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


APPENDIX 1: RECORD OF HEARING BEFORE THE EXAMINERS


HOUSE OF LORDS

RECORD OF HEARING BEFORE THE EXAMINERS

on the

LOCAL GOVERNMENT BILL [HL]

Wednesday 23 June 2010

Before Examiners of Petitions for Private Bills:

MR S J PATRICK, Clerk of Bills, House of Commons

MR A D ROBERTS, Counsel to the Chairman of Committees, House of Lords

MR P D DAVIS, Counsel for Domestic Legislation, House of Commons

____________

MRS ALISON GORLOV, of Winckworth Sherwood, appeared as Parliamentary Agent.

(Time Noted: 10.30)

1. MR PATRICK: My Lords, ladies and gentlemen, good morning. I have a brief opening statement to explain why we are here and then we can continue with the hearing.

2. On 8 June 2010, the House of Lords voted to refer the Local Government Bill [HL] to the Examiners. Our proceedings are governed by House of Lords Private Business Standing Order 83, which requires us to certify to the House of Lords whether specified Standing Orders are applicable to the Bill (which, in other words, is to say whether the Bill is hybrid) and, if we find that Standing Orders are applicable, we are to certify whether they have been complied with.

3. Under a corresponding Private Business Standing Order of the House of Commons, Standing Order 224, we are also to report on the same matters to the House of Commons.

4. The Standing Orders also provide that we are to hear from parties who may be specially affected by any non-compliance with the Standing Orders if they have submitted a memorial. Two memorials were deposited, on behalf of Norwich City Council and Exeter City Council, but they have subsequently been withdrawn.

5. It is also the practice of the House of Lords that we can hear from the Member in charge of the Bill, in this case the government, and the Secretary of State has provided us with a written submission and supporting documents. A Parliamentary Agent, Mrs Alison Gorlov of Winckworth Sherwood, is here to address us on the Secretary of State's behalf. Mrs Gorlov?

6. MRS GORLOV: Thank you very much, sir. You have had our file and I was not proposing to go through it word for word, but to take you through the edited highlights, as it were. On that basis, can it be put formally on to the record, please[2]?

7. One of the reasons we are saying that the Bill is not hybrid is because it deals with matters of public policy. That is the one aspect that calls for evidence, we think, and we do have a witness here today to speak on that. If I might, I would like to suggest that we take the case in an order which might seem a little strange. I think we ought first to deal with the Statement of Fact so that the record shows what are the background facts to the case. I would like to say a few words in opening about hybridity and then call Mr Rowsell to give his policy evidence and then, if I may, deal with all the legal submissions in one go. Is that convenient?

8. MR PATRICK: Yes, that is convenient to us.

9. MRS GORLOV: First of all, turning to the file of documents and the Statement of Fact at tab 1[3], the Local Government and Public Involvement in Health Act 2007 is an Act which contains a mechanism for creating what are commonly known as 'unitary authorities'. It is not the first such Act, but it is the legislation with which we operate at the moment. In outline, and this is in paragraphs 1 to 3, the mechanism is that principal councils, that is, county and district councils, may submit proposals for unitary authorities. However, they cannot do this of their own volition; they have to do it in response to a formal invitation made by the Secretary of State under section 2.

10. As explained in paragraphs 4 to 6, in October 2006, the then Secretary of State issued an invitation to all principal local authorities in England, except Greater London and the metropolitan counties, inviting them to submit unitary authority proposals. Now, the outcome of that was that there were 26 proposals, nine of which were implemented and are in operation, that is to say, they are unitary authorities and they are in business. There were three relating to Exeter, Norwich and Ipswich which were formally referred to the Boundary Commission under section 4 of the 2007 Act, and section 4 says that, if the Secretary of State wants some further advice, he can go to the Boundary Committee to seek it. Then, the rest of the 26 proposals were the subject of formal decisions that would not be implemented.

11. After that, there were developments which are described in paragraphs 6 to 9 of the statement, which deal with what happened with the referrals to the Boundary Committee and the making of the Orders. As you will see, the Exeter and Norwich proposals materialised as two Structural Changes Orders, which are the two Orders dealt with in clause 1(3) of the Local Government Bill. Those Orders have been made and are now in force, but there are no unitary authorities yet in Norwich and Exeter; they do not actually come into being until 1 April next year.

