§ Consideration on Report resumed.
§ Clause 21 [Methods of fixing aggregate amount of housing support grants]:
§ Lord Ross of Marnock moved Amendment No. 14:
Page 10, line 35, at end insert—
("( ) In estimating the amount mentioned in paragraph (b) of subsection (2) above, the figure for rent shall be the figure for the previous year increased by the percentage allowed in rate support grant for price inflation.").
§ The noble Lord said: My Lords, No. 14 takes us to Clause 21, and we have a change of subject because we now come on to the question of housing grants and the conditions applicable thereto. Quite a few years ago there was a complete change in relation to the support of housing and a move away from the individual subsidies applicable to each house for so many years. In the early days it was 40 years; after the war it was 60 years. A solemn pledge was given by Governments that they would support each house that was built by the figure that was put into that particular statute, on condition, of course, that a quarter of the total subsidy would be found by the local authority. So there was a very considerable interest in respect of that; and, of course, at that time there was no bar to a local authority further increasing the subsidy given for local authority houses by putting it on to the rates.
But now we have the whole question in relation to the housing revenues and housing expenditures that have accumulated, and then the striking of a figure and the Government determining what the rate support grant shall be and dividing it out among the authorities according to formula. This, once again, is a place where the Government can manipulate the formula, because if you read the clause at line 29—sub-section (1) refers to Section 1 of the 1978 Act; this, again, is one of the things which take us way back by reference, and the Bill itself is a bit of a mess-up—paragraph (b) says:
the aggregate amount of relevant income (other than housing support grants) which could reasonably be expected to be credited to the local authorities' housing revenue accounts for that year".
I repeat, "could reasonably be expected to be credited". What does that mean? It means that the Government decide what should be reasonably credited as rents of houses. It is their figure. It is not the actual rent; it is their figure; and, of course, the higher they make that figure the less accrues to the local authority housing account in housing grants. The Government can determine it.
§ At the present time the Government are wishing upon local authorities a figure for rent increases which amounts virtually to a 40 per cent, increase; and it has been estimated that if this persists for about three years then no housing grants at all will be paid. To that extent it is a very long way indeed from the promised support that was given to local authorities who, in the years after the war, were encouraged by 1178 Governments of both sides. Your Lordships will remember Mr. Macmillan, and that he was going to build 400,000 houses. These houses were built; but the Government promised that for 60 years they would support the loans and the inevitable charges that fell on the local authorities, who were virtually the Government's housing agents.
But here we are now getting into a position whereby, with the Government fixing a notional rent, in effect the local authorities will be denied housing support grant. This is why I say in my amendment:
In estimating the amount mentioned in paragraph (b) of subsection (2) above, the figure for rent shall be the figure for the previous year increased by the percentage allowed in rate support grant for price inflation".
That is fair enough. We are telling the local authority, "You have got to put your rents up to meet the inflation rate"; and, surely, the inflation rate which the Government have used in the estimates for rate support grant itself is a fair figure—11 per cent. If the Government tell me that, of course, that does not in any way meet the inflation for this current year—and we are talking about 1981–82 as the start of rate support grant, although not this particular change; but we shall come to that later on—then the Government are hoist with their petard of a lower figure, an unrealistic figure for inflation.
§ But the fact is that it is not an increase to meet inflation that the Government are insisting local authorities should add in respect of rents. They would scream the house down if the rates went up by 40 per cent. I think the average in Scotland is very much below that. But they are insisting that local authorities put up their rents by 40 per cent. They are going further than that, because if local authorities do not meet what they consider is the rate fund contribution guidelines then they are going to limit the local authorities in respect of what they will be able to build in future. In my day the Secretary of State used to appeal to the local authorities, "For goodness' sake build and build" because of the housing situation in Scotland. Even today in Scotland there are about 67,000 houses without a sink or a water closet. And the housing figures in Scotland have now fallen so that you would have to go back to the year 1925 to get a figure as low.
§ Coming back to the rent business, in a Written Answer given in another place on 6th March we learn that the local authorities which see the rate fund contribution guidelines at risk because of the rents include Tweeddale, Inverness, Lochaber, Nairn, Skye, Lochalsh, Argyll, Bute, Bearsden and Milngavie. They are not exactly centres of red revolution; not one of them has a labour council. Then, Inverclyde, as well as the traditional urban areas. What we see as a result of the manipulation of the formula is this. I know the Government will say that this formula is designed to get the people out of the distribution of housing grants, and that those who are making a profit on their housing should not be included in the calculations or in the distribution of housing grants. But what I am trying to draw attention to is the fact that the Government themselves can determine the extent to which local authorities are in profit in their housing revenue account. It extends to determining how quickly local authorities will be in a position, notionally, of having made a profit out of housing.1179
§ This is a very serious matter indeed for many local authorities in respect of being able to impose on the people concerned rents which are far too high. In Scotland about one quarter of all occupants of local authority houses are in receipt of rate and rent rebates—250,000 of them. I believe it was the Conservative Member of Parliament for Perth and Perthshire, Mr. Walker, who estimated that 50 per cent. of the tenants of local authority houses in the city of Perth, which has had the benefit of Conservative Government for a long time, have to obtain rent rebates, and that 25 per cent. receive a total rent rebate. This is a measure either of poverty or of the fact that the rents are far too high.
§ It has been calculated that meeting the increased demand for rent rebates resulting from increases in rent to the extent that is wanted by the Government would cost the Government—the English Government probably, because they pay more than a considerable proportion of the money used for rent rebates—some £19 million. This is how Government expenditure arises the more the Government wish this kind of tyrannical measure upon local authorities and compel them to do these things. There is no sense in it. There is fairness in what I suggest.
§ In these important calculations, where the Government estimate what can reasonably be expected to be credited to the local authority's housing revenue account, the rent element should increase year by year in accordance with the rate of inflation which the Government themselves write into their rate support grant. Next year that figure will be 11 per cent. It would make a very big difference to the position of people who are occupying local authority houses. Rents have been going up in Scotland and they are very high indeed, and there would be a further penalty on these tenants if the local authority cannot go very far because the Government are now reducing the capital made available for housing.
§ Even at 31 per cent. Glasgow would need to add another 20 per cent. to rates before reaching the taper area and recovering some of the housing capital allowance which will be cut off from the local authority there. Only if the rents were increased by more than 50 per cent. would some of the £10 million or £11 million which the local authority stands to lose be regained.
§ It is quite monstrous to suggest that in such an area as Glasgow, with all its problems, the Government and Ministers, who pay lip-service to housing, are out to help local authorities, when they are in fact impeding them in this way. It is simple justice that I want. It is not a question of freezing rents; it is a matter of allowing rent increases but limiting those increases to the inflation rate to which the Government themselves limit local authorities under the rate support grant. I beg to move the amendment.
§ 8.5 p.m.
§ The Earl of Mansfield
My Lords, this amendment has the objective of requiring the Secretary of State to estimate the relevant income simply by increasing the income amount estimated by him for the previous year by an amount reflected only by the rate of inflation, and not necessarily having regard to the community's 1180 capacity for making local contributions—which has arisen, for example, from the movement in household earnings. The method of estimating income proposed in the amendment could not be held to be appropriate to the calculation of housing support grant. It is quite clear that Section 1 of the 1978 Act in its existing form, and in the amended form proposed by the Bill, requires the Secretary of State to form a separate judgment for each grant year about income and expenditure which takes full account of all the circumstances known at the time that the judgment is made. The amendment would radically alter the basis of the Secretary of State's responsibility in estimating aggregate income.
It is relevant that in Chapter 6 of the Green Paper of June 1977—the Scottish Housing consultative document, which was published by the previous Administration and propounded a system of housing support grant—paragraphs 13 and 15 set out the principles governing the estimation of relevant income, thus:Account will be taken of increased capacity for making local contributions which arise, for example, from the movement in household incomes. The Government consider that local contributions to these costs should keep broadly in line over a period of years, to rises in earnings generally".Here, "costs" refer to the cost of the provision and maintenance of houses. It is clear that the Green Paper intended that in making assumptions about the level of income the Secretary of State should at any time have regard to what seemed reasonable then, and that no fixed relationship between rents from one year to another or between rents and specific indicators should be assumed. I believe that this flexibility should be retained.
