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It has long been established that there should not be a high hurdle for referral to the Examiners. Mr Lewis notes that the Companion says at paragraph 8.214 that the threshold for the hybridity test is whether there is a prima facie case. That means, as he puts it, that,

In that, he is following rulings of the Speaker in another place. The Speaker ruled on the Local Government Bill in the 1962-63 Session, at HC (1962-63) 669 col. 45:

"I accept the true position to be this, that if it be possible for the view to be taken that this Bill is a Hybrid Bill, it ought to go to the examiners. There must not be a doubt about it".-[Official Report, Commons, 10/12/62, col. 45.]

Again, in the 1966-67 Session, the Speaker, at HC (1966-67) 732 col. 1221, referred to the "duty" to refer a Bill to the Examiners when the Bill was prima facie hybrid. The House will, I hope, acknowledge that, given the advice that I have quoted from two eminent experts, the threshold for referral has beyond doubt been crossed.



8 Jun 2010 : Column 606

I hope that the Government will not oppose this Motion for political reasons. I hope that they will not seek to take advantage of the new-found situation in this House, since the formation of the coalition, in which they can use their majority simply to crush propositions that are inconvenient to them, rather than, in the tradition that makes this House so valuable, respect the arguments and respect the rights of minorities. Your Lordships' House is not a House where machine politics should operate. It would reflect poorly on us and it would certainly cause bad feeling outside if the House were to dismiss without fair and proper consideration the arguments put forward in these opinions.

In the matter that we are dealing with now, the responsibilities of us all are as parliamentarians. We are dealing not with the merits of the Government's policy but with the status of the Bill and with the responsibility of Parliament to ensure that it is scrutinised according to the correct procedure. It may be that the Examiners will, after due consideration, endorse the Government's view of the Bill's status, but we owe it to those whose lives and fortunes will be affected by the Bill to ensure that we do indeed follow the correct procedure. I beg to move.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, I am not sure how many noble Lords will want to take part in this debate, but I thought that it might be helpful if I put forward the Government's view now, so that both views are available for further consideration. I thank the noble Lord, Lord Howarth, for explaining the reasoning behind his Motion and the opinions that he has received. I assure him that this Government have their view, which I shall put forward now.

The Local Government Bill was introduced into this House on 26 May and is scheduled to have its Second Reading, as the noble Lord mentioned, once this Motion has been disposed of. The Motion refers the Bill for determination of its status and so has taken precedence over Second Reading.

As the noble Lord said, the aim of the Bill is to stop the proposed restructuring of councils in Devon, Norfolk and Suffolk, which will save the taxpayer some £40 million. I will not take up the House's time by presenting the rationale for the Bill, as we hope to get to that later this afternoon, after the Motion has been considered.

The Motion tabled by the noble Lord asks the House to refer the Bill to the Examiners. He has expressed doubts that the Bill should be treated as a public Bill on the basis that he believes-he has cited other authorities, too-it to be hybrid. I need to say at the outset that, despite what the noble Lord has said, he has left it to this very late moment to bring the matter to the House and has given little notice for the House to be able to deal with it. I must make it clear that the Government strongly believe that, whatever the noble Lord has said, the Bill is not hybrid.

That is not only my view. The noble Lord should be aware of the letter I received from the Clerk of Public and Private Bills on 3 June, which states that the advice of the Public Bill Office was that,



8 Jun 2010 : Column 607

A copy of this letter has been placed in the Library of the House, and I drew the noble Lord's attention to it earlier. The letter also sets out clearly the reason why the Public Bill Office does not consider the Bill to be hybrid. It may assist the House, for those who may not have had an opportunity to see it, if I quote the relevant sections of the letter. This is a subject that not all Members will be intimately familiar with, hybridity being something which we do not often consider.

The letter begins by giving a definition of hybrid Bills-which act as the noble Lord, Lord Howarth, has already described. It states:

"A hybrid bill is defined as 'a public bill which affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category or class'".

The letter goes on to give the Public Bill Office's reasoning as to why the Local Government Bill is not prima facie hybrid. It states:

"The concept of 'class' is therefore crucial to deciding whether a bill is hybrid or not. Erskine May states that: 'A class must be defined by reference to criteria germane to the subject matter of the bill'.

