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18 Nov 2008 : Column 1093
Thirdly, I know that there is concern about the precedent that the dehybridity provision may have in terms of the powers and prerogatives of your Lordships’ House. Let me address that issue directly. Provisions of a dehybridising nature are not uncommon for secondary legislation dealing with governance issues of the kind that we are considering here. The Delegated Powers and Regulatory Reform Committee specifically says as much in its report on the Bill, when it concludes that the provisions are “not unusual”. The committee goes on to say:
“We draw the disapplication to the attention of the House so the House may satisfy itself that the alternative consultation procedures are an adequate alternative”.
I have dealt with that point at some length and I hope that the House will agree that the alternative consultation procedures are adequate.
The precedents for the dehybridity provision are recent and relevant. They include the Local Government and Public Involvement in Health Act 2007 covering orders to establish new unitary councils, the Housing and Regeneration Act 2008 in respect of orders designating areas as suitable for development, and the Local Government Act 1992 in respect of orders to change local authority boundaries and establish new authorities. Those provisions are directly comparable with those that I am proposing to your Lordships’ House now.
In respect of the 2007 and 2008 precedents that I have cited, neither was objected to by the Delegated Powers and Regulatory Reform Committee. The committee did not exist in 1992 to comment on those proposals, but in respect of the 2007 precedent, the Local Government and Public Involvement in Health Act 2007, the committee reported in precisely the same way as it reported on the provisions in this Bill. It did not regard the provisions as inappropriate but said:
“We draw the disapplication to the attention of the House so that the House may satisfy itself that the alternative consultation procedure is adequate”.
Having looked at the Hansard record of the debates both on the Housing and Regeneration Act 2008 and on the Local Government and Public Involvement in Health Act 2007, I can tell noble Lords that there was no objection from either of the parties opposite to those proposals when they came forward in almost exactly the same form as the proposals have come forward in respect of this Bill. Therefore, the dehybridisation provisions in this Bill have good precedents and go alongside robust local and national consultation procedures, which we believe meet the points raised by the Delegated Powers and Regulatory Reform Committee.
Let me move to my fourth point, which is about why, in this context, we believe that the provisions in Amendment No. 167 are so necessary. After all the consultation that I have set out, which, as I said, could lead to two years of consideration, if an order was ruled hybrid and petitioned against, perhaps by just one interested party, that would extend the length of time needed to approve the order by as much as, on the precedents that we have studied, six months. That would not only substantially delay changes to governance arrangements that enjoyed widespread support locally and had undergone the thorough consultation process that I have just described but would also add considerably
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This would be an especially perverse outcome, as I know that the noble Lord, Lord Bradshaw, and my noble friends wish integrated transport schemes to come forward in appropriate circumstances. They would not, I hope, wish to see a further—and I would argue unnecessary—duplication and complication of consultation and decision-making procedures to dissuade authorities from coming forward with the very proposals that we are seeking to promote in the first place. For all these reasons, I venture to suggest that the proposal is sensible, proportionate and necessary if we seriously want to see effective integrated transport authorities established in our major urban areas.
Moved, That the House do agree with the Commons in their Amendments Nos. 159 to 162.—(Lord Adonis.)
Lord Rosser: My Lords, I will speak to my Amendment No. 163B. I welcome the moves that the Government have taken to clarify local authority rights to determine the powers that are available to any non-elected members that are co-opted on to the new integrated transport authorities following local reviews. That is a change since the Bill left this House.
It is absolutely right that the power should lie with the reformed ITAs to determine whether non-elected members have a voting role to play on their ITAs and what that role should be. However, there is a possibility that the powers given to the reformed integrated transport authorities under the Commons amendments before us today could, in certain limited circumstances, be abused. This issue was discussed at some length in the other place, but I am not sure that the significance of the arguments was fully taken on board.
I tabled my amendment because I believe that only those integrated transport authority members elected by their constituent councils can properly decide what the powers of non-elected members should be. This is in contrast with the Commons amendment, which requires that the voting members of an integrated transport authority are those that should determine the rights of non-elected members.
