House of Lords - Certificate from the Examiners, Statement of Reasons and Record of Hearing before the Examiners

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

SUPPLEMENT 2

THE GOVERNMENT'S WRITTEN SUBMISSION: PART 1 — HYBRIDITY

HOUSE OF LORDS

SESSION 2010 - 2011

LOCAL GOVERNMENT BILL [H.L.]

REPRESENTATIONS

on behalf of the Secretary of State

1. Background

1.1 On 8^th June 2010 the House resolved that the Local Government Bill ("the Bill") should be referred to the Examiners. The purpose of this Note, delivered on behalf of the Secretary of State for Communities and Local Government ("the Secretary of State"), is to set out the Secretary of State's Representations regarding the rules concerning hybridity, their application to the present Bill and, in case the Private Business Standing Orders ("the PrBSOs") are found to be applicable to the Bill, how and to what extent PrBSOs 4 to 68 might apply.

Introduction

1.2 As stated in the Examiners' Notice dated 14^th June 2010, the purpose of the examination will be to ascertain the three matters referred to in paragraphs 1 and 2 of the Notice. The nature of these issues is such that they fall to be determined in the order set out in the Notice. It should perhaps be mentioned that in addressing 1a. in this Note the Secretary of State will simply seek to answer the question whether the Bill is hybrid. It appears to him that, as the PrBSOs will only be applicable if the Bill is hybrid, this is the only question posed by 1a.

2. Comity between the Houses

2.1 Many of the examples given in this Note are of decisions made in the House of Commons, simply because that is the place where relevant decisions were made. Accordingly, before dealing with the nature of hybrid bills (see below), it should be said that the differences of wording between the Houses in the definition of a hybrid bill[11] are accepted as not being substantive. In addition, it has been accepted by this House that in questions concerning hybridity there should be comity between the Houses. As an example of this, in debate on the London Government Bill (Session 1962-63) in this House (which was the second House) Lord Hailsham spoke[12], as Lord President of the Council in place of the Lord Chancellor, against the motion before the House that the Bill be referred to the Examiners. While making clear that "each House is master of its own procedure", regarding the tests of hybridity he said:[13]

"Certainly it is true … that the criteria of what constitutes hybridity are, by common agreement, the same in both Houses …".

2.2 More generally in relation to comity, Lord Hailsham said:[14]

"… there are matters (and I think, and I am advised, that this is one of them) in which it is at least desirable that the opinion and practices of the two Houses should be at one and in which hitherto … I think they have always remained at one. Certainly I can trace no divergence of opinion about this matter between the two Houses; and I should have thought that this question of hybridity was essentially a matter upon which the Houses should, so far as possible, remain at one. … I personally should have thought - and I hope the House will follow me in this - that nothing but inconvenience, and even considerable constitutional disadvantage, could ensue from a Bill ordinarily being considered public in one House and hybrid or private in the other."

2.3 On that occasion the House voted against the motion to refer the Bill to the Examiners, so demonstrating agreement with Lord Hailsham's views and according with the Speaker's ruling in the first House that the Bill was not hybrid.

3. The nature of hybrid bills

3.1 The tests of hybridity are helpfully summarised in the two paragraphs in Erskine May[15] reproduced in Annex 3. So far as concerns non-works bills there are two criteria, namely:

(a) Equal treatment of affected class: a bill will not be regarded as hybrid if all the persons or bodies affected by it in the same way (and no others) belong to a category or class germane to the subject-matter of the bill.

(b) Bills dealing with public policy: a bill will not be treated as hybrid if it deals with public policy whereby private rights over large areas or of a whole class are affected.

3.2 The following principles can be derived from the cases cited:

(a) The category or class that is relevant is the one selected by the promoters of the Bill.[16]

(b) In relation to the issues of affected class, the question for the House is whether the selected class is germane to the subject-matter of the bill.[17] The relevant passage is:

"The [Member] … has alleged that the criteria were chosen so as to include certain companies and exclude others. Fortunately, it is not for me to consider the reasons why these particular criteria are chosen.

All that I have to consider is whether the criteria chosen are germane to the subject matter which they are required to distinguish."

(c) In relation to public policy, it is the practice that local government and local government functions fall to be treated as matters of public policy and so cannot be hybrid. In the House of Commons debate on the London Government Bill referred to in paragraph 3.1, question was raised as to whether a distinction should be drawn between legislation relating to utilities on the one hand and a bill concerning local government and local authority sewers on the other.[18] Mr. Speaker Hylton-Foster said[19]:

"What this Bill is doing is dealing with the whole structure of local government and the exercise of all local authority functions in Greater London. [Mr Speaker referred to sewerage functions of local authorities] … on this principle London sewerage has previously been treated as a matter which can be dealt with by a purely Public Bill without any sort of kind of complaint or hint of hybridity.

