§ 11.33 a.m.
§ Lord Elton
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Lord Elton.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
Baroness Birk moved Amendment No. 140AA:
Before Clause 87, insert the following new clause:
§ ("London Housing:
§ .—(1) The Secretary of State shall by order taking effect on the abolition date vest in the London Residuary Body the following functions, properties, rights and liabilities—
- (a) rights and liabilities of the Greater London Council under orders made under section 23 of the London Government Act 1963 (transfer of land held for housing purposes), including liabilities for the meeting of revenue deficits and for the carrying out of works of modernisation, rehabilitation and improvement of transferred property and works to such property arising from major technical causes and rights of that Council to nominate tenants to housing accommodation transferred under the said section 23 to the councils of the London boroughs;
- (b) rights to nominate tenants to housing accommodation outside Greater London owned immediately before the abolition date by the Greater London Council and known as "Seaside and Country Homes";
- (c) the functions of that Council under section 22 of the London Government Act 1963 as regards the provision of facilities for the exchange of housing accommodation and any facilities of that Council in connection with the Mutual Exchange Scheme operated by it under that provision; and
- (d) the functions of that Council with respect to Housing Action Areas declared by it under Part IV of the Housing Act 1974 and General Improvement Areas declared by it under Part II of the Housing Act 1969 and which have not ceased to be such areas by the abolition date.
§ (2) The Council of a London borough may, at any time after the abolition date, make application to the Secretary of State for the transfer by him, by order, to that council of the liabilities mentioned in subsection (1)(a) above for the carrying out of works, with respect to housing accommodation owned by that council.
§ (3) The Secretary of State shall make an order pursuant to subsection (2) above if he is satisfied that the borough council making application to him under subsection (2) above intends to complete the programme of works made by the Greater London Council in discharge of its liabilities under any orders made under the said section 23 with respect to housing accommodation owned by that borough council and that that borough council is able to complete that programme.")
§ The noble Baroness said: At least we are ending the first round of this Bill and will have a chance to refresh ourselves before we come back on Report for the second round. This amendment is concerned with housing and the GLC. Throughout the passage of the Bill the Government have insisted—and this was when it was raised in another place—that they have no housing role, Nevertheless, they currently run the largest housing programme in the country, since the Government give the GLC large capital allocations in order to reflect the substantial strategy obligations imposed on the GLC by the Government as set out in 1981. This amendment deals with genuine residuary housing functions of the GLC which are not properly dealt with in the Bill. If there is any doubt about the propriety of giving these functions to the residuary body, noble Lords should not be worried and can be completely reassured in knowing that in a number of cases the Government have already decided to do just that.
§ Although the Government have argued that the boroughs can take on the housing functions of the GLC, they are understandably having difficulty—here I mean the Government and not the GLC—in handing responsibility to the boroughs. This is illustrated by the over 55,000 housing mortgages which are going to the residuary body; the management and distribution of capital receipts, which is going to the residuary body; warranties on houses sold by the GLC; some housing deficit payments; and even the new town at Thamesmead for an unspecified period. These are all to pass to the residuary body.
§ The issue before us today is how many more housing functions should go to that body for the time being. Subsections (1)(a), (2) and (3) of the amendment deal with the functions imposed on the GLC when it transferred its council houses to the boroughs a few years ago. First, it was to improve and repair those homes to modern standards. This amendment deals with the problem created by the Bill; namely, that the guarantee given to tenants that estates would be renovated is rendered null and void because the body charged with the responsibility—that is to say the GLC—is to be abolished.
§ In the first place, had they known that this Bill was to throw that responsibility back on to them, I doubt whether many of the boroughs would have been so ready to take on such a burden, and the programme of work is therefore threatened with great disruption if it is forced upon them from next April. In what can only 409 be a recognition of this, the Minister for Local Government in another place has already suggested that it might be necessary to keep GLC improvement teams in the residuary bodies. The tenants feel cheated because the boroughs would be under no obligation to do anything to rectify the appalling conditions in which many of them are living. There will be no statutory obligation on them, and if they feel that other things have greater priority in the housing field, then they are perfectly at liberty to spend whatever money they have on that.
§ May I take one example? In one of the poorest boroughs in London, the borough of Southwark, in the constituency of my honourable friend the Member for Peckham, there is the Willowbrook Estate. This was a pleasant place when it was built 20 years ago, and people were pleased to live and bring up their families there. Now the window frames of these houses are rotting, the window panes are falling out, and when workmen went to repair these windows they discovered that the whole estate was riddled with asbestos.
§ The council has closed the public lavatory on the estate because it says that the presence of asbestos makes it dangerous. Yet people are continuing to live in houses which are also asbestos infected, which is extremely worrying and makes a curious contrast with closing the lavatory. There are a number of other examples not only from Southwark and Peckham, but from all over London. However, I shall not weary the Committee with them.
§ The GLC was in any case intending to finish its renovation programme by 1992. The great majority of work would therefore be completed by the residuary body before it is wound up, and if necessary boroughs could then pick up the tail-end of the work. But the bulk of it, the important part which is so essential, would have been done. The amendment allows boroughs to take over the programme before then if they so wish. The amendment would pass the renovation function to the London residuary body since this is a programme which is going to be over a finite period and the residuary body is the appropriate place for it.
§ Under the transfer agreement which transferred 200,000 GLC homes to the London boroughs the GLC had to pay from the rates any financial shortfall on the transferred houses. Boroughs were assured at the time that they would not lose out financially. Some of these payments are already destined to be paid by the residuary body and the amendment provides that this should apply to all of them and that this burden should not fall on the tenants or ratepayers of the boroughs who would be the people who would suffer immediately.
§ The third major duty under the transfer orders was to run a housing mobility scheme—that is in subsection (1)(a)—to allow council tenants and others to move easily from one part of London to another. The Government have already conceded that this vital scheme must be run centrally by proposing that it pass to the Secretary of State himself. He would delegate the running of it to the national mobility office. But this is really a tiny body which deals with a very small 410 number of voluntary exchanges. As I understand it, it has two rooms at County Hall, in the GLC building, but otherwise it is not equipped to undertake work of this kind. The body has no special interest in London and no experience of running such a scheme. The GLC's duty is finite, as it ends in 1990, and there again there is every reason why this function should pass to the residuary body for this short transitional period.
§ Subsection (1)(b) of the amendment refers to the 3,400 seaside and country homes built by the GLC outside London especially to enable elderly Londoners to retire to the country. The Government have already conceded that on abolition Londoners must still have access to them and that the scheme can sensibly be run only centrally. The question is: where will it he run from? The Government propose, as with the mobility scheme, that it should pass to the Secretary of State to be run by the national mobility office. But as we have seen, and as I have pointed out, that body has no experience of allocating homes, let alone in a scheme such as this, which requires close contact with tenants and knowledge of the whole subject. Again, it must be run by a body with a specifically London interest and its close links with the mobility scheme surely demand that the two should be handled together by the only possible body at the moment, the residuary body.
§ The same applies to the mutual exchange scheme dealt with in subsection (1)(c) of the amendment. This allows tenants to do a direct swap of their homes, and about 2,000 do so every year. As it stands, the Bill scraps this altogether. In common with seaside and country homes, it is an on-going scheme and if it were referred to the residuary body, it would not die out as it is likely to under the Bill as drafted, but would help towards finding a more appropriate and permanent solution than the one proposed by the Government. The idea of tenants swapping homes is an important factor in the mobility of labour. It should be encouraged and not run down as it will be if it is not dealt with in the way I am suggesting.
§ Finally, subsection (1)(d) deals with the GLC's remaining functions in housing action areas and general improvement areas. These are areas of decaying public sector housing which the GLC is upgrading through a programme of renovation grants. It is an important factor of its work. This special treatment would have ended anyway in 1991; it was due to finish then. However, some of the schemes will be only half completed on abolition and the boroughs will be asked to take them on. I fear that there will be a halt to what is happening at present. The boroughs asked the GLC to step in in the first place because they did not have the resources to do the work. Some of the schemes would have to be terminated; residents living in appalling conditions would have their hopes of home improvement dashed. Builders' expectations would be ruined, and I should remind the Committee in passing that all this would affect the construction industry, too. These are finite duties and in the interest of continuity and the residents they should pass for this short period of time to the residuary body.
§ With 25,000 families homeless in London up to last year and one home in four in a physically unsatisfactory condition boroughs are already stretched to breaking point in trying to cope with London's housing problems. We cannot afford to add 411 to their difficulties by immediately imposing new responsibilities which they are not yet ready to discharge. That could result in the total ruin of many of the estates and a number of individual houses, and there is also the possibility of increasing the number of homeless.
§ The amendment seeks to ensure that major promises made to the boroughs just a few years ago are kept and that abolition causes the minimum of disruption to the residual GLC housing functions. In the interests of continuity and of the residents this duty should pass for that short period to the residuary body. I beg to move.
§ 11.45 a.m.
§ Lord Campbell of Alloway
In moving the amendment the noble Baroness, Lady Birk, raises an important problem which warrants further consideration. Briefly, at the moment the Secretary of State can transfer land held for housing to the boroughs from the GLC. Under an existing Order in Council there is a duty on the boroughs on receipt of the property to bring it up to standard by 1992. This is under contract between the boroughs and the GLC. As the noble Baroness, Lady Birk, has explained, this situation is not wholly satisfactory. But under the Bill land and buildings go to the boroughs, save in exceptional circumstances; for example, fire stations and so forth. The duty which exists at the moment under the contract disappears. As the noble Baroness, Lady Birk, put it, it is scrapped. This renders the situation even less satisfactory. What has to be done is either to extend the life span of the London residuary body in order to enforce such duties as and when appropriate—and that is unacceptable to the Government, as I understand it—or to find some other means of administration, as there is a gap. Although on a Division I would oppose the amendment, my personal hope is that my noble friend the Minister can take this problem on board.
§ Lord Harmar-Nicholls
Most of the points made by the noble Baroness had not much validity. Clause 87 answers most of the points she made. But I agree with my noble friend the one point that the contract to ensure that the houses are repaired will not continue in existence if the Bill stands as it is. If it was felt desirable—and I should have thought that it was desirable—to try to ensure that property is brought up to a proper standard by 1992, as the noble Baroness has said, some way must be found to do this. We should perpetuate the arrangement.
I have been considering this matter and have discussed it with my noble friend. I wonder whether this is not a case where the Minister's powers ought properly to be brought into effect. It is possible that the Minister would not be able to extend the existing contract, but I do not see why, when the properties are handed back to the boroughs, he could not arrange for someone to enter into a new agreement, which would have the same effect as the existing contract.
At the present time there is a statutory need to see that these properties are put in order by 1992. That is removed by the Bill as it now stands, as I understand it. If we believe that what is in the statute is right, 412 cannot the Minister enter into a new agreement when the individual boroughs get their properties back which would bring into effect the same need to see that the work is done? That would get over the fact that the statutory need would be removed but it could be replaced by something equally effective.
My noble friend has perhaps given a good deal of thought to this but I see the importance of it because housing is a very personal matter and the strength of the Bill will rise or fall by people's emotional reaction to it. If the Minister has not a clear answer for this gap it could well be that he would find it sensible to take it back until we get to Report stage to see whether he can find some way of filling in this gap, which I think it is essential to cover.
§ Lord Plummer of St. Marylebone
During the course of this Bill Ministers have on numerous occasions referred to the transfer of the GLC's housing stock of a few years ago as proof that the GLC no longer has a role in housing, but in reality it still has a wide range of housing functions. It has lost virtually no housing powers and, as the noble Baroness, Lady Birk, has already mentioned, it still handles the largest capital housing programme in the country. I must point out that to a large degree these programmes are carried out in pursuit of new responsibilities imposed on the Greater London Council in the early 1980s as part of the order transferring its homes to the boroughs.
I have always believed that most housing responsibilities should be handled by the London boroughs. Indeed, I started this programme of devolvement, in the face, I may say, of fierce borough opposition in many cases when I was leader of the GLC. But there are certain public housing activities which I think must be handled centrally. I cannot stress too strongly that housing in Greater London is a huge and extremely complicated matter and represents a deteriorating situation over large areas of the capital. Only those of us such as, for instance, the noble Baroness, Lady Denington, who has been concerned in this as I have, know the extent and depth of people's desperate need.
A debate on this clause on the last morning before the Recess does not really do justice to the importance of finding the right administrative solution to an enormous human problem which is affecting tens of thousands of people in the capital. I hope, as has been suggested already by my noble friend Lord Harmar-Nicholls, and I think by my noble friend Lord Campbell of Alloway, that the Government will be prepared to consider carefully the merits of this new clause which attempts to find the best method without impairing the main thrust of the Government's intentions.
Whether or not one accepts the case for a London-wide housing authority, the current proposals in the Bill do not represent a satisfactory way of winding up the GLC's housing role as the Government have been forced to distribute functions to a wide range of different bodies. I am afraid this promises to create confusion and considerable disruption as I find there is a wide ignorance of the size of the upheaval in Greater London. At the risk of speaking too long I should like to give some idea of the complications involved. I 413 would briefly mention that the boroughs are to assume responsibility for major capital programmes: renovation work to transferred housing, renovation grants to private owners in statutory improvement areas and the funding of housing associations. The Greater London mobility scheme and the seaside country homes scheme are to pass to the Secretary of State himself, with delegation likely to the national mobility office, whatever that may be—a semi-quango.
Thamesmead, as the noble Baroness, Lady Birk, has mentioned, is to pass to a residuary body and eventually, I understand, to a private trust yet to be arranged. Fifty-five thousand mortgages, the management and distribution of capital receipts, warranties on houses sold by th GLC and some deficit payments towards transferred housing are to pass to the residuary body permanently. In addition, the GLC's responsibilities for housing research and for catering for the single homeless are to be transferred to collective or mandatory arrangements between boroughs under, I believe, Clauses 86 and 47 respectively.
All this has to be done by 1st April 1986, without first having a commission to inquire into the problems involved. It is quite clear that the GLC's residual responsibilities flowing directly from the transfer of its remaining housing properties to the London boroughs will be immense. The previous transfer was, to say the least, a complicated business both legally and adminstratively. The principal reason for this was that the boroughs were concerned that in accepting transfer they would be saddled with a housing stock which needed a great deal of attention and which was the subject of a heavy subsidy from the rates. They were concerned that if they took transfer the GLC should retain responsibility for renovating the housing stock and for any payments necessary from the rates.
After negotiations from 1977 to 1981 between the Conservative GLC, the Conservative Government and the boroughs, most boroughs agreed to accept the transfer on the understanding that the conditions would be written into the transfer orders, which they were. Eight Labour boroughs refused to accept transfer and homes were transferred to them compulsorily by order in 1982. They received better terms than the voluntary boroughs in that the GLC was to bring the homes up to standard wihin 10 years. Subsequently the GLC adopted the 1992 deadline for all boroughs. Your Lordships will see that the figures involved are very big indeed in that the total repair bill on the transferred stock is over £1,000 million and this is why the GLC still has the largest housing programme in the country.
The noble Lord, Lord Harmar-Nicholls, referred to the fact that the boroughs have been assured by the Government that they would not have to shoulder this burden of renovation and that they are naturally concerned that from April 1986 this burden is to be put upon them without any guarantees from Government over the level of resources to be made available to enable them to discharge this huge amount. The new clause which we have before us 414 proposes that in order to retain the mandatory nature of the programme and to avoid the disruption that will inevitably accompany a rapid transfer of responsibility with such a large programme to individual boroughs, the GLC's liability should pass to the residuary body. As the noble Baroness, Lady Birk, mentioned, this would allow the GLC's specialist teams in renovation work to stay together, and if at any stage subsequently a borough wished to assume responsibility for the programme it could apply to the Secretary of State for the making of an appropriate order. That is how I understand it. One is tempted to use the word "catalyst" again, or, at least, shall we call it a temporary resting place, where hard-pressed officials can get their breaths back.
The last housing function dealt with in the new clause concerns statutory improvement areas declared by the GLC in various parts of inner London. By intensive staff inputs and a programme of renovation grants, the GLC attempts to reverse the process of deterioration which has set in in areas of predominantly private sector housing, largely as a result, I think, of the effects of the Rent Restriction Acts. Although boroughs are to be asked to take on these areas, they are not assured any additional funding to allow them to do it. The areas have a very limited life, usually no longer than five years, and it would avoid disruption and allay anxieties of the residents in these wretched buildings if they were to pass to the residuary body for the rest of their life.
My noble friend Lord Campbell of Alloway has referred to a gap; and I agree with him that there is a gap. I am sure that the Government are just as concerned about housing and housing conditions as I am, as I am sure are we all. There is a need for flexibility in the proposed arrangements to meet the special needs of London.
§ Lord Stallard
I was almost tempted to apologise for intervening in this debate on the last day but I am going to resist the temptation because I believe that this debate is the most important that we have had for many sittings on this Bill. Clause 87, tucked away as it is under "Miscellaneous Provisions", in the minds of thousands of people deals with the most important and most sensitive area of the abolition of the GLC in the whole Bill. I find myself in agreement with the noble Lord, Lord Harmar-Nicholls, in some respects; also with the noble Lord, Lord Campbell of Alloway, and certainly with the noble Lord, Lord Plummer, who, in a few minutes, has given us much of the information that was necessary to understand what is happening in Clause 87. I think that he has taken a constructive and courageous stand throughout the Bill in trying to put these issues in front of the Government in order that they may be dealt with.
It has been said on a number of occasions that some of these debates produce almost Second Reading speeches. I can understand it because the topic is so wide and huge. Each aspect could be the subject of a separate debate with separate legislation; so that it is not surprising that Members feel that they have to say perhaps more than would normally be said on an amendment. It was the noble Lord, Lord Plummer, who tried to give us some idea of the size of the problem. I can remember this because I was a member 415 of a local authority in London for over 25 years. I was a member of one of the local authorities that he mentioned and which resisted the transfer. In fact, the local authority of which I was a member—and at one stage my noble friend Lady Denington was a member—resisted any interference at all from the LCC in housing affairs. We could not afford it and there were also complications. I was certainly aware of the hardship and the problems that were being caused by the original transfer mentioned by Lord Plummer. As he said, on the question of transfer eight boroughs got slightly more advantageous conditions than did the others. This has now been accepted by the GLC for all of them.
That is a huge problem and it has not got any easier. If anything, it has got worse; so that the GLC's role, far from being ineffective in housing, is probably far more involved than it has been for a long time and ought to be more involved still in the minds of those of us who support this amendment.
If I may add one or two statistics in regard to the London housing scene, we are talking in terms of a problem in London where half a million Londoners in 240,000 households are awaiting local authority housing. That is the size of the waiting lists that we know of in the London area: a quarter of a million people in 115,000 households are awaiting transfer. It is the subject of transfer which is so important in the commitments that were given by a previous Government. There are 692,000 unsatisfactory dwellings in the London area and no borough alone can handle that—certainly not the boroughs that are going to be most affected—unless we can get those assurances which noble Lords have spoken about so far. Unless we get adequate assurances written into the Bill that the commitments already undertaken by a previous Secretary of State can be continued, then the boroughs which will be most affected are the Islingtons, the Hackneys, the Lambeths, the Brixtons and Camdens and so on—the boroughs least able to cope with the kind of problems that exist in this field. As I have said, there are 692,000 unsatisfactory dwellings.
These figures represent 20 per cent. of the whole nation's stock, England and Wales combined. London has 20 per cent. of all of the problems of the whole nation in that area. There are 22,300 on the accepted homeless list in London. That is less than half the actual homeless but is still a huge figure; and 22,000 are accepted under exisiting legislation as being officially homeless. Only the GLC, only a London-wide authority, can tackle this problem. No one borough can deal with the problems of homelessness that probably are nothing to do with their own borough anyway. The people involved come from all over Europe and, certainly, all over England, Wales, Scotland and Ireland, into London. Only an overall authority could deal with these problems. Certainly, as far as the homeless are concerned, there is no body other than the GLC which is capable, has the resources and the expertise to deal with those problems.
