§ 5.54 p.m.
§ Read a third time.
§ Clause 2 [Defined activities]:
Lord Dean of Beswick moved Amendment No. 1:
Page 3, line 19, at end insert ("or if it is work carried out by the caretaker of a primary school where he is the only member of staff employed on caretaking and cleaning duties.").
§ The noble Lord said: When we dealt with this issue on Report, the Minister indicated what I then thought was considerable movement. I think that he will appreciate that one had to read and digest what he said. The issue has been debated a number of times during the Bill's passage, most recently and extensively on Report on 15th February. The Association of County Councils' concern about the effect of compulsory competition for cleaning on the role and supply of caretakers in small schools was then referred to. The ACC seeks an exemption from Schedule 1 in respect of the cleaning function in primary schools where the caretaker is the only member of staff employed on caretaking and cleaning duties.
§ The problem was then stated; but it is perhaps worth repeating. As currently drafted, the Bill will catch the work of caretakers in most primary schools although caretaking itself is not a defined activity. That is because caretakers in many primary schools normally spend more hours cleaning than on other duties, although caretaking is the most important part of the job. Because, quantitatively, they spend more hours cleaning, their work is not exempt from compulsory tender.
§ On Report, a number of examples were given of the extent to which primary schools in shire local education authorities will be affected. The need to 50 combine the roles of caretaker and cleaner in one person in primary schools and the undesirability of contracting out the work of caretaker/cleaners—the solution then advocated by the noble Earl, Lord Caithness—was also argued.
The ACC welcomes the noble Earl's statement that the Government propose,
to exempt from competition work carried out by people who are required as a condition of their employment to live in particular accommodation".
In doing so, the Government recognised that some school caretakers are required to live in tied accommodation and thus could face a potential loss of both job and home. The noble Earl went on to say:
I believe this concession that I have offered to the House will go a long way to helping with the issue that this amendment seeks to address".—[Official Report, 15/2/88; col. 464.].
Unfortunately that is not the case. As the following details will show, few small primary schools have tied accommodation. I shall give details of some of the authorities which are in difficulty over the Bill, even with the concession that was made.
§ For example, Devon has 448 primary schools. In 447 of them the caretaker spends over 50 per cent. of his time cleaning; so 447 are caught by competitive tender. In 151 of those schools the caretaker is the only member of staff employed on caretaking and cleaning duties. And in only one of those 151 schools is the caretaker in tied accommodation. So the concession, although welcome, helps in one case only in the situation about which we are most concerned—the sole caretaker/cleaner in small schools.
§ Kent, as mentioned on Report, will have 234 of its primary schools caretaker/cleaners caught by tendering because the caretaker/cleaner spends more than 50 per cent. of the time cleaning. Only 33 of those 234 caretaker/cleaners live in tied accommodation; so the concession will again not help the problem.
§ Norfolk is another county much affected by the absence of exemption for sole caretaker/cleaners owing to the number of small rural primary schools it has. Only a handful—perhaps 10 or so—of its 412 primary schools have a caretaker who does less than 50 per cent. cleaning and is therefore exempt. Norfolk has 38 primary schools with tied accommodation for its caretaker/cleaners. It is understood that a handful of exempted caretakers occupy tied accommodation anyway. So the net effect is that about 374 primary schools in this county will still have their caretaker/cleaners caught by the Bill's provisions, despite the concession.
I think that enough examples have been given to show that the concession, useful and welcome though it is, does not really address the problem of the need to safeguard the caretaker in the primary schools from competitive tendering on the one hand, or the splitting off of the caretaking/cleaning job on the other. The Minister said on 15th February 1988:
I would not claim that it would make sense to split up such caretakers' jobs and expose part of them to competition."—[Official Report, 15/2/88, col. 464.]
Therefore we have no hesitation in urging your Lordships' House once again to amend the Bill to
exempt a primary school caretaker from competition where he is the only member of staff employed on caretaking and cleaning duties. We are not asking for all primary school caretakers to be exempt; this is just an amendment to tackle the most severe problems of the smaller primary schools.
§ I said at the outset that I was grateful for the concession that was made at the Report stage. But I think that the details which have been sent to us by the Association of County Councils on behalf of some of their constituent members indicate a rather more widespread difficulty than some of us had imagined at Report stage. On that basis, I should hope that even at this late stage the Minister may be able to look sympathetically on what my colleagues and I feel to be a reasonable request. I beg to move.
§ 6 p.m.
The Minister of State, Department of the Environment (The Earl of Caithness)
My Lords, the noble Lord, Lord Dean of Beswick, said that we had debated this type of amendment a number of times before. Indeed, I think at Report stage, Lord Graham of Edmonton, said that we had cantered over this course at an earlier stage and I presume that we can now go around it blindfold. We had ample evidence at the Report stage, and indeed again today, from the noble Lord, Lord Dean of Beswick, that there are quite large numbers of primary school caretakers who spend more time on cleaning than on security and other duties. Despite the undertaking which I gave at Report stage and which was not given lightly, I can say to the noble Lord that there was lengthy consideration within the department and with my right honourable friend about giving such an undertaking. But we felt that in the circumstances it was right to give it.
Notwithstanding that residential caretakers will be exempted, there might remain many caretakers whose work will not be exempt from competition. I have to say, as I have said previously, that I simply do not understand why this should be regarded as unacceptable by the noble Lord, Lord Dean. Education authorities are perfectly capable of setting down clearly what they require caretakers to do, whether or not the job involves elements of cleaning, locking and unlocking, attending to heating systems and so forth. I suggest that the outcome of the competitive process is not likely to be the splitting apart of these employees' cleaning and caretaking functions which various education authorities have no doubt rightly said would be inefficient, but the more efficient carrying out of the combined function. That is exactly what the Bill sets out to achieve for all the services listed. It sets out to achieve better value for money in the carrying out of the work which each authority decides it wants carried out.
Finally, I hope that the noble Lord, Lord Dean, will not mind me pointing out just one matter of detail. If the amendment is to be added to Clause 2(b), I believe that the line reference should be to line 14 rather than 19. That is a small matter of drafting. On the principle of the amendment, I hope that the 52 House will not give its support to the noble Lord, Lord Dean.
§ Lord Dean of Beswick
My Lords, I am grateful to the Minister for the detailed and courteous reply which we have come to expect from him. I am sorry however that he could not go a little further as we had requested. It is my belief that the worries which have been highlighted on behalf of these authorities during the various proceedings in your Lordships' House, both in Committee and on Report, will manifest themselves.
I think that the Bill as it stands will create difficulty of a personal nature in some of the rural areas where the caretaker is tied almost into the fabric of the building as one of the staff whom everybody knows. Personally, I think that when the Bill becomes an Act and is applied in these areas it may well founder as regards some of these local interests and the interests of the community as a whole. However, I have no desire to press the amendment to a Division. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove moved Amendment No. 2.
After Clause 5, insert the following new clause:
§ ("Power to carry out works contracts for other persons.
§ (1) The Secretary of State may by regulation authorise a local authority to enter into contracts for the provision by that authority of work or services within a defined activity (not being works contracts within the meaning of section 5 of the Local Government Planning and Land Act 1980) with any other person whether or not being a public body within the meaning of section I of the local Authorities (Goods and Services) Act 1970 in circumstances where he is satisfied that—
- (a) the direct labour organisation of the authority carrying out that work or providing those services is no larger than is necessary having regard to the functions of the authority and the circumstances of its area, and
- (b) the carrying out of such contracts is desirable or necessary for the purpose of facilitating the efficient use of the resources of the organisation.
§ (2) Regulations under this section may—
- (a) specify the types of contracts to be authorised and may include such supplementary, incidental or consequential provisions as appear to the Secretary of State to be necessary or expedient, and
- (b) modify the conditions specified in section 4 above or provide that the said section shall not apply to any specified class of contract authorised under this section.").
§ The noble Lord said: My Lords, perhaps the Minister would accept that it would be convenient to take Amendments Nos. 2 and 3 together, because he may find that of value. The new clause which is suggested in Amendment No. 2 gives total discretion to the Secretary of State in determining to what extent he allows local authorities to conduct work with persons who are not public bodies—that is, work outside the local authority and other public body spheres.
§ The wording of this amendment is based on Section 38 of the Local Government (Miscellaneous Provisions) Act 1976. I believe that it provides quite a useful precedent. Although it specifically deals with computers and computer time, the wording could quite easily be altered to deal with other types of direct labour work and also to show that the 53 precedent is certainly there. I would suggest that there is a case for the full and economic use of equipment and staff of local authorities other than just the computers and computer time.
§ In a perfect world, the balance would be perfect: the amount of staff and equipment and the capital which was expended on the equipment would all balance out completely and the local authority would have no spare capacity whatever at any time. If this were a perfect world, it would be the same for those who were contracting for local authorities. But it never is the case; it cannot be. Sometimes one finds that in order to use up equipment and staff time for short periods, contractors will occasionally pick a contract and will be willing to give a very sharp and keen price for that contract.
§ So I believe and hope that the Minister will look favourably at the idea that the local authority or the direct labour should have some flexibility which would be circumscribed by the Secretary of State. The rules will be circumscribed by him to allow the local authority direct labour to compete with outside contractors.
§ Amendment No. 3 is perhaps not quite as wide ranging as Amendment No. 2. It deals with the ability and the right of the local authority direct labour to engage in open competition for certain activities outside. However, as regards activities which are normally done by the local authority—we are not talking here about breaking new ground and starting new types of activities—the local authorities should be able to break into the outside field if their expertise, abilities, staff and equipment allow them to do so.
§ The amendment is not seeking carte blanche for local authorities to set themselves up as trading organisations in any or all fields of the economy. The intention of the Bill is to expose to open competition certain activities normally undertaken by the staff of local authorities in order to ensure that the local authorities are achieving value for money in such activities. That is fair enough. The purpose of the amendment is to allow the local authorities themselves perhaps to check back on the contractor to see whether they are getting a fair deal from him. It is not always in the field of public works particularly where arrangements are made among contractors to submit one tender that is preferable to another by agreement. That may not be legal but it is frequently done and almost on a weekly basis.
