Local Government Bill

HL Deb 18 February 1986 vol 471 cc511-76

3.12 p.m.

The Minister of State, Department of the Environment (Lord Elton)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Elton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AMPTHILL in the Chair.]

Clause 1 [Duty to make rate on or before 1st April]:

On Question, Whether Clause 1 shall stand part of the Bill?

Lord Elton

This clause was generally welcomed at Second Reading. There are no amendments on the Marshalled List dealing with it. Therefore, I think it will suffice if I merely formally move that the Committee let this clause stand part of the Bill. I beg so to move.

Moved accordingly, and, on Question, Clause 1 agreed to.

Clause 2 [Prohibition of political publicity]:

Baroness David moved Amendment No. 1: Page 2 line 16, leave out (", or can reasonably be regarded as likely to affect.").

The noble Baroness said: We now come to the contentious part of the Bill, Part II, which is also the heart of the Bill. In moving Amendment No. 1 I should like also to speak to Amendment No. 7.

Our aim, together with that of all the local authority associations, and a great many voluntary organisations, is to improve the Bill, make it more workable and bring it more into line with the Widdicombe Committee's interim report. We understand that the Government's aim also is to have the Bill in line with the interim report. I quote from the Minister at Second Reading where he says: Your Lordships will know that that committee"— that is the Widdicombe Committee— is still at work on its main report but that it presented an interim report on local authority publicity in August of last year; the recommendations of that committee are the basis on which we have built the provisions of Part II of this Bill".—(Official Report. 4/2/86; col. 1016). We do not agree with that. We think that the Government have gone beyond the recommendations of the Widdicombe Committee and we are aiming to bring them back to those recommendations.

The first amendment, which reads, Page 2, line 16, leave out (', or can reasonably be regarded as likely to affect,')", and Amendment No. 7, which reads, Page 2, line 26, leave out ('or can reasonably be regarded as likely')", are supported by all parties, as no doubt the Committee will have noticed. As I say, they are designed to bring the clause into line with the recommendations of the interim report.

The committee was keen to emphasise, in paragraph 181, that, legislative change should be seen as law reform rather than necessarily involving new restrictions".

Accordingly, they recommended, in paragraph 244(a), that, there should be an express statutory prohibition of local authority publicity of a party political nature". In other words, their proposal was to set down in statute law what is already the case on the common law. The present legal position is that it would be ultra vires for a local authority to publish party political material, in the sense that a decision to publish such material would be actuated by an irrelevant or improper motive, which would be party advantage. It is generally agreed, however, that it would be extremely difficult for the courts to apply in practice this kind of test of the intention of an authority.

Widdicombe expressed dissatisfaction with intent or design tests. In the context of the newly-established distinction between information and persuasion under Section 142—that is the result of the recent cases—they say: We accept that it can be difficult to determine the purposes of a local authority. We think the contents of the material is the best test. The Bill should therefore contain a statutory declaration of the existing law which outlaws publicity because of improper motives but applying a material test. This comes down to a test of apparent design or intent. A judge should be able to look at the material and judge from that alone whether there appears to be party political intent". That is exactly what is contained in the first part of the test in the Bill, the prohibition of publication of material which appears to be designed to affect public support for a political party. The Bill as drafted, however, goes on to prohibit material which can reasonably be regarded as likely to affect political support. The expression, can reasonably be regarded as likely is interpreted as, a reasonable person could regard it as likely".

It can be seen that this is a test of considerable severity. It means that even if the balance of reasonableness was against the likely effect on political support, the material is still open to being banned because a reasonable person could think it likely. Or, to put it another way, material is open to being banned if it is not perverse to think that it is likely to affect political support. The severity of this test means that the clause would catch an enormous range of publicity never intended to be caught by Widdicombe. For example, a court might well have to decide that campaigns against rate capping and abolition could be reasonably regarded as likely to affect political support for the Government of the day. The Widdicombe report explicity defended these campaigns. It said, in paragraph 221: It is important at all times, but perhaps particularly in times of wide political differences, that our political system should accommodate the free expression of opposing views, and we have said that it is right for local authorities to be able to explain their views on controversial matters affecting them. In the recent context that includes issuing information about abolition and rate capping".

The possibility of prohibition under Clause 2 would not extend to just posters or leaflets. The responses made by the threatened councils to the White Paper Streamlining the Cities were published and would have been open to challenge. Likewise, the Transport Bill enacted last Session was opposed by many local authorities of all political persuasions and by all three English associations. Remember, the ACC as well as the ADC was Conservative controlled at the time. A large number of authorities issued information which could be caught by the Bill. The report published by Tory controlled Plymouth District Council, for instance, which detailed their fear of being left with running only on profitable routes, could have been open to being banned.

At Second Reading, the noble Lord, Lord Mottistone, implied that the Isle of Wight County Council's campaign of the early 1970s would not be open to being banned because all those involved were Conservative. This is not the case. Plymouth's report could still quite easily, possibly, be regarded as likely to affect political support for the party in government and thus banned, despite the fact that the same party controls Plymouth.

Another example of publicity which could be banned under the Bill is that issued by Hereford District Council. Hereford was used by the Department of Transport as an experimental area to try out deregulation in advance of the Bill. The Liberal-controlled council published a research report critical of the experiment. It is clearly important that this sort of information is published to inform public debate. The clause as presently drafted could be used to censor it. The issue need not be one of national significance for the test in the Bill to bite.

An example of a local campaign which could be open to challenge was "Hell under Helink" attacking the renewal of the licence for the helicopter link between Gatwick and Heathrow by the Secretary of State. That campaign was supported by the following local authorities: Surrey County Council, Elmbridge, Epsom Ewell, Guildford, Hounslow, Kingston-upon-Thames, Mole Valley, Richmond-upon-Thames, Runnymede, Spelthorne, Woking and the GLC.

This first amendment therefore brings the test in Clause 2 into line with the requirement of the Widdicombe Report and avoids all these difficulties of interpretation. Clause 2(3) brings voluntary organisations financed by local authorities within the scope of the Clause 2(1) test. This would mean that, for instance, the Child Poverty Action Group would have been unable to issue their recent publicity about the possible effect of the Green Paper on reform of the social security system. That publicity was wholly local authority funded. Likewise, those Citizens Advice Bureaux 100 per cent. local authority funded could well be prevented from issuing their annual leaflet which explains the effects of social security uprating on claimants.

Widdicombe was acutely aware of the danger of slapping on new controls. The report said: We are anxious not to deal with problems in a way that would have a deleterious effect on local authority publicity as a whole". They were aware of the dangers of definitional problems. They said: We wish to avoid new controls that will be imprecise or raise major definitional problems". The Government appear to have ignored these warnings. We think that the words can reasonably be regarded as likely to affect will give rise to major definitional problems and we ask for them to be deleted from the Bill. I beg to move.

Lord Broxbourne

The noble Baroness started her eloquent observations by saying that these amendments go to the heart of the matter. If I may respectfully venture to vary the anatomical metaphor, do they not seek rather to eviscerate the Bill? Other possible anatomical—

A noble Lord

Analogies?

Lord Broxbourne

I was thinking more in the surgical context. Other possible variants of her anatomical metaphor occur to me but no doubt they will occur to Members of the Committee according to their respective imaginations.

I should like to start what will not be a wholly uncontroversial contribution with what is, I think, an uncontroversial observation. I think that we in this Committee share a common purpose, a purpose to put into clear and acceptable statutory form the prohibition of what is in effect party political propaganda. That, I think the noble Baroness will agree, is a shared purpose. It should also be common ground that whatever statutory formula is adopted will require interpretation by the courts. The noble Baroness made as part of her case the alleged difficulty that the courts would have in interpreting. I must ask her to accept that this is not so. We need have no doubts about the capacity of the courts for this task.

Learned judges wrestle daily with the complexities of town and country planning legislation, of rating legislation, of copyright, of the rent Acts—as to which that distinguished lawyer and parliamentarian of other days, D. N. Pritt, observed on one occasion, "Anybody is very lucky who is ever right about anything in the rent Acts". Learned judges who deal daily with this will regard the matters arising under the Local Government Act 1986 not perhaps as light relief but at any rate as welcome relief from these arduous and complex tasks. I share the confidence expressed by Widdicombe, himself a very notable contributor to the unravelling of the complexities of law in these matters, in paragraph 237 of his report—confidence as to the emergence of a body of precedent to guide local authorities in the practical application of the law.

The amendment would exclude the statutory test prescribed by the Bill which the courts will have no difficulty in interpreting. But what is the alternative? To identify possible alternatives is, in my submission, enough to exclude them. To make the obvious test of proven effect would place an impossible burden of proof on the complainant. It would ensure that this provision is a dead letter from the start—and it may be that that, of course, is the intention of the amendment.

The other possible test is intention or motive. This would be to give statutory effect to that to which Mr. Justice Glidewell, as he then was, was driven in the ILEA case owing to the unsatisfactory state of existing law. He decided that one, if not the main, consideration animating ILEA in its decision was persuasion as against information. It contravened the Wednesbury principle by taking into account an irrelevant consideration. If ILEA's purpose had been to inform it would have been within Section 142 of the Local Government Act 1972. But as its purpose—or primary purpose at any rate—was to pursuade then it was not within Section 142. This approach which was followed by Mr. Justice Nolan in a case soon after necessarily involves an inquiry into and an assessment of purpose or motive. But ascertainment of purpose or motive, information or persuasion, is palpably an unsatisfactory test—unclear, uncertain and difficult to apply. After all, human nature is notoriously complex and local authorities are not exempt from this general law of nature.

Neither of those two possible alternatives fits the Bill. I think that Members of the Committee may therefore wish to apply the Sherlock Holmes principle: "When you have excluded that which is impossible, that which remains is the solution". And that which remains is the statutory test proposed in this Bill. It is no different in principle from the well-tried and well-established test of "reasonably foreseeable", a test daily applied by the courts in the assessment of damages in negligence claims and other actions in court. Indeed, the formula proposed by the Bill rests on a very firm foundation, on a veritable bedrock of precedent.

The wording—and I am sure that each of your Lordships has this very much in mind at present—reflects that of paragraph 5(a) of Part 1 of Schedule 7 to the Companies Act 1985. I am glad to see noble Lords on the Front Bench opposite nodding assent. The words there are: reasonably be regarded as likely to affect public support for a political party". I may venture on a little thought-reading. It may of course occur to noble Lords on the Opposition Front Bench, "The Companies Act 1985: was that 1985 Act not an Act of this iniquitous Tory Government?" If they had that thought they would overlook the fact that the Companies Act 1985 was of course a consolidating Act. The words have a longer parentage than that.

3.30 p.m.

Whence then do they derive? They derive from Section 19 of the Companies Act 1967; and then the question inevitably arises: who put that Act on the statute book? What party was then in power? I can see the noble Lord, Lord Wilson, in his place but there are other noble Lords who were distinguished ornaments of that Administration. I come to this question: which noble Lord, then Minister, commended those words at that time to this Chamber? Do I detect a reminiscent glint in the expression, for example, of the noble and learned and infinitely distinguished Lord, Lord Elwyn-Jones? Do I recognise in his well-loved features a sort of complacent recollection of paternity over those 20 years? If it is not so, no doubt he will rise and tell the Committee: otherwise we are left to conjecture, and no doubt in due course we shall be informed.

There is just one other question to be asked, and this goes to the generality of Members of the Committee opposite: what causes them now to repudiate what they commended then? What causes them to decry in Opposition what in office they then extolled? Can we not put to them the question that was plaintively put to Sir Robert Peel when he changed his mind about the Corn Laws all those years ago?— He has convinced others", said the Morning Herald of that day, how comes it that he has not convinced himself? The test proposed in the Bill has proved practical and effective in the context of the Companies Acts for nearly two decades. Why should it not prove so in this context also? I shall continue no longer. It would be an act of supererogation. This is what lawyers call "an open and shut case" and I urge the Committee therefore to recognise it as such and to save precious time by not seeking to argue the unarguable but to reject the amendment and to keep the clause as it stands.

Lord Denning

I hope that your Lordships will reject the amendment and will support the Bill as it stands. We are here dealing with party political propaganda and how far a local authority can indulge in it. The question raised in this discussion is: how is the judge to deal with the matter? Is he to go by the design or the intention of the man who publishes it? The man may say, "I didn't intend it to be party political propaganda". Or is he to go by the effect on the ordinary population, on the people? In other words, is it to be subjective, according to the man who writes it, or is it going to be objective, according to the people who read it?

On this we have a good legal principle in regard to any material that is published like that. It arises particularly in the law of libel. We do not go by the intention of the writer and what he intended: we go by the effect which it has on the people who read it, and it is judged in that way. There is a case—quite an amusing case—called Hulton v. Jones. We all know about it: it appeared in the 1910 Appeal cases. A Sunday paper wrote an amusing article about a visit to the motor races at Dieppe. In the course of that article they described the incident of a lady saying, "Hey, there goes Artemus Jones with a woman who is not his wife. Who do you think she is?"

They thought obviously that there was no such person as Artemus Jones and that he was entirely imaginary. But there was a good county court judge called Artemus Jones; and he said, "All those people who read that thought it was me who was walking along the shore at Dieppe with a woman who was not my wife." He said, "It does not matter what the newspaper may have thought. They may have thought it was nobody; but everybody else, or at least a great many people, thought it was me." So he brought a libel action and, according to the House of Lords, he was right. You do not go by what the writer meant or knew; you go by what the effect on people is. The Lord Chancellor, Lord Loreburn, said: A man charged with libel cannot defend himself by saying that he in his own breast did not intend to defame anyone if in fact he did so. Similarly, with this test of propaganda, it is no use whoever writes it saying, "I didn't intend it to be party political". The question is: what was its effect upon reasonable people? That is just what the Bill as it stands says. Let the judge decide the case according to its effect on the reasonably minded people. That is a very good test to apply and I suggest that we uphold the Bill as it stands and reject the amendment.

Lord Kilmarnock

As my name is attached to the amendment, it might be convenient if at this stage I gave the view on this matter from these Benches. We support the recommendation of the Widdicombe Committee's interim report that, there should be an express statutory prohibition of local authority publicity of a party political nature". But in setting out to achieve this the Bill, in our view, goes well beyond Widdicombe and becomes an exercise in what a Tory Member in another place called "overkill". It also fails, particularly in Clause 2, to meet a very important Widdicombe requirement in respect of what is stated in paragraph 175: We wish to avoid new controls that will be imprecise or raise major definitional problems". The noble and learned Lord, Lord Denning, and the noble Lord, Lord Broxbourne, have just told us that these problems do not exist and I shall return to that in a moment; but in my submission Clause 2 as drafted is imprecise and raises major definitional problems.

I have read the Widdicombe interim report from cover to cover. It is an extremely clear, balanced and objective document. The Government themselves have said that they are legislating on the basis of Widdicombe. Therefore I think that all our efforts at this Committee stage of the Bill should be directed at bringing the Bill back into line with Widdicombe. The main Widdicombe proposals were: no publicity under Section 137 of the Local Government Act, with one exception; all publicity to be covered by Sections 111 and 142 of the Local Government Act (which were to remain unchanged) and by the total prohibition of publicity for a political party. That is the essence of Widdicombe. In paragraph 123, Widdicombe held that local authorities are themselves intrinsically political, both in the manner in which they are elected and internally organised and in the subject matter with which they deal.

It follows that there is a legitimate area of political expression within local government. The problem is where to draw the line. Widdicombe recognised that there is a difficulty in distinguishing between (and I now quote from paragraph 126): material that may be the subject of political controversy or may reflect the view of the majority party, but is issued in furtherance of the interests of a local authority, and material that is issued in furtherance of the interests of a political party. It is the latter in Widdicombe's view, and in our view, that should be banned and the question is: how? Widdicombe was quite clear in paragraph 133 that, the content of the material is the best test"— not intention, which can only be guessed at or surmised; nor its effect on people who may be disposed to stretch the meaning in pursuit of their own ends, but what is actually written down.

This leads us to expect a strictly material test. When we look at Clause 2 we see that it does indeed begin in that way: A local authority shall not publish any material which, in whole or in part, appears to be designed to affect"— fine, so far. That is a material test. If it carries a party label or bears the name of a politician, it is clear to the commonsense view that it is politically designed. But I come now to the insidious and highly subjective phrase, or can reasonably be regarded as likely to affect"— and, suddenly, a whole hornets' nest, Pandora's box or whatever metaphor you prefer, is opened up. Bang goes our nice, clear, material test. Enter doubt, dispute, discord, imprecision, unfairness—all the things that Widdicombe warned against. It goes far beyond the outlawing of political broadsheets, propaganda and huge hoarding advertisements featuring well-known politicians, which is surely what we seek to ban.

The noble Lord, Lord Broxbourne, and the noble and learned Lord, Lord Denning, have said there is no difficulty for judges in interpreting these words. But there is a great deal of difficulty in the day-to-day interpretation of these words by the people who are affected by them and who will not know where they are. The legal assurances that have been given to us this afternoon by noble Lords prominent in the legal profession will be of little comfort to them.

So small wonder that alarm bells have been jangling in all sorts of quarters. Local authority chief executives believe the Bill to be unworkable in the day-to-day administration of local authorities. They point out that quite straightforward and hitherto legitimate publicity about council plans or policies might be said to be likely to affect public support for the party having control of the council.

The local authority associations point out that the second part of the test would prohibit material if any reasonable person could think that it would be likely to affect political support, even if most reasonable people thought it would not. It takes only one reasonable person to object or disagree; and any rational person can be described as a reasonable person. Yet we all know that perfectly rational people have a wide range of views and local authorities believe that the clause could prevent publicity to promote the "take-up" of legitimate policies, such as cheap fares or even the selling of council houses.

The voluntary bodies are also very concerned, because Clause 2(3) brings them fully within the ambit of Clause 2(1) if they receive any local authority funding. As I suggested at Second Reading, organisations formed with the aim and object of raising the public level of consciousness about homelessness and so on could be caught as being in conflict with the policy of the government, whereas the main aim would be action and any political effect would be a by-product.

The Council for Racial Equality believe that Clause 2 would prevent a local authority from funding a voluntary organisation which is campaigning on an issue on which any political party has taken a contrary stance. The National Front is the obvious example. The British Refugee Council believes that its activities would also be affected. I will not give any other instances, because I am sure that other noble Lords have plenty up their sleeves.

The important thing, I suggest, is to go back to first principles and to what we want to achieve. Widdicombe aimed at a "workable framework" and said in paragraph 224 that, the law must be made as clear as possible. The aim must be to end the present situation of uncertainty". This refers to the difficulty for the courts in applying the present test of intention under administrative law. Therefore, an express statutory prohibition is needed. What appears on the face of the statute must be clear and unequivocal. This amendment would achieve that effect, and would leave the clause with plenty of bite on the abuses and excessive forms of party political propaganda at the ratepayers' expense, which we all want to see brought to an end. I hope that the Committee will support the amendment.