I am very much aware, too, that the Association of London Housing Directors, who have had a number of meetings on this and who have expressed grave concern, are very worried that these commitments to 416 transfer and to resource the programme which is still going on, willl now disappear. Some of this programme is going on in my own London Borough of Camden. It has been a tremendous job, first, to empty the properties, because, as fast as they are emptied, they get squatters and other people who move in and the problem gets worse. I can say without fear of contradiction that no London borough could cope with that situation by itself unless it had a massive injection of resources.
We need the GLC and we need this amendment to make sure that the commitments undertaken by that previous Secretary of State will be continued and that some way will be found, as the noble Lords, Lord Harmar-Nicholls and Lord Plummer, have said, to write into this Bill (because we do not want anything which is not understood), a commitment or recommitment to those resources and finances and everything else that is needed, so that this housing programme can continue.
§ Baroness Denington
I wish to speak before the Minister rises because I hope that, whatever he thought he was going to say, he will realise that this amendment is a friendly amendment. It is not an anti-Government amendment at all and was never intended as such. It is an amendment that has been put down entirely in order to help to save a situation that those of us like the noble Lord, Lord Plummer, and others in the Committee who know the situation in London very intimately, can foresee. A terrible situation could arise unless the Government accept the amendment, or at least accept it broadly and go along with it. That is really what we are asking for. I listened with great interest to Lord Plummer's speech and I will do my utmost not to go over it. I will try to select from the speech that I had prepared so as not to cover again the themes that he has covered.
I should like first to refer to paragraphs (b) and (c) which deal with the mobility scheme. The other day I went over to County Hall and saw the marvellous new computer which came into operation on 1st April this year, only a few weeks ago. It is a computer that it was agreed between the boroughs and the GLC two years ago should be designed by GLC specialists. The purpose was to deal with all the mutual exchanges, the GLC housing waiting lists and so on. I saw the computer in operation. It is a miracle and will really expedite all these arrangements for getting tenants transferred and settling them into now homes. It is incredible in action. A button is pressed. One sees the particulars of the person who wants to move; one presses another button and the computer flashes up all the possibilites that are available; it might be only one, it might be none, three or six. But there it is, and the matter can be proceeded with very quickly.
Here we have available this computer, with this team working on it. That set-up cannot be broken up. To put it with the national mobility office—that is where I gather it is to be placed, although I may not be correct—to me would be like putting the operator of the Hythe to Dymchurch little train service in charge of the national railway network. It is that kind of comparison. I think they ought to be kept as two separate units, transitionally, until the Minister finds some answer, but transitionally, unless an answer is found before, in the residual body—where else? 417 However, I urge that this marvellous computer set-up really must not be broken up.
Regarding paragraph (d), which refers to the general improvement areas, I would stress that the GLC undertook to deal with those improvement areas entirely at the request of Tower Hamlets. That borough is so overwhelmed with is own problems. It had these terrible areas to be dealt with, and so asked the GLC to undertake the improvements. The GLC are doing that, and surely they must be allowed to complete the task, with the teams who have worked on it. I have been over these areas too. The team know all the tenants by their Christian names. They have the confidence and co-operation of the tenants, and to stop that operation in mid-flow would be an absolute tragedy for the people who live there. Nobody wants that to happen.
That takes me to the main burden of this debate which is the question of the repair, renewal and modernisation of the transferred dwellings. Here is a borough, Tower Hamlets, which already cannot deal with its problem. In July this year there were 30,000 dwellings, some of which are in a deplorable state and will have to be dealt with. The Ministers in the other place have given absolute undertakings that these difficulties will be dealt with and dealt with by the GLC, which has now already embarked on this programme for the boroughs.
The point is that the GLC has its teams of experts in all the disciplines and it has scientific researchers. They are working on the terrible problems that arise and some answers are not yet known; but the answers are gradually being learned by the GLC. There is the problem of the high-rise blocks, slab blocks of variable construction, most of which were built in the 'sixties and are sufferng from all kinds of ills. To break up this team and not allow it to go on and finish the job it is doing would be a tragedy for London and for the tenants who are involved. The tenants are looking forward at last to having some relief from damp penetration problems or condensation difficulties that arise from these concrete structures, and from the various kinds of consequent ill health from which they suffer. And they really are suffering a very great deal. I have seen some of these estates and, as one who in the past has been proud of public housing, I must say that I felt ashamed at what I saw. I do not like to admit that, but I felt ashamed. They are not places where people ought to be asked to live until they are put right.
I should like to give just one or two figures, if I may. The boroughs I am most concerned about—as I am sure the noble Lord, Lord Plummer, is too, as well as others who understand the problem—are the inner London boroughs, which also have terrible social difficulties in addition to the housing problems. In a way, they interlock, but not entirely. Frankly, some of these boroughs are not coping now, or they are not coping in a way that an authority ought to be able to cope: I live in one that does not cope. Hackney, for instance, is going to receive over 18,000 dwellings; Lambeth is going to receive over 15,000 dwellings; and Southwark nearly 24,000. That is on top of their present problems. Lewisham will have something like 418 13,500 dwellings; Barking and Dagenham—right up there—will have 12,500. It is really asking too much.
The team of experts who are discovering the answers to the problems and learning how to deal with these things are able to transfer the knowledge that they have gained from borough to borough. Unless they are kept together and can really get on with this job it will be a tragedy. Of course, some borough which might not have too much of a problem might like to take it on; but it will be a tragedy if the team is not kept together. I am sure that no one in this Committee wants that to happen, and I am perfectly certain that the Government would be very shattered if it happened. So we are asking the Government either to accept the new clause or the principle of it, and then we shall be happy and reassured.
§ Lord Elton
I should like to start by saying something which I think must be obvious to your Lordships but which is not always taken for granted: that is, that concern over the housing of people in London is of equal intensity on both sides of the Chamber and at both Dispatch Boxes. But what we have to consider is how that concern can best operate, and so this is not an auction between the two sides to say, "I care more than you do", and, "No, I care more than you." It is a discussion about the best way to frame the law for the purposes about which we all agree. Compassion is needed; but compassion, to be of use, must be accurately informed and effectively deployed.
May I say, almost as an aside, to the noble Lord, Lord Stallard, who said much of great pertinence to the debate, that when he raises the question of homelessness, for the purposes of homelessness legislation the Greater London Council has no duty to find accommodation. The whole of that duty already rests on the boroughs. I can reassure him on that point and go on to the main theme.
The effects of the amendment now before your Lordships can be briefly described—and I should describe them—as follows. Under subsection (1), the Secretary of State would be required to transfer to the London residuary body a number of rights, duties and functions. These would include, under paragraph (a), rights conferred and liabilities imposed upon the GLC by orders made under Section 23 of the London Government Act 1963. I should remind your Lordships that that section is the section of the London Government Act which enabled the Minister for Housing among other things to transfer housing accommodation from the GLC to individual London boroughs, to make financial adjustments in recognition of that transfer, and to make other conditions.
The Committee will know that the GLC did not enjoy the reputation of being the best landlord and that much of its property was in a dilapidated state when it was transferred. One of the conditions that the boroughs insisted on, therefore, was that the GLC should still be responsible for bringing the property up to a reasonable standard even after the transfer. That condition has not yet been discharged. A great deal of the property is still in an unsatisfactory state, as noble Lords and Baronesses have made quite clear. One of the things about which the noble Lords opposite are 419 concerned is, who will provide the money to do the job that the GLC has neglected?
The other matters to be transferred from the GLC to the boroughs under subsection (1) are listed under the remaining paragraphs of the subsection. First, under paragraph (b) they are the "rights to nominate tenants" to what we have come to know as the GLC "Seaside and Country Homes"; under paragraph (c) the operation of the Mutual Exchange bureau for council housing swaps; under paragraph (d) the functions under Part IV of the Housing Act 1974 and Part II of the Housing Act 1969. Broadly speaking, this means the power to give grants in statutory improvement areas declared by the GLC. Subsection (2) of the new clause relates only to subsection (1)(a) and is addressed to the chief concern I mentioned when I was talking about that paragraph and on which most of your Lordships have concentrated in your speeches: the concern about the means of repairing property transferred from the GLC in a state of dilapidation and bringing it up to standard. The duty to do that work at present rest upon the GLC. It rests there properly because it was they who failed to keep the public asset in good repair. The first part of the amendment proposes that that duty should pass, at abolition, to the London residuary body. In this subsection the amendment further proposes that a borough which has received any of this transferred property shall be able to apply to the Secretary of State to have this liability—that is to say, the liability to restore the housing to good condition—transferred on again from the LRB to itself.
Under subsection (3) the Secretary of State would be required to discover—not necessarily an easy thing to do—whether it was the intention of the borough to complete the programme or works made under the GLC under its Section 23 liability. If they did, he would be required to make the transfer.
I think my noble friend Lord Plummer mentioned that the liability was actually contained in a specific commitment to carry out repairs by 1992 in the case of transfer orders to only eight boroughs. The GLC has adopted that date for all transferred stock, but the liability, as I understand it, is limited to those boroughs. If I am wrong in saying that, I shall be corrected.
The first result of the transfer for which the borough can volunteer would be that the borough council would be given a duty to itself to repair its own property. Duties of one party to another are common in law and known to law and can be enforced in the law. The first difficulty which I see in this amendment may not be as pettifogging as at first it seems, because, even if the law knows the duties of a single party to itself, I cannot immediately see how it could proceed against that party if it was in breach of that duty, nor upon whose motion any case might be brought. There may be a way round this difficulty and I am grateful to my noble friend Lord Harmar-Nicholls for suggesting one.
My first reaction to his suggestion that the obligation should be transferred not to be borough but to the Secretary of State is that I am not certain that it would be possible to do so because the department of which he is head is not a housing authority. But I undertake 420 to take that away and consider it before Report stage, without a commitment, as I say, because I am not at all certain that it would be possible to accommodate him in that way.
No matter how much care has gone into the drafting of the amendment I recall from my days in Opposition that it is very irritating when Ministers look at it too closely. What one wants to test and advocate is not the structure of the amendment but its content; not the vehicle but its passengers. The essential content of its amendment is anxiety about the inherited liability for repairs by the GLC. I shall return to that in a minute, but the first difficulty I have spotted seems to be more than a drafting matter. It concerns the practical mechanics of what is proposed and, since we are all after the same thing, the mechanics matter. I do not think that giving both ends of the liability to repair the stock to the same body is one that would work. But that brings me to my next difficulty.
This is not, strictly speaking, only a drafting matter either. Subsections (2) and (3) attempt a means of limiting the duration of the residuary body's role in time. It is an uncertain means because it will only operate if every borough decides to operate it. Even if they did, which is doubtful and even if it worked, which is more doubtful still, it would only operate on the functions given to the residuary body under subsection (1)(a).
There are the three other sets of functions that I described to your Lordships in (1)(b), (c) and (d). With those the LRB is lumbered, it seems, for keeps. Unless the noble Lords opposite have proposals to make for the long term—and indeed they may have—this would seem to me to put this amendment out of court in any case because your Lordships have established that it is not for this Committee to give to the residuary bodies, which are temporary, an enduring function with no proposals for its replacement. That is a matter of principal and unless it could be got right then no matter how friendly one is to the ideas of this amendment one could not possibly accept it.
Everything critical that I have said so far has been by way of criticism of the structure of the amendment but it is, as I say, a vehicle—a motor car—in which the noble Baronesses and others want certain passengers to drive away from abolition. Let us therefore first of all see who those passengers are. In the front seat in (1)(a), we have the GLC's rights and liabilities under Section 23 which relate to transferred property. In (1)(b) is the right to nominate to tenancies. In the back seats are the council house mobility scheme and grants and aid for housing improvement areas.
If I may start at the back, we come first to the housing improvement areas. I think your Lordships should know that, under the Bill as drafted, Clause 95 will have the effect of giving direct to the boroughs the options that are now open to the GLC. That is to say that they are able to retain the statutory improvement areas that have already been declared or to terminate them, or indeed to declare others. Many boroughs have declared statutory improvement areas of their own already and run them very well. There is both experience and motivation at the borough level and I suggest to your Lordships that that is the proper level at which the responsibility should rest. For this 421 passenger I think the car is not so much heading in the wrong direction as being a vehicle in which the passenger should not be at all.
In the next seat we find the Mutual Exchange Scheme. I readily endorse what has been said in support of this admirable scheme. The Mutual Exchange is an extremely sensible arrangement and greatly appreciated by council tenants. We have already accepted that mobility is one case where London-wide statutory arrangements may be desirable. We have undertaken that such arrangements will be preserved; and that is in part again an answer to this amendment.
Subsection (2)(a) of the existing Clause 87 enables my right honourable friend the Secretary of State for the Environment by order to establish at abolition nomination rights to lettings in the transferred stock corresponding to those held by the GLC. Subsection (2) (b) of that clause relates to other nomination rights held by the GLC—perhaps to lettings arising in housing association schemes, for example—which run with the existing Greater London mobility scheme. We intend that the authorities concerned with the scheme shall have a say in its operation and its future developments. That is why on 17th May we invited their representatives on the national mobility steering committee to establish a working party for that purpose. We intend that, wherever possible the operation of the scheme should proceed by consensus; and, again, I am certain that that is something which your Lordships would want.
Subject to further consultation, we feel that after abolition the scheme should be handled by the national mobility steering committee, which might form a London sub-committee comprising representatives of the GLC boroughs, the districts and the department. Formally, the nomination rights would be vested in my right honourable friend under subsection (2)(a) of Clause 87, as has been pointed out, but he would then delegate them under subsection (3). The steering committee comprises representatives from all the associations of housing authorities throughout the United Kingdom, and I hope your Lordships will not feel that it has been belittled in earlier exchanges. It is concerned with the operation of the national mobility scheme and has recently agreed to become responsible for the tenants' exchange scheme from 1st July 1985. Through the success of the NMS, it has established itself as a potent force for the promotion of mobility generally and I think that this is an appropriate function.
Our proposals for the NMSC to handle both the national scheme and the London schemes after abolition will present real benefits in allowing these schemes to be handled under one umbrella. These benefits would clearly, if your Lordships decided that in London these responsibilities should pass to the London residuary body, be lost. I have already mentioned that it is in any case a temporary body and there is no permanent home for it. It therefore follows that the car is going in the wrong direction for that passenger. As to the question of the collection of information, the computer and so on, I would remind your Lordships that we put a clause into the Bill—new 422 Clause 86—on Tuesday night which provides the way of preserving that.
Moving to the front seat, because I think that the back seat should now be vacated, we come to seaside homes for the elderly. The amendment is concerned only with nominations, but I think your Lordships' concern may go a little further. I am therefore glad to assure your Lordships that we recognise the value and importance of the scheme to London's elderly and the strength of feeling among tenants and applicants. We have made a number of major proposals which my honourable friend the Parliamentary Under-Secretary for the Environment announced on 15th November.
First, we have decided to make financial arrangements which will allow existing levels of rents and expenditure on management and maintenance to be maintained on abolition. Some four-fifths of the homes are already managed locally by district councils under agency arrangements. Secondly, we have agreed that after abolition there should be a statutory scheme for access by Londoners to the majority of lettings of the existing seaside and country homes. Because they have already been provided by a London-wide authority, it makes sense to include these nomination rights in the London-wide housing mobility scheme. Subject to further consultation, this is what we intend and I have already explained why it would be entirely inappropriate for the London residuary body to assume that permanent function.
There is no need therefore for a London-wide authority to provide homes for the elderly outside London. I put in the word "therefore" ill-advisedly, because I am coming to a new point. I repeat that there is no need for a London-wide authority to make new provision for the elderly outside London. The present arrangements for seaside and country homes provide about 100 lettings a year for London's elderly. Within London, provision for the elderly is a borough function already. It is not the GLC's function even now. So your Lordships would be preserving nothing that now exists in that respect. It is therefore for the boroughs to continue to consider what further provision should be made and where. To that end, my honourable friend said in his statement in November that, where boroughs applied for consent to developments for the elderly and the disabled which had been agreed with the host authorities concerned, my right honourable friend the Secretary of State would consider them sympathetically. So we are committed to continuing this form of provision, if boroughs so wish. This again shows that there is no need for a London housing authority; and no case for conferring this function on the transitional board; and every reason why it should be a matter for local decision.
Finally, we come to the driver's seat and the resources for repairing neglected GLC property. The Government understand the concern that has been expressed in some quarters—indeed, in many quarters—that abolition of the GLC will reduce the resources available for the repair and improvement of the ex-GLC stock. But the Government have given assurances, and I am happy to repeat them to your Lordships, that the abolition of the GLC will leave the resources available for housing in London essentially unaffected. We are consulting the local authority associations on the details of the ways we shall give 423 effect to this commitment, and we shall be ready to take account of any comments made to us about this, including comments by your Lordships.
We are committed to ensuring that the broad financial effect of the GLC's obligatory revenue deficit payments will be maintained after abolition, subject to the disappearance of the GLC's precept and the review of the payments currently being undertaken by the GLC. We will meet this commitment by adjustment to boroughs' grant-related expenditure assessements—in other words, GREAs—for block grant purposes. These arrangements will cover the obligatory payments currently made by the GLC. They will also take account of the revenue consequences of future renovation works to transferred stock which the GLC would otherwise have been liable to carry out. I think that those are the words that your Lordships have been looking for. These arrangements will apply, irrespective of authorities' current spending position in relation to their GREAs or their targets should they continue to be set.
We are at present consulting the local authority associations about our detailed proposals for implementing these commitments. Housing improvement allocations have been made available to the GLC each year, chiefly in recognition of its responsibilities to renovate the transferred stock that we have all been talking about. As my noble friend Lord Plummer said, the GLC has been running the largest capital housing programme in the country. I do not contradict him. All I say is that we are now placing that responsibility in separate packages into more local hands and that seems to me to have with it certain benefits.
That brings me to a number of interjections which your Lordships have made, the principal of which is what both my noble friend and the noble Baroness, Lady Denington, were concerned about. The noble Baroness spoke with some affection of the specialist repair teams, and she will be reminded of them a little later. The Government recognise that the specialist repair teams possess a particular and important expertise. We have in fact already announced that we shall be ready to use our good offices in considering how such units might be maintained on a voluntary basis. We have said that the DoE will use its good offices for this purpose and I have also made clear, in answer to the debate on Amendment No. 136B, which I think was made by the noble Lord, Lord Melchett, that if the boroughs wish it, the residuary body can take specialist staff on temporarily and assist the boroughs in coming to long-term arrangements for them. So we have every intention of protecting that valuable expertise.
The noble Lord, Lord Stallard, suggested that it would be the poorest boroughs that were hardest hit. In fact, in the depths of what I have already said I think he will find the answer to that. But let me repeat that the GLC's share of housing resources will be distributed to the boroughs in line with their HIP allocations and therefore in line with exactly the criterion with which he is concerned.
After abolition London's HIP allocation will be distributed among the boroughs. It will include that share which would otherwise have been diverted to the 424 GLC. The distribution of those allocations will take account of expenditure liabilities inherited from the GLC. It is also our intention that virtually all the prescribed proportion of housing capital receipts will be distributed in proportion to HIP allocations. Abolition of the GLC will therefore not reduce the resources available within London; it will simply direct them straight to the boroughs. I would expect many authorities to welcome the opportunity to manage their own programmes according to their own priorities.