12. The net effect of all of that is that there are two Orders in being, Exeter and Norwich, which are there and in a transitional state and uncompleted, and there is another batch of proposals which relate to Ipswich and Suffolk and they come from both the local authority and the Boundary Committee. Those are there and they are on the table. No decision has been made in respect of them and, if something does not happen, a decision would have to be made one way or the other.

13. Well, something has happened. The Queen's Speech said in relation to localism, and we will hear in a moment what 'localism' is, that the intention was to devolve greater powers to councils and neighbourhoods and give local communities control over housing and planning decisions and, in addition, "legislation will be introduced to stop uncompleted plans to create unitary councils". Well, sir, the uncompleted plans are the ones I have just described to you. That was on 25 May.

14. On 26 May, the Secretary of State issued a press notice which you will find in annex 9, tab 13 of your folder[4]. This was the Secretary of State's statement as to what is going to happen with these uncompleted proposals. As you will see, he was none too complimentary about them. They were to be halted and he said, "Today I am pulling the plug on this expensive distraction and saving the taxpayer £40 million of restructuring costs", so a halt was to be called and it was called and the local authorities received a letter, telling them that they would be expected not to take further action to implement the Structural Changes Orders. That was at the local authority end of the operation.

15. From the government's point of view, it said that it would get rid of these proposed changes, and the Local Government Bill is the result. It deals with the uncompleted plans in two different ways which are appropriate to the plans themselves because, as I just explained, they are in two different stages. If I might just take the Orders first, in clause 1(3) of the Bill two specific Structural Charges Orders are to be revoked and, in relation to everything else, clause 1(1) says that no further Order is to be made in respect of a relevant Order, which is defined as one giving effect to proposals which were received before the commencement of this Bill when it was enacted. The effect of that is that all the proposals that are on the table cannot be implemented by a Structural Changes Order.

16. Clause 2 of the Bill makes some consequential electoral provision because it has to unscramble the electoral provision the Structural Changes Orders put in place. That is not relevant to hybridity, I do not think, but it is relevant to what we will tell you about the developments since the introduction of the Bill.

17. One other thing that is relevant to hybridity is that, as you will see, Part 1 of the 2007 Act will remain unscathed, so all the machinery for creating unitary authorities is to be untouched by this Bill.

18. Now, the Bill addresses two localities by name and some others by implication, so the government were understandably concerned to avoid any suggestion that the Bill might be hybrid. Before introduction, they sought advice from the House and that was later confirmed in a letter which you have, I am told, at tab 20 of your file[5]. Mr Mohan wrote to the Minister, expressing a view that the Bill would not be hybrid because it dealt with a class and the defined areas were members of that class, which were dealt with all in the same way. We agree wholeheartedly with what Mr Mohan said and, if you were to say that you have made up your minds on the basis of Mr Mohan's letter, we would be very happy not to take you through the rest of this file, but I do not suppose you are going to say that.

19. MR PATRICK: No, we are not!

20. MRS GORLOV: There is just one other development which is a recent one. The Orders were the subject of judicial review. It was all pretty contentious, but I do not think we need to look at that because it is not relevant to hybridity, we think. However, it is relevant to the fate of these Orders. Judgment was handed down on Monday and, as you will have seen - it is in paragraph 18 of the Statement of Fact - the judgment went against the government. The Secretary of State now of course has slightly altered his position from that of his predecessor, but the effect of the judgment is that the two specific Orders are to be quashed. There is some slight doubt still as to the extent of that and whether there will be a need to keep the electoral provision in those Orders on foot until the Bill comes into force and clause 2 replaces them, but, at all events, that is something for the court to sort out and that will happen over the next days and weeks. There is just one thing I might mention about paragraph 18 of the Statement of Fact. If you look four lines up from the bottom of page 5, it erroneously refers to Norfolk and Devon, but it should not; the uncompleted plans relate to Ipswich and Suffolk, Norwich and Exeter, but not to Norfolk and Devon.

