§ House again in Committee on Clause 5.
Lord Elliott of Morpeth moved Amendment No. 20:
Page 4, line 13, at end insert—
("(5) The Secretary of State, consulting such associations of local authorities as appear to him to be concerned and any local authority with whom consultation appears to him to be desirable, may specify in a direction those categories of publicity which a local authority does not need to include in the account referred to in subsection (1) above.").
§ The noble Lord said: This is a probing amendment and it is fair to say that it raises technical issues rather than questions of principle. However, the issues are of considerable importance to those who work in local government, and consequently I should like to know the Minister's views.
§ The amendment proposes an addition to Clause 5. As your Lordships know, this is the clause which makes provision for each local authority to keep an account of its expenditure on publicity. It is a provision with which I wholly agree and support. It must be right to put an end to the position in which we find ourselves at present where most local authorities do not even know how much they spend on publicity, let alone seek to account to the public for the way in which the money has been spent. Nevertheless, I believe that we must take care to ensure that in seeking to cure a problem in local government we do not go beyond the practical requirements of public accountability.
§ I understand why the definition of "publicity" is wide in the context of the prohibition of party-political propaganda. The range of material we have seen used by some authorities is extensive and it includes some techniques that are very new to the local government publicity scene. I referred to some of those techniques which are being practised by, among other authorities, the Tyne and Wear County Council when we considered Clause 2.
My concern is that the clause in its present form would in effect require authorities to include within a separate account spending on the whole of this wide range of material. At present the account would include all publicity expenditure, defined as it is in Clause 6 as,
any communication, in whatever form, addressed to the public at large or to a section of the public".
I can, as I have already said, fully understand why the definition is wide. We have sought throughout our proceedings to avoid the loopholes which unscrupulous local authorities could exploit for party political advantage, and that is what we are seeking to avoid. However, I question whether the definition of "publicity" needs to be quite so wide for the purpose of keeping a publicity account.
§ As provided for by Clause 5 at the moment, local authorities would be required to include in their account expenditure on items such as a circular letter from a headmaster to the parents of his pupils. I have been told that it is possible for a floral clock in the municipal park also to fall within the definition. I can just imagine the odd local authority which might even include in some way a floral clock for the purpose of party propaganda. However, I suggest that there is a case for defining more closely the parameters of the publicity account. It does not seem to me that the inclusion of essentially peripheral items will be of any assistance in terms of ensuring local accountability for spending on publicity. That is what we believe to be the purpose of Clause 5. If there is no means of setting commonsense limits to the publicity account, there must be a grave risk that proper accounting practices may be distorted and unnecessary and very costly administrative tasks imposed on local authorities.
§ Therefore, to summarise, whereas we want an all-inclusive definition of publicity for the purposes of party political prohibition, surely it is unreasonable to be exhaustive in trawling a boat through local authorities' expenditure looking for items of expenditure on publicity which are minute. In my view there is a strong case for excluding peripheral and minor items from the account. I should therefore be very grateful indeed if the Minister could give me some assurances on this matter and would comment on my proposal. My proposal does not suggest any specific exclusions from the account but would give the Secretary of State the power to make such exclusions after consultation with local authorities. I beg to move.
§ Baroness David
I think that this is an interesting amendment. It shows an awareness of the problems which local authorities are facing when they have to prepare for this Bill becoming an Act. Neither we nor the associations oppose the principle of local authorities being accountable for their actions.
Widdicombe suggested that local accountability could be enhanced by separate accounting arrangements for pubilicity expenditure. The same method of accountability already exists in relation to expenditure incurred under Section 137. I understand that the associations are content with the specific requirements of Clause 5. What concerns local government is the practicality of the proposals.
In coming to a view on the principle of what has become Clause 5, Widdicombe stated in paragraph 202:The conclusion we draw is that it is feasible separately to account for publicity expenditure provided that some definitional guidelines are established. The task might be more difficult if it applied to expenditure under section 111 … as well as section 142".On balance though, Widdicombe came down quite firmly towards what appears to be the Government's view in Clause 5:In principle, we believe that all expenditure on information and publicity activities should be clearly accounted for, even though there might be greater technical difficulties in the case of service-related expenditure under section 111".That is from paragraph 204.
But the view of the local authority associations is that both Widdicombe and the Government have 896 under-estimated the practical difficulties involved in accounting for expenditure, particularly in the absence from the Bill of definitional guidelines. Widdicombe began to recognise the problem by considering whether Section 111 publicity should be within the account. Such publicity would be that which was incidental to the delivery of services.
The associations agree that accountability is better served by not excluding such incidental publicity. The major difficulty that this clause will cause local authorities comes from the very broad definition of publicity in Clause 6(3); that isany communciation, in whatever form, addressed to the public at large or to a section of the public".The Committee should consider first just what such a definition could include: statutory notices in respect of planning matters—highways, notices of audit accounts and so on—all the things which seem always to fill a page or two of any local newspaper; communications sent to parents of schoolchildren, which the noble Lord has mentioned; prospectuses of schools; letters to council tenants; letters to residents; posters giving details of refuse collection over bank holiday periods; staff advertisements; invitations to tender for contracts; committee and council papers—particularly given their wider availabilty under the Local Government (Access to Information) Act 1985; painting of council vehicles with corporate identity logos, et cetera. The breadth of the definition of "publicity" will cause problems.
Accounting systems are not geared up to provide information which is as detailed as this. Take the example of a school head who decides to send a letter (or any communication) to the parents of the school's pupils, which is a section of the public. That letter would be produced on school paper which has already been charged to the school as "educational supplies". Does that head then have to notify the LEA treasurer's department that the cost of one ream of paper is to be debited to "publicity" and credited to "educational supplies"? And should the school also have to include school office staff time? Recent case law on Section 137 indicates that staff time would have to be charged to publicity even if no extra staff expenses were incurred.
This problem was raised in another place. An amendment in Committee attempted to restrict the separate account to publicity covered with the code of practice under Clause 4. In rejecting the amendment, Mr. Waldegrave said:It would be inappropriate for the code to narrow the coverage of the account that is laid down in the Bill".—[Official Report, Commons, Standing Committee A, 19/12/85; col. 400].In his rejection, Mr. Waldegrave did not really address the serious practical difficulties that this clause presents. The amendment of the noble Lord, Lord Elliott, was, he said, a probing amendment, but it would provide a means of remedying the situation. We ask the Government to give consideration to the difficulties which are likely to be faced by local authorities and to accept the amendment, and then talk to local government so that the principle of accountability for publicity expenditure is not carried ad absurdam. I hope very much that the Minister will 897 feel able to accept this amendment, which would give a great deal of help to local authorities in carrying out their duties under this Bill when it becomes an Act.
§ Lord Skelmersdale
I am grateful to my noble friend Lord Elliott of Morpeth for raising this issue. I agree, perhaps for the first time this evening, with the noble Baroness, Lady David, that this is an interesting amendment. But I should perhaps put it in the context of Clause 5, which requires local authorities to keep a separate account of their expenditure on publicity and which makes an important step toward accountability in local authorities' publicity spending.
At present, as Widdicombe made clear, few if any local authorities keep a separate centralised record of all expenditure on public information, advertising and consultation activities. As a consequence, the inquiry was unable to make a firm estimate of the total amount of local authority expenditure on publicity. This clause will rectify this worrying state of affairs. As to the scope of the word "publicity" there is an amendment, No. 23, still to come which will explain the position to what I hope will be the satisfaction of the whole Committee.
The Widdicombe inquiry recognised that authorities might none the less face some technical difficulty in including some expenditure in an account. However, they believed that in principle all expenditure on information and publicity activities should be clearly accounted for despite these difficulties. They believed, and the Government accept this, that the overall level of publicity expenditure by a local authority was a matter of legitimate public concern. This is why we have proposed the account provided for in Clause 5, and I have to say that the professional accounting body, CIPFA, considers that the Bill as drafted should present local authorities with no insuperable problems.
However—and this is where I come to my noble friend's amendment—it has been represented to us that such a definition of publicity may not be entirely suitable for application to the publicity account, on grounds which are very much the same as those which my noble friend and the noble Baroness, Lady David, outlined in their speeches. We should certainly not wish local authorities to have to engage in unnecessary effort and expense in including in the account more marginal elements of publicity expenditure that had no clear relevance in terms of public accountability—for example, regular circulars by schools to parents of schoolchildren in their care, and I am thinking particularly of one that I had the other day on sex education.
I can see that there may be cases where the inclusion of some items of expenditure in the publicity account would involve disproportionate expense—cases where the amounts involved are very small and/or accounting systems are very devolved As has been said, an example might be that of a school's expenditure on circular letters.
I accept the principle behind my noble friend's amendment that it would be sensible to take a reserve power to make specific exclusions from the definition of expenditure required to be included in the publicity account. We would, as his amendment proposes, wish to consult in detail with local authority representatives 898 before making such exclusions, including, as the noble Baroness said, incidental publicity.
I also consider that, as the amendment proposes, a direction by the Secretary of State is the most appropriate vehicle for making such exclusions. These are technical matters, and we would wish to retain the element of flexibility which a direction would allow. We might wish to alter the form of exclusions in the light of experience in keeping the account. For instance, if types of publicity which had traditionally been uncontroversial became used for controversial publicity or took on a greater prominence, it might in certain circumstances be appropriate to ensure that they were not excluded from the account.
