My Lords, I beg to move the fifth Motion standing in my name on the Order Paper.

Moved, That the draft order laid before the House on 8 January be approved. 6th Report from the Joint Committee on Statutory Instruments, 7th Report from the Merits Committee, Considered in Grand Committee on 21 February.—(Baroness Andrews.)

rose to move, as an amendment to the Motion, at end to insert “but this House calls on Her Majesty’s Government to withdraw the draft order and not to lay an amended draft order until the Court of Appeal has issued its judgment in Congleton Borough Council and Shrewsbury & Atcham Borough Council v The Secretary of State for Communities and Local Government.”

The noble Lord said: My Lords, for those who were not able to be in Grand Committee last Thursday, perhaps it would be helpful if I just mentioned the three points that were raised regarding Wiltshire’s objection to the order. The first was cost; the consensus is that Wiltshire County Council has grossly underestimated the cost. The second point, which is the substantive one with regard to my amendment, relates to acceptance. Prior to the consultation, the second objective of all these orders was stated to be that the proposals must be,

“supported by a broad cross section of partners and stakeholders”.

In the discussion that the noble Baroness and I had in Grand Committee last Thursday, she was kind enough to acknowledge, having twice stressed that one-third of the respondents from Wiltshire had been in favour of the plan, that two-thirds had been against the plan. I just point out to the Minister that two-thirds is twice as much as one-third. That is fairly simple mathematics, which even somebody like me can cope with.

The two boroughs in question are not in Wiltshire, but the result of the court case will affect all these orders, so I hope that I am allowed to speak on Wiltshire’s behalf by referring to Congleton and Shrewsbury and Atcham. The position as I understand it—I do not speak as a lawyer—is that the case went to court in September and Mr Justice Underhill upheld the Government’s case on all three grounds. However, the councils were granted leave to appeal.

I come back to one of the original objectives, which was to achieve broad consensus. The councils argued that the original wording meant that there must be support for a proposal before it could go forward to implementation. The Secretary of State changed that to claim that, if the proposals were implemented, the support would be forthcoming afterwards. This is slightly curious. The court conceded that the criteria had been changed but claimed that the Secretary of State was entitled to change her mind on the criteria as the process unfolded. The plaintiffs argued that such a claim was contrary to the concept of legitimate expectations.

I realise that this is sub judice and that it is completely inappropriate to go into the pros and cons of the case itself. The noble Baroness advised the Grand Committee last Thursday that, although the appeal was heard at the end of January, we do not know the result yet. However, she was kind enough to say that the result was—she did not say “confidently”, but let me put the word in her mouth—expected “before Easter”. That is less than four weeks away. The purpose of my amendment is strongly to ask the Government: what is the hurry for the sake of four weeks?

This Government are not the only Government to have found themselves with a slightly bloody nose vis-à-vis judgments from the courts and having to reverse what I would call political decisions. I really think that it might help the Government if they just held hard the matter for four weeks and waited on the result of the appeal; then, everyone will know exactly where they stand. I beg to move.

Moved, as an amendment to the Motion, at end to insert “but this House calls on Her Majesty’s Government to withdraw the draft order and not to lay an amended draft order until the Court of Appeal has issued its judgment in Congleton Borough Council and Shrewsbury & Atcham Borough Council v The Secretary of State for Communities and Local Government.”—(Lord Geddes.)

My Lords, the word “consensus” brings me to my feet. The Government have told us on a number of occasions that they are seeking consensus, particularly in going forward to find the new composition of this House. They are conducting themselves in that regard as though consensus existed in favour of a proportion of elected people in this House, which does not exactly represent the views of the vast majority of the House. So, coloured by that experience, I look at this case and find—my noble friend has reminded me—that the Government were seeking to proceed by general consensus. They find that two-thirds of those consulted are against what is proposed, and yet they proceed as though consensus has been obtained. It is the same behaviour pattern.

