HL Deb 24 February 1986 vol 471 cc823-48

3.2 p.m.

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

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 4 [Codes or recommended practice as regards publicity]:

Lord Campbell of Alloway moved Amendment No. 16: Page 3, line 25, at end insert ("for the guidance of local authorities in determining whether to incur expenditure on publicity.").

The noble Lord said: I beg to move Amendment No. 16, which is to insert at the end of Clause 4(1) the words which appear on the Marshalled List. This amendment is grouped with Amendment No. 17, which is an alternative to No. 16, and also with Amendment No. 19. This set of amendments, to which by leave I would wish to speak, is designed to ensure that the codes issued by the Secretary of State under Clause 4 shall be advisory only, being for the guidance of the local authority, and this only for the purpose of determining whether to incur expenditure on publicity—a purpose which Amendment No. 16 has subsumed from part of Clause 4(6). If the purpose is intended by the Government to be wider than is stated in Clause 4(6), then Amendment No. 17 serves as an alternative to Amendment No. 16; but if I interpret correctly certain correspondence which I have only just received, it would appear that Amendment No. 17 may not arise.

Amendment No. 19, which is common to both alternatives, proposes the excision of "shall have regard to" from Clause 4(6) as otiose. The intervening amendments which relate to Clause 4—that is, Nos. 17A, 17B, 18A and 19A—do not in any way affect the substance of this set of grouped amendments and these amendments are in no way governed by the intervening amendments.

These grouped amendments, which are concerned with status of the codes, as distinct from content, bring the drafting of Clause 4, which has to be construed as a whole, into line with the intention expressed by my noble friend the Minister on Second Reading. The Official Report is not admissible as an aid to construction in any court of law and so it is essential to the revisory role that the status of any code (whatever that status may be) should be plain on the words of the clause in the Bill which authorise the introduction of the code. In this Bill, which is overtly interventionist, it is of singular importance that the purely advisory status of these codes should be established. That is, if indeed codes of practice are needed at all, a question which only arises on the Question whether Clause 4 shall stand part of the Bill.

On the assumption that codes are requisite—an assumption made for the purpose of the amendments to which I speak—these codes to be issued by the Secretary of State under Clause 4 are advisory codes of guidance as to recommended practice for the local authority. The functions affected by these recommendations lie within the realm where the local authority are the sole judges of fact and of the manner in which they exercise their discretion. Such indeed is the judicial approach, according to the reasoning of three decisions of the Appellate Committee of your Lordships' House in 1985 and 1986, unfortunately which followed the vintage era of the noble and learned Lord, Lord Denning, and the last of which was Puhlhofer v. London Borough of Hillingdon. That decision was handed down on 6th February.

From the reasoning of all these decisions, it is all too plain that the words "shall have regard to" in Clause 4(6) have no legal effect whatever and afford no legal sanction if the recommendations in the code are not followed by the local authority—this is because resort to judicial review may not be had to challenge or monitor such functions of the local authority as are affected by the codes, save in the wholly rare and exceptional case in which, as I mentioned on Second Reading, the retention of Clause 4(6) is wholly irrelevant.

The rare and exceptional cases—where no reasonable authority mindful of its duties could have made the decision, which in fact verges upon the point of absurdity, bad faith, abuse of power and error of law—arise under the inherent jurisdiction of the court as interpreted by case law decisions and regulated by the rules of court and as a matter of public administrative law. That is a jurisdiction which is in no way affected by the inclusion or excision of Clause 4(6). In such proceedings, the extent to which the codes afford assistance to the point at issue (beyond that afforded by the Act itself) the codes are admissible for what they are worth.

Therefore if the enjoinder to the local authority in Clause 4(6) to have regard to the code lacks legal efficacy and if breach of such is not justiciable, and if the intention is that the status should be advisory, then why dress up words of mere exhortation in the garb of mumbo-jumbo mandatory statutory duty, which gives a semblance of legal efficacy but affords none?

If breach of the code is not to afford some extrajudicial sanction available to central Government, such as withholding rate support—and I understand from the recent correspondence I have just received that such assuredly is not the intention of the Government—then it is not understood what conceivable purpose the words "shall have regard to" in Clause 4(6) are intended to serve.

The intention of my noble friend the Minister, which this set of amendments is designed to reflect, was stated on Second Reading at col. 1018 of the Official Report and may be restated, I hope accurately, as follows. First, these codes will contain recommendations affecting political and other publicity, and will be drafted in consultation with the local authorities as to the matter of content, with which we are not concerned today. Secondly, as to status, they are for the guidance of the local authority and not for the court. Thirdly—

Lord Elton

Will my noble friend forgive me for intervening? I may have misheard him, but he appeared to be starting to read something recorded at col. 1018 of the Official Report of the Second Reading debate. I am not sure whether he is reading words in that column or that I have uttered. Can he just tell me what the quotation is?

Lord Campbell of Alloway

I have to take up the time of the Committee. It may be col. 1078 because I transposed my notes. It is where my noble friend was dealing, in his opening speech, with the intention of the codes of practice.

Lord Elton

I am most grateful to my noble friend. My point was that col. 1018, if my noble friend will permit me to say so, was the heart of my own speech and I did not recognise the words he was uttering. But if he attributes them to somebody else, I have no objection.

Lord Campbell of Alloway

These are the intentions of my noble friend the Minister from his own speech. If my noble friend looks at Hansard, he will see that I used the words as I understood them, and as I restated them. The restatement, certainly in the first part, deals with his information that the codes will contain recommendations affecting both political and other publicity. Secondly, in that context he said that they would be drafted in consultation with the local authority. Then as to status, which is the second point, he said that they were for the guidance of the local authority; and, as I understand that and restate it, they are not for the guidance of the court.

Thirdly, he said in terms—I hope my notes are correct—that they have no statutory force, which, restated, means that failure to observe the codes is not justiciable. Lastly, my noble friend the Minister said that they may not be taken into account in Clause 2 proceedings to enhance the words of Clause 2, and will therefore not, as I restate the proposition, be admissible in Clause 2 proceedings.

The words "shall have regard to" in Clause 4(6), which Amendment No. 19 seeks to excise, are not at all apt when used in context with a purely advisory code. They are, however, appropriate for a legally binding purpose, such as defining the scope of the prohibition in Clause 2. In this context, Amendment No. 6 cast a spotlight upon the curious and inexplicable drafting distinction between "particular regard shall be had" in Clause 2(2)(a) and "regard shall be had" in Clause 2(2)(b). So now in the statute we have three expressions: "shall have regard to", "particular regard shall be had" and "regard shall be had".

The use of any of the three versions, which in plain English have much the same meaning, in one and the same short Bill, but dependent wholly upon contextual distinction either to import or to negate statutory effect—because with the codes of practice there is no statutory effect; with the Clause 2 prohibition there is statutory effect—to achieve both purposes, introduces a woeful want of clarity. It is of importance to avoid any semblance of confusion from cross-pollination in this regard, and the excision of Clause 4(6) would also serve this end.

3.15 p.m.

Although it is of importance to know whether such codes are for the guidance of local authorities, as your Lordships will see from Clause 4(1), as to content, style, distribution and other related but unspecified matters, or only for the guidance of the local authority in a determination to incur expenditure on publicity, it is also important to know because thereby hangs the alternative between Amendment No. 16 and Amendment No. 17. But again, if I interpret aright the letter which I have just received, Amendment No. 16 which I am moving is the appropriate amendment.

The hope is that my noble friend will accept either Amendment No. 16 or Amendment No. 17, having clarified his position and that, in any event, he will accept Amendment No. 19 and excise Clause 4(6) when moved in due course. On the basis that Amendment No. 16, in so far as it subsumes part of Clause 4(6), reflects the intention of the Government that the codes should only afford guidance to the local authority in a determination to incur expenditure on publicity, as I understand the recent correspondence, I beg to move.