If my noble friend agrees, I would ask him to withdraw his amendment so that we can consider it fully and produce a properly drafted amendment on Report to cover the points to which he, the noble Baroness and myself have alluded.
§ Lord Elliott of Morpeth
I am extremely grateful to the noble Baroness for her comments on the amendment that I have proposed. I have listened to my noble friend who, as he said, accepts the principle embodied in the amendment. He has made me feel quite happy that the matter will be looked at carefully in the future, as it was a probing amendment. In those circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 5 agreed to.
Lord Broxbourne moved Amendment No. 21:
After Clause 5, insert the following new clause:
§ ("Proceedings against local authority.
§ .—(1) Any elector or ratepayer in the area of a local authority may institute proceedings in the County Court or High Court against that authority in respect of a breach of any part of this Act.
§ (2) Proceedings may be instituted against any local authority for failing to make a rate as required by section 1 of this Act, or for publication or threatened publication of material contrary to section 2, or for disposal of an interest as mortgagee prohibited by sections 7 and 8.
§ (3) No order for costs may be made against any person instituting such proceedings unless the court is satisfied that the action was vexatious.").
§ The noble Lord said: It is following that introduction, with feelings of more than usual inadequacy, that I rise to move the amendment standing in the distinguished name of the noble Lord, Lord Chalfont. Unfortunately for us, he is unable to bring to your Lordships' Committee this evening his sage counsel and wise guidance from which we always profit so much. He is usefully, agreeably, and perhaps one might say enviably employed in warmer climes. Your Lordships may feel inclined to say O si sic omnes!
§ I am, however, a little comforted and encouraged from my feelings of personal inadequacy by the merits of the new clause which I am commending to your Lordships. Its merits are indeed so clear as to require no advocacy, fortunately no doubt. They should at one 899 strike a responsive chord in all right-thinking people. In that category I hope to include my noble friends the Ministers and the noble and learned Lords who are sitting at this time on the Opposition Front Bench. It would indeed be a sad moment for me to have to excise them from the category of right-thinking people because of any misguided opposition to the amendment.
§ Lord Broxbourne
I did not hear the intervention of the noble and learned Lord. Perhaps it was as well.
§ Lord Elwyn-Jones
I merely said, "You ain't heard nothing yet!", in the best parliamentary language.
§ Lord Broxbourne
In those, I shall not say happier, but more lucrative, days when the noble and learned Lord and I used to have exchanges in another context he was wont to express himself, if I may say so, in a more grandiose and dignified way which wholly became him.
The merits of the new clause are clear. It is concerned with enforcement of the law and is therefore of great importance. It is a truism that law, however well-intentioned, is only effective and meaningful in so far as it is enforceable. It follows therefore that those entrusted with the formulation of our laws should have close regard to their enforceability and should ensure that appropriate provisions are in operation when the legislation reaches the statute book. The question therefore arises: Does the Bill as at present drafted satisfy that requirement? In my submission the answer is, regretfully, no, or at any rate not in all respects.
May I draw attention in that context to the contrast between two clauses of the Bill, a contrast as strange as it is striking? Clause 5(1) requires local authorities to keep separate accounts of expenditure on publicity, a very proper requirement. Subsection (2) gives a right of inspection to the citizen, again a very proper requirement. Subsection (3) provides for enforceability to protect the exercise of the citizen's right. Clause 5 follows the normal and proper practice of providing for enforceability of its statutory provisions. But in Clause 2, an even more important clause, there is no provision for enforceability. That, I submit, is a clear and regrettable omission.
Because of that omission only the private citizen on his own initiative in the public interest can enforce the law. Subsection (1) of our proposed new clause gives him that right in clear and unequivocal terms. Any elector or ratepayer in the area of a local authority may institute proceedings in the county court or High Court against that authority in respect of a breach of any part of that Act. It is a right which is enjoyed and recently bestowed in the Local Government (Interim Provisions) Act 1984 and the Local Government Act 1985. It is therefore a desirable provision and one with respectable precedents.
But it is also essential that citizens to whom alone the enforcement of the law is entrusted should not be deterred from serving the public interest by apprehension of incurring financial penalty thereby. We seek to 900 meet that point by subsection (3) of our proposed new clause:No order for costs may be made against any person instituting such proceedings unless the court is satisfied that the action was vexatious".8.30 p.m.
This provision is in line with modern thinking in regard to costs. The principle that costs follow the event, if not more honoured in the breach than in the observance—that would be over-stating the case—is now at any rate considerably modified, as noble and learned Lords will know. For example, there is no award of costs against an unsuccessful litigant who enjoys legal aid. There is no award of costs against such a litigant in industrial tribunal cases. There is no award of costs in claims made in the small claims court. Would not the proceedings brought by a private citizen in the context of this Bill, he alone having the opportunity and the responsibility for enforcement, as I have said, be in consimili casu with those other precedents?
I submit that this saving provision in our proposed new clause as to protection against a deterrent award of costs is in line with current thinking and common sense. I hope, as I said at the beginning, that Ministers will be able to accept the amendment or at least promise sympathetic consideration of the principle embodied therein. I beg to move.
§ Lord Silkin of Dulwich
I am accustomed to the honeyed words of the noble Lord, Lord Broxbourne, both here and in other tribunals where I have had, sometimes the misfortune, sometimes the good fortune, to oppose him. On this occasion, I am afraid that I have to exclude myself from the category of right-thinking Members of the Committee, as defined by the noble Lord, and also possibly by the noble Lord, Lord Chalfont, whose amendment this is and who is doubtless encouraging our representatives in another sphere, a more sporting sphere than that covered by this legislation at the moment.
There are two reasons why I would oppose this new clause, the first being that it is unnecessary and the second that it is undesirable. It is unnecessary because while I of course accept (and I am sure we all accept) that there must be provision for ensuring that a law that is passed by Parliament is enforced against those who break it or those who threaten to break it, that situation will exist irrespective of whether or not this clause becomes part of the Act.
There are two ways in particular whereby enforcement can take place. First, those who act out of accord with the legislation, whether under Sections 1, 2, 7 or 8, will be acting outside the powers of the local authority concerned. Accordingly, there will be the normal remedy of surcharge and, if necessary, disqualification against those who cause a local authority to incur expenditure that is in excess of its powers. That is not the only means by which the Act can be enforced. I need not tell the noble Lord, because he is very well aware, that there is also the relator action that can be brought with the consent of the Attorney-General to restrain among others local authorities who are committing, or who are threatening to commit, a breach of the law.
901 The noble Lord will know much better than I do the passage in which this is explained. It appears in Halsbury's Laws of England, volume 37, at paragraph 230, which, as I happen to have it handy, it is perhaps worthwhile referring to for the benefit of those who are not so familiar with the mysteries of the relator action as the noble Lord, Lord Broxbourne. It says:A relator action is one brought to restrain interference with a public right, whether committed or threatened, or to compel the performance of a public duty or to abate a public nuisance, and in such an action the Attorney General is a necessary party. The action is brought in the name of the Attorney General at the relation of the person or body seeking to prevent the commission or continuation of the public wrong. Although he is the nominal plaintiff, the Attorney General is not deemed to be a party to the proceedings, so as to be liable for costs, but the relator is liable for costs".I shall come to the point on costs in a moment.
The paragraph goes on to say:The Attorney General is a necessary party in a relator action because he is the person recognised by public law as entitled to represent the public in a court of justice and he alone can maintain a suit ex officio or ex relatione for a declaration as to public rights. In this respect his jurisdiction is absolute and the court has no power to review his decision".There is an exception to that rule where someone is seeking to restrain interference with a right where the plaintiff has some personal direct interest but not simply as a ratepayer or as an elector, the words of the clause. The principle that the Attorney-General should have control over proceedings of this kind is one that has been adhered to for a very long time, as the noble Lord knows. It has been fairly recently reinforced by the Judicial Committee of your Lordships' House in the case of Gouriet, as some noble Lords may recall. It is extremely important, in my view, that the principle behind the Attorney-General's right and indeed duty to uphold the public interest, not for any party political reason, but in the interests of the public generally, should be adhered to. I see no reason whatever why this particular case should be made an exception to that general rule. The noble Lord has not explained to the Committee why he suggests that this should be so.
I say that it is not only unnecessary but undesirable. I submit to the Committee that it is undesirable just because it takes this particular subject matter outside a rule that has been hallowed by practice and that is well understood and puts it into a special category in respect of those who could not normally sue themselves, both electors and ratepayers. I am not certain, incidentally, why an elector as distinct from a ratepayer is included. Nonetheless, that is what is proposed. Any one of those, elector or ratepayer, will, without the consent of the Attorney-General, be entitled in this one case to institute proceedings. I find it difficult to understand why this should be so, why such an exception should be made. I suggest that it is highly undesirable that this legislation should be singled out in that way.
Similarly, when one comes to subsection (3) of the clause, one finds a very unusual provision, one that I cannot recollect having seen elsewhere, with regard to costs: a provision that plainly is intended or would be calculated at any rate to encourage persons who are electors or ratepayers to take proceedings, if this clause became law, in every case short of the case where it could be said that the action is vexatious. I can see no possible reason for that.