§ But this amendment will permit authorities to seek contracts for cleaning, vehicle maintenance or catering, for example, outside the net of defined authorities if they so wish. I hope that the Minister will give this serious consideration. If local authorities are denied that freedom to seek and obtain work for this purpose they are being deliberately placed at a disadvantage, because that freedom is of value only if local authorities can win work on price and performance in fair competition.
§ As regards competition for local authority work, the Bill is certainly based on the principle of fair competition. I shall be interested to hear the Minister's reply but I hope that he is sympathetic to 54 at least the second amendment that I have tabled, which is Amendment No. 3. I beg to move.
§ Lord Stoddart of Swindon
My Lords, I hope that the Minister will indeed seriously consider these two amendments. I express that hope because when I served on a local authority one of the actions we took was to set up a direct labour building department. We also had a printing department. So successful was the building department that on its first tender in 1968 for the building of 79 houses to sell, not to rent, it was able to tender for a contract at £500,000 less than the nearest private tenderer.
The people who bought the houses did very well. The building department carried out the works to price and to time. Indeed so well-known did its success become that the electorate at large demanded of the councillors that the direct building department should do private work for the electorate. But as the law stands, and as it then stood, we were unable to say to those people that we had a very efficient department and of course it could carry out works of improvement. Therefore the department which was set up by the ratepayers and which was welcomed by the ratepayers was unable to carry out work for those very same ratepayers.
This is a very valuable amendment which has been moved by my noble friend. As 1 say, we also had a printing department which was very competitive and which would have welcomed being able to do work from outside because that would have spread the overheads and made the jobs that it did even cheaper than they actually were. In any event its prices were highly competitive compared with the private sector.
The Minister is a very fair man. Therefore I should have thought that he would have understood that one can have competition both ways. This amendment enables the Government, so to speak, to have their cake and eat it too; so I hope that the Minister will welcome it with open arms.
§ Lord Boyd-Carpenter
My Lords, to have one's cake, eat it and welcome it with open arms seems an extraordinarily agile performance. Although none of your Lordships would deny the quality of agility to my noble friend, I am not sure that it is a wholly appetising prospect which we are offered.
I very much hope that my noble friend will not accept this amendment because it seems that it would have the effect, and no doubt is intended to have the effect, of driving the proverbial coach and horses through this part of the Bill. As I understand it, it would, for example, be perfectly possible if Amendment No. 2 were carried into law for two local authorities to get into cahoots with each other and for each to contract with the other and the other's direct labour organisation for work which otherwise under the terms of the Bill would have to be put out to contract for general bids by all concerned.
It is well known that local authorities, particularly adjoining local authorities of the same party political connection, sometimes have very close links. That is certainly so of some of the boroughs of East London whose goings-on have rightly attracted a great deal of attention in recent months.
55 It would be slightly absurd if the work of a local authority were to be done not only by a direct labour organisation but by the direct labour organisation of its neighbour, while at the same time that authority did the work for the neighbour. I hope that we shall not make nonsense of the Bill in that way. It is bad enough to have, as we have in this same political connection, the practice under which elected councillors of one local authority are employed often in jobs of no particular practical value by an adjoining authority. We certainly do not want to add to such activities between local authorities. I hope that we shall reject this.
§ 6.15 p.m.
The Earl of Caithness
My Lords, I first of all should like to welcome the noble Lord, Lord Stoddart of Swindon, to the discussion on this Bill. I think it is the first time that he has taken part and his participation is extremely welcome. I shall have to be more on my mettle than usual as the Opposition seem to have a regular supply of bowlers on this subject.
Amendment No. 2, which the noble Lord, Lord Carmichael of Kelvingrove, has moved, is clearly designed to provide an escape valve where an authority may find that it has temporary surplus capacity which for good management reasons should be usefully and productively employed. I approve of the principle of making efficient use of available resources but that can already be achieved without the introduction of this new clause. The answer lies in existing legislation. Section 111 of the Local Government Act 1972 gives subsidiary powers to local authorities, which could authorise the use of temporary surplus capacity by any person as being incidental to one of the authority's functions. Indeed there is a complementary provision for Scotland in Section 69 of the Local Government (Scotland) Act 1973.
I would also make clear, however, that such implied powers do not permit an authority to hire staff surplus to requirements solely or principally for the purpose of providing services to others. If the use of direct labour operatives is merely subsidiary, utilising genuine temporary spare capacity, no additional power is necessary. If more than that is envisaged, the DLO would soon be in the business of establishing itself as a public trading organisation. That would be clearly undesirable.
The noble Lord, Lord Carmichael, quite rightly drew the attention of the House to Section 38 of the Local Government (Miscellaneous Provisions) Act 1976, because that gives an express power in respect of utilisation of excess capacity in computers. The noble Lord will know better than I do that that power was, however, deliberately confined to computers, because it was considered that in some circumstances it was probably economically sound for local authorities to purchase computers with capacities greatly in excess of immediate needs. I understand that some authorities with large amounts of surplus time available in their computers were doubtful whether Section 111 of the Local Government Act 56 1972 would cover the sale of so much time and they were anxious to be given a specific power for the sale of this surplus capacity. It is not considered that similar uncertainties arise in the situation covered by this amendment.
I now turn to Amendment No. 3. I thought that the noble Lord, Lord Stoddart of Swindon, argued persuasively for allowing local authority direct labour organisations to compete for work in the private sector. But I would say to him, why not go the whole hog? Surely if there is a situation such as that, those direct labour organisations should be turned into genuine companies that will sink or swim in the private sector, where they will be unsubsidised by the taxpayer and the ratepayer and will compete on a truly genuine basis.
§ Lord Stoddart of Swindon
My Lords, I am most obliged to the noble Earl. I understand the point that he has made. However, one of the benefits of creating the direct labour organisation was that a local authority would be able to compete with the private sector and put in realistic tenders. As a result not only did a local authority obtain cheaper work from its direct labour department but the price of private sector building in the whole area came down. That really was competition. What the Minister is suggesting would not be competition at all, because one way or another the private sector could set up its own cartel, as it has in the past.
The Earl of Caithness
My Lords, if one takes the situation referred to by the noble Lord to its proper conclusion, and if it had been a true private sector company, would it have been able to submit the prices that it put forward? The complaint that we most commonly receive about local authorities is that they are favouring their in-house DLOs. Clause 33 of the Bill bears witness to that. Amendment No. 3 offers the prospect of private contractors being placed in an unequal position by the subsidised operations of local authorities. I believe that this amendment is designed to create more jobs for local government empire builders rather than to improve competition, which is the aim of the Bill.
The noble Lord, Lord Stoddart of Swindon, was right to say that at the moment private contractors cannot compete because of the Local Authorities (Goods and Services) Act 1970. We are trying to allow private enterprise into what has become a local authority monopoly in order to obtain better value for money for the ratepayer.
§ Lord Carmichael of Kelvingrove
My Lords, the Minister will appreciate that his reply is rather disappointing. First of all, I should like to welcome to the House my noble friend Lord Stoddart, who has been liberated from the Front Bench. We are not happy about the reasons for that but we know that on the Back Benches he will be extremely active and pertinent and even show the aggression that we expect and enjoy from him.
57 it is an extremely valid point that local authorities have a right to check whether private contractors are being competitive. The idea that there are no cartels is nonsense. The Minister asked why local authority direct labour departments did not become private companies and move into the private sector. The chances are that they would join the private contractors in some form of syndicate when it suited them and be part of the cartel. I am not saying that it is a major problem now. A great many steps have been taken to stop outside contractors putting in tenders that are agreed beforehand. But the situation had got so out of hand that I wonder whether it has been entirely cleared up.
1 remember on one occasion contracts were put out to tender for many thousands of yards of drainpipes. The cost of supplying them submitted by half a dozen different companies was the same to the last penny—for thousands upon thousands of yards of drainpipes. It is not true that competition of that kind will necessarily produce the best price, the best conditions and the best job. That is why we wanted these amendments included in the Bill.
I am glad that the Minister says that no special powers are required to use excess capacity in certain cases. I wonder whether at some point—perhaps not today—he could give me an indication of the parameters of that additional capacity. Perhaps he could write to me about that.
We are disappointed in the reply but, recognising that in the Government's view the purpose of the Bill would not be strengthened by this amendment— although we believe that the hands of the local authority and of the people who ultimately pay would be strengthened—I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 3 not moved.]
§ Clause 28 [Local authority publicity]:
§ Lord McIntosh of Haringey moved Amendment No. 4:
Page 27, line 22, leave out subsection (2) and insert—
("(2) A local authority association may, within a period of six months after the date of passing this Act, issue (whether or not jointly with any other such association) a code of practice with regard to publicity for the guidance of its members, and section 4 of that Act shall not have effect in relation to any authority to whom such a Code has been issued until after the making of an order under subsection (2A) below.
(2A) The Secretary of State may, after considering any Code issued under subsection (2) above, and after consultation with the local authority associations, make an order to give effect to section 4 of that Act in relation to any authority to which an association has issued a code under that subsection, provided—
- (a) that he shall first provide any authority affected with a written statement of his reasons for making the order, and
- (b) that no order shall be made before a date nine months after Royal Assent; and
- (c) that no such order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.
(2B) In section 4 of that Act (issued by Secretary of State of Codes of recommended practice on publicity)—
(a) at the beginning there shall be inserted—
(1) This section shall apply to a local authority where
- (a) no Code has been issued to that authority by a local authority association of which it is a member under section 26(2) of the Local Government Act 1988; or
- (b) an order has been made in respect of that authority under section 26(2A) of that Act."
(b) in subsection (1) for the words "local authorities" there shall be substituted "a local authority to which this section applies." ").
§ The noble Lord said: My Lords, Amendment No. 4 returns to a subject which has been debated in earlier stages of the Bill. However, I think that it does so in a different way and one which justifies its reconsideration here.