The Local Government Bill is a tightly drafted one-topic Bill which relates only to proposals made, but not yet implemented, for the creation of unitary authorities under Part 1 of the Local Government and Public Involvement in Health Act 2007. It does not affect Orders made under Part 1 of the 2007 Act which have already been implemented. So for the purpose of judging hybridity, the class, defined by reference to criteria germane to the subject matter of the bill, is those councils which have made proposals-as yet un-implemented-for unitary status under Part 1 of the 2007 Act.

Section 1 of the bill contains the substantive provisions preventing the implementation of proposals under Part 1 of the 2007 Act. Subsection (1) prevents any further Orders being made under Part 1 of the 2007 Act to implement existing proposals for unitary authorities. I understand that at the moment, the only proposal which has not been the subject of an Order is that which was made by Ipswich Borough Council. Subsection (3) revokes the Orders which have already been made (but not implemented) in respect of Norwich and Exeter.

The class of bodies affected by the bill is clear, and all members of that class are treated equally, so we do not think"-

this is from the Public Bill Office-

Those are the terms of the letter that has been sent out. It gives the full basis for why the Government do not believe that hybridity is an issue.

I am slightly surprised that the advice of the Public Bill Office does not satisfy the noble Lord, Lord Howarth, that the Bill is not prima facie hybrid. I hope that, having aired his concerns-which has given me an opportunity to clarify this issue-the noble Lord will withdraw his Motion requesting that the Bill be sent to the Examiners, not least because of the considerable delay to the future of the Bill. We have a long tradition in this House of respecting the advice of the Public Bill Office. The noble Lord would need to make a very good case for the House to depart from that advice, and I do not believe that he has done so.



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Lord Lloyd of Berwick: Is not the problem-I am not sure that the noble Baroness has dealt with it yet-that the advice given by the Public Bill Office was given, as I understand it, before it had seen the evidence to which the noble Lord, Lord Howarth, referred? If there is, as a result of that evidence, any real doubt-a prima facie case, or whatever you like to call it-the Bill ought to go the Examiners. That is perfectly clear.

Baroness Hanham: My Lords, my understanding is that the Public Bill Office has not changed its view as a result of that advice, and I intend to proceed on that basis. Before I sit down, I should make it clear that if the noble Lord decides to put his Motion to a vote, I will have no option but to ask the House to oppose it as, were he to succeed, it would delay the passage of the Bill and clarity for the future of the local authorities concerned, which need a decision.

Lord Elystan-Morgan: I rise to support the Motion. Even in my greatest delusions of grandeur, I do not consider myself a constitutional lawyer. However, with very great respect to the House, I believe that this matter turns on a fairly narrow point to which I shall come in a moment.

The definition of hybridity stems from a ruling of the Speaker of the House of Commons in the Session 1962-63, and very much follows the words of the Companion which have already been quoted. The issue, therefore, is whether or not certain bodies or private interests, which stand on the same ground in respect of being private or being limited as bodies, are treated in exactly the same way. What is not spelt out in Erskine May, as I understand it, is whether or not there might be justification for treating bodies of that nature, which are of the same class, differently as different considerations relate to them. As I understand it, nothing in Erskine May casts light on that fundamental issue.

Since the enactment of the Local Government and Public Involvement in Health Act 2007, 13 orders have been made creating unitary authorities in Cornwall, Durham, Northumberland, Shropshire, Wiltshire, east Cheshire, west Cheshire and the city of Chester, Bedford County, mid-Bedfordshire, south Bedfordshire, Norwich and Exeter. The first 11 of those authorities gained unitary status in 2008. By 2009, those procedures were well set and, indeed, the transitional stages had been completed. The other two bodies with which we are concerned were dealt with by this House-if I remember rightly-on 22 March and, clearly, the transitional provisions have not begun to operate. Therefore, their situations are very different. If that be the basis of distinction, there would be justification for dealing with them differently. However, as far as I know, there is no rule which says that special cases need special exemptions: either you deal with all bodies in exactly the same way or you fall foul of hybridity. As I say, 13 orders have been made since 2007 and there has been no challenge in 11 of them. The other two were challenged in this House. Is that challenge valid, or not? That is the narrow issue that this House should consider.