902 The court, if this provision became law, would have the normal power of the High Court or county court to deal with costs within its discretion. It would take into account all the matters which induced the litigant to bring the proceedings and, if it were in accordance with justice that no order for costs should be made against him, then the court would so order. The noble Lord's advocacy of subsection (3) would appear to be an advocacy casting grave doubts on powers of discretion of the courts to deal with these matters in an equitable way.
In his opening remarks the noble Lord compared the provisions of subsection (3) of Clause 5 and suggested that this clause would be in similar state. However, subsection (3) is a criminal provision. It is aimed at those who illegally obstruct somebody in the exercise of the rights conferred by the section to inspect the account which is specifically given to the public. Any person interested may inspect the account. Subsection 3 says that anyone who wilfully or intentionally obstructs such an exercise of rights will be committing a criminal offence. That is a very different situation from that envisaged by this clause. There is no question of obstructing a private individual who wishes to exercise his rights. We are not here dealing with a criminal penalty but some kind of civil procedure, the precise nature of which is not wholly clear from the clause but which, I take it, is intended to enable the plaintiff to obtain either an injunction or perhaps a mandatory order; I assume not a declaration because that would not normally be granted.
I come back to the point that the clause is not necessary, and that it is ill-advised in making distinctions in relation to this legislation where the customary procedure has been hallowed by time. I hope that the Committee will not accept the new clause.
§ Lord Mottistone
Perhaps I may speak to my amendment as well and answer most of the points raised by the noble and learned Lord, Lord Silkin. I appreciate that he has been an Attorney-General and therefore knew a lot about what that involved.
Perhaps I may make two points. The first is with regard to the question: why the elector or ratepayer? My noble friend Lord Broxbourne made the point that there is provision in the Local Government (Interim Provisions) Act 1984 and the Local Government Act 1985 to empower electors to go to court against breaches of those Acts. There is also such power in Section 91 of the 1972 Act. There is therefore considerable precedent for electors.
Your Lordships may ask: why ratepayers? The answer is that, as I see it, this Bill is designed to protect the ratepayer against misuse of his money because he is the one who is paying the rates. It therefore seems only reasonable that he too should have special provision made for him.
The noble and learned Lord, Lord Silkin, asks why should there be subsection (3)—implying that costs in the ordinary course will not be made against a person instituting such proceedings. The answer to that is that there have been good examples and I can quote two of them to the Committee where, under the other legislation that I have quoted, people have been 903 put off taking their councils to court for just that reason—that they cannot risk the costs.
For example, last year Hackney ratepayers were advised by a leading firm of solicitors that Hackney Council was breaking the existing law with its publicity campaign. A barrister was ready to take the case. They were ready to meet their own costs from their own money but they were frightened off because had they lost the council's costs would have been crippling.
I give another example. Some years ago a group of councillors on Wandsworth Council decided to sue that council. The Labour controlled council instructed its officers to fight the case as hard as possible. Again, these councillors had to abandon their action. They subsequently came to power in Wandsworth and were able to see the papers. They discovered that the council had been advised by counsel that they would lose the case and had only ordered officers to fight it in the hope that the plaintiff councillors would be thus deterred by the risk of costs—which of course is what happened.
It is therefore for those kinds of reasons that we need something like subsection (3). We need something like this new clause to provide the protection that the ordinary elector and ratepayer requires in order to protect (in the case of the ratepayer) his money from being mis-spent in the terms that this Bill seeks to provide.
I trust that I have answered the points that the noble and learned Lord, Lord Silkin, sought to put before the Committee and that you will agree that there needs to be something similar in the Bill to provide the protection which the ordinary person requires to implement the purposes of this Bill.
§ Lord Campbell of Alloway
I support most of what my noble friend Lord Mottistone has said, particularly with regard to costs. I hope that my noble friend the Minister will consider again at leisure where the justice lies in this situation, having regard to the examples—which are but a few—which my noble friend Lord Mottistone has given.
I hope that the clause as it stands, would not be put to a Division. In its present form it raises certain difficulties. My noble friend Lord Broxbourne referred to this as being requisite as an adjunct to the enforceability under Clause 2 which is Part II of the Bill. I see the force of that point. However, I wonder, with the greatest respect, whether it is a necessary adjunct to enforceability under Part I or Part III—the setting of the rate or the mortgages. I should have thought, having listened with great attention to everything that has been said in this debate, that there is something to be said for limiting the incidence of the clause as an adjunct to enforceability under Clause 2 and leaving enforceability under Part I and Part III to the very type of relator action to which the noble and learned Lord, Lord Silkin, referred.
However, I must not take time at this hour of night. I think that there is something in the spirit of this amendment that is worthy of consideration but I could not vote for it in its present form and I hope that it will not be pressed.
§ Lord Morton of Shuna
As a Scot I find this new clause rather difficult to understand because in Scotland we do not have a county court. The High Court in Scotland is simply a criminal court and it is far from clear in what court the elector or ratepayer is to sue if he wishes to do so in Scotland. Is it the intention of the noble Lord moving this clause that Scottish electors and ratepayers shall have to go to Carlisle to sue in the nearest county court? If so, what is the jurisdiction against the local authority?
§ Lord Broxbourne
If the noble Lord will allow me, we are here concerned, as my noble friend Lord Campbell of Alloway has said, with Part II of the Bill. The noble Lord will see that that does not apply in Scotland.
§ Lord Morton of Shuna
With respect, if one looks at Clause 6 of the Bill one sees that it applies to local authorities. Subsection (2) says:'Local authority' means—It seems to me that Part II applies specifically to Scotland and there is no provision that applies it to a Scottish court.
- (a) in England and Wales …
- (b) in Scotland, a regional, islands or district council".
§ Lord Elwyn-Jones
I rise briefly to support what has been said by my noble and learned friends and the reservations which were expressed by the noble Lord, Lord Campbell of Alloway. The first difficulty which occurs to me as regards what is proposed is that, as my noble and learned friend Lord Silkin of Dulwich said, it seems to be based on a misconception of the effect of Clause 2, which is to make certain types of publicity ultra vires. The making of such types of publicity would render the transgressor liable to surcharge and all else that follows. Therefore, there is already a public remedy at any rate against transgressions of that kind.
With regard to subsection (1), the difficulty that occurs to me is that no specific relief is claimed that could be achieved by the elector or the ratepayer. I know the noble and learned Lord too well; he would not embark upon what the lawyers call a brutum fulmen— threat with no possible serious consequences lying behind it.
As your Lordships will see, there is no relief sought. An elector or ratepayer may institute proceedings against the relevant authority. What kind of proceedings? To achieve what purpose? We do not know; we are not told, even in the background of the immense knowledge of the noble and learned Lord who rejoices in situations of this kind. So there is a measure to introduce that which has no reality in practice.
A bare declaration would not avail the elector or the ratepayer. I have armed myself with a copy of the Annual Practice and it provides as follows:Although the remedy by way of declaration"—which is what the noble and learned Lord may have had in mind—is wide and flexible, yet it will not be granted to a plaintiff whose claim is too indirect and insubstantial and would not give him relief in any real sense—that is to say, relieve him from any liability or disadvantage or difficulty".It seems to me, with great respect to the noble and 905 learned Lord, that this is a measure or a proposal without teeth and without effect.
Subsection (3) concerns costs. What is proposed goes completely against principles. As the noble and learned Lord knows better than I do, costs should follow the event except in very extraordinary and exceptional circumstances, and in any event the final decision on costs should above all lie upon the trial judges. It is a well-established practice in certain hard cases of the type to which the noble Lord, Lord Mottistone, has referred. I fear it is one of the inescapable consequences of our proceedings which do not provide for any real remedy that would protect the unsuccessful plaintiff. Like the citizen in litigation throughout the country, he must take the risk. However, as it stands, to restrict costs in the way proposed is contrary to principle and would shackle and limit the discretion of the trial judge. Therefore, I join in opposing the proposal.
§ Lord Elton
As I understand the criteria of right-mindedness as set out so eloquently by my noble friend, I think that Her Majesty's Government are right-minded. At least I can say that my noble friend has struck a resonant chord because we share his anxiety that there should be effective rights of challenge to the decisions of local authorities.
My noble friend Lord Mottistone quoted the Local Government Finance Act 1982 as an example of how that challenge could be arranged in a particular area. I must tell him that I believe that there is no other example of the procedure, which I shall not write out here but which is the procedure followed under that Act and, therefore, I think that the precedent is probably not the best one.
We made plain our concern about the necessity of effective rights of challenge in our evidence to the Widdicombe inquiry which, as regards their main report, had been asked to pay particular attention to the question of proper accountability for decision-making. They made it clear in their interim report at paragraph 243 that one of the questions which they will be considering is the rights of the public to challenge local authorities' activities and decisions. They are looking to ensure:that the citizen has prompt, effective, inexpensive and local remedy for dealing with complaints about local authorities".The committee of inquiry recognised—and I think that we must also recognise—that this is a major issue. It goes well beyond the scope of the present Bill and the relatively narrow range of matters covered in it. It would, in our view, be inappropriate to include the proposed provision for that reason.
As the noble and learned Lord, Lord Silkin of Dulwich, has referred to this matter, I should perhaps refer to the district auditor as a means of redress. The procedure for that type of redress may have disadvantages, but it also has several advantages. It costs the objector nothing which, for obvious reasons, will appeal to my noble friend, and the responsibility to investigate is placed upon the auditor who has wide powers to scrutinise the council's internal documents. It thus enables an effective investigation without the complainant incurring major costs. It also provides 906 protection against weak and vexatious cases being brought to court. Much of that could no doubt be said of the relator procedure which the noble and learned Lord has so clearly set before your Lordships.
