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A number of noble Lords referred to the cancelling of elections, including the noble Lords, Lord Tope and Lord Rennard. It is not unprecedented. The order in March 2008 that established a unitary Bedford similarly cancelled elections there in May 2008. Nor is it correct that the Government have clear legal advice that the order is flawed. There is legal advice about the prospect of judicial review proceedings, but it would be wrong for the House to second-guess the courts. What sort of process would it be for Parliament if we did not proceed with issues because a judicial review was under way?

Earl Ferrers: I thought that the advice of the Permanent Secretary to his Minister was that the likelihood of success if the matter went to judicial review was considerable.

Lord McKenzie of Luton: That may be the Permanent Secretary's view, but should having that view cause us to stop a parliamentary process? This is a democratic process under way in this Chamber and in the other place.

Baroness Butler-Sloss: Since the Minister has raised the question of what might happen between a judge and Parliament, I shall ask a question. If the House passes the orders and the judge says that the applicants for judicial review are successful, that will set the orders aside, will it not? Then you will be within a few days of the non-existent local government elections. It is nothing to do with what the judge says, but any litigants-even the Government-need to listen if they are given advice that the real prospect is that they will not succeed.

Lord McKenzie of Luton: Yes, of course the Government and the Secretary of State have listened to that. The noble and learned Baroness is right in relation to the elections; she would know better than I would that if the judicial review were successful, the likely consequence is that the orders would be quashed. In relation to the elections that did not take place, the councillors would cease to hold office as a result and vacancies would have to be filled in the normal course of events.

Lord Pannick: Given the doubts about the legality of the Government's conduct, have they sought advice from the Attorney-General about it?

Lord McKenzie of Luton: My Lords, of course the Government and the Secretary of State have taken appropriate legal advice. The question of the Government acting unlawfully is not one that we accept.

I was trying to deal with the point made by the noble Lord, Lord MacGregor, and others, including the noble Baroness, Lady Miller, about not looking at such matters without taking account of what happens in the rest of the county. I agree. Clearly, there will be implications for local government in the remaining two-tier areas of the county. There should be no direct impact on the remaining district councils as their structures and responsibilities will not change, whereas there will be on the county council administration as its areas of responsibility will be greatly reduced.

22 Mar 2010 : Column 828

However, provided that the county council and city council in each case co-operate in the provision of upper-tier services across the county, there should be no negative impact on the standard of those services. Indeed, that presents the opportunity of a win-win situation.

A number of noble Lords referred to the issue of directions and the experience of the department. The department has been in existence for only about four years. I stress that, although it is not common, directions across government departments have happened under previous Administrations-there is nothing unique about this.

In relation to the advice that the Government have received, the Secretary of State considers that on balance there is a reasonable prospect of defending the judicial review brought by Devon and Norfolk county councils.

A number of issues were raised around affordability. There is a danger that the term is used more generally or widely than the criteria suggest, because this is about transitional costs and the period over which they can be repaid.

The noble Lord, Lord Burnett, talked about costs and the implications of proceeding with these matters. It is estimated that implementing a unitary Exeter and Norwich will cost £400,000 over the transitional period. However, we should remember that they will save £6.5 million every year. That is the key reason for our decision to focus on the medium and long term, rather than on short-term administrative implications. The noble Lord asked about consequent hikes in council tax. We have always made it clear that restructuring costs will be met locally, without increasing council tax.

The right reverend Prelate the Bishop of Norwich suggested that the proposals lacked coherence. I welcome his comments highlighting something that is truly important-namely, that the services for the people of the cities and counties are what matter. The unitary proposals will help to improve those services.

The noble Lord, Lord Burnett, said that Total Place is not a good enough reason to allow a unitary Norwich and Exeter. I do not agree, but I do not have time to expand on that. The noble Baroness, Lady Scott, asked why we were not considering issues around Suffolk. The issues are well known, and I will be happy to write to the noble Baroness given time constraints tonight.

The noble Baroness, Lady Shephard, talked about the history of directions. As I said, DCLG has been in existence only since the summer of 2006. The noble Baroness also asked why the Government had legislated to rule the public out of consultations. Our whole approach has been locally driven. The proposals are not imposed by government: they are proposals from councils, which are representative of local people. It is not correct that the Government have legislated to exclude the public. The legislation provides for a consultation with such persons as the Secretary of State considers appropriate. The Government's consultation-this deals with the point raised by the noble Earl, Lord Ferrers-sought views from councils representing local people and stakeholders, made clear

22 Mar 2010 : Column 829

that comments were welcome from anyone and asked councils to bring proposals to the attention of their communities.