The noble Lord's amendment presents a further difficulty in that it would disturb the calculation of housing support grant without necessarily affecting its amount. The duty of the Secretary of State is to estimate the aggregate amount of income which local authorities could be reasonably expected to receive. As many ratepayers know to their cost, low council house rents mean increased rate fund contributions, and if the estimate of the rental element of aggregate income were depressed, as the amendment might require, it would be reasonable in the light of experience to increase the estimate of rate fund contributions and so to produce the same aggregate as before. In May 1980 council house rents amounted on average to very little more than 50 per cent. of earnings. In my submission it is not reasonable to expect ratepayers and taxpayers to subsidise housing costs to more than 50 per cent. as they did in that year, and it is on this basis that I am unable to accept the amendment.
§ Lord Ross of Marnock
My Lords, I am glad that the Minister did not deny the figures which form the basis of my amendment. He suggested that we should keep in measure with increases in earnings. The Government lay down a rent figure to local authorities. In rate support grant calculations the Government are not going to support any increase of wages or salaries that go beyond 6 per cent. As I have pointed out, rates are bound to go up on that basis, because of the increase that has been allowed in respect of teachers, firemen, local authority workers and others in negotiations in which the main voice has been the voice of the Govern- 1181 ment. Why not accept 6 per cent? I have allowed 11 per cent. for inflation. The Government want to add on another 6 per cent., although within that inflation rate is an element for wages and something else as well. But it is unfair to tie down the local authorities in respect of the support they are going to get in respect of inflation and at the same time tell council tenants that they will have to pay a 40 per cent. increase—which many of them cannot pay. Who pays it?—the ratepayer and the taxpayer. The cost in Scotland has been estimated at £19 million—a strange way of saving money when you have to spend more.
From that point of view, I do not think that there is any justification in this whatsoever. Even that figure of £19 million is not the end of the matter. The other day Linwood closed its doors and that meant another 4,000 people unemployed. I hear today of another firm, the biggest firm in Cumbernauld—and there is an unhealthy balance about the size of the firms in that particular new town—which has already paid off more than 400 people and which yesterday announced that another 300 would be put off. It may be that the local authority will not be worried about that; it may be the new town authority who are worried about the ability to pay rent.
The Minister gives the impression that rents in Scotland have been standing still over the years. This is not true. It is a myth. The rents of local authority houses in Scotland are very much more reasonable than they have been for a long time. I used to get a lot of stick because I was not in favour of keeping rents down in Scotland but all for people paying a reasonable rent. But when it becomes unreasonable it is a different matter; and so many people are seeking rent rebates that it is obviously an indication of how unreasonable rents are. Because of the Government calculation, we are going to have this fictitious position that local authorities will be construed as being in a position of making a notional profit and of getting no housing grant—despite housing built from the time of the 1918 to 1920 Act, the Addison Act, the 1924 Wheatley Act and the 1931 Slum Clearance Act to the Sir Godfrey Collins Act in 1935 when he was going to clear the slums of Scotland in five years. Fifty years later there were more slums than at that time. This is the path of failure properly to deal with Scotland's housing problem.
There is still a housing problem in Scotland. The incidence of this carried through into a later clause will mean that there are areas of Scotland where houses were built in the 1920s and have been paid off. The loans were for 40 years. They now need modernisation. Some of these are pre-war houses and they have been denied modernisation because the Government have slipped back on a promise of continued support for Scotland and its housing problem. What I put forward was a reasonable suggestion and one which I must pursue into the Division lobby.
§ 8.14 p.m.
§ On Question, Whether the said amendment (No. 14) shall be agreed to?
§ Their Lordships divided: Contents, 27; Not-Contents, 57.1182
|Bishopston, L.||Maelor, L.|
|Brockway, L.||Noel-Baker, L.|
|Collison, L.||Ponsonby of Shulbrede, L. [Teller.]|
|David, B. [Teller.]|
|Davids of Leek, L.||Ritchie-Calder, L.|
|Glenamara, L.||Ross of Marnock, L.|
|Hooson, L.||Stewart of Alvechurch, B.|
|Hughes, L.||Stewart of Fulham, L.|
|Jeger, B.||Taylor of Mansfield, L.|
|John-Mackie, L.||Thurso, V.|
|Kilmarnock, L.||Underhill, L.|
|Kirkhill, L.||Wells-Pestell, L.|
|Lee of Newton, L.||Wigoder, L.|
|Llewelyn-Davies of Hastoe, B.||Winstanley, L.|
|Ampthill, L.||Kemsley, V.|
|Avon, E.||Lindsey and Abingdon, E.|
|Bellwin, L.||Long, V.|
|Belstead, L.||Loudoun, C.|
|Boardman, L.||Lucas of Chilworth, L.|
|Brougham and Vaux, L.||Lyell, L.|
|Caithness, E.||McFadzean, L.|
|Campbell of Croy, L.||Mackay of Clashfern, L.|
|Cockfield, L.||Mansfield, E.|
|Colville of Culross, V.||Margadale, L.|
|Cork and Orrery, E.||Mottistone, L.|
|Crathorne, L.||Northchurch, B.|
|Cullen of Ashbourne, L.||Orkney, E.|
|De Freyne, L.||Rochdale, V.|
|Denham, L. [Teller.]||Sandys, L. [Teller.]|
|Drumalbyn, L.||Selkirk, E.|
|Dundee, E.||Sharples, B.|
|Elgin and Kincardine, E.||Skelmersdale, L.|
|Faithfull, B.||Stamp, L.|
|Ferrers, E.||Strathclyde, L.|
|Gainford, L.||Sudeley, L.|
|Gisborough, L.||Swinfen, L.|
|Glenarthur, L.||Swinton, E.|
|Greenway, L.||Trenchard, V.|
|Gridley, L.||Trumpington, B.|
|Grimthorpe, L.||Vaux of Harrowden, L.|
|Henley, L.||Vickers, B.|
|Home of the Hirsel, L.||Vivian, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 8.22 p.m.
Lord Ross of Marnock moved Amendment No. 15:
Before Clause 24, insert the following new clause:
§ ("Abolition of fees for planning applications in Scotland
- (a) in subsection (1) the words "or a planning authority in Scotland" shall be deleted;
- (b) subsection (2) shall be deleted;
- (c) subsection (8) shall be deleted.").
§ The noble Lord said: My Lords, this takes us back nine months or so when in an English Act of Parliament, for reasons best known to themselves, the Government decided to include Scotland and apply fees for those who were seeking outline planning permission, be it for a house, a group of houses or a new factory—development of any kind like that. The local authorities were told that they had to charge fees. In an order that was produced the scale of fees was laid down. For the ordinary purpose, depending on the size of the house, outline planning permission could cost about £160 or so; and, indeed, for the actual planning permission, if it was straightforward, it is about £40. 1183 The scale goes up to £1,000 or indeed £2,000. I am sorry I do not have the fees. I had them in my papers earlier but I passed over the requisite order to the Minister of State. But he can take my word for it.
§ There are also planning appeals, and of course all these are burdens on planning, and planning is an invention of this House to serve the community and to seek to get reasonable proposals in relation to development. It is not something that pleases the developer very much; and to put a charge on the developer, especially in Scotland where they are shouting out for people to build houses, factories and so on, it seems a silly way for a Government that make constant pledges that they are seeking this and that all for the good of Scotland.
§ I believe that the estimate is that this new planning procedure will bring into Scotland about £2 million. Creating all this fuss and bother for that! It is not something that local authorities wanted; it is not something anybody in Scotland wanted. The English and Welsh may wish to luxuriate in planning fees. I remember that we on this side of the House voted for the whole lot to be wiped out. It was put in in an English Bill, so let us take it out of a Scottish Bill. I beg to move.
§ Lord Lyell
My Lords, the amendment which has been moved by the noble Lord—as he will know, and as no doubt the House will have observed—seeks to delete from the Local Government, Planning and Land Act 1980 the enabling power to allow charges to be made for planning applications in Scotland. The system of fees for planning applications is based on the principle that local authority expenditure should in appropriate cases be offset by the charging of reasonable fees for local authority services. The Government consider it appropriate that the cost to local authorities of development control should be offset in this way, so that the burden is shared between the developer and the community.
