Committee (4th Day)
Relevant documents: 15th and 16th Reports from the Delegated Powers Committee.
Clause 42 : Duty to hold local referendum
120A: Clause 42, page 37, line 25, at end insert “, and
(c) if the petition is a special-case petition (see section (Petitions: special cases in which holding of referendum is discretionary)), the authority resolves in accordance with section 48 that the referendum should be held.”
My Lords, we now return to the debates which we had the other evening in Committee on the new extension of community empowerment through the role of referendums. Perhaps I may begin by returning to Tuesday evening and the brief discussion that we had right at the end on the issue raised by my noble friend Lord Greaves. He asked—and I called it a conundrum—why a petition signed by 5 per cent of the people calling for a referendum should prevail over a petition signed by 10 per cent or even 20 per cent against one. At first reaction, and at that late hour, it appeared a complex question. I have since reflected on the issue.
It seems complex because it is founded on what I might describe as a false premise—that is, that having a referendum is in itself the final decision on an issue. It is not. Having a referendum is merely a way of opening the door to obtaining the views of local people. In the particular circumstance described by my noble friend, there is clearly a difference of view among local people; and where a number of people—we think 5 per cent is about right, as we discussed on Tuesday—want to have that view tested in a referendum, we think that they should be allowed to do so.
So my short answer to my noble friend's conundrum is simply this. If 5 per cent want the issue tested in a referendum, then we believe that it should be tested. That is not denying choice to others. They can express their view in the referendum. As I made clear in my response to all this, it is within the defined scheme; and that is that unless there is a petition, the full council must agree to hold a referendum; and where there is a petition, the council must hold it if it meets the appropriate tests on costs, appropriateness, and duplication, which we will discuss in this group. These tests enable local authorities to exercise discretion and not to hold a referendum.
Now I turn to these government amendments, to which I alluded the other evening and which I think greatly help this debate to go forward. Government Amendments 120A, 120D, 120F, 121A, 126G, 128E, 128F, 128G and 129J all deal with the issue of the grounds for an authority to decline to hold a referendum, notwithstanding the receipt of a petition with the requisite number of signatures. These amendments address concerns raised during the passage of the Bill in another place that local referendums could be very costly or otherwise inappropriate. Such concerns were also expressed by the Greater London Authority and Transport for London.
Members in another place also expressed concern that the Secretary of State exercising his power in Clause 47 to specify matters that need not trigger a local referendum could result in a council rejecting a valid petition for a referendum on a manifestly local matter. Having considered these concerns, the Government accept that, in line with our localist agenda, removal of the Secretary of State's power of specification in Clause 47 will not remove any necessary protections in the referendums scheme. If the amendments we have tabled are accepted, councils will have the power to determine whether a referendum should be held in difficult cases.
There are circumstances in which a referendum could be inappropriately expensive for a council or could cut across or effectively duplicate other statutory consultation processes for which there is also a statutory right to review or appeal. This would include planning applications. We therefore propose to remove the power of specification in Clause 47(5) and replace it with provisions that give councils increased flexibility to decline to hold a referendum in special cases. Those cases, defined as “special case petitions”, are where: first, the cost of holding the referendum would be more than 5 per cent of the council's council tax requirement for that year; the referendum matter has been the subject of a previous referendum within the previous four years in that area; or the referendum relates to a matter subject to other statutory consultation processes for which there is a right to review or appeal. I have already given the example of planning applications. These provisions reflect our view that councils should be able to refuse referendums that are unduly costly or are on substantively the same issue as a previous referendum. They also reflect our view that the mechanism for local referendums should not duplicate or cut across existing statutory processes.
Where it is proposed that a referendum should be held across the whole of London, we want to be sure that the matter is truly a pan-London issue—as I explained the other evening to the noble Lord, Lord Beecham. We therefore propose a requirement that for a petition to be eligible for such a referendum, in addition to the 5 per cent threshold of London-wide signatures it should have the signatures of 1 per cent of the electorate in each London borough. This would prevent a situation where a matter of vital importance to just one part of the capital might attract a very large number of signatures to a petition—enough to reach the 5 per cent threshold across London—yet would be more appropriate for a referendum in the London borough or boroughs where the affected citizens live.
I hope noble Lords will agree that these amendments address some concerns that are raised by amendments in later groups and will feel able to agree them. This will colour the debates that follow. I will address other amendments once they have been moved.
My Lords, I have one amendment in this group—Amendment 128EZA—that I will speak to. I will not speak to Amendment 128A in the group. I spent some time last night and this morning trying to liberate it from the group but failed miserably. I am now degrouping it, and it will come back in the group that starts with Amendment 126A. I hope that that does not cause the Minister too much difficulty.