My noble friend pointed out that individuals are put off instituting cases of judicial review because of the high costs involved and because they fear that the councils' costs may be awarded against them in the event of their losing the case. Again the Government share these concerns, but again they apply to all cases of public challenge through the courts and not simply to these. That again leads me to suggest that this Bill is not an appropriate vehicle for the solution of this concern.
I should remind your Lordships that my honourable friend the Minister for Local Government summed up the matter in response to similar amendments in another place by saying that we cannot charge into major reforms of the system of redress under civil law without having considered the matter a little more carefully. That is why we have asked the Widdicombe inquiry to consider them; and even if they had already reported, they would not, we think, be appropriate to put into the Bill, for the reasons which I have given. They are issues which must be addressed in the wider context in which Widdicombe is considering them. We look forward to his report which is expected in two or three months, and shall certainly consider very carefully the recommendations made in the report—it will be a report of greater importance in this particular area. I think that we ought to wait until we have the report because it would be unwise now to legislate on a matter which, I agree, deserves the attention of Parliament, even if this were the appropriate vehicle.
Given that my noble friend's concerns and ours go so well beyond the matters that are strictly relevant to this small piece of legislation, I ask him to accept our concern and good intentions and await, if appropriate, a later occasion and a different vehicle.
§ 9 p.m.
§ Lord Broxbourne
It would be remiss of me not to take up a moment or two of your Lordships' valuable time in expressing my appreciation of the speeches that have ben made and the interesting submissions that have been brought before your Lordships' Committee. It would at the same time be unnatural on my part if I did not express a little regret that noble friends on this Front Bench and noble and learned Lords on that Front Bench have chosen to exclude themselves by their voluntary act from the category of the right-minded, as I defined it in opening! I take this source of satisfaction however, that the Opposition have had to field two noble and learned Lords, two former Attorney-Generals, one a former Lord Chancellor, both formidable forensic opponents of former times. It must be a very weak case indeed that demands such an extravagant deployment of forensic talents.
One can understand that when one analyses the case that the Opposition have sought to put. The noble and learned Lords, particularly the noble and learned Lord, Lord Silkin, said there was no need for this, do we not have two remedies already? What were the remedies he cited? First, the district auditor, merely a surcharge 907 ad hominem, quite outwith the sort of remedies we are looking for here. The second was the relator action; a curious form of action, probably not well known to your Lordships—and why should it be? It is known only, of course, to the two noble and learned Lords opposite because it is initiated by Attorney-Generals. That was their trade, the bringing of relator action; an old-fashioned clumsy device. There is nobody so conservative as Labour Members of Parliament who are entrusted with the office of Attorney-General, but conservative (in spite of a long friendship with both) I am bound to say, not conservatism of the enlightened type of Burke and Disraeli, but merely reaction of which those two great masters cured the Conservative Party. I am disappointed that they should think that those two old-fashioned, inadequate remedies should stand in the face of this enlightened procedure which it is my privilege to commend to the Committee.
Similarly, on the question of costs: "Well", say the noble and learned Lords, "everybody takes a chance with costs and we can trust the judges to get it right". I do, after all. One wins some cases that one ought to lose and loses some cases that one ought to win. But that is taking a very professional view of it. Noble and learned Lords must put themselves in the position of the citizen, who, not for his own interest but in the public interest, is seeking to bring this action. How is he to interpret and prophesy in advance the inscrutable result of the award of costs? Of course, it is a deterrent and a very formidable deterrent indeed. Your Lordships' Committee should do away with it.
I was about to refer to my noble friend who seems to have left us, Lord Campbell of Alloway. I agree with what he said. Part I is not important in this context. We are concerned with Part II. I did not refer to Part I. I did not think it very probable that a citizen would bring an action to enforce a rate. That would seem a paradoxical action for him to entertain.
Finally, the noble and learned Lord, Lord Elwyn-Jones, said that remedies are not prescribed, but they are there: the remedy of declaration, the remedy of injunction and whatever may be necessary in that regard. I am still satisfied by the merits of this matter and its importance. I am fortified by those noble Lords who have supported it. But I do not take any obstinate pride in the draftsmanship, more particularly because it was not originally my new clause. It is not exactly a return brief, but I am devilling it. I have far too much respect for the noble Lord, Lord Chalfont, to say that the maxim les absents ont toujours tort would have any application in this case, or the case of Mahaffy and Dodson in their book on highways when a mistake was pointed out to Mahaffy. He fought his corner long and hard to prove it was right, but finally, having to concede it was wrong, said, "Ah, I remember, that was one of Dodson's passages". I do not. I am sure my noble friends would not take any point on the precision of draftsmanship. I shall not ask the Committee to come to a formal decision on this matter. I thank my noble friend the Minister for such part of his response as was sympathetic, and I invite him respectfully to continue his researches and to gain adoption into the ranks of the wise men. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.908
§ Clause 6 [Interpretation and application of Part II]:
§ Lord Kilmarnock moved Amendment No. 22:
Page 4, line 14, at beginning insert—
("( ) Nothing in this Act shall prevent the publication of material, or any other action, by a local authority in exercise of its functions under the Local Government (Access to Information) Act 1985.").
§ The noble Lord said: This amendment concerns the possible conflict between the Bill before your Lordships and the Local Government (Access to Information) Act 1985. I am sure the Committee will be aware that a similar amendment was moved by my noble friend Lord Winstanley during our debates on Clause 2. I venture to raise the matter again only because the wording of this amendment is such that it bites somewhat wider; that is to say, it does not bite only on Clause 2 but on the whole of this section of the Bill.
§ On the first day of Committee, in response to my noble friend's earlier amendment, the noble Lord, Lord Elton, undertook to bear the matter in mind and to come forward with an amendment at Report. Therefore it would be wrong of me to detain the Committee for long at this stage.
There is, however, one point I should like to raise with the noble Lord, Lord Elton. In col. 581 of Hansard for 18th February he said:
the present Bill would not, in any case, apply to material made available for public inspection under the Local Government (Access to Information) Act 1985".
He went on to give us a further assurance on that point, lower down in the same column, when he said:
As I tried to make clear earlier, the agenda and reports and the material as generally described in the Local Government (Access to Information) Act would not be caught by the Bill because they are not published in the sense that the Bill means by published".
§ So he has given us those assurances that there is no possible conflict between this Bill and that Act. Yet what puzzles me is that he has at the same time generously recognised the general anxiety on the point and told us that he has it in mind to table an amendment on Report to clarify the matter. There seems to me to be a certain incompatability between those two positions: on the one hand the categorical assurance that there is no conflict, and yet an acknowledgement of the anxiety and the intention to bring forward an amendment. That intention to bring forward an amendment would appear to imply that there is at least some basis or foundation for the anxiety that was expressed. That is the only thought that I want to put into the noble Lord's mind at this time. Perhaps he would like to comment on it when he comes to reply.
§ The only other matter I want to ask him about is this. If he is going to bring forward an amendment on Report, will he use his best endeavours to see that we have it in reasonable time so that we can scrutinise it carefully and decide whether it does or does not satisfy the anxieties that we have on this matter? I should be very grateful to the noble Lord if he would undertake to do that. I beg to move.
§ Lord Skelmersdale
I think I should make it quite clear that it is certainly no part of the Government's intention that the publicity provisions of the Bill 909 should prevent local authorities from fulfilling their responsibilities under the Local Government (Access to Information) Act 1985. That Act, while it was a Private Member's Bill, was of course fully suported by the Government. It is an important step towards improved accountability in local government, as indeed is Clause 5 of this particular Bill, and we certainly should not wish to undermine the effectiveness of either.
The Committee will remember that my noble friend Lord Elton has already given assurances on this point in the context of Amendment No. 9, which was very similar to this amendment but, as the noble Lord, Lord Kilmarnock, as said, related to Clause 2 only. Perhaps I may remind the Committee that the Government remain firmly of the view that the terms of the definition of publicity given in the Bill mean that it would not apply to material made available for public inspection under the Local Government (Access to Information) Act. My noble friend has, however, undertaken, in the interests of clarity, to table an amendment to make this absolutely clear, and I repeat that undertaking.
I think it would be only fair to say on behalf of my noble friend that he has an extremely good record for putting down in good time amendments to Bills with which he is concerned, and I know that he will undertake to pursue this with his usual zealousness.
§ Lord Kilmarnock
I did not in the least wish to impugn the good track record of the noble Lord, Lord Elton, on tabling his amendments, but I wished just to make sure that he keeps it up to the mark. Obviously we await the amendment with considerable expectation.
I am not sure that the matter is quite so clear cut as the Government have given us to understand. It seems to me from the debates we had this afternoon on Clause 4 that there certainly is some possiblity that some of the kinds of material contemplated in the Local Government (Access to Information) Act may well be bitten on by the code of practice, and it seems that the relationship of the code of practice under Clause 4 to the general prohibition under Clause 2 is still not entirely clear. Thus it seems to me that there is a grey area there at which we shall have to look very carefully indeed.
However, we are grateful to the Government and to the noble Lord, Lord Skelmersdale. We look forward to the amendment, which we shall study with the greatest care. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness David moved Amendment No. 23:
Page 4, line 32, at end insert ("other than a communication comprising only factual information about employees and other agents of the local authority and the facilities made available by them.").