If a political group came to the conclusion that it was likely to lose power on an integrated transport authority, it might be tempted ahead of an election to ensure that it had politically sympathetic non-elected members in place and then to confer full voting rights on those non-elected members to keep it in power after the election, given that the number of non-elected members can be just below 50 per cent of the ITA membership. The voting rights conferred could include the right to determine future voting rights of those same non-elected members. That would surely be a negation of local democracy. The purpose of this amendment is to prevent that from happening by ensuring that the members appointed by the constituent councils can determine at any time the voting rights of the non-elected members.
If the Minister cannot accept the amendment, I hope that he will be able to give a clear assurance that he will use secondary legislation to prevent the rights
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Lord Bradshaw: My Lords, I will speak to two amendments in the group, one of which was just spoken to by the noble Lord, Lord Rosser. First, I ask the Minister to give us a clear statement on what is meant by “political balance”. Does it mean that the ITA should reflect the votes given for each party in proportion, or does it mean the political balance in each council? The two things are quite different. Secondly, is it proposed to issue any guidance to ITAs on the sort of people whom they should seek to be non-elected ITA members? Thirdly, will he give thought to creating safeguards against an outgoing administration who know that they will not win an election packing the ITA with their friends and, as it were, lumbering the incoming administration with a group of people who will not work with them?
Amendment No. 167 is on hybridisation, which is a complicated subject. The Minister emphasised the delay that would be occasioned by coming to the Chairman of Committees, who would rule whether the governance order was hybrid. Then this House would proceed quickly through hearing an aggrieved party; it might be an authority that does not want to be part of the ITA. When such a party has the opportunity of coming to Parliament, the House of Lords will convene its Hybrid Instruments Committee. The party has to have sufficient standing; it has to be someone who is protesting not just for old times’ sake but from a point of proper locus standi.
I take the Minister back to the passage of the West Northamptonshire Development Corporation (Area and Constitution) Order 2004, which I am certain is not at his fingertips. It was dealt with rapidly in this House. Five groups of petitioners were found to have standing, including a local authority, the Campaign to Protect Rural England, a group of individuals and two campaign groups. However, the report of the Select Committee was published two weeks after the hearings, so there was no delay in this House.
Lord Adonis: My Lords, it may surprise the noble Lord to know that I have that precedent here and I do not believe that it supports his case at all. The West Northamptonshire Development Corporation (Area and Constitution) Order 2004 was laid before Parliament on 13 May 2004. The order was not referred to a Select Committee until 7 September because of the processes that had to be gone through. The committee began its consideration on 25 October. It sat for seven days, visited Northamptonshire on 3 November, announced its decision on 4 November and published its recommendations on 17 November. By my calculations, the time between the order being laid and the final process having been gone through is precisely six months and four days, which supports the point that I made earlier. He is referring simply to the time for which the committee itself sat, but that is only a small
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Lord Bradshaw: My Lords, I still believe that what the Minister is proposing is a negation of the proper democratic rights of the people of this country to come to the House of Lords and to present the case that they may have against an order. The Minister will know—and he will probably gain considerable experience of the way in which affirmative orders are dealt with in this place—that there is usually no way that such orders ever get voted against. This procedure would allow people to have their say. Therefore, I would defend it as being superior to the affirmative procedure, which no doubt government officials would like to put in place because they like nothing better than to have everything organised. Occasionally, the interests of democracy are best served by allowing the people to approach Parliament and to have their say.
Lord Hanningfield: My Lords, I am slightly confused by the last part of this debate. Let me return to the amendment put forward by the noble Lord, Lord Rosser. I have been in local government for a long time and I know that there can be gerrymandering before elections. It is important that the democratic results of an election are reflected in the membership of ITAs, so I share some of the concerns expressed by the noble Lords, Lord Rosser and Lord Bradshaw. I know that this will be referred to in secondary legislation, so I hope that the Minister can give us some reassurance on that point. On hybridisation, I have a lot of sympathy for what the noble Lord, Lord Bradshaw, was saying, but I have become more confused about it as a result of the timescales that the Minister has put forward and the delays that this might cause. I, too, support the democratic process through which people have a right to present their case to us, but perhaps the Minister might clarify how he can help this situation.