The matter becomes more serious when one finds that one of the grounds of appeal was that all the links that the DCLG put on the website on this consultation went only to people in favour of it and not to those against. So there seems to be a determination to go ahead with policy in all areas as if consensus has been achieved when it has not. To do that ahead of a judgment that may overturn the decision that the Government are now trying to implement seems to be to take a considerable risk with their own popularity rating as well as to be a great waste of parliamentary time if the whole thing has to be done again. I therefore warmly support my noble friend.

My Lords, I hope for two reasons that noble Lords do not support the amendment. First, there has been no suggestion at any stage in dealing with any of these orders that consensus means the result of a plebiscite. Local government reorganisation, whether in 1974 or David Curry’s reorganisation in the 1990s, did not seek public opinion particularly strongly. The reason for that seems to me to be twofold. First, some of the authorities may have to have changed boundaries. Where people in, for example, a rural area may come within an expanded boundary, they enjoy urban services at a much lower cost because they are paying rural rates. In a completely non-judgmental way, I would point out that they are essentially piggy-backing on urban services for which they have not fully paid. To expect them to want to vote to come into such a system would be utopian at best. My second hesitation about talk about plebiscites and referendums is that consensus is not just about each individual council tax payer or each taxpayer, because local communities are made up of networks of interest—the churches, the faith groups and, above all, business—and it is business that in many areas has been driving this agenda for unitary authorities. As a result, you cannot pick up those community voices through a plebiscite.

As my noble friend made clear when we discussed this in Grand Committee, it will be a pragmatic judgment whether the key stakeholders, together with the principal players—that is, the local authorities—would make the proposed unitary authorities work. My noble friend was confident that, in Wiltshire’s case, they would, and went on to explain that the judge at that appeal said that it was perfectly appropriate and proper for the Government to go ahead and not to defer their activities to await any outcome of the formal decision.

My second point is that if my noble friend were to accept this amendment, or the House were to support it, that would mean that any individual of any party to any such order—we have a dozen or so of them coming our way, including some quite difficult ones in a week or two—could seek to delay and delay again by going through the court procedure. When, as here, the judge has clearly made it acceptable to go ahead and the Government won on all points of the first round, there is, presumably, nothing to prevent these local authorities from delaying yet again by taking the matter on to the House of Lords. We could end up delaying each system of change by months when the staff, the stakeholders and the electorate want us to go swiftly and seamlessly into the new authorities. On both those grounds, I hope that the House will not support the amendment tabled by the noble Lord, Lord Geddes.

My Lords, the Minister will recall my presence in the Moses Room during the longest county debate on Thursday, but Divisions in the Chamber, which could not have been predicted a week earlier, robbed me of a chance to speak on Wiltshire because of an alternative engagement. I therefore thank my noble friend Lord Geddes for giving me this unexpected opportunity to speak to his amendment. I shall not abuse that opportunity by making last Thursday’s speech, but I should tell the House that I speak, as Lord Geddes did, as a resident. I lived in north Wiltshire for five years, then in central Wiltshire for 17 years; I have now been in south Wiltshire for 12 years. I can therefore endorse the view that Wiltshire is a highly diverse county that is ill suited in its physical topography or human geography to a unitary authority.

I agree that, as Churchill once said, in democracy one vote is enough, but the Government primarily rest their case on a winning division of 25 votes to 24 in the county council. The Government make much of their consultation with stakeholders, yet, at the time of the Commons debate on 5 February, only one stakeholder was known to have been positively in favour. At first blush, the democratic statistics are against the Government. The Minister was a little free with personal parliamentary statistics on Thursday when she described admiration for the leader of the council among county MPs who were against the proposal but spoke of their warmth towards her. Of those who alluded to the leader in their speeches on 5 February, the Minister’s statement is correct of one; the only other one who spoke of her could not make up his mind whether he was in favour of or against the proposal. That seems not a bad summary of overall opinion in the county, incidentally, but it is a poor basis for going forward, for which the Government must therefore take full responsibility thereafter.

Governments of both major parties have had a curate’s egg reputation for their central government decisions about local government since, 40 years ago, they started relying on Ministers who did not have local government experience. My noble friend Lord Geddes is giving the Government the opportunity to wait for the court’s views on the analogous Shropshire case before finalising their views by pressing the order today.

