HC Deb 13 June 1989 vol 154 cc782-9
Mr. O'Brien

I beg to move amendment No. 137, in page 5, line 27, at end insert— '(2A) References in this section to a "person" shall be taken to include references to a tribunal of such persons, appointed by the Secretary of State in accordance with subsection (2B) below for the purposes of carrying out functions under this section. (2B) Any tribunal appointed under subsection (2A) above shall comprise a Chairperson, who shall be a person with experience of local government appointed after consultation with the local authority associations, and one representative each of local authorities as employers and of trades unions with members employed in local government grades to which political restriction may apply, or such other representation as the appellant may choose. (2C) Any decision by a tribunal appointed under this section shall be by majority vote.'.

Mr. Deputy Speaker

With this it will be convenient to take amendment No. 152, in page 5, line 42, at end insert— '(3A) Irrespective of any appointment or appointments made in accordance with subsection (3)(a) above, the Secretary of State shall appoint a different person for Scotland than any person appointed for England and for Wales.'.

Mr. O'Brien

What we are suggesting is that, instead of reference to an arbitrator, there should be a tribunal. That would be much fairer. It would be in keeping with what is happening in and around local government. It would be a mirror of what is happening in industry, where, instead of having the one person to act as an arbitrator, there is a tribunal. Therefore, we consider that amendments Nos. 137 and 152 are important.

Mr. Andrew Welsh

This debate is about the system whereby individuals can appeal for exemption from political restrictions. The Government believe that one person only should be appointed to consider applications for exemption. The amendments, by contrast, allow for a proper system of appeal regarding exemption or political restrictions. If it is right that individuals should be able fully and fairly to participate in the democratic political process, it is surely just, correct and essential that a proper system of appeal be instituted. Individuals affected by the legislation must be protected by an appeal system that is, and is seen to be, fair. Unamended, the Government proposal does not ensure that. I therefore support the amendment.

Amendment No. 137 advocates a tribunal system. It also ensures that local government expertise will be available to the tribunal, which is important. There is a mass of expertise available within the Government and it should be used to protect the rights of individuals when those individuals feel that their rights as citizens are under threat.

In the Bill, there are none of those checks and balances which are normally associated with a democracy or any proper appeal system involving any public body. The amendment seeks to give confidence to anyone involved in appealing against a decision and will be seen as such. It will give greater confidence in a system which everyone in local government will rightly treat with caution. The Government's attitude to and record in local government forces caution on every person involved with the local government system. They have good reason to be wary about what the Government are doing by attempting to shackle and hamper the work of democratically elected individuals. People would approach the new system with caution and the new system would allow them at least to have some confidence when they appeal against decisions.

Similarly, amendment No. 152 is essential properly to take into account the fundamental uniqueness of the Scottish local government system. I am glad that the Under-Secretary of State for Scotland is present. I believe that the Scottish local government system has not been adequately catered for throughout the passage of the Bill. Certainly amendment No. 152 would begin the process of taking into account the uniqueness and the differences built into our national system of local government and law. It is not good enough for the Government to take a uniform system suited to Wales and England and apply it without thought or alteration to the very different circumstances of Scottish local government.

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I point out to the Minister the comments of COSLA. It rightly points out that structurally the Scottish system of local government varies widely from the system in England and Wales. Not only is the functional allocation different, but Scottish local government is unique in terms of its system—for example, for islands government. I know of no equivalent in England. There is also a diversity of large and small units of government. There is a massive diversity between one local authority containing half the Scottish population and other small local authorities. A vast range of local authorities with different needs must be taken into account by the Bill. The imbalances far exceed anything to be found in England as, in fact, do the geographical differences between the two nations of Scotland and England.

Local government in Scotland is rightly the responsibility not of the Department of the Environment, but of the Scottish Office and the Secretary of State for Scotland. Hence, regulations, orders and circulars relating to the Scottish aspect and considerations emanating from United Kingdom-wide legislation are produced by the Scottish Office in recognition of that line of responsibility. The amendment seeks to extend that reality in a way that is useful in protecting Scottish local government.

