 as amended, the codes are there for the guidance of local authorities.
I hope that Conservative Members will not get too exercised on this issue, and I beg them to allow time to take its course in order to see whether the law works. It is wrong of any hon. Member to imply that a code for the guidance of local authorities can be ignored with impunity by those authorities. I do not believe that any authority or council official would for one second seek to ignore a code without clear knowledge of the consequences.
While it is true that a code for the guidance of local authorities may not of itself be sufficient to trigger a judicial review—one of the points raised in another place—none the less a transgression of a code laid down by statute for the guidance of local authorities would be prima facie evidence for legal advisers that there could have been a transgression of the principal statute, giving rise to legal action for judicial review. Moreover, one of the key sanctions provided by the Bill is not judicial review but resort to the district auditor. For that, the original complaint does not have to be couched in such detailed legal language as an application for judicial review.
We believe that the change is helpful. Conservative Members who think it is not helpful would be wise to read the debates in another place, because many peers experienced in law had complaints about the "have regard" trigger. While we believe that the change is beneficial, there is not a real and significant difference between it and what was there before. For once we should give the legislation time to work. Let us see what the practice is before rushing back with further legislation.
§ Mr. Waldegrave
With leave of the House. I welcome the plea of the hon. Member for Blackburn (Mr. Straw) that we should give the code as presently drafted a chance. In so far as he is adding his weight to the voices of those who say that we should have serious discussions with local authorities about getting such a code drafted, I welcome that.
Basically I agree strongly with my hon. Friend the Member for Stirling (Mr. Forsyth) that again this has knocked a very important part out of the structure of the Bill. No one has greater respect than I have for another place, but, like my hon. Friend, having read the debates in another place, I found myself none the wiser. Some noble Lords seemed to be of the view that the code, as we 916 originally envisaged it, would have brought all free speech to an end while others thought that it would have no effect at all. Therefore, there was not a consensus such as was sought by my hon. Friend the Member for Milton Keynes (Mr. Benyon).
I agree very much with my hon. Friend the Member for Halifax (Mr. Galley), whose amendment was passed in Committee—not at the time with the full enthusiasm of Ministers, but we came to live with it. We now have an anomaly. The effect of his amendment was to try to build up the power of the code, but the "have regard to" trigger has been knocked out.
We have "have regard to" triggers successfully in some statutes, such as section 60 of the Control of Pollution Act 1974 and section 135(5) of the Local Government Act 1972. There is quite a close parallel. Local authorities are required to have regard to a number of matters, including the provision of structure plans, before deciding planning applications. This is a trigger with which local authorities and the statute law are able to deal. We shall have to come back to this in the autumn.
This is another case where I have to ask my hon. Friends to accept the amendment for the reason given by my hon. Friend the Member for Littleborough and Saddleworth (Mr. Dickens)—that we want the Bill on the statute book now. Half a loaf is better than no bread, but it is only half a loaf.
§ Question put and agreed to.
§ Lords amendment No. 11 agreed to.
§ Lords amendment: No. 12, in page 3, line 31, leave out subsection (4).
§ The Parliamentary Under-Secretary of State for the Environment (Mrs. Angela Rumbold)
I beg to move, That this House doth agree with the Lords in the said amendment.
§ Mr. Deputy Speaker (Mr. Paul Dean)
With this it will be convenient to take the following: Lords amendment No. 13, in page 3, line 37, at end insert—
(5A) A code shall not be issued unless a draft of it has been laid before and approved by a resolution of each House of Parliament.(5B) Where the Secretary of State proposes to revise a code he shall lay a draft of the proposed alterations before each House of Parliament and—
- (a) he shall not make the revision until after the expiration of the period of 40 days beginning with the day on which the draft is laid (or, if copies are laid before each House of Parliament on different days, with the later of those days), and
- (b) if within that period either House resolves that the alterations be withdrawn, he shall not proceed with the proposed alterations (but without prejudice to the laying of a further draft).In computing the period of 40 days no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.Sub-amendment (a), in subsection (5A), after "issued" insert "revised".
Sub-amendment (b), in subsection (5A), leave out "it" and insert "the code or revisions".
Sub-amendment (c), leave out subsection (5B).
§ Mrs. Rumbold
I am sure that hon. Members will agree with the principle behind amendment No. 12, which was discussed in the House on Report. We consider that a code of practice issued under clause 4 should be subject to the scrutiny of both Houses of Parliament.
§ Mr. Boyes
Amendment No. 13 and sub-amendments (a), (b) and (c) are in response to the Government's defeat in Standing Committee, when a combination of Opposition parties and some Conservative Members decided to vote with us, which I suspect was much more embarrassing to them than it was to us.
As originally drafted, the code of practice was not subject to any parliamentary procedure. The Opposition voted with what could be described in some newspapers as the "St. Andrews Mafia" to provide for the code of practice to be subject to an affirmative vote in the House of Commons. Because of bad drafting, which has been a feature of the Bill the House of Lords appears to have been left out. The Opposition amendment along the same lines in Standing Committee included the Lords.
The Government have conceded half the case for the affirmative procedure, by making the initial code of practice subject to that procedure, but illogically allowed only the negative procedure for revisions to the code. Government Members will no doubt claim that the process of revision is likely to be made more difficult if affirmative resolution orders are required for each change. We find that argument tenuous and unacceptable.
If the amendment is accepted as it stands, it will mean that the code originally subject to the affirmative procedure could be revised beyond recognition using negative instruments. Secondly, the comparative administrative inconvenience of the affirmative procedure is an asset in application to revisions to the codes. It might encourage the Department to ensure that, in consultation with local authority associations, it gets the first draft right. Sub-amendments (a), (b) and (c) make revisions subject to the affirmative procedure and delete the negative provisions. We are introducing necessary and essential amendments to the code of practice and we hope the Government will see the logic and sense in our argument.
§ Mr. Michael Fallon (Darlington)
In the arrangements for parliamentary scrutiny of the code there is, as the Opposition pointed out, a clear difference between the arrangements for scrutinising the initial code and those for scrutinising the revised code. I have some sympathy with the Opposition amendment (a) and the following amendments, but I would have less sympathy if my hon. Friend were able to assure me that the consultation involved in making sure the initial code is as good as it can be, will involve consultation not simply with local authority associations but with other groups who have an interest in this field, notably the National Union of Journalists. I understand that at the moment my hon. Friend is not prepared to consult the union before preparing the initial draft. The Government's case would be slightly stronger in resisting the proposed affirmative resolution for the revised code if the Government were prepared to consult more widely in preparing the initial code.
§ 1 am
§ Mrs. Rumbold
The proposition of my hon. Friend the Member for Darlington (Mr. Fallon) would not present the Government with many difficulties and we would be prepared accordingly to widen the consultations for the code of practice.
I understand the logic of the hon. Member for Houghton and Washington (Mr. Boyes), but his claim that 918 we are proposing a change that will reduce the flexibility of parliamentary procedure for the code is rather an odd one for him to make. There may be circumstances where a revision needs to be made fairly quickly, either because of an inadvertent and unnoticed error, or because of a provision of the code which in practice proved impractical or unworkable. In such cases the affirmative procedure would be too rigid. There is a precedent for having a different procedure for revisions in section 14 of the Local Government Finance (No. 2) Act, 1982 for a code of order practice. I commend to the House of Lords amendment.
§ Question put and agreed to.
§ Subsequent Lords amendments agreed to.