My noble friend Lord Plummer pointed out that the local boroughs will become responsible for by far the greatest number of housing functions. Looked at from one side, that may appear a formidable task; looked at from the other side, from the point of view of the tenant and the private dweller in a private house, it may look like a formidable advantage to have only one place to go to. I do not think therefore that the vehicle, which as I say has a number of features that mean it is not in its present state exactly roadworthy, is also going unnecessarily in the wrong direction. We do not want another all-London body; nor for housing do we need one.
I have undertaken to consider the proposal of my noble friend Lord Harmar-Nicholls. I have also said a number of things which, considered carefully, will show that all the concerns of your Lordships are taken care of. I apologise for speaking at such length but your Lordships have raised a very wide and important issue which has many technical interfaces. I thought I ought to try to start by explaining what they were and then to reassure your Lordships how they will work.
§ Baroness Denington
Before the Minister sits down, perhaps I may ask him to clarify two brief points. First, on the improvement areas, did I gather that he did not accept that the teams working now and involved in the middle of a scheme for Tower Hamlets, for example, would not be allowed to stay there and finish their job after abolition? That is one question.
§ Lord Elton
No; what I said was that we would do our best to see that they did continue, and that there was a temporary home for them in the residuary body if arrangements have not already been arrived at before abolition.
§ Baroness Denington
Will the Minister clarify a further point? In reading through reports in another place—I have never understood it—I noticed that there was to be access for Londoners to the majority of the seaside and country homes. Those were the words that the Minister used. Who is going to have the minority? Who is going to make nominations to those? Is it to be the Minister himself? This seems to me an extraordinary position. Why should not Londoners have the majority, the whole lot?
§ Lord Elton
What I hope to be able to tell Lordships' Committee is what happens to the minority now; whether it is a discreet minority or a new minority. Perhaps I shall be told in a moment. But the nomination to the minority in any case, I can tell the noble Baroness, will go to the district councils within whose area the buildings are. One can see a certain justice in that since they are actually going to be running them. If I can tell the noble Baroness more in a minute, I shall do so.
§ Baroness Denington
Perhaps I may ask the Minister for further clarification on the main point. I understood that the promise was that the boroughs would take over specialist staff temporarily, on a voluntary basis. It is really a unified team although it breaks into sub-teams to do the job now on different buildings. But it is a team of expertise. Our point is that expertise must not be broken up. If you break the team up and a few go to this borough, some to that borough and some to another borough, the whole thing will come apart and you will never get the programme finished. That is the whole point. Is the team to be kept together, or is the team to be fragmented and the programme not to run on time at all?
§ 12.45 p.m.
§ Lord Elton
I quite take the noble Baroness's point, and that is why we have the provision that in order to come to the best arrangement it should be possible for the whole team to go to the residuary body while arrangements are made. The noble Baroness has said that it works in bits. Whether it will prove, on reflection, to be better for the bits to be parked in separate places and work to different bits of London, or to keep them together, is something that ought not to be decided across this table but in discussion while the residuary body is in office.
§ Lord Stallard
Before the noble Lord sits down perhaps I may ask him this question. Is he aware that in his excellent analogy of the vehicle he dealt with most of the parts of the vehicle except the most essential part, which is the engine? The noble Lord has totally underestimated the power that will be needed to propel this vehicle. I do not say that he underestimated deliberately the functions of the GLC in housing. He certainly did not know about the role of the GLC in homelessness.
I accept his reply in relation to the statutory provisions but the GLC funds by way of grant and other resources many of the voluntary and other housing associations which participate in the field of homelessness. The GLC also gives assistance to the boroughs on a county-wide basis to deal with the homeless. They further give huge grants to fund the bigger hostels that take care of the homeless. So the GLC is very much involved. I am very sorry that the brief from which the noble Lord was reading did not include some of that background information so essential to the engine of this vehicle as well as to the HIP allocation. The noble Lord will know that at the moment the programmes are much in arrears because of the continued cuts in the HIP allocations. That will not improve if each borough must now set up its own separate department to deal with the functions that were already being adequately dealt with by the Greater London Council. I think that the noble Lord's brief was totally inadequate, and his reply was, too. I hope that my noble friends will press this to a Division.
§ Lord Elton
I do not doubt that they will if they want to, but before they do I had better put them right on a couple of the points that the noble Lord has raised.
I assume that the vehicle had an engine, but what I talked about was the petrol, which is what decides how far it goes. That is the finance. I said that the volume 426 of petrol would be the same. As to homelessness, I repeat that the GLC has no statutory responsibility for homelessness. Everything that the noble Lord has raised was covered in our debate on Clause 47 because that is the way the GLC discharges that function.
§ Lord Kaldor
Is town and country planning best entrusted to boroughs? The situation might arise where we have resources to demolish large slums in London and rebuild on an entirely new plan. This may cut across numbers of boroughs. When we think of town and country planning, surely the basic planning authority must be on a basis much wider than envisaged in the Bill.
§ Lord Elton
I think that your Lordships are becoming fractionally impatient and want to come to a decision. I remind the noble Lord that we have debated endlessly about the planning provisions which do not fall within this clause.
§ Baroness Birk
I have listened very carefully to the Minister. It was quite difficult because there were a great many complicated points with which he dealt at length. I am not criticising that because I think it was very helpful to us that he should.
I should like to make one point on homelessness, a point which my noble friend Lord Stallard took up with the Minister and to which he replied. We can leave the voluntary bodies out of it for the moment. It is perfectly true that the boroughs have statutory responsibility for homelessness but if more and more of these estates and buildings fall into decay, if something is not done immediately and there is a long lapse, which it seems to me there would have to be if the noble Lord's complicated solutions were to come into play, even if they did come into play and worked, then homelessness must increase. The more buildings decay, the more they will have to be taken out of the housing stock because they are absolutely unsafe and cannot be lived in. In that way, homelessness will increase, as will the responsibility on the boroughs. So that can bring about homelessness.
My worries are several-fold. First, so far as the national mobility office is concerned, it does not, with great respect, answer the point at all. The Minister was talking about working parties and about having a London office and a national office. It is all so complicated when there is a simple alternative being proposed in this amendment.
The Minster is probably right, and I am not going to argue with him, about the drafting of the amendment and also about some of the alterations that may be made in it. But we start from a very important basis. Much comparable work to deal with the same subject of GLC housing is already going to the London residuary body anyway. So we will have there a body to deal with part of the problem. We are now suggesting that other functions should go there, and on a temporary basis.
The Minister asks what will happen after that. All this was going to finish by 1992 in any case. There is provision in Clause 65 for the residuary body to continue in some circumstances. We do not have to talk about permanency at the moment, but we could 427 provide an opportunity for everything to be worked out and for some proper solution to be reached.
The capital receipts of the GLC which are already going into the residuary body are nearly as big as the HIP anyway. They could go to the residuary body, which could then give the funds to the boroughs, which could then return them to the residuary body if that body has special repair teams. That seems to me to be rather a nonsense and a complicated way of moving money around, when we are suggesting that the funds should go to just one body which is already taking part of them.
The Minister said he would take note of the remarks made by the noble Lord, Lord Harmar-Nicholls, about going to the Secretary of State. The Minister himself said that while he would look at this point, he was not very happy about such a suggestion because it would create more problems. He is absolutely right. Once again we would be returning to increased centralisation, which would create more problems in itself. Then where would we be? In the circumstances, I really feel that I must—
§ Baroness Birk
Do keep quiet for a moment, to let us get on. It is nearly one o'clock; everybody wants their lunch.
§ Lord Elton
It is one o'clock in the afternoon and not one o'clock in the morning, for which we should be thankful. I only wanted to put the noble Baroness right on one point. I had hoped that I could do so before she reached her final peroration because it is so annoying to be interrupted at that moment.
The noble Baroness said that a large amount of housing would be going to the LRB anyway. I ought to tell the Committee that she must have been referring to the Thamesmead estate, and that will go to the LRB for a matter of days as far as I know—a very short time—before the successor body is found. So this is not a permanent arrangement.
§ Lord Harmar-Nicholls
I may have guessed wrong, and if I have, I apologise in advance. I felt, particularly after the noble Lord, Lord Stallard, made a certain suggestion about whether or not to go to a vote, that perhaps the noble Baroness was about to suggest that she would push her amendment to a vote. I really want to make a last appeal, though it may be presumptuous of me to do so.
We have had an excellent debate. The noble Baroness was absolutely first-class in her opening explanation of her amendment. My noble friend has given a detailed reply. Able and quick though I know the noble Baroness to be, she could not have taken fully into account all that my noble friend said merely by listening. My noble friend gave an indication that they will look at this point again. I believe that this 428 Chamber should operate as it is meant to operate and that the noble Baroness should give herself a chance of reading what my noble friend has said. She would not be losing an opportunity to make her main argument at Report stage. So before the noble Baroness reaches the point of committing herself to a vote, in the interests of this Chamber's real role I make this last appeal to let this matter go to the Report stage.
§ Baroness Birk
The Minister really did not need that help. He made himself perfectly clear. He did not need an interpreter. He did not say that he would take this amendment back for another look. The Minister was frank and honest. He presented a whole series of extremely complicated alternatives which, even if they threaded together, which I doubt, would not do the job and would not deal with the immediate problem that concerns us. In that case I intend to divide the Committee.
§ 12.55 p.m.
§ On Question, Whether the said amendment (No. 140AA) shall be agreed to?
§ Their Lordships divided: Contents, 98, Not-Contents, 117.429
|DIVISION NO. 1|
|Airedale, L.||Jeger, B.|
|Ardwick, L.||Jenkins of Putney, L.|
|Aylestone, L.||John-Mackie, L.|
|Banks, L.||Kagan, L.|
|Beaumont of Whitley, L.||Kaldor, L.|
|Bernstein, L.||Kilmarnock, L.|
|Beswick, L.||Kirkhill, L.|
|Birk, B.||Lawrence, L.|
|Blease, L.||Listowel, E.|
|Boothby, L.||Lockwood, B.|
|Boston of Faversham, L.||Longford, E.|
|Bottomley, L.||Lovell-Davis, L.|
|Brockway, L.||McGregor of Durris, L.|
|Bruce of Donington, L.||McIntosh of Haringey, L.|
|Caradon, L.||Mar, C.|
|Carmichael of Kelvingrove, L.||Mishcon, L.|
|Chitnis, L.||Molloy, L.|
|Cledwyn of Penrhos, L.||Morris of Kenwood, L.|
|Collison, L.||Mountevans, L.|
|David, B.||Mulley, L.|
|Davies of Leek, L.||Murray of Epping Forest, L.|
|Dean of Beswick, L.||Nicol, B.|
|Denington, B.||Ogmore, L.|
|Derby, Bp.||Oram, L.|
|Diamond, L.||Parry, L.|
|Elwyn-Jones, L.||Peart, L.|
|Ewart-Biggs, B.||Phillips, B.|
|Falkender, B.||Pitt of Hampstead, L.|
|Fisher of Rednal, B.||Ponsonby of Shulbrede, L. [Teller.]|
|Foot, L.||Rathcreedan, L.|
|Gaitskell, B.||Rea, L.|
|Gallacher, L.||Reilly, L.|
|Galpern, L.||Richie of Dundee, L.|
|Gladwyn, L.||Rochester, L.|
|Graham of Edmonton, L.||Sainsbury, L.|
|Hacking, L.||Seear, B.|
|Hampton, L.||Serota, B.|
|Hanworth, V.||Shaughnessy, L.|
|Harris of Greenwich, L.||Silkin of Dulwich, L.|
|Henderson of Brompton, L.||Simon, V.|
|Hooson, L.||Soper, L.|
|Houghton of Sowerby, L.||Stallard, L.|
|Irving of Dartford, L.||Stedman, B.|
|Stoddart of Swindon, L. [Teller.]||Walston, L.|
|Stone, L.||White, B.|
|Strabolgi, L.||Wilson of Langside, L.|
|Taylor of Mansfield, L.||Wilson of Rievaulx, L.|
|Wallace of Coslany, L.||Wootton of Abinger, B.|
|Abinger, L.||Lane-Fox, B.|
|Alexander of Tunis, E.||Layton, L.|
|Allenby of Megiddo, V.||Lindsey and Abingdon, E.|
|Ampthill, L.||Liverpool, E.|
|Auckland, L.||Lloyd, L.|
|Barber, L.||Lloyd of Hampstead, L.|
|Belhaven and Stenton, L.||Long, V. [Teller.]|
|Belstead, L.||Macleod of Borve, B.|
|Bessborough, E.||Marley, L.|
|Boyd-Carpenter, L.||Maude of Stratford-upon-Avon, L.|
|Brabazon of Tara, L.|
|Brentford, V.||Merrivale, L.|
|Brougham and Vaux, L.||Mersey, V.|
|Bruce-Gardyne, L.||Middleton, L.|
|Burton, L.||Milverton, L.|
|Caccia, L.||Monk Bretton, L.|
|Caithness, E.||Moran, L.|
|Cameron of Lochbroom, L.||Morris, L.|
|Campbell of Alloway, L.||Mottistone, L.|
|Campbell of Croy, L.||Newall, L.|
|Carnegy of Lour, B.||Nugent of Guildford, L.|
|Cathcart, E.||O'Brien of Lothbury, L.|
|Coleraine, L.||Orkney, E.|
|Cork and Orrery, E.||Orr-Ewing, L.|
|Cottesloe, L.||Pender, L.|
|Cox, B.||Portland, D.|
|Cullen of Ashbourne, L.||Radnor, E.|
|Davidson, V.||Rankeillour, L.|
|Denham, L. [Teller.]||Rawlinson of Ewell, L.|
|Dormer, L.||Reigate, L.|
|Drumalbyn, L.||Renton, L.|
|Eden of Winton, L.||Renwick, L.|
|Ellenborough, L.||Rochdale, V.|
|Elliott of Morpeth, L.||Rodney, L.|
|Elton, L.||Rugby, L.|
|Fanshawe of Richmond, L.||St. Davids, V.|
|Forbes, L.||Sandford, L.|
|Forester, L.||Sandys, L.|
|Forte, L.||Savile, L.|
|Gainford, L.||Selkirk, E.|
|Geddes, L.||Skelmersdale, L.|
|Gibson-Watt, L.||Soames, L.|
|Gisborough, L.||Somers, L.|
|Glanusk, L.||Sudeley, L.|
|Glenarthur, L.||Swansea, L.|
|Gray, L.||Terrington, L.|
|Greenway, L.||Thorneycroft, L.|
|Haig, E.||Trumpington, B.|
|Hailsham of Saint Marylebone, L.||Tweedsmuir, L.|
|Vaux of Harrowden, L.|
|Hardinge of Penshurst, L.||Vickers B.|
|Harmar-Nicholls, L.||Vivian, L.|
|Harvey of Prestbury, L.||Ward of Witley, V.|
|Harvey of Tasburgh, L.||Westbury, L.|
|Henley, L.||Whitelaw, V.|
|Hives, L.||Wynford, L.|
|Hood, V.||Young, B.|
|Hylton-Foster, B.||Young of Graffham, L.|
|Kimball, L.||Zouche of Haryngworth, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 1.3 p.m.
§ Clauses 87 and 88 agreed to.
§ Clause 89 [Control of financial and other assistance to local authorities by GLC and metropolitan county councils]:
§ The noble and learned Lord said: The three clauses to which Amendments Nos. 140AB to 140AK relate—namely, Clauses 89, 90 and 91—give rise to very important constitutional issues.
Amendment No. 140AC: Page 62, leave out lines 13 to 17.
Amendment No. 140AD: Page 62, line 34, leave out subsection (5).
Amendment No. 140AE: Clause 90, page 63, line 9, leave out ("21st March 1985") and insert ("the passing of this Act").
Amendment No. 140AF: Page 63, line 25, leave out from ("applies") to end of line 30.
Amendment No. 140AG: Page 64, line 33, leave out subsection (9).
Amendment No. 140AH: Clause 91, page 64, line 40, leave out ("21st March 1985") and insert ("the passing of this Act").
Amendment No. 140AJ: Page 65, line 5, leave out ("the said 21st March") and insert ("that date").
Amendment No. 140AK: Page 65, line 15, leave out (' the said 21st March") and insert ("the passing of this Act").
§ The clauses share two common features. First, they each effect controls over the manner in which the GLC and the metropolitan county councils are able to exercise many of their existing functions pending their proposed abolition; and they require the Secretary of State's consent many months before abolition would take effect to a vast range of acts by those councils, both major and extremely minor, which they are now entitled to carry out. Secondly—and it is to this issue that these amendments relate—each of the three clauses provides in part for its provisions to have retrospective effect with retrospective penal consequences attached. Clause 89 is retrospective to 24th July 1984—the date of the Department of the Environment press release—and Clauses 90 and 91 are retrospective to 21st March 1985.
§ Quite apart from the mischief contained in the retrospectivity and the penal aspects of these clauses, their provisions permit an unacceptable degree of interference by central Government in the affairs of democratically elected local authorities, and a dangerous confusion of responsibility is likely to arise for the efficient and effective management and administration of these authorities. But the still more powerful case against the provisions in these clauses, and the case which my amendments seek to support, is founded on a broader and fundamental constitutional principle; namely, that retrospective penal legislation is unacceptable. If the Government consider, and Parliament agrees, that further controls are required between enactment, should that occur, and 1st April 1986, then let those new controls operate with their panoply of penalties from the date of enactment, not before.
§ Clause 89 provides controls over the powers of the GLC and the metropolitan county counties which are set out in existing Acts of Parliament to provide financial assistance to London boroughs or metropolitan district councils, as the case may be. From the date of enactment the consent of the Secretary of State will be required to any such assistance. The requirement of consent, under the terms of the Bill, will be backdated to 24th July 1984—a week before even the 1984 paving Act came into effect. Subsection (6) refers to Schedule 15, which, in Part II, enables the Secretary of State to order a 431 borough or a district council which lawfully receives financial assistance from the GLC or the county councils prior to enactment, but after 24th July 1984, to have to repay it together with interest of an amount left to the whim of the Secretary of State. That is retrospective legislation, and it carries penal consequences for the boroughs or district councils concerned.
§ Clause 90 provides, in effect, that any agreement or arrangement entered into by the GLC or the metropolitan county councils under which the authority assumes liabilities not falling to be wholly discharged before the abolition date requires the consent of the Secretary of State. Leaving aside the technical difficulties of determining, in many cases, precisely when liabilities are due to be discharged, the serious mischief of the clause, as presently drafted, is that it, too, is retrospective in effect—backdated to 21st March 1985—and it carries the most severe penalties for councillors who breach its provisions.
§ Such councillors may be disqualified from office for a period to be specified by the court. The clause provides no maximum period. They may be ordered personally to repay the amount of the liabilities outstanding on the abolition date. These penalties, as serious as the penalties which exist for serious crimes, relate, I emphasise, to any acts done after 21st March and prior to enactment of the Bill by Parliament, which when done were perfectly lawful acts.
§ Clause 91 likewise carries penalties of disqualification and repayment that may be imposed upon councillors. The 1984 paving Act laid on the threatened councils a number of duties with which they have sought fully to comply. They have to seek the Secretary of State's consent for any disposal of land and to enter into many categories of contract to limits of a quarter of a million pounds or a hundred thousand pounds according to the type of contract. This had the effect of enabling the Secretary of State to control major expenditure while leaving the day-to-day administration of the authorities to them to undertake.
§ That paving Act provided for councillors to be disqualified for any breach of the Act's requirements in these respects. Clause 91 adds severe financial penalties in respect of any breach, but it does far more: it lowers the financial limits to £15,000, thereby involving the central Government in the minute details of day-to-day administration of local government, and backdates the new lower limit to 21st March. It means that if the GLC or a metropolitan county council lets a relevant contract of more than £15,000 but still within the limits of the 1984 Act, and therefore acts fully in accordance with existing law, its members can, if this clause is accepted in its present form, be disqualified and ordered to pay the full amount of the contract in question if the Secretary of State decides to refuse consent.
