HL Deb 18 March 1986 vol 472 cc869-908

3.8 p.m.

Read a third time.

Lord Denning moved Amendment No. 1:

After Clause 2, insert the following new clause:

("Liability for unlawful publication.

.—(1) In the case of any publication by a local authority of any material contrary to this Act, any ratepayer may apply to the High Court for a declaration that such publication was unlawful and for an injunction to restrain the publication of any further material in breach of it.

(2) On any such application, the High Court may order that any person responsible for incurring or authorising any expenditure on such unlawful publication shall repay it in whole or in part to the local authority concerned, and when two or more persons are found to be responsible, that they shall be jointly and severally liable to repay such expenditure.

(3) In exercising its jurisdiction under this section, the High Court shall have regard to any just cause or excuse which such person may have and to all the circumstances of the case.")

The noble and learned Lord said: My Lords, at the Report stage we considered whether this Bill could be enforced, and in what way. As a result of the discussion then I intimated that we might move an amendment, and I am glad to say that it had the support of my noble friends Lord Campbell of Alloway and Lord Mottistone, and of the noble Lord, Lord Harris of Greenwich.

It is an important point that I raised, because this Bill does not provide any machinery for its enforcement. The particular and prominent provision is in Clause 2: A local authority shall not publish any material which, in whole or in part, appears to be designed to affect public support for a political party. Suppose that provision is broken? Suppose an extreme Left-wing body in control of a local authority should issue political propaganda against any other party or its opponents; or, vice versa, suppose a conservative majority should issue political propaganda against another party. What is the remedy? The ratepayer may go to his lawyer and say, "Look, they are spending the money which I have contributed on political propaganda. What can I do about it? What is the remedy?" He could go to the courts. He would say, "I have not myself suffered any damage. I cannot claim damages in money because they have indulged in this political propaganda. What can I do?" What can anybody do to enforce this provision?

My noble friend Lord Mottistone put forward a suggestion on Report that the matter could be gone into and those who were in the majority on the offending council could be made liable, not in damages perhaps but jointly and severally. There were defects in that proposal. My noble and learned friend the Lord Advocate said, "There is already a provision in Section 19(2) of the Local Government (Finance) Act 1982. If you look at that, you will see that at the end of the year when the district auditor audits the accounts, he can look into the items and if he finds any item of expenditure unlawful he can certify and apply to the courts", and so forth. It was suggested that that was the remedy.

I have looked into the matter and, as I shall explain in a little while, I do not think that at the moment there is any remedy in law for a breach. I shall take as a parallel the case of the Lambeth and Liverpool councillors—Smith and Skinner—which was reported in The Times on 6th March this year. That was just before Report stage.

Your Lordships may remember—and, if not, I shall recall it for you—what happened in Lambeth and Liverpool. The local authorities there wanted to go on spending money beyond question. When they found that they could not get any more, they decided to defer making a rate, so they did not make their rate by 1st April as they would and should have done, with the result that they were short of money. What they really wanted to do was to bring pressure on the Government to subsidise Lambeth and Liverpool, as they had done with Liverpool the year before.

When the district auditor looked into that conduct and found that the councillors were deferring the rate to put pressure on the Government, he said that he thought that that was wilful misconduct and that there had been a loss on account of that misconduct. The matter went to the Divisional Court and, as I have mentioned, was reported on 6th March. The judges all held that there had been wilful misconduct by those councillors and that there had been a "loss or deficiency" because they had lost the interest on the money that they would otherwise have collected. Those councillors were ordered by the court to pay the penalty—to pay the loss or deficiency—and they were disqualified for five years. That is a different section altogether from the one with which we are concerned. It is Section 20.

I mention that because of the parallel which is now drawn and said to be available in Section 19(1), which states: Where it appears to the auditor carrying out the audit of any accounts … that any item of account is contrary to law he may apply to the court for a declaration". If it is unlawful, they can be made liable. That applies when the district auditor finds that any item of account is wrong. Where will we find that when a local authority publishes material like this? It may get a local newspaper or somebody to publish it for nothing. There may be no item of account about it at all, and therefore the district auditor will have nothing to query or to go on at all. If that is so, Section 19 will not avail.

3.15 p.m.

I come back to the original question. If there is a breach and if political propaganda is issued by an extreme organisation in control of the local authority, what is the remedy? In the amendment that I have suggested today, inspired by what my noble friend Lord Mottistone suggested before, the remedy is simple. Any ratepayer who is offended by the publicity may go to a judge of the High Court, because I warn you that whether it is designed as a party political matter is a difficult question. Let the judge consider the publicity. He will declare whether it is lawful or unlawful. If need be, he can grant an injunction to stop it again.

Is that not much better, as I said on Report, than for the district auditor to wait until the end of the year when he goes through the audit, and for us to wait for him to certify the matter? We would wait for 12 or 18 months or two years and the publicity would go on meanwhile. Surely it is right that there should be an immediate remedy available to any ratepayer if the majority on a delinquent council is using propaganda contrary to law. That is why I have put down my amendment which should be simple for anyone to understand. It provides: In the case of any publication by a local authority of any material contrary to this Act, any ratepayer may apply to the High Court for a declaration that such publication was unlawful and for an injunction to restrain the publication of any further material in breach of it. I go on to say that any individual who is responsible for that, with others: shall be jointly and severally liable". Of course we should have to have regard to: any just cause or excuse that that person may have. Is not that a remedy which should be made available and put into the Act rather than that the Bill should leave this House without anyone knowing how it is to be enforced? I beg to move.

Baroness David

My Lords, the object of the amendment would seem to be a cheap, effective and quick way of dealing with those who are transgressing the law. Cheapness is certainly not the hallmark of litigation which starts in the High Court especially if it goes via the Court of Appeal to the House of Lords. At the end of the day, the litigant could find himself heavily out of pocket. If the litigation were to run the whole gamut of the hierarchy of the courts, it would certainly not be quick.

I ask whether it is right to effect reforms of administrative law in this piecemeal manner. If more efficacious remedies are needed, there is a good argument for the whole corpus of administrative law, comprising a wide range of public bodies, including government departments, to be examined as a whole. This Local Government Bill scarcely seems to be the right vehicle with which to introduce reforms along the lines of the amendment. Apart from this—I think that it is important—Widdicombe is now considering the need for a simpler method for ratepayers and electors to challenge the decisions of local authorities. It is now taking evidence on that point. It would surely seem sensible to await Widdicombe's recommendations, which should be published fairly soon.

Aside from these more general objections, there are more specific objections that could be levelled against the amendment. What really is under attack is the principle in Section 19 of the Local Government Finance Act 1982, that the duty to challenge improper expenditure in the first instance lies on the external auditor. It is only when he refuses to do so that the aggrieved person may apply to the court. This is, in fact, a useful and necessary sieve, because eccentric ratepayers with bees in their bonnets are not unknown to local authorities. The decision of the auditor is usually an end to the matter, but this could change if there were to be direct access to the court. The local authority associations would certainly not wish to see any system which encouraged a ratepayer indiscrimi-nately to test the legality of a local authority's decision. There has to be some bar against frivolous litigation.

The noble and learned Lord the Lord Advocate criticised at Report stage the similar amendment of the noble Lord, Lord Mottistone, on the gound that it introduced a special procedure for unlawful publicity, in contradistinction to other unlawful expenditure incurred by local authorities which could be just as heinous. He went on to point out that the important discretion of the court was missing from that in Section 19 of the Local Government Finance Act 1982 requiring it to take into account whether the person responsible for the unlawful expenditure, acted reasonably or in the belief that the expenditure was authorised by law and —in awarding penalties— shall have regard to all the circumstances, including that person's means and ability to repay that expenditure or any part of it. The amendment of the noble and learned Lord, Lord Denning, draws such a distinction between unlawful publicity and other unlawful expenditure and is not satisfactory for that reason. Nor is it clear whether his amendment contains the safeguarding elements in the court's discretion, as in Section 19 of the 1982 Act, of which the noble and learned Lord the Lord Advocate spoke at Report stage at col. 728 of the Official Report. The ability of the court to take into account belief in the legality of the expenditure is particularly important. This is because of the uncertainties of adjudging whether or not publicity is caught by the Bill. The local authority associations' fears that the Bill will be a lawyer's paradise have not been dispelled during the course of its progress through Parliament. So, for those reasons, we hope that the House will reject the noble and learned Lord's amendment.

Lord Mottistone

My Lords, I agree with a tiny bit of what the noble Baroness said. I shall not speak in detail on this amendment, which I strongly support, because I put most of the detailed points in my own opening speech on Amendment No. 4 at Report stage. The important point about it is that it limits the provisions of this Bill, which is obviously more practicable than what my noble and learned friend the Lord Advocate encouraged us to do, which was to widen them. I think the noble Baroness said that, if the amendment is applicable to this potential breaking of the law by a local authority, there are a whole lot of other cases which might be similarly treated and—this is where I agree with her—this is something which Widdicombe must take into account. I prepared an amendment which sought to achieve that, but after discussion and on reflection it seemed to me that it was much too late in the proceedings to introduce into this Bill such a widening amendment, because it would mean great consultation throughout the whole range of government and there really was not time for that. But I think it is an important point.

The key to this is that the ratepayer must have quicker access to deal with any breaking of the law by a local authority using ratepayers' money than waiting for the auditor next to do the audit. That is not necessarily so in every case, but some cases are more urgent than others and this general area of political publicity is an urgent one and it has to be dealt with immediately rather than waiting for several months, which is what I expanded on at the other stage of this Bill.

So what comes out of this is that this amendment, if it does not appeal to your Lordships as it stands—though I should like to think that it might—is something about which I hope my noble friends on the Front Bench will give me two assurances. One is that Widdicombe will be formally invited, if that is not automatically part of the Widdicombe Committee's affairs, to study carefully all the reports of the proceedings on this Bill through your Lordships' House, with particular reference to the amendments on the subject which we have under discussion at the moment. That is the first point.

The second point is that I noted that the noble Baroness said she thought Widdicombe would be reporting soon. I hope that that is true and it would be nice to have some reassurance on that. But, above everything, I do not think the matter should be left to get dusty in some cupboard and, when Widdicombe has reported and has convinced your Lordships as a whole that it has properly tackled the problem that we currently have under discussion, I hope that the Government will give an undertaking that if they get a recommendation on these lines from Widdicombe they will take care to bring forward legislation, at least within the next Session, in order to tidy up this process completely before much more time is lost. If it would be possible for my noble friend to give that sort of reassurance, I should be very happy that the noble and learned Lord's amendment had achieved all that it was reasonable for us to expect it to achieve at this stage.

Lord Winstanley

My Lords, I am grateful to the noble and learned Lord, Lord Denning, for bringing forward this new clause, because I believe that it points to what I regard as glaring omissions in the Bill as it now stands. When I first read the original Bill—and I read it without very great satisfaction—I looked in vain for the sanctions. All manner of things were declared unlawful and I wondered what were the sanctions. But I could not find any and I think that the noble and learned Lord is right to draw attention to that.

I think that the noble Lord, Lord Mottistone, said that he agreed with a tiny bit of what the noble Baroness, Lady David, said. Perhaps I should say that I agree wholly with the noble Baroness, Lady David, and that I agree with a little bit of what the noble Lord, Lord Mottistone, said. He recommended that we ought to wait for Widdicombe. I understand that Widdicombe will be dealing with these matters and I hope that when the committee reports on them the Government will take its recommendations on board. I am bound to say that the Government have not hitherto been wholly faithful in their adherence or attachment to the recommendations of Widdicombe, but on this matter they should consider them very seriously.

Before I sit down I should like to make another point. The noble Lord, Lord Sandford, in his comments on various other amendments, pointed to what I regard as one of the great dangers with regard to this Bill. The noble and learned Lord's amendment is related to enforcement. I do not think I need tell the noble Lord, Lord Elton, that I am not entirely happy about what is being enforced. Nevertheless, if certain matters are declared unlawful then there has to be some kind of sanction and some kind of enforcement.

