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Local Government (Scotland) Bill Hl

Volume 387: debated on Tuesday 22 November 1977

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3.59 p.m.

My Lords, on behalf of my noble friend Lord Kirkhill, I beg to move that this Bill be now read a second time. This small Bill is needed to amend and improve certain provisions in the existing local government legislation for Scotland, and to make good minor deficiencies which have appeared. It is concerned primarily with three quite separate matters. They are: first, the power of the Secretary of State to make provision by order for the valuation by formula of property occupied by certain public utilities and other undertakings; second, the postponement for three years of the repeal of the Burgh Police (Scotland) Acts and corresponding local Acts; and, third, a change in the day prescribed for ordinary local government elections in Scotland.

As to the first matter, contained in Clauses 1 to 3, the existing provisions governing arrangements for valuation by formula of the lands and heritages of public utilities and other undertakings are contained in a number of Acts going back nearly 30 years. The Local Government (Scotland) Act 1975 allowed for their replacement by comprehensive order-making powers for dealing with formula variations. When Section 6 of that Act was enacted, it was intended to make it easier for improved formulae to be introduced when the working parties, which are currently examining formula arrangements for certain industries, reported with their recommendations to the Secretary of State. The 1975 Act provisions apply to 10 different types of undertaking. They are rather different from one another, and in the course of discussion and examination by the working parties it became clear that order-making powers ought to be made more flexible to allow the differing circumstances of each undertaking to be provided for. The amendments for which the Bill provides in Clauses 1 to 3 will allow the necessary flexibility of approach.

As to the second matter, the Bill will also postpone the repeal of the Burgh Police Acts and corresponding local statutory provisions. The Burgh Police Acts of 1892, 1903 and 1911 deal with a multiplicity of matters. In its original form the 1892 Act dealt with burgh boundaries; matters concerning town councils; the police force; the regulation, maintenance and cleansing of the streets of the burghs and the buildings in these streets; and a wide range of public health matters. In addition, the Acts deal with a great selection of miscellaneous matters, from the control of activities on the seashore to the provision of public clocks. Some of these matters—for example, in the safety and building fields—have been superseded by modern legislation. On the other hand, many provisions are still in force but are obsolete and unsuited to present-day circumstances.

In 1972 when legislation to reorganise local government in Scotland was imminent a working party on Civic Government was set up with instructions to examine the powers available to local authorities in Scotland for the administration of civic government and to make recommendations. The recommendations were to cover first the transfer of existing regulatory powers to the new regional and district authorities; and secondly in the longer term for the preparation of a complete new civic government code for Scotland as a whole. This was to include the repeal or modification of obsolete provisions and the standardisation of administrative powers. The Local Government (Scotland) Act 1973 accordingly included a provision for all the old Acts to expire at the end of 1979. The working party produced a very full and detailed report in April 1976 and since then consultations have taken place with the local authorities and other interested bodies. Because of the wide range of matters covered however it has now become clear that it will not be possible to prepare legislation of the necessary nature and scope in the remaining time available and it is therefore proposed to defer the date of expiry to the end of 1982.

I turn then to the third matter in the Bill. With effect from 1979 it is expected that there will be a May Day holiday on the first Monday of May in most if not all districts of Scotland. As the Act of 1973 provides for ordinary local government elections in Scotland to be held on the first Tuesday in May some change is needed in order to avoid possible difficulties over the preparations for the elections. It is therefore proposed to amend the 1973 Act to make the date of elections the first Thursday of the month.

The other amendments in this Bill are either of a purely drafting nature or corrections of minor errors in earlier legislation; but I should deal with Clause 4 particularly. The Local Government (Scotland) Act 1975 did not make proper provision regarding superannuation arrangements for the Commissioner for Local Administration in Scotland and his staff. This Bill provides an opportunity to rectify that deficiency and in Clause 4(2) and (3) to validate determinations by the Secretary of State made before the deficiency in the 1975 Act was noticed. As I have said this is a small and simple Bill. I hope I have explained it sufficiently at this stage and I commend it to the House. I beg to move that this Bill be now read a second time.

Moved, That the Bill be now read 2a . —( Lord McCluskey.)

4.5 p.m.

My Lords, we thank the noble and learned Lord, Lord McCluskey, for his explanation of this Bill, which was clear and brief. He confirms that it is a vehicle for a few miscellaneous changes and provisions which are apparently necessary or desirable during this Session. Various points will no doubt be raised at the Committee stage on the different subjects which are touched on in the Bill. Today, I wish to address myself to only one of the subjects, and that is the one which occupies the first three clauses; namely, the valuation of certain property occupied by public bodies. The valuation for rating purposes of such property belonging to or occupied by public bodies in Scotland has always seemed somewhat arbitrary. It has to be decided by the Government. Where monopolies exist, in the kind of operations which nationalised bodies carry out, there are no close comparisons available; nor are there recognised criteria by which these assessments can be made. In the past there has none the less been an attempt to regulate this situation by formulae, and these formula; were designed to be generally accepted as fair—fair, that is, not only among the public bodies themselves but also in relation to private undertakings, and the valuation of them for rating.

