HL Deb 20 January 1994 vol 551 cc782-98

House again in Committee.

[Amendment No. 90A not moved.]

Clause 44 agreed to.

Lord Hooson moved Amendment No. 91: After Clause 44, insert the following news, clause: ("Children and Young Persons Commissioner The Secretary of State shall establish the office of a Children and Young Persons Commissioner to monitor the effectiveness of all services provided by principal councils and public bodies for children and young persons, to investigate specific complaints about these services and to report annually to Parliament.").

The noble Lord said: In the absence of the noble Lord, Lord Elis-Thomas, I beg leave to move the amendment standing in his name. I believe that at this very moment he is in the process of delivering the annual BBC lecture in Cardiff and I am bound to say that I would have very much enjoyed being there to listen to him.

I feel that although the noble Lord is not here the amendment should be moved because it is an interesting one. Many noble Lords are aware that the NSPCC in Wales circulated a letter to them which included a reference to the amendment. It involves the setting up of a children and young persons commissioner to monitor the effectiveness of all services provided by the councils and public bodies for children and young persons, to investigate specific complaints about those services and to report annually to Parliament. In effect, the amendment would lead to the creation of a children's ombudsman.

The annual report to Parliament is an interesting idea. It would presumably involve a debate on the report every year by the Welsh Grand Committee in another place. The letter, which canvassed support for the amendment, set out the grounds on which it was based. It has the total support of the NSPCC Wales National Council. Obviously, this is a fresh, innovative suggestion, and I move the amendment simply to ascertain the Government's reaction to it. I would not think of pressing the amendment to a Division, but I am very interested to have the Government's reaction.

Lord Prys-Davies

Like two clauses which were briefly discussed on Monday night, this amendment draws attention once again to an area of considerable concern in Wales and England, and also presumably in Scotland. I believe that this particular amendment is based on New Zealand legislation.

I understand that Amendment No. 91, together with the two amendments which address the matter of child care upon which we touched on Monday, is the subject of intensive consultation in Wales. I am hopeful that the statutory authorities and the voluntary bodies which have a special interest in children can agree an amendment which we can bring forward for discussion at Report stage. Like the noble Lord, Lord Hooson, I am interested in the Government's response to the amendment.

Lord Rodger of Earlsferry

We are grateful to the noble Lord, Lord Hooson, for moving the amendment in the absence of the noble Lord, Lord Elis-Thomas. It raises the question raised in Committee on Monday of children and young people.

It is true to say that the whole Chamber shares the noble Lord's concern for children and young people. But the Bill which the Committee is now considering has been carefully drafted to provide for the reorganisation of local government in Wales and to secure the conditions necessary to allow the structure to operate effectively. That is what it is designed to do. In presenting the Bill to Parliament, the Government have resisted the temptation (which is not always easy for the Government) to introduce innovations or in some way to "tidy up" the statute book in respect of particular functions. For that reason alone the Government would resist including in the Bill this provision which relates to a particular matter.

We do not resist the Bill merely on such technical grounds. In fact we do not believe that this is the right way to safeguard children's services or their rights. It seems to us that children's services are best provided by strong and accountable local authorities which act in the interests of the people in the area. It is important that their responsibility—because it is their responsibility—should not in any sense be diluted.

We believe that the kinds of authority which will be set up in effect will be strong and accountable and therefore that they will be the best kind of people to look after children's rights. However, I make an additional point. The Committee will consider that the rights of children are safeguarded and protected by the law and in particular by the Children Act 1989. Therefore it follows that in so far as those rights are the responsibility of local authorities, they fall within the remit of the Commissioner for Local Administration (to put it shortly, the local government ombudsman) and beyond that they may fall within the remit of the Parliamentary Commissioner for Administration, who is more popularly known as the general ombudsman. They have a role to investigate matters in relation to children.

Therefore we feel that the rights of children, in so far as they are protected by law and so on, in these areas are in fact protected already by the existing system of ombudsmen. For that reason we do not believe that the amendment is necessary. We believe that the protections that already exist are adequate.

Lord Hooson

I am most obliged to the noble and learned Lord for his reply, which no doubt will be very carefully considered by my noble friend Lord Elis-Thomas and the National Committee of the NSPCC in Wales. I withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 [Committees of existing councils for consideration of certain matters]:

Lord Prys-Davies moved Amendment No. 92: Page 34, line 10, at end insert ("provided that as a result of his determination, the number of representatives of the old District authorities shall equal the number of representatives of old County authorities on each Transitional Committee.").

The noble Lord said: Under Clause 45 it is for the old authorities to agree on the composition of the transitional committees. But if they are immovably deadlocked, the Secretary of State will have to determine the numbers from each authority. As the clause is drawn he is given complete discretion as to the composition of the committee.