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3.30 pm

Baroness Hollis of Heigham: My Lords, I, too, support the Motion. I declare an interest as a resident of Norwich and as a former leader of the city council. I wish to repeat a couple of points in addition to the excellent speeches that we have heard from all around the House. This Motion is not about the merits or otherwise of the Bill. It is certainly not about the merits or otherwise of unitary status. The debate is not even about whether the Bill is hybrid, despite the speech of the Minister, who is seeking to act as judge and jury-if I may put it that way-on that issue. The House is not being asked to decide that. That is a matter for the Examiners, as the noble and learned Lord, Lord Lloyd, put it so well. What we are discussing is a procedural "reasonable doubt" issue.

The most relevant guideline comes from the Speaker's ruling, also on a local government Bill, which was quoted by my noble friend. I repeat it, because it represents a very low hurdle indeed. The ruling stated:

"I accept the true position to be this, that if it be possible for the view to be taken that this Bill is a Hybrid Bill"-

I repeat, "if it be possible"-

I will not explain what the hybrid issue is; the noble Lord, Lord Elystan-Morgan, has done that very well. However, given that there is such a very low hurdle, is it possible, in the words of the Speaker of the Commons, for the view to be taken that the Bill is hybrid? Such a view should clearly not be whimsical or something that I thought up in the bath. In fact, we have the view of learned counsel and of parliamentary agents, Sharpe Pritchard, which has stated that it is strongly arguable that this Bill is hybrid. Others, perfectly properly, may take a different view.

However, we are not asking the House to judge that this afternoon. That is a matter of judgment. We are asking it merely to decide whether the arguments from QCs and parliamentary agents meet the very low hurdle of the test set by the Speaker, when he said,

it should go to the Examiners. Opinion from learned counsel and parliamentary agents would seem to me not to be frivolous, but a serious one that should be explored by the Examiners.

Counsel's opinion is, therefore, unambiguous and it seems to me that the Speaker's ruling applies unambiguously, as the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Elystan-Morgan, argued. If the House ignored that ruling-and the Clerks' advice was given in advance of them seeing learned counsel's opinions to the contrary-that would flout not only the clear ruling of the Speaker and the House would be, if I may say so, behaving in a very high-handed way which all of us have studiously sought to avoid, precisely because we are not elected.

Whatever our views about the Bill-and I fully accept that they will be various-I do hope that we all agree that we should be seen to be meticulous and transparent in our procedures. If not, we cut away further at our distinguished history and that will leave

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us more exposed in the future. Whatever noble Lords' views about the merits of the Norwich and Exeter case, I hope that they will support this Motion, because that would show the House of Lords at its most reflective best.

Lord Richard: My Lords, perhaps I may make two or three points. First, this Motion is certainly not about the merits of the Bill. As far as the Bill is concerned, I was not in favour-and I am still not in favour-of Exeter becoming a unitary authority. On the contrary, as someone who spends a large part of his time down in Devon, it is important that Exeter should remain with the rest of Devon. However, that is not the issue. I totally agree with my noble friend Lord Elystan-Morgan when he said that it is a simple point-it is. Where are we? What is the dilemma facing the House? It is simply this: on the one hand, we have the Clerks. They have given their respected, respectful and highly considered opinion which states that the Bill is not hybrid. On the other hand, we are now in a position whereby an eminent Queen's Counsel, who is experienced in this branch of the law, has also given a firm and unequivocal opinion that the Bill is, or could well be, hybrid. How can we resolve that? We cannot.

I am not in a position this afternoon to argue whether or not the Bill is hybrid, but I am in a position-and I hope that the rest of the House will follow me in this-to say that there is a clear argument as to whether the Bill is or is not hybrid. That being so, the procedures on how to resolve that are perfectly clear: the Bill has to go to the Examiners. The Examiners are there to assist the House in coming to a conclusion. It seems to me that we cannot come to a conclusion today, except by ignoring one or other reputable opinion by reputable people. I am not prepared to ignore one set of views in favour of another; I am not in a position to make up my mind. There is a clear issue here and, that being the case, the Bill should go to the Examiners and I shall support the Motion.

Lord Howarth of Newport: My Lords, it is appropriate that this has been a short debate. The noble Baroness, Lady Hanham, trailed her Second Reading speech but this is not a debate about the merits of the Bill. She told us that the Government strongly believe that the Bill is not hybrid. We know that they strongly believe that but others, equally strongly, take the contrary view. I perfectly respect the views of the Clerk of Public and Private Bills and I respect his role. I make no criticism whatever of the advice that he has given, which I think has been entirely proper. However, I think that it is wrong of the noble Baroness to invite the House to agree with her that the Bill is not hybrid, because that is not the issue or the role of this House.