We are considering a wide variety of bodies. It is not only the Coal Board and the Gas Corporation, the very large nationalised bodies which immediately occur to us. This Bill also applies to very small undertakings; for example, a single, small harbour in Scotland which may be separately but publicly owned. So the questions I should like to put to the noble and learned Lord at this stage are these: First, have the changes which are proposed in the first three clauses of this Bill been accepted by the Scottish assessors' organisation? Those assessors are the people who are going to have problems in Scotland, and they have an enormous task in trying to be as fair as they can to both domestic ratepayers and industrial and commercial ratepayers. My second question is: Are the public bodies themselves agreed that these proposals are an improvement on the present situation?

There is one other point to which I should like to draw your Lordships' attention, and I am very glad that the noble Lord, Lord Shepherd, is in the House because this arises very much as a result of a matter with which he was concerned nearly three years ago. It is that, in the first place, there is, I am glad to say (because I welcome it), provision for Affirmative Resolutions of both Houses of Parliament when, on this question of valuation, draft orders under subsection (7) of Clause 1 are brought forward by the Secretary of State for Scotland. If private interests are affected by such a draft order, or appear to be affected, then this would make the order hybrid; and there is in this Bill, again, the special accelerated procedure which was devised for the first time in this House nearly three years ago. That procedure gives 28 days only between laying of the draft order and proceeding with it in your Lordships' House. Within that period a Committee relating to private Bills can consider the order, but all that has to be done quickly.

This is of particular interest to us in this House because that procedure was worked out and established early in 1975, when the noble Lord, Lord Shepherd, was Leader of the House, in the context of the then Offshore Petroleum Development (Scotland) Bill. I should mention that the noble and learned Viscount, Lord Dilhorne, played a prominent part in ensuring that at least this period of 28 days was allowed in order to enable private interests who felt that they were being discriminated against in a draft order of a hybrid nature to exercise their traditional right to petition and be heard in Parliament.

This procedure, it seems, is now becoming a stock formula, at least for this House. It was employed in at least one other Bill which has now been enacted, the Industry Act 1975. I am sure that your Lordships would wish to be aware that the solicitude and industrious application of this House nearly three years ago in safeguarding the traditional rights of the individual devised a procedure which, whether one always considers it appropriate in a certain Bill or not, whether the accelerated procedure is necessary or not, none the less is now being accepted and reproduced in subsequent measures. I would draw your Lordships' attention to the fact that that procedure in which some of us were involved early in 1975 is being used yet again in this Bill.

4.13 p.m.

My Lords, I must say that when I first read this Bill I wondered whether it was necessary, but after listening to the noble and learned Lord, Lord McCluskey, I can see that it has administrative advantages. There is no principle in this Bill. Perhaps I might be permitted to deal with one or two points which are basically Committee points but none the less it may possibly help us at that stage if I draw attention to them at the present time.

In Clause 1, I wonder whether in the new Section 6 of the 1975 Act the word "prescribe" is necessary. I say this because it reads as follows:
"The Secretary of State may by order … prescribe … the rateable value …".
I doubt very much whether the Government mean that. What they mean is that he "may prescribe provisions for determining the rateable value". I should have thought it would be much better to state that frankly and to leave out the word "prescribe". I am fairly certain that the Secretary of State does not himself prescribe what the rateable value should be but only the provisions by which it should be determined.

In subsection (5), on page 2, we find pretty wide powers given which are new. Under its provisions, the Secretary of State may
"repeal or amend any enactment so far as that enactment relates to … the valuation of … liability to be rated … of lands and heritages to which the order relates".
I should like to ask the Government to tell us, now or later, how wide that is; because if you can, by order, change any enactment on valuation that is a pretty wide power. I can understand that in certain matters it is desirable, but, as it stands, it looks to me as if it goes much further than is actually required for the purposes of administration. I should be grateful if the noble and learned Lord could look at that and make clear how far this power extends. Going on to subsection (6) in this clause, one finds that an order may be made at the end of the year when it applies from the beginning of the year. That is a form of retroactive legislation. Is that necessary? Is it proper to receive notice of what you are liable for in January at the end of the year, in December?

