| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Baroness Hayman moved Amendment No. 4:
The noble Baroness said: In moving Amendment No. 4, it may be for the convenience of the Committee if I speak also to Amendments Nos. 5 to 7.
These amendments are for clarification. They clarify a point about the certification requirements referred to in Clause 3, and so ensure that the requirements for certifying contracts will operate as intended. They are designed to ensure that the validity of a certificate will not depend on whether the authority actually complies with certain regulations made under Clause 3.
Among the requirements for giving a valid certificate is the one in Clause 3(2)(e) that a certificate must state that it has been copied to any person to whom a copy is required to be given by regulations, and the one in Clause 3(2)(g) that a certificate must confirm that any requirements in regulations about the issue of certificates have been complied with. The amendments make it clear that a certificate is not invalidated where, although it makes such a statement or gives such confirmation, a local authority does not, in fact, copy a certificate to a prescribed person or comply with any requirement imposed by regulations.
As long as a certificate states that it has been copied to any persons prescribed in regulations and confirms that requirements imposed by regulations concerning the issue of the certificate have been complied with, the contractor can be satisfied that the certificate will not be invalidated if it becomes evident that the authority had not in fact done those things, or there was not evidence that they had. This was always the intended effect of Clause 3. The amendments merely make it clear that this is the position.
On Question, amendment agreed to.
Baroness Hayman moved Amendments Nos. 5 and 6:
On Question, amendments agreed to.
Clause 3, as amended, agreed to.
Clause 4 [Certification requirements: supplementary]:
Baroness Hayman moved Amendment No. 7:
On Question, amendment agreed to.
Baroness Hayman moved Amendment No. 8:
The noble Baroness said: The amendment deals with an assurance given by my honourable friend Mr. Raynsford in another place.
The safe-harbour provision in Clause 2(1) of the Bill comes into play where a contract is certified in accordance with the requirements and procedures set out in Clauses 2 and 3. Because of the effect of certifying contracts, which will usually be for a long period and involve substantial payments by the authority, the certification of a contract would be a matter of public interest, and it is important that certificates should be available for public inspection.
In another place the Government gave an undertaking to ensure that certificates would be available for exactly that inspection. We undertook that existing legal provisions would be examined and, if necessary, an amendment to this Bill would be tabled which would secure a right for the public to inspect certificates issued in respect of contracts under Clause 3 of the Bill.
The amendment does precisely that. Having looked at the existing legal provisions, we thought it necessary to put on the face of this Bill the right to public access and public inspection. Therefore the amendment requires a local authority, other than the receiver for the Metropolitan Police District or a probation committee, which has issued a certificate to secure that a copy of the certificate should be freely available for inspection by members of the public at all reasonable times, and to provide facilities to allow a copy to be obtained for a reasonable fee. The authority remains under this duty for as long as the certified contract operates. I beg to move.
On Question, amendment agreed to.
Baroness Hayman moved Amendment No. 9:
On Question, amendment agreed to.
Clause 4, as amended, agreed to.
Clause 5 [Special provision for judicial reviews and audit reviews]:
Baroness Hayman moved Amendment No. 10:
The noble Baroness said: This amendment, together with Amendments Nos. 11 and 12, applies equally as a response to matters raised in another place, and by many of the interested parties who gave evidence during consultation on the Bill.
The effect of the safe-harbour protection provided for a contract certified under the Bill is that the person entering into the contract with the authority can be assured that his contract will not be treated as being outside the authority's powers or improperly entered into by the authority. By virtue of Clause 5(1), this will apply in any court proceedings except judicial review or proceedings initiated by the authority's auditor.
The Government do not intend to deprive anyone who has a genuine interest in the decision of a local authority to enter into a certified contract of his right to ask the court to review the lawfulness of the decision and to set it aside. Nor do the Government intend to remove from anyone the protection afforded by the statutory audit controls to which a local authority is subject. Accordingly, these public law remedies are excepted from the scope of the safe harbour.
However, it is important that, where a certified contract is challenged in judicial review or by the auditor, the court should have a clear discretion to allow the contract to continue if, after weighing up all conflicting interests and taking account of all relevant circumstances, it feels that on balance that would be the correct thing to do.
Accordingly, the Bill preserves the right of a person with sufficient interest in a decision of a local authority to enter into a certified contract to challenge that decision by applying for judicial review. The Bill also preserves the powers of the auditor and of the court to look into the lawfulness of a local authority's decision to enter into a certified contract--that is, where the authority is one whose accounts are subject to the statutory audit requirements.
The effect of these amendments is twofold: the amendments would expressly give a court a discretion in judicial review, as well as audit review, to determine that a certified contract shall have effect as if the local authority had had power to enter into it and had exercised that power properly; and they would require the court, in considering how to exercise this discretion, to have regard to two particular matters. The court would have to consider the likely consequences of a decision to set the contract aside, first, for the authority's financial position, and secondly, for the provision of services to the public.
It is important that these matters, in particular, should be looked at by a court in deciding the outcome of a judicial review or audit review. A certified contract is likely to operate for a long period of time and to involve heavy investment by the parties to the contract. Furthermore, an order setting such a contract aside would be likely to disrupt the provision of public services and generally be against the wider interests, financial and otherwise, of the local community. The objective is to ensure that the court is clearly empowered to decide that a certified contract found to be ultra vires shall nevertheless continue to have effect, and to require the court, in deciding on this, to give full weight to these factors.
Where the court determined that a contract should continue to have effect, the rights and liabilities of the parties would, of course, be unaffected by the
On Question, amendment agreed to.
Baroness Hayman moved Amendments Nos. 11 and 12:
The noble Baroness said: I have spoken to these amendments. I beg to move them en bloc.
On Question, amendments agreed to.
Page 2, line 41, at beginning insert ("The requirement specified in this subsection is that").
Page 3, line 15, at beginning insert ("The requirement specified in this subsection is that").
Page 3, line 17, at beginning insert ("The requirement specified in this subsection is that").
Page 3, line 20, leave out from ("Where") to ("shall") in line 21 and insert ("the certification requirements have been satisfied in relation to a contract by a local authority, the certificate which has been issued").
Page 3, line 25, at end insert--
("( ) Where the certification requirements have been satisfied in relation to a contract by a local authority within section 1(3)(a) or (d), the local authority shall secure that throughout the period for which the contract operates--
(a) a copy of the certificate which has been issued is open to inspection by members of the public at all reasonable times without payment, and
(b) members of the public are afforded facilities for obtaining copies of that certificate on payment of a reasonable fee.").
Page 3, line 38, at end insert (", or
(b) any insurer of or trustee for such a person.").
Page 4, line 5, after ("on") insert ("an application for judicial review or").
Page 4, line 10, leave out from beginning to ("considers") in line 11 and insert ("(having regard in particular to the likely consequences for the financial position of the local authority, and for the provision of services to the public, of a decision that the contract should not have effect)").
Page 4, line 16, leave out ("subsections (1) and (2)") and insert ("this section").
Next Section
Back to Table of Contents
Lords Hansard Home Page