The scale of fees which has now been embodied in the Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 1981 was formulated after full consultation with interested bodies. It is designed to be as simple as possible and to be constructed in such a way that no charge should be set at a level which would deter development. We are carefully monitoring the working of the system of fees for planning applications. Of course, we recognise that the application of this new principle to the development control system may in some cases have unforeseen effects. We therefore intend to consider, once the scheme has been working for a year or so, what improvements might be made. In the meantime, however, it would be inappropriate to seek to reverse in Scotland the principle of charging, which was accepted after full debate both in your Lordships' House and in another place, or to seek to nullify the effect of the detailed scheme of charges which was similarly approved as recently as March this year.
The noble Lord, Lord Ross, mentioned charges. I am advised—and no doubt he will confirm that we are right in this particular instance—that no charges are levied for planning appeals. That said, I regret 1184 to say that we cannot recommend this amendment.
§ Lord Ross of Marnock
My Lords, that is what I expected. I can assure the noble Lord that it will infuriate a certain person in a certain part of Scotland not unknown to his noble friend who is sitting beside him. I put the amendment down only because this particular person had never heard of it—and what idiots they call the people who wished this upon Scotland! I am not going to mention any names at all. I am going to send this person a copy of Hansard and let him know exactly who wished this upon Scotland and who has not had second thoughts about it. When we reiterate in Scotland that this is how development is aided and assisted by a Tory Government in the interests of freedom and all the rest of it, no one will have any doubt at all about who is to blame.
When the noble Lord said this was fully debated in this House and in another place and they have the records of majorities, he failed to mention that his Government have no majority in Scotland. As far as this House is concerned, it has no status at all in Scotland because it is non-elected; and anybody who can swallow that can swallow anything.
The fact is that I sought to give the Government a chance to redeem themselves in the eyes of many of the people who support them and could not believe that a Tory Government, with such distinguished people as the noble and learned Lord the Lord Advocate, the noble Lord, Lord Lyell, and the noble Earl, Lord Mansfield, there watching their interests, would allow this to be done. It was not something which slipped through. The noble and learned Lord the Lord Advocate took a great part in that Bill, as he will remember; so he need not smile away his misfortunes and sorrows at being associated with such characters as sit beside him. So I think I have achieved my object in having that reaffirmation of the Government's determination to visit ill on the people and the development of Scotland, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 8.32 p.m.
Lord Ross of Marnock moved Amendment No. 16:
After Clause 24, insert the following new clause:
§ ("Public Processions
§ .—(1) Any person intending to organise or conduct a public procession shall give notice thereof, of the route proposed to be taken, and of the date and time on and at which it is intended that such procession will take place, to the regional or islands council in whose area the procession is to be held, or if it is to be held in the areas of more than one such council, to each such council at their main offices, not less than seven days before the day proposed for such procession.
§ (2) Any person organising or conducting any public procession—
- (a) without notice having been given in pursuance of the preceding subsection; or
- (b) otherwise than in accordance with such notice (except where the proposals contained in such notice have been varied by an order under paragraph (a)(ii) of the succeeding subsection);
§ (3) (a) The said regional or islands council may make—
- (i) an order prohibiting any public procession; or
- (ii) such order as they consider necessary in the interests of public safety and order on the occasion of any public procession, and any such order may prescribe the route
1185 to be observed by any such procession and the date and time of the procession.
§ (b) Any person acting in contravention of an order made by a regional or islands council under this subsection shall be guilty of an offence.
§ (4) This section shall not apply in relation to a public or ceremonial procession regularly held.
§ (5) Any person who commits an offence under this section of the Act shall be liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding £500 or to both such imprisonment and fine.
§ The noble Lord said: My Lords, this is very important new clause and one that will not cost the Government a penny. It is one that will meet a very considerable and important need, particularly in Strathclyde. The power I am seeking is a power that is already possessed by Edinburgh and the Lothians area. It is a power possessed by practically all of what were the burghs in Scotland and which have been continued under the Burgh Police Acts.
§ The position in Strathclyde—and the main part of it which is concerned is Glasgow—is that if there is a procession that the police consider might lead to public disorder, they cannot ban that procession. They have to ban all processions, except those that can be construed as exceptions under the Public Order Act 1936. The difficulties in Strathclyde started about two years ago when the Troops out of Ireland movement held a march in April and it was opposed, as naturally it would be, by a different faction. There were 19 arrests and there were calls on the police. The trouble is that one procession of that kind leads to another. In 1980 the National Front appeared in Scotland. They proposed a march on the 15th March in Glasgow; and the Anti-Nazi League, the Socialist Workers Party and many others made public the fact that they would disrupt the procession. The Regional Council, with the consent of the Secretary of State, made an order under Section 3(2) of the Public Order Act, banning in Strathclyde Region all public processions. Of course, that Act did not really apply to religious, educational, festive, ceremonial or similar processions in the region, but they had to ban all processions in order to stop one.
§ Then we had the same thing again, in June. The recent troubles in Ireland led to another procession. There was violence and opposition of an unacceptable level, and indeed 152 arrests were made. After that there was a ban for three months on all processions. Whatever form of words is used in an order under the Public Order Act, some processions which in no way threaten public order are inevitably prohibited and, in the case of the present order which expires on 2nd July next, the Regional Council are now endeavouring to secure the consent of the Secretary of State to alterations in its terms, with a view to allowing certain processions, such as gala days, anti-nuclear processions, or processions dealing with unemployment to go ahead.
§ The Lord Advocate may perhaps be concerned in these kind of problems, but the point is that such problems would not arise in Edinburgh, in Dundee or Aberdeen. It is because Glasgow and Strathclyde are not covered either by the previous legislation of a fairly local character or covered by the Burgh Police Acts that they are in this position. I think that any reasonable person would agree that the council and the 1186 police have to act at some time in relation to particular processions, and that is all that this power I am seeking here gives them instead of having to ban all processions to deal with one that is going to cause public disorder.
§ It is sad that we have to resort to this action at all in this day and age after the centuries of tolerance that we have had. I have always been worried that certain troubles would spread into Scotland. They have not; and it says a lot for the communities, particularly in Glasgow and the West of Scotland, that we have had so little trouble. It is greatly to our credit and to the maturity of the people there and of everyone concerned therewith. But there comes a time when it may well be necessary to stop one procession. Why should everybody else have to be similarly troubled about this? I am just looking at the date: 2nd July—that is a relief. I think it is on the 20th July that I have to open a gala day at Darvel, and my wife has to crown a queen. But it might well have been that that could have been stopped, as another procession. The police have shut their eyes in many cases to processions which they know will not cause trouble. But when we consider all that is involved in a small community when they suddenly discover that, because one particular procession had to be banned, all processions are banned and a function of theirs is thus completely disrupted, I think we will appreciate it is time we gave consideration to Strathclyde.
§ The Government will say: "Wait, we have in our minds a great new Civic Amenities Act". They have had that in their minds since the reconstruction of local authorities in Scotland, in an Act of 1973, eight years ago. When is it coming? At the earliest they would have their powers, I think, at the beginning of 1983. I repeat, that is at the earliest. When I was Secretary of State they were working on these Bills. This is not a great new reforming character: this is gathering together all the by-laws and local public order Acts and making sense of them in terms of the new structure of local government.
§ We have had to continue these powers from year to year, and if this House of Lords thinks that this Bill has taken a long time, I can assure them that the place will be packed when we deal with all the various Bills about washing-houses and hanging out things in streets in Edinburgh and other such strange things: we will have a field day. We shall have a field week of it. The noble and learned Lord does not know what is coming his way in respect of this. In my day, there were going to be two Bills, but now it is to be one mammoth Bill. So they do bits and pieces here and there and, in the meantime, everything is held up. Would it not be sensible to deal with this problem and get it out of the way? It is an urgent problem. It is urgent from the point of view of Strathclyde. It would be sensible to do it and it would not cost the Government anything.
§ I have in front of me the Edinburgh Corporation.Order Confirmation Act 1967 and the new clause follows that, virtually word for word. Strathclyde is not asking for any power that is not already there for Edinburgh; and, of course, it is now applicable to the area itself. In the interests of justice, of public order and of common sense, I urge this new clause upon the Government. If they are worried about the fact that this would mean that the Bill would go to another 1187 place, which is something that they do not want, I would point out that it is going there anyway. It will meet no opposition there. Here is a chance for the Minister of State to stamp his authority upon Scottish legislation and say "Yes, this is sensible. This will be done later on, anyway. Why not do it now when it is needed?" My Lords, I beg to move.
§ 8.42 p.m.