21. Sir, I think that is all I have to say about the background facts. Perhaps you would turn to tab 2[6] of your folders, and I will very briefly run through Part 1 of the Secretary of State's Representations dealing with hybridity. This addresses paragraph 1(a) of the Examiners' Notice. Your remit is indeed to decide whether the Standing Orders are applicable, but in real terms that translates into an investigation as to whether the Bill is hybrid. Well, there are a couple of preliminaries before we turn to Mr Rowsell's evidence. First of all, in paragraph 2 of this note it refers to comity between the Houses, and it probably does not need saying, but I think it is safe for us to say it anyway, that there are lots of decisions in both Houses and this note refers to decisions, many of which are in the Commons. That is not showing preference for either House; it is simply that that is where the decisions happen to have been made. I hope there is not any difficulty on your part if I say that it is the practice of Parliament that, so far as possible, the Houses agree with each other. That is not to say that their discretion is fettered in any way, as was pointed out by Lord Hailsham in the case cited in paragraph 2 of the note, but the Houses endeavour to agree and apply the same rules.

22. Turning to paragraph 3 of the note, it sets out two tests of hybridity in very broad terms. The first is that every class affected by the bill should be treated equally, and the other is that a bill dealing with public policy will not be treated as hybrid. Those are the two cases where a bill will not be regarded as hybrid, and we say that both of them apply to this Bill. Before making legal submissions on that, perhaps I might ask Mr Rowsell to give us evidence.

MR PAUL ROWSELL, Called

Examined by MRS GORLOV

23. MRS GORLOV: Sir, Mr Rowsell is the Deputy Director for Local Democracy at the Department for Communities and Local Government. That is correct, is it not?

(Mr Rowsell) That is correct, yes.

24. The Representations by the Secretary of State say that the purpose of the Local Government Bill is purely to further government policy. Is that correct?

(Mr Rowsell) Yes, indeed. It supports two policies primarily, the government's priority of putting the public finances in order and furthering the policy of localism.

25. Can you explain for the Examiners quite how it does that?

(Mr Rowsell) In terms of the public finances, the Bill will prevent wasting public money on unnecessary reorganisations. It will save some £40 million of restructuring costs, which we have heard about. Secondly, in terms of localism, the government sees that the Bill puts to an end an aspect of the previous administration's micro-management of local government, and micro-management of local government is contrary to localism. That micro-management which is stopped involved accepting unnecessary cases for reorganisation, and accepting those unnecessary cases has taken authorities' attention away from the needs of rapidly changing service provision that needs to focus on service delivery.

26. One of the characteristics of government is that it comes up with expressions that one thinks one understands, but I think it might be helpful if you would explain quite what is meant by 'localism'.

(Mr Rowsell) What is meant by 'localism', which is very much a priority for my Secretary of State, is that it is a concept that decisions should be taken as closely as possible to the people who are affected by those decisions, so it is decisions to be taken at the most local level. Seeking to impose restructuring on any council, that is the very antithesis of localism.

27. This is not really to do with hybridity, I do not suppose, but, just by way of background, is it fair to say that this is not entirely a tussle between central and local government, but actually some local government is not in favour of unitary authorities being established?

(Mr Rowsell) It is very fair to say that. I can say that I have over the recent weeks had considerable contact with the county councils of Devon and Norfolk, and the county councils' views are very much the same as the government's views and they believe, it is fair to say, if I can say that, that this Bill should continue as a public bill.

28. So, in light of all that, could you just explain the government's policy rationale for this Bill?

(Mr Rowsell) The rationale, as I have said, is to pursue the policy priorities of public finances and localism, and it is to pursue those policies, recognising that none of the uncompleted plans for unitary structures was value for money. Which councils are involved is wholly incidental to the aims of reducing unnecessary spending, and you saw the priority of that aim in the press notice to which the Parliamentary Agent referred, and to putting a stop to restructuring that would be imposed on all, or some, of the councils involved contrary to the concept of localism. That is the rationale, to pursue these two policies.

29. I think, from what you are saying, it follows, does it not, that the Bill could deal with any body; they are purely a technical, incidental corollary to that policy? Is that correct?

(Mr Rowsell) The Bill could deal with any council which had uncompleted plans, yes.

30. I outlined the position as we have it in the Statement of Fact regarding the outcome of the judicial review. Could you just explain please what is the present status of these two Orders.

