Certificate from the Examiners, Statement of Reasons and Record of Hearing before the Examiners - Local Government Bill [HL] Contents


Statement of reasons for the certificate from the examiners

Background

7.  Chapter 1 of Part 1 of the Local Government and Public Involvement in Health Act 2007 includes provision for local government structural changes in England. The Secretary of State may invite principal authorities to make a proposal for a single tier of local government for an area, and may implement the proposal by order subject to affirmative procedure.

8.  Several such orders have been made under which the implementation is already fully in force and effective. Two further such orders were made on 24 March 2010 and came into force on 25 March 2010. These were the Norwich and Norfolk (Structural Changes) Order 2010 (S.I. 2010/997) and the Exeter and Devon (Structural Changes) Order 2010 (S.I. 2010/998). Article 3(1) and (4) of the orders create, as from 1 April 2011, single tier government for the cities of Norwich and Exeter. Neither of the orders was subject to the hybrid instruments procedure in the House of Lords; section 240(9) of the 2007 Act provides that, even if orders under section 7 would be treated as hybrid instruments, they are to proceed as if they were not. So no issue of hybridity arose on the orders.

9.  There was also a proposal for a single tier of local government in Suffolk, affecting Ipswich, but no order has been made following that proposal.

10.  Clause 1(1) of the Bill provides that after commencement of the enacted Bill, no further order may be made under section 7 of the 2007 Act if it implements a proposal received by the Secretary of State before the commencement date. Clause 1(3) revokes the Norwich and Exeter orders. Clause 2 makes consequential provision relating to councillors whose terms of office were extended by the Norwich and Exeter orders.

11.  On 21 June 2010 the High Court quashed the Norwich and Exeter orders for reasons relating to the adequacy of the consultation procedures, though the precise extent to which the various parts of those orders were to fall was to be the subject of further submissions to the court.

Hybridity

12.  The first issue we have to determine is whether any of Private Business Standing Orders 4 to 68 are applicable to the Bill. As our starting point we have taken the definition of Mr. Speaker Hylton-Foster on the Bill for the London Government Act 1963:

"I think that a Hybrid Bill can be defined as a public Bill which affects a particular private interest in a manner different from the private interest of other persons or bodies of the same category or class." (HC Deb, 10 December 1962, col 45)

It is well established that the criteria for determining the categories or classes by reference to which differential treatment is to be judged must be "germane to the subject-matter which they are required to distinguish", i.e. "relevant to the purposes of the bill" (see, for example, HC Deb, 25 July 1966, cols 1222-23; HC Deb, 1 December 1987, col 770).

13.  It is unclear whether the interests affected by this Bill, in particular the interests of the local authorities concerned, can properly be described as "private interests" at all. Paragraph 8.213 of the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (2010 Edition) describes hybrid bills as "public bills which are considered to affect specific private or local interests in a manner different from the private or local interests of other persons or bodies in the same class". We do not find it necessary to decide whether this Bill, which is about local government structures, affects "private interests", because for reasons appearing below we consider that, whether or not the Bill affects such interests, it would not be hybrid.

14.  The government suggested that the Bill affects the interests of only one class, i.e. those affected by proposals for single tier government which have been received by a Secretary of State but have not been implemented at all, or have not been completely implemented. This class cannot be ascertained from looking at the Bill alone because clause 1(3) is not framed in terms of categories or classes. It is equally possible to suggest that two classes are affected. The first is that covered by clause 1(1). Clause 1(1) could be said to create a class of those affected by proposals received before the enacted Bill's commencement date, but for which no implementing order has been made by that date. Clause 1(3) could be said to create another class. The two orders specified in clause 1(3) are the only ones which, at the date of introduction of the Bill, had been made under section 7 of the 2007 Act but under which the restructuring was not yet complete. Accordingly, clause 1(3) could be said to create a class of those affected by orders of that type made before the Bill's introduction.

15.  We do not think it matters whether there is one class or two. However we look at it, we are satisfied that each of the classes is germane to the subject-matter of the Bill, and it is not for us to go further and question why those classes have been chosen. Within each class all those affected (whether authorities, other bodies or residents) are treated in the same way.

16.  The quashing of the Norwich and Exeter orders following the Bill's introduction does not materially affect the outcome. It may indeed relegate clause 1(3) from a substantive provision affecting real interests to something merely consequential on the court's order. No further orders under section 7 implementing the existing proposals relating to Norwich and/or Exeter could be made after the enacted Bill's commencement because of clause 1(1); and in that respect the position would be similar to that for Ipswich. Such orders would appear unlikely before commencement given the current government's stated policy and the extent of the discretion it has under the existing legislation.

17.  We have considered whether there is any wider class of local authorities more generally whose interests are affected by the Bill, which would include those affected by the revocation of the Norwich and Exeter orders, but within which those affected by the revocation of those orders are treated differently. We are satisfied that there is no such wider class germane to the subject-matter of the Bill. The Bill is silent as to orders made in respect of proposals received after the commencement of the enacted Bill. It is not a topic addressed by the Bill. Even it if were, all authorities in the wider class would be treated similarly - they may make proposals only at the invitation of the Secretary of State and it is for the Secretary of State to accept or reject them as the Secretary of State thinks fit, subject only to compliance with normal principles of administrative law. If any authority would feel disadvantaged for the future in this process because of the lack of an invitation from the Secretary of State, it would be because of the policy prevailing at that time, not because of this Bill. There is nothing in the Bill which prevents a Secretary of State at some time in the future after its enactment from inviting proposals for unitary government which relate to Ipswich, Norwich or Exeter.

18.  We are therefore unanimously of the view that this Bill is not hybrid.


 
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