THE GOVERNMENT'S WRITTEN SUBMISSION: PART
HOUSE OF LORDS
SESSION 2010 - 2011
LOCAL GOVERNMENT BILL [H.L.]
on behalf of the Secretary of State
1.1 On 8th 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.
1.2 As stated in the Examiners' Notice dated
14th 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
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,
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
"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
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
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
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.
(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.
The relevant passage is:
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
(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.
Mr. Speaker Hylton-Foster said:
"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.
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.
Members look at Erskine May they will find the two notes on page
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.
4. The criteria applied
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.
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
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.
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 8th
Lord Howarth of Newport argued
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 25th 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),
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.
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 26th May 2010 press notice,
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.
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
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.
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."
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."
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 23rd 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 21st 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.
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.
11 cf Mr Speaker Hylton-Foster's ruling on the London
Government Bill (HC Debates (1962-63) vol.669 col.45 (marked "A"
in Annex 1 [not appended to this Record]) and the Companion
to Standing Orders and Guide to the Proceedings of the House of
Lords (2010) (ISBN 978 0 10 847241 1) at 8.213, both
reproduced in Annex 1 [not appended to this Record]. Back
HL Debates (1962-63)vol.248 cols.1116-1117, reproduced in Annex
2 [not appended to this Record]. Back
Col.1117 (marked "B" in Annex 2 [not appended to
this Record]). Back
Ibid cols.1116-1117 (marked "C" in Annex 2 [not appended
to this Record]). Back
Erskine May 23rd edn (2004) p.641, reproduced in Annex
3[not appended to this Record]. Back
Certificate from the Examiners relating to the Aircraft and Shipbuilding
Industries Bill and Statement of Reasons therefor, HL Paper 71
of session 1976-77 (ISBN 0 10 407177 X) p.5, reproduced at Annex
4 [not appended to this Record]. Back
Mr Speaker King's ruling on the bill for the Iron and Steel Act
1967 (see HC Debates (1966-67) vol.732 cols.1222-1223, reproduced
in Annex 5 [not appended to this Record]. The ruling, at
col.1222 is marked "D".) Back
HC Debates (1962-63) vol.669 cols.37-164 at cols.39-43 and 45-48,
reproduced at Annex 1 [not appended to this Record]. The
passages cited are marked "E" and "F" respectively. Back
Ibid. col.46, see "G". Back
The reference is to the 16th (1957) edition [of
Parliamentary Practice by Erskine May]. The relevant extract
is reproduced as Annex 6A [not appended to this Record].
The equivalent in the 23rd edition (p.970), also reproduced
in Annex 6B [not appended to this Record] does not refer
to the examples noted in the 16th edition. Back
See Annex 3 [Erskine May, 23rd edn, p.641-not appended to this
Record], footnotes 5 and 6 and Annex 6A, footnote (e) [See
previous footnote]. Back
See Statement paragraphs 13 and 14 [appended to this Record
as Supplement 1]. Back
See Mr Speaker Whitley's ruling on the Bill for the Railways Act
1921 HC Debates (1920-21) vol.142 cols.42-44, at col.44 reproduced
in Annex 7 [not appended to this Record]. The passage is
marked "H".. Back
HL Debates (2010-11) vol.719 cols.603-613, reproduced in Annex
8 [not appended to this Record]. Back
Ibid cols.604-605 (marked "I" in Annex 8) [not appended
to this Record]. Back
Apart from anything else, the financial details would differ. Back
DCLG Press Notice 26th May 2010, reproduced in Annex
9 [not appended to this Record. See http://www.communities.gov.uk/news.newsroom.1600805]. Back
See also the Parliamentary under Secretary
of State's letter referred
to in the Statement, reproduced in Annex 10 [appended to this
Record as Supplement 6]. Back
HL Debates (1973-74) vol.349 cols.111-115, reproduced as Annex
11 [not appended to this Record]. Back
Ibid col.111 (marked "J" in Annex 11) [not appended
to this Record]. Back
See Erskine May 23rd edn (2004) p.970 and 21st
edn (1989) p.794, both reproduced in Annex 12 [not appended
to this Record]. Back
Erskine May 23rd edn (2004) p.971 and notes referred
to, all reproduced in Annex 13 [not appended to this Record]. Back