Here again is a clear example of retrospective penal legislation. The position is further aggravated by the wording of the 1984 Act, which requires the authorities, in considering whether the financial limits on a contract are reached,
to aggregate the amount of any other contract in the last 12 months for services of the same or similar description"—
words which are not further defined in the Act and words which are vague in the extreme and capable of more than one interpretation.
§ While this vagueness may not in practice have been of great importance at the level specified in the 1984 Act, once one gets down to sums of £15,000 in the context of the turnover of the GLC and ILEA of £3 billion a year, that imprecision, tied as it is to penal consequences, is a matter of grave concern. Not only do our constitutional principles prohibit recourse to penal retrospective legislation, but there is also the principle that penal offences should be precisely defined. They are not, in this Bill.
§ I am of course not contending that all retrospective legislation is of itself wrong in principle. Such legislation may be legitimate in, for example, restoring the law to that which it had been understood to be prior to a judicial decision to the contrary. I can say this after the fraught experience of being Attorney-General when the War Damages Bill of 1965 was before Parliament. The Committee will recollect that that legislation arose out of the claims for compensation made by the Burmah Oil Company in respect of the destruction of its installations during the Japanese hostilities. It was a Bill which aroused much discussion of the constitutional principles that apply to retrospective legislation.
§ 1.15 p.m.
It was Lord Dilhorne, the former Lord Chancellor, whose support I was fortunate to have in those exchanges, who in the debate in this House on that Bill supported the particular retrospective legislation proposed in that Bill: namely, to restore the law to that which it had been understood to be prior to a decision of the courts. However, he cited, with approval, the words of Mr. Justice Wills in the case of Phillips v. Eyre that retrospective legislation,
ought not to change the character of past transactions carried on upon the faith of the then existing law".
Such legislation is always bad".
§ That can be said of these provisions too. It is indeed precisely the kind of retrospective legislation with which we are concerned today. It is even worse than that referred to by Lord Dilhorne, for not only does the Bill seek to change the character of past transactions, lawful when they were carried on, but it attaches the grave penalties, to which I have referred, for having acted in accordance with existing law.
This is not only a question of our own constitutional principles. International human rights provide strongly against penal retrospective law. The European Convention on Human Rights, in Article 9, provides that:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed".
It is true that the Bill does not explicitly make retrospective transgression a criminal offence but the penal consequences which I have mentioned are of a gravity and nature that exceed the penalties applicable to many criminal offences.
Then the United National Universal Declaration of Human Rights is even more explicit on this subject. Article 11 states:
No one shall be held guilty of any penal offence which did not constitute a penal offence, under national or international law, at the time when it was committed".
§ There can be no doubt that the present Bill introduces new retrospective penal offences. It may be said (and perhaps the Minister will say so) that unless these clauses are enacted with the retrospective provisions within them there is no means of preventing the threatened authorities from acting in an irresponsible manner. To argue this ignores two important points. First, democratic public bodies are entitled to act in ways with which the Government of the day may profoundly disagree, provided that they act in accordance with existing law. Secondly, local authorities of course operate within a framework of administrative law that provides real and effective controls over arbitrary or unlawful actions by public bodies.
§ The importance of the remedy of judicial review, which has become increasingly used, has recently been highlighted in debates in this House. It is a recognised means of protecting the rights of the citizen. There can be no doubt that if any authority were to set out on an asset-stripping spree, the existing law would not be powerless to intervene. There is no absence of proper legal control such as to justify penal retrospective legislation of the kind now proposed in this Bill.
§ Indeed, in my submission there are grave constitutional implications in the precedent that this Chamber will be setting if the Bill proceeds unamended. Any future Government would be able to point to this Bill as a justification for introducing legislation to give retrospective effect to a ministerial edict pronounced perhaps a year or more beforehand and backed up, as in the present case, by the threat of penalties on those who refuse to come to heel and to accept the mere pronouncement of a Minister as law.
During the debate in another place on the War Damages Bill in 1965 the classical erudition of one honourable Member led him to declare:
If it is still legitimate to quote Virgil in this House 'Facilis descensus Averno' can be roughly, but not inaccurately, translated as `retrospective legislation is a damned slippery slope'.
The speaker who made those observations was none other than the present Secretary of State for the Environment.
§ In the case of these three clauses, the Government are indeed on a slippery slope. However, today, your Lordships have the opportunity of showing that once more, in our present political situation, your Lordships' Chamber has become a true guardian of the constitution. It did so last year when we threw out the paving Bill. It should do so again this afternoon by throwing out this monstrous piece of unconstitutional retrospective legislation. I beg to move.
§ Lord Campbell of Alloway
I apologise to the Committee for not having been present at the time this matter was opened by the noble and learned Lord, Lord Elwyn-Jones. Briefly, on the constitutional position, may I, with all due deference—I mean that—and with the greatest respect to the noble and 434 learned Lord, beg leave to question whether, truly regarded, there really is here this element of retrospective operation. The Government's intentions were made so well known and conduct contrary to those intentions was indeed indulged in. Is it really right in those circumstances to put it as high as that the transactions were undertaken on the faith of existing law? I accept fully that there are two views about this. I am speaking, shortly, to advance the other side of the argument.
If the date were to be changed, as proposed by the amendment, this would negative the effect of the asset-stripping provisions. It was, in the facts of this case, the irresponsible action of the authorities to be abolished—the GLC, in particular, I am afraid—which forced the Government to act to protect the position of successor authorities in the interests also of the ratepayers. If this amendment was carried, an intolerable burden would be put on the ratepayers. Although one must pay the greatest attention and respect to any constitutional issue raised by the noble and learned Lord, Lord Elwyn-Jones—as, indeed, I do—I would suggest that, in the particular circumstances here, the amendment should be opposed.
§ Lord Hooson
I wonder whether the noble Lord, Lord Campbell of Alloway, has reflected on what he has just said. The noble Lord has put forward excuses for proposing retrospective legislation. There are always good excuses for retrospective legislation. They are intended generally to deal with an existing evil in some way or another. But that is no justification for retrospective legislation. If the noble Lord considers the matter, what are the Government doing? What they are doing, I believe, because they have not thought out the whole plan for the reform of local government in the metropolitan areas, is to resort to unacceptable constitutional practices. They are in great danger, if this Bill becomes law, of having entrenched in an important piece of legislation practices that the noble Lord, Lord Campbell of Alloway, would have condemned outright in any other Government.
It is, I believe, regrettable that a considerable constitutional lawyer, as the noble Lord is, should put forward these excuses when he knows that they do not in any way amount to justification. Later this afternoon, I hope to be dealing with what I think is the equally unacceptable way in which delegated legislation has been resorted to in an unprecedented manner in the Bill. I wonder whether the Government really have considered the long-term implications of what they are doing in the Bill. We, from these Benches, certainly support these amendments.
§ Lord Elton
The noble Lord, Lord Hooson, suggested that my noble friend had advanced excuses. I would only point out to him that as a lawyer with an acute mind, he will know that the difference between an excuse and a reason is whether you approve of what is being done. My noble friend agrees with what is being done and gave reasons. The noble Lord disagrees with what is being done and calls them excuses. It seems to me that my first job is to produce what I call the reasons and what the noble Lord calls the excuses. Whatever they are, it is necessary to explain why we 435 are doing them. Thereafter, I shall add a short word to explain why I believe that the noble and learned Lord who moved the amendment may feel it appropriate not to press it.
It is a pleasure to be again opposite the noble and learned Lord at the Dispatch Box. It is quite like old times. I have really felt rather lost for the past few weeks. Now that he has come out from Home Office affairs to deal with the environment, I am happy to engage with him in dispute. As he has explained, the purpose of these amendments is to seek to remove the retrospective effect of the controls over the activities of the GLC and metropolitan counties that we propose in Clauses 89, 90 and 91 of the Bill following our announcement and appropriate notification to the authorities on the respective dates. Please, let your Lordships not forget that!
In the case of Clause 89, covering the provision of financial or other assistance to another local authority, we have proposed that the control should have effect from 25th July 1984, the date after that on which my right honourable friend announced his intention to seek the powers. We have proposed that Clause 90, which covers any enforceable agreement on arrangements under which a liability would pass to a successor authority, and Clause 91, which proposes amendments to the controls contained in the Local Government (Interim Provisions) Act, should have effect from 22nd March, that is the day after the day on which my right honourable friend announced the tabling of the amendments to the Bill. So it was not exactly a surprise.
Of course, your Lordships will be aware that there are precedents for legislation of a similar kind. I listened with some care to what the noble Lord said about the principles that we raise. I am not convinced that we are breaking new ground. I shall return to this. As my right honourable friend indicated in his statement of 21st March this year, it was necessary to seek Parliament's consent to the new provisions taking effect from the date of his announcement in the light of past experience of the authorities' determination to pre-empt Parliament's consideration of new legislation, and continuing threats of irresponsible activity—threats which have not ceased. It was just these considerations that led my right honourable friend to make clear in his announcement of 24th July 1984 that he would be seeking in the Bill Parliament's retrospective approval to the measures now embodied.
Your Lordships will recall that in rejecting our proposals to establish interim councils to secure smooth transitional arrangements, your Lordships nevertheless accepted in consequence that precautionary controls over certain activities of the abolition authorities were desirable. But even on the few days between the announcement of those controls on the 12th July 1984 and Royal Assent to the paving Bill, it became clear that they might not suffice. Moreover, the unprecedented avalanche of business undertaken in County Hall and elsewhere in that short period clearly showed the cynicism and opportunism towards Parliament's wishes of those concerned. Some of the authorities disposed of land and let contracts worth millions of pounds at enormous expense to 436 ratepayers and successor authorities in order to get under the wire.
We could not make that mistake again. The soundness of our judgment was underlined by reported remarks of the leader of the Greater London Council following the 21st March announcement, and I quote:The measures were bolting the stable door after the horse has almost disappeared into the distance".The GLC had put through all its important contracts last July and officials were working to complete any final details of the campaign against abolition before the midnight deadline. That sentence also should have been within the quotation marks because it is not a statement by me. I am quoting a statement made by the leader of the GLC. In the same vein West Yorkshire County Council, for example, attempted in the closing days of March to devise a means whereby its Section 137 funds could be spent in 1985–86 without the need to obtain consent under Section 7 of the paving Act.
The stance of the GLC has been underlined by its attitude to the proposed control in Clause 89 over payments of financial assistance to other local authorities. It has continued to promise enormous funds to certain authorities without seeking an indication of whether the arrangement would be one to which the Secretary of State would give his consent under the provision. It may be that its decision effectively to ignore the control is conditioned by the fact that the sanction for its contravention bites upon the receiving authority. It is the receiving authority that the Secretary of State can require to repay the money to the appropriate residuary body with interest.
The purpose of the control is to prevent the disbursement on a partisan basis and under whatever guise of substantial sums from the abolition authorities. We are determined to protect ratepayers in all successor authorities and maintain equity among them. I have to make it clear, therefore, that we will wish to give careful consideration as to whether assistance given since the July announcement should be subject to recovery action. To accept the amendment proposed today would be to accept without reservation the GLC's partisan distribution before it is abolished of funds provided by all ratepayers to the benefit only of those who live in boroughs or councils controlled by its political friends.
In conclusion, I have to say that in different circumstances and in the face of evidence of a more responsible attitude, it might indeed have been possible to bring the various provisions into effect at Royal Assent, but these are not normal circumstances, and the evidence for that is overwhelming. Of course the need for provisions of this kind is regrettable, but not to have sought them would have undermined the purpose of the controls. Indeed, it would be quite irresponsible to postpone their effect to Royal Assent. To do so would, beyond any shadow of doubt, lead to a final bout of asset stripping, with successor authorities denuded of the resources that they require and the benefits of abolition, and ratepayers left to foot the bill.
437 I am sure that the noble and learned Lord, Lord Elwyn-Jones, understands this. He has already referred to one aspect of retrospection with approval. He recalled with approval the legislation which acted retrospectively in order to put back the law to where it had been thought to be before the courts explained that it was not. He spoke with equal satisfaction of legislation in which he had had a hand as Attorney-General in 1965 in connection with war damages. That was retrospective and the noble and learned Lord approved it, but of course it was a different sort of retrospection.
§ Lord Elton
I instantly accept that. What interests me is not the nature of the Bill, but the date on which it became law. If I recall rightly, it was in 1965 when the noble and learned Lord was Attorney-General and paid close attention to every piece of legislation that was passed by Parliament, including, for instance, I presume, the Control of Office and Industrial Development Act 1965, in which Section 3 says this. I do not suppose that I have to go far before the noble and learned Lord will remember it. I quote:Where before the passing of this Act an application was made to the local planning authority for planning permission",and so on,and on that application planning permission for such development was granted before the passing of this Act, then, unless that planning permission was granted before 5th November 1964"—the previous year—"and either" (a) or (b),the provisions of subsection (5) of this section shall (except where subsection (4) of this section or section 5(2) of this Act applies) have effect in relation to that planning permission".I shall not unravel all that, but what it is is the Attorney-General of the day applying retrospection to planning consents with consequences under—
§ Lord Elton
Yes, indeed, penalised, I understand, under Section 29 and Schedule 4. No—Section 3(9) provides penalties, I understand. I hope that I have that right. No, I have not, because there is no such subsection, but I shall find it. It may be just that I cannot read the handwriting. Noble Lords look sufficiently worried by that. So let me take their minds away from it and the days when the noble and learned Lord was only—if I may say that of such a revered post—the Attorney-General and move on to 1977 when he was the Lord Chancellor, no less, and passed the Aircraft and Shipbuilding Industries Act 1977, presumably sitting on that Woolsack, and refer to the recovery-of-assets-transferred-away provisions in Section 29.
All that I am trying to say—and I do not want to be heavy handed about this, and I do not in the least hold it against the noble and learned Lord—is that it seems to me that he has done exactly the same thing himself and therefore is in a difficult position in suggesting that we should not do it now. It was Section 3(5) to which I should have referred.
§ Lord Mishcon
I think that the Minister has possibly finished his address to the Committee on what is 438 possibly one of the most important constitutional issues that this Committee and this House have been called upon to deal with, and not just on this Bill. I wonder whether I may just emphasise some of the points made by my noble and learned friend and some of the points that have arisen out of this discussion. One can quote planning Acts and all sorts of legislation where the sanction may very well be that a planning application will not be granted or that indeed some detriment may be suffered by some citizen.
The first point to which I have to draw the attention of the Committee is the draconian effect of a retrospective clause of this Bill. If I may remind the Committee, the sanction is on an application of a local government elector, if one likes. It is not just the authorities which can bring this matter before the courts. But if any of the transactions—and I shall refer to them in a moment, if I may—covered by these three clauses is entered into, a local government elector may bring this matter before the courts—I doubt whether that was included in any statement made to the other place—and the person responsible can,be disqualified for being a member of that council and … be disqualified for a specified period for being a member of any other local authority".That is not the end of the penal provisions. In addition to that, the court can order the payment to that council,(or, in the case of an order made on or after the abolition date, to the appropriate residuary body) a sum not exceeding the cost of discharging such of the liabilities assumed by the council under the agreement or arrangements as have not been, or in the opinion of the court are likely not to be, discharged by that council before that date".My first point is that we are dealing with a penal provision of some magnitude.
The second point that I want to make is this. It may very well be arguable, in my respectful submission—and I do not want to deal with this as though it were a minor debating matter; it is a major constitutional matter—that if Parliament makes an announcement through the Government that certain matters are to be deemed to be a contravention of their policy, or in the case of fiscal legislation are to incur certain tax liabilities, provided that the statement is abundantly clear, and everybody knows who is going to be caught by it and precisely the nature of the transactions involved in detail (not when one has very definite penal provisions and one is not doing the act of putting the law back as everybody thought it should be) that that is not a defeat of one of the principles of our constitution.
In this Bill, and in respect of the clauses we are considering, the following matters are included—and I think that the Committee had better concentrate upon the transactions. I am reading from the marginal notes; it is the quickest way. In regard to 89:Control of financial and other assistance to local authorities by GLC and metropolitan county councils.In regard to 90:Control of liabilities affecting successor authorities.In regard to 91:Control of disposals and contracts.Quite apart from the width of the transactions that are dealt with—not just asset-stripping, but liabilities which may go beyond the life of the council—there is 439 not even so much as a description which could be deemed to be an accurate description of such transactions contained in any statement. I await from the noble Lord the Minister whether he wishes to correct me on this, but so far as I am aware the nature of any penalties such as I have outlined were not made clear, or the fact that an elector could go to the court and deal with these matters.
However, just as serious as that, was it made clear in any such statement that innocent third parties would not be able to claim in various circumstances against a successor authority for a contractual obligation entered into with the authority which is deemed to be at fault in this matter?
In regard to the question of dates, may I tell your Lordships what we are dealing with constitutionally? The date of the statement has been mentioned. Is this Committee going to sanction penal retrospective legislation which dates back in one case to July 1984 and in another case to 21st March, 1985? There is no suggestion with regard to the 24th July, 1984, that that matter came after the announcement in your Lordships' House on 21st March, 1985.
Even taking the date of 21st March, 1985, the other place was the first place to consider this matter and not your Lordships' House, and these are the dates: Second Reading of the Bill, 3rd December, 1984; it went to the Standing Committee in December 1984; Report stage was on 27th March and 28th March; Third Reading was 28th March. Are we to walk into retrospective penal legislation before a Bill has even in its first stages reached Report stage? Are we to take it for granted that the government machine is such a heavy locomotive that it can drive through anything it wants to irrespective of what your Lordships' House may do, and indeed irrespective of what the other place may do at Report or any other stage of a Bill?
This cannot stand. This ought not to stand. The noble Lord, Lord Campbell of Alloway, when he talks about everybody knowing after 21st March, will, I hope, reflect upon the limitation of that statement.
There are the penal provisions of the Bill now before us, and the retrospective effect of what might happen to any councillor: was he completely warned and did he know about all these transactions that were going to be covered by these three clauses?
My final point is this. If this were only a matter between the courts, which have definite provisions laid down for them as to how they are to act, then it is again just about arguable—not strongly so—that everybody knows where they stand, and you have a judge, a court, bound to be politically objective and merely carrying out the provisions of a statute. There is a power of discretionary exemption, vested without limitation in the Secretary of State, from all these retrospective provisions.
Therefore, a Secretary of State not marked with the objectivity of a Lord Chancellor, or indeed of an Attorney-General, can decide which councils he regards as being innocent, or of having carried out transactions of which he, the Secretary of State, approves. If he happens to frown upon them, or 440 arbitrarily decides that he does not like the sort of transaction they have entered into, he can then exempt them. These clauses are an offence to Parliament, an offence to our constitution, an offence to our traditions. These amendments, regardless of party, ought to be carried.
§ Lord Campbell of Alloway
The noble Lord, Lord Mishcon, asked me to reflect, and I have reflected. With the greatest respect to him, I would ask him to reflect upon the offence of the burden to the ratepayers.
§ Lord Mishcon
That is, if I may say so, a political point not worthy of the noble Lord. We are not dealing with what is the mischief. I could deal with that point if I wanted to, but it would only take the time of the Committee and then we would be indulging in political debate. I want to take this above that low level, if I may say so, on a matter of this kind. If one is protecting the ratepayers one does it in accordance with our constitution and in accordance with our law. One does not do it upon the basis of defeating the constitution and flouting our law.
§ Lord Campbell of Alloway
I do not accept that for one moment. I would ask the noble Lord, Lord Mishcon, to reflect again whether I am the sort of person who defeats or flouts the constitution, or whether in any irrelevant or unnecessary way one has brought this matter to a political level. Essentially this is a political matter. One cannot pretend that it is not. The conduct involved which necessitated these provisions was frankly and purely political.
