Local Government Finance Bill (Hansard, 21 January 1987)

§ Dr. John Cunningham (Copeland)
On a point of order, Mr. Armstrong. I seek your help and guidance on a point of order which is somewhat complex and crucial to the future consideration of the Bill. I gave you prior notice of my intention to raise this point of order, Mr. Armstrong, as I did to the Office of the Secretary of State for the Environment. I am grateful that the right hon. Gentleman is in his place on the Treasury Bench.
There remains a major difference of opinion about the legal implications of powers in the Bill. The Secretary of State has courteously advised my hon. Friends and myself, both publicly and privately, that our interpretations of the Bill were wrong in law, and we thought it appropriate, therefore, to seek counsel's opinion. That we have done. We have sought two independent opinions on the implications of the powers that the Secretary of State is asking the House of Commons to grant him under the Bill.
Clause 4(6) provides that subsection (1) shall have effect notwithstanding any decision of a court (whether before or after the passing of this Act) purporting to have a contrary effect. Subsection (1) provides: Anything done by the Secretary of State before the passing of this Act for the purposes of the relevant provisions in relation to any of the initial years or intermediate years shall be deemed to have been done in compliance with those provisions. The definition of the relevant provisions is to be found in clause 4(2) of the Bill: Part VI of the 1980 Act, section 8 of and Schedule 2 to the Local Government Finance Act 1982, sections 2 and 3 of the Education Act 1986 and section 2 of the Rate Support Grants Act 1986. Our advice is that four other statutes are affected and: Accordingly, anything done by the Secretary of State before enactment for the purposes of these provisions is deemed to be done in compliance with their requirements. There is nothing limiting the deeming provision to errors arising out of the erroneous definition, and therefore calculation of relevant and total expenditure. We believed that the provisions of the Bill went much wider than that from the outset and the opinion we have received confirms that: The present wording appears quite clearly to cover any procedural impropriety, failure to consider a matter rationally, or other unlawfulness in respect of anything done by the Secretary of State for those statutory purposes. During the discussions on 19 January the Secretary of State explained his view as follows: It depends on the subject of the litigation. If it has to do with total expenditure or involves the definition of total expenditure, the Act will prevail over any decision of the court."—[Official Report, 19 January 1987; Vol. 108, c. 643.] He went on at some length to support that view.
It is our view, and that view has been confirmed by counsel's opinion, that that statement is based on a misinterpretation of the clause as it stands. To be 905 consistent with the Secretary of State's statement a substantial amendment to the Bill would be required, relating the deeming provisions solely to calculation of total and relevant expenditure otherwise reasonably made under the previous understanding of those terms.
A similar point arises in clause 6(2) which states: Anything done by the Secretary of State before the passing of this Act for the purposes of Part I of the 1984 Act in relation to the financial year beginning in 1985 or that beginning in 1986 shall be deemed to have been done in compliance with the provisions of that Part. Our legal advisers state: This is not restricted to issues arising from total and relevant expenditure, but once more covers other procedural impropriety, irrationality and illegality. By sub-clause (3) any designation of an authority is deemed to have been made in compliance with Part I, even if otherwise unlawfully made, including unlawfulness in no way connected with errors arising from the interpretation of total and relevant expenditure. I am setting this out in some length and I apologise but this is a complicated matter. We consider it is impossible to continue discussion on a reasonable, rational or coherent basis unless the Secretary of State's—[Interruption.] The Secretary of State laughs, but we are in this position today only because of the incompetence of the Secretary of State and his predecessors concerning such matters. Shortly we shall come back to discuss the continuing incompetence over which the Secretary of State is presiding.
It is important to have a full explanation of the retrospective and respective provisions. We have taken this matter very seriously and I seek your help, Mr. Armstrong, concerning the future proceedings of the Committee. We consider that the Committee should not proceed to a final consideration and vote on clause 1 until it has had an opportunity to hear from the Attorney-General about these matters. With regard to discussions of clause 4 and clause 6 of the Bill, it would be appropriate for the Attorney to be in attendance throughout the Committee's considerations. [Interruption.] The Secretary of State is not bothering to listen to what we have to say.