The amendment seeks to preserve the status quo between two tiers of local government. This is in order to ensure that equal weight is given to the views of each. I mention the status quo because I understand that that is the precedent that is followed when there is that kind of deadlock. I hope that the Government will find merit in the amendment. I beg to move.

Viscount St. Davids

It is intended, and highly desirable, that membership of the transition committee to be set up under this clause should be a matter for the constituent authorities to decide among themselves. Under the clause as drafted the Secretary of State would not have the power to appoint the committee or to decide upon its individual membership. In the absence of agreement, however, he would be able to determine how many members the committee should have and from where they should be drawn.

The Government understand the concerns of the noble Lord that both tiers of the existing structure should be equally represented. The Secretary of State accepts the principle and, if your Lordships will permit me, I will consider the matter further and return with our own proposal at Report.

Lord Prys-Davies

That is satisfactory and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 agreed to.

Clauses 46 to 48 agreed to.

Clause 49 [Welsh Church funds]:

8.15 p.m.

Lord Prys-Davies moved Amendment No. 93: Page 36, line 4, leave out from ("to") to end of line 5 and insert ("each of the other new principal councils whose area includes part of the area of the old authority and which becomes entitled to an apportioned part of the property by virtue of subsection (5).").

The noble Lord said: Anyone who is familiar with the Welsh Church funds will know that they were set up by the Welsh Church Act 1914, when the Church was disestablished in Wales. The history of rural Wales over the past century has been bound up in part with the struggle for the disestablishment of the Church and the disendowment of its funds.

I took the precaution of reading the Second Reading debate of 1914 and I found that the Attorney-General of the day, Sir John Simon, supported by Lloyd George and Keir Hardie, to name but two of the leading politicians of the day and its leading lawyer, were satisfied that the ancient funds of the Church had been given to the Church upon trust, in the main for parochial purposes. Indeed, in many parts of Welsh speaking Wales they are known to this day as arian y degwn —the tithe money. The funds were originally apportioned to the county councils and subsequently, on the reform of local government in 1972, they were transferred under Clause 211 to the eight county councils as trustees for the beneficiaries living in their counties.

Clause 49 as it stands would make it possible for the Secretary of State to vest the funds in a lead authority. We believe that it would be unwise for him to do so. We feel that it would be consistent with the 1914 Act for the funds or the apportioned part to flow to the new principal counties, where they are badly needed in their communities.

If the funds were administered by a lead authority, we feel that people might well have ground for grave complaint. It might not be obvious that they were fairly applied in the interests of the area of benefit. That would lead to the communities which felt that they were being discriminated against taking up Lloyd George's famous battle-cry against the Church (it is to be found in Hansard): We claim back our own property". These are charitable funds and therefore Parliament should be seen to be fair to the utmost degree. I trust that Amendment No. 93 will be acceptable to the Government. A fuller version is to be found in Clause 211 of the 1972 Act. I beg to move.

Lord Rodger of Earlsferry

In effect, Amendment No. 96 would split the eight Welsh Church Act funds into 21. At present, the first charge on the funds is the cost of their administration. The amendment would thus remove the economies of scale currently enjoyed. It would be likely to increase administrative costs, thereby reducing the amount of money available for grants for the charitable and other purposes which have been supported by the Welsh Church Act funds over the past 75 years. That is an outcome which the Government find difficult to support or to envisage as desirable.

The intention of the amendment is to provide for each of the 21 authorities to have a role in deciding on the allocation of grants. However, the clause already allows that to happen. The Secretary of State intends to designate eight unitary authorities under Clause 49(1), to ensure that economies of scale in administering the property are maintained. The property vested in each of the present eight counties would be vested in an appropriate designated authority. Subsection (3) of the clause provides for appropriate apportionments to be made. What follows next would be for local decision.

New authorities in the area covered by the Welsh Church Act fund may decide to set up a joint committee under Section 102 of the Local Government Act 1972. The scheme under Section 19 of the Welsh Church Act 1914 would apply throughout the fund's area and the joint committee would take all decisions about allocation of grants. That would be one route. Alternatively, each new authority may wish to take its own decisions about the allocation of grants in its area. To enable that to happen, the designated authority would have to indicate each year how much income the fund was expected to generate. The income would then be notionally split on a basis to be agreed by all the authorities in the fund's area. That would give a "budget" within which each authority could take its decisions. A third possibility would be a mixture of the two options I have outlined. For example, Pembrokeshire might want to make its own decisions while Carmarthenshire and Cardiganshire might be happy to take decisions for their areas through a joint committee.