Lord Elton

Before my noble friend sits down, I wonder whether he could help me. He has quoted an extremely recent case which I have just identified, Puhlhofer v. London Borough of Hillingdon, of which I have The Times report here. On a quick glance, the judgment does not seem to say what the noble Lord has led me to suppose it would say. Therefore I want to make sure that I have the right case, because it does not say anything at all about the status of the code. The warnings given are against using judicial review to challenge the merits of a local authority's decision, and I understand that the judgments stress that judicial review is not about the merits, but is about whether the decision has been taken properly. If my noble friend can tell me that I have got that right, it may make things easier later on.

Lord Campbell of Alloway

I am grateful to my noble friend. He has the case right. I have the transcript from the Judicial Office. I do not know what my noble friend has found in The Times report. The official judgment, on page 9, of the noble and learned Lord, Lord Brightman, and the express affirmation by the noble and learned Lord, Lord Roskill, on page 1, wholly support the reasoning which I have put before your Lordships, wholly support the concept that in a situation such as this the functions of a local authority are not open to monitoring or challenge by way of judicial review, because they lie within the realm of fact and discretion, which is for the local authority, and that it is only in the wholly exceptional case that judicial review could operate. Indeed, in those circumstances, according to the reasoning of this judgment, read in context with the reasoning of the judgment in the Nottinghamshire County Council case—I do not want to turn the Committee into a tutorial—and the case of In re W v. Hertfordshire County Council (the three decisions which took place in 1985 and 1986) I am relieved to see the noble and learned Lord, Lord Denning, in his place because he more than anyone could convince your Lordships, or otherwise, if it were right, that my proposition as to the legal situation is correct.

Lord Underhill

Before the noble Lord sits down, may I ask him to enlighten the Committee as to what is the letter, to which he has twice referred, which he received this morning?

Lord Campbell of Alloway

The letter which I received as I sat in my place—a letter of 21st February—is a private letter from my noble friend to myself. I do not wish to have to read out a private letter.

Lord Elton

By leave of the Committee, I should say that there is nothing I wish the noble Lord to conceal from the Committee. The letter was private only in the sense that it was an answer to a letter which I had received the night before on a point about this debate. This is not a tutorial on the procedures of the Committee or upon the state of the law. I merely wanted to say that there is nothing, as it were, clandestine about the letter. The point on which I intervened earlier was to establish the relevance of the judgment about which I still have doubts, but I shall return to those matters when I properly make my own speech in my own time.

Lord Henderson of Brompton

I should like to support the noble Lord, Lord Campbell of Alloway, in everything that he has said. He has been most thorough and extensive in what he has had to say and I can therefore be relatively brief. I should like to start by referring to subsection (6) (because that is the most important subsection) which is the subject of Amendment No. 19. As the noble Lord, Lord Campbell of Alloway, has said, Amendment No. 16 is by way of being consequential to Amendment No. 19.

As I see it, subsection (6) is without any legal effect, as the noble Lord, Lord Campbell of Alloway, said, and as the noble and learned Lord, Lord Denning, said on Second Reading. But I regard it as not merely having no legal effect, not merely as being "otiose"—the word used by the noble Lord, Lord Campbell—but as being positively misleading. It is misleading to the common reader because it gives the impression that it does have some force. The uninstructed, ordinary citizen or Member of either House of Parliament is likely to think that the imperative words used, "shall have regard", must be enforceable or justiciable, as otherwise they would not have been included in the Bill. "Goodness", the uninstructed reader is likely to say, "the local authorities will have to watch out. They will have to watch their step. This is a tough measure. If they don't jolly well 'have regard' as they are told to, they can be forced to do so by one means or another".

We have heard from the noble Lord the Minister that the Government are not proposing to bring force majeure to bear on the local authorities by means of the rate support grant. We have heard from the noble and learned Lord, Lord Denning, and from the noble Lord, Lord Campbell of Alloway, that these words have no force. Why, I therefore ask, are they in the Bill? Should they not, as these amendments propose, be deleted? I cannot remember the adjective used by the noble Lord, Lord Campbell of Alloway. I think he said that they were mere "mumbo-jumbo". The word that I was going to use, and I am inclined to use it, is mere "flummery". They are either one or the other, or both.

If they are removed, Amendment No. 16 is required. This is purely consequential, and we shall then know that the codes are, for the guidance of local authorities in determining —then we go on with the words of the amendment. That is calling a spade a spade. It is telling the truth. I do not think that Clause 6 is telling the truth. It is positively misleading. If the codes of practice have no force I myself have no objection to this clause; but if they are to have the force of law, I think it would be only right for drafts of the codes of practice to be made available to Parliament before we proceed to any further stage of the Bill.

I shall refer only very briefly to the very interesting debate that we had on codes of practice initiated by the noble Lord, Lord Campbell, and to the reply given to that debate by the noble and learned Lord the Lord Advocate. He rightly said that no problem arises with non-statutory codes, but where they have a statutory basis, as in this case, it really is necessary for Parliament to know clearly what is to be enacted and what legislative effect it will have. I do not want to be mistaken; I am not in the least against codes of practice as such—far from it, I am very much in favour of them. It has been a welcome development over the past 10 years or so in the interests of not cluttering up the statute book with detail and in the interests of providing flexibility. They can be altered and revised, whereas it is very difficult to alter the parent statute.

My objection is to this type of clause. It has been misleadingly called a trigger clause, but it triggers nothing. You pull the trigger and there is no bang. I am quite happy if the purpose of the clause is merely to give a statutory basis to what the Government call good practice in the relevant area and if, to use the words of the noble and learned Lord, Lord Cameron of Lochbroom, the code is nothing more than what it appears to be. If these amendments are passed, that is the effect of them. For that reason alone, I beg to support what the noble Lord, Lord Campbell of Alloway, has said.

I was going to refer to the case of Puhlhofer, but as it has been so extensively quoted I think there is no reason for me to do so. But it is very recent authority—6th February—and if we have been so sternly enjoined by two noble and learned Lords sitting judicially that it is in the highest degree undesirable for local authorities to be taken to court except where they have been acting perversely, I think one could say that to all intents and purposes subsection (6) of this clause as drafted is of no effect and should be deleted.

3.30 p.m.

Lord Ardwick

On the question of codes, we have made some progress. The rather ridiculous draft code published with the Bill has been withdrawn, but I should prefer, as would the National Union of Journalists, which is my own union, and the local authority associations, to have no statutory code at all, but self-regulation. Only the Government, for unclear reasons, persist with a code backed by a statute. If there is to be a code, however, it is essential that its status is clear to all and not merely to the Government Front Bench. I shall be moving Amendment No. 17, which would simply add for the guidance of local authorities to the clause that empowers the Minister to issue codes of recommended practice.

As the noble Lord, Lord Campbell of Alloway, has argued, with a learned skill that I cannot emulate, the object is simply to clarify the status of the codes. The fact that the codes are created under the authority of an Act of Parliament may seem to confer a legal status upon them that they do not possess. It seems that they would impose no legal obligation upon local authorities; they are simply advisory. Why not say so?

Can it be that the Government are hoping to intimidate or to bamboozle local authorities? Can it be that the Government are hoping that timorous local authorities will consider themselves bound by the letter of the code rather than by its spirit? Can it be that the Government hope that the defence of a local authority would be a weakened by its failure to observe the letter of some clause in the code? If not, why not accept one of the two amendments that clairify the Bill?

For a similar set of reasons, I support the noble Lord, Lord Cambell of Alloway, in his proposal to delete subsection (6). If the proposal is accepted then I shall support his Amendment No. 16, which neatly brings guidance and expenditure together.