(Mr Rowsell) The judgment, which was handed down on Monday, was that the Orders should be quashed, but, for administrative reasons related to council elections, it may be necessary to quash them only in part, in essence, to allow part of the Order to remain which would keep in place a deferment of the 2010 elections to 2011. This is exactly also what the Bill does after the Orders are revoked. In terms of the court process, the parties will be making submissions to the court so that we do not know today whether the Orders will be completely quashed or quashed in part or indeed how precisely the Orders will be severed as to which part should be quashed and which part should not be. However, crucially, the Bill will be amended as needed following the court's decision about quashing. I understand it will probably be necessary, therefore, still to refer to the specific Orders in the Bill, but it is certainly possible that, depending upon what the court decides, we could be left with a bill which was expressed entirely in general terms and did not make any reference to any Orders.

31. MR ROBERTS: If I might ask one question of Mr Rowsell, was leave to appeal given or refused?

(Mr Rowsell) It was refused.

32. Does that mean, therefore, that, if there were to be an appeal, there would have to be a request for leave to the Court of Appeal?

(Mr Rowsell) It does. I think it is also worth saying that of course the Secretary of State has no intention of appealing. This issue lies with the interested parties.

33. Has any indication been given to you by the other interested parties as to whether or not that is an avenue they are thinking of pursuing?

(Mr Rowsell) I have had no firm indication, but there seems to be a picture emerging which is that they are really deciding to throw in the towel, although I would not guarantee that.

The witness withdrew

34. MRS GORLOV: The tests of hybridity: as we were saying, in paragraph 3.1 of the note, there are two essential tests. One is class and the other is public policy. In relation to class, the bill is not to be regarded as hybrid if it deals with a class or classes of persons affected who are the only people so affected, that is to say, all members or potential members of that class are dealt with in the same way. The authority for that is cited in the note. It is Mr Speaker Hylton-Foster's ruling on the bill for the Local Government Act 1963. There is a similar definition - not quite the same - in the Companion to Standing Orders of this House.

35. If I may first deal with this question of class. It is, first, worth pointing out that it is for the Promoter of the bill to choose what class it deals with, not for somebody else to come along and say that the classes should have been devised in some other way. It follows from that that the decision to be made by the House is whether the class selected is germane to the bill. That caused a certain amount of distress on the part of the Examiners when examining the Aircraft and Shipbuilding Industries Bill 1977. They regarded themselves as rather unfortunately fettered. I do not want to say anything about that; the position, we say, is as it is and those are the two criteria - that we select the class and the House decides if it is the germane one. We say that this Bill selects a single class of local authorities in order to implement its purpose, and that single class is all those local authorities as respects which there are uncompleted plans, and I have just explained what those are. It is a single topic Bill; that is all it does. All the other provisions of the Bill - the electoral provisions - are ancillary to that principal purpose.

36. It is the case that the Bill does, in fact, deal with that single class in two different ways - clause 1(1) is a general provision, clause 1(3) is specific to the two cases where Orders exist. However, we say, that is simply a technical drafting issue because that is the correct way of dealing with all the affected local authorities. There is authority for saying that distinguishing between members of a single class does not make a bill hybrid; that was a ruling on the bill for the Railways Act 1921, which is cited on page 4 of the Secretary of State's Representations on hybridity.

37. You might think there were two affected classes, Norwich and Exeter, on the one hand, because they have got Orders in place, and Ipswich and Suffolk, on the other. We do not think that is right because it is a distinction that only exists now when the Bill has no legal effect; it will not be a distinction once the Bill is enacted and everybody's proposals have simply gone, albeit they will have gone down two different routes. In any event (and I will come to this in a minute), we think this question of one class or two is an irrelevance simply because everybody is treated in the same way. As I say, the purpose of the Bill is to remove these uncompleted plans, and that is what clause 1 does.

38. There is just one thing I should touch on that is in 4.8 of the note. In the course of the debate on 8 June I think Lord Howarth of Newport was expressing an opinion that in some way the two main local authorities would be placed in a different position after the enactment of the Bill - a position different from everybody else. He said that there would be this different position, and he indicated that these two local authorities would be precluded from becoming unitaries. He did not go on to say that they would be precluded from responding to any future invitation to submit proposals, but that seems to be the premise on which he was arguing. It is just worth saying, at this point, that if that was what he had in mind it was a misreading of the Bill. Nothing in this Bill precludes any local authority from making proposals thereafter under Part 1 of the 2007 Act. There is only one proviso to that: they have to be invited.