The Government will not be expressing any preference about the arrangements which the new authorities should make. The Secretary of State's role would be limited to designating eight lead authorities to administer the property—he will be consulting the local authority associations about that in due course—and, as now, to approving schemes submitted to him under the Welsh Church Act 1914.

The clause would enable each of the new authorities, if it wished, to take decisions on grants from the Welsh Church Act funds. I hope that that explanation will persuade the noble Lord not to press his amendment.

Lord Prys-Davies

I am grateful to the noble and learned Lord for that full explanation of how the Welsh Office anticipates Clause 49 might apply. For my part, I am not convinced by the argument of costs. If we were to pursue the matter, I would wish to develop the argument further. One must set against the argument for costs the sense of grievance in a community if the people felt that the funds, which in ancient times originally emanated from their parishes, were being administered by a body one removed from the parish. A balance must be struck.

I am grateful for the explanation. Those with whom I consult must consider the clause carefully to see whether we need an amendment. I conclude by saying that they are charitable funds and, consistent with the Court of Chancery, we must deal with them as a man of conscience would deal with them. Parliament must be seen to be fair to the utmost degree. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 agreed to.

Clauses 50 and 51 agreed to.

Clause 52 [Consequential and supplementary provision]:

Lord Hooson moved Amendment No. 94: Page 39, line 2, leave out ("or supplemental").

The noble Lord said: Originally, I tabled three amendments arising out of the second report of the Select Committee on the Scrutiny of Delegated Powers, Session 1993–94. We have not yet reached my third amendment but I mention it now because it was adopted by the Government. It is the first amendment I tabled and I find that there are now five names to it. I have therefore been superseded.

Lord Williams of Elvel

Is the noble Lord speaking to Amendments Nos. 94 and 96?

Lord Hooson

That is correct. This is the preamble, if the noble Lord will not be too impatient. What I shall say in a moment is reinforced by the presence here this evening of that noble champion the noble and learned Lord, Lord Simon of Glaisdale, who, in formidable alliance with the noble Lord, Lord Henderson of Brompton, spearheaded the role of this House as the protectors of the constitutional rights of the citizens of this country.

I now turn to Amendments Nos. 94 and 96. At page 4 of the report the committee said: The Committee was concerned that, under subsection (1) of the Clause, the order-making power extended not only to `incidental, consequential, [and] transitional provision' as the Secretary of State thinks necessary or expedient for the purposes of the Bill, or in consequence of any other Bill passed this Session which applies to areas or authorities affected by the Bill, but also to 'supplemental provision' he thinks necessary or expedient for those purposes. In view of this extension of the delegated power to supplemental provision, and of the Welsh Office's admission [to which he referred later] that the power could be used 'in potentially far-reaching ways', we urge the House to consider whether or not the affirmative procedure would be more appropriate in this case". I propose that we leave out the words "or supplemental". I can understand the Government needing the power to deal with incidental, consequential or transitional provisions, but why supplemental provisions? Why should the Government, by order, have the power to extend and add to the law?

The word "supplemental" is not necessary. Amendment No. 96 makes necessary scrutiny by affirmative resolution as recommended in the report of that important committee of your Lordships' House. The noble and learned Lord has met the concerns of the committee, to which I need not refer hereafter, on the third amendment. Why has he not met our anxieties on these two amendments?

8.30 p.m.

Lord Williams of Elvel

We support the noble Lord, Lord Hooson, in his Amendments Nos. 94 and 96. Generally, we object to Clause 52 and particularly to Clause 52(1), which allows the Secretary of State wide powers to make orders which may, so far as I interpret Clause 52(1), change primary legislation that has been passed by Parliament if the Secretary of State feels that that is desirable for general purposes or for any particular purpose of the Bill. That is objectionable in itself.

Furthermore, we support the noble Lord in Amendment No. 96 not least because we wish to give support to the Delegated Powers Scrutiny Committee, from the report of which the noble Lord has quoted. It would be absurd if on probably the first test of one of your Lordships' major innovations and on a report of this gravity the Government and your Lordships should decide not to pay attention to its recommendations. For all those reasons, we support the noble Lord, Lord Hooson.

Lord Simon of Glaisdale

I desire to say nothing further about Amendment No. 94. That has been cogently argued. I should like to add a word on Amendment No. 96.

Both noble Lords have mentioned the scrutiny committee. Of all the recommendations of the Jellicoe Committee, that was the only one on which the Government expressed reservations—and the Government in that respect means Whitehall. They expressed reservations. There is nothing to be indignant about but it is a matter for vigilance. There has been an age-long and widely extended tension between executive and legislature. The executive, particularly the official executive in these modern times, finds it very much easier to legislate by statutory instrument. If it is wrong it can be withdrawn; and if people have suffered some mishap in the meantime, why that is just too bad. On the other hand, the parliamentary process is undoubtedly a great bore to administrators. Anyone who has been on both sides of the official baize door will know that in a moment.