Lord Kilmarnock

From these Benches, we should be happy with either of the two amendments. The council's duty to inform the public on local government issues is threatened by the whole of Clause 4. Ideally, we should prefer to see the clause removed altogether. However, the Committee has before it two proposals that go a long way to solving our difficulties.

The draft code that was published and placed in the Library in December 1985 has now been withdrawn after the strong criticism it drew from the many interests involved, especially the officers of the local authorities, who would have been required to carry it out. In that connection, it is worth quoting what the chief executives had to say: The overlaying of a code of practice by the Secretary of State, as provided for in Clause 4, will produce a state of confusion for those who have to interpret the legislation. It would lead to the provision of two sets of rules (neither of them easy to interpret), one in statute and one in a code of practice of uncertain status". That uncertain status has already been brought out by the speeches of the noble Lords, Lord Campbell of Alloway and Lord Henderson of Brompton.

Despite the criticism of the original code, it appears that the Government are still intent on going down the road of a statutory code. However, as I pointed out to the House on Second Reading, that really does not seem equitable. In the Financial Services Bill now passing through Parliament, the Government have insisted upon self-regulation of the financial services industries depite recent and flagrant abuses in the City. Yet for local elected authorities the Government reject self-regulation. We must remember that although some authorities have been guilty of abuse—and the number hazarded at is only some 12, 13, 15 or 20—there are something like 400 local authorities in this country that have performed their functions with perfect propriety. Those are the local authorities at which the code would bite.

I mentioned also on Second Reading the code of practice of the Institute of Public Relations, which states: In promoting their interests or policies in politically contentious issues, local authorities should not collaborate or jointly organise activities with party political organisations or with organisations specifically committed to the support of one political party". That goes a long way against the politicisation of local government.

The noble Lord, Lord Campbell, performed a valuable service in moving his amendment and in pointing out that the code is an advisory code that is not or should not be intended to be considered by the courts. The role of the courts is now fully taken care of in Clause 2 as amended by the Committee. If we are to have a code at all, then it should be an advisory code for local authorities to follow. It should not be relevant at all to the consideration by judges of Clause 2, which is the clause of the Bill that concerns them.

On those grounds, we would accept either of the amendments. Before the noble Lords, Lord Campbell and Lord Ardwick, decide which amendment they are going to rally round, it occurs to me that Amendment No. 17 would require the backup of Amendment No. 19; otherwise it would be incomplete. It is therefore possible that the Committee might feel that it would be preferable to accept the two amendments put forward by the noble Lord, Lord Campbell of Alloway.

Lord Leatherland

I have a question to ask. I should first like to explain that at present I have no direct contact with any form of local government, although in the past I was chairman of one of the largest county councils in the country and also chairman of its finance committee. My question is this: if a council contravenes the suggested code of practice, will the district auditor be able to surcharge the councillors concerned?

Lord Denning

This amendment raises the whole question of the status of codes of practice in our law. We had a discussion about this matter a few weeks ago. At that time the opinion was expressed in this Chamber by the noble Viscount, Lord Colville of Culross, that if Parliament is going to produce codes of practice then it must at the same time apply its mind to stating in what terms is to be the effect of a code when it is prepared. In other words, when Parliament approves a code of practice it should at the same time state what the code's legal effect is to be, if and when that code goes before the courts of law.

In some codes, such as the Highway Code, the statute says that the code is to be taken into account by the courts. In the case of the Highway Code, that is the case. If one is considering whether or not a man has been negligent, then one examines the Highway Code. If he has not obeyed that code then it is some evidence of negligence on his part. In that way the code is taken into account in law and is admissible in evidence.

The same is true in the case of the industrial relations code—a copy of which I have in my hand. If the court or the tribunal is considering whether a man has been fairly or unfairly dismissed, it may examine the code to establish whether or not he ought to be given reasons on his dismissal or whether it can be challenged. In other words, the code is taken into account in disputes of that kind. In the latest code, under the Police and Criminal Evidence Act, it is taken into account in this way because the statute says so. If the police officer is charged with a disciplinary offence and has disobeyed the code he can be punished, or whatever, by the authority. Furthermore, let us suppose a civilian is claiming that a policeman has wrongfully searched or arrested him. In such a case, the code can be referred to in order to ascertain whether his action was or was not right. Those are perfectly understandable provisions. One can see what is the legal effect of the code.

However, in this Bill we have a different code. It is not between private individuals, such as I have been saying, but where a local authority is to issue publicity and there is a code of practice to govern it. If it is to come within the law, in what way will it do so? At Second Reading I suggested—and I still think it may be right—that the courts could inquire to see whether, in this case subsection (6) has been fulfilled or not. It reads: Local authorities shall have regard to the provisions of the codes in force under this section in determining whether to incur expenditure on publicity". But it seems to me that that provision would be ineffective. It does not say how much regard the local authority must have—whether it is to have much or little regard—and it would be very difficult to challenge the local authorities on that point, especially in regard to recent decisions. I might have done it when I was in the Court of Appeal but, on the other hand, there are three recent decisions of the House of Lords which say quite distinctly that the courts ought not to interfere with what local authorities do, in their discretion, or in the conduct of affairs entrusted to them unless they have gone beyond their powers. Therefore the question is: could it ever be said to the court that these local authorities have gone beyond their powers? It could not, I think, by invoking subsection (6).

An outline of a code of practice was issued for consideration in another place. It was pointed out in that outline code of practice that the publicity which comes within this clause covers not only paid publicity, paid advertising in the press, on radio and television, with leaflets and campaigns and so on, but also unpaid publicity including council and committee reports, consultation documents, press releases, press conference statements, media interviews and the like. All this comes within the code of practice and the wording of it is so wide that it does not seem to me to be fit for consideration by courts of law.

For example, "relevant matters" are the content, tone and presentation; the treatment should be objective; it should not be over-simplified or personalised; it must not directly attack policies and opinions of other political parties or groups. I wonder how our little district council at Basingstoke would get on, because it has passed a resolution unanimously condemning the Sunday trading Bill. Is it guilty of political propaganda? I am afraid that if this code of practice goes out we shall find freedom of debate and freedom of speech unduly circumscribed, not by law but by a code of practice.

Those are the dangers that I see in it. On the other hand, having expressed the dangers I should like to join forces with my noble friend Lord Henderson of Brompton. At all events, we ought to know what is the legal effect, if any. He would agree, and I see there is great force in it, with a code of guidance which has no legally binding force, for which local authorities cannot be taken before the courts, or anything of that kind, but which leaves to their own good judgment their activities in matters which concern them and does not rely on anyone taking them to the courts of law over what they have done. In other words, the code could be left, provided there is no legal sanction. As my noble friend Lord Henderson says, it could be left as it is without subsection (6), but I am not sure that it would not be better to leave it out altogether.

3.45 p.m.

Lord Elystan-Morgan

It is on that note on the part of the noble and learned Lord, Lord Denning, that I, from these Benches, should like to endorse what has been said with such force and clarity by all noble Lords and noble and learned Lords who have so far taken part in this debate on this amendment. If anything emerges from the discussion it is the danger of having a code introduced in circumstances where it is inappropriate to have a code at all. The noble Lord, Lord Campbell of Alloway, in his masterly analysis in the debate on codes a fortnight or so ago endorsed one principle of immense importance. It is this. Since there are five or six different types of code, having five or six utterly different effects in law, it is imperative that when Parliament ever has resort to a code it should identify to the letter exactly what the status of that particular code should be. I think that we can put it in these homely terms: the breed of the animal must be specifically spelt out.