§ The Earl of Mansfield
My Lords, this amendment has very considerable implications. I must do justice to the amendment and to the manner in which the noble Lord has moved it. I say that not by way of a threat, but more as a promise that I shall have to take a little time. In moving the inclusion of this new clause, the noble Lord, Lord Ross of Marnock, has raised a matter that, as he said, has, unhappily, been assuming considerable importance and occasioning much concern in certain areas of Scotland in recent months. The problem of controlling public processions in the interests of preserving public order is not an issue that has greatly exercised Scottish local authorities in the past, for until comparatively recently we have been spared the disturbances, the controversy and the violence that have from time to time accompanied processions of one kind or another in various parts of England; mainly, but not exclusively, in London. That happy position has shown signs of changing and of late we have seen several marches, or proposed marches, in Glasgow and elsewhere which have posed a real threat to the maintenance of public order. This is, therefore, a matter of considerable concern to Government and local authorities alike, and it is obviously something which will have to be corrected in due course.
At this somewhat late stage of the Bill's passage, I do not propose to range widely over the philosophy of public demonstrations. There is much that could be said: whether there is, or should be, an absolute right to process, or parade or demonstrate in public; whether this right should give way to the general right not to be impeded or incommoded by those who wish to process; whether there should be a right to limit or ban what is commonly seen as a basic freedom in a democratic society and on what grounds and by whom such a ban should be exercised. These are large and complex questions, and the answers are not at all clear, nor is there general agreement on most of them. I mention them simply to indicate that the subject of the new clause is highly controversial. I come to my first main point. I question whether it is right that, on a matter of such public controversy, a general power of the kind contained in the clause should be conferred on local authorities in Scotland at almost the final stage of this Bill, and without, as far as I know, any specific consultation with the Convention of Scottish Local Authorities.
The noble Lord made the point that there are local powers available and I acknowledge that. There are powers available to Scottish local authorities to regulate and control public processions. But those powers are uneven. The position is complex and it varies from place to place. But that unsatisfactory state of affairs is well recognised and the Government are taking steps to rationalise the position, which is what I think 1188 the noble Lord would like to see happen.
Whatever happened when he was Secretary of State for Scotland, we outlined proposals last year to create a new code of civic government in Scotland to replace existing Scottish local legislation, including existing provisions relating to the regulation of public processions. A draft Bill was published last July for discussion, and in that Bill the Secretary of State set out provisions giving regional and island councils powers broadly of the kind proposed in the noble Lord's amendment, but containing a good deal more detail on procedure and on such matters as rights of appeal. These proposals, unlike those which the noble Lord, Lord Ross, is now putting forward, were the subject of full discussion with the Convention of Scottish Local Authorities and other interested bodies in Scotland, and the intention is that they should replace, and not overlap or duplicate, existing provisions.
Then we come to the Public Order Act 1936 which stands, as it were, behind the local powers. These are already available to regional councils throughout Scotland. Unlike the local Acts, which are unspecific about the reasons on which the prohibiting powers may be exercised, the powers in the 1936 Act can be invoked only where serious public disorder is feared. Action under the 1936 Act is triggered off by the professional judgment of the chief constable as to whether any procession or class of procession is likely to occasion serious public disorder, and not by any regard to the nature of the views which the procession is to promote.
These public order provisions are, as I have already indicated, presently available to regional councils and we think it would not be helpful in an already complex situation if, at this stage, there were to be added to them throughout the country, and to the existing local powers, a further layer of powers as proposed in the noble Lord's amendment. If I have any quarrel with him on what he said factually, an order made under the Public Order 1936 Act can be revoked, and has been this year; and although the idea is abroad that the 1936 Act cannot be used selectively, in fact it can, although I acknowledge that it is a very cumbersome piece of legislation.
Last year the Government—I am not talking only about the Scottish Office—put in hand a comprehensive review of the Public Order 1936 Act and related legislation, and the many complexities and problems inherent in this difficult area of legislation were documented in a Green Paper which was issued for discussion in April 1980. There has been a good response to that paper. We are currently considering the many and varied views expressed on it. So it would, I suggest, be singularly unfortunate if, at an advanced stage of this general and controversial matter, your Lordships' House were to step in and pre-empt consideration by conferring these additional powers throughout Scotland, and throughout Scotland alone.
I have spoken mainly so far in terms of Scotland, because the proposed new clause extends to all regional and island councils. But the noble Lord, Lord Ross, made it entirely clear that his real purpose is to provide within the Strathclyde region, and more particularly within Glasgow, powers akin to those available to the local authority in Edinburgh and also elsewhere. In the Government's view, however, to confer these 1189 powers at this stage as proposed is unnecessary, likely to lead to confusion and premature. I say "unnecessary" because, although it is intended to deal with the occasional serious public disorder, powers to do so are already available under the Public Order Act and, as has been demonstrated in Glasgow last year, and very recently, they work perfectly adequately.
I say confusing because, if it were enacted, the power given to regional councils to ban processions would operate alongside those existing powers which are available to local authorities in Scotland. It would be premature because the Government are presently reviewing in depth this complex matter and intend in the Civic Government (Scotland) Bill which is scheduled for introduction later this year to include appropriate provisions relating to public processions which will reflect not only the discussions already held with interested Scottish bodies but also the conclusions of the general review.
As I said earlier, I have sought to avoid dealing with general aspects of this very complex matter. I have confined myself to arguments relating to the proposed clause. I suggest to your Lordships that on an issue such as this which is surrounded by a great deal of controversy it would be unwise to enact this clause giving to local authorities powers which they do not need, which might well lead to confusion and which would pre-empt the outcome of the review in progress. For all these reasons and although I entirely accept the motivation of the noble Lord in moving his amendment, I suggest that this is not the right moment to write it into the law. I very much hope, therefore, that the noble Lord will be content to withdraw it.
§ Viscount Thurso
My Lords, before the noble Earl sits down, could he confirm that the Civic Government (Scotland) Bill is the one which was shown in draft to the Convention of Scottish Local Authorities?
§ Lord Ross of Marnock
My Lords, I have raised this matter even though the Government have it in mind to do something about it. They realise that there is a problem. The hope was that a draft Bill would be introduced this session. Local authorities are now led to believe that it will be introduced next session. If that Bill were introduced next session, power will be in the hands of local authorities to ban particular processions, upon certain conditions, at the earliest by the year 1983. Nobody will stand up in this House and say that the kind of trouble we have had in the past in Scotland will not occur during the remainder of 1981 and throughout 1982. The Minister says that this clause is unnecessary, yet at the same time he says that it is desirable. He says that it is unnecessary because the Public Order Act can be used. But that Act can be used only if, in seeking to ban one particular procession, all processions for a period are banned. There is certainly the question of exemptions or exceptions, but as the Government have themselves admitted, this is a very difficult area in relation to words which may allow one type of procession to escape a seemingly total ban.
The Minister says that there will be confusion because 1190 local authorities already have powers. With due respect, there is already confusion because the Public Order Act 1936 applies to all local authorities, while local authorities in Scotland, as a result of powers given under the Burgh Police (Scotland) Act 1892, have other powers. The powers which I seek to give, which will be only temporary powers because they will be overtaken by the Civic Government (Scotland) Bill, are already in existence. They exist already in the case of Edinburgh and in the case of the other burghs. To suggest that all this trouble relates only to Glasgow and Strathclyde is a bit of a nonsense.
Some people will not like this amendment because it is controversial. Whenever a restriction upon freedom is imposed somebody will not like it. However, when such freedom is used to disturb order and to create not just controversy but strife, the Government are justified in doing what I suggest should be done, if only it be to cover the period 1981 and 1982. I have known Governments plan Bills, sit down in committees and work out priorities: which Bill should come first and which should come next. It is amazing how one year becomes two years, how two years become three, and how three years become virtually a lifetime. I remember that almost sacred on the shelves of St. Andrew's House there was a Slaughterhouses Bill which remained there for years and years. I do not understand why the Government cannot accept the amendment. It is so reasonable that even I, who seldom put forward anything which is unreasonable, must insist upon going ahead with it and pressing it to a Division.
§ 8.56 p.m.
§ On Question, Whether the said amendment (No. 16) shall be agreed to?