I do not wish to indulge in any form of low level debate, but one cannot debate in blinkers. One has to accept the realities. I do not accept for one moment that I am traducing the level of the debate—that is a matter of opinion—or that I am in error about the constitutional approach. I know that I differ from the noble Lord, but I do not accept that I am in error on this.
§ Lord Mishcon
I answer for the last time, but I have been challenged. May I tell the noble Lord, Lord Campbell of Alloway—and I am sure he knows this—that he has the respect of my profession and my personal respect. Anything that I have said does not lessen that respect, although I thought that he was less than his usual self on this occasion.
I would remind him of a great Lord Chancellor whose history he will well know. Sir Thomas More once said that he would give the devil himself the protection of law, because if he did not do so all of our liberties would be at stake.
§ Lord Boyd-Carpenter
I thought that the noble Lord again was a little below his normal consummate skill in handling these issues when he brushed aside the comment of my noble friend Lord Campbell of Alloway concerning the interests of the ratepayers. The noble Lord did not seem to think that protecting the ratepayers against the depredations which have been openly threatened by the leaders of the Greater London Council was a subject even worth dealing with. Therefore he leaves the Committee with the feeling that either it should not be dealt with, or that he 441 is suggesting that there is some other way of dealing with it which would not flout the constitutional doctrines which he so eloquently enunciated. If there is some other way of dealing with it free from those objections it should have been up to the noble Lord to describe them. He did not do so; therefore we must assume that he is simply determined to ignore the need to protect the ratepayers from actions of quite an unprecedented nature which are being undertaken and threatened by at least one of the threatened authorities.
I have only one other comment, which is addressed to the noble and learned Lord, Lord Elwyn-Jones. It gives me a certain sardonic amusement when from that Bench the noble Lord, and still more the noble and learned Lord, say that this House is the true guardian of the constitution.
§ Lord Boyd-Carpenter
I am grateful for that strengthening of my argument. It is always useful to have the assistance of the noble and learned Lord and I thank him for it. The noble and learned Lord ignores, particularly in that intervention, the fact that he and his right honourable and honourable friends fought the last election with, as a major issue in their policy, the abolition of this House. It is, therefore, quite entertaining when a measure comes up which they wish this House to frustrate or obstruct, that they suddenly develop this enormous enthusiasm for the lofty röle of this House. I hope that the noble and learned Lord will remain in his more recent state of mind on this subject rather than that on which he fought the last election, and that that state of mind might endure until at least the next general election.
§ Lord Harmar-Nicholls
There was one sentence in the noble Lord's emotional plea on constitutional priorities that struck me. I though he was emotionally exaggerating the point when he said that the Minister responsible, presumably he meant a lay Minister, would be making a decision here. I think the phrase he used was not the Lord Chancellor or the Attorney-General, but "a Law Officer", and was rather suggesting that there was a real risk that vital and technical legal matters would be decided upon by a lay Minister without sharing the mind of the Law Officers of the Crown.
The noble and learned Lord, Lord Elwyn-Jones, is one of the most distinguished ex-Law Officers we have had. He was the Attorney-General in the years that I sat with him in another place. I should like to put this question to him: during the whole of the period when he held office as Attorney-General did any departmental Minister come to a decision on a matter such as this, which would affect a citizen in the sense of bringing him to the court, without consulting the Attorney-General? I doubt whether he could find an instance during his long period as Attorney where the departmental Minister on matters such as this did not consult with him because he was the Law Minister. If that happened in the past, why should we think that it would not happen in the future, and suggest that these 442 decisions would be made without sharing the mind of the Law Officer?
My final question is to the noble Lord, Lord Mishcon. I, with him, am bored with retrospective legislation. I voted against it to the dismay of my friends many times in the past because I believe it prima facie to be unfair and dangerous. But is the noble Lord, Lord Mishcon, saying that within our constitution—which he was so eloquently defending as it stood—there is no room for retrospective legislation? If he has to concede, as I think he would, that there is room for retrospective legislation, the circumstances surrounding this are such that this is where one would justify using it, although it ought to be on rare occasions.
§ Lord Elwyn-Jones
It is most unfortunate that the noble Lord, who was not present when I spoke, has sought to address questions to me which I dealt with fully while I was speaking.
§ Lord Harmar-Nicholls
The noble and learned Lord must not be hurt in this way. We are not in cotton wool in this Committee. I was brought to my feet by the one phrase used by his noble friend which I thought was an exaggeration which could mislead the Committee. The noble and learned Lord had to be brought in as part of the evidence because he had served in the office of Attorney-General.
§ Lord Mishcon
I intervene briefly because I am sure the Committee does not wish to extend this debate any further. The noble Lord asked me a question dealing with the legal aspects of the function of the Secretary of State. I refer him not just to the speech that my noble and learned friend made (which I am sure he will read in Hansard to his great benefit) but to the Bill, which presumably he has not consulted, because in that Bill it says what the Secretary of State has to consider. It is nothing to do with legal matters. Clause 89(3) reads:The Secretary of State shall not give his consent for the purposes of subsection (2) above unless he is satisfied that it is expedient for the Greater London Council or, as the case may be, the metropolitan county council to make the grant, enter into the agreement or arrangements or give the assistance, as the case may be; and in deciding whether or not to give his consent he shall have regard to the cost to the ratepayers of Greater London or the metropolitan county in question of the grant or of the assistance given or to be given under the agreement or arrangements and to such other matters as he considers relevant".
§ Lord Elton
Your Lordships have had an extraordinarily interesting debate on a fundamental matter of constitutional importance. In accepting that it is a matter of importance, I do not accept that either the noble Lord or the noble and learned Lord opposite has it right. I do not propose to make another great oration: we have had enough of those. But I must pick up one or two points that have been put before the Committee on which a little light ought to be shed. The first touches the question to which my noble 443 friend Lord Harmar-Nicholls adverted a moment ago, of the power of the Secretary of State to proceed or not. The noble Lord, Lord Mishcon, made much of this—that it was up to the Secretary of State to decide whether he should proceed against the individual concerned. I point out that it is not. It is not open to the Secretary of State to take the choice under Clause 90 where the proceeding would be against an individual, not in Clause 91 where the proceeding would be against an individual. The only place where the Secretary of State takes the decision is in Clause 89. That deals with councils and not with councillors.
The noble Lord made a number of other points, one of which was: how could anyone possibly know if they were at risk? If they were at risk was it right that they should be disbarred from office, no less, as a result of having broken this obscure and unpublicised law? I pause only long enough to read one paragraph of my right honourable friend's parliamentary Answer on 21st March 1985—a date which I earlier asked your Lordships to note. It reads:I have given careful consideration to the sanctions that should be applied for a failure to obtain consent in the case"—this is very like the section that I read from the Act a little while ago, that the noble and learned Lord had approved all those years ago. It continues:of both the existing controls over land disposals and contracts, and those now proposed over other enforceable agreements and arrangements".It was to the similarity of the need to obtain consent that I drew your Lordship's attention. He went on:I am proposing that the existing sanction of a liability to disqualification by the High Court from local government office should also apply to a failure to comply with the new provisions. The right to apply to the court will, in addition, extend to a successor authority".That is an audit sanction and it is commonplace in local authority law, as is the right of private citizens who are electors or ratepayers to seek protection from the misconduct of their affairs by a public authority. If the noble Lord had been speaking about the British constitution in another capacity or on another occasion, and if he had discovered that it was open to a local authority wilfully to misdirect millions of his fellow citizens' money into something which the law did not sanction, the noble Lord himself would have been eloquent and successful in persuading your Lordships that private citizens should have the protection of the courts. It is to the courts that the private citizen can go, under this Bill.
I will not prolong the debate by reading out the list of letters that my right honourable friend wrote at the time of the announcement. On the second occasion he wrote not only to the local authorities affected but to the interested professional bodies; he gave a press briefing and he tabled the amendments to the Bill at the time. This is not hole-in-the-corner stuff. It is not unconstitutional stuff; it is open stuff. It is very like, and in some respects identical with, material which the noble Lord's Government when they were on this side of the Committee themselves put on the statute book. I therefore ask your Lordships to treat it in that fashion and not to make a great dramatic production of it as if it were something new.
§ Lord Elwyn-Jones
We are not making a dramatic production. We are making it clear that in our view 444 this is a grave infringement of our constitution. It is a monstrous piece of retrospective penal legislation of a draconian character with which none of the matters which have been referred to may be compared. I have dealt with these matters in opening and I venture to think that now it is time that the Committee should make a decision on the matter. My only regret is that owing to the time when we are holding the debate there have not been more noble Lords present to hear the argument. I beg to move.
§ 2.2 p.m.
§ On Question, Whether the said amendment (No. 140AB) shall be agreed to?
§ Their Lordships divided: Contents, 72; Not-Contents, 113.445
|DIVISION NO. 2|
|Aylestone, L.||Kilmarnock, L.|
|Banks, L.||Lawrence, L.|
|Beaumont of Whitley, L.||Listowel, E.|
|Birk, B.||Lloyd of Kilgerran, L.|
|Blease, L.||Longford, E.|
|Boston of Faversham, L.||Lovell-Davis, L.|
|Bottomley, L.||McCarthy, L.|
|Brockway, L.||McGregor of Durris, L.|
|Bruce of Donington, L.||Mishcon, L.|
|Buckmaster, V.||Molloy, L.|
|Caradon, L.||Morris of Kenwood, L.|
|Carmichael of Kelvingrove, L.||Mountevans, L.|
|Collison, L.||Nicol, B.|
|David, B.||Ogmore, L.|
|Davies of Leek, L.||Parry, L.|
|Dean of Beswick, L.||Phillips, B.|
|Diamond, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Ewart-Biggs, B.||Rathcreedan, L.|
|Falkender, B.||Rea, L.|
|Fisher of Rednal, B.||Richie of Dundee, L.|
|Fitt, L.||Rochester, Bp.|
|Foot, L.||Rochester, L.|
|Gaitskell, B.||Serota, B.|
|Gallacher, L.||Silkin of Dulwich, L.|
|Galpern, L.||Simon, V.|
|Gladwyn, L.||Stallard, L.|
|Glenconner, L.||Stedman, B.|
|Graham of Edmonton, L.||Stoddart of Swindon, L. [Teller.]|
|Harris of Greenwich, L.||Taylor of Mansfield, L.|
|Hooson, L.||Wallace of Coslany, L.|
|Houghton of Sowerby, L.||Walston, L.|
|Irving of Dartford, L.||Wells-Pestell, L.|
|Jeger, B.||White, B.|
|Jenkins of Putney, L.||Wilson of Rievaulx, L.|
|John-Mackie, L.||Wootton of Abinger, B.|
|Alexander of Tunis, E.||Cathcart, E.|
|Allenby of Megiddo, V.||Coleraine, L.|
|Ampthill, L.||Cork and Orrery, E.|
|Auckland, L.||Cottesloe, L.|
|Barber, L.||Cox, B.|
|Belhaven and Stenton, L.||Craigavon, V.|
|Belstead, L.||Crathorne, L.|
|Bessborough, E.||Cullen of Ashbourne, L.|
|Boyd-Carpenter, L.||Davidson, V.|
|Brabazon of Tara, L.||Denham, L. [Teller.]|
|Brougham and Vaux, L.||Denning, L.|
|Burton, L.||Drumalbyn, L.|
|Caithness, E.||Ellenborough, L.|
|Cameron of Lochbroom, L.||Elliott of Morpeth, L.|
|Campbell of Alloway, L.||Elton, L.|
|Campbell of Croy, L.||Faithfull, B.|
|Carnegy of Lour, B.||Ferrers, E.|
|Forbes, L.||O'Brien of Lothbury, L.|
|Forester, L.||Orkney, E.|
|Gainford, L.||Orr-Ewing, L.|
|Geddes, L.||Pender, L.|
|Gisborough, L.||Plummer of St. Marylebone, L.|
|Glenarthur, L.||Portland, D.|
|Gray, L.||Radnor, E.|
|Haig, E.||Rankeillour, L.|
|Hailsham of Saint Marylebone, L.||Reigate, L.|
|Harmar-Nicholls, L.||Renwick, L.|
|Harvey of Prestbury, L.||Rochdale, V.|
|Harvey of Tasburgh, L.||Rodney, L.|
|Hatherton, L.||Rugby, L.|
|Henley, L.||St. Davids, V.|
|Hives, L.||Sandford, L.|
|Hood, V.||Sandys, L.|
|Hylton-Foster, B.||Savile, L.|
|Kitchener, E.||Selkirk, E.|
|Lane-Fox, B.||Sherfield, L.|
|Lauderdale, E.||Skelmersdale, L.|
|Layton, L.||Somers, L.|
|Liverpool, E.||Stamp, L.|
|Lloyd, L.||Sudeley, L.|
|Lloyd of Hampstead, L.||Swansea, L.|
|Long, V. [Teller.]||Terrington, L.|
|Macleod of Borve, B.||Thorneycroft, L.|
|Marley, L.||Trefgarne, L.|
|Maude of Stratford-upon-Avon, L.||Trumpington, B.|
|Merrivale, L.||Ullswater, V.|
|Mersey, V.||Vaux of Harrowden, L.|
|Middleton, L.||Vickers B.|
|Milverton, L.||Vivian, L.|
|Monk Bretton, L.||Ward of Witley, V.|
|Morris, L.||Whitelaw, V.|
|Mottistone, L.||Wynford, L.|
|Napier and Ettrick, L.||Young, B.|
|Newall, L.||Young of Graffham, L.|
|Nugent of Guildford, L.||Zouche of Haryngworth, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 2.10 p.m.
§ [Amendment No. 140AC not moved.]
§ [Amendment No. 140D not moved.]
§ Clause 89 agreed to.
§ Schedule 15 agreed to.
§ Clause 90 [Control of liabilities affecting successor authorities]:
§ [Amendments Nos. 140AE, 140AF and 140AG not moved.]
§ Clause 90 agreed to.
§ Clause 91 [Control of disposals and contracts]:
§ [Amendments Nos. 140AH, 140AJ and 140AK not moved.]
§ Clauses 91 and 92 agreed to.
§ Clause 93 [Preparatory committees of successor councils]:
Lord Graham of Edmonton moved Amendment No. 140AL:
Page 66, line 34, at end insert ("subject to subsection (2A) below").
§ Lord Elton
If the noble Lord will permit, for the sake of the record, I do not think that I heard him name the other two amendments. It ought to be in Hansard. I think that they are Amendments Nos. 140AM and 140AN.
Amendment No. 140AM: Page 67, line 14, after ("commission") insert—("( ) consider, in consultation with the authorities and bodies mentioned in (c) above, whether the purchase and supply of goods required in connection with the discharge of the functions of those councils, authorities and bodies could with advantage be carried out jointly by those councils or any of them and, if of that opinion, promote the making of arrangements in that behalf under section 101 of the principal Act;").Amendment No. 140AN: Page 67, line 19, at end insert—("(2A) Any council dissatisfied with a recommendation made by any such joint committee under subsection (2) above, may refer the matter to the Secretary of State for determination.").
§ Lord Graham of Edmonton
I apologise. Those are the three amendments to Clause 93. The purpose of the amendments is to highlight the impracticability of successor authorities planning for abolition while the Bill is still under consideration. The noble Lord the Minister will be aware that on other matters we have had a canter round the course on what I would certainly say is the virtual impossibility of the time scale.
The Minister is aware that, given the assumption that the Bill will become law in, say, July of this year, there are an enormous number of matters which need to be dealt with by the retiring authorities in order to make way for the successor authorities. By the best calculations, that leaves about eight months in order to do an enormous number of things. The Minister is aware that whenever there have been previous major reorganisations in local government, the par for the course has been about 18 months. In other words, one cannot anticipate too much—and I do not say that one cannot anticipate to a small extent—the final shape of the legislation until it becomes law.
The Government themselves are bringing forward, as in the next set of amendments, new clauses, and it is possible for the shape of the Bill to be changed. We are saying that we really need the Minister to satisfy us—not that there is no need to worry, because I do not think one can offer no worry at all for the Minister or his colleagues, or for the millions of people outside—that he really will have due regard for the anxieties. We have to recognise that the six metropolitan county councils have annual budgets in excess of £.1.6 billion, and they employ more than 70,000 people. We are now considering whether it is possible, in a clean and satisfactory way, to dispose of those responsibilities in the timescale that we have.
The Minister may fairly say that the reason we have such a short timescale is because some people and some political opponents have chosen to exercise their rights to delay the passing of the Bill. I presume the Government would like a Bill, once it is presented, to make all possible speed through another place and 447 through your Lordships' Chamber. But as will be recognised by the noble Lord, Lord Harmar-Nicholls, who nods his head—wisely on this occasion—it is the right not only of Government Back-Benchers but of those on the Opposition Benches to delay the Bill if they feel there is a purpose in so doing.
We are now saying to the Government, "We start from today: never mind the reasons why we are not more advanced." I simply wish to draw the attention of the Minister—and, of course, he and his advisers will be well aware of it—to the note that was issued by the department on 18th April entitled Planning for Implementation. That was based on the assumption that Parliament would agree to the Government's proposals. I think it is a reasonable assumption that Parliament will agree to them with perhaps minor amendments. But let us look at what the retiring authorities have to do. Most of them are the new authorities, and we had a whiff on Tuesday of the residual authorities and their personnel. The Government, quite rightly, are beginning to make some moves, but if the Bill receives Royal Assent in July the new authorities will not be able to meet until September. The joint authorities will have to notify their establishment schemes to the DoE, and the timescale that we have got totally ignores that situation.
I think your Lordships ought to be reminded yet again of the practical problems which are inherent in any administrative change, irrespective of political differences: the transfer, reappointment or dismissal of staff, as appropriate, with all the attendant negotiations; the purchase, rental or transfer of office accommodation and equipment; the distribution of files, computer programs, information systems and legal records to different destinations; and the establishment of proper joint working arrangements. The Secretary of State will have to make decisions and give guidance on hundreds of issues relating to the administration of local government. Legal disputes on the distribution of property, assets and land will be time-consuming, and they will occur on an enormous scale. There not only has to be a consensus to achieve that, but all those things will have to be done at the same time as a great number of other things are happening which have to be dealt with on a day-to-day basis by the GLC and the metropolitan counties.
The Minister has a further opportunity, which I hope he will take, of dealing with the problems which I have outlined. The amendments on the Marshalled List provide the opportunity for councillors and others who feel aggrieved in connection with a procedure, whereby they ought to be able to get a resolution of their problems by making reference to the Secretary of State, and in other ways. That is the case, and I beg to move.
§ Lord Campbell of Alloway
I support the spirit of these amendments, and in particular Amendment No. 140AM, if only because it provides a reserve power which is extremely useful if the boroughs fail to agree. At this hour, I hope that your Lordships will allow a very brief intervention.
§ Lord Elton
May I briefly explain the background to Clause 93? This clause places the London borough 448 councils and the metropolitan district councils in each area under a duty to establish a joint committee to co-ordinate the making of preparations for the take-over of functions on abolition, particularly for those services where voluntary joint arrangements will be needed. This is a sensible preparatory measure, closely precedented in the 1972 Act, and I hope all the councils will take part in implementing it.
In looking at the Amendments Nos. 140AL and 140AN it is important to recognise that the proposed committees will be purely advisory. They will have no power to compel the making of particular arrangements. Therefore, I do not quite understand why the first two amendments foresee the possibility of a disagreement which would need to be resolved by determination by the Secretary of State. If a council disagreed with a particular recommendation by its committee it would simply have to ignore it, so there will not be a conflict. That deals with the actual mechanism of the first two amendments.