Although the Government expressed reservations about the scrutiny committee, happily the Procedure Committee brushed those reservations aside and the scrutiny committee was established last Session and operated to widespread and loud acclaim. It has proved itself a very great success. I shall come in a moment, on the later amendment, to the one respect in the last Session in which the committee was challenged. That was in relation to hybridity. But here it is a question of the supplemental powers that are sought, and particularly the degree of parliamentary control. Should it be by affirmative or by negative resolution?

The scrutiny committee has signalled very clearly that it thinks that it should be the affirmative resolution in view of the importance of the matter. One asks: why then are the Government so insistent on the negative resolution procedure? In fact, that is not very difficult to answer. The affirmative resolution procedure is far more effective as a measure of parliamentary control than the negative resolution procedure. In the first place, with the negative resolution procedure it very often happens—it happens more often than not—that the other place does not get round to the order before the time has flowed out in which it can be allowed. The other point is that the affirmative resolution procedure is far more convenient because the Minister explains at the beginning what the purpose of the regulation is and then an orderly debate ensues. On the other hand, on the negative procedure, there is a scrappy debate to which the Minister replies at the end. Those reasons—both relating to the degree of parliamentary control—are potent reasons why the executive much prefers the negative resolution procedure and why the noble and learned Lord has not added his name to the earlier amendment although he has to the last of the three.

The noble Lord, Lord Williams, asked what the use was of setting up the scrutiny committee if the executive is allowed on the very first Bill of the second Session in which it is giving its views to thumb its nose at that committee and therefore at your Lordships' House. I strongly support what has been said by the noble Lords.

Lord Rodger of Earlsferry

Clause 52 is the general order-making power for the Bill and it enables the Secretary of State, among other things, to make transfer orders in respect of property—that is found in Clause 52(2) (c). It is a standard clause which is included in many Bills and certainly in all reorganisation Bills. It is subject to the negative resolution procedure.

The first of the amendments would remove the Secretary of State's flexibility to make orders covering supplemental matters not directly covered by the Bill itself in order either to carry out the purposes of the Bill or to follow up the consequences of other Acts passed in this Session. The second amendment would subject any order under the clause to the affirmative resolution procedure.

As the noble and learned Lord, Lord Simon, has emphasised, and other noble Lords have mentioned, the order-making power in this clause was considered by the Select Committee on the Scrutiny of Delegated Powers. I would pause to observe that one thing which cannot be said is that the Government have not taken careful note of what was said by the Select Committee. In its report, the Select Committee questioned whether the House should consider whether—I stress that —the affirmative procedure would be more appropriate in this case.

Lord Simon of Glaisdale

Does the noble and learned Lord really believe that it could be put in any other terms?

Lord Rodger of Earlsferry

I merely quote what it says. I was about to add "whether or not it should be in that form". It was because of the existence of the adjective "supplemental" as well as the others. It would extend to supplemental provision as well as the consequential provision, and so forth.

Lord Williams of Elvel

Will the noble and learned Lord accept that the terms of reference of the Delegated Powers Scrutiny Committee do not allow it to make recommendations to this House other than that this House "should consider"? It does not say that this House should refuse or should set aside. We can only consider and those are the terms of reference. Having said that, I cannot think of anything in black type which is stronger and which the committee could have said. I cannot think of anything stronger than what is said at the bottom of page 4 and at the top of page 5 in the report which is being quoted.

Lord Rodger of Earlsferry

I do not wish to make a great fuss about this. The Committee will have noticed that in paragraph 7 the committee's recommendation was to consider whether orders under Clause 1(1) should be subject to parliamentary control and not "whether or not". I make no great play on that. I merely observe that there is a difference in the formulation of the two. I respect the scrutiny committee enough to believe that there must be a reason for the given formulation. However, I do not put stress on it.

The reason why it was considered that there might be the provision of the affirmative resolution procedure here was because of the existence of the supplemental provision in Clause 52(1) whereas if both the amendments of the noble Lord, Lord Hooson, were accepted, in effect one would remove the supplemental provision but nonetheless would retain the idea of an affirmative resolution procedure which, as I read the committee's report, was designed simply to deal with the question of supplemental provision.

Lord Hooson

Supposing Amendment No. 94 was not pressed and therefore "supplemental" was left in. Does not that strengthen the case enormously for the other amendment—that is to say, there should be an affirmative order if that is to include "supplemental"?

Lord Rodger of Earlsferry

All I was observing was that what is proposed here in these amendments, taken together, is not actually what is recommended by the scrutiny committee. It chose to make its recommendations in respect of the supplemental provision and not in respect of the other matters.