39. We think there may be some issue about whether the same proposals could be made. When there were Memorials - if you have read them - the Memorialists did seem to be saying that they would be prejudiced if the same proposals were to be made in future. It is just worth pointing out that if only for financial reasons, it would not, we think, be possible for anybody to put forward precisely the same proposals as have been made this time round. However, in any event, for reasons I have explained, we really do not think that is an issue; the proposals are put forward, they are what they are and they are considered at the time.

40. That said, there has to be an invitation, and there are not any invitations being made at the moment - as one would expect - and there is nothing in prospect, but the Bill does not repeal the relevant legislation. So the ability to make invitations remains.

41. MR PATRICK: Can I just ask: does anybody want to ask any questions about the class, or shall we do it at the end? We will do it at the end.

42. MRS GORLOV: I am sorry, sir, I am storming ahead. Please do stop me if you want to. Public policy: as you have heard in Mr Rowsell's evidence, this Bill implements a piece of public policy concerning the structure of local government in England. It really does not matter where that particular bit of local government is; it is only focused on uncompleted plans wherever they may be.

43. We have explained the two reasons behind the policy, but those are not reasons that concern hybridity; the fact is the Bill does what it does and, as a matter of public policy, it says the present proposals should be done away with. So that ought to be that on the public policy front, but I was conscious of the fact that you might ask me: what about Charlwood and Horley? Charlwood and Horley was not a matter of public policy; it was a bill that, on the face of it, looks as if it is remarkably similar to the present one, in that its purpose was to alter local authority boundaries. The parishes of Charlwood and Horley had been moved from Surrey to West Sussex as a result of the local government reorganisation in the Local Government Act 1972, but the residents of those two parishes did not want to be moved, and the government had given them an undertaking that whatever they wanted would be legislated for.

44. The problem was that they did not get their resolutions on the subject completely settled until after the bill had been enacted, so in order to discharge its undertaking the government had to promote legislation to move Charlwood and Horley back to where they had come from. That bill was promoted as a hybrid bill. However, the difference between that bill and this one is that it was specifically concerned with arrangements for two areas that were focused on in the bill - all the merits related to those two areas; there was no issue of local government principle. In saying that I am quoting the Secretary of State on second reading in this House. It was an entirely different question.

45. For good measure I have mentioned in 4.16 and 4.17 of this note two other categories of bills that are cited by Erskine May as normally being treated as private simply because they are bills relating to local purposes and cities and counties. In relation to local purposes, these days lots of us forget what post office sites and Crown sites bills were all about, but they were specific to particular areas of land acquired for public purposes; they were, in effect, compulsory purchase measures. So no question of public policy there. In relation to bills relating to cities and counties, Erskine May says, quite rightly, that they are generally treated as private. However, sir, that is not a question of principle relating to city and county bills per se. What it is saying is reflecting the fact that normally the nature of these measures is that they are not public policy measures; they are purely local issues. So we say that is not relevant to the current Bill.

46. Sir, our conclusion on this, with which we hope the Examiners will agree, is that this Bill is not hybrid and we hope that you will be able so to report.

47. MR ROBERTS: Can we go back very briefly to this issue of one class or two classes? I take the point that your position is that it may well not matter, but I am trying to work out why it is thought that it is one class. As I understand it, the Bill is intended to catch the unimplemented proposals which were on the current Secretary of State's predecessor's table. That appears from the written submission. I am wondering why it was that, looking at clause 1 subsections (1) and (2), the definition of a "relevant order" is "a proposal received by the Secretary of State before the commencement of this Act". As you rightly say, at least in theory, inviting proposals, submitting proposals and making orders carries on. So, on the face of it, subsections (1) and (2) create a class which, if you like, closes at the commencement of the Act but subsection (3) takes two specific Orders which are obviously the only Orders of their type existing when the Bill was introduced.

48. If there is just one class, as it is suggested, why are different trigger points chosen in subsections (1) and (3)? I wondered why subsection (1) does not fix the proposals as those received when the Bill was introduced.