I think I ought to rise a little to the bait which the noble Lord, Lord Graham of Edmonton, so expertly cast over my nose a moment ago about timing. It has been suggested—and he suggested—that we are being rather unwisely optimistic in expecting the transition to take place in the time available. He listed a lot of the things that will have to be done. A good deal of it will depend, will it not, upon the goodwill of the bodies involved in the transition from one system to the other. Everything that your Lordships have heard from all but our own supporters in the districts and boroughs may have led you to feel that that goodwill will not be forthcoming, that the successor bodies do not want to take on the duties if they do not happen to be Conservative successor bodies, and that all is therefore indubitably lost.
That is a mistaken view and I have as my authority the leader of Birmingham City Council, Councillor Dick Knowles. I ask your Lordships to remember that Birmingham is not one of those authorities co-operating actively in preparing for the transition at this stage. I am glad that the noble Lord opposite knows about whom I am talking. That friend of the noble Lord wrote to my honourable friend Sir George Young on 26th April making it very clear that Birmingham can do the job in the time available. He said:May I say that we are obviously considering the effects of abolition here in Birmingham but until you get your legislation through we are not able to offer any concrete proposals. As I said to Mr. Jenkin recently it would take no more than 24 hours to assume all the functions which are at the moment the responsibility of the County Council".That may be a trifle optimistic. Birmingham always regards itself with some justification as an exceptionally capable authority. But the message is clear, is it not? Functions are going to the existing, big, competent authorities and they can absorb their new roles in a straightforward and speedy way.
I now turn to the remaining amendment, Amendment No. 140AM, which would add to the list of subjects which the preparatory committees will have to consider. Although the noble Lord spoke to it with the other two amendments it seems to me to be free standing. I see a certain attraction—as did my noble friend Lord Campbell of Alloway—in what is proposed. It is that the preparatory committees would have to consider the purchase and supply of goods and 449 services and the possibility of arrangements being made for the boroughs or districts in an area to provide these services jointly. We regard that as a very sensible addition to the work of the preparatory committees.
I am glad to say that if the noble Lord will give us an opportunity to improve the drafting, we shall be happy to accept it at Report stage. In the process of preparing the revised text, I hope that the noble Lord will agree that it would be sensible if we were to widen the scope of the amendment in order to permit the functions that he has in mind to be carried out jointly, not only by the successor council—as he has suggested—but also by other successor bodies; by joint authorities for instance, or even by residuary bodies. If the noble Lord would be content with that strengthened version of his amendment, I shall have the work put in hand to prepare it.
§ Lord Graham of Edmonton
I am most grateful to the noble Lord the Minister for the manner in which he received that amendment. The ideas he gave of its deficiencies are certainly borne upon me. I am very happy indeed to withdraw that amendment on those conditions. I do not intend to move the other two amendments. Whether we come back with amendments later remains to be seen.
The Minister is buttressed in his belief that the problems about the timescale will not necessarily be borne out, and he quotes in aid the letter from my very good personal friend, Councillor Dick Knowles, who speaks from long experience and in the light of the inquiries he has made as to the ability of Birmingham to take on these burdens. However, we were concerned not only with the problems of people receiving, but with the problems of people who have to unload. It is no secret that we are taking advice primarily from the GLC and the metropolitan counties. They are the people who are the subject of the burden of the Bill, and they are arguing about their problems in carrying out their responsibilities in passing over, which are slightly different from the willingness or the ability of the people who are to receive.
It was not at their end that I saw the problem; it was at the end of the people who are to do the winding down rather than the winding up. But the Minister and I are well enough experienced and our relationship is such that we understand the words, "We will wait and see. The proof of the pudding will be in the eating". I certainly hope that if the Bill sticks to the dates we shall not have to come back in perhaps 12 months' time and say that there is an enormous problem; because the last thing I want is to see local government people—councillors, officers and ratepayers in the area—faced with the kind of problems that we are told could very well occur—
§ Lord Lloyd of Kilgerran
Before the noble Lord sits down, may I intervene? It is an historic occasion when I find myself in agreement with the noble Lord, Lord Campbell of Alloway, and the Minister, with regard to the third amendment, No. 140AN. In saying that he was sympathetic to it, the Minister added some words about broadening the functions. I am sorry, but I did not quite catch what functions he had in mind.
§ Lord Graham of Edmonton
The functions in the amendment, but not necessarily restricted to the bodies with which we are concerned. What the Minister said was that perhaps there were other bodies, besides those mentioned here, which could usefully be brought into consideration. What the Minister has said is that a strengthened version of this amendment will appear at Report stage, which will provide us with the opportunity of being either satisfied or not satisfied. Does the noble Lord, Lord Lloyd, wish to intervene?
§ Lord Lloyd of Kilgerran
If the words that he has put into the Minister's mouth are correct, I am glad to leave it at that and that will help me with regard to other amendments that I have in mind.
§ Lord Elton
I do not know whether my enunciation has been clear enough. I am advised that I should have said Amendment No. 140AN and not 140AM. I am told that I got it right and it is the third amendment on the Marshalled List. I am in a difficulty here because we are talking about the considerations, which are in the second amendment. It is the considerations that should be extended. I think I was right. It is Amendment No. 140AM, which is the second amendment, which contains the functions, about which the noble Lord, Lord Lloyd, is concerned, and the bodies, about which the noble Lord on the Front Bench opposite is concerned. My concern is that when the amendment comes forward it should not limit the bodies which can discharge the same functions to the successor councils, which would also include the joint bodies and possibly the residuary body. I hope that I have now made it clear even to myself what it is I am talking about, and I shall sit down.
§ Lord Graham of Edmonton
Whether It is amendment No. 140AM or 140AN, it is an initial mistake which I am prepared to overlook at this stage. We have agreed that the Minister will bring forward some improvement at the report stage. I am happy to leave it until then and I beg leave to withdraw the Amendment.
§ Lord Campbell of Alloway
Before the noble Lord sits down, can he confirm that his understanding is mine, and that it is Amendment No. 140AN which will be expanded to include No. 140AM and that a redraft of this will appear at Report stage? Is that his understanding?
§ [Amendments Nos. 140AM and 140AN not moved.]
§ Clause 93 agreed to
§ Clause 94 agreed to.
§ 2.30 p.m.
Lord Elton moved Amendment No. 140B:
After Clause 94, insert the following new clause:
§ ("Other provisions for implementation of Act.
§ .—(1) Without prejudice to sections 93 and 94 above and to section 5 of the Local Government (Interim Provisions) Act 1984, 451 it shall be the duty of the relevant authorities and their officers to co-operate with each other and generally to exercise their functions so as to facilitate the implementation of this Act and any transfer of functions, property or staff made under this act or, in connection with this Act, under any other enactment.
§ (2) A person in the service of the Greater London Council or a metropolitan county council may enter into a contract of employment with a successor authority for the rendering of services by him to that authority concurrently with his service to the council.
§ (3) Subsection (2) above has effect notwithstanding anything in a person's contract of employment with the Greater London Council or a metropolitan county council and neither his entering into a contract of employment with a successor authority nor anything done by him in pursuance of such a contract shall be a ground for that council to terminate his employment.
§ (4) In this section "relevant authority" means the Greater London Council, a metropolitan county council and a successor authority and "successor authority" means a London borough council, the Common Council, a metropolitan district council, a new authority and any other body to which functions or property of the Greater London Council or a metropolitan county council are transferred by or under this Act or any other enactment.").
§ The noble Lord said: This is an addition to the measures already in the Bill that are designed to assist and facilitate the process of implementing the Bill. Subsection (1) of the new clause places all the councils and their officers under a duty to co-operate with each other and to exercise their functions in a way that will facilitate the implementation of abolition and the consequential transfers of staff and property. In other circumstances, your Lordships might think that this was an unnecessary provision, but we are not dealing with normal circumstances; nor are we dealing with people with normal political motivation and standards of conduct.
§ I have already told your Lordships that some upper-tier authorities, and notably the GLC, have threatened their staff with the "sack" if they co-operate towards the implementation of this Bill, and even for talking to Government staff or to staff of lower-tier successor authorities about plans for the future. This is not in the interests of the public; still less is it in the interests of the staff. The staff need to be protected from their employers, although it pains me to say so, and that protection is here. This amendment makes it absolutely clear that in co-operating they will simply be carrying out their statutory duty. They will, I am sure, welcome this clarification, and they will welcome the day when their employers recognise their own duty to their electors and successors as well as to their staff to smooth the path to a new and more efficient form of local government.
§ Another means of securing that smooth transition is embodied in the more specific provisions of subsections (2) and (3) of the new clause. These are intended to provide for dual appointments. They will enable some GLC and MCC employees to hold posts with a successor authority while continuing to work for their main employers. In this way, successor authorities will be better able to prepare for their new responsibilities by drawing upon the experience and expertise of those now running the services. I remind your Lordships that such arrangements were a feature of the 1974 reorganisations. The arrangements made then were made by agreement between the two employing authorities. I regret to say that in the view of some staff representatives that agreement is not 452 likely to be forthcoming from some of the present upper-tier authorities.
§ Because of a threat by the Greater London Council to which I have just referred, we have to take that view seriously. We have received representations about this from employees of both the GLC and the metropolitan county councils. They have quite properly expressed professional concern about the future of the services on which they work. They are also, understandably, anxious to secure their own future employment after abolition. This amendment is designed to meet both those concerns.
§ It does not mean, I hasten to reassure your Lordships, that the GLC or the MCC in question can be deprived of the services of any of their staff to any extent if they remain unwilling to agree to an officer giving some of his time to a successor authority. Of course we hope that the upper-tier authorities will enter into such agreements; but where they do not, and where a member of their staff is prepared to work for his or her prospective new employer outside normal working hours, this amendment will make it clear that he or she is permitted to do so and such action cannot provide grounds for dismissal. It will therefore remove some of the barriers to dual appointments and give protection to those staff who are offered such posts and wish to take them up in the way that their predecessors have done in earlier reorganisations.
§ We hope that the GLC and the MCCs will reconsider their attitude towards co-operation with successor authorities, particularly in the light of the duty placed on them in this clause. We do not underestimate the difficulties that they will face, to which the noble Lord, Lord Graham of Edmonton, referred a moment ago, in operating services during those final few months. However, in this period they will, or should, be primarily concerned with running their services and not with planning for the future. It will be their successors who will have to plan for the future operation of those services. It is, of course, staff already engaged on planning work of that kind who have the most to offer successor authorities. We hope therefore that the GLC and MCCs will allow them to make that expertise available by facilitating dual appointments. I believe this is a sensible provision and I beg to move.
§ Baroness Birk
I cannot let this new clause go by without making a number of comments. Subsection (1) seeks to lay an entirely new and sweeping statutory duty on all the relevant authorities and their officers. As the Minister explained, that duty is,to co-operate with each other and generally to exercise their functions so as to facilitate the implementation of this Act".In moving this new clause, the Minister observed that we are not dealing with normal circumstances. He is absolutely right. But then, we are not dealing with a normal piece of legislation, either. We are dealing with an extremely controversial piece of legislation. It is entirely new and different from anything that has passed through Parliament in living memory.
This new clause is attempting to legislate for what is known as the field of human relations. It tells people that they must co-operate with each other. This is an extraordinary provision to put onto the statute book. There are many more worthwhile provisions which could be put in the statute but which the Government 453 have refused because they say that such proposals have not been exact or precise enough. I should have thought that this clause was the most imprecise way of expressing matters and that it was not the kind of provision one should put into a statute. The Government could send out circulars saying that they hope people will co-operate, but they should realise that this proposal must be seen in the context of this particular Bill.
A number of difficult conflict of interest and duty issues could arise from such a provision. It would cause intense professional, managerial and other difficulties over and above those resulting from the Government's existing controls. We have already gone back, through the paving Act, to contracts, disposals and Section 137 payments, and retrospective provisions—some of which we discussed this morning. There are also the information disclosure provisions of the paving Act.
Professional officers, including the Director-General of the GLC and the chief executives of South Yorkshire and the other metropolitan counties, have already publicly placed on record their difficulties. Despite this, the Government have not provided any evidence of breach of duties. Now they are extending those duties in a vague and sweeping phrase which can only add to the whole climate, when the Bill is already as controversial as it is at the moment.
§ Lord Elton
May I put the noble Baroness right? The proposed clause is not an extension of anything of the sort. It is, as the noble Baroness says, a rather general statement—such as one might hear from one of the right reverend Prelates eloquently enunciating from the pulpit. It is saying simply, "You should be good". But the reason for saying, "You should be good", is to stop mother smacking you when you go outside and start being good.
At the moment, councils are in the position of smacking people who are good. They are saying, "If you co-operate—which is what you should do, because that is what Parliament has demanded and it is what the statute is about—you will lose your job". We are simply telling the councils, and making it clear, that such would be wrongful grounds for dismissal. This is done so that people will not be put in fear of losing their employment because they are obeying the law.
§ Baroness Birk
The Minister has underlined the point I was making. He says that this is just a general statement. He compared it with something that one of the right reverend Prelates might say from the pulpit. I do not believe that the right reverend Prelates would agree for one moment that what they say should be lifted and put into a piece of legislation, but that is what the Minister is doing. He is doing exactly that. That is what I object to.
§ Lord Elton
I do not know how the right reverend Prelates feel about that. I think that if we could be legislated upon to be good, they would be the first at the Table to put down the amendment.
§ Baroness Birk
Even in regard to this Bill our job is not to legislate for people to be good. Where would that lead us? We were talking earlier about slippery 454 slopes. This proposal is certainly a slippery slope to some kind of authoritarian state. What criteria does one set up? We then come to the sanctions that arise. How does one enforce them? Will people have the right of appeal? I suppose the Secretary of State takes the matter on and then obtains an injunction, an order of mandamus, and goes through the courts. But nothing of that nature is in the new clause. However, when it comes to—
§ Baroness Birk
If the noble Lord does not mind, I shall finish. I do not have much more to say and I am coming to a part where I can give a little to the Minister. I should like to make one quotation from the GLC's Director-General, Maurice Stonefrost, CBE. He said:Government should not impose statutory obligations to do a job unless they provide the tools to do it.That is the trouble. The Government are not providing the tools. They are providing, in the Minister's words, a nice general statement telling people to be good. In my opinion, that is not good enough for legislation.
I turn to subsections (2), (3) and (4). In the context of the Bill I agree that dual appointments have some validity. We are, therefore, partly agreed on that. But there remain difficulties of interpretation. What happens if the exercise of council functions,to facilitate the implementation of this Act,conflicts with other statutory duties? This is a serious possibility. In some instances it might be literally impossible to fulfil both of a pair of conflicting rights.
I give a brief practical example, because that will be much shorter than spelling it out. A functional officer may be appointed by a successor authority on dual appointment. He will then be expected to work for the successor authority on taking over a new function and to continue to carry out his full-time function with the GLC or the metropolitan county council, if attached there, and to do so in a situation of uncertain administrative support. That is what is lacking in the whole Bill: the building-up to it, how it is to be worked out, and what the administrative and managerial arrangements will be. He must also provide information to a multiplicity of boroughs or districts, other successor bodies and the Government. That is what he can be called upon to do; and to do all that under pressure, or threat, of statutory sanction for failure. So we then have the sanctions coming in. The new clause could turn out to be a legal minefield, with almost endless possibilities for litigation over such issues as the definition of "co-operation".
In summary, the main issues are clear. The new clause would displace and undermine the elected authority of the councils concerned. It would seek, in ways which would be probably unworkable, to compel councils and officers to become a substitute for the lack of Government machinery to implement abolition. Finally, in my opinion it is a devastating comment on the Bill if, in order to make it work, one has to bring in such a clause. I disagree with this new clause.
§ Lord Denning
I should like to support the amendment, whether it is a duty to be good or a duty to co-operate in the implementation of the Bill, or the Act as it may be. I agree that it is an entirely new duty so far as the law is concerned. On the other hand, there is machinery in the courts for judicial review. Now the courts can command a local authority, or any of these bodies, to do their duty. They can command the authorities to co-operate and if they refuse the court can enforce their order or set aside anything that the bodies have done. It is a valuable new provision and it will enable the courts to deal with any misconduct by the successor authorities. It is a very important provision which will protect the staff in the new situation.
§ 2.45 p.m.
§ Lord Boyd-Carpenter
I, too, welcome this amendment, although I deplore the necessity for it. The noble Baroness said it was a devastating comment on the Bill that this should be necessary. I should vary that a little: I would say that it was a devastating comment on the GLC, and perhaps some of the other metropolitan counties, that it should be necessary. However, it is patently necessary. The instruction, given by the GLC, in particular, to their staff not to enter into discussions with the successor authorities, despite the progress which this Bill has made, is quite an outrage and it imposes on their staff very considerable stresses and difficulties.
Subsections (2) and (3) of this new clause give staff the comfort of knowing that if they behave reasonably and responsibly and talk to the successor authorities, they cannot be dismissed for it. In the circumstances, I am really a little surprised that the noble Baroness should seek to oppose it.
§ Baroness Faithfull
Perhaps I may ask the Minister what is, I expect, a very simple and naïve question. Supposing a member of staff wanted to take redundancy and did not want to either stay or go: is this permitted?
§ Lord Elton
I do not think that is actually relevant to this particular amendment. I shall prolong my remarks sufficiently to discover whether I am right in that assumption. I had intended merely to say that the intervention of the noble and learned Lord, Lord Denning, had, as usual, in six sentences disposed of the need for 12 of my paragraphs, and that my noble friend Lord Boyd-Carpenter had disposed of the need for the rest of my speech.
However, in view of this intervention, I think I shall take the opportunity to tell the noble Baroness that of course the person taking dual appointment will not be the sole employee of the second authority and under the law both authorities will be pursuing the same objective. Thus there will not be a conflict of loyalty. If there is any doubt in the minds of the main employing authority, they can say, "You cannot do it in our time". It will then be a matter for whether the employee wishes to work part-time, in his or her own time, for the other authority. That may be only a little amount of time, but it will be most valuable because it will come from somebody who understands the 456 system that the existing authority is running and which the new authority will have to take over.
As I thought, my noble friend's question is not strictly relevant in this part of the Bill. However, if a member of staff does not get a new job—I am lost for a main verb, but we have adequate redundancy arrangements in the Bill.
§ Baroness Phillips
I am sure the Minister will tell me that this is irrelevant but I cannot find any other part of the Bill in regard to which to mention it. I personally know of many people who were employed by the Middlesex County Council when it was abolished in favour of the Greater London Council. These people became the employees of the Greater London Council. Now that they are retired they are seeking information on where their pension rights remain. They have been told that they rest with the London residuary body. Bearing in mind that this is of only a four-year duration, and knowing the habits of Governments in relation to pensions, it seems to me that they want a much greater assurance than that. I feel that this is very relevant when one is talking about people transferring from an authority which has been abolished to another authority which is comparable.
§ Lord Elton
I think there was an earlier opportunity and my noble friend Lord Gowrie dealt with it better than I can. I can confirm to the noble Baroness that it is the residuary body, and in this case the London residuary body, that will have the responsibility. However, it has a duty to establish a permanent arrangement before it is dissolved and to attempt to do so within the first five years of its life.
I should require notice of that question because, as I say, this particular part of the Bill was one on which I had some very welcome help. However, I can tell the noble Baroness categorically that all pension rights will be fully safeguarded. Perhaps she will be kind enough to tell those who are worried that that is the case and I shall write to her explaining the machinery of it.
On Question, amendment agreed to.
Clauses 95 and 96 agreed to.
§ Clause 97 [Transfers of property, rights and liabilities]:
§ [Amendment No. 140C not moved.]
Lord Graham of Edmonton moved Amendment No. 140CA:
Page 70, line 7, leave out from ("person") to second ("of") in line 8.
§ The noble Lord said: With this amendment I suggest that we also discuss Amendment No. 140CB.
Amendment No. 140CB: Page 70, line 18, leave out sub-section (3).