I therefore support the amendments that emanate from the vast and practical experience of COSLA and take proper account of Scotland's individual and unique local government system. I believe that the Government are being short-sighted in their approach and that they will be making an unnecessary and fundamental mistake if they do not accept the amendment. As the Scottish Minister is here to speak for himself, I hope that he will take on board the need to take into account the distinctiveness of the Scottish system and will produce amendments that will allow people to have confidence in the new system as and when it is put into operation should the Bill go through unamended.

Mr. McAllion

I support amendments Nos. 137 and 152. Amendment No. 137 has a much better formulation for adjudication than the Bill. As it stands clause 3 would provide for a single adjudicator to be imposed upon the local authority from the outside by the Secretary of State. I assume that to be the Secretary of State for Scotland, although I am not clear and it might be that the Secretary of State for the Environment would impose that adjudicator on Scottish local authorities.

I believe that the idea of an adjudicating panel which has the confidence of the local authorities and, presumably, the confidence of the Secretary of State, as he would appoint the chairperson, is much better than imposing someone from outside on local authorities. It has the advantage of being much more democratic and of being based on the co-operation of both the local authorities and the employees who work inside the local authorities.

If General Jaruzelski was imposing his will on Solidarity—controlling local authorities—in the same way that the Minister for Local Government is imposing his will on our Labour-controlled local authorities, which side would the Minister be on? If General Jaruzelski had said to Solidarity that he intended his own appointee to impose his will upon Solidarity, with no consultation with Solidarity and with no consultation with the workers, I am sure that the Minister would be singing a different tune. If the Minister chose to stand up and say that, unlike General Jaruzelski, he is elected, that is not correct. In terms of Scottish local government, the Government have no democratic mandate to impose such measures on Scottish local authorities.

Amendment No. 152 tries to provide for a separate Scottish adjudicator and tries to establish that principle in the Bill. I know that its terms are not exactly the same as those set out in amendment No. 137 as amendment No. 152 says: the Secretary of State shall appoint a different person for Scotland than any person appointed for England and Wales.' Amendment No. 137 says that the adjudication would be undertaken by a panel of three. That is just a technical point—all we want is the Minister to agree to the principle. I would be happy if the Minister accepted the principle that the Scottish chair should be appointed by the Secretary of State for Scotland, that the representative of the local authorities would he picked by COSLA and the representatives of the workers picked by the appropriate trade unions.

In Committee, I tried to raise this matter when the Minister said: It will be possible for one adjudicator to adjudicate in England and Wales, and another to adjudicate in Scotland, for one to do the whole lot, or perhaps for there to be three. The Minister therefore said that almost anything was possible. I pressed the Minister about that and asked whether clause 3(3)(a) which says that the Secretary of State may: appoint different persons under subsection (1) above for England and for Wales in any way diminished the right of the Secretary of State for Scotland to appoint people for Scotland? The Minister replied: The hon. Gentleman is perfectly right. It is possible for the same person to be selected by the Secretary of State for Wales and, for instance, the Secretary of State for the Environment. However, we are not discussing that point. That was a complete non-answer and irrelevant to my question. The Minister went on: A reasonable way in which to proceed is for me to give the Committee an undertaking to bring forward an amendment on Report that will clarify more exactly the way in which the adjudication system will work".—[Official Report, Standing Committee G, 7 March 1989; c. 200.] Having studied the amendments that have been tabled tonight, I do not see any Government amendment that clarifies the way in which the adjudication system will work.

It is important for the Government to recognise that there is a separate Scottish dimension to this question which means that we must make separate provision for Scotland. It must be appropriate to Scotland and must not impose on Scotland, through the Secretary of State for the Environment or the Secretary of State for Wales, some kind of adjudicating system.

The case is overwhelmingly in favour of a distinct approach for Scotland. The local government structure in Scotland, with its regional, district and island councils, is different from that of England and Wales. It would make little sense to someone who did not have experience of Scottish local government. When the Labour party wins the next general election, the Scottish Parliament, once established, will immediately institute a further reform of local government that will make local government in Scotland even more obscure for anyone who comes from outwith Scotland and does not understand the Scottish system.