3.45 p.m.

Lord Boyd-Carpenter

Three points seem to have arisen on this amendment. The first was the gallant attempt of the noble Baroness to establish that the words which she wants to take out of the Bill would be difficult of construction for the judiciary. That point has been so effectively demolished by the noble and learned Lord, Lord Denning, and by my noble friend Lord Broxbourne that I do not propose to spend any time at all on it. I think your Lordships will agree that that point is out.

The second is the point which the noble Lord, Lord Kilmarnock, has been seeking to make, that the words in the Bill are not precisely consistent with the Widdicombe Report. That is a matter on which argument could be protracted. But it does not seem to me that that is a decisive point at all. I have a very high regard for the Widdicombe Report, but that report was not an attempt to draft a Bill. It was an exercise in dealing with a subject and in putting ideas together. It was not an attempt at drafting. Therefore, it does not seem to me that it is a very serious objection, when you come to the totally different exercise of drafting a Bill, that it is not—if it is not—wholly identical with the wording of the Widdicombe Report. It is perhaps a matter of comment, but it does not seem to me to be decisive.

The third point, which seems to me the most important, is the practical effect. Do any of your Lordships really think that it would be right in the future for a local authority, at the expense of ratepayers of all political views, to publish material which can be reasonably regarded as likely to affect public support for a political party? I doubt whether you would find anyone outside who felt that expenditure of ratepayers' money in that way was justified.

Your Lordships have to remember in considering this Bill, or in amending this Bill, if you like, that when it is law there will be a number of people—and noble Lords on the Front Bench opposite can identify them even better than I can—using very considerable ingenuity to try to find loopholes in it. It is really essential, if we are to do what the noble Lord, Lord Kilmarnock, says we should do and prevent political propaganda on the rates, that this Bill should be watertight. That may well involve fairly strict provisions, if your Lordships regard this particular one as strict, being none the less justifiable.

I need only remind your Lordships of who will be trying to drive, if not a coach and horses, a hammer and sickle through the Bill. Your Lordships may recall the observations of Mr. David Blunkett who, as your Lordships may recall, Sheffield Council has the misfortune to be led by. He said quite recently in a publication called Marxism Today: Campaigning for public services, public enterprise and collectivism cannot be underestimated. We are in the business of raising political consciousness and awareness". Or there is Mr. Ted Knight who leads Lambeth and who went out of his way to use council property in support of a political demonstration on the part of the Left. When criticised, he said: If we need to authorise more expenditure to fight this Government we will do so". We are dealing with that kind of thing which is rampant throughout the country, which in certain areas is very conspicuous and which noble Lords on the Front Bench opposite, to their credit, do not seek to justify.

Therefore we should, as a legislature, be failing in our duty if, for the sort of reasons that have been put today, we were to weaken the structure of the Bill, so that these determined men, who want, if they can, to continue spending public money in support of their own political ideas, are given any opportunity of driving a hole in it. For those reasons I hope we shall reject the amendment.

Baroness Seear

Does not the noble Lord who has just spoken agree that the remarks of David Blunkett would have been caught by the phrase, appears to be designed to affect public support for a political party", and that that would remain in the Bill if the amendment were accepted?

Lord Boyd-Carpenter

I think that the noble Baroness must have misunderstood me, and that must certainly have been my fault. I was quoting the words of David Blunkett, not as words that were to be published at the public expense but, far more significantly, as an indication of the approach which he and others will make to the new law when this Bill is law; and therefore we should be forewarned. That was the point, and I am sorry if I did not explain it with sufficient clarity for the noble Baroness to understand it.

Baroness Faithfull

I speak with enormous diffidence in that I feel like an inexperienced David taking on three Goliaths: the noble and learned Lord, Lord Denning, my noble friend Lord Broxbourne, and my noble friend Lord Boyd-Carpenter. But I think that there is an opposite point of view to be put and I consider that it was very well put by the noble Baroness, Lady David, and by the noble Lord, Lord Kilmarnock. Perhaps I may put my point of view, realising that I do not have the power of oratory of noble Lords who have spoken before me.

I personally should like to have seen quite different tests. I should like to have seen the test of whether the intention of the publicity was targeted on party political policy. I should like to have seen the test whether the publicity conformed with the aims and objectives of the voluntary organisation concerned and of the local authority in its professional work. However, the test of political publicity is to be the publicity material which is to be put forward.

I had written a speech but I propose not to read it. I shall instead take up the points made by the noble and learned Lord and by other noble Lords. They have looked at one point of view only. They have not looked at the point of view of the local authorities trying to do a good job of work. They have not looked at the point of view of the voluntary organisations. It would be quite wrong of me to disagree with the noble and learned Lord, Lord Denning, but one has to remember that the words left in the Bill are going to inhibit local authorities and voluntary organisations in the work which they have to do. The noble Lord, Lord Boyd-Carpenter, would like them to be inhibited, but the provision affects the work in more ways than one. It may inhibit party political wrongdoing but it may also inhibit the work which local authorities rightly should do and voluntary organisations should do.

The voluntary organisations have to look at every penny they have; and the thought that they might be taken to court would give them cause for perhaps withholding services which the public rightly should have. Perhaps I may draw the Committee's attention to the speech of the noble Lord, Lord Allen of Abbeydale, at Second Reading. The noble Lord pointed out that some local authorities might be deterred from giving money to a voluntary organisation because they were fearful that this interpretation would put them in the wrong. I hope that we will think very carefully before we reject this amendment. I hope that we will think of those many local authorities which do good work and the voluntary organisations which do good work and that we will not make it more difficult for them to give a service to our community.

Lord Mottistone

Before my noble friend sits down, will she perhaps explain to us how this amendment will help the voluntary organisations and how it is that if the amendment is not carried the voluntary organisations will suffer? It does not seem to me that this part of the Bill and the general sense of what we are talking about has any bearing on the voluntary organisations.

Baroness Faithfull

I think that the phrase, or can reasonably be regarded as likely to affect", is so broad that it is difficult for the ordinary person to interpret it.

Lord Elystan-Morgan

The noble Baroness, Lady Faithfull, has done the Committee a great service in pointing out that voluntary organisations are greatly jeopardised by the wording of Clause 2(1). The main reason for that lies in subsection (3) of Clause 2. Subsection (3) reads: A local authority shall not give financial or other assistance to a person"— "a person" there will include voluntary bodies— for the publication of material which the authority are prohibited by this section from publishing themselves". It is that agency principle, as it were, which catches the voluntary bodies and of course places them in exactly the same jeopardy.

The argument for this amendment has been put with very great force and cogency by my noble friend Lady David, and indeed by the noble Lord, Lord Kilmarnock. I totally agreed with what they said, as of course I agreed with the remarks of the noble Baroness, Lady Faithfull. My purpose in intervening at this stage is to try to challenge the propositions which were articulated by the noble Lord, Lord Broxbourne, and by the noble and learned Lord, Lord Denning. It is a very rash or brave person who takes on both those distinguished gentlemen at one and the same time; or, alternatively, a person who is very convinced of the rightness of his cause. It is in that category that I place myself.

The argument of the noble Lord, Lord Broxbourne, was that the effect of the amendment was (to use his words) to eviscerate the whole purpose of Clause 2(1) of the Bill. Why should that be so? The problem is that of a minority of local authorities misspending public moneys for overtly or directly political purposes. They are very few in number. The abuses occurred at a very special point in time, in 1982, 1983 and 1984—perhaps not to be repeated again whether or not the Bill is passed. It was nevertheless a localised problem which Widdicombe suggests should be dealt with in a fairly modest way.

Widdicombe's proposals very wisely are not spelt out. The recommendations are fairly broad in their purport and merely say that there should be a specific statutory prohibition upon the expenditure of public moneys for the particular purposes that I have mentioned. That is wholly achieved by what will remain of this subsection if this amendment is carried; for what will remain will be this declaration of principle: A local authority shall not publish any material which, in whole or in part, appears to be designed to affect public support for a political party". That is a broad and sweeping provision and will in my submission carry with it many dangers. It is infinitely narrower in scope and better restricted than the totality of what we have with the second limb that the amendment seeks to remove.

4 p.m.

The noble Lord, Lord Broxbourne, very properly reminded the Committee that the words in question are not mint issue; that they are currency that has been in circulation for some time. They appeared in the Act of 1985 and had their origins in Section 19 of the Companies Act 1967. They were placed in that piece of legislation in order to deal with the question of companies that used shareholders' money for political purposes. It was not a prohibition. It was a provision that legislated for setting out clearly in the accounts of a company the fact that a political contribution was made.

The context in which those words were used in 1967 was totally different from the context in which they now appear, for this reason. In so far as those words dealt with the specific endorsement of moneys for political purposes—not a prohibited purpose but a purpose that had to be identified publicly—they were dealing (were they not?) with something that was entirely outside the mainstream of a company's function. Whether or not a company, in its memorandum and articles of association, is entitled to contribute to the funds of a political party is one thing; but nobody would suggest that one of the main purposes of a company is to make such contributions.

In the present context, one is dealing with one of the main objects of local government. The point was made by the Widdicombe Report that local government now finds itself in a more acutely controversial political environment than ever before. It made the point also that it is likely that such acuteness will be greater accentuated in the future than in the past. In other words, whereas politics can be a tangent to a company in the making of a political contribution, and inevitably it will be so, it is something utterly central to the function of every local authority. For whether or not an authority wishes that to be the case, and whether or not it be an independent authority, it will inevitably be involved with the rough and tumble of political issues from day to day. That, in my very humble submission, is the fault with this provision.

Turning to the remarks of the noble and learned Lord, Lord Denning, he says that the test here is the test of reasonableness; that it is a test well known to Her Majesty's judges in many fields; and that it is a test that Her Majesty's judges have to apply in cases of defamation where they decide whether certain expressions can be construed in a certain way by right thinking members of society.

With very considerable respect—which I, like everybody else in this Committee, have for the noble and learned Lord—I do not believe that he had pitched the argument at the correct level. The law of libel deals with a totally different situation. It deals with the situation where a person comes before the courts and says, "I have suffered injury on account of this tort that has been committed against me". We are dealing with a situation that is totally different. In the case of Hulton v. Jones, which was decided in 1925 or thereabouts, the courts found that it was reasonable for words written as a piece of fiction to be ascribed to Mr. Artemus Jones—who later became a very distinguished county court judge in Wales and was a very great figure in the Principality.

The Defamation Act 1952 changed all of that. Such accidental defamation can now occur only with almost the connivance of the defendant himself, for the defendant has every opportunity of issuing an apology, and so forth. The difficulty as I see it—and in this I follow the stance that was taken by the noble and learned Lord, Lord Denning, on Second Reading on 4th February—is that Her Majesty's judges must be kept out of the arena of politics. As I said on Second Reading, no doubt the judges will do their work very conscientiously and in an even-handed way. However, the ultimate test is not what their own intentions are but how the ordinary citizen views the functions of those judges in that particular regard. If the ordinary citizen believes that judges have been enmeshed in political controversies—unwillingly it may be—that will have the inevitable effect of decreasing the high opinion that society at large has for the work of the judiciary.

My argument is this. The words objected to create a very wide sphere over and beyond the provisions of the first limb. The first limb deals with a publication that, in whole or in part, appears to be designed", and goes on to state: or can reasonably be regarded as likely to affect, public support for a political party". I have made the point before that the subsection does not give any clue as to how substantial or insubstantial that public support has to be. If such support were in terms of millions, one can understand that. Or if it were in terms of hundreds of thousands of persons who would switch their support from party A to party B, then one could understand it. But what if a court were to find that it was highly likely that hundreds of people from the whole kingdom would be affected in such a way; is such an application to fail or succeed?

I believe that one of two evils would occur. If the courts placed a very harsh interpretation on that provision, then the work of local government would be emasculated. A local authority would in no way be able to serve as the voice of the community that it should be and that Widdicombe conceives it to be. It would be utterly monstrous. If on the other hand Her Majesty's judges were to say, "This is impossible. It is wholly unwarrantable. We shall have to give our own gloss and our own common-sense view of the situation", they they would have become legislators; people who were arbitrating in a highly delicate, critical situation. In my submission, either of those two consequences would bring about very grave and undesirable results.

Widdicombe never suggested anything that goes so far as subsection (1) at all. In fact, I rather fancy that if Widdicombe had been asked specifically whether it agreed with the remainder of Clause 2(1), with the offensive words removed, it would have said, "It goes somewhat beyond what we had in mind". It is on that basis that I commend the amendment to the Committee.

Lord Campbell of Alloway

A good deal has been said about paternity of the words that are proposed to be excised. Anybody looking at cols, 1077 and 1078 of Hansard for the Second Reading might be forgiven for supposing that I was the putative father. In fact, I mentioned those matters on Second Reading to seek clarification from my noble friend the Minister on the drafting of Clause 2(1), which had two limbs. Having attended with great care to all the speeches from all parts of the Committee today, it is manifestly apparent to me that the second limb has an important practical effect.

It is equally clear that the origins are as expounded by my noble friend Lord Broxbourne. Therefore, for those reasons I am unable to support this amendment. Having raised the matter on Second Reading, I felt I owed an explanation to your Lordships.

Lord Hayter

I put my name to this amendment so I venture to put forward some observations to your Lordships. You will remember that on Second Reading every speaker made clear that he supported the basic intention of the Bill. The majority of speakers on Second Reading made it clear that they thought the Bill as drafted went far beyond its original intention. As so many of your Lordships are mixed up with voluntary organisations, it is on that ground that I appeal to you to be very thoughtful about the proposi-tion which is being put to you. This amendment tries to bring back to the Bill the basic objective and thus avoids the concerns in the hearts and minds of so many of us.

First let me outline the point on which we are all agreed. We all agree that explicitly party political propaganda should not be published by local authorities—that is quite clear—or by the voluntary organisations funded by them. Secondly, we all agree that the starting point for deciding whether or not material is party political is to look at the evidence of the material itself. Thirdly, we all agree that in looking at that material we should determine whether or not it is intended to affect support for a political party.

Where many of us disagree with the Government is over the inclusion of this second test in the Bill: the test of the material's effect as well as the test of the material's intention. The phrase in Clause 2, can reasonably be regarded as likely to affect takes the Bill way outside this basic intention. It means that material which was never intended to affect public support for a political party could still be illegal simply because a few reasonable people might think it would have that effect.

Let me at once say that I agree with the noble Lord, Lord Boyd-Carpenter, that there are people who might have designs of the kind that he envisages; but when one thinks of the hundreds and thousands of voluntary organisations it is similar to looking for Reds under the beds to imagine even that the vast majority of these voluntary people have these nasty ideas which seem to be thought of as being part of their make-up. It is just not so.

I give two examples of what might happen under the Bill as it stands. The first example is of a local tenants' group receiving a grant from the local authority for running expenses. The group uses part of this money to issue a newsletter to all the tenants on the estate. It carries an article criticising the Government's privatisation policies because of the effect they would have on the tenants living on the estate. Some tenants who previously had supported the Conservative Party might decide not to vote at the next local government election; having read the newsletter they decided they disagreed. The newsletter's article did not run down individual politicians or contain overtly party political phrases but simply set down the effect of privatisation as seen by the editor of that newsletter in that locality. Could it not be argued that the newsletter has affected support for a political party? Noble Lords on the other side would say, "yes". This was not the intention but by criticising a policy strongly associated with the Conservative Party it could obviously have this effect.

If noble Lords on the other side who are so learned in the law are right, what does this mean? No tenants' group would dare to put forward such a letter. They would never dare to give advice on the peculiarities of their situation.

4.15 p.m.

My second example is of a rural community council receiving a grant from a local authority and concerned about the impact of the Transport Act on bus services. Fair enough. It issues a leaflet explaining its concern and urging people to contact their local Conservative Member of Parliament so that he can bring the matter to the attention of the Minister of Transport. They make the point that the Act was introduced by a Conservative Government—which is true—and as a result of seeing the leaflet some people decide that they are not going to vote for their local Member of Parliament at the next election.

Once again, the tone of the leaflet is not overtly party political but it contains information which results in people changing their political standing. Has not the leaflet affected support for a political party? If noble Lords on the other side of the House say, "yes", does that not mean that no transport users' association would dare to bring forward any criticism of any Government policy which affected their own interests? In both cases a voluntary organisation is doing no more than issuing publicity in pursuit of its own aims and objectives. The purpose of the publicity is not to affect public support for a political party; nevertheless, that could be one of its unintended side effects.

We all hope and assume that support for political parties is at least partly based on support for its policies. Clause 2 would therefore mean that voluntary organisations would be in danger of acting illegally whenever they used local authority funds to publish views criticising or supporting a particular policy of the Government or a political party.

In his winding-up speech on Second Reading, the noble Lord the Minister sought to reassure the voluntary sector on this issue. He said: Under the Bill, voluntary organisations will continue to be able to use local authority money to campaign on matters of concern to them"— such as the two examples I have just given— including Government policies, so long as the presentation of local authority-funded publicity does not contravene the terms of the prohibition in Clause 2".—[Official Report, 4/2/86; col. 1092.] But the noble and learned Lord, Lord Denning, said that the Minister is wrong and that they would be caught in the examples I have given. Therefore, I have grave fears of what the result of the Bill will be if we do not come to some other arrangements so far as this amendment is concerned. In other words, if a voluntary organisation affects support for a party's policies, it could always be argued that it was affecting support for the party itself.

It seems clear to me that the Bill should go back to its original objective. The noble Lord the Minister said that he was concerned about party political material, and we do not disagree with him on that. If party political material is what he is concerned about let us have a Bill which says so instead of the rather unclear phrases used at present.

If we want to use the test of reasonableness which is in the Bill as it stands, why do we not apply that so far as this Bill is concerned? The Committee is full of reasonable people and I would guess that the majority would agree that the logic of this amendment is reasonable and fair. I draw your Lordships' attention to the Explanatory and Financial Memorandum which accompanies the Bill, although loosely attached to it. It states: Clause 2 prohibits local authorities from publishing, or giving financial or other assistance to another person to publish, material designed to affect public support for a political party". We are all agreed on that. There was none of this nonsense about reasonableness in the Explanatory Memorandum, so why not stick to what is said? I believe that our amendment is correct. This is what Widdicombe wanted. This is what we want. This is what the noble Lord the Minister said he wants. Therefore, why not have a Bill which says the same?