§ This amendment does not—I repeat "does not"—affect the definition of publicity for political purposes. For the purposes of this amendment we have not sought to challenge the Government's intention to prohibit publicity by local authorities which could be thought to be of a political nature. We still have worries about the wording of that but Third Reading is not the time for this House to go over those concerns again.
§ What we are concerned about today is the nature of the codes of practice to which the Bill, and of course the Local Government Act 1986, refers. I should explain that the amendment we are putting forward has the support not only of Labour local authorities assembled together in the Association of Metropolitan Authorities but also of local authorities of all political persuasions, and of none, in the Association of County Councils and the Association of District Councils. It also has the support of outside bodies such as the Institute of Public Relations, the Campaign for Freedom of Information, the Association of Free Newspapers and the Campaign for Press and Broadcasting Freedom.
§ The issue is that since 1986 the Government have made consistent and, to do them credit, persistent attempts to draw up a code of practice for local authority publicity following the requirements which were introduced by the 1986 Local Government Act. We are now on the fifth draft of that code of practice. Each one has been subjected to criticism—I think constructive criticism—by local authority associations and by others who are concerned with local government and publicity. After a period of well over a year and half we have still not achieved a code of practice which has proved to be acceptable and agreed to be properly worded for the purposes of giving guidance to local authorities as to the way in which they should conduct their publicity.
§ There are those on the government side who say that that is because local authorities are being difficult about their criticisms of the wording and intentions of the code of practice. I do not believe that that is the case. By their nature, and it is not in any way to their discredit, civil servants are not close enough to the problems of local authorities (and the way in which local authorities ought to be communicating with the people in their area) to be able to produce a suitable code of practice. That does 59 not mean that they are not good at their job as civil servants. It means that this should not be their job. The code of practice could and should be drawn up by the local authorities together with their local authority associations. Towards the end of last year they drew up a draft code of practice which in my view forms a very good basis for the implementation of this clause.
§ This amendment says that they will have a further opportunity six months after the Bill is passed to present that or a similar code of practice to the Secretary of State. The Secretary of State may—not "must" but "may"—then bring it into effect as the appropriate code of practice under this Bill. There is no compulsion on the Secretary of State.
§ There is no criticism of the objectives of the code of practice as defined in subsection (1) of the clause. What is given here is an opportunity to short-cut what has appeared to be an interminable procedure of drawing up codes of practice. This can be dealt with relatively quickly and to the satisfaction both of government and the local authorities and we have the oportunity to do it in this relatively simple and certainly modest amendment. I hope that it will command the support of the Government and those who have felt and still feel strongly about the issues of local authority publicity. I beg to move.
§ 6.30 p.m.
§ Lord Campbell of Alloway
My Lords, I hope that your Lordships will not accept the amendment. At one stage when we were discussing Clause 27 of this Bill the Chamber divided against the Government on the status of the code of practice. That is now no longer in issue. By their very nature codes of practice are fairly difficult for a Secretary of State to formulate in any event, and they must always be formulated after due consultation. To that degree I go along with the noble Lord, Lord McIntosh.
However, if I am not mistaken the noble Lord referred to "interminable" negotiations. Certainly from my scant knowledge I know of some very detailed negotiations and have come across strenuous efforts to agree upon the content of a code. None of them has borne fruit and, with respect to the little that I know about the matter, none of them is likely to do so. I hope that the noble Lord will agree that it is not necessarily the fault of the civil servants nor of the local authorities; it is not necessarily a question of' want of accommodation nor lack of goodwill. In this area it is simply a very difficult result to achieve.
Because of those difficulties, once the principle of the clause has been accepted it is up to the Secretary of State to settle the code, having taken into account all relevant consultations—and, my word! there have been some consultations over the years. To require that he should:first provide any authority affected with a written statement of his reasons for making the order".is to impose a wholly inappropriate fetter on the way in which a Secretary of State should discharge his duties in accordance with the intention of this clause.
60 Very briefly, for those reasons I hope that your Lordships will not accept the amendment.
§ Lord Hayter
My Lords, your Lordships will know as well as I do that sometimes the Chamber has to deal with an amendment which consists of changing only one word—probably "shall" or "may"—and that such an amendment has a desperate effect on the Bill as a whole. On other occasions there may be a fairly long amendment such as the one that we are now discussing, which may appear to be very complicated. However, the amendment can be summed up in a few words: to allow a voluntary code of practice to operate for a trial period. That is the aim.
The purpose of the amendment is to allow local authorities through their associations to draft and work to their own code of practice on local government publicity before the Secretary of State issues his own and imposes it if he so wishes. There is no need for me to go into the background of this topic. There has been a long history of the government believing that local authorities are anxious and willing to push forward party-political publicity on each and every occasion. However, they are wrong. They are pushing against an open door; a fact which the Widdicombe Committee bore out. Of course there have been no cases heard since 1986 of any such attempts which have been bruited abroad.
When it addressed itself to the question of a code of practice, the Widdicombe Committee stated that there should be guidelines covering the tone and presentation of local government publicity. It considered a number of ways in which that could be done but was not happy with them. However the committee was very clear on one point in particular; namely, that the structure of the guidelines should be based upon self-regulation. When one thinks about it, that is logical. The Widdicombe Committee concluded:We believe that tone and presentation is important, but it would undoubtedly be best if it were the subject of self-regulation".It is perfectly true that the Government have published five drafts of' a code of practice and that each draft has been commented upon by the local authorities, but they still have not come up with anything that has been acceptable to both sides. There are one or two specific problems, of which I shall mention but one. There is still a provision in the Government's draft code of practice that:publicity should not attack, nor appear to undermine, generally accepted moral standards".I do not know what that means. Although I am quite sure that the Minister's moral standards are the same as mine and so we would get on together very well, in a general sort of way I do not understand what is meant by that wording. I think that it is only reasonable to ask the Minister to give some definition of' what is implied.
I have with me a chronological summary of all the attempts that have been made in this respect. The Government claim that that is an indication of their willingness to take local government with them, but the truth of the matter, as has already been referred to in different contexts by both speakers on this 61 amendment, is that civil servants are not persons engaged in the work of local authorities, just as persons in local authorities are not civil servants. The truth is that the two find it very difficult to come to a common agreement.
We believe that local authorities should be allowed to draw up their own code of practice. In a way they have been asked to do so and we feel that that is the right course to pursue. Should they not be successful, the Minister will retain the right to introduce his own code of practice, which is perfectly proper. There has been no abuse by the local authorities of their publicity powers, as I mentioned previously, and we feel that the Government should let the authorities get on with the job of drawing up the code of practice.
§ Lord Boyd-Carpenter
My Lords, if local authorities were prepared to get on with the job of restraining the activities of a good many of them who use public funds for party political purposes, there would not have been any necessity for the clause as a whole or for this part of the Bill. However, the very fact, at any rate in the view of Her Majesty's Government and Parliament so far, that it is necessary to legislate to restrain those activities surely indicates that one cannot leave to a local authority association the drafting of the code of practice. If local authorities were so well disposed, so responsible and as public spirited as the noble Lord, Lord Hayter, seems to suggest, it would not be just a question of a code of practice but of whether it was necessary to legislate at all on this matter. I know it is something about which some of your Lordships take different views, but so far we have proceeded on the basis that it is necessary to legislate on this matter.
Therefore there does not seem to be any reason to believe that, by handing the duty of drafting the code of practice to the local authorities, one would not merely have the whole operation of restricting their party-political activities frustrated.
I have also two points to make about the drafting of this amendment. The amendment states that:A local authority association maydraw up a code of practice. As your Lordships will know, there are a number of local authority associations. What will happen if several of them go into the business and draft different codes of practice? What will happen then? What is the Minister to do when an almost embarrassing flow of alternative codes of practice come to him from the different local authority associations? The one thing that is perfectly clear to all of us who have any experience of local authority associations is that they very rarely agree inside themselves and hardly ever agree with each other. So it really is making a nonsense of this part of the Bill to put this proposal forward.
I am also a little surprised to see it proposed that,no order shall be made before a date nine months after Royal Assent".This is postponing again the very necessary introduction of a code of practice if that quite unnecessary artificial delay is to be imposed. I never like using the phrase "wrecking amendment" because 62 it is thought, though I do not think it is generally intended, to be somewhat discourteous to those who put it forward. But this amendment, if adopted, would do very severe damage to this part of the Bill and I hope, for that reason if not for many others, that my noble friend will with his usual politeness and firmness reject it.
§ Baroness Fisher of Rednal
My Lords, I should like to intervene very quickly about the phrase "with regard to publicity". I do not know how much local authorities spent. They were spending money before the abolition of the metropolitan counties and of the GLC. But as regards publicity, the most marvellous publicity that has appeared on television—I do not know how much it cost but it must have cost many thousands of pounds—was when the Government were selling off British Airways. There was the most spectacular advertising, no doubt without a code of practice, putting forward a political party's philosophy with taxpayers' money. British Airways belonged to the taxpayer and that money was used for political publicity.
The same is true in the case of British Telecom. The advertising was not quite as spectacular, but we saw people abseiling and that was publicity paid for by public money, just as local authorities' money is public money, being used to put over a political philosophy. So I have the greatest difficulty in following the noble Lord, Lord Boyd-Carpenter, in his arguments.
§ Lord Boyd-Carpenter
My Lords, before the noble Baroness sits down, will she allow me to say that she has given me my case, because what she is saying is that she is against the promotion of party politics on the rates and therefore supports this amendment. That is exactly the point I was trying to make.
§ 6.45 p.m.
The Earl of Caithness
My Lords, first I must say that 1 was a little surprised and disappointed to see the amendment in the name of the noble Lord, Lord McIntosh of Haringey. This amendment was first tabled by the noble Lord and the noble Lord, Lord Hayter, at Committee stage. During the debate on Amendment No. 113ZA, which was taken to a Division, the noble Lord, Lord McIntosh of Haringey, made it clear to the Committee that he was also presenting the case for this and a number of other amendments. He then gave full expression to his arguments for this amendment and I duly responded to the points he made.