The allocation of functions between district, regional and island councils is different from the allocation of functions in England and Wales. In Scotland we have unique circumstances. Strathclyde council employs a number of staff who deal with the press and handle the public relations of that council. Many of those employees have regular contacts with journalists and several of those who deal with the media earn more than £13,500. I assume that there would be no controversy about whether those people would be placed in the "politically restrictive posts" category. Perhaps the Minister will be able to tell us if that is so. Six other members of the same council department do not have regular contact with the media, but with the public. Two of those people earn more than £13,500 and four do not. How will those four be affected by the Bill? If we do not have a Scottish adjudicator, how will he make sense of the practice of Strathclyde regional council and how will he be able to distinguish between the different categories of officials and decide whether the restrictions should be applied to them?

It does not make sense for the adjudicator not to understand the Scottish system as he runs the risk of making catastrophic errors when deciding to restrict any of the posts. Two of the officers of Strathclyde who do not deal with journalists, but who deal with the public, would have a right of appeal because they earn more than £13,500, but the other four earn less, even though they are doing the same job. The whole thing is a mess, but things would improve if there were a provision for a separate panel of Scottish adjudicators in line with amendment No. 137.

The House already recognises that local government in Scotland is accountable not to the Department of the Environment but to the Scottish Office. That is why the Parliamentary Under-Secretary of State for Scotland is present tonight. If the Government recognise the separateness of Scotland to that extent, they should go further and recognise that Scotland should have a separate adjudication system.

We are not talking about something that will have a marginal effect. Edinburgh district council has calculated that more than 500 officers are likely to be affected by the Bill. Those officers range from administrators to solicitors, the secretariat, the technical service officers, the service engineers, maintenance and repair personnel and even its theatre manager. What happens when that manager decides to stage "Harmony Row", a production by the Scottish Wildcat Theatre company, which is a play against the poll tax? Would the theatre manager be allowed to put on that play which attacks the poll tax, or would he be accused of indulging in political activity under the Bill? Such are the anomalies thrown up by this ridiculous Bill.

The only way in which to make the Bill better is to ensure that at least some kind of Scottish sanity is written into it by ensuring that there is a separate system of Scottish adjudication. I look forward to the Minister's reply.

Mr. Wallace

I support amendments Nos. 137 and 152. Amendment No. 137 calls for a panel of adjudicators and that is justified, otherwise an enormous burden would be placed on one individual. The hon. Member for Dundee, East (Mr. McAllion) has already said that more than 500 employees of Edinburgh district council are likely to be affected by the Bill. For a start, therefore, that means that potentially 500 appeals could be lodged.

In our previous debate, the Minister for Local Government was most reasonable and said that the adjudicator had already predetermined a vast number of cases, not least those affecting manual workers. Many of us would have liked to have seen that predetermination embodied in the Bill. Even if we accept the Minister's word, many people will still wish to take their appeal to the adjudicator. Perhaps the Parliamentary Under-Secretary of State for Scotland can tell us what the adjudicator's view will be of the teaching profession. A number of teachers are councillors in an authority by which they are not employed. I would welcome some reassurance about that.

The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton)

I hope that the hon. Gentleman will accept that they are specifically not included.

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Mr. Wallace

I am very grateful for that reassurance and much relieved by it—[Interruption.] I do not accept that they are all Tories; a good number of our councillors are teachers.

Nevertheless, this would be a tremendous burden to put upon one person. I was going to say that the Government were here creating another quango but that implies an organisation and with one person it would probably be a quan-guy. One wonders how much this person will be paid for carrying out this function, which I foresee as being, in the initial stages at least, a full-time job.

Let us think in simple terms for one moment of what this person is being invited to do. The appointee of the Government is being asked to determine whether individuals may indulge in political activity, some of which, and probably much of which, is in an interest which could well be opposed to the interest of the Government. The appointee of the Secretary of State will be asked to make that fundamental decision, which affects the rights of an individual citizen to participate in the political process. It would have been unthinkable a few years ago to put that into the hands of a Government appointee, but that is what the Government are asking us to do in this Bill.

I therefore support the idea that if this is to be done at all it should be done by an appeals body and not left in the hands of one person. It should be done by a tribunal which reflects the interests of employers, employees and the Secretary of State. Apart from anything else, that would help to share the load. When one is debating fundamental political liberties, there is no reason why a person should be expected to wait a considerable length of time for an appeal to be heard, as would be almost inevitable if the duty were imposed on one individual.