Lord Gisborough

I believe that there is considerable concern by the voluntary sector over this Bill, and it has already been shown. I hope that the Government will make a great effort to reassure those organisations and to show that they will not, in fact, suffer. There is also great concern shown by the councils, and we have all had a mass of papers in this respect. It has been suggested that there will be no less than a paralysed silence from councils in case they are sued by any one ratepayer of either party. It is necessary for the Government to give reassurance on this matter.

I have with me a mass of papers which have been sent to me by one council to show how even-handed and non-political are the publications of this particular body. They are not designed to be political nor to affect political thought and they have been sent to me to prove it. I can read any of them to your Lordships but I shall take just one which relates to the transport system. It is an argument "for" and an argument "against", and therefore one would think it must be fair. On the left of the page the argument is for the public bus system and on the right of the page it is against the private bus system. The terrible things it says about the possible private bus system are amazing. It is entitled: "Don't let them stop your bus". That may be designed to be non-political and it is said to be an example of something which is even-handed, but I really do not think that any reasonable person would regard it as such.

Information about what actually will happen is one thing but criticism is quite another, and I do not think that that publication could be described as anything other than criticism. I hope that this amendment will be rejected.

Lord Dean of Beswick

May I first of all say that I came in only at the end of the speech on this subject by the noble and learned Lord, Lord Denning, but that I was able to catch the remarks of the noble Lord, Lord Boyd-Carpenter, about this matter. I have been privileged to be a Member of this Chamber for just over two years and it is not very often that I have heard noble Lords of whatever political persuasion in this House mention the names of individuals. But the noble Lord, Lord Boyd-Carpenter, did mention Mr. David Blunkett, who is the Leader of the Council in Sheffield. I do not think for one moment that Mr. David Blunkett would expect me to rise in his defence, since I do not view politics through the same eyes as he does—and I do not say that as a pun, because Mr. David Blunkett suffers the tragedy of being blind. He is not blind politically: politically he is very mature.

Lord Winstanley

If the noble Lord would allow me, is not the real point whether or not the noble Lord's contribution on this matter could reasonably be regarded as likely to affect public support for Mr. Blunkett?

Lord Dean of Beswick

I am grateful to the noble Lord from the Liberal Bench; but I want to say that whether noble Lords from the same political party or different political parties agree or disagree with Mr. Blunkett's viewpoint, nevertheless he has a privilege possessed by none of us in this Chamber, whether we I support my party, the Government party, minority parties, or are Cross-Benchers. He has the privilege of being elected; and if people do not like him, they have the privilege of rejecting him. I think it is hitting somewhat below the belt to suggest that someone who has to justify his existence triennially by returning every three years to the ballot box will not be very well accepted by people inside this House, among whom I count myself, who will not be facing the electorate again.

Lord Boyd-Carpenter

If the noble Lord will allow me, and since he referred to my speech, perhaps I may say that if the noble Lord was good enough to listen to my speech, he will have realised that I was making the point that there are certain leaders of local authorities in this country who want to drive a hole through this Bill. I thought it right to support that general proposition by quotations, and when I give a quotation I attribute it to the person who made it, which I think your Lordships will agree is the fair and proper way to do it.

Lord Dean of Beswick

I do not disagree for one moment that that is the case; but it seems to me that inescapably the person concerned must face the verdict of the electorate. We do not have to go through that procedure, and I would venture to say that that consideration may well govern some of the remarks made on occasions in this Chamber. I think that one of the mistakes that we make in this Chamber—whether we are sitting on this side of the House, are supporters of the Government, members of the SDP/Liberal Alliance, Law Lords or Cross-Benchers—is to assume that we know better than the electorate what the people want. I think that we are in a very dangerous position if we go to the end of the road with that argument.

In the last session, during the passage of the Bill which resulted in the dissolution of the GLC and the metropolitan counties noble Lords made the point that we were following a very dangerous road indeed. I make no apologies for the leaders of the GLC, who unwittingly I think—or maybe it was deliberate—helped the Government in that process. When they were tinkering with local government in the last session the Government were warned to be very careful about what they were doing and to make sure that they were not in fact tinkering with the processes of democracy. The noble Baroness, Lady Birk, was leading the arguments on local government from this side of the House during the last session. Various speakers from this side of the House and from the Cross-Benches warned the Government that they were embarking on such a course and that the result would be chaos and would mean large areas of the country (which I think covered about 24 million people) being denied representation at a level which was vital to their interests as a community.

I must come back and tell noble Lords that quite recently I have been meeting with various people in this House, not just representatives from the GLC but from the Greater Manchester Council, from West Yorkshire, South Yorkshire and West Midlands, who say that local government has now been plunged into absolute chaos by what the Government forced through Parliament and through your Lordships' House during the last session. Some of us said then that there would be no coherent decisions made, that there would be fragmentation and that difficulties would manifest themselves far and away beyond any sense of objectivity.

Finally, in closing, I shall say that I rose to point out quite briefly that we must be very careful, whether we are Back-Benchers who are supporting the Government or noble and learned Lords on the Cross-Benches who are putting a point of view. We cannot assume, because we are supposed to have superior knowledge, that we know best what democracy and the ballot box are all about. I suggest that in looking at this amendment noble Lords will have to look at it more carefully than has been indicated by the noble Lord, Lord Boyd-Carpenter.

Lord Bellwin

I have to smile at the apocalyptic scenario which those who support this amendment are painting. It seems to me that this is where I came in. I have been watching these scenarios being painted so often by noble Lords opposite that I feel it is very nice to be back home. Indeed, I have almost missed it, and it is nice to hear them again. The fact that I disagree with the argument now, as I always did in the past, means, I say again, that nothing has changed.

I am not quite sure what the noble Lord, Lord Dean, was talking about when he referred to abolition. I am not clear where that is apposite in relation to the amendment; but if he would like to know—and I am sure it will be no surprise to him—I totally disagree with the conclusions which he has reached at a date before abolition has even come into effect. The fact is that we have always said about it that those who wish to make it work would make it work very well indeed, and that will be the majority. Those who wish to make sure that it does not work too well in the early stages will also be able to achieve that if that is what they want. The change becomes effective on 1st April. It is a little early to talk about the chaos and all the rest that may go with it.

4.30 p.m.

Let me briefly address myself to the amendments and the observations that have been made; we have gone on a bit on the subject. My noble friend Lady Faithfull said that the Bill, as it is, will inhibit work that local authorities should do. What on earth does preventing an authority spending all its ratepayers' money on party political propaganda do to inhibit the work that it should do? I thought that the work of a local authority was to try to deliver services efficiently and economically for the benefit of all the citizens within that authority. I do not believe now, any more than I ever have done, that it is necessary to spend money on party political propaganda, and the same is true of many other leaders of all parties.

Lord Dean of Beswick

The noble Lord—

Lord Bellwin

I did not interrupt the noble Lord. Perhaps he will allow me to finish, as time is going on. I have never thought it necessary to spend money on party political propaganda.

For all that has been said today by noble Lords who support the amendment, I believe that we must come back to the basic theme. Everyone says that they are not against the suppression of money being spent on party political propaganda, but they wish to qualify that through the amendment. They say that they fear that the provision is so broad that it will bring in other people. Voluntary bodies who do not wish to indulge in spending money in that way have nothing to fear. My noble friend Lord Elton gave that assurance at Second Reading, and so far as I can see that is absolutely correct.

The noble Lord, Lord Elystan-Morgan, said that the authorities that offend are few in number. But he went on to say that politics are central to the function of every local authority. With respect, that is a contradiction. It is not an obligation, or indeed a right, of any authority to spend ratepayers' money, which comes from people of all party persuasions, on propaganda that supports the views of one party. That is what we are talking about. That is the theme of the Bill and of this clause. I see nothing in it that inhibits me from supporting it, and I hope that your Lordships will reject the amendment.

Lord Grimond

I wonder whether I may raise again a question that I am sure has been raised before. It is a very simple one. It seems to me that if Clause 2 applied to the Government it would forbid the publication of any large fall in the unemployment figures. Although that would not be designed to affect, it certainly could reasonably be regarded as likely to affect, public support for a political party. Applying that to local government, in certain parts of the country one sees large notices saying that this road widening or this bridge was undertaken by the local authority, often in collusion with the EC or some other body. Although that is not perhaps designed to affect support for the majority party on the local authority, it is certainly likely to do so and in fact is intended to do so. It is intended to make out that the local authority is a good one and therefore that the people who control it are good.

Later parts of this clause and other clauses may answer my point, but I should like to be reassured about exactly what will happen if we do not make the amendment and leave the words, or can reasonably be regarded as likely to affect in the Bill. Whether we intend it or not, it seems to me that they would cut out a great deal of what is now put out by local authorities at least under the impression that they are simply giving the public information. But they know at the back of their minds that it is inform-ation favourable to them. One seldom sees notices, or indeed government releases, which say that a terrible mistake has been made either by the local authority or by the Government. Perhaps I may have an answer to what must be a simple question and an old one.

Earl De La Warr

I shall try to be brief. I ask my noble friend when he comes to reply, which I am sure will be straightaway, to give the Committee special help on one aspect of the discussion. It has seemed to me that every noble Lord who has spoken has agreed with Widdicombe that the test is the content of the material, and that only. But those who have opposed the amendment have asked, "Why should not the offending words remain in?". When I saw the amendment I asked exactly the opposite: "Why should they be there?" I cannot speak for the judges, but to the average layman the clause is so much simpler if one takes them out. One gets a closer juxtaposition of what matters; it is the words: shall not publish any material", and public support for a political party". Looking at the provision as an absolute layman, I believe that to leave those words out could strengthen the Bill in making the Government's intention clearer and an easier matter for the judges to deal with.

There is some point which I must have missed. I hope that my noble friend will tell the Committee, particularly as there seems to be such a strong case for making the clause clearer and leaving the words out, why it would be so greatly weakened if we removed them. I should be enormously grateful if he could explain that to us before some of us make up our minds.

Lord Butterworth

I shall be brief in making a point that may be of some importance in view of the way in which the argument has been developed this afternoon. We are agreed on the need for a general statutory prohibition. The difference between us is on the nature of the tests to be applied. Whatever form of words is used to make the statutory prohibition, there will be difficult cases at the edge where decisions have to be made. It would seem to me reasonable to use tests which have been applied successfully over a long period of years. Both those tests ultimately depend upon the test of reasonableness.

The first is: could one reasonably suppose that the material has been designed to affect public support for a political party? The second test, which again is a test of reasonableness, is: if one comes to the conclusion that the ordinary consequences of publishing the material will be to affect public support for a political party, the material will be caught. We know that those tests are frequently used in the ordinary law—they are fundamental in the law of negligence—to limit the liability to the consequences that can be reasonably foreseen.

The point that I should like to make is that the test of reasonableness is frequently used in administrative law. It is well known to local authority officials, and one can have the utmost confidence that they will have no difficulty in applying the test.

The Lord Advocate (Lord Cameron of Lochbroom)

I am glad to acknowledge that in this debate we have obviously much in common. We are all clear that there is an abuse of local authority power, and we are all clear that it ought to be stopped. The abuse is quite clearly the use of public money to further or to disparage the purposes and prospects of any political party.

It was generally agreed at Second Reading that it cannot be right to take money from ratepayers and taxpayers and to use it against parties which those ratepayers and taxpayers support. The way in which this is being done—and Members of the Committee will have had ample opportunity of seeing it being done here in London—is to use that money to finance publicity intended to secure the fortunes of the ruling party. That money may be spent either directly—and for that one finds the purpose of Clause 2(1)—or through an agency. The Bill provides for the latter contingency in subsection (3)of the clause, but that is not the subject of the present amendment.

Perhaps while I am pausing at subsection (3) I should just make a reply to certain concerns which have been expressed by my noble friend Lady Faithfull, by the noble Lord, Lord Hayter, and by my noble friend Lord Gisborough. Perhaps I may make it quite clear, in looking at this clause, that it is not directed at voluntary organisations but at a local authority. The prohibition is directed at a local authority. It will no doubt come out later in the course of this Committee's debate that the prohibition in subsection (3) is that, A local authority shall not give financial or other assistance to a person for the publication of material". It is those words which are so important when one is considering, first, the evil at which this clause is directed and the limits of what this clause does.

The evil is not simply, as perhaps at one stage the noble Lord, Lord Elystan-Morgan, seemed to be suggesting, one of just a little local difficulty. It has been recognised in the Widdicombe Report that this is something which has grown up over the years, in an abuse which, sadly, we cannot now consider will just suddenly wither away. It was because of that that the Widdicombe Report made quite clear the requirement for a statutory prohibition.

Clause 2(1) prohibits the publication of material which appears in the first place to be designed to affect public support for a political party. Those words remain in the clause even if, contrary to what I shall suggest Members of the Committee should do, this amendment were to secure the Committee's agreement. I would simply say that if that be so it is recognised that those words have a perfectly obvious content and can easily be dealt with. I therefore suggest that the criticism of the noble Lord, Lord Elystan-Morgan, on that count was not justified.

The group of words to which objection has been taken has been rehearsed on numerous occasions this afternoon. The Widdicombe Inquiry made it quite clear in paragraph 229 that consideration would have to be given to the precise drafting of a statutory prohibition. We gave it that consideration. We addressed the problems of definition against the background of what the committee of inquiry concluded rather than using its words literally. The Bill is seeking to define exactly what we mean by "material of a party political nature" and to do so in terms that will enable the courts to make an objective judgment.

4.45 p.m.,

In our view it is essential, as the noble and learned Lord, Lord Denning, pointed out at Second Reading that the courts are provided with a clear test. I am very happy to think that today the noble and learned Lord has made it abundantly plain that in his opinion—it is one to which I would certainly defer—that provides the clear and proper test which we are seeking to provide: to define the mischief which we are seeking to outlaw so that both local authorities and, if need be, the courts could form a view of the material before them, in the light of that clear test.

The problems of definition in Part II of the Bill are not simple. We do not wish to propose a test which would depend on the intention of those who produced a particular item of publicity for the reasons which Widdicombe explained. Case law in the general area of local authority information on powers indicates that the test of intention, which requires the courts to consider the dominant purpose of the authority, is not the best one. That was made abundantly plain again in speeches which have been made this afternoon. Nor do we consider it desirable that the test should depend upon proof of the effect on public support, because that is an impossible burden to discharge. That was quite clearly recognised this afternoon.

What is to be done is for the local authority at the start to consider the material. It has the tests upon which that is to be considered. In the event that the local authority publishes—having looked at the material against those tests—it then becomes a matter for the courts to look at the material and to consider its apparent design, or to take a reasonable view of its likely effect. I make no bones about this. The amendment proposed would, if passed, seriously undermine Clause 2 of the Bill. I would wish to argue most strongly against it. The prohibition in the Bill of party political publicity is in two parts, and both of them are important elements of the definition of material which we are seeking to outlaw.

First, local authorities would be prohibited from publishing material which appeared to be designed to affect public support for a political party. Secondly, they would be prohibited from publishing material whether on its own or as part of a campaign which would, on a reasonable view, be regarded as likely to affect such public support.

The second limb of the test reinforces the first, and without it the definition of "party political publicity" would be wholly inadequate. Without that the test would simply be directed to the motive of the publisher so far as that could be derived from consideration of the material and not to the likely effect of its publication. That cannot be right and I entirely endorse all that has been said by my noble friends behind me, in particular the noble Lords, Lord Broxbourne and Lord Boyd-Carpenter.

I am sure that Members of the Committee will agree that the developments that we have seen in recent years are the efforts and resources which some councils are intent on devoting to production of campaigning publicity which, while not apparently designed to promote or disparage a political party, would nevertheless on any reasonable view be regarded as achieving the same result at the end of the day. The second limb of the prohibition tackles this problem. I am aware that some Members of the Committee are concerned that the definition is too broad. It is suggested that in some ways it goes beyond Widdicombe. I have already made the point that Widdicombe did not provide any definition. He merely said that there should be a statutory prohibition.

Particular anxiety has been expressed about the use of the word "reasonably". This was an issue which was discussed at some length during Report stage of the Bill in another place, but it certainly bears repeating. The phrase, can reasonably be regarded as likely to affect required local authorities, and the courts, to take a reasonable view of the likely effect of publicity on public support for a political party.

I am very grateful indeed to my noble friend Lord Broxbourne for his reference to the Companies Act. It has to be borne in mind that that Act provided that in its annual report a company had to include the specification of donations or subscriptions (and here I read from the 1967 Act): to a person who to its knowledge is carrying on or proposing to carry on any activities"— and noble Lords should observe that this is the test about which directors have to make up their minds— which can reasonably be regarded as likely to affect public support for … a political party". The Act says "such a political party", but that is of no consequence here. Therefore, when the directors are preparing their report, in giving that donation or subscription to that person, they have to ask themselves: "At that time was he a person who to our knowledge was carrying on or proposing to carry on these activities?"

An offence was created in the failure of the report to include that material. In 1967 on summary conviction the offence could amount to a period of imprisonment not exceeding six months or a fine, then not exceeding £200. It is that particular test which of course is to be found today in the Consolidation Act, and I am thankful that, if the test is not passed by the directors, Parliament has decreed that it shall no longer be summary imprisonment but merely a fine. However, the point is that it is still a criminal offence and, in the event of failure of the report to include such details, the courts have to decide whether that person had been carrying on activities which could reasonably be regarded as likely to affect public support for a political party so that that entry had to be made in the company accounts.

I suggest that there is no difference in principle between a company and its directors and a local authority and its members. If directors are expected to be able to answer that test, why should it be difficult for a local authority to ask the same question and reach a proper answer in relation to material placed before it for the purpose of publication?

In my submission, although the question that may be asked in each case may start with a different word—activities" for the directors and "material" for the local authority—there is no difficulty in answering either. I am particularly beholden that noble Lords in Committee also reminded us that in other spheres local authorities have no difficulty in answering questions on similar points. Every day local authorities use the power contained in Section 111 of the Local Government Act 1972, which deals with the subsidiary powers of local authorities. Perhaps I may remind your Lordships that that section enables a local authority to do anything which is calculated to facilitate or is conducive to or incidental to the discharge of any of their functions.

This power gives statutory force to a principle established in common law; the courts have held that a corporation may do not only those things for which there is express or implied authority but also whatever is reasonably incidental to those things, and, therefore, although Section 111 does not refer in terms to that which is reasonably incidental, the courts will construe that section as only authorising that which is reasonably incidental. The test of reasonableness is one which is well known to the courts and, as noble and learned Lords and noble Lords have said this afternoon, it is also one with which local authorities are perfectly familiar.