[Mr Speaker opined that a bill dealing with London's water supply might be hybrid] … it is quite clear that our practice in this field distinguishes between public utilities like water, gas, transport, electricity and local government functions.

… the reason … may be that by and large you need not have gas if you do not want it, or electricity if you do not want it, but you must use the sewerage. … If hon. Members look at Erskine May they will find the two notes on page 870[20] … under (d) and … (e). The (d) Bills are the ones which managed their life happily as Public Bills without hint of hybridity, and the (e) Bills are the ones dealing with water and gas."

(d) Bills that relate to property including utility and other undertakings, and which are not concerned with public policy, have been found to be hybrid.[21]

4. The criteria applied

Class

4.1 The Bill applies to local authorities comprising a single class. The reasons are as follows.

4.2 As set out in the Statement of Fact, the Bill is a single topic Bill to prevent all uncompleted proposals received by the Secretary of State's predecessor under Part 1 of the 2007 Act from effecting the changes proposed or provided for. The only such proposals are those referred to in paragraph 11 of the Statement, and it is only those proposals that are caught by the Bill.[22]

4.3 The local authorities affected by the Bill are Exeter City Council, Ipswich Borough Council and the other district councils in Suffolk, Norwich City Council, Devon County Council, Norfolk County Council and Suffolk County Council. As explained in paragraph 11 of the Statement, the changes prospectively made by the proposals affecting those authorities have not yet come about. In terms of the Statement, these changes are uncompleted plans. As just mentioned, the proposals captured by the Bill are the only proposals that are in this position. The Secretary of State accordingly invites the Examiners to agree that all these affected local authorities form a single class for the purposes of the Bill and they are the only local authorities affected in this way. As local authority structure is the essence of the Bill and these are the local authorities whose structures were to be affected by the 2007 Act proposals, it automatically follows that the class is germane to the subject matter of the Bill.

4.4 It may be argued that there are in fact two affected classes, namely Exeter (with Devon) and Norwich (with Norfolk) as one class and Ipswich (with Suffolk and the other district councils in Suffolk) as the other. The distinction that might be drawn between the two is that, if the Bill does not pass, the first class is affected by existing structural changes orders the implementation of which will be completed in 2011 so that unitary authorities will come into operation at that time; whereas local authorities in the second class will continue as they are at present.

4.5 The Secretary of State submits that this is not the correct approach because it views the position in terms of the law as it stands today and as it will have effect if the Bill does not pass. The test of class should, rather, relate to the Bill and the effect it will have when enacted. Using the latter test, all the affected local authorities comprise a single class. This proposition is not prejudiced by the necessarily different legislative treatment of the orders and the remaining proposals. That is a drafting technicality. Necessary differentiation between bodies affected by legislation does not make the legislation hybrid.[23]

Equal treatment

4.6 The issue of one class or two becomes irrelevant if, as the Secretary of State maintains, the Bill makes no distinction among those affected. The effect of section 1 of the Bill will be to remove all the uncompleted plans as if they had never been. The legislative route by which that end is achieved is different as between Exeter and Norwich on the one hand and Ipswich on the other, but the net effect is the same without any distinction.

4.7 Even if the view were taken that the Bill creates two classes of affected local authority, the position regarding hybridity would be unaffected. Exeter and Norwich, as one class, are both treated in the same way - both structural changes orders are to be revoked - and Ipswich, as the other class of one, is placed in the position of not being potentially affected by any 2007 Act proposals. So even on the multi-class analysis, the Bill provides for equal treatment of all members of each class.

4.8 In the course of the debate on 8^th June 2010[24] Lord Howarth of Newport argued[25] that the Bill affects Norwich and Exeter differently from local authorities generally. His stated reasoning was that after the Bill has become law local authorities other than Norwich and Exeter will be able to respond to any future invitation under Part 1 of the 2007 Act; but that "the Bill specifies that Norwich and Exeter - just those two named authorities - are not to become unitary authorities". Lord Howarth did not go on to say that Norwich and Exeter would be precluded from responding to a future invitation under Part 1 of the 2007 ACt, but that is the premise on which his argument appears to rest.