I thank the Minister for dealing with such seriousness this morning with the question I asked at the very end of our proceedings on Tuesday. It was a cheeky question, but it is nevertheless one that people will ask because it is a fairly obvious cheeky question. I am grateful to him for dealing with it. It does, in many ways, underline some of the things that are wrong with the whole of this provision.
However, I welcome the main substantive amendment that the noble Lord has just introduced in this group—Amendment 128E, on what are known as “special-case petitions”, which are petitions where for various reasons the council will be able to decide not to have a referendum. I think that the phrase “special-case petition” is in some ways symptomatic of some of the things that are wrong with the Bill. What is a special-case petition? I can just imagine somebody spending a lot of time and effort getting a petition together and presenting it to the council for a referendum and one of the council officials ringing the organiser and saying that it had been classified as a special-case petition. The petition organiser will say, “Oh—thank you very much indeed. That sounds good”. The official will say, “No, it’s not. It means that you cannot have a referendum”. It is not a sensible name and I hope that the Government think of a name that actually describes the process and the fact that the petition will not be carried out. It could be called an invalid petition, for example, or something similar.
The proposed new clause on special-case petitions includes the provision:
“The petition is a special-case petition if the proper officer of the authority is of the opinion that the matter to which the referendum question relates has been, or has substantially been, the subject of at least one local or other referendum held—
(a) in the four years ending with the date on which the petition was received by the authority, and
(b) in the area to which the petition relates (whether or not in that area alone)”.
Therefore, there are two qualifying provisions for the authority to be able to say that it will not have the petition. One is that there has been one in the last four years and the other is that it took place in the area to which the petition relates.
I shall speak to an amendment on the second of those. Before I do, however, I have another amendment, which is bound up with some other stuff, that proposes that the period during which there should be a moratorium on holding a new referendum on the same or similar issue should be 10 years, not four. I will not be pressing that heavily when we get to it because at least we have a four-year moratorium here. Nevertheless, it seems to me that four years is not long enough. It will still be quite easy for people to bring back the same thing every four years and it will become very repetitive and they could keep going until they get the right answer.
I speak now to Amendment 128EZA, which would insert the words,
“or part of the area”,
where it reads,
“in the area to which the petition relates”;
so it would read,
“in the area or part of the area to which the petition relates (whether or not in that area alone)”.
It is quite clear that what the Minister has moved means that if there has been a petition in an identical area it qualifies as a special case and if there has been a petition in a bigger area, which includes the area of the petition, it qualifies as a special case. It is not clear what will happen if the new petition is in area larger than the area that previously had the petition. For example, let us imagine that there is a town with four wards. If there was a petition in a ward, and then the petition came along for the county electoral division, which might include two of those wards, the area would be twice as big. All the Minister is proposing at the moment is that it should have been substantially in the same area. I do not know what “substantially” means, except that it is quite clear that if they managed to find an area for a petition that was 10 per cent greater, it would probably qualify as a special case. But does it qualify as a special case if the area is twice or three times as big? What is to prevent people coming back with a steadily larger area if they do not get the result that they want in the first place? They might have a petition for a referendum in a ward, then in two wards, then in a county division that includes three wards, and so on. They might have these petitions every year until they get the result they are after. That is the question underlying this amendment.
While we are on Amendment 128E on special-case petitions, I have two more points. One is about the council tax requirement. I am one of the few people in your Lordships' House who does not understand local government finance in great detail, but I know that there are great experts here. What is meant by the phrase “council tax requirement”? Exactly what that means has a bearing on the meaning of the proposal that the Minister is putting forward in subsection (2), which he explained when he moved the amendment. I will not say anything more on that until I have heard what a council tax requirement means and decide whether I want to pursue it further.
Subsection (4) of the new clause is about not having a referendum if there is a statutory process and that statutory process includes giving members of the public an opportunity to make representations on the matter as well as statutory rights of appeal or to instigate a review. This is extremely welcome. It clearly refers to the planning system. It obviously refers to planning applications. I assume that it applies to local plan making because that includes a whole series of public consultations. It almost certainly applies to all licensing matters, so we are not going to have petitions on whether Joe Bloggs should get a taxi licence or whether a particular shop should get an off-licence licence. Do the Government have any sort of definitive list, or a greater list, of the sort of things that might be caught by this provision, or have they got further than planning and licensing in their thoughts on the matter? It will be extremely helpful if they have an idea of more or less the full list. We can probably never have a completely full list.
I look forward to the Minister’s response to my amendment and to the questions that I have asked.
My noble friend remarked on new subsection (4) and the barrier against presenting any petition relating to planning matters. Knowing the strength of feeling against Gypsy sites in most localities in England, we can envisage that if people can conceivably find a way of lodging petitions against anything to do with a proposal for a Gypsy site, they will do so. I was quite relieved to hear what he said, but is it his opinion that new subsection (4) provides adequate safeguards against that kind of petition which would be unnecessary because the protection, if needed, is provided by the planning process?