§ The noble Baroness said: I beg to move Amendment No. 23. I may possibly be covering some of the ground that we covered in the amendment of the noble Lord, Lord Elliott, Amendment No. 20. However, as the Council of Local Education Authorities, which is, as I 910 am sure the Committee knows, the joint council for the Association of County Councils and the Association of Metropolitan Authorities, feels very strongly about this matter, I think I must follow it up and speak to it.
The definition of "publicity" reads as follows in Clause 6(3):
'Publicity', 'publish' and 'publication' refer to any communication, in whatever form addressed to the public at large or to a section of the public".
CLEA is very worried about this because there are a lot of existing requirements to publish information. For example, under Section 12 of the Education Act 1980 an educational authority must publish all proposals for making a significant change in the character of a county school. An authority wishing to close a school or to move from 11-to 18-schools to a tertiary system could therefore be required by the 1980 Act to publish its proposals for such a change but could be prevented by the Bill, if it is enacted, from explaining its reasons for doing so.
§ 9.15 p.m.
§ If passed as it stands, this clause would cover a whole host of general communications. It would include for example, a whole range of uncontroversial publicity material: adult education, institutes, college prospectuses, booklets on schools' admissions; arrangements, even a notice board outside a museum or an art gallery stating the opening times; a sign outside a school giving the name of the head teacher; a sign outside a youth centre giving the name of the warden. Not only would local authorities have to have regard to codes of practice about the content and style of such things but, because the defintion of "publicity" is so widely drawn, it would be necessary to account for the cost of these items in a separate account.
§ Certainly, it would seem that a letter from school heads to parents would have to be costed; as would a speech to parents in the school hall, and even direction signs at public meetings. Other examples which may also have to be costed include rate demands, electoral registration forms, letters to residents about Christmas arrangements for emptying dustbins, rabies notices, fire hydrant plaques, road signs and the painting of vehicles in council livery.
§ Perhaps the Government would like to comment on these specific items and provide guidance on how one would go about costing the publicity content. If we look at the example of a head teacher proposing to distribute a leaflet to parents and people in the local area, perhaps about a forthcoming jumble sale for the benefit of school funds, it is difficult to define what part of the cost should be recorded as publcity. If posted to parents, the cost of posting the leaflet would presumably have to be accounted for. But how much more? The possibilities are endless.
§ Do you also include a proportion of the salary of the office worker who types the letter; a proportion of the cost of the typewriter; a proportion of general office costs? This all seems like a recipe for a bureaucratic nightmare and a waste of valuable resources. In particular, the obligation to have to keep a separate account for such items will lead to many time-consuming problems of definition: for example, 911 whether, in any particular case, the commuication is addressed to a section of the public. The purpose of this amendment is to remove factual information provided for public benefit from the definition of "publicity". I beg to move.
§ Lord Elton
The concern of the noble Baroness goes principally to the definition of "publicity" set out in Clause 6(3), the definition which applies throughout the Bill. It is a wide definition, I agree. It is defined as a,communication, in whatever form, addressed to the public at large or to a section of the public".The breadth of the definition is intentional because it is quite proper to have a wide-ranging definition, for we need to ensure that local authorities are quite clearly prohibited from engaging in party political propaganda at the ratepayers' expense across the wide range of activities that give the scope for it.
We certainly do not want to narrow the definition of "publicity" for Clause 2 or, for that matter, for Clause 4. There are so many ways of communicating political messages to the public that it is essential not to have a definition which leaves the possibility of new forms of propaganda being uncontrolled. But the inclusion of this wide range of publicity in the definition does not prohibit the production of any form of material at all. Authorities that wish to do so, can, in appropriate cases, continue to use modern media techniques—balloons, stickers, badges and so on—if that, in their view, is a reasonable thing to do.
What they may not do is to use these items as a means of transmitting party political publicity. Once a code of practice has been issued under Clause 4 of the Bill, they will of course have to have regard to the relevant provisions. This perhaps goes a little wide of the noble Baroness's concern because, as I understand it, her concern is the other effects of the width or breadth of the definition. That is the amount of work it will generate in the supervisory function, as it were, of Clause 5(1) where the details of expenditure have to be accounted for.
Perhaps I may remind the noble Baroness that we agreed to bring forward an amendment on the lines of that proposed by my noble friend Lord Elliott of Morpeth, to ensure that exclusions can be made from the requirement to account for publicity expenditure in Clause 5. We have accepted that there is a case for excluding marginal expenditure from the requirements of Clause 5, and other examples of material that should properly be excluded may emerge from our discussions and consultations with local government. In fact, I am much obliged to the noble Baroness for having produced a useful list, at which I shall look. I hope she will think it will be sufficient at that stage.
§ Baroness David
I am very grateful to the Minister for that reply, and of course I was aware of the commitment to produce an amendment on Report. I should like to consult again with my colleagues in the education world but I feel that possibly some satisfactory solution could be arrived at. Hoping for that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 agreed to.912
Baroness David moved Amendment No. 23A:
After Clause 6, insert the following new clause:
§ ("Review of the operation of Part II.
§ . Part II of this Act shall expire two years after this Act comes into force, unless its continuation has been approved by a resolution of each House of Parliament.").
§ The noble Baroness said: This is an amendment which asks that Part II of this Act shall expire two years after the Act comes into force unless its continuation has been approved by a resolution of each House of Parliament. The amendment has been tabled to draw attention to some of the undesirable consequences of the demand for an interim report and, thereby, this Bill; and to suggest a way out.
§ The main report of the Widdicombe inquiry, covering many more aspects of the conduct of local government than the interim report, is, we heard, expected in a couple of months or so. This amendment ensures that this legislation is updated in the light of the full report. Two years will give the Government ample time to consider the report, to consult on it and to prepare, we hope, fuller and more considered legislation.
The amendment allows the Act to continue in force if approved by both Houses in the light of the main report. We think it was a mistake to call for an interim report. The original reason for the interim report, given by Mr. Patrick Jenkin in his Statement to the House, was—I quote from cols. 957–8 of Hansard for 6th February last year—
the growing public concern about the use made by some local authorities of their discretionary power to engage in overt political campaigning at public expense.
This almost in the same breath as:
it is essential that the inquiry should be both impartial and effective.".
The then Secretary of State then went on stating as fact that councils were misusing public funds and spending ratepayers' money on political propaganda.
§ The next stage was the joint DoE and Scottish and Welsh Offices submission to the committee. This document was polemical in tone and robustly prescriptive in conclusion. Highly contentious and political statements were presented as facts or assumptions.
At times the submission appears to be trying to tell the committee how to do its job. It says:
controversial facts will doubtless be considered by the committee.".
Phrases like, "the committee of inquiry will wish, as a matter of first priority, to" frequently recur.
Since the publication of the interim report there have been ominous signs that Mr. Kenneth Baker is attempting to pressurise the committee on the main report. In his speech at the Local Government Chronicle dinner, he seemed to be promising legislation to stop council officers standing for election in other authorities, angering, according to press reports, members of the committee. The speech drew a dignified rebuke from Widdicombe, who wrote to several newspapers, saying:
The views expressed by Mr. Baker are those of the Government and we shall take them into account along with all the other evidence we have received. We shall then reach our own conclusions.".
Having failed to jump the committee into accepting their views, the Government have now come up with a Bill which ignores them.
§ We say that the Government's demand for an interim report puts the cart before the horse. It means that the committee has effectively been forced to consider one aspect of its study before it has gone into the fundamental issue—the purpose of local government, its constitutional position and the changing nature of the political process of which it is a part. By so doing, there is some risk of the main report being prejudiced by the findings of the interim report. More importantly, the enactment of legislation following the interim report which is not based on the recommendations of the committee—and this Bill is not—must prejudice the main report. In effect, the Government have asked the committee to investigate local government and to suggest reforms, and in the middle of the inquiry have come up with their own legal "reforms" which ignore or contradict those recommended by the Government-requested interim report.
§ The committee members themselves were, it would seem, not altogether happy with the idea of an interim report.
Many of those who have given evidence have considered it unfortunate that we should have been asked to prepare an Interim Report … We have some sympathy with this view".
That is in paragraph 7. But they were reassured by the Government's statement that,
The Government accepts, therefore, that the Committee's recommendations in their Interim Report cannot be taken to prejudice their findings and broader judgements reached in the light of their appraisal of all the evidence eventually presented to them".
That is in paragraph 4 of the DoE's submission. At the time, the committee was unaware of the Government's intention to ignore the interim report.
In particular, the Government drew attention to four links in paragraphs 9 to 12. First,
'political campaigning' needs to be considered alongside wider evidence of the politicalisation of local government".
So the Government's proposals, going well beyond anything in Widdicombe, will prejudice their consideration of the wider issues. Secondly,
The adequacy of the existing forms of accountability and public challenge",
which many had suggested were able to control councils,
is equally at issue for the rest of our terms of reference".
The Bill cuts off status quo as an option for the main report. Thirdly,
publicity needs to be set in the wider context of the proper role of Local Government".
Fourthly, there is a direct link between the interim and main report considerations of Section 137. While the committee had to look at the publicity uses of Section 137 in the interim report,
the other aspects of Section 137 will be dealt with in our Main Report".