The purpose behind including the word "reasonably" in the prohibition is to prevent material from falling under the prohibition where the possibility of its affecting public support for a political party is too remote or fanciful. The likelihood has to be regarded as a reasonable one; and again I am in entire agreement with what has been said by noble Lords, and in particular with the remarks of my noble friend Lord Broxbourne and those of the noble and learned Lord, Lord Denning. That is a test with which the courts have been familiar over the years and, so far as I am aware, have never found any difficulty in applying.

At another level I think concern has been expressed that, given that local authorities operate in a political climate, where political parties are operating, the courts will, on a reasonable view, consider that even objective factual publicity can reasonably be regarded as likely to affect public support for a political party. The fear has been expressed that the courts will be drawn into the political arena in applying our tests. We believe that these fears too are based on certain misapprehensions. I was surprised that some noble Lords alluded to this, because in our judicial review procedure it has been a matter of comment that the judges have been able to come into what is, I think, termed the "political sphere", and indeed the fact that they have done so has been regarded as being of the very greatest importance.

I should like to emphasise from the start that we are not asking the courts whether they prefer Conservative or Labour publicity. They are not being asked to make political judgments of that kind. They are simply being asked to apply an objective test of whether the material before them, appears to be designed or can reasonably be regarded as likely to affect public support for a political party. They must decide whether the material falls foul of Clause 2, be it in support of the Labour, the Conservative, the SDP or the Ecology Party. They will of course have to operate this test in a political climate, but the courts are not neophytes to party politics. The Scottish case of Meek v. Lothian Regional Council in 1983 illustrates this perfectly well. The court said then that if Parliament had intended to restrict a local authority to the publication of purely factual information regarding decisions made, as opposed to publishing explanations or justifications for the decisions made, Parliament would have said so. Parliament must have appreciated that party politics prevail in local government. I suggest that that judgment is a salutary one. Contrary to what some expressions of view may be, the law is not an ass.

We consider that in interpreting Clause 2 the courts will be mindful of the purpose of this legislation. The courts are required to look at the material itself and will have no difficulty in drawing a distinction between factual information about the services provided by a local authority and the impact of central and local policies on those services, and material which contravenes Clause 2. We have provided a guide in Clause 2(2)(a) and (b) to those matters to which the court will have to have particular regard.

In my submission, it is for that reason that I would respond to the question of the noble Lord, Lord Grimond, because in that case it would be quite clear, if the courts were to have to decide upon that matter, that the publication of the unemployment figures was not something falling within the mischief which this Bill is intended to outlaw.

What we are doing here in this clause—and in particular Clause 1(1) and (2)—is telling local authorities to look carefully at the material produced by them; to bear in mind its effect if published as well as their intention in publishing it. The same advice as would be given, I suggest, to any person asking about the law of defamation. I suggest that if, for instance, one was asked to tell him what he was to do, in short compass one would say, "Choose your words with care. It's no good saying you didn't intend to defame another person if at the end of the day the effect of your words is to defame him".

This amendment accepts that a local authority would have no difficulty in judging whether or not material appeared to be designed to affect public support for a political party. If this amendment were carried it would swallow the camel; but it is surely straining at a gnat to say that a local authority cannot also judge that material on the test in the second part of Clause 2(1).

I have set out in some detail why we consider the test that is proposed in Clause 2 to be a fair and objective one. To limit that test in the sense proposed by the amendment would seriously undermine the effectiveness of the prohibition on party political material as a whole. No doubt some of the blatantly party political material which has, sadly, become commonplace in a very small minority of authorities would still be caught. But it is the Government's firm belief that to accept this amendment would remove any effective constraint on the use of public funds to finance at public expense the less immediately obvious but still insidious political publicity which has become increasingly familiar in local government. I have no hesitation in asking the Committee to reject this amendment.

Baroness David

We have had a long debate on this amendment and I shall certainly not take up much of the Committee's time now. The Minister spent a great deal of time on the courts, on what would happen in the courts, and on what the judges would be able to do, and the judgment of the local authorities about whether they would be taken to court or not. My noble friend Lord Elystan-Morgan answered the early comments from the noble Lord, Lord Broxbourne, and the noble and learned Lord, Lord Denning, and also dealt with the question of reasonableness and the Companies Act.

What those who object to the amendment seem to have forgotten is the effect of this Bill on the local authority associations. They have all objected to the length to which the Government have gone in drafting the Bill, and so have the voluntary organisations. These are not made up of foolish people. They are not frightened of nothing. When the Minister says that the Bill is not directed at the voluntary organisations but the local authorities, Clause 2(3) of course means that the voluntary organisations can be got at in this way, because a lot of them exist to go in for publicity and informing the public.

I should like to quote a little from the Society of Local Authority Chief Executives, who, after all, are not a foolish bunch of people. They are frightened by this clause. They say: We believe that Part II of the Local Government Bill as presently drafted will prove to be unworkable in the day to day administration of local authorities and have disturbing constitutional implications for local government. They go on: The Clause we consider most potentially litigious is Clause 2 of the Bill, which provides for the making of judgments on the basis of the intention and effect of publicity material, rather than its actual nature. … This provision [in Clause 2(1)] is far too widely drawn. They go on: In any local authority where political control is exercised as in Lord Elton's words"— at Second Reading— 'political argument and political commitment are a necessary part of local government', publicity about Council plans or policies might be said to be likely to affect public support for the party having control. If the Clause remains in the Bill as it stands, it is likely to restrict the information which the public receives about Council policies and plans. The Government have given reassurances and they say what their intentions are, but we do not think that reassurances are enough. We want it to be on the face of the Bill so that they really know what they can do. I shall read out what it says in the Explanatory Memorandum as the noble Lord, Lord Hayter, did. Clause 2 prohibits local authorities from publishing, or giving financial or other assistance to another person to publish, material designed to affect public support for a political party. If Clause 2 did just that we should be happy with it, but it goes much further.

I would ask the Committee to support the amendment, and to give some reassurance by so doing to the local authority associations (all against this clause as it stands), and the voluntary organisations, who again are all against this clause as it stands.

5.6 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 147; Not-Contents, 138.

DIVISION NO. 1
CONTENTS
Airedale, L.	Aylestone, L.
Allen of Abbeydale, L.	Bancroft, L.
Alport, L.	Banks, L.
Amherst, E.	Barnett, L.
Attlee, E.	Bernstein, L.

Birk, B.	Kissin, L.
Blease, L.	Leatherland, L.
Blyton, L.	Lincoln, Bp.
Boston of Faversham, L.	Listowel, E.
Bottomley, L.	Lloyd of Kilgerran, L.
Briginshaw, L.	Lockwood, B.
Brockway, L.	Longford, E.
Brooks of Tremorfa, L.	Lovell-Davis, L.
Buckmaster, V.	McIntosh of Haringey, L.
Burton of Coventry, B.	Mackie of Benshie, L.
Campbell of Eskan, L.	McNair, L.
Caradon, L.	Mais, L.
Carmichael of Kelvingrove, L.	Masham of Ilton, B.
Chandos, V.	Mayhew, L.
Collison, L.	Milner of Leeds, L.
Crawshaw of Aintree, L.	Morris of Kenwood, L.
Crowther-Hunt, L.	Morton of Shuna, L.
Darcy (de Knayth), B.	Mountevans, L.
David, B.	Mulley, L.
Davies of Penrhys, L.	Murray of Epping Forest, L.
Dean of Beswick, L.	Nicol, B.
Delacourt-Smith of Alteryn, B.	Northfield, L.
	Ogmore, L.
Denington, B.	O'Neill of the Maine, L.
Diamond, L.	Oram, L.
Donaldson of Kingsbridge, L.	Parry, L.
Donoughue, L.	Phillips, B.
Elwyn-Jones, L.	Pitt of Hampstead, L.
Elystan-Morgan, L.	Plant, L.
Ennals, L.	Ponsonby of Shulbrede, L. [Teller.]
Ezra, L.
Faithfull, B.	Prys-Davies, L.
Falkender, B.	Raglan, L.
Falkland, V.	Rea, L.
Fisher of Rednal, B.	Reilly, L.
Foot, L.	Rhodes, L.
Gainsborough, E.	Rochester, Bp.
Gallacher, L.	Rochester, L.
Galpern, L.	Ross of Marnock, L.
Gladwyn, L.	Russell of Liverpool, L.
Glenamara, L.	Seear, B.
Graham of Edmonton, L.	Seebohm, L.
Grey, E.	Shackleton, L.
Grimond, L.	Shepherd, L.
Hampton, L.	Silkin of Dulwich, L.
Hanworth, V.	Simon, V.
Harris of Greenwich, L.	Stallard, L.
Hatch of Lusby, L.	Stedman, B.
Hayter, L.	Stewart of Fulham, L.
Henderson of Brompton, L.	Stoddart of Swindon, L.
Henniker, L.	Strabolgi, L.
Heycock, L.	Strauss, L.
Hirshfield, L.	Taylor of Blackburn, L.
Hooson, L.	Taylor of Gryfe, L.
Houghton of Sowerby, L.	Taylor of Mansfield, L.
Howie of Troon, L.	Tordoff, L.
Hunt, L.	Turner of Camden, B.
Hunter of Newington, L.	Underhill, L.
Hutchinson of Lullington, L.	Vernon, L.
Irving of Dartford, L.	Wallace of Coslany, L.
Jacques, L.	Wells-Pestell, L.
Jeger, B.	Whaddon, L.
Jenkins of Putney, L.	White, B.
John-Mackie, L.	Wigoder, L.
Kaldor, L.	Williams of Elvel, L.
Kearton, L.	Wilson of Langside, L.
Kilbracken, L.	Wilson of Rievaulx, L.
Kilmarnock, L. [Teller.]	Winchilsea and Nottingham, E.
Kirkhill, L.
Kirkwood, L.	Winstanley, L.

NOT-CONTENTS
Airey of Abingdon, B.	Belstead, L.
Alexander of Tunis, E.	Bessborough, E.
Allerton, L.	Boardman, L.
Ampthill, L.	Boyd-Carpenter, L.
Arran, E.	Brabazon of Tara, L.
Auckland, L.	Broxbourne, L.
Bauer, L.	Butterworth, L.
Bellwin, L.	Buxton of Alsa, L.
Beloff, L.	Caccia, L.

Cameron of Lochbroom, L.	Marley, L.
Campbell of Alloway, L.	Maude of Stratford-upon-Avon, L.
Campbell of Croy, L.
Carnegy of Lour, B.	Merrivale, L.
Cathcart, E.	Mersey, V.
Cawley, L.	Middleton, L.
Chelmer, L.	Milverton, L.
Chelwood, L.	Molson, L.
Cork and Orrery, E.	Monson, L.
Cornwallis, L.	Montgomery of Alamein, V.
Cottesloe, L.	Morris, L.
Craigavon, V.	Mottistone, L.
Craigton, L.	Munster, E.
Crathorne, L.	Murton of Lindisfarne, L.
Cullen of Ashbourne, L.	Nelson of Stafford, L.
Denham, L. [Teller.]	Nugent of Guildford, L.
Denning, L.	Onslow, E.
Eccles, V.	Orkney, E.
Ellenborough, L.	Orr-Ewing, L.
Elliot of Harwood, B.	Pender, L.
Elliott of Morpeth, L.	Penrhyn, L.
Elton, L.	Peyton of Yeovil, L.
Ferrers, E.	Portland, D.
Fortescue, E.	Radnor, E.
Fraser of Kilmorack, L.	Rankeillour, L.
Gainford, L.	Renwick, L.
Gardner of Parkes, B.	Rochdale, V.
Gibson-Watt, L.	Rodney, L.
Gisborough, L.	Romney, E.
Glanusk, L.	Rugby, L.
Glenarthur, L.	St. Davids, V.
Gray of Contin, L.	Saltoun of Abernethy, Ly.
Gridley, L.	Selkirk, E.
Grimston of Westbury, L.	Shannon, E.
Grimthorpe, L.	Skelmersdale, L.
Hailsham of Saint Marylebone, L.	Somers, L.
	Strathcarron, L.
Hankey, L.	Strathcona and Mount Royal, L.
Harmar-Nicholls, L.
Harvington, L.	Sudeley, L.
Henley, L.	Suffield, L.
Hives, L.	Swansea, L.
Holderness, L.	Swinton, E. [Teller.]
Home of the Hirsel, L.	Terrington, L.
Hood, V.	Torphichen, L.
Hooper, B.	Torrington, V.
Hylton-Foster, B.	Trefgarne, L.
Killearn, L.	Trumpington, B.
Kimball, L.	Ullswater, V.
Kimberley, E.	Vaux of Harrowden, L.
Kinloss, Ly.	Vickers, B.
Kinnaird, L.	Vinson, L.
Layton, L.	Vivian, L.
Long, V.	Waldegrave, E.
Lucas of Chilworth, L.	Ward of Witley, V.
Lyell, L.	Westbury, L.
McAlpine of West Green, L.	Whitelaw, V.
Macleod of Borve, B.	Wolfson, L.
Mancroft, L.	Young, B.
Manton, L.	Young of Graffham, L.
Mar, C.	Zouche of Haryngworth, L.
Margadale, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5.16 p.m.

Lord Orr-Ewing moved Amendment No. 2: Page 2, line 18, at beginning insert ("(a)").

The noble Lord said: I shall also speak to Amendment No. 3. The object of this amendment is to try to bring back a provision which existed in the original Bill but which was deleted by the Minister at a very late stage in the Commons debate. He seemed to be having some difficulty with Opposition criticism and agreed to delete it from the Bill. I think this was unfortunate and so do some of my noble friends, because it has tended to weaken the Bill quite alarmingly. By taking it out local authorities are allowed to give money to bodies which may be indentified with political parties. It will, for example, allow a local authority to give large sums of money to groups attacking Government policies on privatisation, on housing, on defence, or perhaps the National Health Service.

We have to remember that it is not just political parties which spend a lot of money. The GLC, for example, used to give considerable sums to CND. CND is not a political party, although it may be allied with the militant Left in the Labour party in some places. It was worked out by Professor Regan of Nottingham University that with CND support the anti-nuclear zones campaign cost no less than £10 million of which a large amount was spent on publicity.

It would seem that the clause originally drafted by the Government is necessary. It would be a devastating blow to the Local Government Bill if it remained out. It would slow down exposure of corruption in political propaganda on the rates and this would tend to continue. We are asking for the reintroduction of the subsection which would prevent local authorities from using ratepayers' money for such operations as CND and financing certain publicity. I was recently looking at one of the CND leaflets called, Thirty questions and answers about CND. CND claims that it is political but not party political.

I concede that it is difficult to frame words which will catch those who are trading on the rates and using a great deal of publicity and not catch those who are behaving honourably in every way. I should like to point out that by taking this provision out the Government have, perhaps inadvertently, weakened Clause 3 because it refers back to everything that is in Clause 2(1) and was in Clause 2(1)(a) and (b) before the amendment.

I hope the Government will think seriously about this. I and others have had a large number of representations on it. The deletion would seem a strange weakening of the Bill and one which could give too much liberty to the wrong-doers in these areas. I am not pretending that the majority are wrong-doers, but we are aware of the problems of Liverpool. I was interested to see objections made because the speech of my noble friend Lord Boyd-Carpenter named someone. I thought that the Leader of the Labour Party had been naming Derek Hatton in no mean way on television and elsewhere in recent days. No one seemed to object to that naming. However, there are wrong-doers and we know it. Everyone knows it. No genuine Labour democrat, wherever he may sit, would wish to see this kind of corruption and huge grants being levied and ladled out to those who are trying to twist the system.

I should point out to those in local government and also to the goodwilled in this House, who believe in the best they know rather than in the worst in humanity, that these wrongdoers are very light-footed. They are very well advised by clever lawyers generally of rather Left-wing persuasion. They are very well equipped to drive a coach and horses through any little loophole that may appear. I should urge my noble friend to look again at this and perhaps bring back the provision at a later stage of this Bill.

Lord Denning

Perhaps I may say a word in support of this amendment. It seems to me that the clause as it stands in the Bill is likely to produce much difficulty of interpretation. It is very necessary to have everything in this Bill clear for the judges to decide. If I may say so, the first obscurity occurs in the words, "political party". The courts will have to define and say what is a "political party". Of course, there is no difficulty about those who are represented in this Chamber or in another place, or those who are represented on local authorities, or the candidates themselves, or those who represent political parties. But then if one goes beyond the parties in this Chamber and in the other place, what does one do with all the many other organisations which may come into question? What will one do with the National Front? What does one do with the Communist Party? What will one do with the Militant Tendency? I can mention hundreds of examples, such as the National Council for Civil Liberties. There are all kinds of them. Are they political parties or not?

The Church of England is a party but it is not, I hope, a political one. What about the party for Saving our Sunday? It is a political issue in this Chamber. Is Saving our Sunday a political party? The words "political party" are completely ambiguous. Judges will have the greatest difficulty in deciding what they apply to unless they restrict them to the political parties as known in Parliament and in local government. Thus the courts may feel constrained to limit political parties in that way. If political parties are so limited, surely it is very necessary to have the matter explained by an amendment such as that now put forward. That is because I suggest that one can tell a party only by its objectives.

I should have said that the CND was a political party because of its objectives, or maybe the anti-Fascists, or whatever one may like to call them. There are dozens of parties which I suggest are political and therefore should be controlled. For instance, take the councillors in Liverpool. Are they allowed to provide the funds of the city in favour of those who are of militant tendencies? It is in order to clear up such ambiguities as that, that I think there should be some amendment—not necessarily in these words but one like that which the noble Lord, Lord On-Ewing, proposes.

If a body is identified in its objectives with a political party, then one should tell the court so. Otherwise one may find them limited a great deal. In other words, I urge an amendment on these lines to make it clear to the judges what they are to do and how they are to decide. I appeal for more clarity in this provision affecting political parties. Accordingly, I support the amendment.

Lord Mottistone

Perhaps I may briefly support my noble friend's amendment in principle. I am not quite sure that the wording meets exactly what he argues. I hope that perhaps my noble friend on the Front Bench can explain to us why this provision was withdrawn in another place and whether he has something more cogent to go in its place.

I think the key matter is not misuse of ratepayers' money on activities which are probably party political in the sense that we know party politics both in Parliament and in local government, but in regard to bodies which are clearly of an extreme political kind. Such a body may, in one way or another, receive money from the ratepayer who in no way has been asked if he wants to support some extreme Left- or Right-wing organisation. He has been asked only if he will vote for a particular party of the ordinary kind in his local government.

I should have thought it was very important to widen Clause 2(1) to make quite certain that this potential misspending of ratepayers' money on bodies that they have probably never even heard of before an election is covered by this Bill.