The noble Lord, Lord Sandford, said that one of his fears about this Bill was that it would rightly stop certain local authorities from doing things which were improper, which they should not be doing and which will become unlawful, but that it might very well stop certain other local authorities from doing things which each and every one of us believes they ought to do. While the law remains uncertain, there is a danger that local authorities may be reluctant to do certain things which we would all like to see them doing. Therefore, the sooner there is some satisfactory method of having specific matters tested in the courts, so that local government knows precisely where it stands, the better. I think I agree with the noble Baroness, Lady David, that perhaps this is not the method by which to do it, but it must be done sooner or later and I prefer it to be done according to the recommendations of Widdicombe when they come forward.

3.30 p.m.

Lord Campbell of Alloway

My Lords, on Second Reading I raised three questions which, within the structure of Part II of the Bill, affected prohibition and enforcement, which of course interact. Of these questions, reimbursement in Clause 2 proceedings is the only remaining one. Already on Report it has received attention in the debate on the amendment of my noble friend Lord Mottistone, which was withdrawn. In its stead the noble and learned Lord, Lord Denning, has moved a workmanlike proposal free from any drafting objection which has the merit of total simplicity and intelligibility.

The new clause is designed to perfect the enforce-ment procedures, to fill the gap which was noticed by the noble Lord, Lord Winstanley, and to which he has just referred, in a logical, reasonable and appropriate manner having regard to the limited scope of prohibition: the test of apparent design only. A clause without hint of punitive provision notwithstanding that breach of the prohibition involves disregard not only of the codes of guidance, which have no legal effect, but also of the mandatory safeguards of Clause 2(2), which have full legal efficacy.

I support the spirit of the amendment, as I supported the spirit of the amendment of my noble friend Lord Mottistone. An amendment of the noble and learned Lord, Lord Denning, when moved by him, has a quality of compelling logic, as one would expect from a master of the legal art. However, having studied with care the three short speeches of my noble and learned friend the Lord Advocate at cols. 729 and 731 of the Official Report, there is a clear countervailing argument in which he raised three distinct objections.

Until my noble and learned friend spoke on Report, the attitude of the Government was not known. It is entirely due to the initiative of my noble friend Lord Mottistone that we no longer gaze into the crystal ball only to discern the dim shadow of a sphinx, for now it appears that the tripartite objection is as follows. First, it would be wrong to import a new dimension of liability into the relationship between local government and central government without prior consultation. That was the first point made by the noble Baroness, Lady David.

Secondly, although the surcharge machinery has to all intents and purposes in any relevant sense stood idle, nonetheless it has been kept in mothballs and can be brought into action albeit at one remove by the district auditor in a tardy and somewhat cumbersome fashion—a proposition questioned on the authority of no less than the noble and learned Lord, Lord Denning. Then there was a third objection which again was taken by the noble Baroness, Lady David, in her speech just now. It was that before any decision was taken the Government would wish to consider Widdicombe Part II, no doubt in consultation with the local authorities and in the light of experience.

Surely it has to be recognised that the spirit of this amendment, if put to a Division, could well evaporate in contact with the countervailing argument. An argument which is a matter of political judgment urges cautious restraint in a very sensitive area. As I understand the position, the Government do not say and will not say that the amendment is wrong in principle. What I understand they do say and will say is, "Give us time to consider whether it is right in principle and broadly acceptable". If some such assurance were given along the lines suggested by my noble friend Lord Mottistone, the fons et origo of this important discussion, neither my noble friend Lord Mottistone nor the noble and learned Lord, Lord Denning—nor indeed any of us who has spoken on this matter—will have toiled in vain.

Lord Orr-Ewing

My Lords, I should like to give support to the amendment moved by the noble and learned Lord, Lord Denning. Later, perhaps, I should like to draw attention to other imperfections in the Bill where, if the House does not make amendments, it will have failed to do its duty.

As we are constantly reminded, this Bill is a small bite as a result of the Widdicombe interim report. I should like to be absolutely certain in my mind—and I hope that the Front Bench will be able to reassure me—that the full Widdicombe Report will be seen fairly soon. We should like to have a date. I want to be sure that the Government are going to find time in the legislative programme of the next Session to bring in those parts of the main Widdicombe Report which they believe are necessary, and possibly at the same time to patch and stop any holes which have been found in the existing Bill.

I cannot help feeling that no Act of Parliament is perfect and none is effective unless there are built-in sanctions. Here I go along absolutely with the noble Lord, Lord Winstanley. I was hopeful that the Liberal and Alliance Benches were going to give solid support to the Government. But then, of course, there was a little backing down—"There is a tiny bit we like, but we like mainly what the Opposition said". That is what their votes always do in this Parliament. I support the noble Lord's idea of sanctions, and I wish he had endorsed it more forcefully. The sanctions must be relatively quick, they must be effective, they must be fair and they must be relatively cheap. Sanctions are really useless—we had some examples quoted from the Front Bench—if they are slow, ponderous, complicated and of such heinous cost that no citizen can afford redress.

Lord Winstanley

My Lords, I am most grateful to the noble Lord for giving way. The noble Lord quoted me, and he referred to the fact that he hoped that noble Lords on these Benches would be supporting the Government on this amendment. This is not a Government amendment. We have not yet heard the Government's attitude.

Lord Orr-Ewing

My Lords, I did not feel that the noble Lord was wholeheartedly behind the points made from these Benches. I was disappointed that the noble Baroness, Lady David, who spoke from the Front Bench, had not at last come to say, "Here is a way out". People always plead that this is not the moment. It is a standard recipe. They say that this is not the moment, that this is not the way and that this is not what one ought to do, and they therefore turn it down. One becomes a little frustrated in hoping that the day will come when they say, "Yes; here is a quick, simple and effective way of bringing transgressors to book, and we will support it". It would make a nice change.

We have heard arguments that the district auditor or the independent auditor should do this. I was glad that the noble and learned Lord, Lord Denning, dealt with this point. But as the noble and learned Lord rightly said that is at least one and a half or two years away, and, meanwhile, the publicity and the costs go on accruing. We were also told that the Ombudsman might look at these matters. The local government Ombudsman is responsible for maladministration. There have been cases of maladministration and the misuse of moneys. But as was reported in The Times recently, the House of Commons Select Committee is finding that the Ombudsman is being totally disregarded by local government. This has not proved a way out at all, so that is also a dead duck.

Finally, at Report stage we were asking our noble and learned friend the Lord Advocate how many times the existing law as set down in Section 19 of the 1982 Act had been used during the past four years. The answer was, twice—and in neither case had it been effective. So surely the 1982 Act is not a matter that can be put right, and this amendment seems to me to be a way of dealing with the matter acceptably.

I hope that democrats in all parts of the House will support this amendment in spirit. I hope also that the formula that my noble friend Lord Mottistone so rightly, sensibly and moderately put forward is one that will commend itself to the Government. Unless we do something of this kind, I am afraid that those people who are trying to make a nonsense of government and who are disregarding the wishes of the majority of their ratepayers—and who, above all, are disregarding their ratepayers' purses—will not be brought to book under the present legislation.

Lord Sandford

My Lords, I hope that my noble friend will firmly resist this amendment for all the reasons that the noble Baroness, Lady David, gave—but most particularly, for the reason that it is a matter upon which the main Widdicombe Committee has yet to report.

Lord Elton

My Lords, I start by commending my noble friend on his brevity. The noble and learned Lord, Lord Denning, has proposed with his usual brevity and clarity an amendment that is intended to bring closer to the hand of the private citizen a remedy when the terms of Part II of the Act are broken. I see the attraction of giving to the ordinary ratepayer a recourse to the courts when he feels that those who collect his money to pay for local government use it for other purposes that may not be in his interest at all. It is clear that there is some sympathy with that view all around the House.

That principle is not a new one. As my noble and learned friend the Lord Advocate reminded the House at the last stage of this Bill, and as the noble and learned Lord, Lord Denning, himself reminded us a moment ago, Section 19 of the Local Government Finance Act 1982 already provides a route by which a local government elector aggrieved in that way can seek redress from the court. However, as my noble friends have also reminded the House, that route is a rather different and longer route, because the ratepayer may not embark upon it until the auditor has had an opportunity to make the challenge and has decided not to make it. It is, as it were, a ratepayer's default power and therefore lacks the directness of that which the noble and learned Lord now proposes—although it does of course lead eventually to possible surcharge and disqualification.

As well as that, there is the route of judicial review, but the court cannot in such cases order repayment. The noble and learned Lord pointed out that the provision in Section 19 would not bite on offending councils and councillors if there was no item of account into which to sink its teeth. Having heard the noble and learned Lord say that, I was a little puzzled then to look at subsection (2) of his proposed new clause, to see what the teeth of the High Court were to do, and to find that: On any such application, the High Court may order that any person responsible for incurring or authorising any expenditure on such unlawful publication shall repay it in whole or in part to the local authority concerned". That seems to me to be precisely the same juicy lump of flesh into which the noble and learned Lord is suggesting that his amendment should sink its teeth—and if it is not there in the one case, then of course it will not be in the other.

If the existing law is narrower than that which the amendment proposes, then it is in another sense a great deal wider. That is because the noble and learned Lord's proposal relates only to expenditure on the publication of material contrary to the provisions in the Bill, whereas the provision in the existing statute can be used against expenditure that is contrary to law in any respect and covers the whole gamut of council activity. In that respect the noble and learned Lord's proposal is much more limited in its approach than both the existing law and judicial review, which can of course bear on any decision questionable at law. The amendment gives a quicker recourse for the private individual but on a very much narrower front.

At this point we need to pause for a moment and lift our eyes from detailed scrutiny of the Bill before us, to consider the context within which it is being enacted. That context is a regrettable decline in the observance by some local authorities of the canons of behaviour that most of us had taken for granted for more than a generation.

Part II of the Bill addresses an aspect of that decline that has excited particular concern and criticism, and upon which there was considerable pressure to legislate. It is a narrow aspect, and our proposals are similarly narrow. The conduct with which we are concerned relates to publicity, and it is to publicity that our proposals are addressed. It is perfectly proper that the noble and learned Lord's amendment is addressed to that same narrow subject, and that the remedy he proposes for the aggrieved ratepayer is a remedy only against a breach of the constraints set down in the Bill on publicity and expenditure upon it.

3.45 p.m.

However, the conventions that used to bind all local authorities, and which some local authorities now consistently breach, go far beyond publicity. It is true that Widdicombe reported first upon publicity—and this Bill is one of the fruits of his early labours. However, that report was an interim report, and there is another to follow that covers much wider ground. It will touch on many activities other than publicity, and many of those acitivities will involve some form of expenditure. In those cases, too, the proper recourse for an individual aggrieved by improper conduct is more than likely to be a challenge in the courts to the improper expenditure that resulted from it.

It seems to me that in that case, the proper course for us to follow would not be to deal with improper expenditure piecemeal—as the noble Baroness, Lady David, suggested we should not—according to the type of activity on which the expenditure was incurred, but across the board, as is now the case with both Section 19 and judicial review. That is something it is not possible for us to do in this Bill with its limited purpose. That would be to tackle a large issue piecemeal. Here I am glad to find myself in the unfamiliar position of being on common ground with the noble Baroness opposite, and in the rather less unfamiliar position of being on the same ground as my noble friend behind me.

Even if it were proper to do that, I do not believe that it would be right to do so until we were able to see, consider and react to the main Widdicombe Report later this year. Our position is as my noble friend Lord Campbell of Alloway has suggested, and I much regret therefore that I have to tell my noble friend Lord Orr-Ewing that in that context, the hackneyed government response that he has heard so often from this Dispatch Box, regardless of which Minister or indeed which party has been behind it, is the right one; and that this is neither the right time to take such action nor the right Bill.

