APPENDIX 1: RECORD OF HEARING BEFORE THE
HOUSE OF LORDS
RECORD OF HEARING BEFORE THE EXAMINERS
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
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Exeter City Council, but they have subsequently been withdrawn.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,
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
9. MRS GORLOV: First of all, turning to the
file of documents and the Statement of Fact at tab 1,
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
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.
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.
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
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,
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
(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
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
(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
(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
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
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
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
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
59. MRS GORLOV: A local interest in relation
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
65. MRS GORLOV: Yes, sir. There were representations
made by counsel and this is what the judge said at the hearing
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
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
See Supplement 1 Back
See http://www.communities.gov.uk/news/newsroom/1600805 Back
See Supplement 5 Back
See Supplement 2 Back