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Lord Dixon-Smith: My Lords, on 23rd January, a debate was held in another place on an humble Address calling on Her Majesty to annul the draft Local Authorities (Executive Arrangements) (Access to Information) Order. It was a long and interesting debate. It would certainly be worth anyone's while to take the time to read it. At the end of the debate, 31 Liberal Democrat Members of Parliament--the strength of the party in that House is 46--voted for the prayer to annul the draft order. The Municipal Journal subsequently reported the Liberal Democrat spokesman on local government, Mr Don Foster, to have said that Liberal Democrat Peers were ready to join forces with Tory Peers to veto the regulations.

What happened subsequently is interesting, instructive and--I shall dare to confess this to the House--a lesson to myself. The noble Baroness, Lady Hamwee, beat me to the Clerk's office. She tabled a Motion for a Prayer to annul the order. That stood on the Order Paper for a number of days. In the middle of last week, I indicated to her that we intended to support her Motion. At that time, the noble Baroness gave no indication that there was any intention to approach the Government for further discussions, nor was there any subsequent indication that that had happened. As a result, I was somewhat surprised when, on Monday, that Motion was withdrawn and on Tuesday the Motion that the noble Baroness has moved this evening was tabled on the Order Paper. In the circumstances, I should have thought that I would have been entitled to be told that something was going on. However, that being the case, it seemed to me that it was entirely proper to reinstate the original Motion put down by the noble Baroness, but now, of course, tabled in my name. At the appropriate time, I shall ask the House to reject the Motion tabled in the name of the noble Baroness and to support what is now my Motion.

I have received briefing material on this matter from the Campaign for Freedom of Information, which considers that the regulations as drafted are in need of significant improvement. I also received briefing

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material from the Newspaper Society, which identified three notable areas of weakness. The Society of Editors shares those concerns and spoke of the possibility of dubious interpretation of the precise wording of the regulations. I am bound to say that the speech of the noble Baroness supported those concerns. Furthermore, they mirror completely my own concerns about the regulations.

It was interesting to note an article in the Local Government Chronicle of 22nd January, under the joint authorship of George Jones, Professor of Government at the London School of Economics, and John Stewart, Professor of Local Government at Inlogov, a part of the University of Birmingham. These gentlemen are two of the foremost authorities on such matters. The article commences by saying that:


    "The Local Government Act 2000 is a piece of bad legislation. It is a classic example of central prescription based on no real evidence".

It then concludes by saying:


    "How much better it would have been for the Government to have allowed innovation and not assumed it knew the form the innovation should take. The experience so far suggests the centre does not know best".

That sentiment is echoed by councils and councillors up and down the country.

On the subject of our present debate, the authors state that:


    "Generally the consequence could be to drive decision making away from the public arena of the cabinet to the privacy of the individual decision maker, sometimes after private discussions by the cabinet".

I shall not embarrass the Government by continuing to quote from that article. However, once again, it is worth everyone's time to read it.

Having made much of the need to break down obsessive and unnecessary secrecy in government, which includes local government, the Government are hoist by their own petard. As the Motion tabled in the name of the noble Baroness, Lady Hamwee, makes clear, the draft regulations before us are almost as full of holes as Gruyere cheese. Our problem lies in how best to tackle this difficulty. However appropriate may be the Motion brought forward by the noble Baroness--I do not quarrel with its detail--if it were passed, all that it would represent is an opinion of this House. The draft regulations, with all their flaws, would in any event come into force. The Government need not do anything else. Political reality, given the imminence of a possible general election, suggests to me that this is what will happen. That is the reason why I ask the House to reject the Motion in the name of the noble Baroness.

On the other hand, if the House supports my Motion for an humble Address praying against the draft order, and it succeeds, then we shall have the certainty that the Government will be obliged to bring forward revised orders and thus we shall have created an opportunity for improvement.

The Minister may well try to argue that there is no time to allow this to be done. I do not accept that argument. It would not take very long for suitable revisions to be made. If such revisions were published

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and a revised order then laid before the House, local government would do what it has always done--and, indeed, what it is doing at present. It would try to work within the draft regulations, on the blithe assumption that they would be approved, which would almost certainly be the case. Indeed, that is happening already. If one visits local authorities up and down the land, they have the draft regulations and are looking at how they need to alter their procedures in order to comply. Even if the new draft regulations had not been approved, local authorities across the country would do their best--as they always have done--to work within the intentions of Parliament.

I accept that the Minister could withdraw his draft order, although I believe that he would have some difficulty with that as regards Members of his own party in another place. However, if he were to do so, then I would not need to press my Motion for an humble Address. In the event that he does not, I shall find it necessary to press my Motion to a vote.

Lord Bowness: My Lords, I had the privilege of chairing the pre-legislative Joint Committee which examined the draft local government Bill from which the Local Government Bill sprang, which in turn gave birth to these regulations. In that report--from which there were no dissenters--we stated in an early paragraph that we considered that the objectives of the Bill, to promote efficiency, transparency and accountability, were laudable. As a committee, we saw merit in the inclusion of a clause in the Bill to state this purpose.

In its response, the Government declined to include such a clause, stating that they had set out the objectives very clearly in the Explanatory Notes to the Bill. Sadly--and I genuinely mean sadly--I feel that that has not come through in the regulations before your Lordships' House today.

I am not one of those who is implacably opposed to the notion of cabinet government in local government. Nor do I oppose the ability of a cabinet to meet in private and receive advice within the formal structure of the local authority, provided that decisions are made openly and the basis of those decisions is made clear. In this regard, we seem to be making the question of whether or not decisions should be made in public extraordinarily complicated, rather than relying on the simple exemptions set out in regulation 21, which have formed the basis of similar judgments for local government in the past.

For me, the issues which cause problems with the regulations relate to the definition and description of documents that can be available for inspection. If a decision is made on the basis of advice contained in a document, and that document can be excluded from public scrutiny by virtue of being labelled a draft, there is a clear opportunity for the inventive to circumvent the system.

Indeed, you did not need to be inventive under the old provisions of local government. When I was in local government, I have done precisely that. The difference was, of course, that the decision was not

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made at that time by the body considering the draft report; the decision had to be made in public on the basis of final reports. There is a clear difference between a draft which is under consideration and upon which no decisions have yet been based and a draft which has been acted upon. In the latter case, there ought to be no exemptions at all. Whether authorities should take decisions on the strength of draft reports is another question.

I also read the regulations to say that they exempt from publication advice from political advisers. That is understandable. But if the executive decision, or the individual executive decision, is not supported by any other advice, should it not then become public? The recording provisions require details of rejected alternatives to be set out. So there clearly could be a situation where officers' advice is rejected, their report is published, but, if the decision had been taken on the strength of political advice, there would be no published report to support that decision. Were there regulations to ensure that this was not the case, I doubt if any decisions would then be taken on party political advice alone.

On these matters alone, I would ask the Minister to think again and to redefine these regulations. With great regret, I have to say that I do not believe that the regulations as drafted will achieve the transparency we all sought to achieve in a new, invigorated system of local government.


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