I should, however, like to take this opportunity to remind the House of the purpose of Clause 28(2). It seeks to require local authorities to take account of the code of recommended practice which the Secretary of State is authorised to issue under Section 4 of the 1986 Act. It proposes therefore that local authorities should be required to have regard to the provisions of the code. In other words, it reinstates 63 the force of Clause 4 of the earlier Bill before it was amended by your Lordships.
The main purpose of this amendment appears to be to remove the Secretary of State's responsibility to set out principles of good practice on publicity for local authorities to take into account. This responsibility was given to him only two years ago with the approval of both Houses of Parliament, which accepted the basic justification for his involvement.
The reasons for placing the responsibility for the code in the hands of the Secretary of State are just as valid today as they were when Section 4 was first debated. Some local authorities, I regret to say, remain determined to use their position and their access to public funds to produce publicity of a type and on a scale which is impossible to justify. The Government have no doubt that in this highly sensitive area it is right for them to seek to ensure that principles of good practice are laid down and matters of bad practice discouraged.
No one can deny the onslaught of political propaganda in some areas. One has only to look at a recent edition of Ealing Council's house magazine which provides a clear example of such abuse. But the code will not extend or interpret the ban on party political publicity in Section 2 of the Act. That is entirely separate and free-standing. Nor will it fetter the legitimate use of local authorities' publicity powers. What it will do is to set out clear principles of good practice reflecting the conventions that should apply to all publicity at public expense, and which traditionally have applied in both central and local government.
To summarise the position, noble Lords opposite are making the claim that the use of public money by local authorities for publicity is not a matter which Parliament and central government should seek to influence. The fact that large sums of public money have been used on controversial publicity in recent years, a large percentage of which is taxpayers' money, gives central government a clear and important remit. History proves that some local authorities—and I stress "some local authorities"—have not been very good at maintaining the accepted conventions. They have used a very sensitive medium in regrettable ways.
What the Government are now seeking to ensure is that local authorities have regard to the practice which Parliament recommends in the field of publicity. It seems only sensible to us that this requirement should be imposed in a form that all local authorities are fully familiar with, so that account is taken of the recommendations approved by Parliament.
The noble Lord, Lord McIntosh of Haringey, rightly drew the attention of the House to the fact that some local authority associations have produced a satisfactory code. I am pleased that my view on these matters is reinforced by the draft code on publicity prepared by officers of the main associations in December.
64 At first sight, this draft code bears some resemblance to the Government's draft code, a copy of which is in the Library of the House. I do not think it would be right to take up the time of the House with a line by line critique of the document. Suffice it to say that, although it appears to cover some of the matters included in the Government's draft, it excludes a number that we believe to be essential. Perhaps that is due to the fact that, as my noble friend Lord Boyd-Carpenter pointed out, there is more than just one local authority association.
I have to say to the noble Lord, Lord Hayter, that that is why we believe that the voluntary code is the wrong approach. More importantly, its provisions are written in such vague terms that we see no prospect that local authorities would be pointed towards good practice in any meaningful sense. That is the purpose of having the code in the first place.
I think it is right that I should explain to your Lordships once again why a code has not yet been issued. I explained in Committee, and I repeat, that there are two reasons why no code has yet been put to Parliament. These are, first, that we have endeavoured as far as possible to take local government with us on the drafting of the code. The history of the drafting demonstrates that we have been prepared to listen to their point of view and, where appropriate, to make amendments designed to allay their concerns. It will be for Parliament to decide whether to approve the final product of this consultative process.
Secondly, and I think perhaps more importantly, we did not think it was right to ask Parliament to approve a code the status of which would not be clarified until your Lordships and those in another place had had time to consider what is now Clause 28(2). I hope that your Lordships will not accept the amendment before us.
§ Lord McIntosh of Haringey
My Lords, I suppose we must be grateful for the fact that we have achieved two things in this little debate. The first is that at last, after consistent refusal to do so both in this House and in another place, the Minister has given an example of abuse of local authority publicity powers since the passage of the 1986 Act. He has given the example of Ealing Council's house magazine, which I shall certainly look into. Perhaps he will be kind enough to send me a copy of it—not in the middle of my speech. It is a fact that ever since this Bill came before Parliament the Minister of State in another place and Minister here have always refused to give any examples. A Minister of State in another place refused on principle because he said it was not relevant to the argument for the clause, and Ministers in this House perhaps gave less objectionable reasons.
The second thing we have achieved is that the Minister has described the local authority code which was produced last December as satisfactory. I am sure that those who have taken part in drafting it will be pleased to hear that description. That leads me to think that perhaps we are not as far apart as we might be. Indeed, if it had not been for the speech of the 65 noble Lord, Lord Boyd-Carpenter, I might have been tempted to withdraw the amendment. However, the misconceptions contained in it were so profound that I think it is necessary that they should be corrected or that the House should have an opportunity to attempt to correct them.
The first misconception was exactly this question of examples. The noble Lord referred again, without giving specific examples, to abuse of the code. There have been (with this exception, which I look forward to seeing) no examples of abuse of the provisions of the 1986 Act since it came into force. Ministers have not been able to give any examples. The fact of the matter is that the 1986 Act has been working. It has been working partly because it was amended and improved by your Lordships' House against the wishes of the Government.
The second misconception is the idea that there is an indefinite number of local authority associations that would be in constant dispute about the contents of a code. There are four local authority associations. They are all in agreement with this amendment whether they are Conservative controlled, as is the Association of District Councils, whether they are under the control of no one party, as is the Association of County Councils, or whether they are Labour controlled, as are the Association of Metropolitan Authorities and the Association of London Authorities. If they can achieve that form of agreement on this amendment, as they have achieved agreement on the draft code that they have produced, there is no reason why they should not continue to achieve a draft code which would be acceptable to the Secretary of State.
The third reason why I take issue with the noble Lord, Lord Boyd-Carpenter, is that he refers to no order being made before a date nine months after Royal Assent. If it were indeed the case that there were continued abuses of local authority publicity powers and that we were questioning the objectives of the clause, which is to restrain unjustified political publicity by local authorities, that point might have some force. However, we have the opportunity here to do something which is not only better in itself as regards publicity but is also better because it restores a relationship of mutual confidence between local authorities and government. On that basis, if on that basis alone, I think it is right to take the opinion of the House.
§ 6 53 p.m.
§ On Question, Whether the said amendment (No. 4) shall be agreed to?
§ Their Lordships divided: Contents, 67; Not-Contents, 91.
|DIVISION NO. 3|
|Airedale. L.||Birk, B.|
|Ampthill, L.||Blackstone, B.|
|Ardwick, L.||Bonham-Carter, L.|
|Barnett, L.||Brooks of Tremorfa, L.|
|Beaumont of Whitley, L.||Callaghan of Cardiff, L.|
|Carmichael of Kelvingrove, L.||Listowel, E.|
|Carter, L.||Llewelyn-Davies of Hastoe, B.|
|Cledwyn of Penrhos, L.||Lovell-Davis, L.|
|Cocks of Hartcliffe, L.||McIntosh of Haringey, L.|
|David, B.||McNair, L.|
|Davies of Penrhys, L.||Masham of Ilton, B.|
|Dean of Beswick, L.||Milner of Leeds, L.|
|Elwyn-Jones, L.||Morton of Shuna, L.|
|Ewart-Biggs, B.||Mulley, L.|
|Falkland, V.||Ogmore, L.|
|Fisher of Rednal, B.||Peston, L.|
|Gallacher, L.||Ponsonby of Shulbrede, L.|
|Galpern, L. [Teller.]|
|Greenway, L.||Raglan, L.|
|Grey, E.||Ripon, Bp.|
|Hampton, L.||Ross of Marnock, L.|
|Hanworth, V.||Seear, B.|
|Hayter, L. [Teller.]||Serota, B.|
|Henderson of Brompton, L.||Shackleton, L.|
|Hirshfield, L.||Stewart of Fulham, L.|
|Houghton of Sowerby, L.||Stoddart of Swindon, L.|
|Hughes, L.||Taylor of Blackburn, L.|
|Hylton, L.||Taylor of Mansfield, L.|
|Hylton-Foster, B.||Tordoff, L.|
|Irvine of Lairg, L.||Turner of Camden, B.|
|Irving of Dartford, L.||Underhill, L.|
|Jay, L.||White, B.|
|Jeger, B.||Williams of Elvel, L.|
|Kilmarnock, L.||Winterbottom, L.|
|Arran, E.||Lyell, L.|
|Bathurst, E.||Mackay of Clashfern, L.|
|Beaverbrook, L.||Margadale, L.|
|Belhaven and Stenton, L.||Marley, L.|
|Beloff, L.||Massereene and Ferrard, V.|
|Belstead, L.||Merrivale, L.|
|Blatch, B.||Mersey, V.|
|Bledisloe, L.||Morris, L.|
|Blyth, L.||Mottistone, L.|
|Boyd-Carpenter, L.||Mountevans, L.|
|Brabazon of Tara, L.||Mowbray and Stourton, L.|
|Bramall, L.||Munster, E.|
|Brougham and Vaux, L.||Murton of Lindisfarne, L.|
|Caithness, E.||Nelson, E.|
|Cameron of Lochbroom, L.||Newall, L.|
|Campbell of Alloway, L.||Orkney, E.|
|Campbell of Croy, L.||Oxfuird, V.|
|Carnegy of Lour, B.||Peyton of Yeovil, L.|
|Carnock, L.||Plummer of St. Marylebone, L.|
|Coleraine, L.||Quinton, L.|
|Colnbrook, L.||Rees, L.|
|Colwyn, L.||Renton, L.|
|Cowley, E.||Ridley, V.|
|Cox, B.||St. Oswald, L.|
|Craigmyle, L.||Saltoun of Abernethy, Ly.|
|Davidson, V. [Teller]||Sandford, L.|
|Deedes, L.||Skelmersdale, L.|
|Denham, L.||Slim, V.|
|Dilhorne, V.||Stockton, E.|
|Dundee, E.||Strange, B.|
|Fraser of Kilmorack, L.||Strathclyde, L.|
|Gray of Contin, L.||Strathcona and Mount Royal, L.|
|Halsbury, E.||Sudeley, L.|
|Harmar-Nicholls, L.||Swansea, L.|
|Hertford, M.||Teviot, L.|
|Hesketh, L.||Thomas of Gwydir, L.|
|Holderness, L.||Trefgarne, L.|
|Hooper, B.||Vaux of Harrowden, L.|
|Johnston of Rockport, L.||Waldegrave, E.|
|Kaberry of Adel, L.||Windlesham, L.|
|Kenilworth, L.||Wise, L.|
|Killearn, L.||Wolfson, L.|
|Kimball, L.||Wyatt of Weeford, L.|
|Lane-Fox, B.||Wynford, L.|
|Long, V. [Teller.]|
§ Resolved in the negative, and amendment disagreed to accordingly.67
§ 7.1 p.m.