I will deal with the point about stakeholders made by the noble Earl, Lord Ferrers. The invitation states that for the purposes of consultation, stakeholders shall include all local authorities, the wider public sector, the police, the health service, learning and skills councils, RDAs, the business community and the voluntary and community sectors.

It is time to close. We believe that the people of Exeter and Norwich, and the people in the surrounding county areas, will be best served by councils working in a partnership of equals between the urban core and the rural hinterland. We adopted an approach of carefully assessing each proposal against the five criteria. We gave careful consideration to the circumstances when there were compelling reasons to depart from the presumption that proposals that met the criteria should be implemented and those that did not should not be implemented. There were compelling reasons to depart. Our vision for these cities is that they should have a strong, independent council that has within its hands all the local levers of power necessary for the economic, social and environmental success of the city: a council that is at the heart of a complex network of council and local service providers, and which is able to drive the economic, social and environmental success not only of the city but of the wider county area. I urge noble Lords to vote for the Motion and oppose the amendment.

8 pm

Lord Tope: My Lords, a little over 10 minutes ago the Minister told us that his troops were leaving. My Chief Whip tells me that our troops are staying, so I am inclined-indeed, I am sorely tempted-to reply at least at equal length to all the points that the Minister has made. However, I shall resist that temptation because it simply would not be fair, and the noble Lord, Lord Bassam, is looking at me particularly crossly for suggesting it.

We have debated this matter for nearly three hours. The points have been very well made and there is no need for me to rehearse them now. I think that all those here who have taken part in and listened to the debate know whether they are for or against these orders. I simply want to make some closing remarks to those who are against, and in most cases strongly against, the orders.

My amendment and that of the noble and learned Baroness, Lady Butler-Sloss, are virtually identical. In fact, they are identical, save for two important points. The noble and learned Baroness's amendment simply regrets the orders that many noble Lords have spent much of the past three hours saying are so wrong. One noble Lord suggested that, if passed, that amendment would delay the Government. It will not delay the Government. That is the whole point-the Government will not take any notice. We have only to look at what happened a week or so ago with the Richmond Park order, when a fatal Motion was lost by seven votes. A non-fatal Motion simply regretting the order was passed by a huge majority and within hours the Government

22 Mar 2010 : Column 830

announced, in a statement that I have here, that they would carry on in exactly the way that they had intended. Does anyone believe that, having got to this stage-having gone through the debate that we have tonight-all of a sudden the Government are going to say, "Oh no, sorry, we'll stop. We'll pause and reconsider"? Of course they will not; they will carry on.

I want to make my other point as strongly as I can. It is often said that the Conservative Opposition-or the opposition party, which for the time being is the Conservative Party-do not vote on fatal Motions. Since the last general election, there have been 13 fatal Motions. Substantial numbers of Conservative Peers have voted for those fatal Motions on eight occasions. I have the details here and shall read them out because I do not mind how long we take. By substantial, I mean 66 Conservative Peers on one occasion, 62 on another, then 38 and 36 and so on. Those are substantial numbers of Conservative Peers who felt able to vote in support of fatal Motions. If Conservative Peers feel so strongly that these orders are wrong, there is no reason why they should not support my amendment tonight. Of course, that applies even more so to the Cross-Bench Peers.

8.02 pm

Division on Lord Tope's amendment.

Contents 54; Not-Contents 118.

Amendment disagreed.


Division No. 1


CONTENTS

Addington, L. [Teller]
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Burnett, L.
Chidgey, L.
Clement-Jones, L.
Cotter, L.
Dholakia, L.
Dykes, L.
Falkland, V.
Falkner of Margravine, B.
Fearn, L.
Garden of Frognal, B.
Greaves, L.
Hamwee, B.
Harris of Richmond, B.
Jones of Cheltenham, L.
Kerr of Kinlochard, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Masham of Ilton, B.
Miller of Chilthorne Domer, B.
Neuberger, B.
Newby, L.
Nicholson of Winterbourne, B.
Oakeshott of Seagrove Bay, L.
Pannick, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Scott of Foscote, L.
Scott of Needham Market, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tyler, L.
Ullswater, V.
Wallace of Saltaire, L.
Walmsley, B.
Williams of Crosby, B.

NOT CONTENTS

Acton, L.
Adams of Craigielea, B.
Ahmed, L.
Anderson of Swansea, L.