That is the very great defect in relation to this provision. On the face of it, as far as the ordinary intelligent layman is concerned, it appears to be mandatory. The subsection states, "shall have regard to". That is the mandatory language normally used by Parliament. But it is clear from what the noble and learned Lord, Lord Denning, and other noble Lords have said, that it has no effect whatever. In other words, it is passing off an utterly unmandatory provision almost in the guise of a mandatory subsection. Therefore I believe that there is at best the danger of confusion and at worst the danger that local authorities will walk in awe of the content of these codes.

I feel that the logic of the noble and learned Lord, Lord Denning, is, as always, unremitting and remorseless. It is this, as I understand it. Where Parliament has already laid down the strict boundaries of a restriction and a code is resorted to, then that code should make no reference to those boundaries but should operate only within them. The draft code—I appreciate that it has now been withdrawn, but it illustrates classically, to my mind, the dangers with which we are concerned—involves itself with delineating, in part at any rate, the boundaries. In other words—

Lord Elton

I think I must remind the noble Lord that the code to which he refers was at no stage meant to be anything but indicative, and my honourable friend has actually withdrawn it in terms and is starting with a blank piece of paper. Therefore to argue from this piece of paper on any intentions we may have is, with respect, misleading.

Lord Elystan-Morgan

I totally accept that it was never the intention of Her Majesty's Government to issue this as a code. If I gave that impression, I withdraw it completely. I am saying that this is, if you like, a student's example of what a code should not be and an example of the danger of mixing the legislative provisions which are in Clause 2 with the provisions which are extra-legislative and intended to be in the code.

I should like to make just one last point. Widdicombe looked very carefully at the situation and I think that Widdicombe produced one of the best argued reports on local government that have been seen for a very long time. Widdicombe made no recommendation in relation to a code. It considered two possible alternatives. One was a national body that would draft some form of utterly non-legislative advice; the other was a system of consensus procedure. It rejected both and said that ultimately it must be a matter of self-regulation.

Very humbly I would suggest that perhaps the best thing that the Government can do is to consider whether it is necessary to have Clause 4 in the Bill at all, as the noble and learned Lord, Lord Denning, in fact has suggested. However, if it has to be there, then clearly subsection (6) should go, because of those inherent dangers that Members of the Committee have already pointed out.

Lord Harmar-Nicholls

Before my noble friend replies, I must say that after listening to the comments so far on these various amendments and from my 20 years' experience as a member of a local authority, I honestly do not see dangers of the magnitude that has been expressed. However, from the experience of the last 15 to 20 years I believe that some sort of guidance, which could take the form of the right sort of code, is necessary. Local authorities have done things which have been shown not to be in the interest either of the local authority itself or of the nation as a whole, so something ought to be done.

Where I differ to some extent from the Alliance Benches is in the fact that so far only 15 or 20 authorities have been clearly recognised, and I should have thought that was a clear indication that something needs to be done to prevent the problem spreading even further. So if it has been decided that something ought to be done and if one has gone so far as to say that a code of practice may well be the answer, I do not see at this stage that a great deal of danger exists in Clause 4 as it now stands in the Bill. Where I think we ought to be on the alert and go into some sort of detailed examination is in subsection (4) of Clause 4, where my noble friend Lord Boyd-Carpenter has tabled an amendment. Subsection (4) is the part on which we ought to be focusing our attention. It is the code itself which will carry the dangers, if there are any dangers, by having it included in the statute.

I hope that when the code is put before both Houses of Parliament, as is suggested, then Parliament will do its duty and see that it represents what is fair and equitable in the light of the experience that we have had so far.

Lord Campbell of Alloway

If the noble Lord will give way, perhaps I may intervene here to save time and seek to clarify the issue. I think it is common ground between my noble friend the Minister and myself that when the code goes before Parliament for approval that will have absolutely no effect on its legal efficacy, which is the issue with which we are concerned. All that it does is enable Parliament to approve the way in which the Secretary of State has exercised his powers. That has nothing to do with the point in question.

Lord Harmar-Nicholls

I am glad of that intervention because I was going to say exactly that, so there is no need for me to repeat it. But the code itself is still the basis for how it will be treated. When one comes to the legal situation—if I may have my noble friend's attention after his intervention—I believe that it is at the point of subsection (6), under which Local authorities shall have regard to the provisions of the codes", that any legal sanction ought to come in. I interpret subsection (6) to mean that, having agreed a code which has the approval of both Houses of Parliament, the local authority shall have regard to it, and if any matter arising from it comes in front of the courts, then the courts shall have regard to what is in the code as approved by the two Houses. So it really means that legal authority is not being put within the statute, but that there is a code which has the approval of both Houses of Parliament and a local authority would then be deemed to be expected to have regard to that code.

If it is suggested at any point that a local authority has deviated from the code and the matter has to go to the arbitrator of a court, then the court shall take it into account. This is precisely what I understood from the noble and learned Lord, Lord Denning, is done with the Highway Code. I believe that that is a most useful example of how a code can be applied and that is what I would expect to happen here: that the courts would have regard to the code, just as the noble and learned Lord, Lord Denning, with his great authority has said that the courts have regard to the Highway Code.

So from my experience I would say that there is nothing terribly dangerous in Clause 4. There would be if the code at which we eventually arrive turns out to be the wrong one, so when we decide the composition of the code under subsection (4), it is then that we ought to be on the alert. Having arrived at that code, we would expect the local authorities genuinely to have regard to it, and if it were suggested that they have deviated from it then the courts should have regard to it but also take into account all the wider issues which surrounded anything that had been done.

Lord Beloff

I find it difficult to follow the argument of the noble Lord who has just sat down and I hope that the Minister will be able to help the Committee. My interpretation of what was said by the noble and learned Lord, Lord Denning, and other noble Lords with a legal background, was the opposite; namely, that the code itself, even if approved by both Houses of Parliament, was not the equivalent of the Highway Code because it dealt with an entirely different aspect of activity and therefore it would have no force in the courts.

If that is the case, then I must admit that my worries are the opposite of those which have been expressed so far. Unlike other noble Lords who have spoken, I do not represent the interests of local authorities nor the National Union of Journalists nor the employees of local authorities, but vicariously, since I live under a perfectly respectable local authority, the interests of the ratepayers whose interests this Bill was originally intended to safeguard. It was intended to safeguard their interests by making it impossible for other local authorities to do what it has been generally admitted some local authorities have done, which is to abuse their powers of giving information in order to make political propaganda.

If we are now told that the code is of no force, then I would say, with respect, to the noble Lord, Lord Elystan-Morgan, that a code is not the way to curtail them, any more than is the idea of self-regulation, because we have enough experience to know that self-regulation means nothing whatever to a small number of local authorities.

Lord Elystan-Morgan

Will the noble Lord kindly give way? I think he must have misunderstood me, and if so I am sure the fault is mine. I was saying that Clause 2 is the regulation: that is the legislative prohibition. The code legislatively does not take the matter beyond that. I was arguing that rather than having a non-legislative code, why not do what Widdicombe suggested, which is to have self-regulation? It is a different argument.

4 P.m.

Lord Beloff

Obviously I accept the noble Lord's explanation, but I should still like to hear from my noble friend whether the Government are convinced that Clause 2 in itself provides a sufficient safeguard without the necessity of a code; that is to say, whether it provides the legal sanctions which exist, or ought to exist, in all cases of misdoing whether by individuals or companies, as has been referred to, or by local authorities. To me as a layman the debate on the amendment seems to suggest that at any rate the codes do not provide the protection sought for the ratepayers. The words "advisory" or "non-advisory" seem almost irrelevant. Whatever is said, apparently the code can have no legal effect. I should like to hear what the Government's view now is on their powers to safeguard the ratepayer.