4.9 If that is indeed the argument being made for hybridity, the Secretary of State respectfully submits that it proceeds on a misreading of the Bill. Clause 1(3) provides for the revocation of the specific structural changes orders that have been made but which are as yet uncompleted because the unitary authorities are not yet in being. The effect of clause 1(1) is to prevent any further structural changes orders being made in respect of the specific proposals made to the Secretary of State in response to the 2006 invitation, all such proposals having been received by the Secretary of State before the commencement of these provisions. The 2006 invitation having requested any proposal by 25^th January 2007, and no invitation having been made since or being in prospect before the commencement of the Bill, these are the only proposals that will be caught by clause 1(1). The proposals in question are those identified in paragraph 11 of the Statement of Fact.

4.10 As Lord Howarth said, in future the Secretary of State may issue an invitation under section 2. Nothing in the Bill would prevent Exeter or Norwich from responding to any such invitation made to either of them.

4.11 The Secretary of State does not believe it would be possible for any future proposals to be exactly the same as the uncompleted plans that are caught by clause 1(3),[26] but even if it were, such proposals could be made. In the context of the legislation, "proposal" has a technical meaning. It refers, not to a substantive set of ideas for implementation, but to a specific response by a local authority to an invitation made under section 2 of the 2007 Act or an alternative proposal made by the Boundary Committee under section 5 in response to the Secretary of State's request for the Committee's advice under section 4. It follows that any future proposals would not be those caught by clause 1(1), whatever their substantive detail, and so could be made.

Public policy

4.12 The Bill is concerned solely with a matter of public policy, namely the structure of local government in England. The Government has inherited a situation whereby there is a number of unitary authorities. Government policy on unitary structure is simply stated: it does not favour the creation or coming into operation of further unitary authorities at this time. That policy is given effect to in the Bill by ensuring that the only uncompleted plans for unitary authorities do not proceed.

4.13 There are several reasons behind the policy and paragraph 10 of the Statement of Fact touches on two of them. As appears from the 26^th May 2010 press notice,[27] there are concerns about the imposition of a unitary structure. Of more immediate importance, the Government is anxious that the four local authorities affected by the Exeter and Norwich structural changes orders and the Government should be in a position to avoid the adverse financial impacts of making the change to unitary status, both in terms of the considerable expense involved and the absence of any, or any worthwhile, savings.[28] In the Secretary of State's submission these are all matters of public policy, and in turn they are the policy reasons underpinning the overarching public policy that, for the moment at least, further unitary authorities should not become operational.

4.14 In the Secretary of State submission, paragraphs 4.1 to 4.13 above are sufficient to demonstrate why the Bill is not hybrid. However, it may assist the Examiners if this Note also addresses cases that may at first glance seem inconsistent with the Secretary of State's position.

4.15 The Bill for the Charlwood and Horley Act 1974 was promoted as a hybrid Bill. The Act transferred parts of the parishes of Charlwood and Horley from the county of West Sussex to the county of Surrey. The Act therefore altered the boundaries and make up of West Sussex and Surrey, which might suggest that the case was comparable to the present Bill. There is in fact no comparison. The background to the Bill was concisely stated by the Parliamentary Under-Secretary of State (Baroness Young) on Second Reading in this House.[29] Explaining the Bill, she said:

"[The Bill] raises no issue of local government principle; it is simply a question of the Government carrying out a pledge to the people of the parishes of Charlwood and Horley."[30]

4.16 One of the categories of bills that is cited in Erskine May as being treated as hybrid is that of bills brought in by the Government for "local purposes, etc."[31] The text makes clear that this category of bills concerns Crown or other property and works, affecting private interests, and the bills cited in the 23^rd edition are self-evidently works or compulsory purchase measures. As the same may not today be so readily apparent as regards some of the older examples cited in the 21^st edition, it may be as well to point out that the bills concerning sites all dealt with the acquisition of specific land for a variety of public purposes. These were compulsory purchase measures, not concerned with public policy.

4.17 Erskine May cites bills (other than for London relating to cities and counties as normally being private.[32] However, this merely reflects the usual content of such bills. It is not some principle that applies to any bill simply because it relates to a city or county. Demonstrating this, May goes on to state expressly that such bills will be public if they deal with public policy.

Property and private rights

4.18 To complete the principles noted in section 3 of this Note, it will be evident that the Bill is not concerned with property matters. Neither does it touch on private rights. As explained above, it is concerned with the structure of local government in England. That is not something that is capable of giving rise to private rights.

5. Conclusion regarding hybridity

5.1 For the reasons explained in this Note, the Bill does not meet any of the criteria which might make it hybrid. The Secretary of State therefore invites the Examiners so to find.