Lord Williams of Elvel

I point out to the noble and learned Lord there are two grounds on which the committee urges the House to consider whether or not the affirmative procedure is more appropriate. As the noble and learned Lord quite rightly said, ground one is extension of the delegated power to supplemental provision". There then follows a comma and the words, and of the Welsh Office's admission (page 15) that the power could be used in 'potentially far reaching ways'". The second seems to be much stronger than the first.

Lord Rodger of Earlsferry

I do not wish to go into detail. It seems to me that the second part comes from the fact that it is the supplemental provision which could be used in that way. Be that as it may, I now turn to the substance of the matter.

The provision does indeed cover supplemental matters. The phraseology used here is based on precedent. For example, it appears in Section 254 of the Local Government Act 1972; it appears in Section 101 of the Local Government Act 1985 and in Section 26 of the Local Government Act 1992. So the phraseology chosen is by no means unusual or exceptional.

If one were to delete the reference to supplemental matters, it might infer that the scope of the orders proposed here was somehow different from that proposed in other measures. Certainly, as far as the Government are concerned, there is no intention to do anything not envisaged as being done under this earlier legislation.

The term "supplemental" is certainly not able to be construed as allowing the Government to introduce new legislative provisions unconnected with reorganisation. It is merely intended to allow the Secretary of State to be sure that where legislative or administrative procedures require adaptation to fit in with the new Government structure, extended or more detailed provision can be provided by statutory instrument. However, it would require to be necessary in consequence of the reorganisation.

To subject every order under this clause to affirmative resolution is contrary to precedent and would, if accepted, result in Parliament having to devote what would be a disproportionate amount of time to the scrutiny of what would be in many cases very detailed and minor secondary legislation. For example, it would mean that your Lordships would have to consider, under the affirmative resolution procedure, orders providing for the transfer of property to individual authorities. Such orders could be dealing with small numbers of properties or even one individual property, especially, for example, if something had been overlooked.

It is difficult to believe that adopting the affirmative resolution procedure in such cases could do anything other than put an unnecessary amount of delay in the implementation of such orders. In the end I believe that it would have the effect of somewhat blocking your Lordships' procedures.

It is for that reason that we do not believe that the affirmative resolution procedure would be appropriate for the kinds of orders which are envisaged under this clause.

Lord Williams of Elvel

Perhaps I may suggest a compromise. If the Government take this amendment away and, on Report, come back with a new provision which would define the type of orders which may be suitable for the negative procedure, but which equally satisfies the Delegated Powers Scrutiny Committee that the power could be used, in potentially far-reaching ways and be subject to the affirmative procedure, that is something which the noble and learned Lord may be able to live with. We on these Benches would be able to live with it.

Lord Hooson

The reply of the noble and learned Lord is very disappointing. The noble and learned Lord, Lord Simon of Glaisdale, has made an important point. This is the first time that a Bill has been considered in this way by the scrutiny committee and yet here the Government are cocking a snook at its recommendations. It appears to me that the Welsh Office, in its reaction to the next amendment which the noble and learned Lord has adopted, initially adopted a negative attitude. It changed that, no doubt under the influence perhaps or the advice of the noble and learned Lord; or at least, it has considered the position more maturely.

It seems to me that if the Government want to include the word "supplemental" in these two amendments, they should be prepared to accept the affirmative resolution procedure. If they are prepared to remove the word "supplemental", then for my own part, I would not insist on an affirmative resolution.

When the noble and learned Lord referred to various precedents, does he not appreciate that it was because of those precedents that this House realised as, I think the other place has realised, that we have become far too slack in our scrutiny of delegated legislation? That is what led to the setting up of the Scrutiny Committee; but here we are, with the committee's report before us, but the Government are not giving due weight to its recommendations. I think that there is a firm choice here between dropping the word "supplemental" and not having an affirmative order or the other way round. Therefore, I would adopt the suggestion that was made by the noble Lord, Lord Williams of Elvel. We must return to this on Report.

Lord Rodger of Earlsferry

The only thing to which I would take exception in what the noble Lord has said is the suggestion that in any way the Government intended to cock a snook at the committee's report. On the contrary, the Government have given that report careful consideration and, as a result, have adopted the noble Lord's amendment.

I am happy to give the Committee an undertaking to consider the word "supplemental". I should like to take a look at exactly what that word would cover which would not be covered adequately by other words already in the Bill. Therefore, I am happy to undertake to look again at this matter and to return to it on Report.

Lord Hooson

On the basis of that undertaking, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morris of Castle Morris moved Amendment No. 95: Page 39, line 22, leave out ("or such other person as may be prescribed").