§ Their Lordships divided: Contents, 19; Not-Contents, 69.1191
|Bishopston, L.||Maelor, L.|
|Collison, L.||Noel-Baker, L.|
|David, B. [Teller.]||Peart, L.|
|Davies of Leek, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Hughes, L.||Ross of Marnock, L.|
|Jeger, B.||Stewart of Alvechurch, B.|
|John-Mackie, L.||Stewart of Fulham, L.|
|Kirkhill, L.||Underhill, L.|
|Llewelyn-Davies of Hastoe, B.||Wells-Pestell, L.|
|Abinger, L.||Denham, L. [Teller.]|
|Airedale, L.||Drumalbyn, L.|
|Alexander of Tunis, E.||Dundee, E.|
|Ampthill, L.||Elgin and Kincardine, E.|
|Avon, E.||Faithfull, B.|
|Bellwin, L.||Ferrers, E.|
|Belstead, L.||Gainford, L.|
|Boardman, L.||Gisborough, L.|
|Bradford, E.||Glenarthur, L.|
|Brougham and Vaux, L.||Greenway, L.|
|Caithness, E.||Gridley, L.|
|Campbell of Croy, L.||Grimthorpe, L.|
|Cockfield, L.||Hampton, L.|
|Cork and Orrery, E.||Henley, L.|
|Craigmyle, L.||Home of the Hirsel, L.|
|Crathorne, L.||Hooson, L.|
|Cullen of Ashbourne, L.||Kemsley, V.|
|de Clifford, L.||Long, V.|
|De La Warr, E.||Loudoun, C.|
|Lucas of Chilworth, L.||Sharples, B.|
|Lyell, L.||Skelmersdale, L.|
|McFadzean, L.||Stamp, L.|
|Mackay of Clashfern, L.||Strathclyde, L.|
|Macleod of Borve, B.||Sudeley, L.|
|Mansfield, E.||Swinton, E.|
|Margadale, L.||Thurso, V.|
|Marshall of Leeds, L.||Tordoff, L.|
|Monk Bretton, L.||Trenchard, V.|
|Mottistone, L.||Trumpington, B.|
|Northchurch, B.||Vaux of Harrowden, L.|
|Orkney, E.||Vickers, B.|
|Rochdale, V.||Vivian, L.|
|Sandford, L.||Wigoder, L.|
|Sandys, L. [Teller.]||Winstanley, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Clause 26 [Consent to local authority incurring liability to meet capital expenses etc.]:
§ 9.4 p.m.
Lord Ross of Marnock moved Amendment No. 17:
Page 12, line 24, after ("relates") insert ("and the Secretary of State shall accept liability for any frustrated expenditure incurred by the local authority concerned and claim for compensation that may arise from the action of the Secretary of State in operating the powers in this section.").
§ The noble Lord said: My Lords, Clause 26 deals with the consent to local authority incurring liability to meet capital expenses. The Government have certainly covered all doors, windows and bolt holes to ensure that the local authorities are completely imprisoned within the confines of this financial straitjacket (I am mixing my metaphors slightly and I hope I may be forgiven) and they are determined to ensure that the local authorities toe the line. In fact, they are taking the power to withdraw the terms of the consent that has already been given for capital expenditure, and I am sure that if some particular contract has got to a certain point the local authority will have incurred considerable liabilities. That may be to architects or to others or it may even be compensation.
§ If they are in that position as a result of a decision by the Secretary of State I think it is only right that the Secretary of State should accept liability for such frustrated expenditure and repay that to the local authority. Of course, we have had experience of this in Scotland before. If I should stray into the paths of football, I know it is a very touchy subject for the English because their behaviour is so disgraceful as compared with the Scots when we came to Wembley; having almost denied us the right even to be there, we not only got there but we won and we behaved ourselves. Not for the first time we have shown that the poor opinion that some people have of us is quite wrong.
§ Still on the theme of football, in Glasgow we have a unique stadium, the focus of all opinion and all the events in relation to football, and that is Hampden Park. I am sure that the noble Lord, Lord Lyell, will know it well, and he will also know the saga of Hampden Park, but it does not belong to the Scottish Football Association or to the Football League. It belongs to an amateur football club—Queen's Park—which I am glad to say has got out of the third division and earned promotion this year into the second division 1192 —indeed, I should say the first division; it is confusing because the top division in Scotland is called the premier division. Here all cup finals, all internationals, all World Cup games, and even the final of the European Cup have taken place in Hampden Park.
§ There was a great scheme involving the local authorities, the Government, the clubs, everybody: the go-ahead was given, plans were drawn up; work was virtually started when an edict went forth from No. 10 Downing Street to the effect that Government support should be withdrawn. The question was who was going to pay for the frustrated expenditure. On the belief that one can trust a Tory Government those concerned had started on this scheme and incurred a very considerable amount of expenditure. I am glad to say that eventually the Government saw reason and met the frustrated expenditure, up to a point anyway.
§ If it is right at that particular point, where contracts had been entered into and work had been done, for compensation to be paid, then it is right that the Government should pay compensation to the local authorities in respect of the expenditures we are considering. Those who say the Government should have the power to intervene in this way, at this time, should face up to the obligation of their support for the Government and support this new clause. I beg to move.
§ Lord Lyell
My Lords, we are all fascinated to hear from the honourary President of the Scottish Football Association about the doings of Queen's Park, but I hope the fanatics of the game will not care to read the noble Lord's remarks about third and second division. That would go down well North of the Border! Perhaps they might care to read his remarks just as they read those of us on this side of the House, but I think not. The noble Lord's remarks are on the record and we shall look forward to examining them tomorrow with great care.
All of us will sympathise, and especially the noble Lord, Lord Ross, with the concern that a local authority might be led, by the existence of a consent, into incurring some form of liability but then be left with nugatory expenditure when that consent is withdrawn. But I would hope to show that the noble Lord's anxiety is unfounded. I would take it that this is what the noble Lord intends by his phrase "frustrated expenditure"; indeed, I think this follows from the gist of the remarks that he had to make about Hampden Park.
It is as well that the House should consider how expenditure like this could arise. It could not arise simply because the local authority had entered into a binding contract arising from an existing consent, since, as the noble Lord and the House will see, subsection 1B) states expressly that a consent may only be varied or withdrawn where or in so far as a local authority has not incurred by binding contract the liability to which the consent relates. This qualification would seem to rule out the possibility of any claim for compensation being lodged by a contractor against a local authority in consequence of the Secretary of State's action. This is one of the circumstances to which the noble Lord's amendment is addressed.
But of course we do recognise that, quite apart from circumstances where legal obligations are 1193 involved, authorities frequently plan a series of projects where each will depend on another, and indeed good value for initial expenditure may not be obtained until the later stage is completed. To take one example, a playing field might be constructed as part of an environmental rehabilitation scheme but the pavilion or other facilities would certainly be needed before the playing field could be utilised adequately and to the maximum. Such cases as this, and indeed far more complicated cases, are common and are often the subject of particular attention in the financial plans of local authorities. Naturally, in setting allocations, the Scottish Office attempts to provide what are and seem to be sensible solutions within the resources available. But, of course, this kind of case has nothing to do with Clause 26—it is a matter for the normal annual process of setting allocations.
I hope that the House will bear with me if we examine the exact purpose of this particular part of Clause 26. The purpose of the new provision being inserted in Section 94 of the 1973 Act is to enable the Secretary of State to be more flexible in the management of the financial planning system. As part of this an explicit power to withdraw consent is necessary and, indeed, might be used in a variety of circumstances. Often this may be a routine matter where, because of some element of slippage, particular authorities may be unable to use the amounts for which they have consent, or where individual authorities may wish to transfer resources between their various service programmes. In such cases withdrawal of consent and the transfer of resources to another authority or to another programme would improve the management of these finite resources.
The power to withdraw consent is also, of course, necessary to enable the Secretary of State to take whatever action is required to safeguard the cash limit, should there be evidence during the year that expenditure is going faster than had been expected or, indeed, budgeted for. In such circumstances the Secretary of State might wish to restrict new commitments by withdrawing all or part of the amounts of consent which are unused. In those circumstances it cannot be emphasised too strongly that the proviso which is contained in the new paragraph would prevent the Secretary of State from taking any action which would render unlawful expenditure which had been incurred by an authority in good faith under its original consent. I assure your Lordships that the new power will be used as intelligently and responsibly as the existing powers, and in the light of that assurance I would ask the noble Lord, Lord Ross, not to pursue his amendment further.