The Government have legislated to implement the report's recommendation on the publicity aspects of Section 137, but in doing so they have twisted the proposal to prevent grants to campaigning or information bodies—an area which Widdicombe may well
have wanted to look at in the general context of local authorities' uses of Section 137. The committee did, however, explicitly state that,
we must reserve the right to return to the subject in our Main Report".
It is to be hoped that the committee will still feel able to do so after the passage of this Bill.
§ The Government-set timescale was too short. The chairman of the committee was appointed on 6th February 1985; the appointment of the other members was not completed until 16th April 1985; the deadline for evidence was 27th April 1985; and the report, asked for "not later than July", was published on 7th August 1985. The committee itself draws attention to the problems that this schedule imposed. In particular, it prevented the commissioning of formal research on the study of overseas experience. That is in paragraphs 17 and 18.
§ The Government's justification for urgency does not hold water. They claimed it was necessary because of "growing public concern" on the issue. The committee was unable to commission its own opinion poll to test this—there was not time—but referred to three others. One, carried out by NOP for the Right-wing pressure group, Efficiency in Local Government, had an 88 per cent. "disapproval" rating—hardly surprising when the sample was asked what it thought of local councils spending large sums of money on political advertising using the rates! There are, however, two impartially phrased polls for the GLC (Harris) and the Derbyshire County Council (Mori). Both asked whether particular campaigns were approved of. The result for the GLC's anti-abolition campaign was "approve", 51 per cent.; "disapprove" 29 per cent. There has also been a Mori poll within the last few days, but I have mislaid the results for the moment.
§ But it is not only because of waiting for the main report that we propose this amendment. Part II of the Bill is the particularly controversial part, and that has upset the local authority associations and the voluntary organisations. I hope that our amendment will give the public and the associations a chance to see how this Bill is working and that if in the course of two years it is causing a lot of difficulties and is creating a lot of trouble for local authorities and councillors the Government will consider withdrawing Part II and, if they wish to continue with it, putting it before both Houses of Parliament at that time. I beg to move.
§ 9. 30 p.m.
§ Lord Elton
My Lords, it really is fascinating to notice the change in tone and the assessment which noble Lords and Baronesses opposite have of the value, of the worth and of the excellence of the Widdicombe Report, according to whether they are speaking to an amendment which is founded on the Widdicombe Report's recommendations or speaking to an amendment which is attacking the Government's proposals. I had hitherto supposed that the work of Widdicombe and his committee had been something which filled the Opposition with admiration and that they wished to repose a lot of their 915 arguments on the arguments adduced by the committee of inquiry. So I am surprised to hear that it is also worthless, tendentious and unstable, and I am relieved, on the other hand, that the purpose of the amendment is to enable the noble Baroness to launch these attacks. Had it been a more serious purpose I should have to have told her that it is technically defective since different parts of the Bill would come into force at different times and that she would have to redraw it anyway.
I dare say that the view of the noble Baroness of the whole operation and of the attitude of Her Majesty's Government to the Widdicombe Report and our intentions towards the Widdicombe Committee rested in part on the Local Government Chronicle dinner speech to which she referred with some animation. I have to tell the noble Baroness that it was in fact misquoted and misinterpreted by the press, and I shall be very happy to pass her a transcript of what my right honourable friend actually said when she may perhaps view him in a different light. I think perhaps that that is as much as I should say on that issue.
I accept that in Part II we are legislating in a relatively new area but I do not accept this means that the Bill should be subject to the exceptional review procedure which is normally reserved for emergency powers legislation or the Prevention of Terrorism Act. The inquiry recommended a clear statutory prohibition on party political publicity. The inquiry did not mean it to be a temporary measure; indeed, it saw the problem as one that was likely to grow rather than to diminish. There can certainly be no justification for requiring an account to be kept for a limited period; neither would it be a very good idea to abandon principles of good practice for local authorities' publicity decisions or to reinstate the current scope of Section 142 which has in practice proved so inappropriate. Clearly if issues of substance arose, or if the Widdicombe Inquiry made some further recommendation that we wished to adopt and your Lordships supported us in that wish, we should have to consider revising the Bill's provisions. But I do not at the moment see any reason to expect that that will happen.
The noble Baroness said that we ought really to have waited for the main report; but that is like telling somebody with a thumping headache not to take an aspirin because he may have 'flu and that some better remedy will be invented next year. It seems to me that what we have done is a response to the Widdicombe interim report, which we have not, as I thought I heard the noble Baroness say in one aside, ignored. We have not ignored it; we have acted upon it. That is what this Bill is. The noble Baroness will not be satisfied by what I have said. She very rarely is, to give her credit. But on this occasion I have to say that I do not think that what she is proposing is suitable. I am glad that it was chiefly the pretext for the gallop around the course that we had on the unsuitability of our approach to Widdicombe.
If the noble Baroness feels after two years that the Bill is wrong-headed then I suggest that she comes to 916 your Lordships' House and suggests that it be repealed or amended. However, I do not believe that the House should be forced to go through the whole Bill, and its three totally separate parts, again, or even to analyse the distinct parts of Part II as a separate exercise, unless that proves necessary.
§ Lord Underhill
My noble friend Lady David is thoroughly able to defend herself but I wish to comment on the Minister's remarks concerning her alleged comments about Widdicombe. To my knowledge my noble friend was not criticising Widdicombe. If anything, she was criticising the Government's interpretation of Widdicombe and the fact that they have turned Widdicombe completely on its head, as so many noble Lords observed on Second Reading.
The amendment now before the Committee deals only with Part II of the Bill. We recognise that there is a clause in the Bill that defines the dates on which the various sections shall come into operation. We are dealing with Part II—except of course subsection (5), which will come into effect on a date that the Secretary of State may fix by statutory instrument.
My noble friend has outlined various reasons why the Committee ought to agree to her amendment, irrespective of the fact that the main report is yet to come, and bearing in mind that the main report itself will be of major importance as the Minister said, and will require some time for consideration. I hope that the Government, even if they reject this amendment, will monitor the effect that this Bill will have upon local government information services and upon publicity services. I hope also that the Government and noble Lords will monitor carefully the effect that the Bill will have on the relationship between central government and local government, which year by year gets worse and worse. There is a thoroughly good justification for my noble friend's amendment but I believe it is her wish that the amendment be withdrawn in the light of what has been said; but perhaps I had better let her say that.
§ Baroness David
I believe that the Minister misunderstood what I was saying. Certainly I was not attacking Widdicombe. I was attacking the Government's use of Widdicombe.
§ Lord Elton
As I understood the noble Baroness, she was attacking my right honourable friend the Secretary of State and the Government for the timing and was saying that Widdicombe did not have remotely enough time to get out a sensible report. I understood her to say that it had all been done in great haste and that the opinion polls proved that to be the case. I truncate the noble Baroness's argument somewhat. However, if she is saying that it is an excellent report, then that whch my right honourable friend set by way of a timetable cannot have been such a bad thing, because we got a good report out of it.
§ Baroness David
I beleive that what I was saying was that the Widdicombe Committee was hurried into producing the interim report for the benefit of the Government, who then ignored a great deal of what was said in that interim report. There have been a certain number of misunderstandings, but I shall read what has been said by the Minister. I hope that he will also read what I have said and will then understand it.
We are very unhappy about Part II of the Bill, and that has been made very clear. We have managed to 918 improve it in Committee but we may need, as the Minister has said, to consider it again once we have seen the working of the Act. Indeed, the local authority associations themselves will no doubt be making their comments constantly. If we need to return to this matter later, then no doubt we shall do so. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 7 to 9 agreed to.919
Lord Kilmarnock moved Amendment No. 24:
After Clause 9, insert the following new clause:
§ ("Duty of local authority to comply with report by Local Government Commissioner in cases of maladministration.
§ . A local authority shall have a general duty to comply with a report of the relevant Local Government Commissioner in respect of any acts of maladministration leading to injustice by that authority. A local authority shall within six months of a formal written notification of findings against them by the Local Government Commissioner inform the Local Government Commissioner and the complainant of the remedy proposed and any administrative or policy changes being carried out to prevent a continuing or recurring injustice.").
§ The noble Lord said: This amendment seeks to introduce a different type of material into the Bill. I should say that I am proposing this amendment, very inadequately, in substitution for my noble friend Lord Winstanley who, unfortunately, has been taken ill with 'flu. I promised him that I would do my best to explain his case.
§ With Amendment No. 24 I should also speak to Amendment No. 27, which is required to bring the main amendment within the Long Title of the Bill. I make no apology for raising a new issue. The Bill is called the Local Government Bill. It covers a number of rather disparate items, including the item on the transfer of mortgages, and it would seem to me to be a perfectly suitable vehicle for legislation along the lines proposed in this amendment.
I come to the amendment and I do not want to read it out in extenso; but I think the description in the margin is adequate. It refers to the,
Duty of local authority to comply with report by Local Government Commissioner in cases of maladministration.
Maladministration is specified in the amendment as,
maladministration leading to injustice by that authority.
What are we talking about when we refer to maladministration leading to injustice? There are perhaps three or four main areas. For example, in the purchase and sale of land a council can use its position as a public authority in an oppressive way by unreasonably withholding planning permission and thus causing the sale price of a piece of land to be reduced. In the provision of various services—for example housing—an arbitrary method of housing allocation may well unfairly cause hardship. Indeed, unacceptable delays in repairs may cause injustice. In schools, too, many of the cases brought before the ombudsman centre on an authority allocating a place in a school on grounds of administrative expediency rather than on educational suitability. There are a number of other areas in which a local authority may commit an injustice, such as matters concerned with roads, the social services or the environment.