Lord Adonis: My Lords, first I will deal with the fears raised by my noble friend Lord Rosser about the gerrymandering of the membership of an ITA by means of the granting of voting rights on an inappropriate basis to non-elected members. The Government moved Amendment No. 166 to ensure that the political balance rules that apply under the Local Government and Housing Act 1989 cannot be amended or disapplied by supplementary provision in an order under Part 5. Section 15 of the Local Government and Housing Act 1989 sets out the principles by which appointments to bodies such as ITAs are to be governed. Among other things, the effect of this is that when political composition of the representative councils on a relevant local authority body changes, for example at a local election, the duty on those authorities is to review the membership as soon as is practicable thereafter to ensure that the principles of political balance are correctly maintained.
In addition, Clause 89 allows the Secretary of State to issue guidance on, among other things, the carrying out of governance reviews and the membership and
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These include, first, that where persons other than elected members have been appointed to an ITA, the elected members of that ITA should review periodically whether and on what issues the non-elected members are entitled to vote. This would apply most obviously where there have been changes to the elected membership of an ITA after local council elections. Secondly, voting rights for non-elected members can be withdrawn in appropriate circumstances as well as granted. Thirdly, any limitations on the right of appointed members of an ITA to vote and the circumstances in which the entitlement to vote might come to an end should be clearly set out in any resolution giving them an entitlement to vote.
In response to my noble friend Lord Rosser, I stress that the elected members of an ITA can revisit an earlier decision of theirs to grant voting rights to one or more non-elected members. That is clearly supported by Section 12 of the Interpretation Act 1978, which makes it clear in relation to powers conferred on bodies through legislation that,
- “it is implied, unless the contrary intention appears, that the power may be exercised ... from time to time as occasion requires”.
The clear implication is that the power for an ITA itself to confer voting rights on non-elected members is not a one-off power that, once exercised, cannot be amended or reversed. I think that meets my noble friend’s concerns on the status of non-elected members and any voting rights which may be conferred on them.
In response to the argument of the noble Lord, Lord Bradshaw, on the hybridity procedures, I believe I set out the fullest possible explanation about why we regard these proposals as necessary. The noble Lord, Lord Hanningfield, wished to be satisfied that there were good precedents for what we are doing and that we had adequate processes of consultation in place. I can reassure him on both points. The Bill already provides that there should be detailed scrutiny, both at local and national level, before any orders are made in respect of an ITA. We shall be issuing guidance on the type of consultation that will be required. The Secretary of State will have full regard to the quality and outcome of a local consultation before making any orders at national level and, of course, if proper consultation and reasonable decision-making are not observed, either at local or national level, proposals and draft orders can be subject to judicial review. That is an elaborate and very thorough process of consultation, which I believe meets the full, legitimate expectations that one can have of the decision-making process set out by the noble Lord, Lord Bradshaw.
On the precedents, the noble Lord, Lord Bradshaw, did not answer the points I made. There are clear precedents for this action, not only in the recent past but in the very recent past, in the Local Government and Public Involvement in Health Act 2007, in the Housing and Regeneration Act 2008, both of which
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Not only are those precedents but they are precedents of proposals which were not opposed by either of the other parties. There is a good and, to my mind, sufficient reason for bringing this proposal to the House: we do not regard it as reasonable that, over and above the extensive consultation requirements before orders in respect of an ITA can be made at national and local level, there should be a further process which can be gone through in this House. That would only duplicate previous consultation processes, delay the decision-making process and, crucially, make it less likely that proposals in respect of ITAs would come forward in the first place, which is the very purpose that this Bill seeks to serve and which, I believe, has widespread support across the House.