The question is whether there are reasonable arguments for saying that the Bill is hybrid. The crucial point, made very well by the noble and learned Lord, Lord Lloyd of Berwick, was that opinion that this House should not ignore was provided to us after the Clerk had given his view. Therefore, we cannot question that there is doubt about the status of the Bill. The Speaker's rulings have made it absolutely clear that, where there is such doubt, the Bill should be referred to the Examiners

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so that they can determine the matter. The noble Lord, Lord Elystan-Morgan, explained the nature of the doubt. My noble friend Lord Richard, a former Leader of the House and a QC-incidentally, not a supporter of unitary status for Exeter and Norwich-advised the House that it would be appropriate to refer the Bill. I do not think that this House can ignore the advice received from QCs or eminent parliamentary agents, and I very much hope that we will therefore refer the Bill to the Examiners.

3.37 pm

Division on Lord Howarth of Newport's Motion.

Contents 154; Not-Contents 150.

Motion agreed.


Division No. 1


CONTENTS

Ahmed, L.
Anderson of Swansea, L.
Armstrong of Ilminster, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Bath and Wells, Bp.
Best, L.
Bhattacharyya, L.
Bichard, L.
Bilston, L.
Blood, B.
Borrie, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Butler of Brockwell, L.
Butler-Sloss, B.
Campbell-Savours, L.
Chichester, Bp.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Coussins, B.
Craig of Radley, L.
Crawley, B.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
D'Souza, B.
Dubs, L.
Eatwell, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falkland, V.
Farrington of Ribbleton, B.
Fellowes, L.
Finlay of Llandaff, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Golding, B.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jay of Ewelme, L.
Jay of Paddington, B.
Jones, L.
Kakkar, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Lea of Crondall, L.
Lewis of Newnham, L.
Lipsey, L.
Listowel, E.
Lloyd of Berwick, L.
Low of Dalston, L.
Luce, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mar, C.
Martin of Springburn, L.
Masham of Ilton, B.
Maxton, L.
Mitchell, L.
Morgan, L.
Morgan of Huyton, B.


8 Jun 2010 : Column 612

Morris of Aberavon, L.
Morris of Manchester, L.
Morris of Yardley, B.
Murphy, B.
Newcastle, Bp.
O'Loan, B.
O'Neill of Clackmannan, L.
Palmer, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rees-Mogg, L.
Richard, L.
Ripon and Leeds, Bp.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
St John of Bletso, L.
Saltoun of Abernethy, Ly.
Scotland of Asthal, B.
Scott of Foscote, L.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Kelvin, L.
Smith of Leigh, L.
Soley, L.
Stair, E.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L. [Teller]
Walpole, L.
Walton of Detchant, L.
Warnock, B.
Wedderburn of Charlton, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Wilson of Tillyorn, L.
Woolmer of Leeds, L.
Wright of Richmond, L.
Young of Hornsey, B.
Young of Norwood Green, L.
Young of Old Scone, B.

NOT CONTENTS

Aberdare, L.
Addington, L.
Alderdice, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Bates, L.
Bew, L.
Bilimoria, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Byford, B.
Campbell of Alloway, L.
Cathcart, E.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Crathorne, L.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Deech, B.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Elton, L.
Falkner of Margravine, B.
Fearn, L.
Feldman, L.
Fookes, B.
Forsyth of Drumlean, L.
Freud, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glasgow, E.
Goodlad, L.
Greaves, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Harris of Richmond, B.
Henley, L.
Higgins, L.
Hill of Oareford, L.
Hooper, B.
Hooson, L.
Howard of Rising, L.
Howe, E.
Howell of Guildford, L.
Hurd of Westwell, L.
James of Blackheath, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
King of Bridgwater, L.
Knight of Collingtree, B.
Laming, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lindsay, E.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
Lyell, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Marland, L.


8 Jun 2010 : Column 613

Mawhinney, L.
Methuen, L.
Montgomery of Alamein, V.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Neuberger, B.
Neville-Jones, B.
Newby, L.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northover, B.
O'Cathain, B.
Perry of Southwark, B.
Rawlings, B.
Rennard, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Sandwich, E.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Ullswater, V.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Wilcox, B.
Williams of Crosby, B.
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