What is the situation at the moment? In August 1984 the Commission for Local Administration in England sent a memorandum to the Secretary of State for the Environment precisely on this subject. The memorandum was concerned with the number of occasions when local authorities have not provided a satisfactory remedy following a finding by the local ombudsman that injustice has been caused through maladministration by the authority. This has been reviewed by the Select Committee of another place which felt that,
Such an extent of defiance by local authorities risked bringing the ombudsman system into disrepute.
In terms of volume we are not talking of an enormous number of cases, and the Commission for Local Administration states:
Put simply, about 6.25 per cent. of those found by the local ombudsman to have suffered injustice through maladministration have not received a satisfactory remedy. Perhaps more significantly 19 per cent. of local authorities receiving critical reports have at one time or another not provided a remedy even after the local ombudsman has issued a further report on the complaint".
That 6 per cent. may not be thought to be a very dramatic figure but the situation is bad of course because injustice should always be remedied. If there are 94 per cent. of cases which are adequately and successfully dealt with, that is no reason why the remaining 6 per cent. should not be dealt with in the same way.
§ 9.45 p.m.
§ The other thing which bears on the general credibility of the Ombudsman system is that of course the publicity given to failures always receives more attention than that given to the successes of the system, and it tends to reinforce the belief of the public that there is no point in using the Ombudsman system because it has no teeth. Of course this is not entirely true, but that is a perception which may well arise from the record of cases not successfully settled.
§ The Commission for Local Administration in England has also produced a report in which it names 72 local authorities which between 1974, when the English local Ombudsman started work, and the 30th January 1986 failed to provide a remedy satisfactory to the Ombudsman on an occasion when, following investigation of a complaint, the Ombudsman issued a report finding that there had been injustice caused by maladministration. In each case the failure was in spite of the issue of a further report by the local Ombudsman following the authority's failure to respond satisfactorily to the first report. These 72 authorities represent 19.5 per cent. of all the authorities in England against which an adverse finding at some time or other has been made by a local Ombudsman.
§ I do not wish to be invidious or to cite the names of any of these authorities, but I have them and they are of course in the Government's possession. Also, there have been 16 cases outstanding since at least the 31st March, some of which may also prove to be cases where no remedy will be provided. In each year there were some authorities who declined to provide a satisfactory remedy, including some who did so for the first time. In 1984–85 a further five authorities joined the list, despite having provided remedies previously, and there may be more to follow from the outstanding cases. The point is that this could be seen as a relatively small failure of the system, but it appears to be persistent. The rate of improvement in the last five years over the previous five years has not been spectacular, and there always seems to be this small percentage of cases where the authority will not follow up the Ombudsman's ruling and give a remedy where a remedy is due.921
The amendment seeks to use this Bill as a vehicle to impose an obligation on the authority to have:
a general duty to comply with a report of the relevant Local Government Commissioner in respect of any acts of maladministration leading to injustice by that authority. A local authority shall within six months of a formal written notification of findings against them by the Local Government Commissioner inform the Local Government Commissioner and the complainant of the remedy proposed and any administrative or policy changes being carried out to prevent a continuing or recurring injustice".
§ I am pretty certain that in reply the noble Lord will tell me that this is neither the right Bill nor the right place to suggest that this worthy measure should be included. The Government in fact have been stalling on this matter for some time. If this is not the right vehicle, we certainly have to find a vehicle and find one fairly soon. Of course, I am aware that the matter is still under consideration by the relevant committee of another place. I am also aware that it is within the remit of the Widdicombe Report which we seem to have spent so much time talking about during this Committee stage; that is to say, part of Widdicombe 2. It therefore seems, I accept, that we have missed the bus on this Bill, and I think that that is rather a pity. The rulings of the Ombudsman are clear, and there was adequate material available, I think, to have included a clause in the Bill on the subject. However, I think that we have to be realistic and to accept that we probably have missed the bus on the Bill.
§ But I would like to ask the noble Lord, if that is his view of the matter, what he has in mind for bringing the measure into statute once the Select Committee has finished its report and the Widdicombe Committee has also produced the second part of its report. Do the Government take this seriously? Will they undertake to legislate as soon as possible? If this is not the right vehicle, have they any other in mind? The matter has been pending for quite a long time. Those of us who are interested in this matter—and I think that we must all be interested in any question of injustice—would want to hear from the Government what their plans are to remedy these shortcomings in the implementation by local authorities of the recommendations of the Ombudsman. I beg to move.
§ Baroness Faithfull
I speak on behalf of my noble friend Lord Sandford who I am afraid also is ill today. I should like, briefly, to ask the noble Lord, Lord Kilmarnock, three questions. I do not understand, first, the phrase "have a general duty to comply". It seems to be very wide and imprecise. Secondly, the new clause states:A local authority shall within six months of a formal written notification of findings against them",etc. In my experience local authorities put right complaints and recommendations made to them by the local government commissioners. They usually do so quickly. If it has to be within six months, they will hold things up for six months and say that they do not have to do it until then. I should much prefer a period of three months if we are to retain that provision.
Thirdly, there is the assumption that the local government commissioners are always right. We are fortunate in our local government commissioner, but the very best of us can sometimes be wrong. There is no appeal provision in the amendment.
922 I also have the figures. Adverse reports in the past five years have numbered 859, of which 92 per cent., by my figures, have been put right by the local authorities, leaving only 5 per cent. where no remedy has been provided and 2 per cent. not yet decided, but that is in a way irrelevant. While I understand the feelings and the thought behind the amendment, I do not hold with it as it stands.
§ Baroness David
We too would like to support the idea behind the amendment. There probably is in a great many cases some duty to provide a remedy, but is this the right moment? The Select Committee on the Parliamentary Commissioner for Administration is currently considering the question of remedies for the complainant when a local authority has failed to provide appropriate redress and maladministration has been found against it. It would seem sensible to await that report, and so this is not quite the right moment to take action.
§ Lord Kilmarnock
With permission, I shall try to answer the noble Baroness, Lady Faithfull. We are not wedded word by word to the amendment as it stands. Objection has been raised from other quarters which I also respect, about the six-month period specified. Certainly we would not go to the stake for that. It would be a matter for discussion. Also, the figures that the noble Baroness quoted are exactly the same as those that I have mentioned. There is no dispute between us on that. What we are talking about is perfecting the system or bringing it up to its maximum perfectibility given its very successful track record in the majority of cases. I certainly do not dispute the figures with the noble Baroness. As for the wording of the clause, that is something for discussion if the Government will eventually take it up here or in some other vehicle.
§ Lord Elton
Let me start by saying that the Government do take this issue seriously. That is the direct question that I was asked by the noble Lord, Lord Kilmarnock. Secondly, as he recognises, the amendment goes far wide of the Bill. That is why he had to put down a second amendment to increase the scope of the Bill so that it could embrace the principle that he wanted to amend the Bill to embrace.
In the autumn of 1984 the Commissioner for Local Administration in England, the local ombudsman, made formal recommendations to my right honourable friend the Secretary of State for the Environment. Justifiable concern was expressed that in 6 per cent. of cases where injustice was found, the authority complained against failed to remedy the injustice. The local ombudsman recommended that unless matters improved on a voluntary basis, legislation should be considered. The response of the local authority associations for England and Wales to this was positive. They wrote to each local authority urging speedy and total compliance with all the findings of the local ombudsman.
It was against that background that my right honourable friend the Secretary of State announced the Government's position in September last year. He 923 shared the local ombudsman's concern at what was happening. He acknowledged that although non-compliance is relatively rare, each occurrence compounded the original injustice to the individual citizen concerned and that the resultant publicity might undermine public confidence both in the office of local ombudsman and in local government as a whole. He concluded therefore that steps should be taken to secure greater compliance with the commission's findings.
In the first instance, the Government welcomed the action of the local authority associations in writing to their members. It was right that local government should be given the opportunity to put its own house in order. The voluntary route would, in our view, be preferable to the compulsory one in this case if it can secure the same objective. We are therefore watching closely the effects of this voluntary initiative. We have undertaken to discuss its achievements with the local ombudsman and local authority representatives. It will then be possible to decide in consultation whether further steps need to be taken.
Turning to the clause itself, I must say that its potential effect in its present form is worrying. It would, as my noble friend Lady Faithfull has pointed out, on behalf of my noble and absent friend Lord Sandford, to the noble Lord, Lord Kilmarnock, who answers on behalf of the noble and absent Lord, Lord Winstanley, be particularly harsh for local authorities to have the findings of the local ombudsman imposed on them without the right of appeal to another body. It assumes total rectitude and absolute unshakeable infallibility. It would, I fear, represent also a fundamental change in the role of the local ombudsman. It would give him executive powers in addition to his investigatory powers. That is another fundamental change. Authorities might come to see the ombudsman in fact as both counsel for the prosecution and judge, whereas he should be seen as neither. I am not expressing my own fear or indeed that of the Government in isolation. Independent observers have made these same points. Most important perhaps, the local ombudsman for England has taken the same view.