The noble Lord said: By contrast, Amendment No. 95 is no more than a gentle probing amendment, instigated by my curious and sceptical nature and nothing else. The Committee will remember that I have been interested all along in what the residuary body does and what it can do. I notice that although Clause 52(2) (c) looks innocuous and harmless and the clause deals only with such incidental, consequential, transitional or supplemental provision as is "necessary or expedient", in fact it covers a wide spectrum of activities and represents a great deal of money. What I should like to know is why the words, or such other person as may he prescribed are necessary. Do not the named bodies suffice for the purpose? Who would the "other person" be? As the Bill stands, could it really permit the transfer of a highly desirable property—to wit, a large country house, in splendid condition and in salubrious surroundings—to me and to my heirs as assigned? I cannot believe that that is any part of the intention, but the wording does not seem to deny it. Where is the line to be drawn? I beg to move.

Lord Rodger of Earlsferry

The particular provision to which the amendment relates is part of Clause 52, in which subsection (1) gives general guidance as to the use which the Secretary of State may make of his powers. They are for general purposes, or any particular purpose, of the Act or … in consequence of such of the provisions of any other Act passed in the same Session … as apply to any area or authority". Overall, there is a controlling power which prescribes that the powers are to be used in relation to those purposes.

Your Lordships will see that an order under subsection (2)(c) may, in particular, make provision for the transfer of property. I must advise the noble Lord, Lord Morris, however, that it is unlikely that the Secretary of State would be able to use his powers to transfer that desirable country house to the noble Lord because that would not have anything to do with advancing the purposes of the Act. In other words, the Secretary of State can use the powers that he is given, particularly the powers to transfer property, only for the purposes of the legislation; namely, the purposes of the reorganisation of local government.

The noble Lord asked a legitimate question: why does the paragraph end with the words, or such other person as may be prescribed"? The noble Lord will see that if those words were lacking, the only bodies to which property could be transferred would be a new principal council or the residuary body. It is envisaged that there could be circumstances in which it would be necessary for property to be transferred to other bodies. I am thinking, for example, of the new combined fire authorities which would not fall within the definition of a "principal council". I am thinking also—this may be closer to the noble Lord's sphere of interest—of the national park boards. It is to allow transfers to be made in appropriate cases to bodies such as those that those words are included in the clause. There may be other examples, but those are the reasons for that wording.

Lord Morris of Castle Morris

I am grateful to the noble and learned Lord for that explanation. I still think that it might have been possible to draw the provisions a little more closely than is the case in the huge remit of, or such other person as may be prescribed". Personally, I am disappointed but, legislatively, I am relieved. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 96 not moved.]

Clause 52 agreed to.

Clauses 53 to 58 agreed to.

Clause 59 [Regulations, orders and directions]:

Lord Rodger of Earlsferry moved Amendment No. 97: Page 46, line 16, leave out subsection (4).

The noble and learned Lord said: Amendment No. 97 would leave out Clause 59(4) of the Bill which excludes orders made under Clauses 30, 31(1) and 32(1) from the jurisdiction of the Hybrid Instruments Committee of your Lordships' House. Your Lordships will note the Government support this amendment. That is because we have taken careful note of the report of the Delegated Powers Scrutiny Committee.

But having set out the reasons for the Government's support for this amendment, I think that I owe the committee an explanation as to why the Government originally thought it appropriate to include this provision in the Bill.

There are a number of recent precedents for disapplying the Standing Orders, including the Local Government Finance Act 1988 Section 143(11) and the Local Government Act 1992 Section 26(2). The latter provides among other things for the Standing Orders in relation to hybrid instruments to be disapplied if the Secretary of State established a joint authority for two or more local government areas under Section 21(2) of the 1992 Act. That was thought to be a precedent somewhat similar to what is proposed in connection with Clause 30.

It is unlikely that the exercise of these powers would affect the private interests of individuals within an area that is subject to any order. The provision for affirmative resolution would have provided a safeguard for all the inhabitants of an area who may be subject to an order. We were mindful, too, that in the case of an order under Clause 30, it could be that speedy action will be required to establish a joint authority before an irretrievable breakdown of services occurs. Some noble Lords have expressed concerns about the ability of some authorities to deliver particular services—archives, for example. As I have indicated, a situation where that service was at risk of breakdown may need to be addressed with some urgency. It was thought that subjecting such an order to the hybrid instruments procedure, with its possibilities at least for delay, could jeopardise services in one or more authorities. While I cannot say those considerations have disappeared entirely, as I have indicated, having regard to the recommendation of the Scrutiny Committee we are satisfied that in view of the concerns expressed, those countervailing matters are not sufficient to justify the retention of the power within the Bill. It is for that reason that we have decided to support the amendment tabled by the noble Lord, Lord Hooson.

