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


SUPPLEMENT 4

THE GOVERNMENT'S WRITTEN SUBMISSION: PART 3 — RESPONSE TO THE MEMORIALS

WS 22.6.10

1.  Identical Memorials against the Bill were deposited by Exeter City Council and Norwich City Council. Both Memorials have subsequently been withdrawn. To assist the Examiners, set out below are the responses that the Secretary of State intended to make to the Memorials. The facts upon which the Secretary of State relies are set out in the Statement of Fact and his submissions regarding hybridity generally, including issues raised in the Memorials, are in Part 1 of these Representations.

The classes affected by the Bill

2.  It appears from paragraph 12 of the Memorial that the parties are agreed about two affected classes all members of which the Bill treats equally. The former Memorialists' case rested upon there being a third class of local authority which is affected by the Bill, a class of which the former Memorialists said they were members and are treated by the Bill in a way that is different from the Bill's treatment of other members of that third class. The Secretary of State submits that the Memorialists' contentions are wrong.

3.  The Secretary of State invites the Examiners to agree that this supposed third class relevant to hybridity does not exist. His reasoning is as follows. The separate reasons are not in order of importance.

4.  The essence of the third grouping as described in paragraph 13 of the Memorials is that its members can all submit proposals under Part 1 of the 2007 Act, and can do so both before and after the commencement date. As explained in paragraph 3 of the Statement, proposals may only be made in response to an invitation by the Secretary of State under section 2. No such invitation is in prospect for reasons of policy, but that apart the Secretary of State could not reasonably invite proposals which had to be made by the commencement date. Such an invitation would be futile because clause 1(1) of the Bill, once enacted, would render nugatory any proposal made in response to the invitation. An invitation that requested proposals no later than the commencement date would therefore be unlawful.

5.  It would legally be possible for the Secretary of State to issue an invitation before the commencement date requesting proposals by a date after the commencement date. In that event, no local authority could reasonably submit proposals before the commencement date in the knowledge that they would be rendered nugatory by the Bill when enacted. To spend council taxpayers' money on such a futile exercise would be unreasonable and, in consequence, unlawful.

6.  There cannot therefore be any issue of hybridity connected with a theoretical requirement for proposals to be made before the commencement date.

7.  As regards events after the commencement date, the Secretary of State remains able to issue invitations under section 2 and the Bill's provisions will not alter that position. Thus the Bill does nothing to create an affected third class such as is described by the former Memorialists.

8.  The supposed third class is by its nature one to which the Bill does not apply. It is therefore irrelevant to any test of hybridity. The tests of hybridity are all concerned with the effect of the Bill and whether that effect differentiates between classes. Hybridity does not arise because a Bill fails to capture some class that is not within the scope of the Bill.

9.  The issue that is relevant to class is whether the Bill affects, in the sense of having a legal effect on, a class only some of whose members are caught by the Bill. Looked at in that way, the former Memorialists, both of which are legislated for in the Bill, are the only local authorities that come within the class to which clause 1(3) of the Bill relates.

Whether class is germane to subject matter

10.  The Memorialists contend in paragraph 16 of the Memorials that their third grouping is germane to the subject matter of the Bill. This, too, is incorrect. The single purpose of the Bill is as explained in paragraph 12 of the Statement of Fact. It is concerned only with the implementation of uncompleted proposals, of which there is a finite number (see paragraph 11 of the Statement). The wider issue of the implementation of Part 1 of the 2007 Act generally is not legislated for in the Bill and so is not germane to it.

Whether Memorialist treated differently from others in its class

11.  The Memorialists say in paragraph 17 of the Memorials that they will be treated differently from other local authorities making proposals. The argument appears to be that the Memorialists' proposal will be prejudiced. However, such prejudice is not (and is not claimed to be) a legal effect of the Bill. It is alleged to result from the Orders having previously been revoked and from Government's current policy. This line of argument ignores the law. If there were an invitation, any resulting proposals would have to be considered on their merits. Relevant Government policy, which indeed may have changed, must be a reasonable element of this, but prejudice in the sense of unreasonable adverse opinion or even predetermination i.e. a closed mind would be unlawful. The complaint of different treatment on this basis amounts to nothing less than an allegation that the Secretary of State can be expected to act unlawfully. If such a suggestion is really intended, it is unworthy of the former Memorialists and is wholly unjustified.

12.  Paragraph 13 of the Memorials speaks of the Memorialists being "warned off". The former Memorialists draw attention to the Hylton-Foster definition, which refers to the effect of the Bill, and seeks to distinguish between the effects of the Bill as such i.e. while it is a Bill, and its effects as enacted. The Secretary of State submits that the distinction is false and that the former Memorialists' proposition is both novel and extraordinary. A Bill can only affect parties prospectively, by specifying a legal effect that will result from enactment. (As an exception, one type of Bill that does have legal effect in itself i.e. before enactment, is one that authorises compulsory purchase causing planning blight.) In the present case, the promise of the legal provision that will be made if the Bill is enacted cannot have any legal effect while it remains no more than a promise. Thus the Memorialist cannot claim that there is any effect flowing from the Bill but not the Act, still less an effect that ought properly to give rise to a right to petition.

13.  The former Memorialists refer to its desire to submit proposals in the same terms as those previously submitted. The Secretary of State does not believe that to be possible in practice (see Part 1 of these Representations, paragraph 4.11).

Other principles and submissions

14.  Paragraphs 18 to 20 of the Memorials deal with hybridity in the context of public policy and bills relating to the cities and counties. Paragraph 18 cites the general statement on the subject in Erskine May. For the reasons explained in paragraph 4.17 of Part 1 of these Representations, that very general statement reflects the usual context of such Bills. It has to be applied as appropriate in the particular case. The example of the Charlwood and Horley Bill (paragraph 4.15) demonstrates this. Erskine May bears out the proposition that any decision on the treatment of a particular Bill is taken on the basis of the Bill itself.[33]

15.  Paragraphs 21 and 22 of the Memorials claim that the Bill is hybrid because it revokes orders which are themselves hybrid instruments and were not treated as such only because of section 240(9) of the 2007 Act. This contention misunderstands the nature of hybridity. The Orders dealt exclusively with local government in Exeter and Norwich respectively. They were therefore concerned with locality, not public policy. That could be sufficient for the Lord Chairman to determine that they were within the scope of PrBSO 216, but the hybridity of the Orders is not relevant to the Bill. The questions to be asked in relation to the Bill are concerned with the classes of interest affected by it and their equality of treatment, all of which are addressed above.

Conclusion

16.  The Secretary of State submits that nothing in the Memorials demonstrates that the Bill is hybrid. Accordingly, PrBSOs do not apply to it and the Secretary of State invites the Examiners so to find.


33   See Erskine May 23rd edn at p.970 and, in greater detail, the 21st edn at pp 793-794.  Back


 
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