Lord Airedale

I echo the hope of the noble Lord, Lord Beloff, that the Minister may be able to enlighten us. I have a feeling that the Committee finds itself in considerable darkness with regard to the matter. It was some time ago that the Minister intervened in the speech of the noble Lord, Lord Campbell of Alloway to express reservations whether the recent judgment of the noble and learned Lord, Lord Brightman, was of any assistance to the debate. I am bound to say that I share the Minister's misgivings. As I read the judgment, the noble and learned Lord, Lord Brightman, was saying that he put aside the code of practice not because of any general principle about it but simply because, as the noble Lord said, it did not add anything to the statute relative to the solution of the problem before the court.

The noble Lord, Lord Leatherland, referred to the district auditor. Is he to have regard to the code? Presumably he is. Suppose that a dispute arises between the district auditor and the local authority, the dispute goes before the court and part of the district auditor's case is, "I took guidance from the code of practice". Presumably the court, in deciding whether his case is good, will have at least to look at the code of practice in order to decide whether it considers that he acted properly.

Lord Elton

I am obliged to the noble Lord for that intervention. I think that I ought to start with Clause 2, although it is not the subject of the amendment, because it has been prayed in aid two or three times. The noble Lord, Lord Kilmarnock, said that the courts would be fully taken care of by Clause 2, and other noble Lords have suggested a linkage between Clause 2 and Clause 4. Let me start on a important point that I had hoped to get clear on Second Reading but about which I think there may still be misunderstanding. There is no effect of Clause 4 on Clause 2. Clause 2 describes material that cannot be published. That is the statutory prohibition that the noble Lord, Lord Elystan-Morgan, correctly pointed out. And that is all that it does.

The meaning of Clause 2 is expressed in the words of Clause 2 and by those words alone. It is those words that will be applied to material which has to be tested to see whether it is prohibited by Clause 2. The code under Clause 4 is not intended to interpret those words, nor is there anything in the clause that we are now looking at, or anywhere else in the Bill from start to finish, that suggests, permits or provides that it should. Neither Clause 4 nor the code will have any effect at all on Clause 2.

My noble friend Lord Campbell of Alloway cited references using the phrases "shall have regard to", "regard shall be had" and "shall have particular regard to". He quoted references to that sort of language in the clause. But I repeat that clauses are interpreted independently and the shading of meaning in Clause 2 will have no effect on the interpretation of Clause 4. As to the shading within Clause 2, which is an interesting question, I took note of that on the first Committee day and I have not lost sight of it.

Let me turn now to what the code will do and why we want it at all. I at once share and echo the anxieties of my noble friend Lord Harmar-Nicholls, and indeed some of those of my noble friend Lord Beloff. I do not think that anybody can have failed to notice over the past decade or so the steady and considerable increase that has taken place in the efforts of some local authorities to communicate with their electors. That is no bad thing in principle, because ignorance obstructs accountability and publicity dispels ignorance, provided it is proper publicity and not designed to compound ignorance; and that is what we are concerned with. I am glad to see the noble Lord, Lord Elysian-Morgan, still nodding his head. I suppose that it will stop fairly soon. But publicity is expensive and, if it is effective, it affects a great many people. Moreover, as Widdicombe points out, that expenditure has not just grown; it looks like continuing to grow indefinitely.

Again I must pause to put right a misconception in case I have by some mischance lodged it in your Lordships' minds. I am not now in this clause talking about party political publicity. That is the subject of Clause 2, and if Clause 2 is effective there will not be any. I am now talking about the large range of legitimate publicity about matters that are properly the concern of a local authority and about which it can, and very often should, put information out to the public.

There is a wide range of such matters and a large number of different ways in which they can be presented. Some of those ways are, as Widdicombe points out, highly intrusive. The tone of what is said or depicted can therefore be as important as the content. As Widdicombe says in paragraph 142, it can be perfectly proper to give a short and even a shocking message in connection, for instance, with a road safety campaign, but that would not be appropriate when explaining the reasons for a complex or controversial new policy. Given the increasing amounts of money that local authorities are spending on publicity, the need to get value from that money in what is now a sophisticated market and the need to satisfy the ratepaying public that they have done so, it seems to us that some standard of good practice is needed as a yardstick. All publicity should, after all, be balanced, informative and cost-effective.

The purpose of this clause is to establish just such a yardstick in the form of a code of practice. It is, I emphasise, a yardstick; it is not a straitjacket that the code will eventually provide. I say "eventually" because, of course, at present there in no code of practice, and nor will there be until some time after the Bill has been enacted.

I must pause again to repeat the assurances that I have just given on an interruption, on Second Reading and on the first Committee day. I shall repeat them because the interruption was necessary. The indicative code that we placed in the Library was the roughest and most embryonic of things. Since then my honourable friend the Minister for Local Government has had a most useful discussion with the local authority associations, in which I joined, I may add. In it he agreed to withdraw this cockshy altogether and to embark on discussions with them over a clean sheet of paper early in April.

I cannot therefore tell your Lordships what in detail will be in the code, but you will know in due time, because, following our Amendment No. 18A, if your Lordships are kind enough to accept it, no code can issue until you have agreed it; and also following that amendment, if your Lordships are kind enough to agree it, no alteration can be made to such a code without your having a chance to reject it. Having read with interest and care the debate on the Motion of my noble friend Lord Campbell of Alloway about codes of practice on 15th January, I think that that is something that will find general favour with your Lordships as a whole. I accept that my noble friend is rapidly becoming an acknowledged expert in the field. But, important though that debate was, I cannot think that we must stop altogether providing in statute for codes of practice until we have a new procedure for placing codes in different categories, as was then suggested.

I cannot therefore tell your Lordships in detail what will be in this code, but I can give the outline of what will be in the code because it is stated in Clause 4(1). It will be a statement of recommended practice as regards the content, style, distribution and cost of the publicity material we have been talking about—the matters set out in Clause 4(1) which are those that Widdicombe said we should be concerned about. And it is about them that we shall consult with the local authority associations. We shall be required to do so by subsection (5) of the clause. By "consultation", I do not mean a perfunctory contact. I mean proper and careful consultation and exchange of views.

Everything that I have said so far has been, in a sense, preliminary. I apologise because it has taken four and a half minutes; but it was, I believe, necessary. In order to decide the questions that these amendments put to the Committee, we must be clear as to what the questions are about as well as what they are. The questions are about a free-standing clause that, as I have described, has no effect on the interpretation or scope of Clause 2; that is made necessary, as my noble friends have underlined, by the recent and considerable increase in local authority publicity and its changing nature; that will deal, as I have described, with such matter as its content, style, distribution and cost, all of which are matters to which Widdicombe directed our attention; that will not be based, as I have underlined, on the indicative code to which some of your Lordships have kept referring mentally when trying to think what it would look like, as that version has been done away with; that will be based instead on thorough discussions with the local authority associations concerned and other interested bodies; and that will not be issued until it has your Lordships' own specific agreement. It will be designed, in short, with the close assistance of the users, and it will be supervised by Parliament itself—a pretty safe process whatever its status. It is the status of the code which the amendments seek to alter.

I have described in five minutes what the question is about. This is what the question is. It is what the local authorities themselves are anxious about and need to have clarified, as do your Lordships and my noble friends. So let us start with the status that we now propose. It is expressed in Clause 4(6). It is simply that of something to which local authorities must have regard when they decide whether to spend their ratepayers' money on a piece of publicity. There is no other duty in the matter. There are no other statutory requirements. All we have, all we ask for, is that when a local authority embarks on publicity, it shall have in mind the provisions of a code—a code drawn up in close consultation with local authorities' own associations and vetted and approved by this very House, by your Lordships yourselves.

