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Lord Dixon-Smith: Before the noble Lord the Minister sits down, I rise with hesitation to cross swords with so eminent a lawyer. I suspect that we are discussing how many angels can dance on the head of a pin. I hope that if the noble Lord looks at the effect of the amendment of my noble friend Lord Peyton, he will see that it does nothing to remove the local authority's responsibility or indeed its discretion. It removes only some somewhat lax and unnecessary words.
Lord Mishcon: The noble Lord, Lord Dixon-Smith, has been very kind in promoting me--I hope it has been heard by the Chief Whip. Unfortunately, the Leader of the House is not here; nor is the Prime Minister. If the only argument against the provision is that the words are superfluous, and if I, as a humble lawyer, think that they are not superfluous but mean something, what harm is done by their inclusion?
Lord Whitty: I am deeply grateful to my noble friend Lord Mishcon for raising the sights of the Committee about the Bill. This is a very important turning point for local government in terms of broadening flexibility, broadening the freedom of choice and putting back responsibility on to local government for looking after the well-being of their communities. I had thought from the interventions of the noble Lord, Lord Dixon-Smith, in earlier debates on local government that he was also of that persuasion and concerned about the need to get local government back to the position where it genuinely leads its communities and takes decisions on behalf of its communities. That is what the power of well-being is really about.
I am not prepared to be abashed today over criticism of the tabling of amendments. The Committee will know that on previous occasions I have been slightly shamefaced in terms of our producing rather late amendments in relation to the GLA Bill when it had passed several days of Committee in another place and several days here. However, on this occasion I must say--it is perhaps presumptuous of me to say so--that I do think the noble Lord, Lord Peyton, is being a little disingenuous. He will know that Bills, and perhaps in particular local government Bills, whichever House they are introduced in, are often subject to detailed amendment before they are finally considered in Committee by that first House. That was the case under various regimes of the party opposite, and it is the case now. I am not saying that it is perfect, but it is hardly unprecedented.
Although the noble Baroness, Lady Hamwee, is anxious that the House of Lords oversees the Government in their modernising agenda--I regret that we are only as far as fax machines and not as far as a complete new version of the Bill--it is important that the House understands that the changes we intend to make as a result of the amendments, subject to the views of the Committee, will strengthen the outline of the Bill which we provided at first print and which we discussed at Second Reading. Those changes will be informed both by a better assessment of what is necessary and, more importantly, by the opinion of the Joint Committee and by the opinion of local government itself.
Therefore, on this occasion I make no apology for the large number of amendments. When we come to specific amendments, noble Lords will no doubt have particular points to make which I shall take seriously, as always. However, I do not accept the general criticism with regard to the number of amendments.
Lord Roberts of Conwy: I am grateful to the Minister for giving way. Will he clarify this point? I understand that we shall not be receiving amendments to the Bill in so far as it relates to Wales until Report stage and possibly Third Reading. That is because the National Assembly for Wales has not yet completed its consideration of the Bill. Will he confirm that?
Lord Whitty: Yes, I am happy to do so. The general theme of the Bill applies to Wales as it does to England. But where there are order-making powers which rest with the National Assembly for Wales, in parallel with the Secretary of State in relation to England, the precise details of those order-making powers have yet to be agreed with the National Assembly. That is a consequence of devolution. It means some slight delay in my being able to lay those amendments until the situation in Wales has been clarified. The Welsh dimension is the only major area where there would be amendments made by the Government beyond the Committee stage.
Lord Elton: While the noble Lord is on the subject of procedure and before we return to the subject of the amendment, perhaps I may leave something on the record which may be considered by the Procedure Committee when it comes to look at how all this works out. First, a procedure which enabled the Government to draft the Bill as they intended to debate it in
Lord Whitty: I note the noble Lord's first point. Clearly, we are still on a learning curve in relation to pre-legislative scrutiny and the way in which both Houses of Parliament will engage in much more detailed consideration of Bills before they reach their formal stages. I accept his point in part, although I suspect that the business managers will find it hard to guarantee that we always meet the optimum timing in these respects.
As regards the position on Wales, I suspect that the amendments which arise as a result of our consultation with the Welsh Assembly will not be a huge surprise to noble Lords but they need to go through the process of agreement with our colleagues in Wales. Therefore, I should not have thought that there was a need to re-commit them. However, we are not at that point and noble Lords will no doubt reserve their judgment in that respect. I believe that this is not such a big issue. There is no conflict between ourselves and the Welsh Assembly. But we need to get matters right and ensure that the procedures agreed between central government and the devolved administrations are observed.
Perhaps I may now turn to the substance of the noble Lord's amendment. Clause 2 confers a broad power on local authorities in the promotion and improvement of the well-being of their area. That is a major step in the direction outlined by my noble friend Lord Mishcon in giving back to local authorities the ability to decide the priorities within their communities. The Government very much want local authorities to be able to act in the interests of, and react to the needs and concerns of, their communities, free from threat of intervention by the courts. Clause 2(5) makes clear that this can include action outside the authority's designated area if, in the opinion of the local authority, such action would promote or improve the well-being of its own community.
I say again to the noble Lord, Lord Peyton, that perhaps he is being slightly disingenuous in that this phraseology is quite familiar in local government Acts. If I remember rightly, the noble Lord was a member of the 1970-74 government. This precise phraseology was used in Section 137--a fairly wide-ranging section--of the Local Government Act 1972 which allowed local authorities to use that power if, in their opinion, it was in the interests of their area to do so.
Of course, the local authority's opinion might differ from the opinion of some of its ratepayers, some of its political opponents, and no doubt other community interests. But at the end of the day, it is the local authority's responsibility to make that judgment.
Lord Campbell of Alloway: There is a problem here and I want to ask the noble Lord about it. "In its opinion" always gives the opportunity to go to judicial review on a decision and the court can say that it was not reasonably entertained. If one looks at the wording of the Bill, without my noble friend's amendment, it could well preclude judicial review--I think it probably would unless there were bias or ill will. Is that the intention of the clause?
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