So far as Clause 2 is concerned, I take it that the subjects covered here are virtually the same as those covered originally by the 1975 Act. There is, as far as I know, nothing else brought in. In page 5, line 21, we read:
"'office premises' has the same meaning as in paragraph 2(1) of this Schedule".
I have been unable to ascertain which Schedule this is. It is not the Schedule to this Bill and it is not the Schedule to the 1975 Bill. In my ignorance, I was unable to find to which Schedule it applied and under which Act. It is important in matters of reference (which are always complicated) to seek to make it as clear as possible.

I think that the only other point I should like to draw to your Lordships' attention is in the Schedule, paragraph 1. I think the figures "201" and "202" should be "301" and "302". I think I am right in that. If that is the case, do we want to leave out that subsection which deals with the making of by-laws? —because that is what it does: it takes out that sub-section which deals with the making of by-laws. Are there any other provisions in which by-laws are made in subsequent enactments; and, if so, where can I find them? I think it is important to make it as clear as possible just how these things operate. I know that these are Committee points; but it might save time to ask the Government these questions now, and if they cannot be answered now, they can be dealt with at Committee stage.

4.17 p.m.

My Lords, I was astonished on reading this Bill to discover that so many amendments were evidently required to Acts passed so recently. It rather shook my belief in the high efficiency of the Scottish Office. Perhaps there is an explanation for it. There is one thing I should like the noble and learned Lord to tell us more about. That is the provisions in regard to the Commissioner for Local Government. Why does he, particularly, come in for a reward on this occasion? Is he not someone appointed for only a short period of time, or is he a regular official or civil servant or what? Could the noble and learned Lord expand a little on the reason and purpose and what precedents there are for such payments?

4.18 p.m.

My Lords, may I ask one question? I should like to reinforce one remark that my noble friend Lord Campbell of Croy made. In the first three clauses of this Bill we are talking about an imposition of rateable value and rates to be levied on public authorities. He emphasised that this has to be fair not only as between the public authorities but as between the public authorities and the ratepayers at large. I have always found it very difficult to satisfy myself that that is so. I think that this would be an opportunity when we get to the Committee stage for the noble and learned Lord—or the noble Lord, Lord Kirkhill, if he is going to be here on this occasion—to show how this has developed, what the relationship has been over the years, between the rates paid by the public authorities and the business community as a whole, with which they are comparable.

It seems to me that it is very important to bear in mind that the amount of property held by public authorities must have increased quite considerably over the years, and probably more in relation to the totality than that of business premises. One would expect, therefore, that the rates chargeable would have reflected this proportion. It is a matter of great importance. One does recognise that the more public authorities are charged the higher the prices will be. On the other hand, if they are undercharged, then a greater burden will fall on the private sector, and that will not be in such a good position to invest and develop as it would have been had the rates been really proportionate. I know that this is a very difficult matter indeed; but I ask the noble and learned Lord to take this on board and to do his best to satisfy the Committee when we come to the Committee stage.

4.20 p.m.

My Lords, a number of different points have been raised. I am particularly indebted to the noble Lord, Lord Campbell of Croy, and the noble Earl, Lord Selkirk, for having given me notice of the points which they wish to be answered this afternoon. I will also try to deal with the other points. Regarding the views of the assessors and, in particular, Lord Campbell of Croy's question: Have the changes been accepted by the Scottish assessors' organisation?—I have to say that they have neither been accepted nor rejected. These clauses deal only with matters which in the first place are the concern of the Assessor of Public Undertakings, and not of the local assessors. The Assessor of Public Undertakings is content with what is proposed. It may well be that the local assessor's interests could be affected at a stage when the order itself comes to be prepared or to be made. At that stage noble Lords will see the new Section 6(4) has some relevance, because that requires the Secretary of State to consult with certain associations of local authorities, and he may consult with others. He may therefore consult with the assessors. Obviously, one would think he would be wise to do that; but even if he chose not to do so, they can make their views known through the Convention of Scottish Local Authorities with whom he is obliged to consult. Your Lordships may feel that deals sufficiently with that point at this stage.

So far as public undertakings or utilities are concerned, they are in the same position; they have not commented on the Bill's new provisions relating to formula valuation. These provisions are of a technical character. They are designed to ensure that when the working parties make recommendations, these can be implemented. The working parties include representatives of the nationalised industries as well as others; the measure of liability itself is not affected by this Bill. No doubt the working parties will now take note of the published Bill, and the nationalised industries, if they want, may make such representations as are appropriate. We would not expect them to do so on this particular point in the Bill.