On Question, Motion agreed to.
Amendment No. 163Lord Adonis: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 163.
Moved, That the House do agree with the Commons in their Amendment No. 163.—(Lord Adonis.)
[Amendments Nos. 163A and 163B not moved.]
On Question, Motion agreed to.
Amendments Nos. 164 TO 166Lord Adonis: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 164 to 166.
Moved accordingly, and, on Question, Motion agreed to.
Amendment No. 167167: Clause 87, page 74, line 6, at end insert—
“(3) If, apart from this subsection, an instrument containing an order under this Chapter would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it shall proceed in that House as if it were not a hybrid instrument.”
Lord Adonis: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 167.
Moved, That the House do agree with the Commons in their Amendment No. 167.—(Lord Adonis.)
Lord Bradshaw moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 167, leave out “agree” and insert “disagree”.
The noble Lord said: My Lords, I have spoken to this amendment with Amendment No. 159. I believe
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On Question, Whether the said amendment (No. 167A) shall be agreed to?
Their Lordships divided: Contents, 43; Not-Contents, 87.
Alderdice, L.
Astor, V.
Barker, B.
Bradshaw, L.
Bridgeman, V.
Burnett, L.
Byford, B.
Craigavon, V.
Dholakia, L.
Dixon-Smith, L.
Faulkner of Worcester, L.
Garel-Jones, L.
Goodlad, L.
Greaves, L.
Hamwee, B.
Harris of Richmond, B.
Hooson, L.
Hunt of Wirral, L.
Kingsland, L.
Knight of Collingtree, B.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
Lyell, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Miller of Chilthorne Domer, B.
Montrose, D.
Norton of Louth, L.
Roberts of Llandudno, L.
Roper, L.
Selborne, E.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Teverson, L. [Teller]
Tope, L.
Tyler, L.
Waddington, L.
Wallace of Saltaire, L.
Walpole, L.
Watson of Richmond, L.
Williams of Crosby, B.
Adams of Craigielea, B.
Adonis, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bernstein of Craigweil, L.
Bew, L.
Bhatia, L.
Bilston, L.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Corbett of Castle Vale, L.
Corston, B.
Cox, B.
Crawley, B.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Golding, B.
Gordon of Strathblane, L.
Grantchester, L.
Grocott, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haworth, L.
Henig, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
Kirkhill, L.
Lea of Crondall, L.
Leitch, L.
Lofthouse of Pontefract, L.
McDonagh, B.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
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Maxton, L.
Moonie, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Morris of Yardley, B.
O'Neill of Clackmannan, L.
Patel, L.
Patel of Bradford, L.
Prosser, B.
Quin, B.
Radice, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Simon, V.
Smith of Finsbury, L.
Smith of Leigh, L.
Snape, L.
Soley, L.
Symons of Vernham Dean, B.
Thornton, B.
Tunnicliffe, L.
Turner of Camden, B.
Whitaker, B.
Whitty, L.
Resolved in the negative, and amendment disagreed to accordingly.
On Question, Motion agreed to.
9.05 pm
AMENDMENT NO. 168Lord Adonis: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 168.
168: Clause 104, page 81, line 38, at end insert—
“(1A) For subsection (1) substitute—
“(1A) Where the charging authority or any of the charging authorities are—
(a) a local traffic authority for an area in England, or
(b) an Integrated Transport Authority,
that authority or those authorities (acting alone or jointly) must consult such local persons, and such representatives of local persons, as they consider appropriate about the charging scheme.
“local persons” means any persons who are likely to be affected by, or interested in, the making of the scheme;
“representatives” means any persons who appear to the charging authority or charging authorities to be representative of local persons.
(1C) In any other case, the charging authority or the charging authorities (acting jointly) may, at any time before an order making, varying or revoking a charging scheme under this Part is made, consult such persons as they consider appropriate about the charging scheme, variation or revocation.”.”
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