My Lords, I am not sure that it is my job to give a definitive view of what the legislation means. Anybody can put forward a petition on anything. When planning applications come in, people often present petitions on planning applications and they are perfectly entitled to do so, whether or not my noble friend and I agree with what is on the petition—that is nothing to do with it. The point is that this is a provision for a petition that triggers a referendum. As I understand it, what the Minister is proposing would prevent a referendum having to be held on a planning application while the planning application is being considered, which would obviously not only be stupid but would cause such huge delays in the planning system that the whole thing would fall apart.
I am going to intervene very briefly. First, I apologise to the House for not having been involved in this long and very complex Bill before. I am intervening now because I am a member of the Delegated Powers and Regulatory Reform Committee, which met yesterday to look at this Bill. We have a real problem with this incredibly complex Bill, and with many amendments coming forward, in understanding the full implications of some of the sections. I want to refer to some aspects of the report which is out this morning as a result of the meeting we had yesterday. Two of the sections relate both to petitions and hybridity and to referendums. I am not sure that they strictly apply to the Minister’s new clause but they apply in general on the issue of referendums.
In his opening comments the Minister agreed the possibility of a local authority being able to decide whether it wants to hold a referendum, which is fine. However, in paragraph 31 on page 9 of the committee’s report we recommend that regulations under Section 9MG of the 2000 Act, which is added in the Bill—they relate to,
“the conduct of elections and referendums the results of which have significant legal effect”,
and we had quite a discussion on that yesterday—
“should be subject to affirmative procedure”.
I am sure that the Government will consider that in the usual way. Given that we only had an opportunity to look at this yesterday, it is quite difficult to get this in the precise position.
The other thing I wanted to mention, because it affects petitions and hybridity, is the recommendation in paragraph 29 on page 9 of our report, which refers to the hybrid instruments procedure. It says:
“Given the lack of any statutory requirement to consult before making an order under section 9HF, the Committee is concerned that the disapplication of the hybrid instruments procedure—and thereby the opportunity to petition Parliament—leaves inadequate means to ensure private or local interests are taken into account when the power is exercised”.
We wish to draw that power to the attention of the House, as we do in paragraph 32 to the,
“disapplication of the hybrid instruments procedure by paragraph 77 of Schedule 3 to the Bill, so that the House may satisfy itself that there will be suitable alternative procedures in place”.
I do not wish to delay the House with an issue with which I have not been involved and do not have great knowledge about, but we expressed considerable concern yesterday about some of the powers in this Bill. There are others in our report, but the two I have focused on are, first, the conduct and the effect of referendums where they might have a legal impact. There was considerable discussion on what would happen if it went to court on an appeal. The second was this issue of hybridity. That is not directly relevant to what the Minister has just said but it picks up on the point made by the noble Lord, Lord Greaves, about petitions. It is an area of which the House needs to be aware and I very much regret that this is all rather rushed from the way the legislation is being put through. My ability to assimilate this enormous Bill in the fewer than 24 hours since the Delegated Powers Committee met yesterday might put me slightly out of the normal amendment procedure, but the two issues have a general impact and I hope that the Minister will take them into account. I know that the Government will respond to the report in the usual way but, speaking as a member of the committee and not on behalf of it, anyone who reads our report—I hope that people will have a chance to look at its main recommendations today even though it is very short notice—will see its considerable importance for this Bill.
My Lords, declaring once again my wife’s interest as a councillor and, I suppose, my interest in my wife, I speak with some diffidence in a House awash with experts with experience of local government in one way or another. I am one of the few without that. All that I want is to ask a question for clarification, which picks up on the questions raised by my noble friend Lord Greaves. It is clear that these amendments are intended to deal to some extent with the concerns expressed about planning and licensing. I should like to be absolutely clear. The new clause on petitions and special cases to be inserted under my noble friend the Minister’s amendment refers to a special-case petition. I am shorthanding and if I am getting it wrong, I expect someone will tell me.
The proposed new clause says that if it is substantially the case, people have,
“a statutory right of appeal in respect of the substance of the … decision, or … a statutory right to instigate a review of the substance of the matter or decision”.
From my experience as an MP, my understanding is that if it is your planning application and it is refused, you have a right of appeal. But if you are the neighbour or the neighbourhood who objected to the planning application and it is granted, you have no right of appeal. Does that mean that if you are the neighbour or the neighbourhood and the planning application is granted on planning grounds, you can now instigate a petition and have a referendum on the granted planning application?
My Lords, I might try to comment on the important points made by my noble friend Lord Newton of Braintree in a moment. It is a complex and important area, on which I expect we will have to have discussions as the Bill proceeds. In the main, I welcome the amendments laid by my noble friends and I am grateful for them in terms of their clarification. I have a number of concerns, which are perhaps not addressed by these proposals.