The main Widdicombe Report will in great part be a response to the anxiety that we have expressed about accountability for decision-making in local authorities. It will be very necessary for us to consider it before we decide how and by whom the decision-makers shall be held to account, and what penalties they shall suffer when they are found to have abused their responsibilities. The noble and learned Lord will therefore realise that I do not consider that it would be appropriate to press his amendment at this stage.

In case I have not persuaded the noble and learned Lord of that, I briefly remind him that Part II applies not only in England but also in Scotland. I am sure that this is an unnecessary reminder, but the legal machinery devised in this amendment does not fit into or take account of the differences between English and Scottish law and procedure. Thus, jurisdiction to hear an application by a Scottish ratepayer would lie with the Court of Session and not with the High Court, while Scottish procedure would require an application for declarator and interdict and not a declaration and an injunction. The amendment as presently framed would therefore have no effect in Scotland, but I am sure that the noble and learned Lord was aware of that point and was about to tell me that it would be our job to put that right, if he were to proceed.

Lord Denning

My Lords, I should like to thank all noble Baronesses and noble Lords for their contributions. I am sure that they will be most useful to Mr. Widdicombe and his committee when they have to consider this matter. I should just like to round this off—

Lord Mottistone

My Lords—

Lord Denning

—by quoting what Widdicombe stated at the conclusion of the interim report.

Lord Elton

My Lords, I am in some difficulty. I thought that the noble and learned Lord was merely intervening. He is right in detecting the almost immediate conclusion of my speech, but he anticipated it by a fraction.

Lord Denning

My Lords, I thought that, with Scotland, the Minister had finished.

Lord Elton

One often has, my Lords, but not on this occasion. I was only going to add to my noble friend Lord Mottistone, who wisely and in your Lordships' interest withdrew his own amendment—and I am grateful to him for saving time thereby—that, first of all, I undertake, and repeat my undertaking, that I shall draw to the attention of the Widdicombe Committee the proceedings of your Lordships' House on this Bill and particularly on this amendment.

Secondly, I should say that the timing of the report is, of course, a matter for the committee itself, but we understand that it should be presented in May with a view to publication in June. It is a wide-ranging report and the Government will consider very carefully its recommendations and the need for legislation. I cannot at this stage give an undertaking on the timing of any subsequent legislation, but I can assure my noble friends that we are very much seized of their concerns on the need to ensure that when we legislate that legislation actually bites on the offender.

In the meantime, I believe the flavour of the noble and learned Lord's earlier remarks—in a sense, I am intervening in his speech—suggests that I am right in believing that he considers it would be premature to put this amendment into the Bill until we have seen the major Widdicombe Report.

Lord Denning

My Lords, I am sorry I intervened too soon. I was about to refer to a very important passage in the Widdicombe Report, at paragraph 243. It states: We are very conscious that the main part of our work lies ahead. One of the questions we shall have to consider in our Main Report is the rights of the public to challenge local authority activities and decisions. This is a wide issue on which we have already asked for views from the local authority associations, the local Ombudsman, the Audit Commission and others concerned. At that time we shall be looking to ensure that the citizen has a prompt, effective, inexpensive and local remedy for dealing with complaints about local authorities". There it is. I welcome the assurance and the contemplation; the fact that my noble friend expects the main report in May, which is very good, and that in June we shall be getting it. I welcome very much the assurance that when the report is received the Government will act on it promptly. Let us get on with the good work of enforcing the law. In the circumstances, I do not press my amendment and beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 3 [Other restrictions of existing powers]:

Lord Kilmarnock moved Amendment No. 2: Page 2, line 34, after ("below") insert ("or by other bodies mentioned in subsection (1C) below;").

The noble Lord said: My Lords, I rise to move Amendment No.2 and to speak to Amendments Nos. 4 and 5 standing in my name and supported, I am glad to say, by the noble Lords, Lord Sandford and Lord Hayter, the noble Baroness, Lady David, and, incidentally, by all the local authority associations. Amendment No. 2 is a paving amendment. Amendment No. 4 refers to England and Wales, and Amendment No. 5 refers to Scotland. Therefore, the three amendments belong together.

Last week at the Report stage of the Bill I drew attention to the unsatisfactory way in which Clause 3(1) drastically limits the scope of legitimate local government information and publicity. It does this by removing the words, as to local government matters affecting the area", from Section 142 of the Local Government Act 1972, and substituting the narrower phrase, relating to the functions of the authority"— that authority only.

The noble Lord, Lord Elton, responded to earlier criticisms of this clause when he moved a Government amendment—Amendment No. 6, I believe—which widened the original clause a little by including other local authorities in the area as well as joint boards of local authorities. This step is to be welcomed, but in our opinion it does not go quite far enough.

On Report I argued (reported at col. 739 of Hansard for 13th March) that the subsection should be extended to cover the work of public bodies and government departments. I was pleased that the noble Lord, Lord Elton, did not immediately refute my point when he replied and instead suggested (at col. 741) that I should raise the matter on Third Reading. I am now following that advice and urging this amendment on him.

I should tell the House that the amendment has been drafted by the legal advisers to one of the local authority associations. I believe that it enables us to make a better job of Clause 3(1). Incidentally, we have had very little time since Report to get our amendments drafted and printed, and virtually no time for them to be widely circulated and made available to other noble Lords who might be interested. I should like to register my protest on that point. Even so, I believe that the amendment is technically correct. If I am wrong, the noble Lord will correct me.

The effect of the amendment is to add to Clause 3 a group of public utilities, plus the health authorities and the postal and telephone services. The statutory undertakers mentioned in the amendment, and defined in the Town and Country Planning Act 1971 and its Scottish equivalent, are mainly transport operations on road, water, railway or tramway, together with the relevant docks and harbours and the main public utilities; that is, gas, electricity and the water supply. Incidentally, on Report (at col. 738) the noble Lord, Lord Elton, said that sewerage was already covered, but my understanding is that that now comes under the remit of the regional water authority, and the noble Lord might like to clear up that point. In any case, it would be covered under my amendment. The statutory undertakers are those I have already mentioned.

I have striven not to widen this clause one iota more than is strictly necessary for the proper working of local authorities. The noble Lord will note that I have not even included the DHSS in my list of relevant bodies because of an assurance given by him at the bottom of col. 738 where he says: Incidentally, the difficulty which I think the noble Lord, Lord Hayter, put before me of a local authority anxious to assist a voluntary body promoting an advice service for take-up social security is swept up in the list of responsibilities which I have already read out". I hope that the noble Lord can reaffirm that. I assume it is because such advice services are covered by the aims and objectives of the voluntary bodies concerned. For that reason I did not include social security matters in the amendment, but I would certainly welcome his assurance on that point.

The reason why we should widen this clause a little further than the noble Lord has done is to keep it in line with the powers which local authorities of all parties have used for nearly 40 years. Section 142 of the 1972 Act is based on wording which goes back, as I understand it, to the 1948 Act, and it has enabled districts and county councils, especially in rural areas, to comment on and give information about other public services in their area.

In doing this work local authorities are representing their communities. They are directly responsible to their electors through wards which are often so small that councillors are personally known to most of the voters, and so genuine local democracy is properly taking place. If the local council decides to take a view or to issue information about, for example, the closure of a sub-post office, the state of the rural bus services, developments of local hospitals, or the electrification of a railway line, it has up to now been able to do so. For example, the electrification of the Tonbridge to Hastings line was achieved, I understand, largely as a result of a local authority campaign which would be banned by the Bill as it now stands.

Conservative authorities, no less than Alliance and Labour authorities, have made good and sensible use of these powers. Why should they be taken away just because a few maverick councils abuse Section 142 with publicity campaigns about defence and foreign affairs?

4 p.m.

This amendment is expressly and tightly drafted to rule out the abuse which was rightly condemned by the noble Lord, Lord Elton, where he deplored: the spectacle of London boroughs pursuing their own defence and foreign policies on the hoardings in their streets".—[Official Report, 17/3/86; col. 736.] At the bottom of the same column the noble Lord ridiculed—quite rightly, in my view—the idea that local authorities should spend public money as if they had the powers to make treaties or declare war. We agree with him, but it is one thing to try to stop that abuse which goes well beyond what we all understand to be the concerns of local government; it is quite another to place restrictions on local government information work which may completely alter its role as a voice for the community on genuinely local affairs.

In our view, it is not right to make such a fundamental change to rights and procedures which have existed since 1948 under the guise of a Bill dealing with recent and rather special exceptions to the standards which most local authorities have always adopted in their publicity work. We are being asked to throw out the baby with the dirty bath water.

I should like to conclude with a reference to Widdicombe. On page 8 the report specifically agrees with the proposition that local government is more than the sum of the particular services provided". As your Lordships are well aware, Widdicombe rejected the idea of narrowing Section 142, and in that respect Mr. Widdicombe and his committee were only repeating the view advanced by the Bains Report as long ago as 1972, when it said: Local authorities have a firm duty to inform the community of their activities and to put the council's view on matters of concern to that community". We should not go back on that view in this Bill.

In my submission this amendment improves the text of the Bill; it widens its scope to cover traditional matters of local government concern, without thereby permitting excesses and abuses which are now outlawed under Clause 2 of the Bill. It certainly does not drive a coach and horses through the clause. At Report stage the noble Lord, Lord Sandford, said that we were being offered something between a third and a quarter of the loaf. I should say that on that scale this amendment presses for half a loaf. We think that is a very reasonable proportion of the loaf to request from the noble Lord, and on those grounds I commend the amendment to your Lordships' House. I beg to move.

Lord Sandford

My Lords, I should like to support this amendment. In fact, my name is on the Marshalled List. Before speaking to the amendment, however, I should like to say, in agreement with the noble Lord, Lord Kilmarnock, that I think it was a mistake for the House to have agreed to the foreshortening of the normal time that should elapse between the Report stage and the Third Reading of a Bill of this kind.

Amendments Nos. 2, 4 and 5 ought not to have been put down yesterday for the department to consider and deal with in less than 24 hours. They are amendments which ought to have been discussed with my noble friend, so that, if possible, one could arrive at a satisfactory compromise. It is only the lack of time that has made that impractical. I think that is something which this House will want to guard against in the future.

To return to Clause 3, this, as the House will remember, deals with Section 142 of the 1972 Act. The Widdicombe Committee proposed quite categorically that Section 142 of the 1972 Act should be left unchanged, and it went on to argue closely the reasons which were put to it for either narrowing or widening its scope. That is the conclusion to which it came.

My noble friend spent considerable time at the Committee and Report stages of this Bill explaining that the Government have taken a different view. I think that he has been rather short on explanations as to why the Government have taken a different view. Certainly the changed circumstances since the Widdicombe Committee report would have led most people to the conclusion that it was not necessary to be as rigorous now as might have been thought to be the case last July, but we do not need to go over all that again.

As the noble Lord, Lord Kilmarnock, has clearly set out, this amendment is an attempt to widen the scope of the publicity which the Bill now allows in respect of a whole number of issues which hitherto have been thought to be the perfectly normal concern of all local authorities. These are matters about which they normally issue publicity either in support or in criticism of what the statutory undertakers and others listed in this clause are going to do.

I should like to give your Lordships a few examples. Who would have thought that it was at all out of the way or extraordinary that the Cumbrian County Council and the Eden District Council should engage in publicity, as indeed they are doing, against the closure of the Settle-Carlisle railway line? Who would have thought it improper and regarded it as out of the ordinary if the borough council of Wolverhampton publicised, perhaps in support of it, something which the British Waterways was doing in connection with the canal which passes through that borough? Surely it would be quite unreasonable for the city of Northampton to say nothing about where British Telecom intended to put a number of new call boxes in one of its suburban areas. Why on earth should the Suffolk County Council not engage in publicity perhaps in criticism of what the Anglian Water Authority was doing about the banks of the river Orwell?