§ Clause 29 [Prohibition on promoting homosexuality by teaching or by publishing material]:
Lord Airedale moved Amendment No. 5:
Page 27, line leave out ("it sees fit") and insert ("may reasonably he drawn from the evidence before it.").
The noble Lord said: My Lords, this is a rather smaller matter than the one we have just decided. It is an amendment to a subsection of the clause that prohibits the promoting of homosexuality. The subsection says that the court,
shall draw such inferences as to the intention of the local authority as it sees fit".
I do not think any judge reading that will feel any the wiser. I cannot believe that the decision in any case is going to be different whether this subsection goes in or is left out. Nor can I believe that any change is here intended in the familiar practice of the courts in drawing inferences as regards people's intentions. I cannot believe that such a change would be slipped into a subsection of a clause in a miscellaneous provisions Bill about local government. The noble Lord, Lord Henderson, on Report, moved to leave out this subsection. We argued for sparing the statute book a subsection which really does not carry the matter any further. But the Government seemed quite determined to have their subsection. So now we say, "Let us at least state the position correctly". It simply is not correct to say that the court may draw such inferences as it sees fit, just like that. The Minister stated the position correctly at col. 640 of the Report stage on 16th February when he said that,
the court will he obliged in the normal way to consider the facts of the case, to weigh the relevant factors and to come to an objective view about the authority's purpose on the basis of those factors".
That is what the amendment says very much more than the subsection says as drafted. I hope that your Lordships will consider the amendment an improvement on what has been drafted. I beg to move.
§ Lord Campbell of Alloway
My Lords, I hope that my noble friend the Minister and your Lordships will think it right to accept this amendment. Everyone knows that the phrase "as it sees fit" does not really mean what it appears to mean; and the fact that it is there will not alter in any way the correct judicial approach to the drawing of such inferences from the primary facts on the evidence. And, of course, if they are not properly drawn by a tenable process of deduction, then the decision would be reversed on appeal. Everyone knows that. However, if one is drafting a statute it is preferable to use an expression which means what it appears to mean.
§ Lord McIntosh of Haringey
My Lords, I do not know whether a non-lawyer may intervene in this debate, but it seems to me that the noble Lords who have just spoken have a good case. Although to some extent I took a back seat on this amendment—after our attempt to have the whole clause thrown out was 68 rejected by your Lordships— I was somewhat taken aback by the phrase:such inferences … as it sees fit".It did not seem to me that that was what courts were in the business of doing. As a layman, it had always seemed to me that they were in the business of looking at the evidence and assessing it. I hope that the Minister will see fit to accept the amendment.
§ Lord Hylton
My Lords, every single amendment we have dealt with today seems to have underlined the value of your Lordships' House as a revising Chamber. This one is no exception. I hope that the Government will be able to accept it.
§ Viscount Massereene and Ferrard
My Lords, I have always been rather shy of the words, "reasonably" and "reasonable". They are rather vague words, are they not? Some people will think something is reasonable and others will not. I have mentioned this point on previous occasions. In spite of that. I would personally support the amendment.
§ Lord Henderson of Brompton
My Lords, I was delighted to hear the noble Lord, Lord Campbell of Alloway, say that everyone knows that the words "as it sees fit" do not mean what they appear to mean. That recalled to me the extraordinary word "pretended" used elsewhere in the Bill, which clearly does not mean what everyone thinks it does. I wish that the word "pretended" had been amended. In seeking to amend the expression now being discussed the noble Lord, Lord Airedale, has hit on a very happy solution. He has received support from all sides of the House and I very much hope that the Minister will accept this improvement.
My Lords. I should also like to support the amendment. I confess that I am not sure that it really is as unworrying a point as the noble Lord. Lord Airedale, suggested. I confess to not being aware of any other statute which appears to suggest that a court may draw inferences "as it sees fit". If one were to have such a provision in this statute I venture to suggest there is a risk that the court might think that somethng new and novel was meant and therefore might think that it had a greater liberty to draw inferences, or to draw inferences without evidence, other than in the normal way.
Unless the noble Lord the Minister can point to other examples where these words have been used, I think it is not only an improvement to have the amended wording but also that it would be a positive menace to leave the wording as it is.
The Earl of Caithness
My Lords, with his customary clarity and concern for clarity, the noble Lord, Lord Airedale, has proposed this amendment to subsection (3) of Clause 29 to spell out more fully the court's duty in any proceedings against a local 69 authority under this clause. As I explained in reply to an amendment moved at Report stage by the noble Lord, Lord Henderson of Brompton, the Government are confident that the present formulation would be understood by the court. Its effect would be precisely that intended by the noble Lord, Lord Airedale, with his present proposal. A court would naturally base its conclusions about an authority's intention on factors that could reasonably be drawn from the evidence and the circumstances of the case.
However, I do not want to be obstructive. I entirely accept the noble Lord's desire to be helpful in this matter and to clarify a point that has troubled a number of your Lordships. There is really nothing between us and therefore I am content to recommend to the House that the amendment he accepted.
§ Lord Airedale
My Lords, I am obliged to the Minister. I should like to say to the noble Viscount, Lord Massereene, that if he wishes to know what is reasonable he must ask the gentleman on the Clapham omnibus, because what he thinks is reasonable is reasonable.
§ On Question, amendment agreed to.
§ Clause 34 [Local authority companies]:
Lord McIntosh of Haringey moved Amendment No. 6:
Page 29, line 31, leave out ("11th February 1988") and insert ("the day on which this Act receives the Royal Assent").
§ The noble Lord said: My Lords, this amendment refers to Clause 34, which concerns local authority companies and was introduced by the Government in this House. It has not yet been considered by another place. In introducing this amendment we are concerned not with the content of the provision on local authority companies, which has already been debated, but with the issue of retrospective legislation. Clause 34 as drafted provides that the clause should come into effect on 11th February; that is the day after the Government's new clause was published and before the matter had been debated in your Lordship's House.
§ On occasions, there may be cases for retrospective legislation. However, I suggest first that they should be kept as few as possible and, secondly, that this is not such a case. If retrospective legislation were to be justified in this case there would have to be overwhelming evidence not only that local authorities had in hand plans to create local authority companies which would circumvent the proposals in the Bill, but also that those local authority companies could be legally enforced before the date of Royal Assent of the Bill. That cannot be more than two or three weeks away if, as we expect, the Bill is passed in this House this afternoon and goes immediately back to another place.
§ No evidence has been produced to show that any local authorities have set up, or have advanced the process of setting up, local authority companies 70 which will have the effect of circumventing the Government's intention in the Bill. There are examples of local authorities seeking to set up local authority companies. Most of the examples of which I am aware concern Conservative controlled councils. I have seen only one referred to publicly and it is Rochford Borough Council in Essex, which is Conservative controlled. According to the Local Government Chronicle of 29th January it is proposing to set up a company not merely in advance of the Housing Bill so as to transfer properties to housing associations, but as a separate company running a £10 million leisure centre with 200 employees. I do not know whether the authority has been able to set up that company between 29th January, when the report was made, and 11th February, the date when the Bill, as drafted, would make it impossible to circumvent the provisions of the Bill. I believe that it is most unlikely that there will be a significant number of local authorities which will act in any way to frustrate the Government's intentions and I am aware of no such Labour controlled authorities.
§ If we introduce into a Bill at a late stage, as we now have, what is claimed and justified as an emergency provision in order to deal with a particular case, we must have much better evidence than has been produced showing that something will go wrong between now and the middle of March, or whenever the Bill is granted Royal Assent. Here the case for retrospective legislation has not been made. If the Minister has other examples that he wishes to quote I should be delighted to hear them. If he has other examples which he would like to communicate to me privately I should also be delighted to hear them. However, as the matter stands at the moment I do not believe that the House should approve this piece of retrospective legislation on the evidence that it has heard. I beg to move.
The Earl of Caithness
My Lords, I cannot resist drawing to the attention of the House what appears to be a change of view among noble Lords opposite regarding the significance of Clause 34. In commenting on it originally the noble Lord, Lord Dean of Beswick, seemed to doubt very much whether the potential abuse at which the clause is aimed actually existed. He commented that there were shadows which have not really appeared.
I made it clear that the Government had become aware that a minority of authorities had indeed been looking into the possibility of using the company device and that we did not regard ourselves as bringing forward a provision which was merely of academic interest. It would now appear that noble Lords opposite have come to share the Government's view or there would be little point in their seeking to have the effective date of the clause's operation the date of Royal Assent. If no authorities arc likely to have their plans affected by the decision, why bother with the amendment? Surely it contains the seeds of its own destruction.
From the point of view of the Government, the effect of the amendment would be to create a much worse situation than that which would exist if the 71 Government's measure never had been introduced. It would be the equivalent of saying to authorities "Look the Government have allowed you several weeks to take advantage of an anti-competitive loophole which avoids the provisions of Part I of the Bill altogether". That would be a sure-fire way of translating into a reality the possibility of using the company device.
I carry no brief for retrospective legislation in general but from time to time many governments have had to agree that a degree of retrospection is necessary under limited circumstances. I quite clearly believe that this is one of those limited circumstances.