Since I was in charge of my authority’s finances for some time, it would be alarming if I did not understand the council tax requirement. In my authority the council tax requirement is defined in our budget resolution currently at a little more than £100 million. Therefore, 5 per cent of that sum would be several million pounds. I know that our authority is exceptional in terms of having a heavy requirement on council tax to raise its resources but I do not think that we would find that provision helpful in resisting referendums. I should be grateful if my noble friends would give some consideration to that rather brutal financial reality as the Bill proceeds.
As regards the other elements, the power for a proper officer to determine whether something has substantially been affected and might be the subject of a referendum was a rather localist answer to the points made by my noble friend Lord Greaves. In the light of local circumstances, it is probably reasonable to leave it to the local authority to make that kind of determination and I welcome that wording. Being an arch-localist, I am slightly less fearful of referendums than some other noble Lords in this Committee. Four years may be too long in certain circumstances but I can see nothing in this provision that prevents a local authority from authorising a referendum in less than four years if it wishes to do so. It simply defends the local authority against the vexatious demand to have a referendum more frequently than four years. If I have interpreted it correctly, I would be happy to accept the provision as a welcome offer by the Government and a very useful compromise position.
I have troubled the Committee before on this matter and I am afraid I will trouble it later on it, but I am worried about the way in which this alleged referendum right will operate in those areas of the country that are still subject to regional government—again I declare my interest, as I have done several times in Committee, as leader of a London borough council. This has an inter-relation with the position not in terms of specific, small-scale planning applications, about which my noble friend Lord Newton has raised a point, I believe, but in terms of the planning process determining a planning brief for an area of a borough.
Yesterday I read that the mayor, whom I strongly support and wish to see re-elected, had intervened on a planning proposal by a London borough. I do not wish to comment on that because I do not know the circumstances on either side, but let me give an example with which I am more familiar. There is a strategic site within my borough. For the last year or so, the council has been making strenuous efforts to agree, with local residents, a community brief for that site when it comes up potentially for development. We hope to have that brief adopted by our borough council before too long, subject to a public ballot. It may well be that at a later date, perhaps propelled by a desire for a community infrastructure levy, to promote Crossrail or for some other purpose, another mayor might come along and say, “This is not an appropriate planning brief for this site. We have a regional authority and a regional spatial strategy and we wish to propose a different use for that site”. It might have more housing or less housing on it, more industry or whatever, and that could be put forward. What is the position then of the residents of a London borough in those circumstances, who have laboured to agree a community brief for a large site that may determine the character of that part of their borough? It has been their choice in the spirit of localism for a long period, and then a higher authority, a reasoned authority, says, “No, it is not going to be that way”. Can we have a referendum on that; and, if so, by what mechanism?
I agree with noble Lords who said we do not want to get into having referendums on every planning application; that way lies the road to perdition. However, I believe that there are circumstances such as the one that I have set out where—if we are charting this way towards genuinely giving local people authority over decisions that affect their lives, and the lives of their children in terms of the long-term decisions on the development of a substantial area of a city—it is clear that we must have some mechanism by which people have the right to petition against an authority that is overriding the settled will of the local community. Maybe my noble friends can assure me—not today but perhaps later by correspondence—that there is a mechanism by which my local residents can be insured against the fear of that happening, but I think there are serious potential difficulties. There could be smaller examples. Like my noble friend Lord Greaves, I am not clear on where the boundaries of the statutory right of appeal lie, and the noble Lord, Lord Newton, has obviously raised a point. My residents in this case, with their community brief, would not necessarily have an appeal. What about transport issues or something controversial such as parking? All these things have statutory procedures and provisions for consultation. Where do the bounds lie there? I do not know whether they would be open to petition or not. Again, I do not expect an answer today.
Let me posit another example, a real-life one from another London borough. I was speaking to the leader, who told me that a town centre improvement scheme was proposed by a central London authority after consultation with local residents. The local authority suggested amendments that were supported by the residents in a ballot, but the higher authority, in this case London Buses, came in and said, “No, we don’t agree. We are going to proceed with our original plan”. Do local residents have a chance to petition and say, “Actually, we like our plan rather than the one being proposed by the higher regional authority”? That is a much smaller example than the one of a statutory planning area, but it is a complex area.
I do not seek an answer from my noble friends on these matters today and I do not want them to feel that I am not grateful for the amendments that have been put forward. But there is a serious issue in the Bill in relation to the rights of members of the public living in areas where there is still regional government.