All these actions are perfectly normal, but without this amendment they would be excluded from those matters about which local authorities can engage in publicity. For those reasons and many others like them which I need not mention, I urge this amendment on my noble friend.

Lord Mottistone

My Lords, I also should like to support this amendment and to continue from where my noble friend Lord Sandford has just ended. My noble friend the Minister very splendidly put down Amendment No. 6 at Report stage, and it was accepted by your Lordships. It gave effect to his undertaking to pay regard to my amendment, Amendment No. 13, at the Committee stage.

My amendment had greater wideness, if that is the word. It did not cover these authorities, but perhaps that was an oversight rather than anything else. However, it did speak about voluntary bodies and charities. In his remarks on Amendment No. 6 at Report stage (which I should have picked up at the time) my noble friend did not give me any reassurance, and I did not call for it, as to whether voluntary bodies and charities were automatically encompassed within Section 142, as amended by what is now subsection (2) of Clause 3 of this Bill. It would be helpful to have that reassurance.

The splendid examples which my noble friend Lord Sandford gave of the actions which may be in jeopardy if the amendment is not passed could be widened to cover various forms of charities and voluntary bodies which are respectable. I should be grateful if my noble friend the Minister, when he comes to reply, could reassure me that the matters that were originally in my Amendment No. 13 at Committee stage are fully taken care of by the Bill as it stands at the moment.

Lord Campbell of Alloway

My Lords, I should like to oppose the amendment. It is not readily understood why the general powers to provide information should be extended beyond the scope of existing powers as proposed in this set of amendments, Amendments Nos. 2, 4 and 5, to statutory undertakers, health authorities, the Post Office and British Telecom. By concession, the noble Lord, Lord Kilmarnock, says that the object is (and this is at col. 739 of Hansard, to which he referred) to enable a voice to be heard on matters which are not strictly related to their functions. How can it be necessary to the proper working of local authorities that their voice should be heard on matters which, by concession, are not strictly related to their functions? The examples given by my noble friend Lord Sandford do not, with respect, quite seem to meet the point in a Bill which is concerned with a prohibition. Any extension of general powers to provide information must inevitably offer some indirect means of getting round the prohibition.

My noble and learned friend the Lord Advocate, albeit in another context, referred to this danger at col. 712 on Report: a prohibition which, let us face it, is narrowly defined and cannot bite even where the publication may affect or is likely to affect, or, indeed, has affected, public support for a political party, unless on objective analysis the material appears to be designed to affect such support. For this is the sole test. The alternative route to prohibition, and the intendment of this Bill as a whole, was bound by the excision of the second limb of Clause 2(1). Furthermore, there are the safeguard provisions of Clause 2(2), which again protect the local authority from undue restraint as regards the provision of information. This, again, was confirmed by my noble and learned friend the Lord Advocate on Report at col. 722.

Surely this amendment, if included in the Bill, would carry into a safe area of activity the possibility—I put it no higher, and surely that is enough—of activities which could otherwise fall within the prohibition, some of which would appear to lie more properly within the area of central government. As the whole intendment of the Bill, and in particular Part II, is to prevent abuse of ratepayers' money for political purposes—an abuse indulged in by only a handful of local authorities, as my noble friend Lord Elton has emphasised on more than one occasion—general legislation has to be introduced.

In considering the merits of this amendment, surely one has to have regard to the way in which the proposed extension would put power in the hands of local authorities, and one has to have regard to the way in which this would be used or abused by the minority, and not by the majority. This is no doubt unfortunate, but it is a fact of life. We have to face up to it in the circumstances in which we now live.

One has to bear in mind that the safeguard provisions in Clause 2(2) have been very substantially enhanced by the excision of the second limb of Clause 2(1), as my noble friend the Lord Advocate also confirmed on Report. This, in conjunction with the limited prohibition in Clause 2(1) as it now stands, I respectfully suggest to those who think otherwise does show that there really is no need for this amendment, and that it could open the door to the possibility of abuse by indirect means. We just cannot afford to take that risk.

4.15 p.m.

Baroness David

My Lords, I should like very briefly to express my support for this amendment. My name is set down to it. I think the noble Lord, Lord Sandford, put the case admirably. He expressed the broader view of local government, and the noble Lord, Lord Campbell, the narrower view of what local authorities can do.

I should also like to say that the Minister almost invited this amendment on Report from a speech made by the noble Lord, Lord Kilmarnock, and, indeed, a speech that I myself made, so I hope he is getting ready to accept it!

Lord Elton

My Lords, the noble Baroness has ignored the context of my speech, as sometimes she is tempted to ignore the context of the Bill. I was inviting the noble Lord, Lord Kilmarnock, to consider that his ambition of amending this part of the Bill could not be satisfied if he assisted in removing it from the Bill altogether. I thought thereby that by cold logic and a warm human sympathetic approach combined I would persuade him to vote for the Government in the Lobbies but I failed. However, having failed to get his cake in one direction he is trying to eat it in another.

I recognise that the time available for the drafting, printing and indeed consideration and discussion of these amendments has been limited. I would say to the noble Lord, Lord Kilmarnock, that since he made a formal protest I take it he was speaking as his party's Chief Whip. I did understand that he had been notified of the proposal 14 days in advance, and I was not aware that this was something that gave him concern. If I am incorrect in that, I am merely trespassing on the normal channels, where no unsanctified feet of a non-Whip belong and I apologise.

The amendment of the noble Lord, Lord Kilmarnock, seeks to amend that part of the Bill which, in turn, seeks to amend two other Acts; that is to say, the Local Government Act 1972 in Section 142, and the Local Government (Scotland) Act in Section 88. The purpose of the amendments proposed in the Bill as now drafted—and it is difficult because I am referring to amendments that are actually in print as part of the Bill because they are proposed to amend another Act—is to narrow the description of permitted expenditure on publicity to expenditure on publicity which relates to the functions of local authorities and the services provided by them. In our original drafting this description was so drawn as to limit the expenditure to publicity about the authorities' own functions and services.

In response to much anxious pressure from within the House and elsewhere, we widened that drafting to include the functions and services of all tiers of local government so that an authority at any level could publicise its own functions and services and also the services of the relevant authority at every other level of local government in their area. Your Lordships felt at first that this was a step in the right direction, but a very small one. I hope that my reply to that debate, and the list of powers to which I was able to refer as giving authorities a right to give publicity about them, did something to reassure your Lordships that it was, in fact, rather a larger step than had at first been supposed.

At this point, may I confirm to the noble Lord, Lord Kilmarnock, that social security and welfare benefits are government department services and are therefore covered by Section 142(1). An authority may accordingly make or assist in the making of arrangements for information about benefits to be available on application; for example, at an advice centre. That was the specific confirmation that he wanted, and I am glad to give it.

The noble Lord now proposes to make that step a good deal larger still, and to give to local authorities a right to spend money on publicity about services provided by organisations which, for the most part, have fairly considerable publicity accounts of their own. His amendments attempt to attract the definitions in Section 290(1) of the Town and Country Planning Act 1971 and the equivalent Scottish provision of statutory undertakers. These cover those authorised by statute to provide railway, light railway and tramway services; all road transport services, freight as well as passenger; water transport, canal, dock, harbour, pier or lighthouse undertakings; and suppliers of gas, electricity, hydraulic power and water. Apart from these, the noble Lord wishes to bring in health authorities, postal services and other services provided by the Post Office, and also services provided by British Telecom.

We doubt the necessity or the wisdom of that. It is not just the Government who have those doubts. There are the doubts of the Widdicombe Committee itself. As I emphasised at Report stage, the Widdicombe inquiry did not consider that local authorities should be permitted to publish any material that was in the interests of the area even if it did not relate to local government". The committee was very firm on this point. It went on to say that having agreed that local government is more than the sum of the services it provides, it does not follow as a natural consequence that publicity powers should be widened in this way". I accept, of course, that Widdicombe's conclusion, as my noble friend Lord Sandford and the noble Lord, Lord Kilmarnock, were quick to remind us, was that the protection that we seek could be achieved without a change in the existing law. But that appears to me to result from the fact that Widdicombe's interpretation of the law coincides with our interpretation of what was the intention of Parliament when the law was made, but did not recognise the much wider interpretation of that law by local authorities that has resulted in the abuses that we now seek to check. Whether I am right or wrong in that inference or assumption, the fact remains that we have studied, with an intensity sharpened by the interest of the present Parliament, how the protection could be achieved without amending the law so as to ensure an interpretation narrower than that now current in some quarters.

I have to tell your Lordships that we have come to the conclusion that it cannot be done. That is the short but, I think, sufficient answer to the concern of my noble friend Lord Sandford as to our reasons for differing from Widdicombe about the need to change the law. An amendment is therefore required along the lines of the one that the noble Lord, Lord Kilmarnock, now asks your Lordships to alter.

The result of what we propose is no strait jacket in view of the considerable extent of the authorities' existing powers and the services that they provide. I had intended to add something at this point, but I do not know what it was. It was labelled "C". No doubt the noble Lord who does not receive an answer will remind me when I come to sit down. We need therefore to consider what it is that the noble Lord now asks us to do to loosen this jacket that is not a strait-jacket. The list that I read out a moment ago of the bodies embraced by these amendments would apply where local authorities did not have any relevant functions. The amendments seek something aproaching a general competence for local authorities but by another name. They go well beyond what we believe to be the original intentions of Section 142 and beyond any reasonable definition of local government matters.

The noble Lord, Lord Kilmarnock, raised the matter of sewerage, saying that this would not be covered as it goes to a water authority and is that authority's function. Certainly, sewerage is a function of a water authority. But local authorities can comment on sewerage and sewage disposal matters when these involve their environmental health function, as inevitably they will, and also, where appropriate, in relation to their carrying out of sewerage works, such as repairs and replacements, as agents for the water authorities.

I turn now to the cogently put interpretation of my noble friend Lord Campbell of Alloway, when he set out for your Lordships the general effects of what these amendments propose. I should like to focus on them a little closer. I would say to my noble friend Lord Sandford that, although the Bill would not permit a local authority to carry out an advertising campaign about a proposed rail closure or about the treatment of the banks of a river, there is no reason whatever under the Bill why an authority should not lobby British Rail about such a closure in the traditional way. But, as Widdicombe rightly said, publicity and the dissemination of information are quite different from lobbying. We have no intention of intervening in the lobbying function.

To turn back, if I may, to what my noble friend Lord Campbell of Alloway said, I should like to focus on the unlooked-for results of the amendments. A specific effect of the amendments in the area most directly concerned with this part of the Bill, with which your Lordships are also concerned, would be to permit every local authority, provided it refrained from references to political parties and so on, to campaign either in the near future against, for instance, the privatisation of British Gas, in which they might have the support of noble Lords opposite, although mistakenly, or, in some more remote and questionable future, against a possible proposal by central government to renationalise British Telecom, which would infuriate them.

Noble Lords could find themselves on either side of these debates. But they will surely be able to agree that they are not activities on which local authorities should properly spend public money. I am making a mess of this, because I wanted now to wind up. I have, however, found what I wished to say in response to my noble friend Lord Mottistone. He asked me whether voluntary bodies would be automatically encompassed. Under Section 142(1), local authorities may still make arrangements for information about the services provided by charities and voluntary organisations to be made available on application. On the other hand, the new subsection (1A) only allows the local authority to arrange for the publication of information as to the services provided by the bodies in the new subsection (1B). I hope that this has given my noble friend the reassurance that he wants.

Not only have I tried to show, perhaps in not so cogent a way as I would have wished, that the areas in which local authorities may use their funds to publicise, to make matters public, are wider than your Lordships supposed at the beginning of Report by reason of the list that I then gave—a list that is far from complete and parts of which I have reaffirmed today—but I have also shown your Lordships, in the able company of my noble friend Lord Campbell of Alloway, that if you were so to enlarge the permission in the Act to publicise matters you would actually be opening a very wide gate through which the abuses that the whole of this Bill is about would freely range. I hope that your Lordships will not accept the amendment.