In connection with the orders under Clauses 31 and 32, they would merely give effect to proposals submitted to the Secretary of State by the local authorities which would be affected by them. Again, In those circumstances it was considered that the proposals would, in effect, already reflect the support of local inhabitants and that the need to follow the more complex hybrid instruments procedure was less compelling. But again the Government have had regard to what the committee said and in those circumstances the Government are happy that the Bill should be amended in the way proposed. I beg to move.

9 p.m.

Lord Richard

Perhaps I may intervene for the first time on the Bill although I have been sitting here listening with interest to some parts of it. I regard this issue as one of the most important raised by the Bill's passage through Parliament. I am grateful to the noble and learned Lord and the Government for accepting the amendment and agreeing that the provision should be withdrawn. It was a pernicious clause and it embodied, in my view, a pernicious doctrine. It is wrong to remove the rights of those affected by a hybrid Bill in the way proposed in Clause 59(4).

We are concerned about this issue, too, because this type of subsection has been used not just in relation to this Bill but also in the Railways Bill, as the Scrutiny Committee pointed out. The House took a great interest in the similar provisions contained in the Railways Bill. The provision is also in the Police and Magistrates' Courts Bill, which the House is now considering. I have not looked at the Bill, but I am told that it is firmly entrenched in the deregulation Bill which is about to start its passage in another place.

While it is not for me to look a gift horse in the mouth at any time, given that the givers of the horse are the Government, it is only right that one should ask whether this is a change of policy by the Government and a recognition by them that the rights of this House in relation to the hybrid Bill procedures should be maintained, or is it, as I detected from what the noble and learned Lord said, merely a tactical withdrawal by the Government on this Bill in the face of what I believe they know would be the intense opposition to that clause if it were to continue in its passage, or perhaps also because in relation to this Bill they do not believe that they will need it?

I hope that the noble and learned Lord will tell me that I have been over-suspicious; that I should accept at face value what the Government are doing; that there has been a change of heart and the principle is now re-established on the Government Benches and in the heart of the Government, as one hoped that it had been—namely, that if the House has a hybrid Bill procedure that procedure should, save in the most exceptional circumstances, be observed. If it is a change of policy, I am grateful. If it is only a tactical withdrawal, I am disappointed, but I am still grateful that, at least in relation to this Bill, the Government have taken out what I said at the outset I regarded as a pernicious part of it.

Lord Hooson

I am grateful to the noble Lord the Leader of the Opposition for intervening to make an important announcement with regard to matters in the pipeline as well as the present Bill. As I listened to the noble and learned Lord, I remembered that in my boyhood I thought that it was very impressive to read of the conversion of St. Paul in his own words. In the same way, I was glad that I did not have to move the amendment today. It was moved for me by the noble and learned Lord. All I hope is that now he has set a precedent he will head my name on the amendments on Report.

Lord Rodger of Earlsferry

I hope that the noble Lord the Leader of the Opposition will be happy with what has occurred. I believe that he expressed moderate happiness. What we have done is to have regard to the terms of the report and the recommendations made in it, and we have considered whether in this case it was justified to remove the hybrid procedure. We concluded that having regard to what is recommended that would not be appropriate. In doing so we have of course given appropriate weight to what was said by the committee. I cannot make the noble Lord the Leader of the Opposition as happy as he would like to be, but there may be other occasions when we would wish to maintain the removal of those procedures. There may be situations in which the committee itself could see no objection in particular circumstances. I am happy to say that the Government will always consider carefully what is said by the committee and give due weight to it.

Lord Richard

I am grateful to the noble and learned Lord for making it clear that the recommendations of the Scrutiny Committee, as set out in its report, are something that the Government will, in future legislation, take extremely seriously.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 98: Page 46, line 21, at end insert: ("( ) paragraph 28 of Schedule 5;").

On Question, amendment agreed to.

Clause 59, as amended, agreed to.

Clauses 60 to 62 agreed to.

Schedule 13 [Minor and Consequential Amendments of the 1972 Act]:

Viscount St. Davids moved Amendment No. 99: Page 108, line 30, at end insert: ("(6) In subsection (6), for "(5)" substitute "(5A)".").

The noble Viscount said: Amendments Nos. 99 to 102 inclusive and Amendment No. 104 are technical amendments to Schedule 13. Unless the Committee requires further explanation from me, I beg to move.

On Question, amendment agreed to.

Viscount St. Davids moved Amendments Nos. 100 to 102: Page 108, line 36, leave out ("(3) and (6)") and insert ("and (3)"). Page 108, line 40, at end insert ("for "new district" substitute "Welsh principal area" and for "the district" substitute "that area""). Page 109, line 6, at end insert: (". At the end of section 73 (alteration of local boundaries consequent on alteration of water-course) add— (4) For the purposes of this section a preserved county is an area of local government."").