My Lords, I want to make only three points at this stage of the debate. We are here on the fourth day in Committee on this Bill and I have listened to the noble Lord, Lord Soley, with what I have to say is some dismay. I have certainly not had his committee’s report drawn to my attention, so I have not seen it. No doubt it is in the Printed Paper Office nestling among the volumes of other papers for us to pick up. I recognised almost all the papers set out there as things I have already. This is really a question of how the House works. From what the noble Lord said, the committee has made important recommendations, but they will have to be dealt with on Report, once we have had a chance to look at them. I doubt whether amendments could be tabled, debated and approved in the remaining days of the Committee stage. This does seem to be something that the House authorities might like to take note of. I appreciate the difficulty of the committee, faced with this huge Bill from another place. It had its Second Reading and we then moved fairly smartly into the Committee stage. However, this is not a very satisfactory way of proceeding. We ought to have had those recommendations before we started the Committee stage, but we did not, although I understand that it is no fault of the committee.
My second point is that, in welcoming the amendments that have been tabled by my noble friends, I should like to say particularly how much I appreciate the way the Government have listened to the representations made in another place about the question of a petition that might be called for by the Greater London Authority. The suggestion they have come up with, that there needs to be a 1 per cent vote in every London borough before the GLA has to call a referendum, is a wise one. As my noble friends have suggested, it will prevent a fuss in a particular area, one that might arouse considerable public opposition, forcing the GLA to hold a referendum at huge cost—estimated at somewhere between £5 million and £12 million depending on whether it happens on the same day as another election. The Government’s suggestion that a 1 per cent vote in every borough would trigger the obligation to consider whether a referendum should be held therefore seems absolutely right.
My third point arises from representations that I have had—I am sure that the noble Lord, Lord Best, will be interested in this—from the Local Government Association. Noble Lords may remember that, on the second day of Committee on 23 June, I expressed some dismay that the opportunity had not been taken in the Bill to follow through the general power of competence, which Clause 1 gives to local authorities, by substantially lightening the burden of central direction on them. I said during my brief remarks then that both the London Councils—I declare an interest as a joint president—and the Local Government Association, of which I am a vice-president, had said, “Yes, Patrick, we agree but it would be an entirely different kind of Bill”. I remarked in my speech on the difficulty of trying to amend the Bill to try to remove some of what I see as retaining an over-complex power for central government to tell local authorities what to do and how to behave. Giving a general power of competence requires trusting the local authorities to do things in a sensible way. They are accountable to their local electorate if they do not.
I think that the Local Government Association saw that as a bit of a challenge. It has produced for me a list of amendments designed to return to local authorities the responsibility for deciding when and how to conduct a referendum. That is the good side. Unfortunately, somehow I only received that yesterday afternoon when I was engaged on other business. By the time I was able to turn my attention to the e-mail from the Local Government Association, it was clear that we were already too late. I will make the case that the LGA has decided on and give notice that I may wish to return to these matters on Report.
The LGA makes the point, just as I did on the second day in Committee, that it seems absurd in this day and age that central government should retain such an overwhelming control over how local authorities continue to manage their business. It draws attention in particular to Part 4, Chapter 1 of the Bill and the whole question we have discussed of holding a referendum. The LGA says:
“This section of the Bill is symptomatic of the difficulty Whitehall has had in translating Ministers’ localist ideas into legislation. Instead of freeing local people, and their councils, to decide how best local consultation and challenge should take place, the Bill lays down an extremely prescriptive process, managed from the centre, determining exactly how localism should work on the ground”.
I have every sympathy with that sentiment. My only regret is that, like the report of the committee of the noble Lord, Lord Soley, it has come to me rather late. There will be another opportunity and, as I said, I will want to raise the matter again.
I shall want in particular to ask that it should be the local council rather than the Secretary of State who determines the threshold for a petition to trigger a referendum and that the Bill should allow the local council rather the Secretary of State to determine whether a petition or a signature thereon is acceptable—and decide what is a local matter.
That is spelt out in the Bill as something that the Secretary of State has to determine, not the council, which strikes me as being little short of absurd.
I want also to see the local council, rather than the Secretary of State, determine the conduct of its referendum, including choosing the date and deciding how to publicise it, who is eligible to vote, how votes are counted and so on. Are the councils not capable of doing that? There may be some that will fall short but so be it: if we are serious about localism and about pushing decisions down from central government to the local level, we have to trust the local authorities to deal with that. I am much encouraged by seeing nods all round the Chamber and I am only sorry that, because of the late arrival of these suggestions, we are not able to discuss them on specific amendments this afternoon.
I will want to return to this matter. The Local Government Association has now risen to the challenge that I threw out at Second Reading and produced proposals which would involve removing quite large elements from this part of the Bill in order to make sure that it is local councils that decide how they are going to run their own affairs, not the Secretary of State.
My Lords, I associate myself very much with all three substantive points that the noble Lord, Lord Jenkin, has made. On his last point, I, too, received the briefing from the Local Government Association and was a little puzzled to see that it was dated 20 June but it arrived with me, and indeed with him, yesterday afternoon. The noble Lord is right, but I cannot help recalling a little ruefully that a few years back, I was a council leader and he was the Secretary of State responsible for local government. I wish he had spoken in those terms in those days, but better late than never.