Lord Kilmarnock

My Lords, I am grateful to the noble Lord, Lord Elton, for his thorough response to the amendment. I am also grateful to the noble Lords, Lord Sandford and Lord Mottistone, who supported it. The noble Lord, Lord Sandford, from the great background of his knowledge, gave some much more concrete instances of legitimate activities which local authorities would be inhibited from carrying on if this amendment was not passed. I think that was a very useful contribution to the debate.

The noble Lord, Lord Campbell of Alloway—in the words of the noble Lord, Lord Elton—made a cogent intervention, as he always does. But I am not quite sure whether the cogency leads one to the conclusion which he drew. The noble Lord said that local authorities would be protected for legitimate campaigns under Clause 2(2); but if a campaign is already prohibited under Clause 3 it can hardly claim protection under Clause 2.

The other thrust of his speech was that this amendment would be giving a handle to the bad boys, the mavericks—the 13 authorities who abused their position—by whatever name one chooses to call them. However, I pointed out in my opening speech that the amendment is extremely tightly drafted and Clause 2(1) in the Bill bites on all types of information which are improperly put over with a political gloss on them so that the "bad boys" would already be caught by that clause.

I was grateful to the noble Lord, Lord Elton, for confirming that information on social security is covered, although I think he said that it was covered only if it was available at an advice centre, and that cast some doubt as to whether it could be pushed out in a wider form.

The noble Lord, Lord Elton, also said that Widdicombe did not push for any widening of the powers. The point is that Widdicombe was considering two options, one of narrowing Section 142; and the other of widening it. What they rejected was widening Section 142, not widening the Bill as it now stands. That is a rather important point. They went straight down the middle and said, "No, we should not narrow Section 142 and nor should we widen it". This amendment is well within the existing limits of Section 142.

I also think it reasonable to take exception to the assertion of the noble Lord, Lord Elton, that such matters as the siting of post-boxes in a village, or closing of a rural post office, or the management of a waterway or a canal which is an important local amenity, are not matters of proper concern for a local authority. I should have thought that they were pre-eminently so.

On privatisation of British Gas or the renationalisation of British Telecom—if either of those events should ever come about—I should have thought that any improper political publicity paid for out of ratepayers' money is already well catered for and well covered under Clause 2 of the Bill.

On all those grounds, although I am grateful to the noble Lord for the attempt he has made, I am not satisfied with it and I shall have to test the opinion of the House.

4.34 p.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided; Contents, 103; Not-Contents, 146.

Airedale, L. Hampton, L.
Alport, L. Hanworth, V.
Amherst, E. Harris of Greenwich, L.
Ardwick, L. Hatch of Lusby, L.
Attlee, E. Hayter, L.
Aylestone, L. Heycock, L.
Banks, L. Houghton of Sowerby, L.
Birk, B. Hunt, L.
Blease, L. Ilchester, E.
Blyton, L. Irving of Dartford, L.
Boston of Faversham, L. Jacques, L.
Bottomley, L. Jeger, B.
Buckmaster, V. Jenkins of Putney, L.
Campbell of Eskan, L. John-Mackie, L.
Caradon, L. Kagan, L.
Carmichael of Kelvingrove, L. Kearton, L.
Chitnis, L. Kilbracken, L.
Cledwyn of Penrhos, L. Kilmarnock, L. [Teller.]
Collison, L. Kirkhill, L.
Crawshaw of Aintree, L. Kissin, L.
David, B. Leatherland, L.
Davies of Penrhys, L. Llewelyn-Davies of Hastoe, B.
Dean of Beswick, L. Lloyd of Kilgerran, L.
Denington, B. Lockwood, B.
Donaldson of Kingsbridge, L. Lovell-Davis, L.
Elwyn-Jones, L. Mackie of Benshie, L.
Ennals, L. McNair, L.
Ewart-Biggs, B. Milford, L.
Fisher of Rednal, B. Mishcon, L.
Flowers, L. Molloy, L.
Gallacher, L. Mulley, L.
Galpern, L. Nicol, B.
Gladwyn, L. Oram, L.
Glenamara, L. Parry, L.
Graham of Edmonton, L. Pitt of Hampstead, L.
Grey, E. Ponsonby of Shulbrede, L.
Rathcreedan, L. Taylor of Gryfe, L.
Ritchie of Dundee, L. Taylor of Mansfield, L.
Rochester, L. Tordoff, L.
Ross of Marnock, L. Turner of Camden, B.
Sandford, L. Underhill, L.
Seear, B. Wallace of Coslany, L.
Sefton of Garston, L. Walston, L.
Serota, B. Wedderburn of Charlton, L.
Shackleton, L. Wells-Pestell, L.
Shepherd, L. Whaddon, L.
Simon, V. Wheatley, L.
Stallard, L. White, B.
Stedman, B. [Teller.] Wigoder, L.
Stoddart of Swindon, L. Winchilsea and Nottingham, E.
Strabolgi, L.
Taylor of Blackburn, L. Winstanley, L.
Ailesbury, M. Hood, V.
Airey of Abingdon, B. Hooper, B.
Alexander of Tunis, E. Hunter of Newington, L.
Allerton, L. Hylton-Foster, B.
Auckland, L. Inglewood, L.
Beaverbrook, L. Kimball, L.
Belhaven and Stenton, L. Kimberley, E.
Beloff, L. Kinloss, Ly.
Belstead, L. Kitchener, E.
Birmingham, Bp.
Brabazon of Tara, L. Lane-Fox, B.
Brentford, V. Lauderdale, E.
Brougham and Vaux, L. Lawrence, L.
Broxbourne, L. Layton, L.
Butterworth, L. Loch, L.
Caithness, E. Long, V. [Teller.]
Cameron of Lochbroom, L. Luke, L.
Campbell of Alloway, L. Lurgan, L.
Carnegy of Lour, B. Lyell, L.
Cayzer, L. McFadzean, L.
Chelwood, L. Macleod of Borve, B.
Coleraine, L. Malmesbury, E.
Colville of Culross, V. Mancroft, L.
Cork and Orrery, E. Mar, C.
Cottesloe, L. Marley, L.
Cox, B. Marshall of Leeds, L.
Craigavon, V. Massereene and Ferrard, V.
Cullen of Ashbourne, L. Maude of Stratford-upon-Avon, L.
Davidson, V.
De Freyne, L. Merrivale, L.
De La Warr, E. Mersey, V.
Denham, L. [Teller.] Middleton, L.
Denning, L. Milverton, L.
Dormer, L. Montagu of Beaulieu, L.
Drumalbyn, L. Mottistone, L.
Dundonald, E. Mowbray and Stourton, L.
Effingham, E. Norrie, L.
Ellenborough, L. Nugent of Guildford, L.
Elliot of Harwood, B. Onslow, E.
Elliott of Morpeth, L. Orkney, E.
Elton, L. Orr-Ewing, L.
Erne, E. Pender, L.
Ferrier, L. Plummer of St Marylebone, L.
Fortescue, E.
Fraser of Kilmorack, L. Portland, D.
Gainford, L. Radnor, E.
Geddes, L. Renton, L.
Gibson-Watt, L. Rochdale, V.
Gisborough, L. Rodney, L.
Glanusk, L. Romney, E.
Glenarthur, L. Russell of Liverpool, L.
Gray, L. St. Aldwyn, E.
Gray of Contin, L. Saint Levan, L.
Gridley, L. Saltoun of Abernethy, Ly.
Grimthorpe, L. Sanderson of Bowden, L.
Hailsham of Saint Marylebone, L. Selkirk, E.
Sempill, Ly.
Harmar-Nicholls, L. Shannon, E.
Harvington, L. Sharples, B.
Headfort, M. Skelmersdale, L.
Henley, L. Stockton, E.
Holderness, L. Stodart of Leaston, L.
Home of the Hirsel, L. Strathcarron, L.
Strathcona and Mount Royal, L. Trumpington, B.
Vaux of Harrowden, L.
Strathspey, L. Vickers, B.
Sudeley, L. Vivian, L.
Swinfen, L. Waldegrave, L.
Swinton, E. Ward of Witley, V.
Terrington, L. Westbury, L.
Teviot, L. Whitelaw, V.
Thomas of Swynnerton, L. Wise, L.
Thorneycroft, L. Wolfson, L.
Torphichen, L. Wynford, L.
Tranmire, L. Young of Graffham, L.
Trefgarne, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.43 p.m.

Lord Elton moved Amendment No. 3: Page 3, line 11, after ("local") insert ("or other such").

The noble Lord said: My Lords, this technical amendment clears up a minor defect in one of our Report stage amendments to Clause 3. Amendment No. 6, passed at Report, provided among other things that under their Section 142 powers local authorities would be able to make available and to publish information as to the services available in their area provided by "other authorities". The amendment explains that what "other authorities" means is defined in the new subsection (1B).

Our intention was that this definition should include all the local authorities set out in Clause 6(2) of the Bill for England and Wales. However, the effect of the difference between that definition and the definition of "local authority" in the 1972 Act is as follows. It prevents local authorities from publishing material under Section 142 about services provided by any authority, board or committee which discharges functions which would otherwise fall to be discharged by two or more joint authorities or ILEA or by a combination of one or more local authorities working with ILEA or a joint authority. That was an unintentional effect, and this amendment puts it right. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 4 and 5 not moved.]

Lord Elton moved Amendment No. 6: Page 4, line 15, leave out ("refers to") and insert ("means").

The noble Lord said: My Lords, at Committee stage of the Bill the noble Lord, Lord Airedale, was kind enough to propose a clarificatory amendment in Clause 3(2). Clause 3(2) contained a passage explaining that in that subsection the word "publicity" "refers to any communication in whatever form, addressed to the public at large or to a section of the public". The noble Lord's amendment, which the House of course accepted, replaced the words "refers to" with the word to which we are more accustomed, "means".

I explained then that it would be necessary to reflect the change in one of our amendments to Clause 3(2). Now that Clause 3(2) has been amended we need to ensure that the new wording is used in the provisions applying to Scotland as well as those applying to England and Wales. I am happy to suggest that we extend the ameliorating influence of the noble Lord north of the Border, and I beg to move.

On Question, amendment agreed to.

Clause 6 [Interpretation and application of Part II]:

Lord Elton moved Amendment No. 7; Page 6, line 10, at end insert— ("( ) This Part applies to the Common Council of the City of London as local authority, police authority or port health authority.").

The noble Lord said: My Lords, this amendment to Clause 6 of the Bill is designed to ensure that the publicity provisions of the Bill apply to the Common Council of the City of London when it is acting as a local authority, police authority or port health authority. The treatment we are proposing is one which is fully precedented. The form of words used in the amendment is that used in Section 68(4) of the London Government Act 1963 and again in the Local Government (Prescribed Expenditure) Regulations 1983, Schedule 3, paragraph 11(B). I hope that your Lordships will be satisfied with that precedent, and I beg to move.

Lord Mottistone

My Lords, I may be very dumb but I do not understand why this is necessary in view of the fact that the Common Council of the City of London comes under Clause 6(2)(a) at the top of the page.

Lord Elton

My Lords, I can probably best reply by reading out that part of my brief which I thought I could do without. The Common Council of the City of London is in many ways unique. It is not simply a local authority. It administers considerable private funds and the City's Cash which is of ancient origin. It is empowered to levy a general rate and to administer its rate fund under the London Government Act 1963 in its capacities as local authority, police authority and port health authority. We consider it appropriate that the Bill should therefore apply to the City when it is acting in these latter capacities.

I am not at all sure that that answers my noble friend's question, which is whether the Bill does not already so provide, but I am advised that it does not.

On Question, amendment agreed to.

Lord Elton

My Lords, I beg to move that this Bill do now pass.