This matter should not delay the Committee too long. The subsection that we are seeking to delete gives the Secretary of State power to transfer to anyone receiving property under Clause 97 the functions that go together with that property. In practice, this power will need to be used extensively. The face of the legislation gives little hint of the range of matters that will need to be covered by orders. The relevant order in 1965 ran to some 60 or 70 pages. A mass of detail
was required at that time to be covered. In most cases, it concerned the transfer of continuing functions from the existing authorities, the LCC and the Middlesex County Council, to a single new authority. The orders required under Clause 97(3) can be expected to be considerably more complex, distributing functions between 33 London boroughs, two joint boards, the residuary body and a host of quangos.
§ One of the areas where we believe a specific order will be required relates to open spaces. There will be a need for orders to transfer a range of open space functions to the boroughs. For instance, Wormwood Scrubs is run under powers in the Wormwood Scrubs Act 1879. In addition, Blackheath, Dulwich Park, Finsbury Park, Hainault Forest and Hampstead Heath are all covered by specific Acts. Tunnels, bridges and piers and the functions controlling them and all the Thames bridges administered by the GLC will need to be transferred to specific successors. Rotherhithe Tunnel is administered under a special Act. The Thames piers are administered under powers in the General Powers Act 1973.
§ A special Act, the County Office Site (London) Act 1906, governs the maintenance of the embankment in front of County Hall. Temple station, the Thames barrier and Park Lodge Farm are other examples. So, too, are golf courses, pipe subways, the Woolwich ferry and protective provisions against statutory undertakers. We believe that Ministers should give Parliament a clear indication of the functions that will be affected by such orders referred to in the clause. I beg to move.
§ Lord Elton
Amendments Nos. 140CA and 140CB seem to, and indeed do, portray a certain unease about the scope and purpose of Clause 97. The noble Lord has asked me to reassure him. Clause 97 is a necessary and, in most respects, familiar provision in a Bill of this kind. The GLC and the MCCs are large and complex organisations. They hold, as the noble Lord has reminded the Committee, much property and have obtained many rights and incurred many liabilities either as heirs of earlier abolished authorities or in the course of the discharge of their statutory functions.
This Bill will abolish the seven councils and transfer their functions. Accordingly, powers are needed to transfer the related property in order to implement the reorganisation. Clause 97 is intended to provide for these consequential transfers wherever this is not specifically provided for on the face of the Bill and to provide for all matters incidental to those transfers. Amendment No. 140CA apparently seeks so to confine the scope of Clause 97 as to prevent a transfer to a Minister of the Crown. I say "apparently" because the amendment strikes out a clarifying term in the provision but it leaves in the clause the word "person", and I am happy to assure the Committee that all my colleagues are very warm and human persons. It follows that the amendment does not prevent transfer of property, and so on, to central Government in the person of my colleagues, nor should that be prevented.
As I said, the clause is there to implement the provisions of the Bill as a whole. In a very, very few cases those provisions envisage a transfer of responsibilities to the Crown. That the number of such 458 transfers to the centre is small flows from our philosophy of devolving functions from the GLC and the metropolitan county councils to the boroughs and districts except where that is impracticable. Rut in provisions such as paragraph 53(2) of Schedule 4 the Bill expands a few Ministerial responsibilities. It would therefore be inconsistent with the decisions that this Committee has already taken if this amendment were to be accepted, even if it had been rendered effective.
Similarly, it is a necessary part of Clause 97 that it should contain subsection (3)—the power to confer the upper-tier functions related to property by order on the recipients of that property. We have, for example, make it clear that we intend to transfer the GLC's interest in Thamesmead on a temporary basis, perhaps only for a day, to the London residuary body. If so, the transfer would be under Clause 97 and would need the residuary body to have for the time that it owned Thamesmead the powers requisite to manage the housing as if it were a local housing authority. There will, I have no doubt, be other examples where after enactment of this Bill property transfers will be decided upon which would implement the Bill but which would not be fully effective without conferral of functions.
That illustrates three points. First, the power in subsection (3) of Clause 97 applies only within the confines of the Bill. It cannot be used to subvert the purposes of the Bill. Indeed, we should not countenance a power of that kind. Secondly, the power imposed is a necessary complement to the transfer of property in or under the Bill. Thirdly, any functions conferred under the power would subsist only in relation to the property concerned. They could not be used to create, for instance, a mini local housing authority at Thamesmead.
The 1972 order to which the noble Lord referred was to transfer property but not to transfer functions. There will of course need to be an order transferring local Act functions under Clause 98 in so far as they are not dealt with in Clause 16. But virtually all functions under public and general Acts are dealt with in the Bill.
§ Lord Graham of Edmonton
I shall read carefully what the Minister has said and consider action at the next stage of the Bill. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 140CB and 140D not moved.]
§ Clause 97 agreed to.
Baroness David moved Amendment No. 140E:
After Clause 97, insert the following new clause:
§ ("ILEA Offices.
§ . The Secretary of State and the London Residuary Body shall so exercise their functions under this Act as to ensure as far as is practicable that, from the abolition date, the Authority established by section 17 above shall have the same use occupation and enjoyment of the same offices meeting-places and facilities as held immediately before that date by the special committee referred to in section 30 of the London Government Act 1963, and in the event of the Authority being required to cease to have such use occupation and enjoyment the Secretary of State shall pay to the Authority such compensation as will enable the Authority, without cost to the ratepayers of the Inner London Education Area, to acquire the ownership of and reinstate itself in reasonably equivalent accommodation.").459
The noble Baroness said: The purpose of this amendment is to ensure that the new Inner London Education Authority retains the accommodation at County Hall which it now occupies or, infinitely less preferable, is paid compensation by the Secretary of State to enable it, as the amendment says,
to acquire the ownership of and reinstate itself in reasonably equivalent accommodation".
§ ILEA at present occupies the listed building part of the GLC buildings. As I am sure all noble Lords are aware, that is the part which we can see from the terraces of the Houses of Parliament on the other side of Westminster Bridge. The cost of moving it from County Hall could be at least £100 million, which is an enormous sum. It would mean disruption to the education service in inner London, causing severe administrative difficulties and the uprooting of over 2,000 staff.
§ The cost of purchasing a vacant building for the new authority would be at least £60 million. Because the new ILEA will be a directly-elected public authority, any new building will have to be adapted to enable access by the public to the democratic processes in committee and in the council chamber. County Hall already has a council chamber, a conference hall and committee rooms, and is readily accessible to the public. In short, it has the necessary facilities. Adapting any new building into a properly open civic building could cost millions of pounds. It is necessary to have a building which is fairly central to the inner London boroughs.
§ 3 p.m.
§ In addition, the new ILEA will have to reproduce and reconstitute a new and complete infrastructure currently provided by the GLC. County Hall now houses 1,344 ILEA staff, but there are nearly 1,000 other staff employed by the GLC who would also need to be accommodated: staff such as the architects, valuers, engineers who currently design, build and maintain ILEA's 1,450 educational and other establishments, its 1,670 residential staff properties, its 190 residential properties—quite a maintenance problem.
§ In addition, all the clerks who service ILEA's committees are employed by the GLC, as are a considerable number of experts who service the GLC computer on which ILEA is dependent. It has been estimated that the installation of a new computer, telephone provision, the cost of adapting a new building to civic purposes and removal expenses alone would cost £8½ million.
County Hall has been the home of London's education service for more than 60 years. It would therefore seem appropriate that it be transferred to the new directly elected ILEA. Sir George Young, in another place, during the Committee stage of this same Bill, stated:
The important point is that County Hall should be put to good use. It will be the responsibility of the London residuary body to ensure that that happens.
We propose that County Hall is transferred to the residuary body. That will not mean that ILEA staff will be thrown out on abolition day. We made that clear during a previous debate. They and the staff of the residuary body will need to continue in occupation for a time. Our intention is that at an early stage the
London residuary body will institute a feasibility study of the possible future uses of the building".
§ That was in col. 1818 of Hansard on 28th February.
At a later date, on 5th March (at col. 1919) Mr. Kenneth Baker asserted:
I wish to make clear, however, that the assets belong to the ratepayers of London. They have paid for County Hall and for all the properties that the GLC own. The residuary body, to the extent that there is a surplus, will be responsible for disposing of the properties and returning the money to the ratepayers of London".
§ However, it has now become clear, both through leaks to the Sunday Times on 19th May 1985—and that has already been commented on in this House by the noble Lord, Lord Bancroft, on Monday last—and from the statement of the noble Lord, Lord Elton, on 20th May in this Committee that the Government are intending to use the proceeds of the sale of the GLC's surplus assets, which has been taken to include County Hall, to finance and endow a charitable trust for London, "whose purpose will be to provide assistance to voluntary bodies". Those last few words are the noble Lord's. In other words, instead of returning these assets to the ratepayers of London the Government intend to ensure that they, the ratepayers, in addition to financing the GLC's existing assets will be expected to pay directly for the proposed voluntary trust fund.
§ Furthermore, if correct, the weekend statement would seem to conflict directly with the pledge quoted above and given by Sir George Young that County Hall is to be transferred to the residuary body, who will be asked to carry out a feasibility study of its possible future uses. If the feasibility study were to take place, it is difficult to see how any proceeds from the sale of County Hall would be available before 1987.
§ On which pledge do the Government intend to renege: the pledge made by the noble Lord, Lord Elton, on Monday to the voluntary organisations or the pledge made by Sir George Young and Mr. Kenneth Baker that County Hall would be transferred to the residuary body?
§ In view of the decision made in this Committee to approve the amendment removing ILEA from the effect of abolition or reconstruction without fresh legislation, it would appear that there is considerable support for stability within the education system. The new directly elected ILEA should be able to stay where it is and get on with the important job of maintaining London's education service with the least possible disruption.
§ Amendment No. 140E is designed to cover the gaps in the Government's position by statutorily ensuring the availability of the present accommodation on the same basis as at present. If that is not agreed, the Secretary of State should provide new accommodation without charge to the authority's ratepayers. We want to know what really are the Government's intentions? Can the Minister clarify them, because a great many employees and, indeed, all those who depend on the Inner London education service are waiting to hear what those intentions are and where they can expect to be in a year's time? I beg to move that this new clause be incorporated in the Bill.
§ Lord Harmar-Nicholls
I think it would be unwise to accept this amendment or anything like it in terms of the words used. I can well understand the concern of 461 the noble Baroness and I support it, for we want to see that ILEA is properly housed so that it can carry out its very important functions. Everybody wants to see that. The residuary body and those who will have to carry out the work will do all they can to achieve that sensible aim. But this amendment goes too far. What it says is that ILEA shall be reinstated in "reasonably equivalent accommodation" to County Hall.
County Hall is a very prestigious building situated bang in the middle of everything which may be used for all sorts of bigger national projects than even the important working of ILEA. When it comes to suggesting that somewhere equivalent in terms of cost could be found, without its being a waste of money for what is needed, the noble Baroness ought to think again. I am not certain of the proportions, but I gather that ILEA occupies less than a quarter of County Hall.
§ Baroness David
I am referring to that part of County Hall which is now occupied by ILEA, not the entire complex.
§ Lord Harmar-Nicholls
No, quite; that is what I mean and that is why it would be so unwise. It is a national asset and a very valuable property. To divide it up in some sort of haphazard fashion which would completely interfere with a bigger, wider or more national use would be unwise. In no circumstances should we leave ILEA with anything other than proper accommodation in which to carry out its most important task. I do not disagree with that at all, but to insist that the measure of satisfactory accommodation is equivalent to County Hall, with all its special facilities and expenses, would be unwise. I should be very surprised if my noble friend felt that he could begin to accept these sort of words.
§ Lord Elton
Amendment No. 140E was originally part of a group from which the first two dropped off. These were amendments which in their different ways sought to secure a privileged position for the new ILEA in the complex of buildings across the river. We have made clear on a number of occasions that County Hall is to be transferred at abolition to the London residuary body. If the noble Baroness thinks that there are no other assets of the GLC which will be available for the funding of the trust for London that I spoke of earlier, she is entirely mistaken. That commitment does not depend upon disposing of County Hall. So I should like to lay that to rest.
The residuary body will be taking responsibility for a number of services, such as computing, which are housed in the building already, and it is to be the residuary legatee for the GLC. It will therefore be fully in accord with the principles of the transfer of property consequential upon the Bill for the residuary body to inherit the County Hall complex. But we are well aware of the use which the existing ILEA makes of the building. Its central administration occupies a substantial proportion of the accommodation, though not, I understand with my noble friend, as much as half, and the authority itself meets in the Council Chamber.
It is no part of our approach to disturb the operation of ILEA at abolition day. The new authority will be 462 able to continue to use the buildings much as is done at present. I have no doubt that the authority will settle the arrangements for this with the London residuary body during the run up to abolition, but I can assure the Committee that the new ILEA will not be out on the streets on abolition day. In the longer term the residuary body will no longer need the buildings. The body will be required to undertake a study of possible uses of the complex. The decision on the future of the building will be taken in the light of that study. Again I assure your Lordships' Committee that the study will take account of the position of the new ILEA.
This amendment seeks to establish statutory rights for the new body. This is not necessary. I have explained that the position of the new authority will be secure at abolition, and will be taken into account in decisions about the building's future. The noble Baroness wanted to go further and make the expense of administering local authority education in London a charge on national finance. She said, as I read her, that the authority should be housed, under a guarantee by Government, in equivalent accommodation. What I am seeking to say to your Lordships is that local authority education always has been and of course always will be carried out at the expense of local authorities.
§ Baroness David
I was trying to say that the buildings that are there now have been paid for by the ratepayers of London, and therefore the ratepayers of London should have some say and benefit if anything is done with those buildings other than to use them for their present purposes. But I should like to ask the Minister whether, when this feasibility study is made, proper consideration will be given to the whole infrastructure that the GLC gives to ILEA at the moment; that is, all these others—architects, engineers, maintenance staff, committee clerks and so on—who are provided by the GLC and used by the ILEA, so that they need to have a great deal of accommodation besides that which is particularly the ILEA officers' accommodation. I should like to ask whether all that will be given proper consideration when this feasibility study is made.
§ Lord Elton
On the first point raised by the noble Baroness, I will repeat yet again that all the assets realised on abolition within a metropolitan county council area or the GLC area will be used for the benefit of the people who live there; so there is no question of Londoners losing the benefit, in whatever form, of County Hall. It will not be whisked away to pay for the National Debt, or anything like that. What we are talking about is how the building itself shall be used.
I can tell the noble Baroness that the feasibility study will take account of all relevant considerations at the time; but, of course, some of the matters she raised a moment ago are matters which fall into the debate we had on what I now think of as the Cranbrook amendments, which relate to the other services in the building. The result of the arrangements that we are making in relation to that part of the Bill will very much affect how much of it will remain relevant at the time the future of County Hall comes to be considered. I cannot guarantee that every one of the functions to 463 which she has referred will be relevant, because they may not be there; they may have been transferred elsewhere. But I can tell the noble Baroness that the full use of the building will be properly considered.
§ Baroness David
I have had some assurances, but I should like to read what the Minister has said when it is printed in the Official Report. However, for the moment I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 141 had been withdrawn from the Marshalled List.]
Lord Hooson moved Amendment No. 141ZA:
Page 70, line 40, leave out paragraphs (a) and (b).
§ The noble Lord said: I had a particular reason for tabling this amendment, which stands in my name and that of the noble Baroness, Lady Birk; and also Amendment No. 143.
Amendment No. 143: Clause 100, page 72, line 5, at end insert—
("(lA) No order shall be made under this Act unless a draft of it has been laid before and approved by a resolution of each House of Parliament.").
§ It was to call your Lordships' attention to the lamentable fact that this Bill establishes a new highwater mark in the use of delegated legislation. Let me give your Lordships the number of such provisions within this Bill. There are 64 separate provisions for the use of delegated legislation: two for Orders in Council, two for affirmative procedure, 51 for negative procedure, one for an order to be laid before your Lordships' House after it has been made, and eight providing for no parliamentary procedure at all. I have never known any Bill to contain so many enabling powers as this one.
§ 3.15 p.m.
§ The sinister thing about this Bill is the quality of these powers. They include the ability to take decisions on policy and principles that have not been decided or debated in Parliament at all. This Bill as drafted, whether intended to be so or not, is an attack on democracy. Clause 98 enables the Secretary of State by order to exercise huge powers, and Clause 100 (to which my second amendment, No. 143, applies) contains provisions regulating how these orders are to be made.
Perhaps I may briefly set out for your Lordships the powers given to a Minister under this Bill: enabling him to amplify, to change or to vary the distribution of functions, of power, of property set out not only in the provisions of this Bill but of other Acts of Parliament which Parliament has considered and approved. Successor bodies can set up shadow bodies and make existing bodies pay for their particular provisions. In fact, if one looks at Clause 98 one sees in subsection (1):
The Secretary of State may at any time by order make such incidental, consequential, transitional or supplementary provision as appears to him to be necessary or expedient".
And there are two qualifications under paragraphs (a) and (b) of that subsection setting out the restrictions or the limitations on that.
I shall come back to the words "necessary or expedient" in a moment; but if we look at the
sweeping powers given under subsection (2)(a) (which I suggest should be omitted) they will enable the Secretary of State by order to provide that successor authorities may do anything required as preliminary to the exercise of their transferred new power. If we look at subsection (2)(b), that will enable the Secretary of State by order to make arrangements for the satisfactory operation,
of any provision made by or under this Act.".
§ There is a precedent and a very bad one for some of the powers provided in this Bill. Indeed, the Secretary of State in another place sought to excuse rather than to justify this particular provision by reference to that precedent. That precedent is Section 254 of the Local Government Act 1972. He pointed out that the powers under that Act had not been used for any earth-shattering or highly important purposes and claimed that the orders under this Bill must be for the general or particular purposes of this Bill and for incidental, consequential, transitional or supplementary purposes.
§ May I pose this question: What are the limits to what the Government might see as being incidental, consequential, transitional or supplementary? The Secretary of State has not attempted to spell it out. No Minister has attempted to spell it out in your Lordships' House. Nowhere do we find in this Bill a limitation. There are no limits set out on what are necessary or expedient for general or particular purposes of this Bill. Although I think that Section 254 of the Local Government Act 1972 is a bad precedent, and that justification in retrospect given for it is that its powers have not been used or had hardly been used—and not the powers themselves—there is still a very significant and sinister difference between its wording and the wording in Clause 98 of the present Bill.
Section 254 of the 1972 Act speaks of,
such incidental, consequential, transitional or supplementary provision as may appear [to the Secretary of State] to be necessary or proper".
In this Bill the corresponding words appear as "necessary or expedient". It may be that I am naive in asking the question: Why substitute the word "expedient" for "proper"? What does the Minister consider would be expedient but not proper? Perhaps we could have the benefit later of the observations of the noble and learned Lord, Lord Denning, on the possible interpretation of the word "expedient", which is a very much wider word than "proper".
§ The powers are, I believe, too wide and they constitute a threat to democratic government. I am no expert on local government and have always had a fairly open mind on all-purpose councils and so on as being a possible helpful development in this country, although, if I may say so, I would have thought that if there is any area in the country rather than anywhere else, that needs a democratically-elected strategic authority, it is London.
§ These provisions and the unprecedented nature of the proposed delegated legislation in this Bill display to the world at large the Government's lack of confidence in the actual provisions of the Bill. There has been a pathetic lack of preparation, forethought and planning. It has gone through the other place and it is 465 now lurching through your Lordships' Committee with expedient added to expedient. Both in this Chamber and also, I think, in the other place, Ministers have given the impression of thinking on their feet, and sometimes thinking for the first time on their feet, as certain of the practical problems have been pointed out. The result is that the Government have tended to resort to what are virtually unacceptable constitutional practices.