§ Lord Hughes
My Lords, the noble Lord, Lord Lyell, pointed out that the clause as it stands excludes the situation where a binding contract, for instance, to put up a building, has been entered into. That will not be affected. The consent cannot be withdrawn in those circumstances. However, my noble friend's amendment refers to expenditure which a local authority may have entered into in good faith as a result of a consent given. I am thinking in the building context which is familiar to me. They may, in fact, have entered into a commitment with an architect. As we 1194 know, the Government have encouraged the employment of outside architects as a way of cutting down on the permanent staff that may be employed by a local authority. That is nothing new. They have been encouraging that for quite a long time.
If, in fact, an arrangement has been made with an architect and then the project has to be abandoned because the consent is withdrawn, would the authority be left to carry the burden of the payments which would have to be made to the architect? There are provisions in architectural commitments, as I think the noble Lord well knows, for standard payments to be made where there is a frustrated commitment. One does not just say to the architect, "Thank you very much. Goodbye". He has to be paid certain sums or certain percentages, depending which stage the job has reached. In those circumstances, would the local authority be left to carry the burden of the job which they were being prevented from carrying through to completion, or would there, without the type of amendment which my noble friend has suggested, be provision for the local authority having this taken into account either in grant or in direct compensation?
§ Lord Lyell
My Lords, I had the feeling that the noble Lord, Lord Hughes, was attempting to lead me—indeed, he may well be leading me—down a slippery slope towards a major trap as far as the particular activities of architects are concerned.
§ Lord Lyell
My Lords, I take the noble Lord's word. However, I am sure that the noble Lord will see all the way through the particular paragraph that the local authority may vary consent. I think that the main reply to his query is contained in the words:incurred the liability to which the consent relates".The word "liability" in line 23 would cover all forms of expense which would be appertaining to that particular class of expenditure by the local authority. There might well be other professional fees or other (shall we say?) intangible expenses which would be classified under this lump sum of expenditure, which would be covered by the remarks that I made earlier and, indeed, which are covered by the paragraph. That is as I understand the position. However, if I am wrong, perhaps I may communicate with the noble Lord in writing. As I understand it, the position is that liability covers all the points that he raised, especially in relation to architects.
§ Lord Ross of Marnock
My Lords, I hope that the Government are absolutely sure that these words are right and that they themselves are covered. I am more worried about the local authorities and the liabilities into which they enter. It may be preparatory that, having obtained the consent, a certain amount of expenditure is involved before they enter into the contract. I am perfectly sure that every local authority will look at these words very carefully in relation to what the Minister has said.
However, he will appreciate that to withdraw after a consent has been given or to vary the conditions after that has been decided is a very serious matter 1195 indeed. I hope that the Government will not use this power of withdrawal and variation lightly. The noble Lord will know what it has cost in relation to Hampden Park. I know that the Government do not like what they have done in relation to Scottish football to be mentioned or the odium that they have brought upon themselves by that decision. More or less within a week of having given written confirmation of what the Government proposed to do there, they came along and withdrew it. Of course, they discovered that because of what they did, expenditure was frustrated. The same kind of situation could arise with local authorities. Their lawyers will certainly look at this clause with some concern. However, I have no desire to delay the House, important though the matter that we are discussing is in relation to Scottish local government, the burdens that it has to bear and the perplexities and worries that it has as a result of this. Therefore, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 32 [Abolition of advisory committee on conservation and provision of water supplies etc.]:
§ [Amendment No. 18 not moved.]
§ 9.23 p.m.
Viscount Thurso moved Amendment No. 19:
After Clause 34, insert the following new clause:
§ (" Water escapes
. In the Water (Scotland) Act 1980, after section 10 (which provides for payment of compensation for damage resulting from exercise of powers) there shall be inserted the following section—
Civil liability of water authorities and water development boards in Scotland for escapes of water.
§ 10(A).—(1) Where an escape of water, however caused, from a communication pipe or main of water authorities or water development boards causes loss or damage the water authorities or water development boards shall be liable, except as otherwise provided in this section, for the loss or damage.
§ (2) Water authorities or water development boards shall not incur any liability under subsection (1) above if the escape was due wholly to the fault of the person who suffered the loss or damage or of any servant agent or contractor of his.
§ (3) The Law Reform (Contributory Negligence) Act 1945 shall apply in relation to any loss or damage for which water authorities or water development boards are liable under this section but which is not due to their fault, as if if were due to their fault.
§ (4) In this section—
- (a) "communication pipe" and "main" have the meanings assigned to them by section 109(1) of the Water (Scotland) Act 1980;
- (b) "damage" includes the death of or injury to any person (including any disease and any impairment of physical or mental condition);
- (c) "fault" has the same meaning as in the Law Reform (Contributory Negligence) Act 1945;
- (d) "water authorities" and "water development boards" have the meanings assigned to them by sections 3 and 82(1)(a) of the Water (Scotland) Act 1980.
§ (5) This section shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint"").
§ The noble Viscount said: My Lords, last time I moved this amendment was at the Committee stage 1196 and I apologised then for the late hour at which I brought it before your Lordships' Committee. I am afraid that I have to apologise again for moving this amendment at a late hour in your Lordships' House. However, the last time I apologised for having moved it at rather short notice; this time, I have to make no such apology. This amendment was moved in Committee and I withdrew it then because I felt that the Committee had not had sufficient time to consider it and its implications. Now I move it in the knowledge that your Lordships will have had sufficient time to read it and consider its implications.
The intention here is to clarify the law, which is uncertain in this particular area. This is an area which is extremely important to owners of land, houses or other heritable property. Nowadays water mains are so large that a burst could cause danger to buildings or massive damage to land. Section 10(1) of the Water (Scotland) Act 1980 states:
… a district council or water authority or water development board shall make full compensation to any person who has sustained damage by reason of the exercise by them of any of their powers under this Act in relation to a matter as to which he has not himself been in default".
You might think that any reasonable person reading this section of the Act would understand that the private person was indemnified against anything going wrong—a water main bursting or damage of any other sort. But unfortunately it appears that this is not so.
§ This section of course has never been judicially tested, and, although one might assume that if negligence were proved there would be recourse in common law to a claim against the water authority, counsel for the Scottish Landowners' Federation recently gave an opinion that a water authority was only liable during the exercise of its powers—that is, while a pipe is actually being laid or when a water track is actually being opened—and that there would be no liability in the event of a subsequent burst. It is also quite clear that water authorities in Scotland agree with this opinion. They consider themselves to be not liable should their water main burst and wash away your house; should their water main burst and wash away large chunks of your land or damage your heritable property in any other manner.
This was thought to be an inequitable situation in England. It was thought unfair that the private citizen should be exposed to such danger without any liability falling upon the person or authority who owned and operated the main, and in England a suitable amendment has been agreed to by the Government. In this case I am only asking for parity for Scotland. When I brought this up before I was given two answers by the noble Lord, Lord Lyell. He may remember them. He said:
The question of strict liability was necessary in English law because in England and Wales a test case showed that compensation is payable only in cases of negligence".—[Official Report, 5/5/81; col. 107.]
Now we have a counsel's opinion which says that compensation would only be payable in cases of negligence in Scotland. So we can assume that the situation in Scotland is likely to be the same as that in England. But the noble Lord, Lord Lyell, would wish to have some poor chap have his house washed away, or his garage washed away, or his land washed away, then for him to go to the expense of taking a
case so that he could become a test case, then to lose his test case, his money, his house; and then he would be willing to consider legislation. I think that this is a bit hard, and I think I would be not unreasonable in asking the noble Lord, Lord Lyell, to think again on that answer.
The other answer he gave me was:
In this case the imposition of strict liability would have a substantial impact on the expenditure of Scottish local authorities."—[Col. 107.]
Well, are we to assume from that that vast water mains are bursting all over Scotland and that damage so caused would cause enormous claims to fall upon local authorities? Not so. What we are trying to do is to ensure that, if a water main bursts and causes very considerable damage to a small person in a small area, this damage is compensated by somebody who can afford to pay.
§ There are not an enormous number of water mains that burst all over Scotland every year, but if one water main bursts and washes your house away this is a very important matter to you and one which you can probably with difficulty cope with. It is likely that whatever your insurance is there will be some small print that will make out that you are not liable to get full compensation for it. I feel that if this is equity in England it should be equity in Scotland. It is for that reason that I bring this amendment before you.