As for the boundaries to which the noble Baroness, Lady Hollis, alluded, in Wiltshire we had re-warding boundaries in 2003 and new parliamentary constituency boundaries in the interim; we are now to be asked to have all our local government boundaries altered again. As moonrakers, Wiltshiremen on the whole like a bit of peace and quiet.

My Lords, I crave the forgiveness of the House because I came in on the end of the remarks made by the noble Lord, Lord Geddes. However, I was struck by something that he said about awaiting a decision affecting both Wiltshire and Congleton Borough Council. I will be taking the opportunity to oppose what the Government propose for Cheshire next Tuesday, but my attention was drawn by the words not only of that noble Lord but of the noble Lord, Lord Elton, and the noble Baroness, Lady Hollis.

It is absolutely imperative that, if we are to carry these orders—and, indeed, the order for Cheshire—the criterion of consensus that the Government have demanded is reflected in the ability of the people in these counties to pronounce on them. In the case of Cheshire—I shall be exploring this further next Tuesday evening—I know for certain that the Government are refusing to publish information about the comments received by interested parties, whereas that is not the case in relation to Wiltshire.

I repeat the comments made by the noble Lord, Lord Elton, about the necessity of finding proper consensus and, if necessary, delaying orders. That is something with which the Government should particularly concern themselves, especially as, in the case of Cheshire, they are splitting up an authority that has successfully existed for many hundreds of years and are thus trespassing on the sentiments of people in Cheshire, whose comments made through plebiscite or, indeed, in response to the Government’s proposals indicate that they would like a single unitary council, not two unitary councils. I hope that that can be respected. I also hope that, if something is missing or lacking in the orders before us today with respect to a proper consensus being found, the Government will delay in order to repair this deficit.

My Lords, I have great sympathy with the frustration expressed by the noble Lord, Lord Geddes, and others in debating this Motion today. It is all the more frustrating because the difficulties with which local government reorganisation is now beset were predictable; indeed, they were predicted by these Benches when the Local Government and Public Involvement in Health Bill was going through.

Discussions with the local authorities concerned began long before the Bill was published and took place within a framework that changed every time the Minister in another place changed—I think that there were three in charge while this was taking place. Above all, there has never really been any clear vision expressed for the future of local government beyond a rather vague “one tier good, two tier bad” mantra. We have not seen any robust analysis of the performance of local government in order to determine how it should be structured to provide good services, to be cost-efficient and to command public support.

It is all very well to say—as the Government have and, I have no doubt, as the noble Baroness will again today—that this was a bottom-up process, but the fact is that central government will decide the outcome of the local government review. Therefore, it is the responsibility of central government to have a framework providing clear ground rules and to have a transparent process that tests out financial claims and verifies claims about public support.

But we are where we are. We do not know when we can expect the outcome of the appeal against the judicial review. We do not know whether it will affect the outcome of the councils directly concerned, never mind the other councils involved in the process, such as Wiltshire. These councils are providing essential services such as education, social care and firefighting. Some of the councils face elections in just 11 weeks’ time. The noble Lord asks what the hurry is. This process has already been hugely disruptive for local councils. To create more uncertainty going on for weeks and weeks could damage public services. Therefore, it is with some reluctance and with genuine sympathy, because the Government have handled this very badly, that we shall not support the noble Lord’s amendment.

My Lords, I have great sympathy with what the noble Lord, Lord Geddes, said. I declare an interest as a Northumberland county councillor and a Berwick borough councillor, although I shall not be standing for the new unitary authority. I recognise the problems. I was not able to be here last week when all these orders were debated, but I feel that the Government have been less than honest with people about the role of democracy. They have talked a lot about devolution and listening to people. However, I heard what the noble Lord, Lord Geddes, said in relation to Wiltshire. I have also heard about Cheshire and I know about Northumberland. I think that this is a very sorry way to carry on. My noble friend is absolutely right: we are going to have elections in Northumberland in eight weeks, as will others. The people of Northumberland, despite not liking much of what was going on, recognised that we could not stop it, so we are doing our best to make sure that it will work.