49. MRS GORLOV: Can I deal with that second point, first of all, because I think it is the simpler one to explain? The intention of 1(1) - and we say it achieves its intention - is to capture all the existing uncompleted proposals that have not been subject of Structural Changes Orders. As a matter of fact, the only ones on the table are the Ipswich and Suffolk proposals that I mentioned. As a matter of fact, too, because the October 2006 invitation was time limited (all proposals had to be in by 25 January 2007), there are no further proposals to come as a result of that invitation. So you might say why not relate "relevant order" in 1(1) to those proposals that were made in response to that invitation? It is, of course, theoretically possible that an invitation might issue today. I am advised it is not a practical possibility. If it were to issue today it is not a practical possibility that any proposals could be received before the commencement date of this Bill - at least we do not think so. So although, theoretically, there could be further proposals before this Bill becomes law, it is in practice not a possibility, we say. However, on paper, it could happen.

50. So that is one answer to the question, but it is a theoretical one. The practical one is, actually, more mundane. Parliamentary counsel in the room will tap my shoulder if I have got it wrong. The fact is that this is not a neat set of dates, unfortunately; it is not a set of proposals that have been received in sequence and then it stops. There were proposals that were Boundary Committee proposals, there are dates for this, dates for that - is it the date that is put at the bottom of the paper; is it the date when it lands on somebody's desk? It is all a bit confusing, and it is unnecessarily so. So we say anything before the commencement of this Act is out and cannot be legislated for. That is the simple reason why clause 1(2) refers to the "commencement date of the Act".

51. The reason why we say it is only one class is because the purpose of the Bill is to do away with the uncompleted proposals. Can I emphasise "uncompleted", not "unimplemented"? The two Orders that have been made amount to the commencement of implementation (if I can put it in that way), because section 7 of the Act says that a proposal can be implemented by the making of an Order. The implementation is not complete until the unitary authority is up and running, many months later, but it is undoubtedly started. So it is not correct to say that we are removing the unimplemented proposals; this Bill removes the uncompleted proposals. Those proposals are all of the proposals - the two that are the subject of Orders and the Ipswich and Suffolk proposals which are still there on the table as proposals. It is a single class which is dealt with in two different ways as a matter of pure mechanics, but that is incidental to the actual purpose.

52. MR ROBERTS: So is this right: it is not deliberate or it is not part of the policy that if there were now an invitation followed by a proposal, if the Order happens to be made after the commencement date it is covered and if it is made before the commencement date it is not covered?

53. MRS GORLOV: That is a theoretical possibility we did not look at, but, yes, I think that must be right. May I emphasise that this is all theoretical; in practice it is completely impossible.

54. MR ROBERTS: Probably related to that, could I just turn to the Response to the Memorials, and Part 3 of the submission? I fully accept that the Memorials have been withdrawn, and I do not want to spend too much time, but I did want to understand the response that was given in paragraph 4 where it is suggested (and you may say that it is purely theoretical because government policy is not going to change): "An invitation that requested proposals no later than the commencement date would therefore be unlawful." If the Secretary of State now wanted to invite a proposal from one or more authorities with a view to making an Order before the commencement date of the Bill, surely that is unarguably alright?

55. MRS GORLOV: I said that you had just thought up a theoretical possibility we had not. In the event of the Order being made before the commencement of the Bill, yes, that is correct; it would not have been a futile exercise. Put it this way, paragraph 4 was coloured by the knowledge that it would be impossible for that to happen.

56. MR ROBERTS: Could I next move to something which again is only touched on but I wondered what was being said about it? It is the issue of property rights, which is dealt with, I think, at paragraph 4.18 of the written submission where you say that the Bill does not touch on private rights. Is part of what you are saying that we are not dealing here with private interests at all because we are not dealing with private rights in the sense of property rights? In terms of the Hylton-Foster definition, which talks of private interests, is 4.18 saying we are not concerned with private interests at all here?

57. MRS GORLOV: That is exactly what it is saying. It is undoubtedly the case that property has to be transferred all over the place as an administrative matter consequent on the establishment of a unitary authority so that all the assets get into the hands of the right authority, but that we say is an administrative consequence of carving up local government in a different way.