Your Lordships will notice that there are no sanctions attached to this clause for failure to comply with the code. I have to point out to my noble friend Lord Harmar-Nicholls that there is no punishment for its breach and no penalty for any course of action. It will simply be a necessary part of the council's consideration of whether to incur expenditure on publicity. We have even seen and will remove as misleading the references to the code being "in force" to which the noble Lord, Lord Airedale, understandably took exception and put down an amendment. I refer to my amendment, Amendment No. 19A.

I go further. Your Lordships will see that even that duty extends only to having regard to the code, having it in mind, in other words, when decisions are made on this class of expenditure. It does not require—your Lordships can see that it does not require—even that the authorities shall abide by the code, drawn up, though it will be, in close consultation with their own representatives; vetted and approved, though it will be, by your Lordships' own careful House and another place. Having considered it, they can, if they so wish, take a course other than what it proposes. That is really not a very onerous or dangerous requirement, in my submission. But it is a requirement that these amendments would strike out of the Bill. Why do we need it in? Ninety-nine times out of a hundred, I am sure, councils will have in mind such a useful and relevant code, which they have helped to make and which your Lordships have vetted, simply because it will be useful as well as prudent to do so. They will want to. And ratepayers, aware of this, will have something to test their performance by. That will be the normal and everyday course of events.

Why then place this modest duty on them at all? Why not diminish it to the sort of non-committal pointer that these amendments propose in one form or another for the end of subsection (1)? The answer is, because of those very same ratepayers. It is their money the council will be spending, and on their behalf, let us remember, that they are supposed to be spending it. Those ratepayers have a right to expect, and their council has a duty to provide, decisions that are based upon a proper consideration of all the relevant factors in every area of policy. When it comes to the spending of ratepayers' money, the councils must consider their duty to their ratepayers to use their money with the utmost care. That duty is called their fiduciary duty. When the decisions relate to the spending of money on publicity, we propose that this code, drawn up in the exemplary way that I have described, must be a relevant factor. It would be absurd if it were not. It follows that there should be a fiduciary duty to consider it. That is what subsection (6) provides.

4.15 p.m.

The ratepayer has no right to demand, and the council no duty to undertake, that the council reach any particular decision on anything, only that they consider the relevant factors before they make their reasonable decision. That consideration is all that we intend to ask of them in this Bill. We do so in language that is well precedented in statute. I am sure that my noble friend Lord Campbell of Alloway will have noticed from his researches at least Section 60 of the Control of Pollution Act 1974—a Labour Government provision—and Section 125(5) of the Local Government Act 1972, as examples.

My noble friend drew your Lordships' attention to three cases. There was the case of Puhlhofer, the gentleman embroiled in a case with the London Borough of Hillingdon. The judgment was delivered, I believe, on the 6th February. I have been able to read the judgment, and I have had the judgment read. Along with the noble Lord, Lord Airedale, I have almost insuperable doubts about its relevance. The noble and learned Lord, Lord Brightman, made two relevant points, as I see it. One appears on page 6 in the second complete paragraph where he tells us that the code of practice actually gives no assistance in, and therefore, one must assume is not relevant to, the case in question.

The other reference is on page 9, one-third of the way down the second paragraph, where he said: The plight of the homeless is a desperate one and the plight of the applicants in the present case commands the deepest sympathy but it is not, in my opinion"— and he said this, remember, after he had dismissed the relevance of the code appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case". His stricture therefore is for us a general stricture on the use of judicial review which should, he says, be very sparing. Who would contest that? Certainly not I.

I understand that the considerations in the Notts and Bradford cases were the same as they were in the case of In re W. None dealt with the status of codes. And it is the status of codes to which these amendments are addressed. The terms that we have drawn in the Bill are precedented. Even if they were not, this requirement would be a reasonable and, indeed, a minimal one. It is precedented. If we take it away, we shall deprive the ratepayers exactly of that fundamental reassurance about the proper conduct of local government that I believe, and the Government believe, we owe to them. It is on their behalf, as well as my own and that of the Government, that I ask my noble friends and your Lordships generally to leave these familiar words in the Bill—they do not, I should add, bring surcharge onto councillors—and not to press the amendments.

Lord Stewart of Fulham

Before the noble Lord sits down can he reassure me on this point? He has told us on many occasions that any code that comes into existence under this Bill would have to be vetted and approved—I believe that those were his words—by this House. I have heard it argued on more than one occasion that it is no longer constitutionally proper for this House to reject a regulation or statutory instrument of any kind that has been approved in another place. Under this Bill if a code is drawn up, approved by the other House, and then comes to this House, if it is what the majority want to do, have we the right to reject it? If not, the assurances of the noble Lord that it has to be vetted and approved by this House cannot carry any weight.

Lord Elton

Your Lordships will have the right to reject it. There are questions of precedent and timing here. The noble Lord, Lord Henderson of Brompton, is familiar with these in the context of the prevention of terrorism legislation which is of an altogether different order. I speak subject to correction, but as I understand the normal course is that if there is a prospect of the House disagreeing with something of this sort, the Government think very carefully about what is in it before they bring the matter here. The immediate effect is therefore pre-empted. But your Lordships have the right to pray against instruments. Your Lordships are not encouraged to do that—and the noble Lord the Chief Whip opposite is aware of this—but the statutory right is there. I am not offering a paper gun with which to shoot a tiger. I suggest that your Lordships are asking to take fright at a paper tiger and that if you do you will take out of the Bill exactly the substantive and important reassurance that ratepayers—who are sick to the back teeth in many parts of this country of the abuse of publicity expenditure—expect your Lordships to give them, so please do not take it out of the Bill.

Lord Underhill

I do not propose to follow the noble Lord the Minister on this question of what will happen when the orders are before us. We shall deal with that matter at an appropriate stage. But I should like to intervene in this debate to put a completely non-legal angle as the ordinary person might see the situation. May I say in passing that I am certain the noble Lord, Lord Beloff, did not mean to say what it sounded as if he said when he referred to the interests of people in local government and journalism and so on. We are all concerned with one thing only: what is best in the interests of local authorities, local government and the people who are represented by local authorities.

The Widdicombe Report gave considerable attention to the whole question of tone and presentation. It dealt lengthily with this in paragraphs 206 to 218. What did Widdicombe say at the end of the day? The report said that, having considered this deeply, the committee thought that the way to handle this matter was by self-regulation. They justified self-regulation in quite a number of paragraphs, to which reference was made at Second Reading and which I do not propose to repeat.

The Government have not answered the statements made by Widdicombe as to why they believed it should be self-regulation. That has never been answered. It is true that the local authority associations had a useful discussion with the Minister on, I think it was, 19th February. As far as I am informed, all the representatives of the associations made clear that they wanted self-regulation, that they opposed the proposal in Clause 4 for a code, and offered once again—as they have done before, and I believe the Government have accepted—that they will co-operate in drawing up a code of practice. One would hope that there will be agreement on what will be the code of practice. It would be difficult for the Government if, having decided that they will have subsection (6) in Clause 4, the associations, and the Government could not see eye to eye on what should be a code of practice.

I repeat: why are the Government ignoring what the Widdicombe Report has said on the question of self-regulation? The Minister, Mr. William Waldegrave, said on 17th December in Standing Committee in the other place, at col. 370: My right honourable friend the Secretary of State made it clear that he would not issue the code until after Widdicombe part 2 had reported". We have not had Part 2 yet. If Part 2—the final report—comes out against any statutory code, what will be the situation if we have carried this into effect this afternoon? We are awaiting Part 2 as the Government know.

We have also had the statement made by the Advertising Association—which everyone will agree is a very reputable body. They say: So far as advertising in general is concerned, the principle of self-regulation is accepted by Government, industry and consumers, and we recommend that this should also apply, so far as is practicable for the local government sector". Commenting that Clause 4 is rather vague, the association recommend that any code "should primarily be guidelines rather than rigid rules".