Lord Donaldson of Kingsbridge

I am a little worried about this. I agree in general with what the noble Lord is trying to do in 99 cases out of 100. Today I am just running into the hundredth in relation to our inner city areas. The noble Lord, Lord Young, is forming task forces. These task forces have to go into the inner city areas and try to persuade young blacks, who hate the police—really hate them and often have quite good reason to—and who regard the Government and the establishment as wholly hostile to themselves, to change their opinions. This has been done elsewhere and I think we may succeed in doing it here.

However, we must do it by putting a good deal of money into groups and getting them to help themselves. If one asks a local authority, who must be involved, to put money into a group of this kind, it seems to me that it can perfectly honestly answer, "There is not a single man here who is not a Maoist"—or whatever the definition is—"Why should I help them?"

I think my case is perfectly clear. Clearly, one wants to help these people to change. One cannot do it without giving them money, and it seems to me that this amendment may make it impossible for one to do so. I am expressing a worry, not more than that, but I believe it needs thinking about.

Lord Elton

I have a certain sense of déja vu, starting a Local Government Bill in your Lordships' Chamber with a defeat on the first amendment. That said, I turn to the matter in hand. This amendment effectively proposes a new Clause 2(1)(b), broadly on the lines of the subsection in the Bill originally introduced in another place. As my noble friend Lord On-Ewing has explained, when Clause 2 was originally drafted there were two subsections in Clause 2(1). It went beyond the present wording and stated in 2(1)(b) that a local authority should not publish material which appeared to be designed to affect or could reasonably be regarded as likely to affect public support for, a body, cause or campaign identified with, or likely to be regarded as identified with, a political party". My noble friend has put forward an amendment which does not quite restore the original wording but which nevertheless carries approximately the same message.

My noble friend Lord On-Ewing is aware that Clause 2(1)(b) was removed from the Bill by a Government amendment in another place. My honourable friend there (who I shall now describe as the Minister for Environment, Countryside and Local Government, but for reasons of time shall in future refer to only as either the Minister for Local Government or simply my honourable friend) explained in Committee that he considered that Clause 2(1)(b) made the Bill's definition of prohibited party political publicity too wide. It was interpreted as going beyond the Government's original intentions. He gave an example of publicity which might have fallen foul of that subsection: an example which may be of particular interest to some Members of the Committee. He expressed fears that local authorities might be prevented from funding publicity by the Coronary Prevention Group to persuade the public to adopt a healthier diet. Such publicity might conceivably fall within the prohibition if the campaign was supported by one political party but not by another.

5.30 p.m.

I think therefore that we were well advised to reconsider the scope of Clause 2 and remove Clause 2(1)(b). We do not want to stop local authorities funding fair-minded publicity on issues which happen to be the subject of controversy between the parties. We have said all along that local authorities, under the provisions of this Bill, should be able to publish material on matters such as rate limitation, abolition of the GLC and metropolitan county councils. Provided that—and this is very relevent to the fears expressed by the noble Lord, Lord Hayter, during the last debate; because it seems to me that the removal of this amendment did a great deal to remove the anxiety that he was concerned with and indeed the removal was motivated by exactly his concern—the presentation of these causes is not party political it is not the purpose of the Bill to stop them.

It will perhaps not always be only the councils controlled by the Labour Party that want to do such things and it is well to bear that in mind. When I referred to such things, perhaps I misled Members of the Committee by interpolating a sentence between that one and the one before. What I am saying is that there are plenty of causes which are politically susceptible to support by one party and not by another which are not of themselves political causes and which either party may wish to support. We do not want the Bill to be drafted so as to prevent local authorities in an apolitical way supporting such a cause.

My noble friend expressed concern that Clause 2 as drafted might not prevent local authorities from funding publicity by front organisations pursuing party political objectives. I should like to assure the Committee on this point. Clause 2(3) of the Bill is important because it prevents local authorities from assisting other organisations or individuals to publish party political material. Its precise words are: A local authority shall not give financial or other assistance to a person for the publication of material which the authority are prohibited by this section from publishing themselves". The wording of Clause 2(1) as it originally came to us was effective and to the point and my honourable friend in another place made another technical but I think important point. He pointed out that to add what was proposed, a restricted version of Clause 2(1)(b), would not only make the meaning of the prohibition less clear; it could also serve to weaken it.

This is because the courts will generally construe a statute in a way which gives effect to all the words in it and they would wish therefore to construe Clause 2(1)(b) in that way; and I am advised that there is a danger here because, in order to give effect to Clause 2(1)(a), they might well take a narrower view of Clause 2(1)(a) than they otherwise would have done by taking the second subsection into effect. As we are dealing with points for lawyers, I heard with great interest what the noble and learned Lord, Lord Denning, said in his second cogent intervention this afternoon as to the definition of a political party. I think that all I should like to do at the moment is to draw the attention of the noble and learned Lord to the fact that Clause 2(1)(b) is not connected to Clause 2(1)(a) as an exemplification of it but as an alternative. The word in between is "or".

Therefore, although it would provide a definition of the object of the payment of the local authority's money, it would not provide a definition, in my view, of the "political party" which, as he rightly says, does not exist in law. The result of removing Clause 2(1)(b) from the Bill was to remove any implication that it might restrict the interpretation of Clause 2(1)(a) and to allow Clause 2(1)(a) to have its full natural scope. That leaves us with a clear statement of general principle.

To summarise, any material published by a local authority which appeared to be designed to effect support for a body, cause or campaign clearly identified with a political party should be caught by Clause 2(1) in the Bill as drafted. Other assistance to a body whose purpose was to promote a political party would, by virtue of Clause 2(3), be prohibited by the Bill if it were used to finance publicity of a kind that the authority itself was prohibited from funding by virtue of the clause.

Again I look at the noble Lord, Lord Hayter, because I am aware that he is afraid that the effects of this legislation will be to cut off voluntary bodies from funding by local authorities for fear of being caught by some aspect of the Bill. His fear, I hope, has been hugely—and, I suggest with great humility, unduly—allayed by the recent decision of this Committee. But if it remains I would ask him to consider whether he really thinks that it would be a proper use of the money subscribed compulsorily by ratepayers to fund the sort of activities we have now arrived at a definition of, by agreement of the Committee, as being unsuitable for the funding of the local authority. Why should the fact that they are being pursued by a voluntary body suddenly make them acceptable? I am sure that the noble Lord would not think that it did.

What he is afraid of is that some analogous activity which is not party political might be caught. I can assure him—and I am sure that on reading the Bill again he will accept my assurance—that it will not be so caught by this subsection. The test in Clause 2(1) is a strict but fair test, but it has changed since I had made up my mind what to say and I have had only a brief time to consider in the new light the implications of the rest of the clause. So, while not uttering the firm and conclusive, I hope, negative that I had proposed (because I think I ought not to shut any doors at this moment) I have to ask my noble friend if he will be kind enough not to press this amendment, because my predisposition at the moment is still against his amendment but I should like time to look at it.

Lord Denning

May I just say one word? I have heard the argument of my noble friend Lord Elton, and there is a great deal in what he says. If we had in Clause 2(1)(b) as proposed it might restrict the width of Clause 2(1)(a)—that is, the political party—and one would not wish to restrict it in any way. It may be better to keep it in in its wide terms as it is at the moment and leave it to the judges to interpret.

I think it is impossible to define the words "political party". It is like an elephant: you can tell it when you see it, but you cannot define what it is, and so it is with "political party". I think the judges will be able to say yea or nay on whether or not the National Front is a political party. Judges will be able to decide this pretty well, so perhaps it is better to leave the clause as in the Bill and not to try too much by way of amendments.

Lord Orr-Ewing

In view of the assurances given, I beg leave to withdraw the amendment. Obviously the Front Bench would like to look at it in view of the last amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Lord Underhill moved Amendment No. 4: Page 2, line 18, at end insert ("except where the material is published for the purpose of carrying out the duty of the local authority under section 71 of the Race Relations Act 1976.").

The noble Lord said: It might be useful if I read the actual provisons of Section 71 of the Race Relations Act 1976. Section 71 provides that: it shall be the duty of every local authority to make appropriate arrangements with a view to securing that their various functions are caned out with due regard to the need—

1. (a) to eliminate unlawful racial discrimination; and
2. (b) to promote equality of opportunity, and good relations, between persons of different racial groups.

I am certain that there is no Member of the Committee in this Chamber who does not agree with the sentiments in that Act. This amendment is essential to ensure that the Bill before us is to be subordinate to the duties placed upon local authorities by that 1976 Act. Speaking in Standing Committee in another place on the 10th November, the honourable Mr. Waldegrave, the Minister concerned, said at col. 169 of Hansard: Certainly local authorities have a statutory power to do anything incidental to the carrying out of their statutory duties. It is our view that unless this amendment is agreed that statement could be in danger.

Many local authorities have used publicity material to fulfil their statutory duties under the 1976 Race Relations Act. Further, most community relations councils are funded at least in part by their particular local authority. It must be stressed also that the Commission for Racial Equality, which I emphasise is a statutory body, also helps the funding of community relations councils.

The Commission has expressed its own concern with the provisions in Clause 2 and the memorandum, which I am sure other noble Lords as well as myself will have received, stated that this Clause 2 and also Clause 3: may damage progress towards racial equality. It continues: The restrictions contemplated would prevent bodies such as the CRCs from carrying out essential work. The restrictions could also hamper local authorities promoting racial equality work. A local authority could be held to contravene the political test which we have debated already in subsection (1) because such publicity material could be construed as illegal if it affects public support for a political party. We must remember that there are the National Front and the British National Party. Far be if from me to give a legal interpretation of what is a political party; but the National Front contests elections and parliamentary elections and I think the British National Party has done so on occasions.

Publicity issued by a local authority in carrying out its duties under the Race Relations Act could be caught by subsections (a) and (b) in subsection (2). They could also be affected by subsection (3) in so far as a local authority may finance, if only in part, a community relations council or black or ethnic minority voluntary organisations, which themselves issue publicity to counter racist propaganda.

The National Council for Voluntary Organisations has stated that it has legal advice to the effect that, for instance, the National Front could and probably would have a field day challenging financial assistance given by a local authority on the grounds that the community relations council's publicity material would affect public support for their political party. I remember the noble and learned Lord, Lord Denning, saying that it is the effect on people reading the particular material that is important.

On Second Reading on the 4th February, the noble Lord, Lord Elton, said this at col. 1092 of Hansard: the Government do not consider that the courts would hold that material promoting racial equality or dealing with race relations questions should, of itself, be prohibited, as opposed to material either attacking or promoting a particular position, such as that of the National Front or any other political party, directly".

The first point I would make is that the Government's good intentions do not necessarily guarantee good legislation. It is what the courts will determine. There are lawyers, including those advising the Commission for Racial Equality, who take a different view from the Government's lawyers. There is clearly room for doubt. That doubt must be removed, and that is what I believe the amendment will do.

5.45 p.m.

Secondly, the noble Lord, Lord Elton, referred to direct attacks on a particular position. Clearly, the particular position of the extremist parties concerned is a racist one; and attacking racists in general or one or other racist policies in particular could, if successful, possibly appear to be designed to affect public support for racist parties. It suggested that there is a wide gulf between promoting racial equality or dealing with race relations questions and attacking the particular position of, say, the National Front.

On behalf of the Opposition, I would say that there is no difference. There are occasions when community relations councils' or voluntary bodies' campaigns against racism bring them to a campaign against particular political manifestations. In particular, campaigns have been waged against particular meetings or marches and have called for the banning of such events. These campaigns often require that the extremists be named, for instance, in leaflets, posters or press releases. I have in front of me an article which appeared in the Observer only last Sunday, 16th February. Other noble Lords may have seen it. It says, "Racists turn on schoolchildren"; and it commences, An alarming rise in racist attacks on schoolchildren has been blamed on the National Front and other right wing groups. Teenage victims have been subjected to verbal abuse and physical violence". The article goes on to say that their own investigations reveal that the National Front and the British National Party have been active around schools in London, Bradford and Manchester, where some of the worst racial attacks have been reported. Later in the article it says: Last December the NUT warned its members that the National Front was renewing efforts to gain influence among children". One of my own grandchildren in a quiet little area of Devon was subjected to having a leaflet handed to him, along with others, going to a comprehensive school in Devon. I mention this because local authorities in these areas may consider it necessary themselves to issue leaflets, warning parents about the interference of the National Front in connection with their children. Community relations councils may decide to do that, and they could come within the provisions of this Bill as it is drafted at present.

This amendment in no way seeks to change the declared purpose of the Bill. What it does is to tie down the proviso to the carrying out of the duty imposed on local authorities by the 1976 Act. That Act demonstrated that good race relations and the elimination of racism were activities which it is the proper concern of the state to promote. The amendment makes this Bill subordinate to that Act so as to make the restrictions on publicity it contains subordinate to the promotion of that accepted public good. I hope that your Lordships will support this essential amendment.

Lord Cameron of Lochbroom

I obviously recognise the concern expressed by the noble Lord opposite. We would certainly not wish to prevent local authorities issuing or funding publicity that promoted good race relations. We recognise the duty which is set out in statute, to which the noble Lord has referred.

However, we have to look at this amendment in the light of Clause 2(1) as it now stands. I would say to the noble Lord opposite—because he made some refererence to the Commission for Racial Equality's representations—that I understand the exception which is sought here was suggested by them in the event that Clause 2 was not amended to be more narrowly worded than it was when we started this afternoon. That is made abundantly plain by the fact that at another part of the same document they refer to their interpretation of Clause 2 and to the fact that anything said on the merits of the issue could reasonably be regarded as likely to affect public support for a political party. That phrase has been excised, as a result of this Committee's decision a short time ago.

However, I would say two things, which are more to the point. First, the amendment is unnecessary, as I think my noble friend Lord Elton explained at Second Reading, because we consider that the courts would not hold that material promoting racial equality or dealing with race relations questions would be prohibited. Indeed, I suggest that the courts would construe the clause as it now stands in the light of the purpose of the provision, bearing in mind the statutory duties on local authorities and the considerations to which they are required to have regard, which are set out in Clause 2(2). The courts would be able to draw a distinction between material which provides objective information and promotes good race relations, on the one hand, and material which openly attacks the National Front, on the other.

That brings me to an important point. The amendment proposed would exclude all material promoting good race relations from the prohibition on party political publicity. There is a basic principle at stake here. If, as Clause 2(1) sets out, the prohibition is to be that a local authority shall not publish any material which, in whole or in part, appears to be designed to affect public support for a political party, on what basis can material which does that very thing be justified as an exception? I should have thought—as I understand all noble Lords accept—if the principle is that all such material is objectionable, that to provide an exception here—that the material within Section 71 of the 1976 Act should be excluded—would effectively drive a coach and horses through that principle.

I suggest to the noble Lord opposite that, in the light of the manner in which Clause 2(1) now stands, together with the consequential amendment to Clause 2(2), he might wish to reconsider the position. It seems to me that what is being sought, and the point that was being made by the Commission for Racial Equality have effectively been met by the earlier decision of the Committee this afternoon.

Lord Winstanley

May I intervene on that point? The noble and learned Lord appears to be suggesting that, since certain words have now been taken out of this clause, these words in this amendment are no longer necessary. Is he therefore saying that the Government will not seek to re-insert those words which have been taken out?

Lord Elton

It may be appropriate, as I am in charge of the Bill in the Committee, if I may say that plainly the amendment was carried against the wishes of the Government. I cannot therefore give any undertaking whatsoever to the Committee that the Government will not wish to reinstate it. But that is a decision that has to be made in another place.

Lord Cameron of Lochbroom

Perhaps I may also respond to one point which was made by the noble Lord opposite. I should like to make it abundantly plain that we are not in any way intending to place a gag upon bodies such as local community relations councils. If such a council wishes to put out publicity which directly attacks the National Front, this Bill does not prevent it from doing so. That is perfectly plain. A council itself is free to produce such publicity, provided that that publicity and that material is not funded by the local authority for that purpose. That is a point which I wish to make absolutely plain. A council must use its own money and it is important that we make the distinction between public and private funds.

As I said, we are confident that the promotion of good race relations and the general duties of local authorities under Section 71 of the Race Relations Act will not be undermined by anything in this Bill, and we do not believe that material that knocks down racist arguments should be excepted from the provisions of Clause 2(1), if it be material which is published by a local authority and which is designed to affect public support for a political party. I hope I have made that abundantly plain.

Lord Elystan-Morgan

Before the Minister sits down, I should be very grateful if he could deal with one matter which causes a great deal of worry to us on these Benches. It is purely a matter of legal interpretation and it is something which is part and parcel of Amendment No. 5. But since we have not yet come to Amendment No. 5, is the Minister saying that it is the view of the Government that an attack upon a political party is not to be regarded as something which falls within the scope of the now amended Clause 2(1)? If that is so, then it may well be—I cannot speak for my noble friend Lord Underhill—that this amendment can be looked at in a different light for, as the Minister has said, there will be occasions when what has to be attacked is not merely an idea but the body or organisation propagating that idea: for example, the National Front.

If it be that an attack upon the National Front would be regarded as by way of equal and opposite effect, as it were, engendering public support for a political party under Clause 2(1), then the very situation described by my noble friend Lord Underhill is caught by this. If, on the other hand, it be that an attack upon a political party is not to be so regarded—and I appreciate that I am anticipating events in discussing the content of Amendment No. 5—the situation is wholly different. I am sure the Minister will forgive me for intervening in this way. It is a matter about which we are genuinely concerned and which seems to hinge upon that particular interpretation.

Lord Cameron of Lochbroom

I hoped I had made it clear why we considered that the amendment was unnecessary, if what was being done was in pursuance of the duty under Section 71 of the Race Relations Act. What I was saying was that if the material about race relations, which was paid for at public expense, was used as a platform for a party political attack then however abhorrent are the policies of the National Front—and I think we are all agreed about that—it would in the Government's view be wrong to allow party political material which attacked the National Front and which was produced at the ratepayers' expense to be used for that purpose.

It is for that reason that I say it would be wrong to allow this exception to be introduced into the Bill, because the result of it would be that some material which would constitute an attack upon a political party and which was otherwise prohibited would be allowed, whereas material which did not appear to be designed as an attack upon a political party, although it was prepared for the purposes of the Race Relations Act obligation, would not. We say that that would be outside the mischief which this Bill is intended to attack. It is for that reason that I suggest to the Committee that this amendment should not be pressed further.

Lord Denning

I think that the local authorities may well be able to do their positive duty under the Race Relations Act—namely, to promote good relations and so forth—and still obey the negative duty that they must not indulge in political propaganda. It is a very narrow line. It is a very difficult matter for the courts to decide where the line should be drawn. Perhaps the safer way would be to include the amendment. But I should like it to be considered to get the matter quite clear on what should be done; perhaps by some other amendment later.