22 Mar 2010 : Column 831

Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bilston, L.
Blackstone, B.
Blood, B.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Cohen of Pimlico, B.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
D'Souza, B.
Dubs, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gordon of Strathblane, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Grenfell, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Martin of Springburn, L.
Maxton, L.
Meacher, B.
Mitchell, L.
Montgomery of Alamein, V.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Morris of Yardley, B.
Murphy, B.
Myners, L.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Palmer, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prosser, B.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Snape, L.
Soley, L.
Stevens of Kirkwhelpington, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tunnicliffe, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.

Baroness Butler-Sloss: My Lords, I think noble Lords have heard enough from me and, perhaps, from everyone. I wish to test the opinion of the House.

8.13 pm

Division on Baroness Butler-Sloss's amendment.

Contents 169; Not-Contents 110.

Amendment agreed.



22 Mar 2010 : Column 832

The name of one Member of the House voting in the Contents Lobby was not recorded.


Division No. 2


CONTENTS

Addington, L.
Anelay of St Johns, B.
Arran, E.
Ashcroft, L.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Bates, L.
Bell, L.
Blackwell, L.
Bonham-Carter of Yarnbury, B.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Buscombe, B.
Butler-Sloss, B. [Teller]
Byford, B.
Caithness, E.
Cathcart, E.
Chalker of Wallasey, B.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Craig of Radley, L.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Dear, L.
Deech, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dykes, L.
Eames, L.
Eccles, V.
Eccles of Moulton, B.
Falkland, V.
Falkner of Margravine, B.
Fearn, L.
Feldman, L.
Ferrers, E.
Fookes, B.
Fowler, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Geddes, L.
Glentoran, L.
Goodlad, L.
Goschen, V.
Greaves, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
Hurd of Westwell, L.
James of Blackheath, L.
Jenkin of Roding, L.
Jopling, L.
Kerr of Kinlochard, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Naseby, L.
Neville-Jones, B.
Newby, L.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Northbrook, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Palmer, L.
Palumbo, L.
Pannick, L. [Teller]
Patten, L.
Plumb, L.
Razzall, L.
Reay, L.
Redesdale, L.
Rennard, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rogan, L.
Rotherwick, L.
St. John of Bletso, L.
Sandwich, E.
Scott of Foscote, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.


22 Mar 2010 : Column 833

Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Shutt of Greetland, L.
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Steel of Aikwood, L.
Sterling of Plaistow, L.
Strathclyde, L.
Swinfen, L.
Taylor of Holbeach, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Trimble, L.
Tugendhat, L.
Tyler, L.
Ullswater, V.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.

NOT CONTENTS

Acton, L.
Adams of Craigielea, B.
Ahmed, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bilston, L.
Blackstone, B.
Blood, B.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Cohen of Pimlico, B.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dubs, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gordon of Strathblane, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Martin of Springburn, L.
Maxton, L.
Meacher, B.
Mitchell, L.
Montgomery of Alamein, V.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Morris of Yardley, B.
Murphy, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Paisley of St George's, B.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Snape, L.
Soley, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tunnicliffe, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.


22 Mar 2010 : Column 834

Motion, as amended, agreed.

Exeter and Devon (Structural Changes) Order 2010

Exeter and Devon (Structural Changes) Order 2010
11th Report from the Joint Committee on Statutory Instruments
12th Report from the Merits Committee

Motion to Approve

8.26 pm

Moved By Lord McKenzie of Luton

Amendment to the Motion

Moved by Lord Tope

Lord Tope: I beg to move.

8.26 pm

Division on Lord Tope's amendment.

Contents 53; Not-Contents 110.

Lord Tope's amendment disagreed.


Division No. 3


CONTENTS

Addington, L. [Teller]
Ashdown of Norton-sub-Hamdon, L.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Burnett, L.
Chidgey, L.
Clement-Jones, L.
Cotter, L.
Dholakia, L.
Dykes, L.
Falkland, V.
Falkner of Margravine, B.
Fearn, L.
Garden of Frognal, B.
Greaves, L.
Hamwee, B.
Harris of Richmond, B.
Hylton, L.
Kerr of Kinlochard, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Masham of Ilton, B.
Miller of Chilthorne Domer, B.
Newby, L.
Nicholson of Winterbourne, B.
Oakeshott of Seagrove Bay, L.
Pannick, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
St. John of Bletso, L.
Scott of Foscote, L.
Scott of Needham Market, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.


22 Mar 2010 : Column 835

Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tyler, L.
Walmsley, B.
Williams of Crosby, B.

NOT CONTENTS

Acton, L.
Adams of Craigielea, B.
Ahmed, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bilston, L.
Blackstone, B.
Blood, B.
Boyd of Duncansby, L.
Bradley, L.
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