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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.

25 Jan 2000 : Column 1429

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.

Lord Peyton of Yeovil: I am grateful to the Minister and am slightly reassured by his remarks. I do not want to prolong my remarks, but one noble Lord opposite,

25 Jan 2000 : Column 1430

who is not now in his place, said that if my amendment were passed, we should be returning to some old quagmire. I did not understand quite what that was about. I thought it rather extreme to say that this modest amendment would put local government back in some imaginary quagmire. That is certainly not my intention and I do not believe that it would be the effect of the amendment. When I find the noble Lord, Lord Mishcon, opposing an amendment of mine, I realise that I am up against very serious skills. I have nothing to offer which can possibly compete with the skills used with such ease by the noble Lord. Nevertheless, despite what the noble Lord has said, I still think that the amendment that I propose is quite a modest one.

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.

3.45 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 84; Not-Contents, 126.

Division No. 1


Allenby of Megiddo, V.
Astor of Hever, L.
Attlee, E.
Belstead, L.
Biffen, L.
Blatch, B.
Blood, B.
Boardman, L.
Brabazon of Tara, L.
Bridgeman, V.
Bridges, L.
Brougham and Vaux, L.
Buscombe, B.
Butterworth, L.
Byford, B.
Campbell of Alloway, L.
Campbell of Croy, L.
Carr of Hadley, L.
Cockfield, L.
Cope of Berkeley, L.
Courtown, E.
Cox, B.
Craig of Radley, L.
Crickhowell, L.
Cuckney, L.
Dacre of Glanton, L.
Dean of Harptree, L.
Denham, L.
Dixon-Smith, L.
Elliott of Morpeth, L.
Ferrers, E.
Flather, B.
Fookes, B.
Gardner of Parkes, B.
Geddes, L.
Gray of Contin, L.
Henley, L. [Teller]
Howe, E.
Howell of Guildford, L.
Hylton-Foster, B.
Jopling, L.
Laird, L.
Laming, L.
Lamont of Lerwick, L.
Lane of Horsell, L.
Liverpool, E.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Mackay of Ardbrecknish, L.
Miller of Hendon, B.
Montrose, D.
Mowbray and Stourton, L.
Naseby, L.
Norfolk, D.
Northbrook, L.
Northesk, E.
O'Cathain, B.
Palmer, L.
Peel, E.
Peyton of Yeovil, L.
Platt of Writtle, B.
Plumb, L.
Plummer of St. Marylebone, L.
Prior, L.
Rawlings, B.
Rees, L.
Renfrew of Kaimsthorn, L.
Renton, L.
Roberts of Conwy, L.
Rotherwick, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Shaw of Northstead, L.
Skelmersdale, L.
Strathclyde, L.
Swinfen, L.
Vinson, L.
Vivian, L.
Waddington, L.
Weatherill, L.
Wilcox, B.
Young, B.


Ackner, L.
Addington, L.
Ahmed, L.
Alli, L.
Alton of Liverpool, L.
Amos, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Blackstone, B.
Borrie, L.
Bradshaw, L.
Brightman, L.
Brooke of Alverthorpe, L.
Brookman, L.
Bruce of Donington, L.
Burlison, L.
Carter, L. [Teller]
Clarke of Hampstead, L.
Cledwyn of Penrhos, L.
Clement-Jones, L.
Cocks of Hartcliffe, L.
Crawley, B.
David, B.
Davies of Coity, L.
Dearing, L.
Desai, L.
Dixon, L.
Dubs, L.
Elder, L.
Evans of Watford, L.
Ezra, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gavron, L.
Geraint, L.
Gibson, L.
Goodhart, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Hamwee, B.
Hardy of Wath, L.
Harris of Greenwich, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hunt of Tanworth, L.
Irvine of Lairg, L. (Lord Chancellor)
Jay of Paddington, B. (Lord Privy Seal)
Jenkins of Hillhead, L.
King of West Bromwich, L.
Lea of Crondall, L.
Levy, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Longford, E.
McIntosh of Haringey, L. [Teller]
Mackenzie of Framwellgate, L.
Maddock, B.
Masham of Ilton, B.
Mason of Barnsley, L.
Massey of Darwen, B.
Miller of Chilthorne Domer, B.
Milner of Leeds, L.
Mishcon, L.
Morris of Manchester, L.
Nicol, B.
Northbourne, L.
Paul, L.
Perry of Walton, L.
Peston, L.
Phillips of Sudbury, L.
Pitkeathley, B.
Prys-Davies, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rees-Mogg, L.
Rendell of Babergh, B.
Richard, L.
Roll of Ipsden, L.
Russell, E.
Sandberg, L.
Scotland of Asthal, B.
Serota, B.
Sharp of Guildford, B.
Shepherd, L.
Shore of Stepney, L.
Simon, V.
Smith of Clifton, L.
Smith of Leigh, L.
Southwark, Bp.
Stone of Blackheath, L.
Strabolgi, L.
Taylor of Blackburn, L.
Thomas of Walliswood, B.
Thornton, B.
Tomlinson, L.
Tope, L.
Tordoff, L.
Turner of Camden, B.
Varley, L.
Wakefield, Bp.
Wallace of Saltaire, L.
Warwick of Undercliffe, B.
Watson of Richmond, L.
Wharton, B.
Whitaker, B.
Whitty, L.
Wigoder, L.
Wilkins, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

25 Jan 2000 : Column 1431

25 Jan 2000 : Column 1432

3.55 p.m.

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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