I shall be very brief with regard to amendment No. 152 which asks for a specific person to be appointed for Scotland. It has already been said that Scottish local government is an entirely separate structure. I can see no good reason why we should tag along with what the English and the Welsh are doing. We need someone who understands fully the ins and outs of Scottish local government. For the Government to refuse a quite reasonable amendment such as this would be obduracy at its worst.

I therefore hope that the Under-Secretary of State, who always aims to please, will succeed in doing so in this case.

Lord James Douglas-Hamilton

A number of interesting points have been raised and I will start with the hon. Member for Normanton (Mr. O'Brien), who spoke with enthusiasm about appointing a tribunal. It has always been the Secretary of State's intention that the adjudicator should be a person with suitable experience. We shall most certainly keep an open mind on that matter.

As my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) explained in Committee, we believe that the issues are fairly clear cut. We believe that it is unnecessary to establish a tribunal. I do not see why Opposition Members feel that a tribunal comprising representatives of interested groups and trade unions would serve the necessary purpose. It should be the role of an independent adjudicator alone to consider an application for exemption against a clear statutory framework, but he would be in a quasi-judicial role.

Mr. O'Brien

If the Minister accepts that it is right for the Civil Service to have an appeals tribunal—a tripartite system—why does he insist that local government should not have the same facilities? That is simply the hypocrisy that exists on the Government Benches.

Lord James Douglas-Hamilton

Widdicombe did not make the recommendation which the hon. Member is suggesting and I believe that the circumstances are different. For example, it is not possible for civil servants to stand for Parliament, but it is certainly possible for local authority officials below a certain level to do precisely that.

One of the advantages of having an independent person as compared to a panel is that he would be truly independent and not a representative of interest groups. I do not think it appropriate that trade union representatives should sit in judgment on this question. We do not see this in any sense as a bargaining matter; it is the application of a clear-cut set of criteria determined by Parliament as set out in clause 2(3) of the Bill. The adjudicator will, of course, be expected to act independently and impartially.

The hon. Member for Dundee, East (Mr. McAllion) spoke at considerable length making the case for an adjudicator for Scotland. Indeed, the hon. Member spoke about this in Committee. I accept his argument. I believe that it is right, proper and appropriate that there should be a separate adjudicator for Scotland. He or she will be appointed by the Secretary of State for Scotland under the provisions of clause 3 to serve as the independent exemptions adjudicator for Scotland. So I hope that that amendment will be withdrawn.

I want to deal particularly with the point raised by the hon. Member for Angus, East (Mr. Welsh), who asked a question which he raised a year ago in the Committee which considered the Local Government Bill, about the words "Secretary of State for Scotland". He asked whether, when the Secretary of State is referred to, these words are interchangeable. I quite understand why the provisions in subsection (3)(a) of clause 3 may have led to the supposition that a similar provision may be necessary for Scotland, but an express provision for Scotland not only is unnecessary but would be positively undesirable.

Subsection (3)(a) is intended to avoid any doubt about the power of the Secretary of State for Wales to make a separate appointment in Wales under subsection (1). No such doubt arises in relation to the powers of the Secretary of State for Scotland in this matter, but it might well arise in relation to existing legislation if the amendment were to be made.

It is a well understood convention that in a Great Britain Act dealing with matters such as local government where the Secretary of State has full territorial responsibility, powers conferred on the Secretary of State for Scotland may be exercised separately and, if necessary, differently by him within Scotland. Therefore, it is unnecessary to add an express reference to Scotland and to do so might cast doubt on the many other legislative provisions that are now read in accordance with the convention.

Mr. Wallace

Will the Minister answer my question about how much such a person will be paid? Secondly, does he accept that it is difficult for a person to be seen to be independent if he is appointed by the Secretary of State? Can he give a guarantee that the person will be barred from the same political activities from which the legislation aims to disbar council employees?

Lord James Douglas-Hamilton

I shall certainly give the guarantee for which the hon. Gentleman asks in his last question. The remuneration still has to be worked out.

Mr. McAllion

Will the Minister also give us the assurance that whoever is appointed to the position will not be a defeated Conservative candidate at a previous general election?

Lord James Douglas-Hamilton

The hon. Gentleman can, without any question, expect him to be the best person for the job.

Amendment negatived.

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