On Question, amendments agreed to.

Lord Morris of Castle Morris moved Amendment No. 103: Page 109, leave out lines 19 to 21.

The noble Lord said: The amendment refers to Section 74 of the Local Government Act 1972. That allows a council to change its name given a two-thirds majority in favour. In several parts of Wales, and for obvious reasons, the proposal in the Bill as regards the boundaries of the authority is a matter of debate. Consideration of the name of the authority has not been a matter of major concern and will not become so until the end of the legislative process. I submit, therefore, that it would be sensible to allow the shadow authorities the opportunity to give serious thought to the name of the authority and to change that name if it so wishes.

Perhaps as an example of the generosity for which he is renowned, the noble and learned Lord will be prepared at this late hour to look favourably upon this small amendment. I beg to move.

Viscount St. Davids

The names which appear in the Bill were chosen by the Secretary of State following a consultation exercise in the summer of last year. It invited comments from the local authorities, members of the public, the Welsh Place Names Advisory Committee and the Welsh Language Board. The names in the Bill reflect the responses received to that consultation. For example, the Secretary of State decided that Rhondda, Cynon, Taff was a more appropriate name than Glamorgan Valleys, which was the "working title" given to the authority in the White Paper.

The provisions of the new Section 74(6) to be inserted in the 1972 Act by means of subparagraph 5 of paragraph 19 of Schedule 13 to the Bill do no more than replicate a similar provision which was in the 1972 Act—Section 74(5). The Government recognise, however, the concerns expressed by the Committee and we are prepared to consider the matter again. I shall return with our conclusions at Report.

Lord Morris of Castle Morris

The generosity for which the noble and learned Lord is renowned is exceeded only by that for which the noble Viscount will now be renowned. I am grateful for his comments and look forward to hearing his proposals on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rodger of Earlsferry moved Amendment No. 104: Page 111, line 46, leave out ("(a) and (b)") and insert ("(b) and (c)").

On Question, amendment agreed to.

Schedule 13, as amended, agreed to.

Schedule 14 [Other Consequential Amendments]:

Viscount St. Davids moved Amendments Nos. 105 to 108: Page 117, line 13, leave out ("3") and insert ("4"). Page 117, line 17, leave out ("3") and insert ("4"). Page 118, line 10, at end insert: ("The Local Government Finance Act 1988 (c. 41) In section 55 of the Local Government Finance Act 1988 (alteration of lists), in subsection (7A) (a) after "41(6B)" insert "or 41A(10)". In Schedule 9 to that Act (non-domestic rating: administration), in paragraph 8(2) (a) after "41(68)" insert "or 41A(10)"."). Page 118, line 33, leave out ("54 of the Local Government Finance Act 1992") and insert ("24 of the Local Government Finance Act 1992 (alteration of lists), in subsection (9)(b) after "22(8)" insert "or 22A(10)". In section 28 of that Act (information about lists), in subsection (2)(a) after "22(8)" insert "or 22A(10)". In section 54 of that Act").

The noble Viscount said: Amendments Nos. 105 to 108 are technical amendments. I beg to move.

On Question, amendments agreed to.

Schedule 14, as amended, agreed to.

Schedule 15 [Savings and Transitional Provisions]:

Viscount St. Davids moved Amendments Nos. 109 to 111: Page 121, line 11, leave out ("section") and insert ("paragraph"). Page 121, line 32, leave out from ("(1)") to ("the") in line 33 and insert ("If section 19 is brought into force before 1st April 1996, it shall have effect before that date only so far as is necessary to enable"). Page 123, line 14, leave out ("(1)") and insert ("(2)").

The noble Viscount said: Amendments Nos. 109 to 111 are technical amendments to the schedule. I beg to move.

On Question, amendments agreed to.

Schedule 15, as amended, agreed to.

Schedule 16 [Repeals]:

Viscount St. Davids moved Amendments Nos. 112 to 115: Page 124, line 21, at end insert: ("1949 c. 74. Coast Protection Act 1949. In section 20, in subsections (1) and (4), the words "or Wales"."). Page 125, line 26, column 3, leave out ("second") and insert ("third"). Page 125 leave out line 37. Page 126, line 6, at end insert: ("1975 c. 23. Reservoirs Act 1975. In section 2(1), the words "and Wales".").

The noble Viscount said: Amendments Nos. 112 to 115 are technical amendments to the schedule. I beg to move.

On Question, amendments agreed to.

[Amendment No. 116 had been withdrawn from the Marshalled List.]

Schedule 16, as amended, agreed to.

House resumed: Bill reported with amendments.