In all the debates that we have had, this has been very unsatisfactory and undemocratic. It was even worse in Northumberland; we had a referendum in which people said what they would like but the Government responded, “Oh, that does not matter; the chief constable and others want this to happen”. The Government have moved forward paying scant regard to democracy. This will be played out, in some cases, in the reorganisations. In Northumberland, it is the officers who are pushing this forward until the new council is elected. It is time that the Government thought carefully about how our democracy works. They have played fast and loose with it and they are now setting up all sorts of bodies that have no democratic accountability and are not going to be any better.

My Lords, I am very grateful to the noble Lord, Lord Geddes, for trying to assist the Government this afternoon. I have listened intently to what noble Lords have said. We had a good debate on Thursday. We debated each of the orders in turn and went into considerable detail. Indeed, I wearied the Committee by going through the processes at some length, so I will not repeat all that.

I am disappointed by what the noble Baroness, Lady Maddock, said. The Government have not been less than honest. We made what we were looking for very clear in the criteria that we set out. I remind the House that this was the first time in all the reorganisations of the past 40 years that the Government offered an invitation to local authorities to tell us whether they were interested in change. Yes, we made a case for unitary status, but it is the case that many people throughout the land have made. Many local councils and district councils have also made that case. We forced this on nobody. We set out our criteria clearly.

We had 26 invitations and six have gone through. We have failed far more people and councillors on their proposals because they did not meet our criteria; they did not meet the financial criteria and they did not meet the broad support criteria. That is why we feel confident that the unitary structures that we now support—these five orders—are workable. That is the point.

Noble Lords are absolutely right to raise the question of the criteria for broad support. I will quote the criteria in the original invitation, because what we were looking for was clear. We said that the change to unitary local government structure must be,

“supported by a broad cross section of partners and stakeholders ... We recognise that any proposal may not carry consensus from or within all sectors … No single body or group of councils or bodies will have a veto”.

We also said:

“It will be necessary for any proposal to have support from a range of key partners, stakeholders and service users/citizens”.

In any reorganisation people are unhappy, particularly if their council is not going to survive. We know that this has caused distress and disappointment. I listened with great respect to what the noble Lords, Lord Brooke, Lord Elton and Lord Geddes, said about Wiltshire and their personal associations with it. They are right to make the House aware of those matters. However, we were never less than clear that we could not look for a majority of popular support, for the reasons that my noble friend made clear. We were looking for the sort of support that would ensure that this reorganisation would work to the benefit of the local people, with more strategic leadership and more neighbourhood empowerment. We have found that the local arrangements that are being set up—as in the case of “belonging communities” in Northumberland or in Cornwall—are real local associations rather than artificial boundaries. There will be a new way; this will not just be a reiteration or a reformation of an old council. That is why it is important to get it right.

In Wiltshire, there was a popular poll, which the noble Lord, Lord Geddes, quoted correctly. It was a postal campaign. We commissioned work into the nature of these polling campaigns in other places. They were not managed by the Electoral Reform Society. They were not supervised; the votes were merely collected at the end. There was not the supervision that we would expect in terms of a national postal vote. Consequently, we are saying that one has to be very careful about the value of that sort of vote.

At the same time in Wiltshire, an Ipsos MORI poll revealed that 80 per cent of people were looking for more information about the benefits of unitary councils and structures, which is a slightly different perspective. We had the support of many public sector stakeholders, some of the voluntary and community sector and most of the Wiltshire business chambers. We were looking for the partners to be signed up to this proposal so that, when and if Parliament agreed it, it would be delivered. The partners would see the new strategic arrangements and the new governance arrangements; they would be working with them, they would be committed to delivering them and they would make them work. We started off there—from the principles of validity, accountability and workability.

Let me say in response to what the noble Lord said that, as my noble friend stated, we are in a clear position in relation to the courts. In September, the court found conclusively in favour of the Government. It dismissed Congleton’s and Shrewsbury’s claim for judicial review on all grounds. It also gave leave for the parties to appeal, but the court made no suggestion whatever that the administrative processes should be delayed pending that appeal.