§ Lord McIntosh of Haringey
My Lords, I am afraid that after a distinguished career as a spokesman on environment matters, the noble Earl has, in dealing with this amendment, given one of his weakest replies. At an earlier stage we said that we did not like the amendment because we thought that there were no good examples of the abuse which the Government claimed as justification for the new clause. Our sceptiscism about the abuses still exists. It is even more strong because the Minister has failed to take another opportunity which has been given to him to set out the abuses justifying not only introducing a new clause at a late stage in the Bill, but justifying the retrospective elements of the clause. We are saying exactly the same as was said by my noble friend Lord Dean at an earlier stage. We are saying that as we have failed to persuade the Government to take out the clause they should at least remove one particular objection to it; namely, that it is retrospective legislation without adequate justification being given. The Minister has given no further justification for the clause whatever.
I am unhappy with that situation. I do not believe that we should extend the application of retrospective legislation in that way. However, this is not a matter which will in any way shatter the bonds between local authorities and central government. No companies would have been set up between 11th February and Royal Assent and therefore it becomes a theoretical rather than a practical point. Although I disagree with the Government's arguments I believe that it would be inappropriate for me to seek the opinion of the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Caithness moved Amendment No. 7:
Line 6, after ("purposes") insert ("to prohibit the promotion of homosexuality by local authorities").
§ The noble Earl said: My Lords, I beg to move Amendment No. 7 and, for the convenience of the House, speak at the same time to Amendments Nos. 8 and 9. These three amendments would all add references in the Long Title to provisions which have been added since the Bill was introduced. The first adds a reference to what is now Clause 29, which, as all your Lordships know, deals with the promotion of homosexuality by local authorities; the second adds 72 a reference to the provisions on dog registration. The Government are still considering what attitude they should adopt to Clause 38, but since the clause will be in the Bill as it leaves the House, it is right it should be referred to in the Long Title.
§ On Question, amendment agreed to.
The Earl of Caithness moved Amendment No. 8:
Line 8, after ("administration") insert ("the powers of auditors").
§ On Question, amendment agreed to.
The Earl of Caithness moved Amendment No. 9:
Line 12, after first ("and") insert ("dog registration").
§ On Question, amendment agreed to.
The Earl of Caithness
My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(The Earl of Caithness.)
§ Lord McIntosh of Haringey
My Lords, in speaking to the Motion, That the Bill do now pass, first I must express, despite my comments on the last amendment which I moved, my deep appreciation to the Minister and his colleagues for the way in which they have progressed this Bill through your Lordships' House. It must have been a shock to the Minister to have been brought so suddenly into the Department of Environment from the Home Office, where he had distinguished himself. However, he certainly earned the respect of those of us who have been working in local government matters for a number of years for his understanding of the issues involved, his unfailing courtesy in dealing with the arguments put foward and, on occasions, for his understanding of the validity of the arguments put forward, although inevitably those occasions were less frequent.
I must also express my appreciation to my noble friends who have taken part in the debate on this Bill, to my noble friend Lord Underhill, who spoke so ably on Second Reading, to my noble friends Lord Dean and Lord Graham, who undertook duties particularly while I was absent, to my noble friend Lord Carmichael, who dealt with the Scottish aspect and, indeed, to my noble friend Lord Irving, who accepted an extension of his duties as spokesman on defence to duties as spokesman on defence of postmen when we dealt with the amendments on dog licences. There were also notable contributions from the Opposition Back Benches, notably from my noble friends Lord Longford, Lord Peston, Lord Gifford, Lord Rea and many others present and absent whom I should not be able to list.
As it entered your Lordships' House, this Bill was unsatisfactory in detail and undesirable in objective. We still feel that that is so today, although there have been some changes to it. The Bill arose partly because—and I acknowledge this —of the bad behaviour of some local authorities, many of them Labour local authorities. One might say that the tricks played by some local authorities made it possible for the Government to achieve a wider 73 measure of acceptance for parts of this Bill than would otherwise have been possible. To that extent we are culpable and are responsible for the restrictions on local autonomy which have been brought forward by the Government.
However, those abuses, which have been acknowledged by all sides to be the abuses of a small minority of local authorities, have led to a gross over-reaction by the Government. In almost every case with which we have dealt in this Bill, whether competitive tendering, contract compliance or the different bits and pieces which have been added to the Bill at various stages, the result of this Bill has been the extension of detailed central government control of local autonomy and democracy. That can only be undesirable, whatever the motivations of the particular government in putting them forward. For that reason, we deeply regret that this Bill has gone through your Lordships' House with so little amendment when so much needed to be amended.
Perhaps I may say a few words about Clause 29 on homosexuality. As your Lordships know, that has not been a matter on which my noble friends have been whipped. There has been a free vote throughout our consideration of the matter although I am grateful and impressed that so many of my noble friends have felt in the same way as I about this matter. In my view and that of many of my noble friends, it is not a matter which should have been the subject of legislation at all. It arose from a very small number of abuses and is a great over-reaction to those abuses which will, as the most reverend Primate the Archbishop of York said at an earlier stage, be damaging to the civil rights of our people. The effect of any attempt to introduce legislation on this subject in a Bill of this kind must be damaging to our legal system and to our civil rights.
I am bound to say— and perhaps it is only safe to say it now when all amendments have been considered—that Clause 29 does not have the kind of restrictive effect which was intended by its promoters in another place or which was feared by many of those, particularly in the artistic world, who have been so worried about it, because the clause as now drafted refers only to the intention of local authorities to promote homosexuality. I do not believe that there is a clear legal definition of what is meant by promoting homosexuality, just as, like the noble Lord, Lord Henderson, I do not believe there is any clear definition of what is meant by "pretended family relationship". To that extent, the clause is still objectionable but we know from the series of legislative restraints on local authorities and the legislative restraints on what they can do to promote anything that in fact there will be very little practical effect. What can a local authority do to promote the teaching of any subject in a classroom? Even under existing legislation, it can do very little because a local authority is restricted by the Education Act to a general statement of policy which would have to he approved by the governing body if it were to get anywhere in a school. Even then, it would have to be accepted by the teachers.
74 The Borough of Haringey, which is of very great renown, attempted to introduce as a positive policy the promotion of positive images of gays and lesbians. It did not succeed in finding a single governing body of any of its schools which accepted that policy and was prepared to put it into effect in the school. Therefore, it could not have happened then and the prohibition on a general policy of that kind is not a meaningful change. That is not to say that, because it will not have the same effect as its promoters intended, this is a good clause. It is still an abuse of the legislative procedure and is the introduction of moralising into our legislation in a way which ought not to be allowed. However, we can be thankful that the amendments which have been introduced by the Government and now by the noble Lord, Lord Airedale, and the further explanations which have now become available about the powers of local authorities and education authorities in particular have meant that the fears of the artistic community will not be realised.
§ Baroness Blatch
My Lords, I am most grateful to the noble Lord for giving way. Does he not agree that, while no governing body of any school was able to support the policy of positive images, a way round that has been found by funding with ratepayers' money organisations such as the Reading Matters bookshop, which does all the promotion that the positive images policy would have done within the local authority?
§ Lord McIntosh of Haringey
My Lords, no, I do not agree at all. The clause is about teaching at schools and there is nothing anybody who wants to promote homosexuality in Haringey can do to affect teaching in schools. Many of the activities of the Gay and Lesbian Committee I very much applaud and, indeed, many of those activities will not come under the provisions of this clause. Neither do I agree positively with the noble Baroness in the example that she gave and nor do I agree that it would be undesirable to have the alternatives she suggested.
I am sorry to have gone on at length about this clause but it took up an inordinate amount of time in your Lordships' House. It is necessary that we should state as clearly as possible where we stand at the end of our consideration of the matter. The clause ought not to have been included in the Bill and it still should not be there but it is important that the outside world should know as clearly as possible the restrictions that exist as a result of the wording of the clause and the ability of the moralisers and the Grundys to affect the behaviour of consenting adults in private.
§ 7.30 p.m.
§ Baroness Seear
My Lords, I too, briefly on behalf of these Benches, thank the Minister for the very agreeable way in which he has conducted the Bill through this House—a way to which we have now become familiar in respect of the various Bills loaded upon the noble Earl.
75 However, having said that I find myself to an unusual extent in agreement with much of what the noble Lord, Lord McIntosh, said. We regard this as a thoroughly bad Bill. We very much regret that Clause 29, as it now is, is on the statute book. I personally echo what the most reverend Primate the Archbishop of York said about the intrusion by government, by legislation, into what is taught in the classroom. In our view it is an extremely dangerous precedent. We are also extremely sorry that the Government took a very narrow view about the extension of contract compliance to women, allowing it for ethnic minorities but, on a narrow legal argument, not for women.
Above all, it is yet another extension of government power over local authorities. We shall be discussing this matter at greater length in the debate on Wednesday so I do not propose to say anything about it now except that I wonder whether the Government realise the extent to which they are concentrating power at the centre and the potential dangers that lie with that concentration.
We thank the noble Earl for the way in which he has handled the Bill but we find nothing to thank him for in the Bill itself. However, we very much hope that at least the change in relation to dog licences will remain in place. I think he hinted that even that might not be so.