6 p.m.

Lord Winstanley

Before the noble Lord, Lord Underhill, comes to reply and to make up his mind as to what course to pursue, I should like to say just a brief word on the amendment as one of the signatories to it. So far in Committee we have become a little too preoccupied about what might or might not happen in certain circumstances in the courts. What really matters is what, when the Bill becomes an Act, local authorities will do and what they may not do. That is very much more important; indeed, I think it is extremely unlikely that the courts will be greatly troubled in the matter. All these arguments about how learned judges will interpret this or interpret that seem to me not to be the real issue. What to me is the real issue is whether the Bill will stop local authorities doing with public money some things which all of us in all parts of the Committee are agreed they should not be doing, but also whether the Bill could stop local authorities doing some things which they have a duty clearly to do. That was our problem with an earlier amendment and it is now our problem here.

Earlier the noble and learned Lord in reply said that the Bill as it stood was clearly in accordance with the recommendations of the Widdicombe Report. It was not.

Lord Graham of Edmonton

That is right.

Lord Winstanley

The Widdicombe Report made it perfectly clear that with the retention of certain words which are not now deleted local authorities would not then be able to do things which Widdicombe considered local authorities should actually do. Here it is a question of us putting words into the Bill so that there is not the risk, which I think would exist were those words not put in, that local authorities might be disinclined to do something which they ought actually to do. I believe that without the words which are in the amendment, or without some other kind of clarification or reassurance, there is a genuine danger that local authorities might be disinclined to carry out work of this kind which I believe, and which all of us wherever we sit in the Committee believe, local authorities should do.

Perhaps I may go further because there is the relationship when we extend this to subsection (3) with regard to voluntary bodies and financial assistance for voluntary bodies. We have at the moment a government who, rightly or wrongly, recognise and understand that there are many things locally which ought to be done which cannot now be done by local authorities. We understand, for example, that many of the duties which fall on social services departments cannot be effectively fulfilled. The Government's avowed policy at the moment—I do not necessarily say it is a policy with which I disagree—is that we are perforce in that circumstance bound to rely more and more heavily on voluntary bodies of one kind or another. Those voluntary bodies can function only if they receive help—practical help and financial help—from local government.

Many of the functions referred to in this amendment are matters which probably will be dealt with to a very considerable degree by certain voluntary bodies. Those voluntary bodies will need assistance, financial and otherwise, from local authorities. I merely say this to the Committee: please do not let us get too bogged down with what a learned judge is or is not going to say at the end of the day about something. I hope, and I think we all hope, that not many of these cases will come to the courts. Let us remember that the wording of the Bill might have a profound effect not only on what local authorities do—by stopping them from doing things which they should not do—but if we are not extremely careful it might discourage local authorities from doing some very necessary things which we all think they ought to do. That is why I think that these words should be in.

Lord Boyd-Carpenter

I feel that the situation has been entirely changed by the decision of the Committee earlier this afternoon. When I read the Marshalled List this morning I had very considerable sympathy with this amendment because one realises that the functions of local authorities under the Race Relations Act are delicate and can well impinge on political situations. But that danger could have arisen only if the words, likely to affect public support for a political party", had remained in the Bill. The Committee has decided, rightly or wrongly, that they shall not, and therefore the only type of material which could now be caught by Clause 2 is that which, in whole or in part appears to be designed to affect … support for a political party". Any action plainly designed to support or oppose a political party is, as I the Committee generally agrees, rightly to be banned by the Bill. It does not stretch the imagination too far to suggest that a local authority, determined if it can to get round the provisions of the Bill—as I said to the Committee on an earlier amendment, there are quite a number of local authorities which will certainly be that—might very well purport to act under Section 71 of the Race Relations Act but put into it a good deal of material designed to affect political support.

I do not think that that is too remote a danger, and I believe that it would be a mistake to overlook it. The really difficult problem, which worried me when I read the Bill earlier, is that perfectly genuine and sincere action under Section 71 might be caught on the basis that it was reasonably thought, likely to affect public support". This has now gone. It therefore seems that as the Bill now stands the noble Lord opposite should withdraw the amendment. If, as may be the case—obviously, I have no idea whether or not it will be the case—steps are taken to repair the damage done to the Bill by the Committee's earlier decision then it will be appropriate to put down the amendment again. It may well be that it would have a more favourable reception. But as of now it seems not only otiose but rather dangerous.

Lord Silkin of Dulwich

I agree very much with what was said by the noble Lord, Lord Winstanley, and by the noble and learned Lord, Lord Denning, and I disagree with the remarks which have just been made. As it appears to me, it is not, I agree, a question of what ultimately the courts are likely to find in a particular case; what in practice happens—we are talking now I hope about sensible local authorities and not about extremist local authorities—is that if they want to do something, if they want to issue some document, which is what we are concerned with, they will be advised by their officers whether they can do so within the law. In a case that may be a borderline one their officers are probably going to take legal advice.

The legal advice—and I speak from a great deal of personal experience on this matter—will very often be that there is a very real danger, because whatever your real intention may be—the noble Lord, Lord Boyd-Carpenter, was right to draw attention to that—what is said in the Act is that they must not publish material which, appears to be designed to affect public support for a political party". That will be the question to which the lawyers advising on whether they can safely publish the material will address their minds. "Is there a chance that the court might take the view that this document appears to be designed to affect public support for a political party?" If there is such a chance, the lawyers are very likely to say to them, "I would not take the risk if I were you because if you take the risk there is at least a real chance that in time to come you will be surcharged, that you may be disqualified, and why take a risk in doing so?" As a result of that, a document which could be very valuable where the purpose is quite genuinely not the purpose which the Act is designed to cover, cannot be given effect to because of that doubt. It seems to me that we ought not to put local authority members and local authority officers in that kind of position if, as the noble and learned Lord, Lord Denning, said a moment ago, it is possible to make the matter absolutely clear by including in the Bill a provision that does make it clear.

Lord Mottistone

When a lawyer is giving advice, surely he does not refer to only one Act of Parliament that is relevant to the matter. If the particular material relates to race relations then surely the lawyer will refer to the Race Relations Act as much as to the provisions of this Bill when it becomes an Act. He will take the whole of the legal advice in the round.

I do not see why we should make a single exception for Section 71 of the Race Relations Act. There must be dozens of similar provisions that could be included here. If someone produces material on some other subject, the lawyers advising on whether or not that material would fall foul of the law will look at all the relevant legislation. They would not narrow their minds and look at just one Act. I know that the noble Lord is more experienced in the law than I am, but I believe that what I have said is reasonable.

Lord Pitt of Hampstead

Those of us who have been associated with community relations work are worried in a particular way. The lawyers have said in effect that material that criticises racialist attitudes could be interpreted as being designed to undermine support for the National Front. The Minister himself has just said that if one attacks the National Front directly, then that would be illegal under the Act.

What worries us is that when the CRC's were being set up—and I had a great deal to do with that—they were meant to serve as a partnership between central government, through the CRCs, and local government, through the local authorities. We had many battles with local authorities in getting them to make their contributions. As time passed, more and more local authorities made contributions, but there are still some that make very few. There are still local authorities that make a contribution only grudgingly. Frankly, what is worrying to a person like myself is that if some local authorities that are at present making contributions but are doing so only grudgingly, are told "You may have some problems with your CRC and you would be wiser not to make a grant", then such authorities would stop giving grants. That is why I was grateful to hear the noble and learned Lord, Lord Denning, say that it would be safer to make the proposed amendment.

The amendment could do no harm. It may well be as the Minister said, that the amendment is unnecessary, but it can do no harm. The danger is that if the amendment is not made some harm might be done because of the way in which Clause 2 is interpreted and that, as a consequence, community relations councils may find themselves in financial difficulties. I hope that the Government will take the amendment on board in that spirit.

Lord Broxbourne

Before my noble and learned friend the Minister comes to reply, can he amplify that which was said in reply to the point that was made so cogently and succinctly by my noble friend Lord Mottistone? He argued that the matter should be looked at in the round and having regard to all relevant statutory provisions, whether or not they were specified.

As my noble and learned friend knows so well, there is in law a principle known as expressio unius exclusio alterius. In applying that principle, it occurs to me—and having listened, with respect, to what has been said by my noble friend Lord Mottistone—that if Amendment No. 4 is adopted with its express reference to one statute then that would be to exclude all other statutes from consideration. It would be a question simply of considering this Bill and the Race Relations Act. That does not seem to be a very workmanlike approach. The Committee should be grateful to my noble friend for raising that point, and it will be grateful also to my noble and learned friend for any comments he may be able to make.

6.15 p.m.

Lord Hayter

I believe that the Comittee probably wants to get this matter settled and so I will cut short my own observations. It is not a question, as the noble Lord, Lord Boyd-Carpenter, said, of whether a voluntary organisation of any kind will put out publicity designed to support a body such as the National Front. It is the other way around.

Lord Boyd-Carpenter

If the noble Lord will allow me, I did not say anything about a voluntary body putting out information. I referred to a local authority and a purported exercise of its duties under Section 71 of the Race Relations Act, in putting into such material party political propaganda. I said nothing whatsoever about voluntary bodies.

Lord Hayter

But the noble Lord did use the word "support". That is not our point at all—it is the other way around. Let me give the Committee an example. In October 1985 Wellingborough Community Relations Council, partly funded by the district council, wrote to the head teacher of a local school urging him to withdraw an invitation to a National Front member to talk to pupils of the school. The letter stated: Whereas all other political parties you have invited accept the reality (and future) of Britain as a multi-racial society, the National Front does not … By inviting the National Front to your school you add respectability and social acceptability to them as a so-called 'political party'. I would take it that as the Bill is now drafted, such would be illegal. It is because of that situation that it is felt that the words in the amendment should be added.

I have received also legal advice from the Commission for Racial Equality, which says that: The public stance of CRCs on many equality issues would be in opposition to many of the policies of a political party like the National Front and would, inevitably, affect support for such a party". That is the wording we have to bear in mind.

The National Council for Voluntary Organisations states: Many community relations councils play a vital role in publicising the effects of racism and countering the arguments of racist organisations, including the National Front … The Bill was patently not aimed at them, yet this clause would put in peril any reliance by CRCs on local authority finance for publicity. The National Front could (and probably would) have a field day challenging such financial assistance on the grounds that CRC publicity material would affect public support for them, or could reasonably be regarded as likely to affect support for them". That is our point.

At the time of the Bill's Second Reading, the noble Lord, Lord Elton, stated: The Government do not consider that the courts would hold that material promoting racial equality or dealing with race relations questions should, of itself, be prohibited as opposed to material either attacking or promoting a particular position".—[Official Report, 4/2/86; col. 1092.] Unfortunately, that statement does not provide the reassurance we are seeking. First, as I have said, some lawyers take a different view from the Government's lawyers; secondly, there are occasions when community relations councils need to produce material that itself directly attacks a particular position of the National Front. I do not suppose that anybody here would like to prevent the CRCs from doing so. There is no harm in making it absolutely plain that, so far as race relations are concerned, we have inserted this additional phrase so as to make matters quite clear.

Lord Cameron of Lochbroom

Perhaps I could make one or two remarks in view of the expanded debate that has taken place. I think it is perhaps important once again just to bear in mind how the clause presently stands. It states—and I shall abbreviate: A local authority shall not publish any material which … appears to be designed to affect public support for a political party". We have all agreed that the test shall be applied to the material itself. We are also agreed that it would be wrong that a local authority should intentionally publish material if it appears to be designed to affect public support for a political party after it is published.

We are concerned about the Race Relations Act and the duties under it, but as my noble friends Lord Mottistone and Lord Broxbourne on the Benches behind me have just reminded us, local authorities have other duties which they have to carry out, and would have to carry out, against the background of this Bill. I think the noble Lord, Lord Elystan-Morgan, can appreciate as well as I can the force of the argument that if you make an exception in relation to a duty under one Act, that would suggest that when carrying out duties under other Acts, which might have precisely the same questions arising, they are not so excepted. It seems to me, from what I was saying in relation to the way the test is put and accepted, certainly by those who put forward the amendment at an earlier stage, that it would be wrong to have an exception of this character.

I had intended, and did say, that we are of the view that promotion of good race relations and general duties of local authorities under the Act would not be undermined by anything in this Bill. I took as my example of a possibility where material which would be excluded should be caught by the principle the policies of the National Front; I took that merely as an example. I think your Lordships could well comprehend other areas where it could be said that what appeared to be carrying out duties under the Race Relations Act might, in fact, be a cover for an intentional attack upon other political parties.

It seems to me that in the light of what happened earlier we ought to consider the point at which we have now arrived. There are quite clearly dangers in having such an exception. I think that one noble Lord said earlier that another form of words might perhaps be better. I would certainly say that this form of words, for the reasons given by my noble friend Lord Broxbourne, carries with it great dangers. We are obviously concerned not to impose upon a local authority anything which would hinder it in properly carrying out its duties under the multifarious Acts with which it must comply.

I am very concerned that this kind of exception, apart from the fact that it seems to me to make a very substantial breach in what I understood to be the principle which was generally accepted in all parts of the House, also has other implications and it might be better to consider all these points before we reach the next stage. Certainly as far as the Government are concerned we have heard new points and we certainly wish to consider the matter further in the light of that.

Lord Underhill

I am naturally disappointed with the Government's reply. I am certain it is not because the Government do not have sympathy with the question of race relations. I am certain that their views are as strong as those of any other section of your Lordships' House. When I moved the amendment I deliberately used the wording of Clause 2(1) as amended by your Lordships' decision this afternoon: appears to be designed to affect public support for a political party". I deliberately used those words, leaving out the words which your Lordships deleted by carrying the amendment. The noble Lord the Minister referred to the memorandum of the Commission for Racial Equality. I am very pleased that the noble Lord, Lord Hayter, quoted from that memorandum, which I have here. It does not confine itself solely to the words which your Lordships deleted this afternoon. It goes far beyond that. As the noble Lord, Lord Hayter, said, the commission would support the amendment I have moved.

Most publicity material which a local authority, community relations council, or one of the other voluntary bodies to which I have referred, may wish to issue in connection with the Race Relations Act 1976 must inevitably deal with the issue of racialism and in that respect affect support for those organisations and parties which support racialism. I am not a lawyer but that seems to be common sense. I am pleased that two noble legal opinions in the form of a former Master of the Rolls and a former Attorney-General have both supported the general principle of this amendment, which justifies my going through with the amendment.

It appears to me that it would be easier for the courts to decide any issue that might be referred to them if they are confined to the points of the Race Relations Act than if reference to that was not in the Bill. The amendment solely refers to the exception of the provisions of the Race Relations Act. I am certain it is the wish of the Committee that we ought to safeguard any local authority that wishes to embark upon publicity to deal with the question of racism.

Before concluding may I remind your Lordships of Sunday's Observer article on racism affecting our children. What are we going to do about that? Unless we include this amendment, if a local authority acts it will find itself in difficulty in the courts for the simple reason that it will affect public support for a political party; and no one can deny that the National Front is a political party in that it contests many seats at general elections. I am sorry that the Government cannot accept the amendment, but I am certain that noble Lords will wish to do so.

Lord Cameron of Lochbroom

Before the noble Lord sits down, will he allow me to ask him a question on a matter of information? He made reference to a document which was received from the Commission for Racial Equality. I made reference to that earlier, and in particular to paragraph 15 of that document, because this is what I understood the commission to be saying at that point. It said: Unless clauses 2 and 3 are amended to be more narrowly worded than at present"— it was dealing with Clause 2 as it stood when we started this afternoon— the Commission seek a general exception for local authority activities undertaken or local authority funding given with a view to working towards the elimination of racial discrimination or to promoting equality of opportunity and good relations between persons of different racial groups generally in the area of the authority. The reason why I raised this point is that I understood from what was said in that paragraph that the commission was not concerned if a narrower wording was achieved. It is in that light that I made certain suggestions to your Lordships which I am sure the noble Lord opposite fully understood: that in view of what has been said already this afternoon we ought perhaps to reconsider the whole matter against the more general points that have been made. I wanted to make clear that we were quoting from the same document, so that there is no dubiety in our understanding.

Lord Underhill

I thank the noble and learned Lord for referring to paragraph 15. I can, of course, refer to other paragraphs which are much wider. I believe there is general sympathy for what we are aiming at in this amendment and naturally we want to carry something on those lines. If the Minister is not only prepared to have a look at this but agrees to have consultations before the next stage of the Bill, I would be prepared not to press the amendment.

Naturally we must have consultations because the Commission for Racial Equality is interested in this, voluntary organisations are interested in it and so are local authority associations. Can the Minister say whether he will be prepared to ensure that there are adequate consultations before the next stage, in which case I shall not press the amendment tonight?

6.30 p.m.

Lord Elton

The noble Lord is seeking to impose on the Government a procedure which is far from precise. My noble and learned friend has quite clearly said that this is an issue which the Government wish to consider between now and Report stage. That is normally an offer which is accepted by an Opposition which wishes to move an amendment but the Government are acutely unhappy with the wording proposed and without commitment agree to consider the issue as well as the wording to see if something can be arranged—and that is said without commitment.

The noble Lord seems to be proposing that there should be quasi non-statutory consultation. I can undertake that any consideration we give to this matter will be done in the light of the views of the bodies which have an interest and have expressed it. I cannot give an open-ended undertaking to consult everybody because, quite frankly, there is not time between one stage of the Bill and another. It normally takes six or eight weeks.

If the noble Lord is satisfied with the normal, conventional undertaking to consider in good faith the amendment proposed both in its present form and in other possible forms between now and Report, I should have thought that that was a generous and acceptable offer and that the noble Lord could safely take it away.

Lord Underhill

The offer that the noble Lord, Lord Elton, has made is one that I am prepared to accept. I think that noble Lords will recognise that we wish the Government to come forward with something which will assist the local authorities and the community relations councils in carrying out their proper work as laid down in the 1976 Act. We should expect to see something coming forward at Report stage. Therefore, in those circumstances I agree to withdraw the amendment, but we reserve the right ourselves to come forward if the Government do not move satisfactorily.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 5: Page 2, line 22, leave out second ("to") and insert ("makes its point by the promotion or denigration of").

The noble Baroness said: I beg to move Amendment No. 5. Clause 2(2) contains two paragraphs which identify particular points to which in the first instance the local authority and ultimately the courts have to have, respectively, "particular regard" and "regard".

This amendment relates to the first paragraph—Clause 2(2)(a): particular regard shall be had to whether the material refers to a political party or to persons identified with a political party". The first half of this paragraph—reference to a political party—is unexceptionable; we have no objection to it. There have been a very small number of instances of authorities using the names of parties on literature—for example, a leaflet from the Liverpool City Council referred to the "Labour City Council". It could well be that any challenge to such literature under the existing common law would show it to be unlawful, and thus a statutory declaration of the present law in subsection (1) would of course cover the point.