May I conclude therefore by assuring the noble Lord that we understand and share the anxieties that underlie the amendment? There is a problem with some local authorities defying the local ombudsman. That problem must be tackled. However, a Select Committee of another place started taking evidence on this mattter in 1984 and is due to report in three months' time. The main report of the Widdicombe Inquiry is also expected shortly and, as they made clear in their interim report, and as I have referred earlier, one of the questions they will have to consider is the rights of the public to challenge local authority activities and decisions.
I am sure that these two reports, together with our own assessment of local government's voluntary efforts, will provide the best possible basis for deciding what should be done next. I do not think that we have 924 missed the bus; I think that this was the wrong bus. We want the next bus.
I am grateful to the noble Lord therefore for bringing this matter before the Committee. The noble Lord says that this may be a small failure of the system. Nonetheless, it is an important matter for all that. I hope that in the light of what I have said the noble Lord will withdraw his amendment now and perhaps give us the benefit of his views, and those of his party, when the two reports of which I have spoken and our own assessment of the developments resulting from the local authorities' voluntary initiative are available for discussion.
§ Lord Kilmarnock
I am most grateful to the noble Lord, Lord Elton, for his reply. I have accepted the imperfections of the clause as drafted. I take the point that there is no right of appeal, which seems to be wrong. I am also fully aware that the Select Committee of another place is due to report shortly and that Widdicombe is also investigating the whole question of the right of challenge of the citizen. Obviously we shall look forward with interest to both of those reports. However, if we see no action in the offing, we shall be inclined to come back to this in some form or another.
I am slightly encouraged by the noble Lord's continuance of the bus analogy. The noble Lord said that although this was not the right bus he sees that there is another bus probably coming along. We shall certainly be there in the bus queue waiting for it, if we do not see that the requisite action is coming forward. For the moment, I certainly do not intend to press this amendment.
§ Lord Elton
I forgot one important matter. I forgot to say—and I am sure that your Lordships will join me—that I hope his noble friend and my noble friend both make a speedy recovery.
§ Lord Kilmarnock
I am most grateful to the noble Lord. I shall convey that to my noble friend Lord Winstanley. The noble Lord will no doubt convey the same sentiment to his noble friend Lord Sandford.
I am encouraged by the noble Lord in his implication that there is not only one bus suitable for this but that there may be another coming along. We shall certainly be on the look-out for it. I certainly do not intend to press this matter. I am happy to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Elliott of Morpeth moved Amendment No. 25:
Before Clause 10, insert the following new clause:
§ ("Duty of local authorities to publish annual reports of road safety measures.
.—(1) Section 38(2A) of the Road Traffic Act 1972 (as inserted by section 8(1) of the Road Traffic Act 1974) (powers of the Secretary of State and local authorities as to giving road safety information and training) shall be amended as follows.
(2) After paragraph (c) insert—
(d) shall publish an annual report to the Secretary of State on the measures undertaken to promote road safety.".")
§ The noble Lord said: In the unavoidable absence of my noble friend Lord Nugent, I am asked to move the amendment in his name.925
§ The Road Traffic Acts 1972 and 1974 required local authorities for the very first time to prepare and carry out a programme of measures designed to improve road safety. This existing legislation nevertheless means that although local authorities carry out studies of accidents in their areas—and they are further required to take measures which the studies and the evidence from them suggest would be helpful in preventing further accidents—at the present time they are not obliged to publish the reports on their road safety programmes. These reports include information and publicity campaigns and the improvement and required maintenance alterations of roads for which they are responsible as a highway authority. Some excellent reports are produced. It is estimated that some 50 per cent. of local authorities who undertake these studies produce reports which have proved to be of general benefit.
§ The new clause in the name of my noble friend is aimed at making it obligatory for all authorities to produce an annual report. Highway authorities would benefit enormously by a full exchange of experience, information and ideas. A number of authorities have quite recently adopted wide-ranging and imaginative road safety schemes, and a national perspective could be achieved on the types of measures which some authorities have really found to be most effective.
§ We were reminded earlier today that this is European Road Safety Year. Therefore, I suggest on behalf of my noble friend that the addition of this clause to the Bill in this year would represent a substantial step towards reducing the constant tragedies which daily arise from accidents on our roads.
§ Finally, it may interest your Lordships to know that the Association of County Councils has informed my noble friend of their agreement in principle with his new clause. I beg to move.
§ Lord Underhill
I should like very briefly to support what has been said by the noble Lord, Lord Elliott of Morpeth. I am sorry that his noble friend Lord Nugent cannot be here. However, I think that all noble Lords have respect for what the noble Lord, Lord Nugent, has said on various occasions on the question of road safety, and I hope that we shall give consideration to this amendment.
I am certain that the noble Lord the Minister will have some useful matters to tell us. He may say that this Bill is not the appropriate vehicle for such an amendment, but I hope that he will go beyond that and give us the Government's views on the matter.
As the noble Lord, Lord Elliott, has said, this is European Road Safety Year. Your Lordships have shown by Questions over the last two or three weeks the concern which is felt on the matter of road safety. Apart from the fact that, as the noble Lord says, the amendment has the support of the Association of County Councils, it is also fully supported and approved by the Parliamentary Advisory Committee for Transport Safety. Therefore, it is an important amendment, and I am certain that the publication of these reports would, as the noble Lord says, not only provide useful information for the department and the 926 Ministers but also provide for the exchange of information between authorities.
I shall be very interested to learn the Government's views here. If the Bill is not the right medium for this provision we would nevertheless like to know the Government's views on this particular amendment.
§ Lord Skelmersdale
I must start by saying that I am attracted in principle to my noble friend's delegated (if I may put it that way) argument on road safety. His intention is to make local authorities publish year-by-year the measures they take to fulfil their statutory responsibility for road safety under the 1972 and 1974 Road Traffic Acts. The Government are well aware of the important role which local authorities have to play in road safety, and recognise that, while some authorities have a first-class record, others have a great deal to learn.
Anything that would improve road safety, especially where the care and maintenance of roads is concerned, must be a good thing even in a year that is not designated as road safety year. The question is whether a statutory requirement to publish an annual report would improve matters. My noble friend suggests that it would do so. The Government think that it could help, but would not want to introduce such a measure without the full support of the local authorities.
Annual reports would inevitably impose some financial burden on local authorities. There would need to be discussion about what the reports will cover; and there are implications for the existing information and grant systems which need to be considered. Such issues would require extensive prior consultation with local authorities, among others. No such consultation has, to date, taken place. Nor, with the abolition of the metropolitan counties imminent and the organisational re-arrangements which will follow, is it a suitable time to be considering such consultation.
Nevertheless, I most certainly do not want to reject the idea completely. The Committee will be aware that my colleagues in the Department of Transport are currently reviewing future road safety policy. I understand that that department is considering a number of issues which bear on the most effective arrangements for improving road safety policy and performance. I shall make sure that the department takes on board the thinking behind the amendment.
However, for the reasons I have stated, I do not think that now is the right time, or (if I may almost quote the noble Lord, Lord Underhill) that this Bill is an appropriate vehicle for this significant change to local authorities' formal responsibilities. I hope that my noble friend will take the point and will seek to withdraw his amendment.
§ Lord Elliott of Morpeth
I am grateful to the noble Lord, Lord Underhill, for his support of the proposed amendment. I am grateful also to my noble friend for the way in which he has responded to it. I take the point that this may not be the right moment, but it is encouraging to know that the principle is accepted.
In the circumstances, on behalf of my noble friend Lord Nugent of Guildford, I beg leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.927
§ Clause 10 [Allowances payable to members of new authorities.]:
§ On Question, Whether Clause 10 shall stand part of the Bill?
§ Lord Elton
I do not wish to do more than move the Motion formally, but I should like to take the opportunity to give notice, which is normal, of an amendment which the Government may wish to table at Report.
Under existing statute, owing to a technical defect in the drafting of the Local Government Act 1985 and the way it works with the Local Government Act 1972, it could happen that in a local election year there could be a period of about a month during which the London fire and civil defence authority and other joint authorities, though not ILEA, were without elected members. The legal position is the same in the metropolitan counties, but the difficulty is less because only a third of the district councillors retire in any one year. The Government are therefore consulting urgently the local authority associations on what, if anything, needs to be done about this. My purpose now is merely to alert your Lordships to the possibility of a Government amendment at Report stage.
I should also apologise for the fact that we agreed so quickly and the Committee were so kind in its agreement to, among others, Clause 7, that I did not at that stage tell the Committee that we intend to make a small amendment to subsection (4) of that clause which will add to the protection for borrowers. It is technical, but I accept that I should have made it in the context of the clause. It relates to subsection (4) which provides a procedure for validating transfers of mortgages. If a local authority inadvertently overlooks a borrower's withdrawal of consent to a transfer, the subsection provides that the transfer can none the less be valid.
I shall not go further than to draw the Committee's attention to the area of our concern and to say that there are two even more minor changes to subsection (4), to require that the certification referred to in that subsection will form part of the transfer agreement, and to make provision for consents to which conditions have been attached. These are really very technical matters, but I have always tried to act with extreme propriety on these occasions so that I can leap upon noble Lords who risk to demean themselves in a more flagrant manner. I am sorry that I have not quite done so because I missed the opportunity on clause stand part. I beg to move.
§ Clause 10 agreed to.
§ Remaining clause agreed to.
§ [Amendments Nos. 26 and 27 not moved.]
§ House resumed: Bill reported with the amendments.
§ House adjourned at fourteen minutes past ten o'clock.