I find that in his closing speech relating to this clause in Standing Committee in the other place—and I am quoting now from col. 391—Mr. Waldegrave said: We do not believe that in the code it would be feasible or sensible to go to the level of detail and exactitude which would be necessary to make the code enforceable as detailed statutory code". I have no legal experience or knowledge, but noble Lords with such knowledge emphasise what subsection (6) either means or does not mean.

Mrs. Rumbold, the Under-Secretary, at col. 360 on the same day as the quotation I have just given from Mr. Waldegrave, said: I understand that the code of practice will be similar to the Highway Code, and could be taken into account by a court defining what is balance and what is not". That leads me to what the noble and learned Lord, Lord Denning, said. This is what the ordinary person will read into this, that it is a statutory requirement. They will not read into this that it is guidance for which we are asking. The noble Lord, Lord Harmar-Nicholls, said that there must be some form of guidance; guidance is necessary. That is what the provisions of both Amendments Nos. 16 and 17 give—guidance. We want guidance to be given to the local authorities.

There will be points arising as to the propriety of the whole of Clause 4. Obviously we must discuss the question of the codes now because it is very important that we decide on two things. Do we believe that we do not trust the local authority associations to exercise self-regulation? That is what Widdicombe asks for; and the Government have not responded as to why they have no faith in that. If we reject self-regulation, what is to be the status of the code? We have to take into account what the legal gentlemen have said about this.

Whatever else happens, I hope that we shall support Amendment No. 19 and take out from Clause 4 the whole of subsection (6) and give support to the other amendment.

Lord Bellwin

May I briefly intervene to say one thing on what the noble Lord, Lord Underhill, has just said. He asks: do we feel that we should not leave it to the local authority associations to impose self-regulation? But the local authority associations have little or no influence upon many authorities who at the present time act in total contradiction of what the majority of the people in these associations would like to do. We delude ourselves if we simply accept that there are authorities in the country today who will take the slightest notice of any pious hope that there be self-regulation. It is so naive to assume that the ratepayers in some of these authorities—like Hackney and other extreme Left-wing authorities—should expect that your Lordships should decide that self-regulation by their people will be sufficient.

4.30 p.m.

What we are proposing here is simply guidance and nothing more than guidance; guidance which will have to be agreed in any case before it is imposed and before it is accepted. We are not even talking about a code of practice which calls for a legal sanction of any kind. That was made clear by my noble friend the Minister in what I thought was a splendid exposition of the whole position. I have to say that I cannot believe that we shall accept that there are not authorities in the country today who will laugh at the suggestion that they will take the slightest notice of responsible self-regulation.

Lord Elton

Before my noble friend winds up perhaps I may—as this is a Committee stage debate—respond to a couple of points made by the noble Lord, Lord Underhill. The noble Lord pointed out that Widdicombe would prefer a voluntary route, and I quite understand that point of view. I have read paragraph 218 to which the noble Lord directed our attention. It says: We believe that tone and presentation is important, but that it would undoubtedly be best if it were the subject of self-regulation". However, Widdicombe goes on to say: We are not convinced that the options we have so far considered offer a workable means of self-regulation". No one has told us how the Secretary of State can fulfil the expectations which Parliament and the public have put upon him as regards providing a code of practice which will act as a standard of good practice. How can you expect the Secretary of State to discharge that function if you do not give him even the permissive words in the Bill which we propose; namely: The Secretary of State may issue one or more codes". That is all that we ask. It is not, with respect, relevant to the debate, but the noble Lord raised it and it may be in your Lordships' minds as you address yourselves to the proper question of the proper status of this code. I shall not bore your Lordships by going all over it again, but the status is simply something which the council must have in mind when it decides on matters of publicity and on whether to spend your money and mine and that of the ratepayers. That is their fiduciary duty and we ask no more.

Lord Underhill

As this is the Committee stage I must reply to the points made by the noble Lord the Minister. Let us consider what Widdicombe says in paragraph 242. It says: No generally applicable effective means of achieving this"— that is, the self-regulatory code— has so far been produced in evidence or emerged from our discussions. We propose to consider this particular aspect further with the local authority associations". However, it is because of the Government's action in bringing forward what has been described as a "cockshy" that Widdicombe said that it would no longer have discussions with the associations on that particular matter. In my view that is a crying shame because I think Widdicombe should have continued to have discussions with the local authority associations on whether or not there should be self-regulation.

Lord Elton

The Government are carrying on those discussions and I was taking part in them myself last week. Nothing is lost.

Lord Campbell of Alloway

I thank all noble Lords who have taken part in the debate on Amendment No. 16. As my noble friend the Minister has rightly said, the issue is not whether we should have codes of practice at all—that matter arises on the question of whether or not Clause 4 shall stand part, but it does not arise on this amendment. Indeed, matters of self-regulation, to which my noble friend Lord Bellwin referred, also arise in that context.

What we are concerned with here—and it really is a non-emotive matter although of course it can be made an emotive one—is the clarity of the status of the code. I have not sought to import any tone of emotion into my contribution in the Committee.

The problem is that there is a considerable source of confusion, and I say that in the kindest way to my noble friend Lord Harmar-Nicholls. His speech, which was redolent with a series of misconceptions, only went to enforce my point about how necessary it is to have a measure of clarity in this regard. At one point he was even driven, with all his experience in another place—and I do not denigrate that but applaud it—having dealt with legislation for years and years, to get the position totally wrong, because he thought that these codes were in fact to have legal efficacy. If my noble friend can make that mistake in total good faith having attended to the matter, how are members of the public to seek any measure of clarity at all?

This is not the time to deal with Lord Airedale's conception of the reasoning of the decision in Puhlhofer or my noble friend the Minister's reservation in that regard. This is not a matter, as I have said, for a tutorial.

Lord Elton

I was merely saying that, as the noble Lord rested a great deal of his case on the three judgments, I should have thought that whether or not they are about the matter would be very relevant.

Lord Campbell of Alloway

Before my noble friend intervened, I was about to take the liberty to make a point about that to your Lordships. My noble friend the Minister seems to be under a total misapprehension, and that of course is a matter for his advisers. Let me give an example. He says that the case of In re. W has nothing to do with the matter at all. In that case there was a code of guidance along the lines of "shall have regard to" directed to a local authority under Section 12 of the Child Care Act 1980. It concerned a code of guidance to the local authority as to how it should have regard to the requirements and the interests of the wider family of a child in care. It was held in that decision, in particular in Lord Scarman's leading judgment, that that afforded the members of the wider family no right to be heard. So much for the value of "shall have regard to" as giving any enforceable rights in codes.

I only mention that to highlight the measure of my noble friend the Minister's misconception of this matter and I rely very much not upon my own reading of the cases, but upon the way in which, having studied them, the noble and learned Lord, Lord Denning, has mentioned the matter and put it before the Committee today.

This is not the time to go into the matter further save to say, with the utmost respect to my noble friend the Minister, that he has got it totally wrong.

Lord Elton

As my noble friend is indulging in emphatic statements of that kind, my advice (and I do not rely upon my reading of the cases, either) is that in the case of In re W there was no reference to "shall have regard". Perhaps we do not want to pursue the matter further. The point that matters is that the common man understands that when the council decides how to spend his money it ought to think about the relevant facts, and this is one of them.

Lord Campbell of Alloway

If my noble friend will look at Section 12 of the 1980 Act he will find the words, "shall have regard". However, let us leave the matter. We cannot go on arguing law on the Floor of the Committee.

The wishes of the noble Lord, Lord Beloff, to have a legally enforceable code beyond Clause 2, are again, with respect, beside the point. It was not the point which I was making and it does not touch upon the merit of the amendment as such, as I think my noble friend Lord Beloff would concede.

