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Lord Rooker: That is not fair. I ought to point out for the avoidance of doubt that the Bill contains no duty on the Government to consult anyway. Let us get that absolutely clear. We have carried out the soundings exercise as a valid exercise from the point of view of good public administration. However, as I say, there is no duty to consult. The soundings exercise gave people an opportunity to provide us with information.

Baroness Blatch: There is a duty. The Secretary of State cannot make an order unless he has the results of a soundings exercise. So, he has a duty to consult and to reach a judgment on the level of interest. He cannot find out the level of interest unless he sounds out the

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community on that. So, there is a duty implied in the Bill on the Secretary of State to carry out a soundings exercise.

Lord Rooker: Indeed, that is the distinction I drew between taking soundings and the duty to consult.

Baroness Hanham: I am sorry to be tendentious. However, I am not sure whether I am being tendentious or the Minister is being tendentious. Subsection (2) of Clause 12 states that,

    "the Secretary of State must not give a direction unless he has considered the level of interest".

Either he does that in the ether or he consults in order to find out whether there is interest in the matter. However, the Minister says that the Secretary of State does not have a duty to consult. Subsection (4), which we seek to amend, states that,

    "the Secretary of State must consider—

    (a) views expressed and information and evidence provided to him".

To try to distinguish between consultation and people's great and noble thoughts about the Bill in that regard is to split hairs.

Lord Rooker: The measure seeks to avoid the implication of having to write to or consult every voter in a region; that is the difference.

Baroness Hanham: I thank the Minister. We may return to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 83 to 88 not moved.]

Baroness Hanham moved Amendment No. 89:

    Page 6, line 22, leave out "may" and insert "must"

The noble Baroness said: Subsection (5) of Clause 12 lists a number of other factors which the Secretary of State may consider when giving a direction to the Boundary Committee to undertake a local government review. Subsection (5)(a) to (e) lists as possible considerations the effects of such a review on the region in question, on other regions, the resources needed to undertake a review and any earlier consideration for the Boundary Committee.

The amendment would ensure that those considerations were not optional but compulsory. Essentially, it would remove the discretion of the Secretary of State to take the factors listed into account if he so wished, and instead make it a positive requirement before any direction was given. I do not need to speak for long on the amendment. My reasoning on it is much the same as I expressed on other amendments to the clause. They reflect my general attitude to the sounding exercise, which is now one of even more concern than it was before we started. I beg to move.

Lord Rooker: The explanation—I referred to it earlier in some ways—is as follows: the consideration of the factors in subsection (5) is discretionary. We

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need that discretion because of the approach that we intend to adopt in relation to deciding in which regions to hold a referendum, and then in which regions to direct a local government review. The primary consideration is the level of interest in a referendum. Where interest is high, we intend to direct a review. Where it is low, we do not intend to direct a review, regardless of any other consideration.

Only where the level of interest is inconclusive, or where there is high level of interest in a number of regions, might we want to consider whether it was practicable to conduct a referendum at that time. Subsection (5) sets out the criteria that we would use in reaching a decision in the circumstances that I have described. It would be quite wrong to make consideration of those criteria mandatory, which is what the amendment would do, because, as I have explained, there are circumstances in which we could and should be able to make a decision on the basis of interest alone.

Making consideration mandatory could cause real problems. We need to be more flexible, simply because of the basis on which the decision will be made. We need that flexibility because we do not know what the soundings exercise will come out with in terms of the balance of interest, region by region. We have to take account of the fact that there will be a variety of levels of interest and make a judgment at the time. As I said, it would be totally impractical and would not work if every region had a big interest. We need to make some choice. Where the level of interest is high, our basic intention would be to go ahead and direct a review. That would make sense where there was high interest. As I referred to in relation to subsection (3), we could not deal with too many at the same time, which is a practical difficulty.

Baroness Hanham: As I read the clause, subsection (4) makes it mandatory for the Secretary of State to consider the views expressed—we discussed that—the published material that he thinks appropriate, and all the other people on all the other bodies. With relation to subsection (5), however, how on earth will the Secretary of State make a decision if he does not think what effect,

    "the carrying out of a local government review will have on the relevant local authorities",

and what,

    "differences in the effects he thinks the carrying out of local government reviews will have on the relevant local authorities"?

He must do that. It should not be the case that he only "may" have to do it. Subsection (5) should be as mandatory as subsection (4). Subsection (5)(a) to (e) deals with fundamental issues that the Secretary of State would have to take into account when making a decision about whether there should be a local government review.

I still believe that the subsection should be mandatory, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Baroness Hamwee moved Amendment No. 90:

    Page 6, line 23, leave out paragraphs (a) and (b).

The noble Baroness said: For probing reasons, the amendment seeks to delete subsection (5)(a) and (b). I do not propose to speak about paragraph (a), which will make the Minister ask why I simply did not move the amendment. However, I want to look at paragraph (b), which provides that the Secretary of State may and no doubt will consider differences on the local authorities—we will come later to the words "taken as a whole"—in the different regions.

Perhaps the Minister can let us know whether that is the basis for decisions about referendums being taken in different tranches. That is not how I read it, because it is one of the factors that will affect whether or not the Secretary of State gives the direction—not when he gives the direction but whether he does so. I read it as meaning that if something is not good for region A, then perhaps region B cannot have it. I wonder whether the Minister can help me to understand the part that that plays in the decision and in the overall timetable. I beg to move.

Baroness Blatch: I hope that the Minister will be cautious about removing paragraphs (a) and (b). I suspect that he will be because this is a government Bill. We would say "must consider" as opposed to "may consider". I believe it is absolutely essential that the Secretary of State considers the effect that the carrying out of a local government review will have on the relevant local authorities taken as a whole in the region. I take "the region" to be the region that is likely to have the referendum for regional government.

There will also be effects on other regions and, indeed, on other authorities. I believe that the differences in the effects that the Secretary of State believes that the carrying out of local government reviews will have on the relevant local authorities, taken as a whole in different regions, should at least be taken into account. If they are not taken into account, then the consequences of establishing regional assemblies will be defective.

Lord Rooker: In responding to Amendment No. 90, I shall use the briefing that I have in front of me because I believe that in that way I shall be able to give a better explanation than I would if I were ad-libbing.

Noble Lords: Oh!

Lord Rooker: Sometimes I am a little more precise than at other times and am able to make the case, but sometimes the words of the briefing are useful when they are read back to me later.

Amendment No. 90 removes the ability of the Secretary of State to consider the effects that he believes a local government review will have on the relevant two-tier authorities and the differences in those effects between the regions.

Where the level of interest in a referendum is inconclusive, it may be that the level of disruption for two-tier local authorities of a local government review

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is not considered worth while at the time. In circumstances where the level-of-interest test is inconclusive, it will be important carefully to balance a number of factors. I believe that that is where we must leave the flexibility to the Secretary of State.

Where it is clear that the level of interest is low or where it is clear that it is high, it is far easier to make the decision. Where it is inconclusive on the balance, then one must consider other factors of the effects. I believe that we need that flexibility.

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