If my noble friend would allow me, I have already expressed my contrition. I did so at Second Reading, when I mentioned how I failed to persuade the senior officers in a conference of chief executives that the Government were entirely justified. I did not convince them, mainly because I could not convince myself.
The noble Lord is forgiven: blessed is the sinner that repenteth. He is absolutely right in what he says. I, too, was looking at this briefing—I was in fact in Brussels until this morning and looked at it coming back—which, like the noble Lord, makes the point:
“The most ironic example of this is the power in Clause 44(6) for the Secretary of State to state what constitutes a local matter”.
That is so absurd that it is just laughable. The noble Lord and this briefing are both saying that if we were to do all of this, and I suspect a bit more too, we might have something that could be called a Localism Bill. That is what this is about. If he chooses to return to this at a later stage, we will certainly be sympathetic to that.
My original intention in standing up was on the second point from the noble Lord, Lord Jenkin, and, for once, to congratulate and be thankful to the Government for their amendments on the pan-London referendum. Perhaps I speak as a London taxpayer as well. He made the points, so I will not repeat them, but the proposals are clearly both necessary and very sensible and it is very welcome that we will now have a sensible provision. Should there ever be a pan-London referendum, it will not be called because of some probably serious issue in some part of London that does not apply to the whole of London. By making this provision, such a referendum will truly be on a pan-London issue, as it should be.
My Lords, I, too, remember the noble Lord in his days as Secretary of State for the Environment. He was also chairman of the inner-city partnership team that met in Newcastle and I remember amusing him once by referring to the city action teams he was intent on imposing in our city, and I think in others, as feral cats. He liked that phrase and I liked what the noble Lord said today, particularly in relation to the Delegated Powers Committee report. It is interesting that it was compiled in such a hurry that the title of the printed document is the “Localsim” Bill report. I do not think that it has any connection with telephony. It is certainly very late and I congratulate my noble friend Lord Soley on managing to master as much of it as he apparently has. I have only just seen it this morning.
I agree with the thrust of the noble Lord’s argument about centralism and too much central prescription. I do not entirely agree that it would be wise and safe to leave some of the structure entirely in the hands of local councils. Most local councils would perform perfectly adequately and properly, but we need to consider that there may be some councils which would choose not to develop a proper procedure and we need to protect the interests of those in those authorities. That, in my view, should not be done by the Government, but the Local Government Association itself should perhaps produce a model against which councils’ performance could be judged. That is the local government family, as it were, assuming responsibility, as opposed to the Secretary of State, and it strikes me that, in this and perhaps other areas, that might be a better way forward.
The noble Lord, Lord True, referred to areas with regional governments. Of course, thanks to the present Government’s “settled determination”, in the phrase of the noble Lord, to abolish all regional structures except that in London—it is only London that is privileged to have a regional body, although it is a privilege that the noble Lord may not be too comfortable with—it is probably right to encourage and facilitate petitions for the kind of issues that the noble Lord referred to, rather than referendums, in the same way that the noble Lord, Lord Greaves, answered the question put to him earlier.
Having said all that, I thank and congratulate the Government for responding so constructively to so many of the points that have been raised around these issues. It is very welcome. I particularly celebrate the removal of Clause 47(5), which stipulated that the third ground for determination was,
“that the referendum question related to a matter specified by order by the Secretary of State”.
The noble Lord, Lord Greaves, I think, tabled an amendment to that effect and the Minister has adopted it, if not him. That is also very welcome.
My last point relates to the strange provision about the cost of a referendum. The noble Lord, Lord True, referred to the figure of around £1 million as representing about 5 per cent of the council tax requirement of his authority. I believe that it is roughly the same—the noble Lord, Lord Shipley, may recall and confirm, or otherwise—in Newcastle. There will be many authorities where 5 per cent is an enormous amount of money. If an authority presented and circulated petitions inscribed in gold leaf on vellum, it would still not reach 5 per cent of most councils’ expenditure. It seems a ridiculous figure. I wonder whether a decimal point has been missed somewhere—the printers have clearly had difficulties with the Bill, as I have already indicated. Five per cent seems extraordinary and I wonder whether any proper estimate has been made—or any estimate at all—by the Government, or those advising them, about what the cost of a referendum, perhaps on a city-wide basis, or district council basis, to take a lower level, would be. It may be that, if we are going to have guidance of this kind, differential provision ought to be made according to the size of the authority; perhaps something on a per capita basis, rather than on a percentage of revenue.