It is customary to make a speech at this stage. I do not intend to make it a long one, although your Lordships may provoke me to return to the Dispatch Box in your responses. I ought to start by reminding your Lordships that by far the greater part of this Bill has been agreed by your Lordships without controversy simply because its provisions are so clearly sensible and necessary. It is sensible and necessary, for instance, to insist that councils shall not sell the mortgages they hold without the knowledge and consent of the borrowers who are their mortgagors. The building societies have made it clear to us that they would not act in this way, and it is perfectly reasonable to expect local authorities to conform to the same standards.

It is sensible and necessary also for a council to make its rate before the beginning of the financial year in which the rate has to be paid. It may be surprising and sad that a council should be prepared to submit its ratepayers, and indeed employees, to the uncertainty of facing the year with no rate set, but once it has shown itself capable of that it is up to Parliament to protect the ratepayers and the council's own workforce.

It was also sensible and necessary to see that joint authorities should not after 1st April be left temporarily without members following a local election. I am grateful to all noble Lords on all sides of the House for the way your Lordships have assisted in making these necessary additions to the statute book. That was something that we could do which caused very little difference between us.

There was also very little difference between us on the necessity of doing something about a recent and regrettable change in the nature of local government publicity by some local authorities. Part II of the Bill led to real controversy and deeply divided views, but our differences were more about the prescription than the illness we are trying to cure. None of your Lordships did, and I do not think any one reasonably would, maintain that the political party in control of a council ought to be allowed to use the authority of that council to take money out of its citizens' pockets to spend on its own political campaign.

It may be—indeed it is—surprising and sad that some local political parties have started doing just that but once they have done so my noble friends and I have felt, as have the Government, that it is time for Parliament to put a stop to it. That has also been the view of the great majority of your Lordships on all sides of the House. Our differences were not about that but about the way in which it should be done. In the event your Lordships decided to draw some of the teeth from Clause 2 and we send it back to another place weaker than it came to us. That is a matter for regret.

Your Lordships also differed from us on the final aspects of the Bill which seek to establish a code of good practice for the vast majority of local government publicity which is properly non-political. Here our differences were about the effect of what was proposed rather than about the intention. Your Lordships decided that it should be changed. As I have said, I do not believe in long speeches at this stage of a Bill. We have all of us had our say and it remains my firm opinion that in the part of the Bill that has been in dispute, as well as the rest, the Government have proposed a framework of law which is rendered necessary by circumstances. I believe the abuse we seek to eliminate is real and damaging to the credibility of our institutions of local government and that it cannot be left unchecked.

I am grateful to your Lordships for your co-operation in taking the Bill through its various stages and to the various bodies we consulted and whose advice made it possible to modify Clause 3 to remove what they persuaded us was an unnecessary and harmful limitation on the everyday conduct of publicity by local authorities, particularly at parish level. I beg to move.

Moved, That the Bill do now pass.—[Lord Elton.]

Baroness David

My Lords, there were many reservations expressed from all sides of the House at Second Reading particularly about Part II of the Bill. It has been remarkable how many of the amendments moved both at Committee and Report stages had all-party support. That is perhaps not quite so remarkable when one considers that there has been strong opposition to those parts of the Bill from all the local authority associations—the ACC, the AMA, the ADC—as well as from voluntary organisations. We can congratulate ourselves that the Bill is leaving the House in considerably better shape than when it arrived here six weeks ago.

Two very important amendments have been carried to Clause 2 and to Clause 4. By moving others we have persuaded the Government to come forward with amendments which have gone some way towards meeting anxieties expressed, though perhaps not as far as most of us would have wished, with the great exception of some concession to alleviate the fears of those who believe the Bill will inhibit local authority and community relations councils from furthering good race relations and eliminating discrimination. About this my noble friend Lord Underhill, who moved the amendments on this subject, may have something to say.

I believe that in dealing with this hastily produced Bill the House has shown itself at its best as a revising Chamber. I have said that this was a hastily produced Bill. That is evident from the drafting, which is not clear, and the intentions behind the Bill are therefore uncertain and difficult to understand and interpret. I refer to the discussions at Report stage on my amendment to delete Clause 2(2)(b) as an example. Four noble Lords, some of them learned, were not certain whether the subsection was a help or a hindrance. I should like to quote the exchanges between Lord Allen of Abbeydale and the Lord Advocate at that stage. Lord Allen asked: have the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Silkin, got it right? Is subsection (b) a protection, and would the removal of it be to the detriment of those concerned? The Lord Advocate replied: I may respond to that. I think I made it plain that it acts in two particulars. It can be both a safeguard in the circumstances which my noble friend outlined. Of course it is also directed to the other area where what would appear to be innocuous can, when seen in full context, be within the prohibition. It acts in two ways."—[Official Report, 13/3/86: col. 724.] What in the circumstances are the wretched officers and councillors to make of some of the provisions in the Bill? I had hoped that the noble Lord, Lord Campbell of Alloway, would have come forward with a redrafting of Clause 2 at this stage because he produced a good draft at one moment. But he has chosen not to do so. However, his redrafting and amendments to Clause 4 were extremely successful and very well presented. The fact is, as my noble friend Lord Ardwick said at some stage, that the Government have set themselves a near impossible task in trying to produce a Bill on this subject. As the noble and learned Lord, Lord Denning, said, it is difficult to draw a line beween what is information and what is persuasion of a party political nature. I am sorry for those officers of local authorities who have to interpret this Bill when it is enacted and advise their councillors about whether they are within the law or not. What we fear is that they will feel that they must play for safety and the public will suffer.

An example of what can happen was brought to my attention yesterday in a letter from the director of finance of Glasgow district council to his chief executive about the statement he had drawn up for inclusion in the rates notices to be issued by the regional council in 1986–87. This statement was similar to many produced in earlier years. I should like to quote from his letter: I have just been informed that the region's solicitor, who is now censoring all material published by the region to ensure that it will not contravene the new laws, has refused to pass the three extracts marked on the first page of the enclosed statement… The three statements are accurate, straightforward and in no sense party political. I am horrified that they might have caused legal action to be taken against either the regional or district council. I am astounded that my words can be interpreted in such a way as to breach any British law. Having read the passages to which he refers I certainly agree with him. Let us hope that when the code of practice finally appears it will be a real help and give guidance to those in local government.

I should like to ask the Minister whether he will help with something about the amendments to Clause 3(2), which has turned out to be rather complicated. I am asked by the local authority associations to pose this problem. I do not expect that he will be able to answer today, but I wish to get it on the record and I expect that he will wish to write to me so that I can circulate the letter later.

The recent appeal court judgment in the District Auditor v. Leicester City Council case held that Section 137 was a function of local authorities. Previously local government lawyers had tended to think that it was not. Specifically, the judgment against the council in the Leicester case found that because Section 137 was a function, staff and related costs should be counted against the 2p limit rather than charged to Sections 111 and 112, which allow "incidental", etc., employment for staff and other expenditure. The Government amended Section 137 on Report to make it clear, first, that Section 142 could be used to publicise activities undertaken under Section 137 (in line with a commitment made in another place) and, secondly, that such Section 137-related expenditure under Section 142 should be counted against the 2p limit in Section 137.

The Government's intentions are unclear. The Minister seemed to be arguing at Report that this would faithfully replicate the post-Leicester case situation. This is only true if Section 142 is regarded as an ancillary type power on all fours with Sections 111 and 112. But, if this is the case, the logic of Leicester is that publicity for Section 137 purposes should be undertaken under Section 137 itself; in other words that the Widdicombe recommendation be ignored and publicity issued under Section 137 for Section 137-related expenditure. This is close to what the new passage means. It makes Clause 3(2) say that Section 137 may not be used for publicity, but if Section 142 is used for section 137-related publicity, Section 142 should be treated as though it were Section 137 expenditure.

5 p.m.

I agree that it would be quite impossible to answer this complicated paragraph immediately but I hope that when the Minister and his civil servants read it later they will be able to help with clarification. I should like, while we are on Section 127, to ask also if his department will give very serious consideration to upping the 2p limit because, with the districts and boroughs having so many things more to do under this section with the demise of the GLC and the met counties, it is going to be very necessary. Where we are at odds with the Government is in their going so far beyond the recommendations of the Widdicombe interim report which they themselves called for. I say again that the Labour Party does not approve of party political propaganda being paid for by the ratepayers; and where the Bill follows the recommendations of the report we have no quarrel with it. However, we think it probably would have been much wiser to wait for the whole report to appear and have one Bill to deal with all the matters that the Committee are considering.

In producing the Bill at this stage, the Government are really shutting the stable door when the horse has bolted, because most of the councils against which this Bill is aimed will have gone in a few weeks' time and, in the case of other councils that were thought to have offended, their councillors are being surcharged and disqualified. There are bound to be recommendations in the final report which will have repercussions on the provisions of this Bill and I imagine that we shall then be presented with the thirteenth Local Government Bill produced by this Government. I hope that, when it comes, it will be more sympathetic to local government and more considered.

One aspect of this Bill that I have not mentioned is the tidying up clauses, Clauses 11 and 12, one of which was introduced by the Minister only at Report stage, because, as he said, of a "technical defect in the Local Government Act 1985". The other, the present Clause 11, the Minister explained at Second Reading: makes good our unfortunate failure, for which I apologise, to provide in last year's rather bigger Local Government Act for those giving their services to authorities set up by that Act to be able to claim attendance allowances". The point that I want to make is that this Government rushes into legislation. The legislation is ill-prepared and the impression the local authorities get is that the Government are hostile to them. As my noble friend Lord Ardwick said at Second Reading, one feels that this Government would like to have minimum local government.

It is really sad for those of us who have spent years in local government that the relationship between central and local government is so bad, as the Minister himself has acknowledged that it is. What the Government ought to be considering instead of how to curtail local authority freedoms is how best it can be organised to provide the services that it is its duty to provide, services which affect the lives of everyone, every hour of the day, at a time when many new methods of management and so on are available.

Widdicombe had a certain vision of local government. It is a broad, generous vision and it is not a vision of local government as being confined to the sum total of its limited statutory functions. I hope very much that when the Government come to consider their action on the full report they will try to share that broad, generous vision.

I must end by thanking the noble Lord, Lord Elton, for seeing this Bill through so competently with both humour and good humour. Even his opponents would acknowledge that he made a very spirited defence of what a lot of us thought was fairly indefensible. I should also like to thank the noble and learned Lord the Lord Advocate for his efforts to explain the Government's case to the House even if he did not convince us, and the noble Lord, Lord Skelmersdale, not only for moving some of the numerous government amendments but for his assiduity in running to and from the Box—and he is still at it at that moment. As an aside, I cannot help wondering why in this age of swift communications and electronics and so on it is still necessary for these messages to be carried to and fro by hand. That is my last comment on the Bill.

Lord Winstanley

My Lords, perhaps I may at this stage agree wholeheartedly with the noble Lord, Lord Elton, on one point. He said a moment ago that it was his view that your Lordships' House did not want long speeches at this stage of a Bill. I would go a little further and say that in general it seems to me your Lordships' House does not want long speeches at any stage of any Bill. That having been said, I shall do my best to be very brief in (shall I say?) allowing this Bill to pass. We can do no other than that from these Benches. I think it is appropriate that something should be said from these Benches.

I agreed with those parts of the speech of the noble Baroness which I actually understood and, frankly, I did not understand it all. I think I ought to say hastily here—and it is no doubt understood—that local government is not my subject. I have had the responsibility for dealing with this matter mainly because of the unfortunate illness of my noble friend Lord Evans of Claughton, who has vast experience of local government matters but was not able to do the job himself. I must personally express my indebtedness to my noble friend Lord Kilmarnock, who has done the bulk of the work on these Benches.