There can be no real objection to the Bill drawing attention to this point, though it might be said that reference to a political party is likely to be so clearly unlawful that it is unnecessary. However, the second item contained within Clause 2(2)(a)—"persons identified with a political party"—is highly undesirable. It addresses a quite different point. It is not clear what is meant by "persons identified with a political party". It could well be that any councillor who is elected under a party-political label could be regarded as being identified with that party; even more so, the mayor or the leader of a council or the chairman of an important committee. Any council wants to keep its electorate reasonably well informed about what it is doing. This provision could mean that a local council's newsletter could not feature the opening of a housing scheme or a school extension by a councillor, or for that matter by a government Minister.

On the other hand, it could be that the courts would interpret "persons identified with a political party" more narrowly to mean so identified in the minds of the electorate. That might mean that it would be all right for the council's newsletter to feature a ceremony involving an unknown back-bench councillor but not the committee chairman or the leader; or it might mean that the leader of the Sheffield or Westminster City Councils could not perform the ceremony, or sign the preface to a leaflet or the annual report, but that the leader of an obscure rural district who is unknown nationally could do so.

Even if the test in Clause 2(1) is restricted to the apparent design test, as it is now since the first amendment was passed, it can be seen that the presence of this potentially wide and extremely vague "particular regard" item could serve at best to muddy the newly clarified waters. If Clause 2(1) remains unamended, the range of publications which this paragraph will cover will be that much larger and its consequences that much more unfortunate. However, the paragraph does attempt to address a genuine concern which has been expressed by Widdicombe—and it is a concern that we accept. The committee was worried about publicity where: A point is conveyed by reference to well known politicians". The committee no doubt had in mind examples of publicity which contained "knocking copy" directed, for instance, at government Ministers, and used that to make its point.

The amendment attempts to address this particular concern without all the consequences that I have just described. The amendment changes the point at which the "particular regard" bites, from "refers" to the specific Widdicombe concern with making a point by reference to a politician. To make things clearer still, we have avoided this use of a vague form—refers"—and have said, makes its point by the promotion or denigration of a politician. It must be remembered that publicity knocking a party or person can be just as effective as publicity in favour of a party or person. That is why we have put in "promotion or denigration". I beg to move.

Lord Elton

I am a little puzzled by what the noble Baroness has said. I thought I understood her position before she started speaking, but I am not quite so certain that I do now. However, as this is almost invariably the effect of my own speeches, I extend to her the usual sympathy.

The amendment which she has moved proposes a relatively small adjustment to Clause (2)(2)(a), which is the part of the clause concerning the prohibition of party political publicity which states that: In determining whether material falls within the prohibition … particular regard shall be had to whether the material refers to a political party or to persons identified with a political party". The noble Baroness then went on to say that the sort of identification was not stated nor was the stature of the people involved with the party and that this made the target of the provision very difficult to identify. I observed at that point that of course her amendment does nothing to change that situation.

It is emphatically not the case that Clause 2 is intended to ban local authorities from referring to a council member by name or from explaining his party political affiliations. It is perfectly legitimate that a local authority, when, for instance, it is publishing its annual report, should include a picture of the leader of the majority group on the council and explain that a particular political party has controlled the council during the past year. These are things which I think the noble Baroness was anxious to preserve as the normal activities of a council.

That is all part of bringing information to the public about local government and improving local government accountability. But we recognise that the use of party political associations in conjunction with imbalanced publicity may reinforce a message so that it is likely to affect public support for a political party. Local authorities and the courts are therefore asked to have particular regard to such references in determining whether material falls within the prohibition. The Bill does not say that such a reference must of itself render the publication of the material unlawful. It is just a consideration.

The amendment proposes that those interpreting Clause 2(1) should not in general have regard to the use of references to party politicians in determining whether material falls within the prohibition. They need only take such references into account when they clearly promote or denigrate a politician. As far as I can see, that does not identify the politician, which was the difficulty of the noble Baroness. The amendment would simply remove one clear test and introduce another which is arguably clear.

I think that the noble Baroness suggested that her amendment took us closer to Widdicombe. If that is what she thinks, I have to tell her that that is not what the Widdicombe Inquiry recommended. If she turns to paragraph 228 of its report she will find that it says: We wish to rule out such practices as … publicity which makes its points by reference to well-known politicians". The inquiry was not concerned with whether material, so defined, either promoted or denigrated politicians; it was merely concerned that it referred to them. So the noble Baroness has taken us away from Widdicombe, and I think that it is important to notice that.

Clause 2(2)(a) is intended to implement the intention behind what the Widdicombe Committee was saying, and again it was not drafting. It said that material should not make its point by referring to party politicians. The clause covers that in a way that ensures that we are not banning references to such politicians in the context of non-partisan publicity.

In my view the amendment would not clarify the intention of Clause 2(2). I fear that it would serve to weaken its force. A significant amount of publicity has been produced which displays the images of well-known politicians prominently in association with highly sloganised messages about issues of political controversy. It cannot be said that such material promotes the politicians in question, and I am sure that those paying for the campaign would have been horrified if it had. Nor can it always be said that it denigrates them. The reference is used simply to highlight a party political message. We should not wish material of that kind to fall outside the prohibition of party political publicity, and I do not honestly think that the Committee as a whole would either. But the proposed amendment would make it less clear that that material is covered, and it would therefore be likely that it would escape. I hope that the Committee will not entertain the amendment.

Lord Denning

It seems to me plain that under Clause 2(2) all that the local authority will have to do is to have regard to whether the persons are identified with a political party. It can take into account whether the point is made one way or another; it can take that into account as much as it likes in coming to its decision. It seems to me that the amendment is quite unnecessary.

Lord Graham of Edmonton

The faith that the Minister and the noble and learned Lord have in the phrase "have regard to", or the phrase "due regard" which the Minister used, staggers me. I should be more interested if we could quantify or measure such phrases. The town clerk may say to the chairman, "Before you take the decision you must have due regard to a range of matters", and the chairman may reply that due regard has been given to them. But how do we measure due regard? The phrase is designed as a cover-up or a cop-out. I shall be interested to hear the Minister tell the Committee what needs to be taken into account and how long should be spent on weighing or measuring "due regard". Can he tell us how many original intentions of a local authority committee or a chairman have been thwarted after due regard has been given to representations?

6.45 p.m.

Lord Elton

The statute book is scattered with such references, telling the courts, chief clerks and council leaders that they should have regard. We all know what the phrase means. It is not difficult. The Bill is trying to identify certain practices which we all agree should not continue. Those practices are a form of publicity which is either implicitly or explicitly party political and paid for out of non-party political funds. In our view that is a subversion of non-political funds. There is no difference between the two sides of the Committee on that. All we are trying to do now is to identify how one tells when that is happening. How one tells whether something is political often simply turns on whether a political person is involved. So we have said that one thing to look out for is a political person being involved. The noble Baroness and the noble Lord would like us to say that the people involved must either be cried up or cried down.

Let us imagine that the noble Baroness took a political profile more appropriate to the other place; I imagine that she would have a hugely popular following. If as a result there were to be stickers in a campaign all round the place saying "Follow Nora; we all adore her!", that would be promoting the noble Baroness, and it would clearly be political. But suppose there was a political campaign but the sticker merely said "Nora was here!", that does not promote her, that does not denigrate her, but it involves her as a politician.

What we are trying to do is to show that there are things which identify a campaign as political but which on their own are not political. That is why I hope that the noble Baroness will take the point that I am trying to make. What she proposes would weaken the protection in the Bill.

Lord Graham of Edmonton

Or give it an aura of respectability. In my humble opinion the Minister is demonstrating the shoals of uncertainty that will flow from attempting to "have due regard to". He is absolutely right; legislation is studded and pitted with references to "having due regard". I simply want him to tell us how that due regard is to be taken.

The Minister said that there should be no dubiety, but I respect the views of the Association of Town Clerks, though he may put them on one side. If he shares my regard for that association he will have read its submission which mentions specifically Clause 2(2). The Society of Local Authority Chief Executives also tells us that it is concerned and says that if the legislation is to work the provisions should be concerned only with the nature of publicity. It talks about material which should be subject to assessment and goes on to say: Clause 2(2) mirrors this concern as it refers to the effect for which the campaign appears to be designed". I do not know whether the noble Lord's study of local government in practice equates to that of a great many other members of the Committee. I say with due temerity that he is a master of legislation and the national picture. But I am a local politician. In part, everything that I am associated with, by accident or by design, is identified with the Labour Party, if not directly associated with it. I am proud to wear various hats on behalf of different groups within the community, and I am known not only in my former manifestation but in my present one, among other things, as a party politician. Whatever I am involved in may be reported in the local press. Reference may not be made to my political allegiance, but most people who read about my activities are aware of the allusion, whether the event is promoting the Labour Party or not.

What this amendment is seeking to do is contrary to what the Minister says. The amendment questions why there should be all this constraint? Town clerks and councils do not have the kind of ulterior political motive that the Minister and his colleagues are seeking to eradicate, and about which we on this side of the Committee are making very little comment. We are saying, for goodness' sake, why do you not have the clauses of the Bill and the words on the face of the Bill drawn as widely as possible?

In the London Borough of Enfield—does the Minister wish to come in?

Lord Elton

I am a little puzzled because the noble Lord is spending all his time telling us that the dangerous words are "to have regard to", but the amendment does not take them out; it leaves them in. I am a little mystified because the amendment substitutes different words which are affected by "have regard to".

Lord Graham of Edmonton

I made something of the words "having due regard" because the Minister rests on the premise that if one had due regard to a great many other things everything would be all right. I am speaking to the amendment in the sense that we are saying that the only action of a council which ought to cause reflection is that which is quite clearly designed to promote or denigrate, not merely to give publicity to.

A few moments ago the Minister said quite fairly that if a council issued a press release and a picture of the leader of the council or the chairman of a committee, that would be unexceptionable. We are seeking to write on the face of the Bill words which will make quite clear not what is unexceptionable but the kind of things which are outside the scope of the Bill. As we know, a lot of advertising is knocking the subject matter. We know that over the past two years a great deal of publicity has become personalised. With regard to the GLC it was "the anti-Ken Livingstone Bill"—Ken Livingstone as a person and as a leader of the council. In that way he was identified.

One would argue that part of the raison d'être for the publicity to continue regarding the GLC centred upon the personality of Ken Livingstone. That would certainly not be allowed if our amendment were carried. On the other side of the argument the personality was the then Secretary of State, Mr. Patrick Jenkin. A great many of the advertisements were designed to knock the ability and the arguments of the Minister.

In this amendment we are seeking to tighten up this matter. The Minister seems to believe that the words we are putting forward will weaken it. I do not believe that. They are genuinely designed to try to make matters a little more flexible for the councils which have to live with this Bill in the future. I do not know whether the noble Lord, Lord Mottistone, is moved to make some comments. I shall gladly give way if he wants to do so.

Lord Mottistone

It is only to say that the noble Lord is making a tremendous labour over this. Does the noble Lord have to go on and go on wandering around his subject? Can he not come to a point? Having listened to what has been said, it seems to me that there are quite a lot of matters of this nature—going into the detail is splitting hairs, and one or two of the other amendments are similar—which might come into the code of practice, the subject of a later clause, rather than be dealt with here.

I can see the arguments, but I think my noble friend was absolutely right when he was saying that the noble Baroness, Lady David, might be mentioned either in a congratulatory way or in a derogatory one, or even just because she is here. That makes great sense. I think that this amendment is definitely narrowing this issue. We have spent quite a long enough time on it.

Lord Broxbourne

Before the noble Lord resumes, may I ask him one mercifully short but possibly not unimportant question? He constantly refers in his argument to "due regard to be had"—I lost count of the number of times before my noble friend the Minister intervened. Since the intervention, the noble Lord has used those words several times. My copy of the Bill says "particular regard". That is, in my experience, an unusual and very strong form of words. Does it not stress the strength of the obligation resting on the local authority? Does that not allay some of the anxieties of the noble Lord in that regard?

Lord Graham of Edmonton

Taking the second point first, I know what the Bill says, and I heard what the Minister said. The Minister used the words "have due regard", not "particular regard". That could have been a slip. I take the point that the noble Lord, Lord Broxbourne, has made. "Particular regard" are stronger words. I sense that the Minister has moved ever so slightly. I am genuinely puzzled as to the precise way in which a council committee—which is in effect what we are talking about—will be advised about authorising publicity. I am puzzled as to what is the "due regard" or the "particular regard".

I apologise to the Committee if we consider something to be very important which the noble Lord, Lord Mottistone, says is splitting hairs. It is simply because I agree with the amendment and the noble Lord does not; and I can understand that. The noble Lord, Lord Mottistone, said that he could see the argument. That is fair enough. He may not accept it. As far as we are concerned on this side of the Committee, we have responsibilities not only to the debating niceties when considering an amendment in this Committee but to hundreds of thousands of people ouside, and certainly thousands of councillors outside, who will have to live with the wording on the face of the Bill once it becomes an Act. We know the undue haste that the Government have shown in trying to get this legislation onto the statute book. I therefore make no apology for having laboured the point, if that is what the Committee feel, in order to try to make sure that people outside are well aware that we are seeking to improve the Bill in the form of the amendment on the Marshalled List.

Lord Silk in of Dulwich

I rise to suggest that the blemish in this amendment is perhaps that it is too narrow; it does not go far enough. I say that for two reasons. First, the point was made by the noble Lord the Minister that it refers only to persons whereas, to deal with the point which was quite rightly raised by my noble friend who moved it, it ought to refer to a political party as well. Second, whereas to promote or denigrate may be too strong an expression, as the Minister has said, it seems to me that mere reference is too weak an expression.

Let me take an example. A document might quite properly, and no doubt in many cases will, refer to the Government and give the view of local authorities with reference to the Government's policies. So far as I am aware, the present Government still consist of persons who are identified with the Conservative Party. The document may refer expressly to the Government party in the same way. In Clause 2(2)(a) whoever makes the decision as to whether a document appears to be designed to affect public support for a political party is required to have "particular regard" to the question of whether there is a reference to the party or persons identified with it. In my example, they are the Government. That is going very far. It is weighting the balance too far in that direction.

If the Minister was prepared to look at the whole wording of that paragraph again and to come up, if he can, with a form of words which goes some way to meeting the point which my noble friend made in opening, and does not confine it solely to the persons but addresses itself to the party as well, I should feel satisfied by that. Unless the Government are prepared to look at it again, I should think it necessary to support my noble friend even though I do not believe that her amendment goes as far as I would wish it to go.

7 p.m.

Lord Elystan-Morgan

The general arguments in favour of this amendment have been put with great clarity by many noble Lords, including the mover of the amendment, my noble friend Lady David. However, there is one particular point which I would wish to raise, which exercised my mind at Second Reading and which indeed I have already mentioned today in an intervention. It turns on the word "denigration" in the amendment. I think that that is a significant word because I believe that there still remains one massive matter in Clause 2 upon which the Committee has still not had the advice of the Government as to its exact meaning: that is, the meaning of the words in Clause 2(1): public support for a political party". The important word there is "for". Does it include an attack upon a political party?

On Second Reading I advanced the argument that clever psephologists tell us that political trends are affected not so much by positive feelings of support for parties but by utterly negative feelings of objection. If that be the case, a negative move is of very much greater importance than positive action. I cannot for a moment believe that the Government intended to concentrate only upon that which was supportive in a constructive sense. I believe that they intended to include negative matters as well. If that be the case, then I am sure that the Committee would wish to see it clearly spelt out in some appropriate part of the Bill at a later stage. If that be not the case, then now is the time to say so, because clearly the interpretion of that particular phrase, public support for a political party will colour the whole of the clause itself.

It may well be that I should have made those remarks in the clause stand part debate, but I think that the matter is germane to the issue raised in so far as it related to denigration. I should be very grateful indeed to have the specific opinion of the Minister upon that particular matter.

Lord Elton

The noble Lord has gone some considerable distance down the page, up the page and outside the question on the Marshalled List, but I concede that it is part of the context of the amendment and, subject to correction from almost any quarter, particularly from the left-hand quarter (and indeed I am strengthened in my supposition) I would say that the psephologist to whom the noble Lord referred would accept that where you increase support for one party you diminish it for another, not perhaps in absolute terms—and I know that there are complications on the other side of the Committee where sometimes alliances hold and sometimes, I am given to understand, they may not. However, the fact is that if you increase the support for one political grouping you diminish the support for another. So I think that the noble Lord can rest assured that we have implied symmetry even if we have not expressed it.

I am mystified by the apparent changes of status of the noble Lord, Lord Graham of Edmonton, between the moments when he is speaking and the moments when he is listening. I hope it means that he listens with more authority than he speaks. The noble Lord has asked what we actually mean in the Bill. I think that it is probably the back row but two in which the deaf adder who stoppeth her ear is inclined to roost.

The noble Lord has asked what all these tests mean. I shall be brief but, like him, I am a layman and therefore my arguments have the merit and the weaknesses of his in that they are based on unschooled non-solicitored" views, but I think that they are comprehensible.

Sitting at the council table or in the caucus the councillors, with or without the town clerk, will consider what they wish to do. They will look at the material and they will consider, first, whether it is either in whole or in part actually designed to affect public support for a political party. They know what they have designed it for, so there is no difficulty there. They then go on and say, "But having made a very simple decision, what is the next thing?" It is that, in determining whether the answer to that question was as they suppose, they ought particularly to have regard to whether it refers to a political party. That is a simple test. If it does and it is still not designed to affect support for that party, if it simply says, "Your local council in the control of party X has achieved the following in the last year", all is well. It is the annual report. We do not want to stop it and nor does the noble Lord.

Then they say, "Does it refer to a person identified?" Yes, it refers to the noble Lord, Lord Graham of Edmonton, who has put in yeoman service these many years. Provided that it is not designed to affect support for a political party, that is perfectly all right. Had the reference in the Bill been changed, as the noble Baroness proposes, they would have had to ask themselves not whether it refers to Ted Graham but whether it makes its point by promoting or demoting him. At that point the test has changed because it will only catch a campaign which is linked into the council by Lord Graham of Edmonton's name if it either promotes or denigrates him.

If you break that link there, it seems to me and, I understand, to my noble friends behind me that you will let into legal practice many practices which all Members of the Committee wish to prevent. We have nothing against the noble Lord, Lord Graham of Edmonton; we want him to be favourably mentioned in the annual report of his local authority, if, as I assume, he deserves it. But we do not want that to be the cover for political activity which would not be caught without this test. That is the only reason it is there.