If we are to have a cap, as it were, of a percentage kind, should that relate to an individual referendum, or cumulatively? If there were a large number of referendums in the authority of the noble Lord, Lord True, or in mine, or in any other, one could reach even the high figure. I do not ask the Minister to respond to that thought, which has only just occurred to me—I cannot expect him to answer that—but it might be considered when he looks again, as I hope he will agree to do, at this provision. I welcome the provision; it is right that there should be some consideration of a financial limit by an officer—rather than a member in this case—but the one suggested seems to have little justification and little relationship to reality on the ground.
My Lords, this has been an interesting debate and I take it as a general welcome for the Government’s amendments. A number of interesting points have been raised which probe again at the boundaries of the referendum principle. Noble Lords are right to point to the balance between the Secretary of State and local authorities, but on examination they will discover that the powers of the Secretary of State are residual powers, usually to modify arrangements as a result of experience, rather than to impose a pattern of governance on local authorities throughout the Bill. However, some forms, some articulation of the form of referendums and suchlike are in legislation, because Parliament exists to ensure that, in the context of a citizen’s relationship with a local authority, there are certain rights. If a referendum is considered to be something which citizens can combine collectively to seek, those rights need to be established in law and it is Parliament’s job to establish them in law. I ask noble Lords to differentiate between the two things.
It was said—in jest, I hope—that the Secretary of State was empowered to decide what was local. If noble Lords had looked at our amendments, they would know that our amendment removes that power from the Secretary of State. My noble friend Lord Jenkin asked whether we can leave it to local authorities to decide when and how to conduct referendums. I have made the point about the protection of the citizen within local government. We could, of course, leave it to local authorities, but localism is about more than empowering local authorities, it is also about empowering people. This part of the Bill enables local people to require a referendum, but contains some sensible safeguards to combat abuse. I hope that my noble friend will be able to see the Government’s position in that context.
I, too, received the Local Government Association briefing asking me to table some amendments and to speak in its support—it is very wide in its mailings. However, that was drawn up before the Government’s amendments were known, so some of its criticisms—it generally welcomed many of the provisions of the Bill in this area—were made without the advantage that we now have of knowing what the Government’s proposals are.
My noble friend Lord Greaves asked whether the Government have a list of things that would be caught. My noble friend Lord True also wondered about this, but said that he hoped local authorities would be empowered to decide what was covered under those statutory applications. Under the approach that we have taken, it would be for councils to decide. We have no list. Amendments in a later group illustrate just how difficult such a list would be to apply. It is up to local authorities to decide what is excluded under the special case provisions.
My noble friend Lord Greaves asked whether a petition would qualify as a special case if it covered a large area. Yes, it would. The council would be able to refuse such a petition under the provisions as drafted. He also asked what “substantially” meant. I can give him only a quasi-legalistic answer: it means more than incidentally. I hope that that helps him in his appreciation of that.
I am sorry, the noble Lord is asking me to do his remembering for him. I have enough of a job to remember what I am supposed to be doing myself, if I might say so. Perhaps I may continue.
The noble Lord, Lord Soley, talked about the reports of the Delegated Powers Committee. In fact, some of the points that he made were in an earlier report, published on 16 June. However, there is now another report—indeed, the ink is scarcely dry on it; it is rubbing off on my hands here—about these matters. I reassure the noble Lord that in general terms we take the opinions of the Delegated Powers and Regulatory Reform Committee seriously, and it is likely that we will respond positively to its suggestions and observations. I hope that the committee will accept that.
On the regulations in new Section 9MG about the conduct of referendums for mayoral elections, those referendums are binding, which is why they are rather different from referendums conducted under these provisions, which are not binding on local authorities.
The noble Lord is quite right; I remember what it was now. I was so carried out away by the Minister’s rhetoric that it cleared my mind.
The Minister said, rightly, that these decisions should be the responsibility of the local authority if we are to be localist. As he said, though, it clearly says in subsection (4) of his long new amendment about special case petitions that it is a statutory process by which there is a statutory right to appeal or to instigate a review. Surely it is not the job of a local authority to decide what is a statutory matter. A statutory matter is set out in law, so there might be a bit of interpretation to take place but by and large the local authority’s hands would be tied.
If I remember correctly, my noble friend asked me if the Government had a list of these things. The truth of the matter is that we do not. It will be up to local authorities to determine at the time whether something is caught under this provision.
That brings me on to the whole business of a statutory right of appeal or review. My noble friend Lord Newton asked about this provision. The existence of a right of appeal means that a petition would be a special case petition—it is not relevant who has the right of appeal or review. The Government are satisfied that there is adequate opportunity for all people affected by planning applications to contribute their view. To be clear about this, the Bill does not give a right to a referendum on planning applications.
My noble friend Lord True was particularly concerned about the council tax requirement. He mentioned the large local authority budget that he is responsible for. The whole point of the council tax requirement was to provide some protection for the smaller authority. We were concerned, rightly, that the costs should not be disproportionate to the budget, and that is why that provision was made. It is not a cap or an upper limit on how much can be spent on a referendum, but it means that no local authority should be subject to a disproportionate proportion of its budget being spent on any one referendum.
