Thr first Lords drama of the new Parliament took place this afternoon. And I missed it as I was chairing a seminar away from the House (no expense allowance for me today, then!).
The issue was whether the Coalition Government’s Local Government Bill should be referred to the Examiners of Petitions for Private Bills and the Government lost the vote by 154 to 150. As a result, the Bill did not have its planned Second Reading today.
The Bill itself is a spiteful measure designed to prevent Exeter and Norwich from becoming unitary local authorities as agreed by the last Parliament. The Coalition is determined to do this despite unitary status being the wish of the overwhelming majority of the residents of the two cities concerned and regardless of the extra costs associated with stopping the reorganisation in mid-flow.
The motion was moved by Lord Alan Howarth and the reason it was successful was that many Crossbench peers accepted his argument that because the Bill singles out Exeter and Norwich the Bill should follow the (more convoluted) procedure that governs any legislation that appears to apply to one group of individuals differently from other similar individuals.
These are complex arguments that Lord Alan Howarth summarised as follows:
“My Lords, I declare an interest as a resident of Norwich. I want to put it to the House that there is a strong prima facie case that the Local Government Bill is hybrid, and that it should therefore be referred to the Examiners to determine whether that is so. As soon as they saw it, a number of experienced colleagues said surely this Bill is hybrid.
The noble Lord the Leader of the House just told us the definition of hybrid Bills in the Companion , but perhaps it would help the House if I quoted the words again. The definition states that they are,
“public bills which are considered to affect specific private or local interests, in a manner different from the private or local interests of other persons or bodies of the same class, thus attracting the provisions of the Standing Orders applicable to private business”.
In the next paragraph, the Companion goes on to say:
“It is open to any member who considers that a public bill may be hybrid … to move that the bill be referred to the Examiners. Such a motion is usually moved immediately before second reading”.
These semi-mythological creatures, the Examiners, are the Clerks of Private Bills in both Houses.
I recognise that hybridity is not for amateurs. These are deep waters and a prudent politician does not even get into his bathing trunks, let alone plunge in. But I fear that, unlike my right honourable friend the former Prime Minister, prudence has never sufficiently been my watchword.
I regret that I was unable to give the House more notice of this Motion. The difficulty has been that the Government have advanced this Bill with extraordinary speed. We saw the Bill only on the eve of the long bank holiday weekend. That was followed by a day when the House was not sitting, so I was not able to consult the Clerk of Public and Private Bills until the following day, last Wednesday. I then had to discuss with Norwich and Exeter City Councils whether they wished to seek the advice of parliamentary agents and counsel. The lawyers then worked at top speed, with e-mails flying around all over the weekend and late at night. Counsel’s formal opinion and a letter of advice from parliamentary agents were delivered yesterday, and in the light of them I tabled the Motion on the Order Paper for today. We could not have got to this point more quickly, and I have had no desire to wrong-foot the House.
In any case, while the concept of hybridity may be obscure and elusive, the issue before us now is simple. Do we consider that there are sufficient reasonable arguments that the Bill is hybrid to warrant referring it to the Examiners?
Plainly, the Government have sought to draft this Bill so that it is not hybrid. However, they are navigating tricky waters, and the House ought to satisfy itself on this point, since there are major implications for how we proceed depending on it. If the Bill were judged by the Examiners to be hybrid, after Second Reading, as I understand it, the Bill would go to a Select Committee which would receive and examine petitions and question witnesses and then report to the House before following the usual course of a Public Bill.
It seems clear to me that the Bill is hybrid on this ground most obviously, although there are others. Norwich and Exeter are treated differently from other local authorities under this legislation for the following reason. Since the Bill, significantly, does not repeal Section 1 of the Local Government and Public Involvement in Health Act 2007—the Act that permits the Secretary of State to invite a local authority to make a proposal for reorganisation into single-tier government—the Bill contemplates that authorities will in the future, after the Bill has become law, have the opportunity to make such proposals. However, the Bill specifies that Norwich and Exeter—just those two named authorities—are not to become unitary authorities. It seems plain as a pikestaff that the local interests of Norwich and Exeter are especially prejudiced for the future. In the language of the Companion , Norwich and Exeter are affected,
“in a manner different from the … local interests of other … bodies of the same class”—
other councils that may wish to propose unitary reorganisations.
However, I speak merely as a politician and not as a lawyer. Far more significant are the views of learned counsel. I will not attempt to paraphrase either the lengthy opinion of Mr Peter Oldham QC or the shorter but densely argued advice of Mr Alastair Lewis of Sharpe Pritchard, parliamentary agents. Both those documents came in after the Clerk of Public and Private Bills had given his opinion that this particular Bill was not hybrid. I will just say that Mr Oldham concludes his opinion with the words:
“In my view, there are proper and reasonable arguments that this Bill is hybrid”.
Mr Lewis says he believes that a further line of argument that he has put forward,
“represents a strong argument in favour of saying that the Bill is hybrid”.
What I am not proposing to the House in this Motion is that the House should decide here and now that the Bill is hybrid. Nor is this a debate about the rights and wrongs of the Government’s policy on Norwich and Exeter—that is for Second Reading. What I am proposing is that the House should recognise that there are various views about whether this Bill is hybrid, all put forward in good faith by serious people—professionals who are competent to make such a case—and agree that all these arguments should be considered carefully and expertly by the Examiners so that they can determine whether the Bill is hybrid in accordance with the procedure that Parliament has provided.
It has long been established that there should not be a high hurdle for referral to the Examiners. Mr Lewis notes that the Companion says at paragraph 8.214 that the threshold for the hybridity test is whether there is a prima facie case. That means, as he puts it, that,
“if there is any doubt, the Bill should be referred to the Examiners”.
In that, he is following rulings of the Speaker in another place. The Speaker ruled on the Local Government Bill in the 1962-63 Session, at HC (1962-63) 669 col. 45:
“I accept the true position to be this, that if it be possible for the view to be taken that this Bill is a Hybrid Bill, it ought to go to the examiners. There must not be a doubt about it”.—[Official Report, Commons, 10/12/62, col. 45.]
Again, in the 1966-67 Session, the Speaker, at HC (1966-67) 732 col. 1221, referred to the “duty” to refer a Bill to the Examiners when the Bill was prima facie hybrid. The House will, I hope, acknowledge that, given the advice that I have quoted from two eminent experts, the threshold for referral has beyond doubt been crossed.
I hope that the Government will not oppose this Motion for political reasons. I hope that they will not seek to take advantage of the new-found situation in this House, since the formation of the coalition, in which they can use their majority simply to crush propositions that are inconvenient to them, rather than, in the tradition that makes this House so valuable, respect the arguments and respect the rights of minorities. Your Lordships’ House is not a House where machine politics should operate. It would reflect poorly on us and it would certainly cause bad feeling outside if the House were to dismiss without fair and proper consideration the arguments put forward in these opinions.
In the matter that we are dealing with now, the responsibilities of us all are as parliamentarians. We are dealing not with the merits of the Government’s policy but with the status of the Bill and with the responsibility of Parliament to ensure that it is scrutinised according to the correct procedure. It may be that the Examiners will, after due consideration, endorse the Government’s view of the Bill’s status, but we owe it to those whose lives and fortunes will be affected by the Bill to ensure that we do indeed follow the correct procedure. I beg to move.”
Had I been there the Government would have been defeated by five.