§ It is rumoured that the Government may have some intention, after consultation, of bringing forward legislation similar to this amendment. If they will give me the name of the Bill in which they intend to insert such a provision and an assurance that such legisation will be brought forward, I shall be prepared to withdraw the amendment. If, however, they can mention no such Bill and will not give an assurance that such a provision will be introduced, and if they have no intention of giving cover to the ordinary citizen of Scotland against a burst water main, I shall have no option but to press the amendment. I beg to move.
§ 9.31 p.m.
§ Lord Lyell
My Lords, the amendment, moved eloquently by Lord Thurso, is identical to one he moved at an earlier stage of the Bill. We have therefore discussed it at some length, but I hope he will find my remarks on the subject tonight a little different and that they may satisfy him rather more than he felt was the result of my reply at the earlier stage. The Government's position has never been negative; indeed, we are actively considering how the law in Scotland should be changed, but there are good reasons why action immediately would not be justified, and I shall explain the reasons, albeit briefly.
It is true that as yet there has been no test case in relation to such a disaster, not even in respect of one house, as explained by the noble Viscount, to determine the extent of liability under existing Scottish law. However, we understand, given counsel's opinion about the matter, that it is unlikely that anyone would wish to go to the trouble and expense of such a case. But the Government are certainly not sitting back waiting until a test case appears. On the contrary, we have already opened discussions with the Convention of Scottish Local Authorities and we intend to take an early decision on the matter. If we decide to legislate, 1198 I undertake that the Government will identify a suitable vehicle next Session. I therefore hope that any worries which may be in the mind of the noble Viscount, or in the minds of any noble Lords, about the need to test existing legislation, can be set aside.
Our consultations with the Convention of Scottish Local Authorities must be genuine. It was possible for the Government to act expeditiously for England and Wales, and to accept the spirit of the amendment during the passage of the Water Bill, because English and Welsh water authorities are not local authorities; their practices are often different and they are financed in a different way. Basically, their revenue comes from charges to consumers, as with other statutory undertakers, such as gas and electricity boards.
All in all, a change in the law for England and Wales does not have the same public expenditure implications as a change in our law in Scotland might have. If the existing law in Scotland is causing hardship to farmers in particular—and I would emphasise that this point has not been quantified, although we in the department requested information from the NFU for Scotland and the Scottish Landowners' Federation well over a year ago—there could be serious implications both for public expenditure (albeit small overall, but large for the locality) and for the rates. In this rather thorny field we must make sure that the implications are properly considered before we enact legislation.
The amendment proposed by the noble Viscount is somewhat narrow. Well before the Water Act 1981 was enacted the department was in touch with the convention about the possible need to make similar provisions in our legislation, notably as regards common service pipes for housing, and water for various purposes, such as fire fighting. When the amendment relating to strict liability was introduced it was represented that it, too, ought to be discussed. The Government want to consider all these provisions together and of course to do so as swiftly and as expeditiously as possible.
I am entirely aware that compensation has been the subject of detailed discussions in the past between landowners and both the convention and the department. But the discussions covered a very wide field indeed and were not related to a model for legislation, as is now the case. On the particular problem of compensation for damage to agricultural land, the convention indicated in the discussions that it would not necessarily oppose legislative change. Therefore there should be scope for genuine discussion now and the department intends to proceed on this basis.
I hope that the noble Viscount will be aware—I am sure that your Lordships' House will be interested to know—that consultations are at present in progress with both the Convention of Scottish Local Authorities and the National Farmers' Union. I have instructed officials urgently to carry out further consultation with the Scottish Landowners' Federation in concert with the National Farmers' Union. Unless some difficulty arises from the consultations, I shall confirm the intention of the Government to introduce legislation on this subject, covered in the noble Viscount's amendment, to make in Scots law changes corresponding to those recently agreed for England and Wales. That is a firm commitment.
1199 I am sorry that I cannot give the exact name of the Bill because, as the noble Viscount will know, at present various ideas regarding legislation are in the pipeline. There are varying engines or machines which will carry the legislation sought by the noble Viscount in his amendment. I am afraid that we cannot be in time to act under the Bill which we are discussing this evening. However, I hope that the explanation, and indeed the commitment, that I have been able to give will be of considerable assistance and will satisfy the noble Viscount and the House.
§ Lord Hughes
My Lords, I should like to ask the Minister a question. I am not quite certain whether I heard him aright when he first spoke about a vehicle in which such provisions might be included in the next Session. I am not certain whether before that he said, "if the Government decide to legislate". But he might have done so, because when he came to what looked like being a very firm assurance of legislation in the next Session he preceded the assurance with the words "unless some obstacle arises", or words to that effect. What kind of obstacle or difficulty might arise which would stop the Government from proceeding with their declared intention of legislating in the next Session?
§ Lord Lyell
My Lords, I would not want to go any further than to say, unless some difficulty arises from the consultations that are under way at the moment. I do not think that the noble Viscount would want us to select any idea which might arise in our minds and suggest that that should be the main stumbling block to enacting the legislation. We do not think that there will be any major difficulty, but we still have to allow for the possibility of some major difficulty arising in the consultations. However, I think that I have given a very firm commitment that we intend to meet the intention behind the amendment.
§ Lord Hughes
My Lords, if the noble Lord, Lord Winstanley, will allow me, may I complete this point? I think that was helpful, because I believe that in the first instance the noble Lord, Lord Lyell, said "unless some difficulty arises", and in his second answer he said "unless some major difficulty arises". That, I think, puts a slightly different complexion on it.
My Lords, on the same point (if I can still be intervening in the noble Lord's speech) I would just ask whether there are any means whereby the noble Lord can confirm that, in relation to the kind of difficulty which he said might arise—he said, "unless some difficulty arises"—the Government themselves will not precipitate one of those difficulties?
§ Lord Lyell
My Lords, certainly the Government do not do things of this ilk. I am totally lost as to what the noble Lord is seeking, but certainly not.
§ Viscount Thurso
My Lords,If ifs and ands were pots and pansThere'd be no work for the tinkers"—or, in this case, for plumbers. I really do not honestly know what sort of an answer I have received from the noble Lord. He says that the Government are not 1200 likely to put any obstacle in the way of legislation. He says that the matter has been fully discussed with COSLA and that they have said that they see no reason why farmers should not be compensated. If farmers might be compensated, why not a poor little householder; why not a crofter? He said that there are still many matters to be discussed, and that discussions have been going on for a long time. I really do not honestly know what sort of an answer I have.
I should like to invite the House to state what it thinks about the matter, because the Government can always knock this out again at Third Reading if they can come with a better story. I think that we ought to ask noble Lords, having heard this discussion, whether indeed they think there is any point at all in waiting for legislation which may or may not eventuate. We have not been given the name of any measure which is likely to carry this kind of legislation; we have not been given any firm commitment that it will go into any one measure or another. I feel that in this particular instance I should ask your Lordships' House to give a verdict in the matter.
§ 9.43 p.m.
§ On Question, Whether the said Amendment (No. 19) shall be agreed to?
§ Their Lordships divided: Contents, 21; Not-Contents, 55.
|Airedale, L.||Plant, L.|
|Bishopston, L.||Ponsonby of Shulbrede, L.|
|David, B.||Ross of Marnock, L.|
|Hampton, L.||Stamp, L.|
|Hooson, L.||Stone, L.|
|Hughes, L.||Thurso, V. [Teller.]|
|Jeger, B.||Tordoff, L.|
|John-Mackie, L.||Underhill, L.|
|Llewelyn-Davies of Hastoe, B.||Wigoder, L. [Teller.]|
|Loudoun, C.||Winstanley, L.|
|Abinger, L.||Kemsley, V.|
|Alexander of Tunis, E.||Lauderdale, E.|
|Ampthill, L.||Long, V.|
|Avon, E.||Lucas of Chilworth, L.|
|Bellwin, L.||Lyell, L.|
|Belstead, L.||McFadzean, L.|
|Boardman, L.||Mackay of Clashfern, L.|
|Bradford, E.||Macleod of Borve, B.|
|Brougham and Vaux, L.||Mansfield, E.|
|Cockfield, L.||Margadale, L.|
|Cork and Orrery, E.||Marshall of Leeds, L.|
|Craigmyle, L.||Monk Bretton, L.|
|Crathorne, L.||Mottistone, L.|
|Cullen of Ashbourne, L.||Orkney, E.|
|de Clifford, L.||Rochdale, V.|
|De La Warr, E.||Sandford, L.|
|Denham, L. [Teller.]||Sandys, L. [Teller.]|
|Dilhorne, V.||Selkirk, E.|
|Drumalbyn, L.||Sharples, B.|
|Elgin and Kincardine, E.||Skelmersdale, L.|
|Faithfull, B.||Sudeley, L.|
|Ferrers, E.||Swinton, E.|
|Gisborough, L.||Trenchard, V.|
|Glenarthur, L.||Trumpington, B.|
|Greenway, L.||Vaux of Harrowden, L.|
|Gridley, L.||Vickers, B.|
|Grimthorpe, L.||Vivian, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ [Amendment No. 20 not moved.]1201
§ 9.50 p.m.