I was asked about the whole business of planning briefs and indicative planning. My noble friend Lord True kindly suggested that I might write to him and other noble Lords on this issue. It is probably a good thing that I do so, defining the nature of this general view of that planning applications are in fact subject to the special case treatment. There is the question of indicative plans and planning briefs, and I would like to make the position on those absolutely clear.
My noble friend asked how referendum schemes will operate in areas where there is regional government. The Government are committed to abolishing regional spatial strategies. I have already set out the details of how our amendments will ensure that London-wide referendums will take place only on true London planning issues.
I have explained to the noble Lord, Lord Beecham, my point about the cap. We have some information about what we estimate to be the cost of a referendum. Our impact assessment estimates the cost to be between approximately 50p and £1.50 per voter, depending on whether or not it is held with an election. I think that I have covered the questions raised.
I am grateful to the Minister for that information. Would he consider the issue of a per capita amount rather than this very large limit—not a large percentage, but in cash terms—that would have to be breached in order for there to be reason not to hold a special referendum?
That is a suggestion that we would like to consider. It is the spirit of this Committee that we appreciate approaches that are different from the text of the Bill and might define things better. I am happy to consider that matter and I thank the noble Lord for the idea.
Before my noble friend sits down and the experts start coming in, I welcome the clarity of his statement about planning applications, leaving aside the more complex high-level issues raised by my noble friend Lord True. Thinking back on my time as an MP, I see that it would sometimes have been very pleasing to have been able to point constituents aggrieved by the granting of an application in the direction of a petition. Looking at it objectively, though, I am bound to say that the whole area of the application of planning policy would turn into a nightmare world, so I very much welcome the clarity of what has been said.
I again apologise. I would not normally come back on this issue, but it is very important. The job of the Members of this House and of the House of Commons is to hold the Executive to account. I had a note put into my hands a few moments ago from Hansard saying:
“Please may we have sight of the report you quoted from”.
The note then says in brackets:
“(The copy from the Printed Paper Office finishes on page 8 with section 25)”.
Of course, I was quoting from clauses after that. I picked up the papers just before Questions finished. This means that anybody else who came into the House for this debate this morning probably would not have got a copy of that report; here I am grateful for the comments and support of the noble Lord, Lord Jenkin. It is hard to hold the Executive to account if Members cannot get a copy of a report which is regarded as important by the House in all cases.
Having handed the note in—which is I why I was not in my place when the Minister referred to me, as I was trying to get it—it has now gone, and they are now going around looking for another report. It is deeply unsatisfactory. One reason the Government are getting into problems in a number of areas is that business management is failing. The noble Lord, Lord Newton, and other Members on that side of the House who have been familiar with managing government business in previous years will know precisely what I mean by this.
I emphasise that, like all members of the Delegated Powers and Regulatory Reform Committee, I am aware of the sort of Bills we will have to look at in advance. When you get something like this, you make yourself aware of the basics but do not get down to the detail until you are close to the date of the Delegated Powers and Regulatory Reform Committee meeting and when you are in that meeting. You have to go into the small print to get it in order and so it is very difficult to speak to it the following day when the report has not been available to any Members of the House except those who were fortunate enough to get a copy before I picked up what must have been one of the last ones. That is deeply unsatisfactory. The Government should take this very seriously.
I know that the Government take seriously the reports of the Delegated Powers and Regulatory Reform Committee. Indeed, since I have been a member, most of our recommendations have been accepted. This Minister, most notably, has been very good on this as well. However, we are looking at how the Executive are held to account by the House. To have a situation develop where a particularly complicated and large Bill like this is before the House and an important report from the Delegated Powers and Regulatory Reform Committee is not readily available must cause concern. You cannot even refer to it. Obviously, I knew what the arguments were because I was in the committee meeting yesterday, but it is not satisfactory and I think a number of Members know it. Although I welcome the Minister’s comments that he will be taking on board the committee’s report, that is like saying, “We hope that we will be able to meet the committee’s concerns” when it might be too late after that until we get to Third Reading.
I assure the noble Lord that the Executive—or the Government—have no control at all over the conduct of House committees. I make no criticism of either the committee or the House authorities. I am grateful that we have indeed had the observations of the report on the Bill. It is a pity that they are last minute, and I was not aware that copies were not available. I picked one up as I came in. I had a hasty look at it; we did not have very long before we started.
We should be careful. We obviously need as a House to have these matters properly examined and scrutinised and to ensure that noble Lords are aware of them. I hope that I have helped the Committee by saying that our attitude is to take these reports seriously. I hope that noble Lords will appreciate that commitment.
I did not mention my noble friend’s amendment. Our government amendments take care of the issue which he raised in his amendment.
Amendment 120A agreed.