We have spent a very long time on this amendment. Whether we can deal with the next amendment in 22 minutes is another matter, but we have spent a long time on this one. I hope that I have made my position clear. If noble Lords opposite say anything else with which I disagree, I hope the Committee will take it on trust that I do disagree with it, and if they press this amendment I still think that we should resist it.

Baroness David

What has emerged from this quite lengthy discussion is that there is still a good deal of dissatisfaction with the wording of that part of the clause. However, I am not absolutely wedded to my amendment, so I should like to read very carefully what the Minister and everyone who has spoken to the amendment have said and then decide what we do at the next stage. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Underhill moved Amendment No. 6: Page 2, line 23, leave out from ("party") to end of line 27.

The noble Lord said: I beg to move Amendment No. 6, standing in my name and that of the noble Lord, Lord Winstanley. The purpose of the amendment is to remove what we regard as an unclear provision which would extend the prohibition laid down in Clause 2 to campaigns. In effect, what is proposed is the deletion of subsection 2(b) of Clause 2. Paragraph (b) is one of the tests which Ministers have stated are subjective tests to determine whether publicity material is illegal under the Bill.

In Standing Committee in the other place on 12th December the Under-Secretary of State, Mrs. Angela Rumbold, said (at col. 242 of Hansard): One of our tasks in the Committee is to look at Widdicombe's report again to see to what extent we are following his proposals and suggestions". As was said by many noble Lords at Second Reading, that is just what the Government have not done, or if they have taken another look at Widdicombe's proposals and suggestions they have just put them on one side and done nothing about them.

We also find that on 10th December, two days prior to making that statement, also at Standing Committee (at col. 127 of Hansard) the same Minister said: The publicity material would be prohibited if it formed part of a campaign identified with a political party". We find that the London Boroughs Association, which is not a Labour organisation, have themselves expressed concern about the Bill and have stated that it goes far beyond Widdicombe. They stress in particular that it would be wrong if a democratically elected council was not able to promote a campaign for its policies simply because those policies were also those of the majority party and therefore would be identified with that party and come within the scope of the Bill. As other noble Lords have said, many chief officers have expressed concern at having to give advice of that kind under the provisions of the Bill as they stand at the moment.

To save time I shall not give quotations from Widdicombe. That is not because there are not vast numbers of quotations in Widdicombe to justify a campaign either by a single local authority or by groups of local authorities. It runs throughout the whole of the Widdicombe Report that local authorities are political institutions and have a full right to campaign on government-proposed legislation as well as on matters affecting their own authorities.

I have no desire to repeat again the number of items on which a local authority may consider it necessary and desirable to publish material as part of a campaign either as a single authority or in co-operation with other authorities. My noble friend Lady David indicated the large number of authorities which were involved in the campaign concerning the helicopter leak. In connection with the Government proposal for Stansted we know that there were rival consortia of local authorities—one on one side and one on the other—making their proposals.

We know that there is certain to be campaign activity about proposals for local authority airports under the forthcoming Airports Bill, which is still being debated in the other place. Inevitably there will be campaign activity on the Government's proposals for rating and a poll tax. In fact attention was drawn in the Standing Committee in the other place to a statement which appeared in the Scotsman while this Bill was still going through. I have the Scotsman article in front of me dated 11 th December. It is headed, "Tory campaign to push rate reform". It starts: A special task force of civil servants will be set up inside the Scottish Office to co-ordinate a Government campaign to win public acceptance of its controversial rating reforms early next year. I am not criticising that. The Government have the right to do that if they so desire.

Lord Elton

Would the noble Lord forgive me? I may be missing his argument. I think he was saying that the quotation from the Scotsman would be debarred by the Bill. I could be wrong, because plainly that was not paid for out of the rates—unless there is something about the Scotsman that I do not know and the noble Lord does.

7.15 p.m.

Lord Underhill

I am referring to the Scotsman article because from that other things could ensue. The article goes on: This move has set alarm bells ringing in the Scottish Office and, according to Scottish MPs, has led Ministers to mount the publicity campaign to combat the inevitably hostile response among many voters to the new tax. That is the point of quoting from the Scotsman article.

The Government have every right to conduct a campaign to promote their policies, but equally there might be a campaign by a single local authority association, by all the local authority associations, or maybe by the Convention of Scottish Local Authorities against the Government's proposals: in other words, criticising the party which happens to be the government of the day.

We would suggest that unless this amendment is carried campaigns of that nature could find themselves ruled illegal under the proposals in the Bill. The need for the amendment is made more apparent by a statement—I am sorry to say again by the Minister, Mrs. Rumbold—in Standing Committee on 10th December, at col. 129, when she said: The material must be linked to the statutory functions of a local authority. That is clearly saying that it would be wrong for local authorities to conduct a campaign against the Government's campaign in favour of their proposals for rating and a poll tax.

I suggest that that statement is absolutely contrary to what Widdicombe suggested, and would rule out the type of campaign activity which Widdicombe suggested it would be right and proper for a local authority to conduct. To make matters worse, in referring in Standing Committee in the other place to some possible activity that a local authority might conduct, the same Minister (at col. 129) said that it would be wrong and distasteful if that particular activity were offensive politically and put on at ratepayers' expense. When asked offensive to whom, the Minister replied (again at col. 129): Offensive to anyone. I accept that may not be offensive to all, but if it caused offence to anyone in a local authority it should be caught within the provisions of the Bill". That seems to be both a strange and frightening statement by a Minister in Standing Committee on a Bill in the other place.

Where does Widdicombe stand? Do the Government reject all the proposals that Widdicombe made as to the type of activity on which it would be right and proper for either a single authority or for a group of authorities to conduct a campaign? Unless we have this amendment taking out the reference to a campaign, we are going to have big problems for the courts. It would be far better if the reference to campaigns was left out, and perhaps the Government could find some words which would fit in with what Widdicombe suggested. I beg to move.

The Deputy Chairman of Committees (Lord Alport)

Amendment proposed, page 2, line 23, leave out from ("party") to end of line 27. I have to advise your Lordships that if this amendment is agreed to, I shall not be able to call Amendment No. 7.

Lord Denning

I can hardly see the point of this amendment. Suppose the words in subsection (2)(b), where material is published as part of a campaign", and so on, are omitted, there are still the opening words: A local authority shall not publish any material which, in whole or in part, appears to be designed to affect". Even if that subsection were deleted, the local authority would still have to consider this material about the campaign. I do not think that the amendment would succeed in keeping out the material. The courts would have to consider the whole of it anyway.

Lord Winstanley

Surely the noble and learned Lord's argument goes both ways. He says that he does not see the point of the amendment, and I can well understand that; but does he see the point in the subsection that it seeks to delete? Frankly, I cannot see any point in that at all. We are dealing here with a part of the Bill which deals with material which is published. What are the things which can be published? Leaflets; advertisements; posters; stickers; things of that kind.

You cannot publish a campaign. Subsection (2)(b) deals with campaigns. What is a campaign? I do not know. You cannot publish a campaign. As I am sure the noble and learned Lord, Lord Denning, will accept, we already have a situation whereby if a leaflet, an advertisement, a poster, or a sticker, is political on the definitions we have agreed to in this Bill, then it should be banned. But if it is not political within that definition, then it should not. What on earth has a campaign to do with it? I hope that the Minister will explain why he found it necessary to put in this elaboration of something which does nothing to the Bill. Therefore I put the noble and learned Lord's argument the opposite way round. I accept that he asks what is the point of the amendment, but I also ask him what on earth is the point of Clause 2(2)(b)?

Lord Elton

I shall try to be brief although I cannot be as brief as the last two speakers. I ought to start by putting the noble Lord, Lord Underhill, into the picture about the article in the Scotsman to which he referred and which he was kind enough to illuminate for me on my intervention. I understand that the article was entirely speculative, that there is no special unit and no campaign at the present time. But if there were it would have to comply with the Government's conventions just as a campaign by a local authority would have to abide by the conventions set by the Bill. The amendment would remove the requirement that in determining whether material is published as a part of a campaign particular regard shall be had to the effect which the campaign appears to be likely to achieve—appears to be designed to achieve. Your Lordships will recognise the words I am seeking to leave out of my brief when they may occasionally creep in by mistake.

The requirement is necessary because not infrequently publicity material, which in itself appears to be innocuous, can contribute materially to the overall effect of a campaign, just like the "Nora was here" stickers that I was speaking of. Or the "Ted is one of us". I am sorry the noble Lord has left.

Lord Graham of Edmonton

That is strong language.

Lord Elton

Oh, the noble Lord has moved! It is strong language, but that is helpful because I had thought of giving the example of a sticker saying, "If it's a Red it's got to be Ted", which would clearly be caught by the Bill, but if it just said, "It's got to be Ted", then it would not be caught. I speak from hypothesis which is dangerous because I do not know what the courts would decide but as an example it will serve. If it is merely a reference to the noble Lord, Lord Graham, in a form of shorthand, courteous but nevertheless shorthand—

Lord Graham of Edmonton

That is a matter of—

Lord Elton

We are not trying matters of fact and opinion. I am merely trying to give an example. I perhaps misheard the noble Lord. The point I am making is that an entirely neutral sticker involving the name of a known politician, for example, could be generated in large numbers and dished out to an organisation which could then deploy it as part of a campaign. I am sorry that the noble Lord, Lord Winstanley, does not recognise a campaign when he sees one, but there have been a number in London which most of us have recognised. There have been stickers on people's lapels and some of them could be taken on their own to be perfectly innocuous and meaningless if it were not for the fact that on the hoardings were other messages with which they linked. Material might be considered party political when considered in the context of a party political campaign of which it forms part and be entirely innocuous otherwise. That is why there is this requirement.

We drafted the Bill with care to make it as clear as possible, given the nature of the issues with which it is dealing. I think I have said enough to show why we have put this provision in. The provision which the noble Lord would have us exclude is there for a purpose, which is to make it clear that in deciding whether material is prohibited particular regard shall be had to the context in which it is published, if that context is a campaign. The Government's concern was that material which appeared to be fairly neutral and informative when considered in isolation—this was the example I was trying to give—might, as part of a campaign, be a fundamental component of an authority's drive to win support for a political party. We have to deal with the whole paraphernalia of campaigning, including stickers—the noble Lord is pregnant with interruption.

Lord Winstanley

I have been listening as closely as I can and I think I understand the noble Lord so far. I merely ask him one question. Where material has been published, not as part of a campaign, but published months and months previously and is subsequently used in a campaign, then clearly it escapes from this altogether, does it not?

Lord Elton

I think we should be up before the noble and learned Lord, Lord Denning, considering what it had been designed for in those circumstances. As I said, it is dangerous to go for hypothesis. But if it were designed to affect public support for a political party then it would be caught. If the noble Lord tells me that it was not designed to affect a political party and could not be expected to then it would not be caught.

Lord Winstanley

May I make it a little more clear?

Lord Elton

I think I have it. The noble Lord is saying that here is all this wonderful stuff in the attic which they thought was no good and it fits in, as luck would have it, with a campaign. I think I need notice of the question because the problems that occur to me are twofold. One is what was in the minds of the people when they designed it, because the test is what from the material it appears was in their minds. In the circumstances that the noble Lord gives it would appear that unless they had prior knowledge of the campaign this would not be caught.

I cannot think we are talking of many cases, but the supposition is interesting. On the other hand, if some devious member had thought, "Let us put £150,000 into all these tee shirts", and then forgot them and wheeled them out in two years' time just before an election, then they would have been designed for that purpose. But the noble Lord cannot put me in the position of a court. I can only say what it seems to me would be the relevant consideration to the court and that is what the Bill itself can do. I think I have explained that.

Much material of this type is entirely legitimate and even some of the slogans we have seen are, in isolation, acceptable. I think I am going over in the words of others ideas which I have already expressed. If the noble Baroness and the noble Lord find I have left something out I shall try to return to it if that is desired.

Lord Silkin of Dulwich

The noble Lord the Minister has clearly explained this paragraph to his own satisfaction, but, with all respect to him, he has not explained it to my satisfaction. I still do not understand the purpose of it or what it will achieve.

If one can take one or two concrete examples, which may be the best way of considering it: in the days of the late Lord Brooke of Cumnor as Housing Minister there were campaigns against the Rent Bill which he was promoting. Such campaigns, which could quite properly be conducted by local authorities because they feared the effect on their housing stock, were campaigns against a particular measure. But it was equally clear that the campaign would be likely adversely to affect public support for the political party which was putting forward the legislation. That was precisely what happened. In the same way, looking at it from the other side—

Lord Elton

The noble Lord has relied in part upon a part of the wording of the Bill which his own party has removed.

Lord Silkin of Dulwich

What I am saying is that this paragraph is totally unnecessary and that it is extremely difficult to follow precisely what it is intended to do. The example that I have given indicates that on many occasions the campaign will have a dual effect. It will have the effect of enhancing the view relating to the issue and it will also have the effect of affecting public support for the political party whose measures are being opposed and the political party opposing those measures.

One can look at it the other way round as well. If a political party is attacking the education policy of a government of a different complexion to that of the noble Lord one can see exactly the same thing. In certain areas the campaign will affect both the issue and the popularity of the party which is putting forward particular legislation or is intending to do so.

If one looks at the wording of this paragraph, what it provides is that: where material is published as part of a campaign, regard shall be had to the effect which the campaign appears to be designed or can reasonably be regarded as likely to achieve.". That will include, or may include, an adverse effect on the political party concerned. If the Minister doubts what I am saying, perhaps I may ask him directly this question. In the two examples that I have quoted does he take the view that the document, leaflets, or whatever they may be, that are issued in relation to a campaign, whether it be in respect of a rent Bill or in respect of some education measure, are not leaflets which are designed or which appear to be designed to achieve, among other things—certainly not alone but among other things—that which is provided for in Clause 2(1); that is, affecting support for a political party?

7.30 p.m.

Lord Elton

I am grateful to the noble Lord for a clear exposition of a clear difficulty. I am sorry if I appear to have explained matters to my own satisfaction. Self-satisfaction is something which I think I have never actually achieved in my performance in your Lordships' Chamber. However, I hope I can do something to satisfy the noble Lord. We are looking at Clause 2(2)(b). The test there is applied to material which is published as part of a campaign. The regard to which we are referring, if the noble Lord, Lord Graham of Edmonton, will forgive my using the term, is a regard to the effect which the campaign appears to be designed to achieve.

I am in a procedural difficulty here because the noble Baroness has not actually moved the second leg of the amendment, the first leg of which she carried against my noble friend. However, I think one can make certain assumptions about the shape of the clause that we are notionally looking at. The test therefore is: what was the campaign intended to do? If it is a factual campaign, saying, "If we proceed with this policy the effects will be so and so; if we proceed with another, they will on the contrary be such and such", that is not designed to change support for a political party. The incidental effect on the national voting figures when a local authority, pursuing the interests of all its electors, puts before them the consequences of national policy, does not get caught by a definition which asks whether the material was designed to alter the support for that party. It is designed to inform the public and they can make up their own minds about which party is supporting the right policy.

Lord Henderson of Brompton

I should like to say that I have listened very carefully and I find that increasingly I come to the conclusion that paragraph (b) does not appear to be necessary. In any case, I should like to ask the noble Lord the Minister this question. Is it not true that the Government appear to regard paragraph (b) as less important than paragraph (a)?—because paragraph (a) says that "particular regard shall be had" to certain matters and paragraph (b) says merely that "regard shall be had" to them. What is the significance of "particular regard" as opposed to "regard"? Incidentally, all this is an additional argument for having a look again at paragraph (b).

Lord Elton

The noble Lord, Lord Henderson, has had such long experience of patient and silent listening to noble Lords dissecting the words of legislation that it is no surprise to me to be entirely surprised by his question. I am not aware of any order of preference in the fact either that (b) comes after (a) or that the word "particularly" has been omitted from (b). However, I must confess that this had not struck me as a matter of significance until the noble Lord put it to me. I shall certainly consider, between now and Report stage, whether the word "particularly" ought perhaps to be inserted in order to restore a proper balance between the two considerations.

However, the main issue, which I think we have come a little way from, is this. We are simply concerned that material which might appear neutral when it is not part of a campaign, and which is the material which links the intentions of the authority to the campaign, should not by its neutrality escape the effects of the Act: so that the consequence is that the campaign itself, which is of a nature of which the Committee disapprove, also escapes the effects of the Act. That does not seem to me a peripheral consideration. I should think that if anybody is going to think again between now and Report stage it might be helpful if noble Lords opposite read with care what I have said and return to the charge. I cannot encourage them to think that I shall spend much time going through this, except in so far as the word "particularly" or "particular" might with benefit be included in the part of the Bill which the noble Lord opposite wishes to remove.

Lord Underhill

I accept the comment of the noble and learned Lord, Lord Denning, that the amendment which I proposed would still have no effect because of the opening subsection of Clause 2. Equally, I think there is strong validity in the point made by the noble Lord, Lord Winstanley, as to why, on the other hand, we have Clause 2(2)(b) in the Bill at all. I shall read very carefully what the noble Lord, Lord Elton, has said but I find it very difficult to find any justification for the Government having it in.

One reason, in addition to others, for having it out is that it would be of great assistance to chief officers and to the legal departments of local authorities who have already expressed their concern about when they are going to be asked for advice. It will also be of great assistance to local authority associations. I know a little about these, being the president of one. Local authority associations will be seeking support from their affiliated organisations to take part in certain campaigns. Their chief officers will have to advise them. It is far more difficult when they see Clause 2(2)(b) there. What was the Government's purpose in inserting reference to campaigns?

I must return to what I said at the outset: that is, that the insertion of Clause 2(2)(b) would seem to imply a sound criticism of a considerable part of Widdicombe in its reference to what is right and proper for a local authority, by itself or with other local authorities, to campaign upon.

I shall, with my colleagues, as the noble Lord says, think very seriously about what he has said. I hope the Minister will also look carefully at why, if the Government think everything is covered by Clause 2(1) as now amended, there is any necessity to clutter up the issue, to make it more confusing, by having Clause 2(2)(b) in at all. It seems to me that that will make it far more difficult for the authorities and serve no purpose at all in furthering the Government's objectives under Clause 2(1). I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 7: Page 2, line 26, leave out ("or can reasonably be regarded as likely").

The noble Baroness said: I spoke to Amendment No. 7 with Amendment No. 1. They were grouped together. Therefore I should now merely like formally to move Amendment No. 7.

On Question, amendment agreed to.

Lord Skelmersdale

I think this is an appropriate moment to break. I suggest that we do not return to this business until twenty minutes to nine. I therefore beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.