I think that we regard this in general as a Bill which has perhaps been conceived in haste and executed in a hurry. I very much share the view expressed rather broadly or implied by the noble Lord, Lord Sandford, that, in order to control the activities of a handful of erring local authorities, we should somehow cause difficulties for a whole number of local authorities which have never misbehaved in these directions at all at any time. That, I think, is our worry. The noble Lord, Lord Elton, a moment ago said that the Bill had been rendered necessary by circumstances. It is our view that there may presently be circumstances not unrelated to the local elections which could render the Bill wholly unnecessary. I believe that the electorate themselves are capable of taking charge of many of these things and I think that perhaps it is regrettable that the Government have seen fit to step in in this draconian way.

It seems to some people perhaps wrongly as yet another step in this Government's programme of gradually reducing the powers of local government. If one goes along that path to its end, the obvious ultimate conclusion is to abolish local government altogether and one can only do that if one changes the whole nature of central government and makes it much more accountable than it now is. I echo the fears expressed by the noble Lord, Lord Sandford, and I very much hope that what remains in this Bill at this moment does not deter some local authorities from doing things which I think all of us would like them to do. I think it is our fear that some local authority officials and officers may feel cautious about the Bill and may advise their authorities not to take certain steps which otherwise we should like them to take.

On an earlier stage today, on an amendment moved by the noble and learned Lord, Lord Denning, the noble Lord, Lord Orr-Ewing, expressed the hope that the Alliance Members would support the Government. Perhaps he noticed that we were in fact supporting the Government because the view we took was the view that the Government took on that amendment. The noble Lord, Lord Orr-Ewing, will remember that, in replying, the noble Lord, Lord Elton, said that at a later stage the Government would do what we on these Benches would like them to do; that is, implement the recommendations of Widdicome as and when they come forward fully. I hope that on that occasion the noble Lord, Lord Orr-Ewing, will join us in supporting the Government to make sure they do what they have undertaken to do then.

I shall say no more save this. As one with very little experience in local government matters, I have felt gratitude for the manner in which the noble Lord, Lord Elton, has been handling the Bill and has taken steps to keep us informed of what was going on and of his own thinking I personally have appreciated that very much indeed, just as I appreciated his acceptance of one or two of the amendments which were brought forward from these Benches. I should like to express my indebtedness to him for the manner in which he has kept us fully informed of matters about which we are perhaps not as knowledgeable as we might be.

Lord Orr-Ewing

My Lords, I will try to be brief but, as the noble Lord has just referred to me, perhaps I may answer his point. I concede that I was wrong. I hoped that the Government were going to see wisdom and incorporate that good amendment, beautifully drafted by the noble and learned Lord, Lord Denning, in the Bill. As it was, the Alliance supported the Government in not including it in the Bill.

Having heard a number of speeches, I cannot help reflecting that about a year ago we in this Chamber were discussing the rate-capping bill and the horrific things which were going to happen which were being quoted by leaders of councils. I have a few here. They are very different from what in fact has happened. In the Labour Council of Lambeth they said: We face having to sack 3,000 workers in Lambeth alone. A former GLC deputy leader said: A cut of £100,000,000 would result in sacking about 1,000 fire fighters and 1,000 GLC staff". We heard from the Hackney leader: That would mean we have to sack one-third of our workforce". The next one says: Jobs lost … services across the board simply stopped: libraries, day centres, home helps". That came from the Islington leader Margaret Hodge. Rate capping went ahead and not one of those things came about. I hope that some of the horrid things that have been said about this Bill will not come true. I would absolutely go along with other views that have been expressed, that we do not want to see local government organisations and central government quarrelling, whatever the complexion of the central government and local government. There must be a degree of understanding. I only wonder whether the councils have begun to believe some of the propaganda their councillors have been putting out at our expense—because they seem to have been influenced. I only hope that that turns out to be as wrong as it was on rate capping. We had all those horrible warnings about all our rates going up, and now we see what the rates are for the coming year and all over London the rates are down—in my own borough by 31 per cent. So again "bogey, bogey" is less effective than reality.

I concede that this Bill was perhaps hastily drafted and I do not think it was awfully well drafted. It is a small Bill for a specific task, and I am sad that much will go on which has not been put right as a result of this Bill. It will permit councils to publish material which does affect support for the political party, provided that it does not appear to be the intent for which the material was designed. It stops overt campaigning, that is true; but it allows the more subtle, insidious and therefore more effective, campaigning to continue.

I think the single most glaring loophole in the Bill relates to the funding of outside bodies. The Bill prohibits councils from funding pressure groups for publicity purposes but allows councils to fund pressure groups for other purposes. It is like running costs which may be released by some money coming in, which can then be used for other purposes. There will be a reshuffle of any money coming in to these "umbrella groups", as they are sometimes called; and money can be shuffled within those umbrella groups and be used for political purposes. The Bill permits councils to spend an unlimited amount on information and contains no reserve powers for the Secretary of State. I tried to move an amendment so that at least we gave reserve powers to the Secretary of State should there be an outstanding mis-spend or overspend for publicity purposes.

The Bill prevents councils from using Clause 137—and I do so much agree with the noble Baroness that, as between Clause 137 and Clause 142, the question of what they can do and how it is done has got us all in a tangle, I think. Certainly I am in one myself. The Bill prevents councils from using Clause 137 to fund publicity themselves, but it still permits them to fund non-profit making organisations for publicity purposes.

Again, policing difficulties, as we have found in many areas, present another loophole for what is called "creative funding"—that is to say, shuffling the funds. If the Bill is to have any value, your Lordships' amendment to Clause 2 must, I feel, be put back. I very much hope that this will happen in another place. I hope, too, that there will be opportunities for tightening up where there are some glaring omissions, and not just in this Bill. There are some loopholes here and no doubt coaches and horses will be driven through those; but amendments are now necessary also as a result of experience of the Local Government Act 1982 and on even earlier legislation. I hope that the opportunity of Widdicombe Part 2 will be taken to include in a Bill some other measures which are not particularly party measures but which need to be put right if local government's transgressing and spending of ratepayers' money is to be reduced. I do not think we can stop it—I am afraid a certain amount will always go on—but I am sure that noble Lords opposite will remember as well as we do on these Benches that there are some pretty evil men who do not want local government to work well and do not want smooth relationships with their ratepayers. I hope they at least will be made to pause and think before they undertake further excessive expenditure on totally unnecessary items which may be close to their hearts but which do not reflect the views of the ratepayers whom they represent.

5.15 p.m.

Lord Campbell of Alloway

. My Lords, would your Lordships allow me a very brief word of personal gratitude to my noble friends Lord Elton and Lord Skelmersdale for the concession they made on Amendment No. 2, moved by the noble Baroness Lady David, on Report? Although they could have appointed tellers and there were plenty of reinforcements hidden in the hills, they refrained from doing so in deference to the sense and merit of the debate in your Lordships' House. A concession such as that, and one of such magnanimity, makes the exercise of the revisory role so much a lighter burden. The reason I did not draft a further amendment in answer to the noble Baroness, Lady David, was because I thought the Government would do so, and I still live in such hope that it will happen in another place. It was a mere matter of cosmetics and did not go to substance.

I should like to compliment my noble friend the Minister on his handling of a very difficult Bill, which was full of legal bear-traps, even for the seasoned practitioner.

Lord Denning

My Lords, I know that the local authorities and the voluntary associations were very apprehensive about the Bill, and whether it would curb their publicity and their information services. I always thought they were unduly apprehensive, but as the Bill is now coming before your Lordships amended, I do not think they need be afeared at all. This Bill will really condemn only the evil practices.

I should like also to say one word more about Sections 137 and 142, which were full of ambiguities and uncertainties. It is very important that they have been made much clearer and better by the amendments which have been put forward. On the whole, I should like to congratulate the Government on putting through quickly an important Bill which will do no harm to the good associations, the voluntary associations and the like, but will do much, I hope, to stop an evil. I should like to congratulate the Government accordingly.

Lord Underhill

My Lords, my noble friend Lady David said that I would deal with certain aspects of the Bill so far as it affected race relations, but before doing so may I say one brief word about Clause 4 in relation to the codes of practice? As the president of the AMA, I am delighted with the changes that have been made to that particular clause in so far as it is now a code of practice for the guidance of local authorities and, in the first instance, it has to be approved by a resolution of both Houses. I think those two changes are very beneficial.

Tributes have been paid to the courtesy and the manner in which the noble Lord, Lord Elton, the noble and learned Lord the Lord Advocate and their colleagues have handled this Bill in all its stages. I echo those tributes; but that makes it a little more difficult for me to say that I, along with, I am certain, many other noble Lords, am very angry at what has not been done with regard to race relations. With all due respect to the noble and learned Lord, Lord Denning, we are still left with apprehensions. The Bill will inhibit local authorities and local community relations councils in carrying out the duties placed on them by the 1976 Race Relation Act.

If I may also echo what other noble Lords have said, we accept completely what Widdicombe says—that rates must not be used to meet the costs of party political propaganda. Incidentally, many of us never had to wait for Widdicombe to give that assurance. But, as was said at Report stage, the Race Relations Act was passed by Parliament for specific purposes: to eliminate racial discrimination and to promote good relations between races—and that is just what local authorities and community relations councils have been doing. Now, after 10 years, concern is being expressed about what they are doing. What they are doing and wish to continue to do is now under question.

Let me briefly go over the history of the matter during the passage of the Bill. We tried to meet the situation in Committee by excluding publicity issued in accordance with the duties placed upon local authorities under Section 71 of the Race Relations Act 1976. We were criticised and told that it would be wrong to exclude one Act. On Report, we made a further attempt to exclude publicity material issued to carry out specific race relations activities. On that occasion, I and other noble Lords were told that nothing would be allowed which permitted attacks on a particular party, even though in carrying out duties placed upon them by Parliament there is no need for a local authority to refer to a particular organisation or party. The very fact that one deals with race relations and racial discrimination means that some organisations will be adversely affected and others will be helped.

On Report, however, the Government brought forward Amendment No. 17. The noble Lord, Lord Elton, said that it was: to make clear that the publicity provisions in Part II of the Bill do not conflict with local authorities' duties under the Local Government (Access to Information) Act 1975".—[Official Report, 13/3/86; col. 770.] That is what we wanted to do with regard to the Race Relations Act. We now have the following words in Clause 6(5) of the Bill: Nothing in this Part shall be construed as applying to anything done by a local authority in discharge of their duties under". That amendment was introduced into the Bill. It excludes one particular statute and certain duties. I and other noble Lords sought to introduce an amendment on Third Reading today which would have added to that clause the provisions of the Race Relations Act. We were advised that that would be wrong on the grounds that the House had already declared on the principle of the Race Relations Act in relation to this Bill. I do not challenge that ruling, but the Government could have been helpful by meeting the point made by noble Lords in all parts of the House and said that there should be some way whereby Clause 2 could meet the duties placed by Parliament on local authorities.

We now have the situation, as has been stressed by various noble Lords, that chief officers will be very chary of giving advice. There is conflict between what is contained in Clause 2 of the Bill and the provisions of the Race Relations Act which places specific duties upon councils. It is not sufficient, in my view, to say that the courts can decide on unlawful acts under the Race Relations Act 1976. Sometimes a local authority needs to act to see that action is taken to deal with such unlawful acts.

With all the good will in the world, it is not sufficient for Ministers to say that they sympathise with the points being raised on this issue. Although we are having the Third Reading and debating the Question, That the Bill do now pass, when amendments to the various clauses are considered in the other place there is still an opportunity for the Government to introduce their own amendment to put that important matter right. I hope that they will do so in the interests of the carrying out of obligations which have been placed upon local authorities by Parliament.

Lord Pitt of Hampstead

My Lords, I rise to support the noble Lord, Lord Underhill, and to say that if the Minister does not give such an undertaking I shall be forced to oppose the passing of the Bill by this House. All the information that I have received has suggested that lawyers are likely to tell their councils that funding community relations councils, if those councils publish material which is critical of the National Front, will be unlawful. As I have said more than once, and I do not wish to keep repeating myself in your Lordships' House, my fear is that when they have been given such advice many councils—not all—will take the advice and not fund their community relations councils. I am talking as a layman, and I have read Section 71 and Clause 2. I cannot see how a council can carry out its obligations under Section 71 without affecting public support for a political party which advocates the direct opposite.