§ Lady Saltoun of Abernethy
My Lords, I should like to read out a short extract from a leading article in the Daily Express of last Monday, 22nd February:Some critics of the Government's proposal to ban the promotion of homosexuality in the classroom—Clause 28 of the Local Government Bill"—now Clause 29——say that legislation is unnecessary. Teaching children about homosexuality is not promoting it, they believe.Well, actor Ian McKellen has news for them. And has confirmed the fears of millions of parents.Addressing a 'homosexual rights' rally to protest against Clause 28 he said: 'We must he out and about in pubs and clubs and classrooms, talking about homosexuality. In fact, in that sense, promoting it.'We should he grateful to Mr. McKellen for his honesty. No one can now claim that lessons projecting homosexuality as just another 'lifestyle' are not meant to promote it…McKellen's words amply demonstrate that Clause 28 comes not a moment too soon.Clause 28, now Clause 29, for the most part started in December 1986 as a Private Member's Bill in the name of the noble Earl, Lord Halsbury, drafted for him by the noble Lord, Lord Campbell of Alloway. It passed through this House unopposed just over a year ago and went to another place under the auspices of Dame Jill Knight but was a casualty of the general election. Those people, parents in particular, whose anxieties it meets have special reason to be grateful to the noble Lords I have just mentioned and to the noble Baroness, Lady Cox, all of whom devoted a great deal of time and effort to giving it birth and to cherishing it to maturity; as well as to Mr. Wilshire who moved it as a new clause to this Bill in another place and to the Government for 76 accepting it. Those of us who have supported it, in particular the noble Lords I have mentioned, are especially grateful to the noble Earl, Lord Caithness, for his unfailing help, patience and courtesy through the long hours during which he has sat and listened to the debates.
Finally, on behalf of the Cross-Bench Peers I convey to the noble Earl the same sentiments for his patience and help throughout all the long drawn out stages of the Bill.
§ Lord Boyd-Carpenter
My Lords, like the noble Lord, Lord McIntosh of Haringey, I very much regret the necessity for the introduction of this Bill. It was introduced because of certain abuses and certain things going wrong in local government. I am afraid it is an example of the well-known principle that if those in public positions and public authority over a long period abuse their powers, do wrong, then sooner or later a change has to be effected; and responsibility for that change lies with the national government and with Parliament.
§ Lord Boyd-Carpenter
My Lords, the noble Lord is absolutely right, and the electorate. Indeed, the approach which lies behind this Bill was only as recently as last June endorsed by the electorate.
It is in that sense that the Bill is a necessity and in the view of many of us an unwelcome necessity. The same principle applies to the famous, or if your Lordships prefer it, the notorious, Clause 29.1 do not want to add to the enormous amount of controversy that there has been about this clause save only to say that to some of us, faced with the evidence that in a limited number— not a great many—of local authorities children in schools and young people with activities outside schools were being exposed to the promotion of homosexual ideas, something had to be done. Faced with that situation, I suggest that no government could fail to take action. To take the line so blandly taken recently by the most reverend Primate the Archbishop of York and suggest that government should let it be is not acceptable to the minds or indeed, to the consciences of a very large number of people in this country.
I have no doubt at all, having had some experience of government, that the Government were reluctant to get into this. The Government know well the heat, the passion and the correspondence which a measure of this kind generates. No government, faced with all the tasks of government, want to add to their labours in that respect. However, I still feel convinced and, I think, the bulk of the people in this country remain convinced, that a government faced with this practice, this evil practice, could do no less than they have felt bound to do.
Above all, I want to express the warmest congratulations and admiration to the Minister. As 77 the noble Lord, Lord McIntosh of Haringey, in his very generous tribute pointed out, my noble friend was translated from the calm pastures of the Home Office to the more rugged hillsides of the Department of the Environment just at the beginning of this Bill.
He was, as I believe I said to him at the time, thrown in at the deep end. He has swum extraordinarily well and has now swum finally through, as far as this House is concerned, to the landing place. Your Lordships owe a great deal to the good temper, the quickness, the adroitness and, above all, the incredible stamina of the noble Earl in the conduct of this Bill. It certainly would not have reached this stage by tonight had we not had the advantage of an exceptional Minister who has handled the Bill with the very greatest of skill. I should like very warmly to express to him the gratitude of, 1 believe, all of us in all quarters of the House.
§ Lord Houghton of Sowerby
My Lords, we have already had a list of credits as long as one sees at the end of a popular television programme. I am not sure whether it will help if I add mine. The Minister does not deserve some of the unpalatable tasks he is given to do. He is a willing horse and an able worker. At least, it is my impression that he is; and if he is not, then he should he. But I believe that he pays dearly in peace of mind for some of the tasks imposed upon him.
I wish to comment on the way the Government carry out their business on a Bill of this kind. It is fight that we should be concerned with what the Government are proposing to do. I believe it is also important that we should take an interest in how it is done. This is a striking example of the misuse of a piece of legislation with provisions which were never intended for it. Matters that were slung into it have given rise to very tiresome consequences.
I remind your Lordships of the two clauses which have caused so much bother. Neither was really intended for the Bill. It is regrettable that the Government tend on occasions to be pushed by their militant tendency. They include in Bills dealing with important but less controversial matters questions which give rise to a great deal of emotion. As a result a great deal of time needs to be spent discussing them.
I have frequently referred to a previous local government miscellaneous provisions Bill which had thrown into it at the Report stage in another place clauses relating to sex shops and pornography together with schedules that were longer than the original Bill itself. We had to deal with those matters at length in your Lordships' House.
We have another example in what is now Clause 29. I remind your Lordships of how this came about. The Bill was introduced into another place and read for a second time on 6th July last year. The Standing Committee in another place began on 16th July. The clause prohibiting the promotion by local authorities of homosexuality was introduced at the Standing Committee stage by a private Member as late as 8th December. It passed through the Standing Committee in one sitting and without a 78 Division. It is extraordinary. The noble Baroness spoke a moment ago about what this House had done on a similar theme earlier. I believe this to be a striking example of reaction to proposals in a Bill that are sometimes slow to move to a groundswell and to a realisation of the deeper implications of what is proposed.
On 8th December the clause went through the Standing Committee in another place. Within the week on 15th December, it came to the Report stage and Third Reading. Two days later, on 17th December, it came here. We began with the Second Reading of the Bill on 11th January. That is no way to deal with a highly emotive and complex matter such as the promotion of homosexuality. It is no way in which to deal with any moral issue. It is upon moral issues that the Government are most easily pushed by their militant tendency.
Probably all parties have a militant tendency. The Labour Party has one with views which are near to communistic, but it refrains, fights shy or hesitates to embrace all the disciplines and the suppressive instincts of a communist regime. On the Tory side the militant tendency consists of an authoritarian, puritanical and highly illiberal group of people who pursue a political and a moral philosophy which stops just short of donning a uniform in order to show the public where it stands. That can be called neo-Fascism. I believe it to be present in some elements of the Conservative Party.
We received a Bill that is ill-drafted. I do not know who drafted it, and I do not mind. It is ill-drafted, ill-considered and ill-intentioned. That is hardly a recommendation for any Bill to come to your Lordships' House. I will not dwell on the issues involved. I merely say that I regret that the Government lend themselves to this kind of legislative process. In my opinion the Government ought to take a firmer line in order to ensure that these matters are not just the result of catch-as-catch-can in our parliamentary processes but the outcome of careful consideration.
All the issues in Clause 29 merit the deepest consideration by Parliament because they go to the root of the liberty of the subject. They deal with moral issues and the behaviour of individuals. These issues go to the very root of our culture, our society and of our libertarian instincts. They also affect our freedom of thought and activity short of doing harm to the rest of the community. I deplore the manner in which the matter has been dealt with. It seems to me that so far this Bill has received very little praise from either side of the House.
The next subject I come to is that of dogs. This is more pleasant for me because I have long been associated with the dog problem. I remind the House that it is 10 years since two important investigations and studies were made into the problem of dogs in our society. One of these investigations was mine; the other was an inter-departmental committee appointed by the government of the day soon after I began my work. Both committees came to similar conclusions but failed to receive any serious attention 79 from subsequent governments. There has been more shilly-shallying by more Ministers on the question of dogs than any other subject in the parliamentary calendar. Now we have reached the point of slinging into this Bill the question of the abolition of the dog licence fee but with nothing else proposed about it. That is really what happened when the Bill began its process through this House.
Clause 40 is certainly an advance on what we had before. It contains part of the proposals made in the two previous reports for dealing with this matter. The powers in the hands of the police should be transferred, or should be available, to local authorities on similar terms. I am glad that this has been done.
I come to how we are leaving the question in the Bill. We have got rid of the dog licence fee. The decks are cleared as regards dogs and the taxation system. The matter is open to further review of what should be done without the encumbrance of a long-standing and inadequate form of taxation. What are we going to do, what is Parliament going to do and what are the Government going to do about the clause which is now Clause 39? It proposes the introduction of a registration system. Registration is probably part of the solution of the growing problem of how dogs are treated in society and how they can be given a more satisfactory place in our midst, but it is by no means the whole solution. Many other aspects fall to be considered when the Bill goes back to another place. The Government will have to decide what they are going to do about the amendment passed by your Lordships. I do not think that they can feel very happy about leaving the Bill in its present form.
The Government have to consider whether they will broaden their consideration of this matter by appointing yet another advisory committee on this complex question. I am sure that it would have some very important contributions to make towards a solution. There are many factors: there is health; there is the discipline of the dog; there is the companion animal which is now becoming an integrated part of human society, and so on. With the very best wishes to the Minister, I sincerely hope that he can resolve the dilemma with which this House leaves him. I offer my humble suggestion, without volunteering for the job, that another advisory committee might do well to find answers to current questions on the dog problem.
Democracy is supposed to be the final word of the people. A great many students of the principles of government believe that when the people have spoken in a democratic society that represents their final judgment upon any issue. That is the theory that we apply to our actions and our deliberations. We say that Parliament is sovereign. We have no constitution to provide a check upon the excesses, the follies and indeed upon the evil of the majority. We say that the people have spoken. There is no divine being and no monarch to decide and no final arbitrament on the wisdom of what we do.
80 We claim as a Parliament to be the judges of what is done in subordinate institutions (if "subordinate' is the word) which are exercising the system of democracy that we have here. This is a salutary thought. The noble Lord, Lord Boyd-Carpenter, said that no government can let this go on and that no government can ignore the excesses and indiscretions of other institutions in our democratic system. But they in their way are just as sovereign in a democratic sense as we are here and yet we claim to have the superior judgment upon them.
I see that the noble Lord is shaking his head. If we are a democratic society, and if we give local government powers to exercise the democratic system within the terms of reference of local government, then it should be free to do so.