What we have to do—and we must do it as part of the revisory role—is to ensure that the status of the code as a code for guidance only, is stated with total clarity on the face of the statute. The fact that the agreement of your Lordships' House will be sought when the instrument is laid, in no way affects status and in no way affects legal efficacy. It is far too late. Once Clause 4 in its present form has received Royal Assent, then that is that—that stamps and determines its status.

My noble friend the Minister opposes this attempt at clarification. The very fact that he does so surely raises a hint of suspicion. Why should my noble friend the Minister oppose an attempt to render totally plain what is on the face of the statute (if the statute is to mean anything) a recommended practice? If it is only a recommended practice, it should clearly be, on the face of those words, an advisory code for guidance. If it is not what the statute says, all the more reason why the amendment should be accepted and we should get this plain. To say that it is a relevant factor as part of a fiduciary issue or duty, as my noble friend the Minister has said, may be fine words; but where does it take one? Is it intended to import some form of legal efficacy? If it is, that is contrary to the plain reading of the statute. Hence again the importance and value of clarity in this amendment.

Lastly, having dealt sufficiently with Puhlhofer, we come to "familiar words". "Oh", says my noble friend the Minister. "Here we have those familiar words `have regard to'. Because they are familiar, let us have them again". But these familiar words have no meaning. At the moment as the result of the debate in your Lordships' House on 15th January—my noble and learned friend the Lord Advocate, in accordance with his promise to consult his colleagues, included his right honourable and learned friend the Attorney-General—and the concern expressed in your Lordships' House about resort to these familiar words in regard to a local authority in the realm of public or administrative law, the matter is under consideration.

In all those circumstances and as I understand that my noble friend will not give any form of assurance to consider these amendments on their merits, I think I am forced to take the opinion of the Committee.

4.43 p.m.

On Question, Whether the said amendment (No. 16) shall be agreed to?

Their Lordships divided: Contents, 119; Not-Contents, 108.

DIVISION NO. 1
CONTENTS
Allen of Abbeydale, L. Jenkins of Putney, L.
Amherst, E. John-Mackie, L.
Ardwick, L. Kaldor, L.
Attlee, E. Kennet, L.
Aylestone, L. Kilbracken, L.
Banks, L. Kilmarnock, L.
Barnett, L. Kinloss, Ly.
Birk, B. Lawrence, L.
Birmingham, Bp. Leatherland, L.
Blyton, L. Listowel, E.
Boston of Faversham, L. Lloyd of Hampstead, L.
Bottomley, L. Lloyd of Kilgerran, L.
Brockway, L. Lloyd-George of Dwyfor, E.
Brooks of Tremorfa, L. Lockwood, B.
Bruce of Donington, L. Lovell-Davis, L.
Buckmaster, V. Mackie of Benshie, L.
Burton of Coventry, B. McNair, L.
Campbell of Alloway, L. [Teller.] Mayhew, L.
Mishcon, L.
Campbell of Eskan, L. Morton of Shuna, L.
Caradon, L. Mountevans, L.
Carmichael of Kelvingrove, L. Mulley, L.
Cledwyn of Penrhos, L. Murray of Epping Forest, L.
Collison, L. Nicol, B.
Crawshaw of Aintree, L. Oram, L.
David, B. Phillips, B.
Davies of Penrhys, L. Ponsonby of Shulbrede, L.
Dean of Beswick, L. Porritt, L.
Denington, B. Rathcreedan, L.
Denning, L. Reilly, L.
Diamond, L. Ritchie of Dundee, L.
Dowding, L. Roberthall, L.
Edmund-Davies, L. Ross of Marnock, L.
Elwyn-Jones, L. Rugby, L.
Elystan-Morgan, L. Saltoun of Abernethy, Ly.
Ennals, L. Seear, B.
Ewart-Biggs, B. Seebohm, L.
Falkender, B. Serota, B.
Falkland, V. Shackleton, L.
Fisher of Rednal, B. Shaughnessy, L.
Fitt, L. Shepherd, L.
Gallacher, L. Stallard, L.
Galpern, L. Stedman, B.
Gladwyn, L. Stewart of Fulham, L.
Glenamara, L. Stoddart of Swindon, L.
Graham of Edmonton, L. Strabolgi, L.
Hampton, L. Taylor of Blackburn, L.
Hanworth, V. Taylor of Gryfe, L.
Hatch of Lusby, L. Taylor of Mansfield, L.
Hayter, L. Tordoff, L.
Henderson of Brompton, L. [Teller.] Turner of Camden, B.
Underhill, L.
Hirshfield, L. Vernon, L.
Houghton of Sowerby, L. Wallace of Coslany, L.
Howie of Troon, L. Wedderburn of Charlton, L.
Hughes, L. Wells-Pestell, L.
Hylton-Foster, B. White, B.
Ingleby, V. Wigoder, L.
Irving of Dartford, L. Williams of Elvel, L.
Jacques, L. Wilson of Rievaulx, L.
Jeger, B.
NOT-CONTENTS
Airey of Abingdon, B. Auckland, L.
Allerton, L. Belhaven and Stenton, L.
Arran, E. Bellwin, L.
Beloff, L. Lauderdale, E.
Belstead, L. Layton, L.
Bessborough, E. Lindsey and Abingdon, E.
Biddulph, L. Long, V.
Blake, L. Lothian, M.
Boardman, L. Lucas of Chilworth, L.
Boyd-Carpenter, L. Lyell, L.
Brabazon of Tara, L. McAlpine of Moffat, L.
Brougham and Vaux, L. Macleod of Borve, B.
Broxbourne, L. Mancroft, L.
Butterworth, L. Margadale, L.
Caithness, E. Marley, L.
Cameron of Lochbroom, L. Maude of Stratford-upon-Avon, L.
Campbell of Croy, L.
Carnegy of Lour, B. Merrivale, L.
Carnock, L. Mersey, V.
Clitheroe, L. Milverton, L.
Coleraine, L. Mottistone, L.
Cottesloe, L. Murton of Lindisfarne, L.
Cox, B. Newall, L.
Craigavon, V. Nugent of Guildford, L.
Cullen of Ashbourne, L. O'Brien of Lothbury, L.
Davidson, V. Onslow, E.
Denham, L. [Teller.] Orkney, E.
Drumalbyn, L. Pender, L.
Eccles, v. Portland, D.
Ellenborough, L. Rankeillour, L.
Elliot of Harwood, B. Reay, L.
Elliott of Morpeth, L. Rodney, L.
Elton, L. St. Davids, V.
Erne, E. Selkirk, E.
Faithfull, B. Skelmersdale, L.
Ferrers, E. Strathspey, L.
Fortescue, E. Swansea, L.
Fraser of Kilmorack, L. Swinton, E. [Teller.]
Gainford, L. Terrington, L.
Glanusk, L. Teviot, L.
Glenarthur, L. Teynham, L.
Gray of Contin, L. Thorneycroft, L.
Gridley, L. Tranmire, L.
Haig, E. Trefgarne, L.
Hailsham of Saint Marylebone, L. Trenchard, V.
Trumpington, B.
Harmar-Nicholls, L. Vaux of Harrowden, L.
Henley, L. Vivian, L.
Hives, L. Waldegrave, E.
Home of the Hirsel, L. Ward of Witley, V.
Hood, V. Westbury, L.
Hooper, B. Whitelaw, V.
Killearn, L. Wise, L.
Kimball, L. Wolfson, L.
Lane-Fox, B. Young of Graffham, L.

Resolved in the affirmative, and amendment agreed to accordingly.

[Amendment No. 17 not moved.]

Lord Brabazon of Tara

My Lords, I beg to move that the House do now resume.

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

House resumed.