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Lord Whitty: If I understand the question correctly, no. In response to the noble Baroness, Lady Hamwee, it is clear that the Wednesbury rules apply in this respect, as in all other respects, in terms of the decisions of local authorities. In another words, local authorities are required to act reasonably. It is true that in the last resort judicial review could apply where the authority was regarded as not acting reasonably. The point is this: whose opinion is it that informs the decision? Local authorities must reasonably reach that opinion and reasonably implement that decision. If we were to take out the words as the noble Lord, Lord Peyton, suggests, it would leave the courts, and not the local authorities, directly to decide what activities could be undertaken within that area. Like the noble Lord, Lord Dixon-Smith, I assume that all local authorities do act reasonably and not randomly. I am sure that that is the case, even in Essex. Nevertheless, the reasonableness criterion continues to be applied.
I was asked whether this would allow local authorities to avoid, for example, planning policy guidance or other statutory measures. They could not do so because they are prevented by Clause 3(1) from doing anything which they cannot do because of restrictions or other legislation. Therefore, authorities' duties around planning issues are prescribed in other pieces of legislation and this is not the open door suggested by the noble Lord, Lord Peyton. Nor is it open to local authorities to use the clause to take unreasonable actions or have unreasonable opinions. The provision does, however, give a great deal of additional discretion to local authorities to act in the interest of the communities that they represent. If the two amendments promoted by the noble Lord, Lord Peyton, were carried, that would greatly confuse the exercise of that new power and would open it to detailed litigation. I hope, therefore, that I have said enough to persuade the noble Lord to withdraw the amendment.
Lord Peyton of Yeovil: I am grateful to the noble Lord for his thoughts on the subject. At least he has paused to think for a moment. It may be that I have misunderstood the whole purpose of pre-legislative scrutiny. I had supposed, perhaps rather simplistically, that the pre-legislative scrutiny would avoid, not precipitate, the need for the torrent of amendments that we find on the Marshalled List before even a word of the Committee stage has been delivered. That is what bothers me.
I am slightly surprised, and more than a little disappointed, to find the noble Lord declaring himself not at all abashed. I remember previous occasions when he had good reason to be abashed and when he said so. He did himself a great deal of credit. There is nothing to be ashamed of in saying that a slight mistake has been made. I was impressed on the previous occasion when that happened, and I am depressed on this one.
I hope that the noble Lord will make the effort to understand the position. I certainly have no petty intention of being hostile to local government. If I may again be slightly autobiographical, I recall, when I was on the Benches opposite, making a speech one more than one occasion about what I believed was the then government's deplorable messing about with local government. So I do not accept that I should be put in the position of someone who is prejudiced against local government and is determined to shackle it at every turn. All I am saying, and it is not too much to ask, is that local government should produce something that is likely to be of benefit. If it does that, that is sufficient. Under the Bill as drafted, all local government has to do is say that it thinks it is likely to be of benefit. That is not quite enough.
The noble Lord spoke rather as though it were the intention of the Government to preclude any possibility of intervention by the courts. I am glad to see the noble Lord shaking his head, but that was the impression that he gave. His remarks could easily be construed as meaning that any interference by the courts is to be resisted and avoided at all cost, whenever possible. If the noble Lord wants to intervene, I am happy to give way.
Lord Whitty: I hoped that I had made it clear that if the reasonableness of a local authority's action is in question, as the noble Lord, Lord Campbell, mentioned, the question of judicial review comes into account. I do not exclude the courts from every decision. I am saying that if we accepted this wording, it would be open to the courts to intervene on almost every decision of a local authority to clarify whether the opinion of the local authority or that of someone else was better.
I am sorry that the Minister should take such a lofty view in dismissing the amendment and saying that it would be greatly prejudicial to local government. I do not see that. If the noble Lord persists in that view, I shall, with some reluctance, press the amendment. The noble Lord does not respond. I should therefore like to take the opinion of the House.
Resolved in the negative, and amendment disagreed to accordingly.
The Deputy Chairman of Committees (Lord Strabolgi): I must inform the Committee that if Amendment No. 2 is agreed to, I cannot call Amendments Nos. 3 to 7.
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