In regard to hybridity, your Lordships may be interested to see that the procedure to which the noble Lord, Lord Campbell of Croy, drew attention is referred to on page 151 of the red Companion. It is fully explained there. He mentioned the Offshore Petroleum Development (Scotland) Act 1975 and the Industry Act. The same procedure was adopted in this very field in the Valuation and Rating (Exempted Classes) (Scotland) Act 1976. He has sufficiently explained the matter and I hope that ultimately it will meet with your Lordships' approval in this particular Bill.

The noble Earl, Lord Selkirk, said that there was no principle to the Bill. I hope that he is not suggesting it is an unprincipled Bill. It may well be that there is no theme—a word I prefer to use in the circumstances—to the Bill. On the first matter he raised, his fears are well-founded. The word "prescribe" is intended to have the weight that he feared it might have. Perhaps that matter may be gone into in Committee. I do not want to suggest to the noble Earl that he is misreading the Bill; he certainly is not. Regarding Section 6(5), which is contained in Clause 1 of this Bill, the intention is that the order may repeal or amend enactments that have been passed. There is this limitation: it may do that only in relation to heritages to which the clause applies. The clause applies to heritages specified in Schedule 1 to the 1975 Act, as amended by this Bill.

I offer one example to the House: if a new formula for Post Office telecommunications were agreed, it might be convenient to repeal Section 53 of the Post Office Act 1969, which provides the present formula. That would be done by the repealing order amending it rather than by coming back to the House. As the noble Lord, Lord Campbell of Croy, pointed out, the House always has the safeguard contained in the new Section 6(7) which appears at page 2 of this Bill:
"(7) An order under this section shall not be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament".

My Lords, may I ask a question? That means that almost anything in the new Section 6 can be amended or repealed by order. The noble and learned Lord will agree that this is a very wide power.

My Lords, I agree it is a very wide power. Provided it relates to the subject-matter contained in the amended Schedule, Schedule 1 to the 1975 Act, then the order may provide for the repeal or amendment of previous enactments.

On the third point, retrospection, the noble Earl will find that that is dealt with in the new Section 6(6). This appears at page 2 of the Bill, at line 37:
"(6) An order under this section may provide that the order shall have effect as from the beginning of the year in which the order is made".
This is corresponding to the ordinary rule now to be found in Section 2(2) of the 1975 Act in relation to ordinary, orthodox valuations by local assessors where they can be back-dated to the beginning of the year. The advantage here is it allows full consultation with local authorities and the undertakings or bodies to proceed in the light of the most up-to-date information.

The next point which was raised was in relation to Clause 2. The subjects which are set out here and fully described are the same as are contained in the first four paragraphs of Schedule 1 to the 1975 Act. The noble Earl referred to a difficulty which I think I can settle for him. He referred to page 5, line 21, of the Bill:
"'office premises' has the same meaning as in paragraph 2(1) of this Schedule".
Your Lordships have to bear in mind that "this Schedule" in effect has become Schedule 1 to the 1975 Act. That is only half the answer. The other half is this: if you refer to page 4, line 3, of the Bill "office premises" are referred to therefore in paragraph 2(1) of what is really a Schedule, and then the definition is contained on line 20:
"'Office premises' means lands and heritages used wholly or mainly as an office or for office purposes".
It is not beautiful, but I think it is accurate.

The other matter to which the noble Earl referred is what at first sight I thought, with him, was an error. In the Schedule at page 8 there is a reference to:
"for the words '201' there shall be substituted the words '202'".
This is a complication that defies description; I can only suggest that, rather than detain the House with it, your Lordships will find that the Countryside (Scotland) Act 1967 was amended by paragraph 171 of Schedule 27 to the Local Government (Scotland) Act 1973, and that amendment, in 1973, contained an error. It is that error which has been put right. The noble Earl did what I did and looked up the 1967 Act and found that a mistake appeared to have been made. A mistake was made; but it was in 1973. It has now been put right.

The noble Lord, Lord Strathclyde, referred to so many amendments. With respect, I do not think that there are so many; but I am happy to say that they are distributed between different tenures of office in the Scottish Office, some in 1973 and some in 1975. Although we may take no comfort from that, at least we need take no especial shame. With regard to the local Commissioner, he is a part-time officer. He was given certain benefits under the 1975 Act, as was appropriate, but unfortunately the wording of that Act did not make proper provision for superannuation and for payments in respect of him. Accordingly, that is what we have sought to put right.

I will not attempt to deal with the points raised by the noble Lord, Lord Drumalbyn. Plainly, he would prefer them investigated at the Committee stage, and they are too detailed to be dealt with at this stage. We look forward to the return of the noble Lord, Lord Kirkhill, in order to handle these matters.

On Question, Bill read 2a , and Committed to a Committee of the Whole House.