§ We had earlier today an amendment moved by the noble and learned Lord, Lord Elwyn-Jones, when he drew attention to what the Secretary of State for the Environment had himself said about retrospective legislation in 1965: that it was a "a damned slippery slope". In fact we heard a justification from the Minister today for the retrospective legislation in this Bill, when he pointed out two precedents that had occurred when the noble and learned Lord, Lord Elwyn-Jones, was respectively Attorney-General and Lord Chancellor. The very argument illustrated the "slippery slope" danger—that is, these expedients are resorted to because a Bill has not been carefully thought out. And here we are giving enormous powers to the Secretary of State which I think are entirely without precedent in both their volume and their quality.
§ The noble Lord, Lord Elton, said on Second Reading that the Government's proposals would give the electors a closer interest in local government affairs. He said also that democracy is strongest where the voter is closest to the seat of power. Those were totally acceptable sentiments which he expressed; but this Bill does not begin to fulfil those beliefs or indeed the hopes and beliefs of Ministers of the Government, because what has happened in this Bill is that the power is really being firmly placed behind the closed baize doors of Whitehall, not, as it were, very close to the people. And the unprecedented number of powers of delegated legislation, together with nearly 60 other provisions of consents, directions and so on that are necessary under this Bill, show that the real power has been moved to Whitehall. I do not think that is the stated intention of the Government.
§ My purpose in moving this amendment—and I have in fact spoken to Amendment No. 143 at the same time—is to alert your Lordships to the great dangers of this course of action and the consequences of an ill-thought-out Bill coming before us, when in fact many of the problems are going to be left to be decided by a Minister, and he may not even be a Minister of this Government. The Minister will have sweeping powers even to change primary legislation. We are talking now of legislation which has been considered in a democratic manner here by your Lordships and in the other place, and which can now be changed under certain provisions of this Bill by a Minister, by subordinate legislation. In fact the very provision that 51 of the statutory instruments are to be subject to the negative procedure is an indication of the Government's thinking. I have always understood—and so it appears from a handout from the Library of the other place—that the negative procedure is usually used for unimportant decisions. Yet many of the 51 provisions in this Bill for the use of the negative procedure are of extreme importance and go to the basis of our democratic thinking.466
It seems to me that one can elevate this debate a little from the immediate political intentions and immediate political problems to the constitutional position. The Lord President of the Council and Leader of this House on 14th May 1984 was asked a Question for Written Answer by his noble friend Lord Chelwood. The Question was:
To ask Her Majesty's Government whether they would regard the rejection by the House of Lords of an affirmative instrument activating Part II of the Rates Bill as consistent with constitutional propriety as well as politically acceptable; and what precedents there are since 1945 for the rejection of an affirmative instrument by the House of Lords.
The noble Viscount the Leader of the House said this:
There is a well established convention that the House of Lords does not vote against the Second Reading of a mandated Government Bill. Since the House has always exercised restraint in the use of its powers in relation to subordinate legislation, it might be regarded as inconsistent with this convention if the House were to reject an affirmative instrument to implement Part II of the Rates Bill, for which the Government have a specific electoral mandate.
Since 1945 only one affirmative instrument has been rejected in the House of Lords, namely the Southern Rhodesia (United Nations Sanctions) Order 1968. The order was subsequently re-laid and agreed to."—[Official Report, 14/5/85; col. 1268.]
§ I draw attention to that reply for this reason. If, in fact, the quality of subordinate legislation is to be changed, if in fact a Minister is hereafter to be allowed to legislate to change primary legislation, are we then to be helpless because of a convention of voting against it? I think the Government should be aware of the path they are treading in this Bill, which seems to me to be of supreme importance and perhaps even more important than the subject matter of the Bill itself. I beg to move.
§ Lord Campbell of Alloway
I oppose this amendment with Amendment No. 143. I shall be very brief. This would delay and inhibit the due operation of the Bill. Assuredly here there is no attack whatever on democracy, and loose suggestions such as these cannot afford much assistance to your Lordships' Committee. As no doubt the noble and learned Lord, Lord Denning, could confirm with far greater authority than I could ever muster—and I am delighted to see him in his place—there is here no resort to unconstitutional expedience, as I hope to show directly. Under the Bill as it stands, affirmative resolutions are required to give effect to the break up of ILEA under Clause 21 for succession and amalgamation under Clause 41; this because, in those three cases, a significant change may be made in the substance of the original intention of the Bill. I stress those words, because that is the traditional constitutional approach to the need for affirmative resolutions where it is appropriate to afford a further opportunity for debate; and not, as was suggested by the noble Lord, Lord Hooson, just now, the vague test or question of relative importance.
Under the Bill the exercise of powers by subordinate legislation is subject to negative resolution in 42 circumstances, and in 59 cases without any parliamentary procedure. The exercise of these powers does not involve any derogation from the original intention of the Bill and that is why constitutionally it is wholly correct, democratically—whatever that may 467 mean—wholly acceptable, that the procedure adopted in the Bill should be resorted to. There is no conventional justification whatsoever for this amendment. Delay would be involved; it would be wholly unacceptable. For those reasons I would object to the amendment.
§ 3.30 p.m.
§ Lord Wilson of Langside
The noble Lord, Lord Campbell of Alloway, may have been right when he said that there were no unconstitutional implications in the provisions to which the noble Lord, Lord Hooson, has referred in moving the amendment. But the constitutional implications of these matters cannot be exaggerated. The potential constitutional dangers cannot be exaggerated, as I should have thought the noble Lord, Lord Hooson, made perfectly clear in what he said in support of the amendment.
We have been exhorted from the other side throughout debates on this Bill, from no one less than the noble Lord, Lord Campbell of Alloway. The suggestion has been that, in our approach to some of the issues, we have been acting unconstitutionally. What occurred to me, as I listened to the noble Lord, Lord Hooson, moving this amendment so effectively, was that the late Lord Chief Justice Hewart must indeed be turning in his grave when he reflects upon the provisions to which the noble Lord, Lord Hooson, referred.
Those of your Lordships who are of my generation will remember the publication back in the 'twenties or 'thirties of Lord Chief Justice Hewart's work entitled The New Despotism, in which he warned of the dangers of delegated legislation. Those of us who disagreed with him said at that time, as I remember well, that in the complexities of modern life delegated legislation was a necessasry instrument for effective government. But surely in this Bill things have gone too far and there is a danger of the new despotism, about which Lord Chief Justice Hewart warned us so many years ago. Contrary to the views expressed by the noble Lord, Lord Campbell of Alloway, I should have thought the Committee was entitled, when the Minister replies, to a very careful justification for this aspect of this Bill.
§ Lord Denning
I share the distaste of my noble friend Lord Hooson for delegated legislation and delegated powers. On the other hand, there are cases when it is necessary. I well remember Lord Chief Justice Hewart's book The New Despotism. What he launched his attack against was what is called the Henry VIII clause, where it was not to be questioned in any court whatsoever; whereas I venture to think, on our new procedure in the courts by judicial review, that we can question any delegated legislation or delegated powers that go beyond the proper scope.
In this clause, it is important to remember that we are not dealing with a normal type of legislation covering a present and immediate mischief. We are looking to the future, to the abolition of the Greater London Council and the other councils, and we have to provide for the future and for what is to happen then. It seems to me that the Bill in its present form has laid down the general policies, so far as they can be 468 foreseen in the future, and most of them have now been approved by both Houses. But there are things which will happen which cannot be foreseen. Two, three or fours years ahead, snags or little points may arise which have to be dealt with, and it seems to me that it is for those unforeseen emergencies and contingencies that this clause is put in. It does not go too far.
I would remind your Lordships of a limited company. It has its memorandum of its objects to which it must keep and it must not go outside those objects looking to the future. But the courts have held that a company can do anything which is reasonably incidental to those objects. That is a parallel to this. It seems to me that the Secretary of State is enabled here only to make such,incidental consequential, transitional and supplementary provisions".See how limited it is. Those are really quite minor provisions, things which could not quite be foreseen and which are comparatively minor. Then they have to be "necessary or expedient". I agree that that means necessary or desirable, but they are things that have got to be done urgently and must be necessary, desirable and incidental. There is no wide field of changing the law at all but just implementing, I would suggest, the policy and principles in the Bill itself.
Contrary to Lord Hewart's time, if the Minister or the Secretary of State steps over the mark, if he goes beyond things that are incidental, if he makes great or important changes, then judicial review is available and the courts can stop the Secretary of State going beyond the bounds. It seems to me that our courts' new power of judicial review will enable any excessive use of power to be rectified. This clause as it stands should remain in the Bill and I am afraid that I would be against the amendment.
§ Lord Boyd-Carpenter
It may be that after that devastating speech by the noble and learned Lord, Lord Denning, the noble Lord, Lord Hooson, will save the time of the Committee by withdrawing his amendment promptly, because it seems really to have been destroyed. But if he does not rise to do so I want to make just one comment, as one who since he went into the House of Commons the best part of 40 years ago has been interested in delegated legislation, about the second amendment we are discussing, Amendment No. 143.
This amendment proposes to apply the affirmative procedure to all the orders made under this Bill. Those of us who have dealt with delegated legislation over the years know that a great deal of time is spent in both Houses in discussing whether the relative importance of a particular order demands the affirmative procedure, the negative procedure or no parliamentary scrutiny. A great deal of argument and a great deal of knowledge has very often been deployed on that issue. Amendment No. 143 seems to brush all that aside and says that the whole lot, important and unimportant alike, should be dealt with by affirmative resolution. That proposition obviously does not stand up, quite apart from the fact that it would inflict on both Houses long and tedious wastes of time dealing solemnly with an affirmative resolution on every order 469 however insignificant made under the Bill. I suggest to the noble Lord, Lord Hooson, that he ought to withdraw the amendment.
§ Lord Wilson of Langside
If I may intervene again, the noble and learned Lord, Lord Denning, as one would expect, because we all hold him in high regard and respect, was perfectly right when he said that we can go to the courts to put Ministers right. But I should have thought that one of the tests of good legislation is the extent to which it minimises the necessity for going to court. We lawyers are not inclined to discourage people from going to court. Certainly I do not remember it as one of my major concerns when I was young and in practice that people should be reluctant to go to court. But one grows older and perhaps less enthusiastic about the prospect of going to court. But one of the fundamental tests which should be applied to all legislation is: will it reduce or increase the necessity for submitting to the law's often delays?
§ Baroness Seear
In this galaxy of legal speakers, as a mere layman one hesitates to say anything at all. But it has been said that these powers of the Secretary of State are going to be used only to tidy up unanticipated points which may arise after the legislation has come into force. In Clause 21 the Secretary of State has powers virtually to get rid of the ILEA as constituted. That surely cannot be regarded as a minor tidying up operation which can safely be left to the judgment of the Secretary of State without parliamentary intervention.
§ Lord Elton
I am much obliged to noble Lords who have taken part in this debate. The noble and learned Lord, Lord Wilson of Langside, and the noble Lord, Lord Hooson, both have two advantages over me; they have both had legal training and they have both had their lunch. I have had neither, and any shortcomings in my delivery may be attributed to both causes.
I am not sure that it is necessary for me to add a great deal to what has been said by the noble and learned Lord, Lord Denning. It really is not necessary for me to come to his aid when he is assailed by the noble and learned Lord, Lord Wilson of Langside. But surely it is the case that the courts stand behind the law to enforce it. The noble and learned Lord, Lord Denning, has not said that there should be a constant procession of outraged citizens to the courts as a result of this Bill and that because the courts were there, that made it all right.
What matters is that anyone who misconducts himself under this Bill—and that includes the Secretary of State—will be answerable to the courts for that misdemeanour and, knowing that, will not lightly misdemean himself. The noble and learned Lord, Lord Denning, has explained to the Committee that the phrases we have used are time-honoured. I may repeat what the noble and learned Lord said: that they only enable the Secretary of State to do things which are incidental, consequential, transitional or supplementary to this legislation. The Bill does not introduce anything new. It does not open any wide doors. It allows the tea trolley through, and not a coach 470 and horses. It is a tea trolley we need, or we shall not get our tea—and I am very anxious that we should.
We believe that positive approval by Parliament should be reserved for those cases in which a significant change is made to the substance of the original intention of legislation, or where it is right for Parliament to have a further opportunity to debate a matter. Your Lordships can always pray against a negative order, as can Members of another place. My noble friend Lord Boyd-Carpenter, who has infinitely more parliamentary experience than I have, and who is very familiar with the workings of another place to boot, has pointed out that the whole system would grind to a complete halt if every item of legislation which had to be carried out after the enactment of a Bill at a distance of two, three, four or five years had to be approved by detail in Parliament. Wt' would have no time to do anything else. The Committee will be on good grounds in resisting the amendment on that basis.
I am not aware of any great significance in the departure in the decision to use the word "expedient" instead of the word "proper". I can assure the noble Lord that there is no significance in this. If he is still worried at Report stage, I might even agree to swap the two words, but I should like to take further advice before I do. I have to tell your Lordships for the last time that this is no great constitutional departure. The wordings in our Bill have largely been taken from earlier statutes. It really is straining at a gnat to be as anxious as the noble Lord has been about this matter. I hope I have managed to reassure him.
I accept that the whole question of delegated legislation is an important matter and one about which the Committee is sensitive. I would be the last person to countenance any use of it to bring in matters foreign to what your Lordships had already agreed. But given the explanation of the effect of the words we have in the Bill which has been so lucidly given by the noble and learned Lord, Lord Denning, I hope your Lordships will realise that there is no question of that.
§ Lord Hooson
I am bound to say that I do not feel greatly reassured; nor did I find the words of the noble and learned Lord, Lord Denning, in any way reassuring, for this reason. With the greatest respect, it did not seem to me that he had applied his mind to the powers which are exercisable under this Bill. If he will take a closer look at those powers, I am sure he will not agree that they are minor matters at all.
My noble friend Lady Seear pointed out one particular provision. If the abolition of the ILEA is a minor matter, so be it; but I should not have thought that this Committee would so regard it; nor would it so regard the other delegated powers. Of course there is a place for delegated legislation and if it were limited to the minor matters to which the noble and learned Lord, Lord Denning, referred, I should have no complaint. I accept that that is so.
§ Lord Elton
If the noble Lord, will forgive me, we are discussing a much later clause. He is talking about ILEA. The power for that order is in a separate clause of the Bill which your Lordships have already dealt with.
§ Lord Hooson
The orders are to be made under the provisions of Clause 100, and I also spoke of course to that amendment.
§ 3.45 p.m.
§ Lord Elton
Perhaps I have not made myself clear. The substance of what the Clause 21 order does is written large on the face of the Bill at Clause 21. Your Lordships are being asked to be anxious about the supplemental provisions to that order in Clause 91, if that is what it is. Those provisions are only supplemental, incidental and transitional to Clause 21 in that case. So there is no question of getting the noble and learned Lord, Lord Denning, all anxious again about this matter because it does not bring in anything big; it only brings in the things in the train of Clause 21. It does not allow the Secretary of State to abolish ILEA—and we do not of course know where we are on that—but it enables him to do things consequential upon the power which it has been or will be agreed he should have in another part of the Bill.
§ Lord Hooson
With great respect to the noble Lord, what I explained at the outset is that my purpose in putting down the amendment was to draw attention to the general plan within the Bill for the excessive use of delegated legislation and the nature and quality of that delegated legislation. I gave only one example but there are many others. It is late in the day and I have no intention of dividing the Committee on this matter. I simply want to alert the Committee to what I believe is a very important consequence of the Bill. It will enshrine greater powers of subordinate legislation than we have ever had before and it has definitely changed the quality of the legislation that is delegated to a Minister. No doubt we shall come back to this matter on Report and, in the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy Chairman of Committees (The Earl of Listowel)
Before I call the next amendment, I should point out to the Committee that, if this amendment is agreed to, I cannot call Amendment No. 141B.
§ [Amendments Nos. 141A and 14IB not moved.]
§ Clause 98 agreed to.
§ Clause 99 agreed to.
§ Schedule 16 agreed to.
§ Schedule 17 [Repeals]:
§ Lord Elton moved Amendment No. 142:
§ Page 171, line 44, column 3, at end insert—
|' "In Schedule 7, in paragraph 7 the words from "or, where the area is a London borough" onwards.").|
§ The noble Lord said: This is a purely technical amendment carrying through the process of deleting what would be obsolete references in legislation to the GLC. I do not propose to go into detail but I should 472 like to take the opportunity at the end of our long proceedings, as this is the last amendment we shall deal with—Amendment No. 143 has already been spoken to—to thank your Lordships for your patience in bearing with my necessary shortcomings in acquiring the required knowledge to deal with your Lordships' usually necessary questions and quite often superfluous opposition, if I may so put it.
§ I am grateful to your Lordships, and it is to the credit of this Committee that we have managed to do this in good temper. No doubt we shall return with our wits sharpened and our instruments blunted, ready for the Report stage. I now beg to move the amendment.
§ Baroness Birk
Perhaps I may respond to what the Minister said and thank him on behalf of this side of the Committee, and perhaps everyone, for what he said about the proceedings on this Committee stage. I must tell the noble Lord that although we do not like the Bill we like him very much. The Minister has really had a very difficult job; and I cannot resist saying that it has been made more difficult by the nature of the Bill. However, he has kept his "cool" so far as it is possible to do. I think that the best help we can be now is to let him have some lunch or tea.
§ Lord Boyd-Carpenter
May I echo the words of the noble Baroness in response to my noble friend the Minister? I think that I speak for all the Committee in saying how deeply impressed we have been with the way he has handled this immensly complex Bill, particularly in the circumstances in which he was, if I may so colloquially put it, thrown in at the deep end so shortly before your Lordships started on the Bill. I am quite sure that his good temper and intellectual grasp of the Bill has greatly facilitated our discussions. For my part, I should like most respectfully to thank him.
§ Lord Tordoff
It is a rare occasion on which I find myself so whole-heartedly in support of the noble Lord, Lord Boyd-Carpenter, and I should not wish to let the occasion pass. We have all been enormously impressed by the way in which the noble Lord the Minister has grasped the complexities of this Bill. It has obviously been a very trying and tiring period for him. He looks remarkably healthy and fit, if somewhat lean and hungry. In spite of the differences that we still have about the Bill, and to which we shall doubtless return, we greatly admire the way in which he has handled the Bill and handled the Committee during this very difficult period. We greatly thank him for that.
§ Lord Harmar-Nicholls
I am sorry to risk being the death's head at the feast. I am afraid that is what I shall appear to be to many noble Lords. However, having sat in this Committee stage I am rather disturbed about the future. We have had so many promises that matters which have been debated and decided upon will be brought up again on Report, that I tremble to think what will happen during Report stage in terms of utilising our proper Parliamentary powers. Despite the threats that they will again raise matters on Report, I 473 hope that some restraint will be shown to bring back on Report only matters which have not been adequately and properly dealt with in Committee. If we go over all the matters again and again we shall bring this Chamber into disrepute; we will not help the Bill or the nation and I do not think that we, as a second Chamber, will be doing our duty.
§ Lord Hayter
May I revert slightly from the lecture which we have just had given to us and refer to a matter on which I hope the noble Lord, Lord Elton, does not feel that I have been a thorn in his flesh. Only yesterday I was reflecting that at the times when I had spoken in connection with the Bill, I felt, "Why am I always the bridesmaid and never the blooming bride?" Perhaps one fine day soon I shall wake up in the morning on my honeymoon. In other words, perhaps we shall win an amendment with myself as the sponsor of it. However, I just wanted to echo what everyone else has said. I have the greatest admiration for the assiduity and the calmness with which the noble Lord, Lord Elton, has dealt with us all; and I am full of praise for his calmness.
§ On Question, amendment agreed to.
§ Schedule 17, as amended, agreed to.
§ [Amendment No. 143 not moved.]
§ Clause 100 agreed to.
§ Remaining clauses agreed to.
§ House resumed: Bill reported with the amendments.