By coincidence, when I arrived in your Lordships' House this evening, I received a letter addressed to me here. Inside the envelope it said, "Niggers out". The paper was headed "White International" and it contained several quotations showing approbation of the National Front from Sweden, the USA and Germany. That was bad enough. There was a clipping from a newspaper showing that Princess Diana had visited Tottenham and charmed Bernie Grant. I have forgotten to say that "Long live racialism" was on the bottom of the first piece of paper. On the second piece of paper was written "Nigger lover" and "Stupid Royals. They are decadent, second-rate, nigger riff-raff, shit". I only mention that because of the coincidence. I get these things all the time. I just tear them up. I should have torn that up except for this debate. One does not bother with them. That is the sort of stuff that one gets. It is no use suggesting that we can deal with these issues without dealing with matters like that. If we deal with matters like that, of course, we shall affect support for the National Front which is a political party.

It was always possible for the Government to deal with the matter either by the amendments that were put down in Committee or better still by the one that was introduced on Report. Even at this stage, merely by including the Race Relations Act 1976 in Clause 6(4) we could have dealt with it. The fact that the Government are at no stage prepared to deal with this matter tells me that, perhaps they do not want local authorities to carry out Section 71 of the 1976 Act.

I am afraid that unless the Minister can give an undertaking that the Government will attempt to do something like that in the other place—I know the convention and that the vast majority of the House will support the Bill—I must vote against the Motion and hope that someone is prepared to be a Teller with me and that one or two Members of your Lordships' House will see the matter in the way that I do.

5.30 p.m.

Lord Boyd-Carpenter

My Lords, I am very sorry that at this stage of the Bill both the noble Lord, Lord Underhill, and the noble Lord, Lord Pitt, should seek to resume the discussion which we have had at very considerable length at both Report and Committee stages on a point about which I fully understand they feel seriously, but which I hope they will allow me to say seems a thoroughly bad point.

The Bill—rightly, in my view—inhibits the use of ratepayers' money for action taken by a local authority which is in respect of and likely to affect a political party. The only doubt that I and a good many other people have is whether it is sufficiently strongly or widely framed really to affect that. But on this point it seems perfectly clear that there is nothing in the Bill which would inhibit a local authority from carrying out properly its duties under the 1976 Act.

If one looks at the relevant clause of this Bill, it reads: A local authority shall not publish any material which, in whole or in part, appears to be designed to affect public support for a political party. Any competent local authority can perfectly well carry out its duties under the 1976 Act, and give support to those who are working at the task of improving relations between the various communities in this country, without also publishing material designed to affect public support for, in this case, the National Front. I really cannot see how any competent local authority that wants honestly to do its job, as I am sure most of them do, can possibly see any difficulty whatever in so doing.

All that would be restricted would be an attack, under the guise of the 1976 Act, on a political party. It happens to be a political party for which I have no use, and for which I doubt whether any of your Lordships have any use—it is not one of any great significance in this country, anyhow—but it is a good principle of the Bill that political parties, however insignificant or unattractive, shall not have public money used in action designed to affect support.

The only reason that I have risen to intervene is that it seems to me that this is a misguided, as well as a three-times repeated, attack on the Bill inasmuch as I can see nothing whatever in it which will hamper the good work which well run local authorities undertake, and want to undertake, under the 1976 Act. Having said that—and I rose only for that purpose—I should like to join in the very proper tributes paid earlier to my noble friend Lord Elton for his infinite patience and good humour in handling this Bill. As my noble friend Lord Campbell of Alloway said a little time ago, it is a Bill which is full of legal bear traps, and indeed there have been quite a number of legal bears who were apparently more than willing to spring those traps. But my noble friend Lord Elton succeeded in avoiding them all and has steered this Bill most successfully—and it has not been an easy Bill to steer; it has obvious political sensitivities and political difficulties—in a way on which he is entitled to look back with pride, and which reflects very favourably on the conduct of this House.

Lord Elton

My Lords, I am most grateful to my noble friend for that introduction to my concluding speech on this Bill in this House. It is particularly gratifying, when one has felt oneself for four or five weeks to be a toad under the harrow, to discover that one still smells of roses and I am most grateful to my noble friend for that biological improbability.

I have to turn, first, to the serious point raised by the noble Lord, Lord Pitt of Hampstead. He will understand that of course it is not for me to bind another place. That is for another place to do. But I have to remind him, first, of the procedural possibilities, and the course of action open to another place is only to accept an amendment of your Lordships, to reject an amendment of your Lordships, to amend an amendment of your Lordships or to substitute an amendment in lieu of an amendment of your Lordships. Beyond that, there is no scope at this stage. Otherwise, we should be in permanent Committee on every piece of legislation from the beginning of this century.

I hope therefore that the noble Lord will feel that he has put vehemently on the record very strong feelings, which he quite properly has, about racism. I would not wish him to think that the Government were in anything but sympathy with those who regard racism as unacceptable and uncivilised, and that he will realise that I sympathise with him on the sort of literature that he gets through his letterbox, as no doubt he would sympathise with me if he saw some of the letters which I get through my letterbox.

It is not necessary to divide the House in order to place our consciences or our creeds on record. I think the noble Lord has sufficiently done that. I hope that the record of the Government in other legislation has established our record in this respect, and I rely upon the arguments of my noble friend Lord BoydCarpenter—and indeed the perhaps untimely speech given in aid of the noble Lord, Lord Winstanley, by the noble Lord, Lord Grimond, at an earlier stage—to explain why we felt it was necessary to resist the amendment which he has in mind.

My noble friend Lord Orr-Ewing was very right to start by pointing out that the most extreme local governments are, when they act as prophets of doom, the most unlikely to be fulfilled, and in fact have been proved very misleading on previous occasions. He went on to say that this was a small Bill that did too little. The noble Baroness, Lady David, said that it was a small Bill that did too much and that it had been brought in in much too great haste. The noble and learned Lord, Lord Denning, said that the Government should be congratulated on bringing it in so quickly, and that the Government had done well to allay the fears of the voluntary sector. I cannot reply specifically to the first letter that the noble Baroness read out, because it was about a text that I have not seen and that she did not repeat; and, of course, I cannot comment on the second because it was rather too closely drafted for me to follow it by ear, but I will attempt to follow it by eye when it appears in the Official Report.

It was my noble friend Lord Campbell of Alloway who was kind enough to acknowledge, as did the noble Lord, Lord Winstanley, the concessions that we were able to make; and, together with other noble Lords, the noble Lord, Lord Winstanley, made many kind references to myself, to the nimble feet of my noble friend Lord Skelmersdale and to the nimble mind of my noble and learned friend the Lord Advocate. I am deeply indebted to both and I should add that my noble friend Lord Skelmersdale has some fairly good thoughts as well as nimble feet, and I am grateful for those.

I am grateful to all your Lordships for your courtesy and patience, which I do not monopolise in this Chamber, in taking this narrowly controversial Bill through the House. My only other reflection is that embedded in the kind comments that the noble Lord, Lord Winstanley, made was an assumption that I had given an unshakable commitment to implement every single recommendation of the Widdicombe Report before we had actually read it. That was not precisely the intention I had when I mentioned the Widdicombe Report; but I said that we regarded it as extremely important and that we expected to act on it when we had received it after consultation. I do not wish your Lordships to think that I, in any way, now resile on our commitment to act. However, I wanted to say that it was not an unlimited commitment. I am grateful to your Lordships for the kind way in which you have recognised the difficulties of this legislation and for the thorough way in which you handled it. I think I said at the beginning that I did not believe in long speeches. Five minutes is quite enough on this occasion and I beg to move.

5.39 p.m.

On Question, That the Bill do now pass?

Their Lordships divided: Contents, 147; Not-Contents, 10.

Airey of Abingdon, B. Lurgan, L.
Alexander of Tunis, E. Lyell, L.
Allerton, L. McFadzean, L.
Alport, L. Macleod of Borve, B.
Ampthill, L. Malmesbury, E.
Auckland, L. Mancroft, L.
Beaverbrook, L. Mar, C.
Belhaven and Stenton, L. Margadale, L.
Beloff, L. Marley, L.
Belstead, L. Marsh, L.
Birmingham, Bp. Marshall of Leeds, L.
Boardman, L. Maude of Stratford-upon-Avon, L.
Boyd-Carpenter, L.
Brabazon of Tara, L. Merrivale, L.
Brocket, L. Mersey, V.
Brougham and Vaux, L. Middleton, L.
Bruce-Gardyne, L. Milverton, L.
Butterworth, L. Mottistone, L.
Caccia, L. Mowbray and Stourton, L.
Caithness, E. Munster, E.
Cameron of Lochbroom, L. Newall, L.
Campbell of Alloway, L. Norrie, L.
Carnegy of Lour, B. O'Neill of the Maine, L.
Chelwood, L. Onslow, E.
Coleraine, L. Orkney, E.
Colville of Culross, V. Orr-Ewing, L.
Cork and Orrery, E. Pender, L.
Cox, B. Peyton of Yeovil, L.
Croft, L. Plummer of St Marylebone, L.
Cullen of Ashbourne, L.
Davidson, V. Portland, D.
Denham, L. [Teller.] Radnor, E.
Denning, L. Reay, L.
Dormer, L. Renton, L.
Drumalbyn, L. Renwick, L.
Dundonald, E. Rochdale, V.
Eden of Winton, L. Rodney, L.
Effingham, E. Romney, E.
Elliot of Harwood, B. Russell of Liverpool, L.
Elliott of Morpeth, L. St. Aldwyn, E.
Elton, L. Saltoun of Abernethy, Ly.
Ferrier, L. Sanderson of Bowden, L.
Fortescue, E. Sandford, L.
Fraser of Kilmorack, L. Selkirk, E.
Gainford, L. Sempill, Ly.
Gibson-Watt, L. Shannon, E.
Gisborough, L. Sharples, B.
Glanusk, L. Skelmersdale, L.
Gray, L. Somers, L.
Gray of Contin, L. Stockton, E.
Greenway, L. Stodart of Leaston, L.
Gridley, L. Strathcarron, L.
Grimston of Westbury, L. Strathcona and Mount Royal, L.
Grimthorpe, L.
Hailsham of Saint Marylebone, L. Strathspey, L.
Sudeley, L.
Halsbury, E. Swinfen, L.
Harmar-Nicholls, L. Swinton, E. [Teller.]
Harvington, L. Thomas of Swynnerton, L.
Henley, L. Torphichen, L.
Home of the Hirsel, L. Tranmire, L.
Hooper, B. Trefgarne, L.
Hylton-Foster, B. Trumpington, B.
Inglewood, L. Tryon, L.
Kaberry of Adel, L. Vaux of Harrowden, L.
Killearn, L. Vickers, B.
Kimball, L. Vinson, L.
Kinloss, Ly. Vivian, L.
Kissin, L. Waldegrave, L.
Kitchener, E. Ward of Witley, V.
Lane-Fox, B. Whitelaw, V.
Lauderdale, E. Wise, L.
Lawrence, L. Wolfson, L.
Layton, L. Wynford, L.
Loch, L. Young of Graffham, L.
Long, V.
Campbell of Eskan, L. Rea, L.
Carmichael of Kelvingrove, L. Sefton of Garston, L.
Fisher of Rednal, B. Stallard, L.
Hatch of Lusby, L. [Teller.] Taylor of Blackburn, L.
Jenkins of Putney, L.
Pitt of Hampstead, L. [Teller.]

Resolved in the affirmative, and Motion agreed to accordingly.

Bill returned to the Commons with amendments.

Forward to