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Lords amendment: No. 10, in page 4, line 5, after ("on") insert
("an application for judicial review or")
§ Ms ArmstrongI beg to move, That this House doth agree with the Lords in the said amendment.
§ Ms ArmstrongThe amendments reflect concerns raised by the hon. Member for Sutton and Cheam (Mr. Burstow) in Committee, as well as in outside consultation. They have two effects. They expressly give a court a discretion in judicial review, as well as in audit review, to determine that a certified contract shall have effect as if the local authority had had power to enter into it and had exercised that power properly. They also require the court, in considering how to exercise that discretion, to have regard to two matters. The court would have to consider the likely consequences of a decision to 814 set the contract aside, first, for the authority's financial position and, secondly, for the provision of services to the public.
It is important that where a certified contract is challenged in judicial review or by the auditor, the court shall have a clear discretion to allow the contract to continue if, after weighing up all conflicting interests and taking account of all relevant circumstances, it feels that, on balance, that would be in the wider interests, financial and otherwise, of the local community.
§ Mr. Paul Burstow (Sutton and Cheam)I thank the Minister for considering the discussions in Committee and on Report in which I raised the matter and which led to the amendment. It is important that the courts can have regard for the consequences for council tax payers and for the finances of the local authority, but I ask the Minister to assure the House that the Bill does not preclude the courts from considering the impact of discharge terms. Having read the debate in the other place, especially in Committee, I was struck by the remarks of the Lord Donaldson, who said:
I just do not know whether a court could set aside discharge terms."—[Official Report, House of Lords, 21 October 1997; Vol. 582, c. 629.]Can the Minister say whether the Bill would prevent a court setting aside discharge terms? That goes to the heart of the matter that I raised. It would help the House to have an assurance on that basis.
§ Ms ArmstrongAs we are in the final stages of the Bill, I want to make sure that I get this absolutely right.
If the discharge terms are set aside, the repudiation terms apply, as set out in clause 7. In other words, if the judge is not satisfied that the discharge terms are not proper discharge terms, he can apply clause 7, the repudiation terms.
§ Lords amendment agreed to.
§ Lords amendments Nos. 11 and 12 agreed to.