58. MR ROBERTS: In that case, I know all about the rules about comity between the Houses, which is, I think, taken as read, but amongst the material included in the bundle, as well as the Hylton-Foster definition there is the relevant extract from the House of Lords Companion and that talks of private or local interests. Are you saying somehow that a local interest that an authority might have in the administration of its own area is not a private interest and should not be regarded as a private interest? In other words, what is meant by "private interest"? The House of Lords Companion to the Standing Orders talks of "private or local interests". Do you accept that there is a local interest, albeit not a private one?

59. MRS GORLOV: A local interest in relation to property?

60. MR ROBERTS: No. I was wondering whether you were saying that where the Companion talks of "private or local interests" it only means local interests in property, or whether it meant local interests in the sense of an interest in the administration of an area.

61. MRS GORLOV: I think it has to be an interest that is wider than purely the property interest. It has to be an interest which is related to the local authority's function, but, if I might go on to say, I do not think that this Bill, in affecting a local interest, makes it hybrid for the reason that it implements a public policy. A bill can affect all sorts of private interests in all sorts of ways but not be treated as hybrid if its purpose is to implement public policy rather than to affect any particular local interest.

62. MR ROBERTS: I have one more question only and this is only relevant if the conclusion is that the Bill is hybrid. Turning to the list of Standing Orders which might potentially be applicable, I was wondering if I could press you on 38.1 and explore why it was said that this was not relevant. This is the requirement that a printed copy of every private bill proposed to be introduced into either House would be deposited in the Office of the Clerk of the Parliaments. It is undoubtedly the case that copies of the Bill are already available, but it seemed to me that what 38.1 was saying was that the printed copy has to be made available at a time when the Bill is proposed to be introduced.

63. MRS GORLOV: Perhaps I should make clear what we mean in this table when we say "not relevant". Please do not think we are being rude. Of course, if these Standing Orders were applicable it is, of course, the case that none of the dates, none of the days, is right, none of them has been complied with. All we are trying to get across here is that it is not really relevant inasmuch as the Bill is already there; it has been introduced. Can I just say though that I do not think those instructing me are at all bothered by any of this little lot, and where we say that we have done all this already or it is not strictly relevant, if the Bill is found to be hybrid I do not think we really mind doing it all over again. We will do it. We just do not think it is a particularly appropriate or necessary thing to do.

64. MR DAVIS: I have two slightly unconnected questions. The first is purely a factual one on the recent court case. In the transcript of the judgment that I have it starts at paragraph 106 and says, "However, for reasons which I have given, the Orders are quashed", as an unequivocal statement. Is there more that goes beyond that paragraph that indicates that there will be further discussions as to how quashed they will be?

65. MRS GORLOV: Yes, sir. There were representations made by counsel and this is what the judge said at the hearing on Monday.

66. MR DAVIS: So it is simply that the transcript that I have is incomplete?

67. MRS GORLOV: That is correct, sir.

68. MR DAVIS: The other thing builds slightly on a point of Mr Roberts, and I accept that this is not an issue that has specifically been raised by the original Memorialists, but it is needed for the whole of the Examiners' functions. Let us suppose that, forgetting the recent court case, Norfolk and Devon councils themselves had sought to introduce a private bill to quash the two Orders but save the electoral and office holding consequences. I have two questions. First, do you accept that that could technically have been introduced as a private bill, and secondly, if so, what is your argument against that in itself being a reason for the classification of this Bill as hybrid?

69. MRS GORLOV: I think it most unlikely, sir, that the Bill would be thought to be proper to proceed as a private bill, certainly not if it related to both Exeter and Norwich in a single bill. I say that because a single bill for both authorities would quite clearly be addressing a policy issue on whether local authorities ought to be unitaries. I am afraid I have not got the cases at my fingertips but I could find the relevant passages in Erskine May on that.