§ The Secretary of State for the Environment (Mr. Nicholas Ridley)
On a point of order, Mr. Armstrong—

§ The First Deputy Chairman of Ways and Means (Mr. Armstrong)
Order. I cannot have a point of order on a point of order.

§ Dr. Cunningham
I am grateful to you, Mr. Armstrong. Apart from a lack of normal relations between the Secretary of State and the Labour party, the Secretary of State is apparently unwilling to listen to serious arguments about the Bill.
The Secretary of State's remarks in respect of the Greenwich case which is again due to come before the courts—

The First Deputy Chairman
Order. The hon. Gentleman is aware that the Committee has already discussed the judicial review. We shall come to clause 4 and clause 6 in due course. The hon. Gentleman may raise those matters at that time, but up to now I have not been aware of any point of order for me.

§ Dr. Cunningham
I said at the beginning that this is a complicated matter and I do not apologise for seeking to get it right. It is crucial to the whole discussion of the Bill. 906 My point of order is first to seek your guidance, Mr. Armstrong, and to safeguard the Committee's rights in this matter.
Is it appropriate that we should proceed with consideration of those matters without clarification and is it not in the interests of the Committee that the Attorney should be present to give his view on them? The Secretary of State's remarks and his interpretations made during debate on a previous group of amendments is at issue. I seek your help and guidance.

The First Deputy Chairman
The interpretations made by the Secretary of State are, of course, matters for debate. The presence of the Attorney or any other Government Minister is not a matter for the Chair. I have no jurisdiction over that.

§ Mr. Allan Roberts (Bootle)
On a further point of order, Mr. Armstrong. It appears to us that the purpose of this unique and unprecedented Bill is to validate decisions of the Secretary of State that were deemed illegal by the Attorney-General. The Secretary of State's interpretation of the Bill, in trying to validate his previous illegal action, is wrong. If this legislation becomes an Act, the House of Commons, and indeed the Government, will end up with exactly the same position that we are now trying to correct. My point of order is that the Attorney-General is not just a Government Minister who advises the Government in his official and legal capacity. He also advises the House. It is in order to move, on a point of order, that the Attorney-General should come before a Committee. That has been done in other Committees—not in a meeting of the full House in Committee. It has been moved, on a point of order, that the Attorney-General be required to come to a Committee to give advice. That is what we are seeking today. If that does not happen and we proceed we may finish up in a very difficult situation. We are already trying to put a difficult situation right through this legislation.
It seems to me that the Secretary of State continually makes illegal actions and mistakes. He cooks the books and asks—

The First Deputy Chairman
Order. The hon. Gentleman ought to know that, however important the issue may be, the presence of the Attorney-General is not a matter for me. The hon. Gentleman can request, and he has made his request, but he cannot move that the Attorney-General be present. Quite frankly, he has not raised a point of order with me.

§ Mr. Ridley
Further to that point of order, Mr. Armstrong. I hope that you will be able to protect the Committee from dubious and spurious arguments, based on unnamed legal advice on a point to be raised on a later clause, being trumped up as a spurious and bogus point of order by the hon. Gentleman. We have a lot of work to do and I should like to make progress with the real business of the Committee. The hon. Member for Copeland (Dr. Cunningham) has been wasting the time of the Committee raising matters of substance under a point of order. I hope that you will be able to protect the Committee so that orderly progress can be made.

§ Mr. Allan Williams (Swansea, West)
rose—

The First Deputy Chairman
Order. I listen to all hon. Members who wish to raise a point of order. I am bound 907 to say that no point has been raised that is a matter for me. The matters raised are for debate and will come up at the appropriate time.

§ Dr. Cunningham
Further to the Secretary of State's point of order, Mr. Armstrong, which he thinks is a genuine point of order. As he has challenged apparently the bona fides of what I was saying, may I point out that the opinion was provided by Mr. Roger Henderson QC?