§ Lord Boyd-Carpenter
My Lords, surely the noble Lord is ignoring the fact that in a unitary system of government such as ours the sovereign power is the Crown in Parliament. That means (does it not?) that unless Parliament is prepared to acquiesce in wrongdoing, wrongdoing will flourish, but it gives to that sovereign Parliament the ultimate duty of putting it right.
§ Lord Houghton of Sowerby
My Lords, wrongdoing can also be perpetrated by Parliament. There is nobody to put it right. If you concede democratic control, you have to accept its verdict. I cannot put the noble Lord to more vigorous exercise in shaking his head. We shall just say that we differ about this.
I do not want to carry my philosophy about democracy too far because I do not think that Parliament is any more representative of the people of this country than many local authorities are representative of their electorates. We talk about representative government and then talk about unrepresentative local authorities. The truth of the matter is that we feel ourselves to be mighty superior in the art of democracy and we look down upon those who exercise it in their own way but from a different point of view.
That is where I shall leave it. A few thoughts on what we are doing, how we do it and what is the plan of the future of our system should never be very far from our minds. There is something gravely wrong with a parliamentary system in which the Government, elected, so they think, on a clear mandate by a huge majority, are unpopular the day after, become more unpopular as the days go by and become thoroughly unrepresentative of the majority of the people probably throughout their whole period of office. That is the end of my lecture and no doubt the House will be greatly relieved. However, as other people are not incommoded by our being detained in the House at the moment I thought it not inappropriate that I should offer a few observations upon some of the issues.
§ Lord Hylton
My Lords, it is beyond doubt that there have been abuses in the past. Nevertheless the 1986 Act went a long way to correct them and I therefore regret that the Government seem to have used a sledgehammer to crack one or two rather small nuts.
Perhaps I may say something about the drafting of the Bill. I hope that the remarks made earlier today by the noble and learned Lord, Lord Simon of Glaisdale, on the Legal Aid Bill will be deeply pondered by the Government and pondered in relation to this Bill as well as the previous one. It is beyond doubt that the drafting of what is now Clause 29 is still unsatisfactory. If the Government can take further steps in another place to improve it, that would be welcome. I say that following and in spite of the helpful amendment moved by the noble Lord. Lord Airedale, and passed by your Lordships.
Before I sit down I should like to point to the speed with which this complicated and intricate piece of legislation has been taken through your Lordships' House. I think I am right in saying that it has occupied 30 working days for all its stages. That I suggest is too short a period.
§ 8 p.m.
The Earl of Caithness
My Lords, the House can fairly congratulate itself on its thorough examination of a Bill which, though not particularly lengthy, deals with a range of complex and contentious issues. We have spent more than 25 hours at Committee stage and more than 14 at Report and very few stones have been left unturned.
In the course of very full debates on Part I of the Bill I tried hard to persuade all your Lordships that the test of competition was one that should be welcomed. Many of my noble friends- in particular the noble Baronesses, Lady Blatch and Lady Carnegy of Lour, and the noble Lord, Lord Bellwin—helped me greatly in this endeavour as in many others. I am not sure whether we succeeded in persuading every one of your Lordships but nevertheless I am grateful that the House decided to support the principles of competition.
On the details, my noble friend Lord Mersey and other Members of the House presented a strong case, which the Government accepted, for the exemption of the maintenance of fire service vehicles. The noble Lords, Lord Graham of Edmonton and Lord Dean of Beswick, persuaded the Government that the work of employees in tied accommodation should also be exempted. We accepted amendments from the noble Baroness, Lady Nicol, to exclude work such as that associated with national plant collections from the definition of ground maintenance. I am sure all your Lordships will share my expectation that competitive tendering will work better as a result of those changes.
The Government are in no doubt that Part I will greatly increase value for money in the local authority services listed. An article in the New 82 Statesman recently confirmed this by pointing out that:the shameful point for municipal socialists is that it has taken Tory legislation to force them into examining their councils' records as a service provider".As your Lordships know, we have not yet decided whether to proceed with the addition of sport and leisure management to the list. The many points made on this by noble Lords on both sides of the House have added greatly to the advice which the Government will consider before coming to decisions.
With one notable exception, the House has accepted the principle behind the Part II provisions. Two minor amendments, including one typographical error spotted by my eagle-eyed noble friend Lord Balfour, have only served to dot the i's and cross the t's.
Those provisions, which are concerned with public supply and works contracts, were subject to lengthy and detailed scrutiny. Clearly, there remains a fundamental difference of opinion between the Government and noble Lords opposite as to the factors which it is proper for authorities to take into account during the contractual process.
I have tried to state the Government's position clearly throughout, ably helped by many of my noble friends such as Lord Beloff and Lord Boyd-Carpenter. We do not believe that authorities should set themselves up as extra-statutory enforcement agencies on matters which are already the subject of existing statute and which already have appropriate enforcement provisions.
The one significant amendment to these provisions which your Lordships saw fit to make was in the field of disabled employment. Unlike many of the other amendments put forward by noble Lords opposite, this amendment did not seek to give authorities a role in law enforcement. Instead, it allowed authorities to refuse to do business with a contractor because, in their view, he did not have proper regard to a non-statutory advisory code—the Manpower Services Commission's Code of Good Practice on the Employment of Disabled People. I have to say that the Government will consider the implications of this amendment carefully, as it clearly runs counter to the basic principle behind the Part II provisions which your Lordships have otherwise consistently endorsed.
Your Lordships decided not to debate Part III of the Bill at any great length, though not because the provisions on housing assistance are unimportant. I should like to reiterate the Government's firm belief that, far from stifling local authority initiative as the noble Lord, Lord McIntosh of Haringey, and others have suggested, the provisions in Part III will result in a variety of new schemes involving a genuine mix of public and private finance. This must benefit those wishing to live in rented homes.
I turn now to Part IV. I hope that in the useful debates we had on publicity I succeeded in demonstrating to your Lordships that the first subsection of the clause will clarify and thus improve the existing statutory restatement of the common law 83 ban on party-political publicity issued at public expense. The second subsection will ensure that the Secretary of State's code of recommended practice will be among the factors a local authority must take into account in exercising its publicity functions.
We have spent a good deal of time debating what has now become Clause 29. Indeed, the noble Lord, Lord Houghton of Sowerby, was one of those who contributed to the 11 hours-plus of debate that we have given to this clause. The Government have brought forward amendments which made it clear that it is the intention of the local authority that is crucial to the judgment of whether it has promoted homosexuality, or promoted a certain form of teaching in schools.
Claims have been made that the clause will lead to discrimination; bring about censorship of the arts or material in libraries; stop teachers dealing with homosexuality in an objective way; and stop local authorities providing legitimate counselling and care services. Those claims cannot be substantiated, as the noble Lord, Lord McIntosh of Haringey, so rightly reminded us. Unless it can be demonstrated that a local authority set out deliberately to promote homosexuality in carrying out its functions, there will be no problems of the kind that have been widely alleged. We believe that the terms of the clause are clearly set out, so that there is no question of legitimate services being adversely affected. I acknowledge the great concern of all your Lordships who took part in the debate on the clause, and I should like to express particular thanks to my noble friend Lord Campbell of Alloway for his help on the matter.
The other matters dealt with in Part IV of the Bill may be miscellaneous but they are certainly not trivial. Clause 30 provides improved powers for the local government ombudsman, and has been significantly improved by the provisions for direct access brought forward by the noble Lord, Lord McIntosh of Haringey.
Clause 31 makes important amendments to the auditor's powers, to allow them to act quickly to stop authorities incurring unlawful expenditure or loss. This will reduce the risk of authorities getting into financial difficulties as a result of their failure to comply with the law. It will reduce in future the need for long and difficult surcharge actions which at present provide the only way of resolving those abuses.
Clause 34—another new clause added in your Lordships' House—puts it beyond doubt that even if authorities wish to form their direct labour organisations into separate companies this does not absolve them from the duty to seek competition for work which would otherwise fall within the provisions of Part I of the Bill.
With that, I should like finally to move on to the infinitely debatable subject of dogs. The House has agreed with the Government that the continuation of excise duty on dogs, raised by licensing, is indefensible and should go. But our discussions ranged far wider, encompassing issues of dog control 84 and welfare at large. A modest but significant proposal emerged which commanded general support, as a result of which the Government introduced Clause 40, which gives local authorities the same powers as the police to control stray dogs. There was far less consensus about the many other ideas that were suggested, but despite the Government's reservations your Lordships decided to give discretionary powers to the Secretary of State in Clause 38 to introduce a dog registration scheme.
The noble Baroness, Lady Seear, for whom the whole House has immense respect, complained about the powers being accumulated in the centre. Indeed, the Liberals bounded into the Lobby to give my right honourable friend powers that he did not want. In view of the noble Baroness's remarks and her concern, and, indeed, what the noble Lord, Lord Houghton of Sowerby, has said, the Government will have to consider this matter again most carefully.
The noble Lord, Lord McIntosh of Haringey, said that there had been little amendment to the Bill. I must tell your Lordships that the House had agreed some 38 amendments to it. That leaves us with six more clauses and one more schedule than when the Bill was introduced. The fact that it has achieved that amount of amendment is due to the great care and courtesy that all your Lordships have given to our consideration.
I should especially like to thank my noble friend Lord Hesketh who has bounded to and fro to bring me notes when I have run into difficulties. I thank too my noble friend the Leader of the House who took the Second Reading on the Bill. I think particular thanks are due to the Opposition Front Bench who have been extremely kind to me in my initiation ceremony on local government: namely, the noble Lords, Lord Dean of Beswick, Lord Graham of Edmonton and Lord Carmichael of Kelvingrove. They have been extremely courteous, as, indeed, has the noble Lord, Lord McIntosh of Haringey, who came refreshed from Australia with a lot more googlies to bowl at me.
Finally, it would be wrong of me not to thank the civil servants who have helped me in my task. It has been a job very well done on their part. I am therefore most grateful to them for everything they have done. I believe that the House has played its traditional revising role extremely well in this instance. I beg to move.
On Question, Bill passed, and returned to the Commons with amendments.