We have been open with the court throughout this process about the fact that we intended to proceed as quickly as possible. We were urged by the local authorities engaged in this process to minimise the process and the timetable for disruption. As we all know, and as has been made clear in this House, the process is very disruptive. At the start of this process last spring, during the permission hearing, the court refused an application from Shrewsbury and Atcham Borough Council and Congleton Borough Council to stay the process until the outcome of the judicial review. In refusing the application, Mr Justice King explained that,

“on the evidence such a stay would cause manifest and serious prejudice and detriment to good administration”.

The noble Lord will not be surprised that I cannot accept the amendment, which takes a diametrically opposite view to that of the court and seeks to put a hold on the process pending the outcome of the litigation, when we are now awaiting the decision of the Court of Appeal. As I have explained, the High Court, conscious of the process and the timetable involved in the structural changes, recognised at the very outset of this litigation the importance of pressing ahead and not holding back the administrative process for restructuring. Secondly, we gave every assurance to local authorities from the outset of the process that we would try not to drag this process out and make it more difficult. I do not know when the judgment on appeal will be given. The best we can say is that we expect that it will be given before the Easter Recess, but that is entirely a matter for the court.

The implications for delay are very serious for councils and for the implementation process. This has been done in extensive consultation with the local authorities concerned about what they wanted, the timetable of elections that they wanted to follow and the nature of the implementation teams. Everything has been in their hands. The timetable that Wiltshire, like other areas, is now following, with the agreement of all parties, is for new elections in May 2009. That allows sufficient time for the Electoral Commission to undertake the necessary electoral review before the May 2009 election. If the noble Lord’s judgment were to prevail today and the court upheld its original judgment, on the Electoral Commission’s timetable that review would no longer be possible.

The problems and confusion of such a delay more than outweigh, in our judgment, the problems and costs that would arise if an order were now approved and made but subsequently quashed by the court if it were to grant the appeal. We have to bear in mind the fact that, even if the court does grant the appeal, it is entirely at its discretion whether to quash the order or simply to make a declaration or grant some other relief.

I know that the noble Lord has spoken with what he sees as the interests of Wiltshire at heart and that other noble Lords have raised important issues. However, I hope that he will agree with Members in another place that, given the decision to go ahead—and without denying that there have been and always have been disagreements and upset over this sort of change—we must support those who have come through the process and are now committed to implementing those changes and making them work as successfully as possible. I think that it would be a major disservice to those very loyal servants in local government if they were not able to do that.

My Lords, I am immensely grateful to my noble friends and other noble Lords for their support of my amendment. I will just make a couple of points to the Minister.

First, on the crucial issue of consensus, which several noble Lords have raised, the Minister used a very interesting phrase. She said that the Government “forced this on nobody”. However, that is exactly what is happening now in Wiltshire—and probably other counties as well, but I am concentrating on Wiltshire. It is exactly what is happening: this is being forced on the people of Wiltshire. It was not achieved by plebiscite; I do not know why the noble Baroness, Lady Hollis, has brought up that word again after doing so last Thursday. My honourable friend the Member for Westbury said in col. 924 of Commons Hansard of 5 February that he has photocopies of every response. I do not know whether the noble Baroness or her officials have seen those copies, but they are readily available. Two-thirds of the respondents in Wiltshire said that they did not want this. By any common use of English, that seems to me to be forcing a decision on the people of Wiltshire.

The Minister mentioned the MORI poll. I put no weight on it at all but, as she has mentioned it, I will, too. If I heard her correctly, she said that 80 per cent of the respondents would like to know the benefits of the unitary authority. I bet they would—so would I—but that does not mean that they will agree with them. It is plain common sense to want to find out what the benefits are of this thing that is being proposed. I cannot argue with that.

On the issue of the timetable, I am not an expert in local government, but it beggars belief that a pause of four weeks will put Wiltshire’s local elections in May 2009 into jeopardy. However, the noble Baroness has said that the judgment will be before Easter. Adding up on my fingers and my toes, I can say that that is less than four weeks. I find it extremely hard to believe that four weeks will make that amount of difference.

Sadly, I do not think that there are enough people here to warrant my testing the opinion of the House. It is with great reluctance, therefore, that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Motion agreed to.