The First Deputy Chairman
The hon. Gentleman has raised the matter and I accept that. Even so, it is a matter for debate and not a matter for the Chair.

§ Mr. Williams
Further to the point of order, Mr. Armstrong. The important point for hon. Members is that during the debate we have to determine whether we will give the Secretary of State a certain range of powers. In determining whether to give him those powers, the judgment of the Committee will be influenced by whether those powers are being given purely in relation to the future or whether they are also being given retrospectively. We cannot continue with a meaningful debate on the range of powers until we have had legal clarification as to precisely what it is that we are giving the Secretary of State. It is from that point of view that my hon. Friend has said that we need clarification from the Attorney-General as to precisely which range of powers is covered by the retrospective clearance.

§ Mr. Andrew F. Bennett (Denton and Reddish)
rose—

The First Deputy Chairman
Order. Let me reply to the point of order. The right hon. Gentleman has raised a matter which is a matter for debate. If the right hon. Gentleman or any other hon. Member is not satisfied with the explanation from the Front Bench, he has the opportunity to debate and to vote against it, but it is not a matter for me.

§ Mr. Bennett
Further to that point of order, Mr. Armstrong. I appreciate the point that you have just made, but may I put it to you that your duty in the Chair is to try to ensure the orderly consideration of the Bill. As an Opposition, the only way in which we can press the Government for information is by the threat to delay proceedings. I am sure you are aware that regularly in Committee the Opposition have to mount delaying tactics so as to press the Government to make a statement. If we want to make good progress, it would be helpful if the Government would tell us that, when we get to the two clauses where the extraordinary powers for judges are to be debated, they will arrange for the Attorney-General to make a statement. If we are told at this stage that the Attorney-General will be here to make a statement and will confirm either that the legal advice that we have received is correct or that the interpretation of the Secretary of State is correct, it would be possible for us to make fairly rapid progress. But if the Government are not prepared to give that undertaking, the traditional response for the Opposition is to delay and to do everything they can to press the Government to produce a statement.
I should have thought that you, Mr. Armstrong, were in a position at least to give the Government the opportunity to facilitate progress by finding out whether they wish to say that the Attorney-General will be here to 908 make a statement on the legal implications of the points raised by my hon. Friend the Member for Copeland (Dr. Cunningham) a few moments ago.

The First Deputy Chairman
I am sure that no hon. Member needs permission from me to make his position clear. It is a matter for the Government whether a statement is made. Fortunately, it is not my job, but anyway I do not need to advise the hon. Gentleman about delaying tactics.

§ Mr. John Heddle (Mid-Staffordshire)
On a point of order, Mr. Armstrong. Is it not right that the Government seek your protection in this regard, and that now is the opportunity for my right hon. Friend the Secretary of State to put right something that the Opposition have ignored for the last four or five years and to bring the rate support grant that is due shortly into line with the law? Further to that, is it not right that if the hon. Gentleman is demanding the presence in the Committee of my right hon. and learned Friend the Attorney-General at least he should have the shadow Attorney-General with him on the Front Bench?

The First Deputy Chairman
As the hon. Gentleman knows, these are not matters for me. We ought to proceed.

§ Mr. Tony Banks (Newham, North-West)
On a point of order, Mr. Armstrong. Can you advise me whether there is a parliamentary precedent whereby a Standing Committee has moved a motion, debated it and voted to request a Government Minister to attend the Committee to give advice? I should like to know whether there is any precedent which would enable us to move a motion, to vote on it and, if we succeeded in getting sufficient votes, to request a Minister or an Officer of the House to come and advise us.

The First Deputy Chairman
All Members of the House are members of the Committee and are entitled to come. Fortunately or unfortunately, I cannot command either their presence or their absence. The matters which have been raised are very important but they are matters for debate and not matters for the Chair. I think we should proceed.