70. Where a bill relates to something that is purely local I was going to say that it might be treated as private. What I really mean to say, I think, is that the question of whether such a bill could be treated as private would only arise in the case of two separate bills. I suppose one must accept that there is a possibility that such a bill might be treated as private, and the case that I can particularly think of is the bills for the Assay Offices that were passed in 1995 - the Sheffield Assay Office Act 1995, and there was a Birmingham Assay Office Act, I think, in the same year. There was also a Scottish Provisional Order relating to the Edinburgh Assay Office. All three of those pieces of legislation made express amendments in the relevant public legislation. They were separate bills though for each Assay Office and I was not concerned in their promotion but I think one could say fairly safely that if there had been a single bill it could not have proceeded properly as a private bill. The three pieces of legislation did proceed as private legislation, so I suppose one might say that that goes to show that if there had been separate bills they could properly have been promoted as private bills. I suppose the only other thing I might add is that one does not quite know because the decisions do not ever seem to be quite cut and dried and an example is an example rather than a precedent. That is the first limb of your question, sir.

71. The second limb is, if the two pieces of private legislation could properly be promoted does that make this Bill hybrid? I think the answer to that has to be no. The main reason for saying so is that if there were a single bill to deal with both Exeter and Norwich it could not properly proceed as a private bill in my view, and, that being so, it goes without saying, I think, that it is the flip side of the proposition that we are dealing here with the overall public policy of what happens to these local authorities and that that is proper to be proceeded with as a public bill which is not hybrid.

72. MR DAVIS: Thank you. That concludes the questions I have.

73. MR PATRICK: Mrs Gorlov, have you finished your presentation or do you have more to say?

74. MRS GORLOV: I had been going to ask you if you wanted to go through what we say in Part 2 of the Representations on the specific Standing Orders, but I think probably my answer to Mr Roberts has dealt with that unless there is anything else I can help you with.

75. MR PATRICK: No, I think if we were to decide that they were applicable we would also decide basically, as you said, that, certainly at least as far as dates are concerned, they have not been complied with, and that then, if we did all that, the matter would be referred to the Standing Orders Committee in both Houses as to whether they could be dispensed with or not, so I think the main question we have to decide is the first one: is the Bill hybrid or not, rather than the second one, unless my colleagues want to go further on that.

76. MR ROBERTS: No.

77. MR DAVIS: No.

78. MR PATRICK: As I was saying before about where we go from here, at the conclusion of this hearing we will ask you and those members of the public present to withdraw. Obviously, at this stage we do not know how long it will take us to come to a decision but I think we will be able to decide fairly soon after we start deliberating how long it will take us, so we hope to be able to let you know whether it is worth staying behind until we have made a fairly quick decision or whether it is going to take longer than that, in which case we will also convey that to those waiting and then produce a decision later. I do not think we want to prejudice the case by saying one way or the other until we have at least started our deliberations.

79. Is there anything else the Examiners want to ask or you wish to tell us before we do that?

80. MRS GORLOV: I have one matter which is pure housekeeping. My colleague and I have papers scattered all over these tables. It will take a few minutes to pack them up. Shall we simply leave them here and deal with that later because we have no particular need for them? I do not want to delay your deliberations.

81. MR PATRICK: We would be happy for you to leave them here, and if it turns out that we are going to take longer then we will allow an opportunity for you to come in and take them away. The Examiners would like to deliberate now, so would the public please leave us?

(Time Noted: 11.31)

The parties were directed to withdraw and, after a short time, were again called in.

(Time Noted: 11.53)

82. MR PATRICK: We are pleased to be able to announce that we have come to a decision so we will not have to make you wait any longer. We have decided to certify that in the case of the Local Government Bill pending in the House of Lords no Standing Orders relating to private business are applicable. We therefore do not have to go on and say whether they have been complied with or not because they are not relevant.

83. We would like to thank Mrs Gorlov for the care she has taken in preparing the written material at very short notice and in stating her case.

84. MRS GORLOV: I wonder, sir, if I might ask you one thing. You did indicate at the outset that, whatever your decision, you might be going to report to the House. Are you going to prepare a full report?

85. MR PATRICK: Yes. We are planning, not necessarily immediately but within a day or two, to publish with our certificate a statement of our reasons.

86. MRS GORLOV: Thank you very much.

87. MR PATRICK: The meeting is now concluded.

(Time Noted: 11.55)


2   The Government's written submissions are appended as Supplements to this Record. Those documents in the annex to the submissions which can be found elsewhere are not included but references have been inserted at the appropriate point in the text. Back

3   See Supplement 1 Back

4   See http://www.communities.gov.uk/news/newsroom/1600805 Back

5   See Supplement 5 Back

6   See Supplement 2 Back


 
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