Viscount Ingleby moved Amendment No. 21:
After Clause 35, insert the following new clause:
§ "Access Officers
§ . Each local authority shall designate one of its officers to be the Access Officer who shall act as a liaison officer and coordinator in the area of that authority on all matters involving access for disabled people to buildings and other facilities and the application of the British Standards institution's Code of Practice, Access for the Disabled to Buildings', BS 5810: 1979, or such other code or codes as the Secretary of State may prescribe."
The noble Viscount said: My Lords, in moving this amendment which is one of the recommendations of the Silver Jubilee Committee on aspects of concern for the disabled, I should like to draw attention to the fact that the Government amendment which we shall be considering shortly is concerned only with new buildings. There are of course very many more existing buildings which disabled people would like to use if they were accessible to them. One example came to my hand only today, in the May issue of the news magazine concerning the International Year of the Disabled. This reports the conference of the National Council of Women held in Edinburgh which was attended by some 350 women from all over the country. I quote:
No woman present could fail to notice the problems of the disabled delegates coping with the access to Edinburgh University's tine modern common hall or the highly polished Gents with no hand rails".
We believe that every local authority should designate one access officer. He could act as a focal point for owners and developers who are seeking information and guidance on how to improve access to their buildings. He could also be in close touch with local action committees who do good work year in year out, bringing good-tempered, gentle, steady pressure on owners of existing buildings to make them accessible to disabled people. We believe that the right man in this job could achieve a lot as time goes on. I know that many local authorities in Scotland already have designated one of their officers as access officer. We believe all of them should do so; and not only in Scotland, but in England and Wales, too. I beg to move.
Baroness Darcy (de Knayth)
My Lords, I should like to say a few words in support of my noble friend's amendment. I think it would be helpful to have a known person to whom all general inquiries on access could be channelled. I should like to underline what my noble friend said about the access action groups which cover many types of disability, and not just the wheelchair but the blind and the ambulant disabled. They are necessary to keep a watchful eye open and to improve access at the grass roots. These groups cannot operate in isolation. They must co-operate with the local authorities. Therefore, this access liaison officer would be an essential and valuable member of any access action group.
Almost every local authority in Scotland has designated an access officer; so that it is not asking too much. I think it will be helpful to have it in the Bill to ensure that the few remaining authorities do likewise. I hope the Minister will be able to accept it.
§ Baroness Masham of Ilton
My Lords, I support this amendment. Your Lordships will know, I am sure, that the needs of disabled people are very varied according to their many different disabilities, and they need keeping up to date with changing circumstances. An access officer seems to be a necessary person to see that all their needs are catered for. It is most frustrating to go into a community hall, as f did last week, to find two newly-adapted lavatories for the disabled—one for men and one for women, well signed with a wheelchair sign—and to be dismayed to see that both have solid fixed rails on either side, thus preventing anyone in a wheelchair from using them. This is typical of the ambulant disabled being catered for and not those in wheelchairs. To give access to both, a movable rail should have been provided and not a fixed one. With the British Standards Institution's code of practice, Access for the Disabled to Buildings (BS5810: 1979), I hope that this sort of thing will not continue to happen. An access officer would, I am sure, be a most helpful and useful member of a local authority team.
§ Lord Renton
My Lords, I, too, should like to support this amendment. There is only one point I wish to make in regard to it. Your Lordships may feel it is a very important point. ft arises on subsection (2) which says:This section shall come into operation on such date as the Secretary of State may by order made by statutory instrument appoint".By not fixing an appointed day for a very long time to come—perhaps years ahead—the purpose of this amendment could be completely frustrated. I am sure that your Lordships will feel that in this International Year of Disabled People the Government would wish to make the appointed day within that year. This is not going to be a very expensive way of helping our country to play its part in the International Year of Disabled People. Therefore one would hope for an undertaking from the Government in—as hope they may—accepting this amendment that they will say that the appointed day will come within this year, 1981.
§ Viscount Thurso
My Lords, it may help the Government to make up their minds if I were to tell them something of my own experiences in this matter. Even when everybody concerned is doing their best to provide access, it is sometimes difficult to do so. I was recently involved in adding a new public bar and games room to a small village pub in Halkirk. We decided from the start that there had to be access for people in wheelchairs. The architect was duly informed to design the building so that people in wheelchairs could use it. It was easy enough to get access from the street without steps, and to get up to another level we had a ramp. We also had a beautiful plan on paper for the toilets. I was there while the framing was being erected. I saw a nice large door frame for the toilet for the disabled. However, the door going into the lobby area where all the toilets met was of an ordinary size. Clearly, a disabled person would have to dismantle their wheelchair in 1203 order to get it through that door. They would then have to put it together again and enter the "loo". I pointed this out to the architect and builder and this was put right.
I came back at a later stage when the partition walls were up. I looked at the disabled people's toilet and said: "How does the disabled person turn round?" Nobody had thought of that. When they looked at the plan and checked the specification that they worked to they found they had constructed a toilet for an ambulatory disabled person; in other words, a person on crutches. Somebody in a wheelchair would have been able to enter because the door was wide enough, but all they could have done was to sit there and look at the "loo". That would not have done them very much good! It did far more good to take space from the ladies' toilet next door and use that in the disabled people's toilet.
That kind of thing occurs because there is not enough know-how. It would be immensely helpful if within the local authority there were people to whom anybody willing to help in this area could go for advice on these matters.
§ Baroness Macleod of Borve
My Lords, I should like to add my support to the comments that have been made. May I draw attention to the fact that, as we all know, the blind make up a very large proportion of the people with disability in our country. I should like to ask the Minister to be quite certain that if officers are to be appointed, wherever they are appointed they should know every facet—and there are so many—of disability, including blindness. We have here today so many excellent speakers; but I should like to speak up on behalf of the blind.
§ 10 p.m.
§ The Earl of Mansfield
My Lords, I appreciate very much the purpose behind this new clause and certainly there is an advantage in local authorities co-ordinating their policies and actions on the question of access for the disabled. But there are two main arguments against making it a statutory requirement to appoint access officers. First, it runs against current Scottish local government legislation which in general deliberately leaves the authorities themselves to determine the pattern and structure of their organisation in the light of their particular circumstances and needs. Secondly, in the present financial climate we think it would be wrong to impose on local authorities the requirement to designate staff as access officers because of the possible expenditure implications, and the designation of a statutory access officer may not in any case be the best means of promoting the needs of the disabled.
Having said that, it is of course already open to local authorities to make such appointments where they consider that to do so would be a good way of helping the disabled in their area. The convention accepted a recommendation from the Access Committee of the Scottish Council on Disabilities that local authorities should consider the appointment of access officers and commended it to individual local authorities at 1204 the end of last year. We understand that many local authorities have already acted on the recommendation, and it seemed to the Government best to proceed on this basis.
It is better, I feel, that authorities should make such appointments on a voluntary basis rather than be forced into the position of designating an official as "access officer". As the noble Baroness, Lady Darcy (de Knayth), has said, most local authorities if not all have accepted the recommendation of the Access Committee of the Scottish Council on Disabilities and have already appointed access officers.
In the circumstances, it seems to us that this flexible approach is the best way forward since it leaves authorities to take account of the circumstances in their areas and then decide what is most appropriate. We are going to come a very long way in this Bill from when it first saw the light of day in the other place, and I would hope that in the particular circumstances which I have outlined in regard to this amendment it would be possible for my noble friends and those who have subscribed to this amendment to withdraw their new clause.
§ Lord Wilson of Langside
My Lords, I had not intended to intervene at this stage on this particular amendment, but, having listened with great interest to everything that has been said in the debate, I feel compelled to intervene, and for this reason: no one has spoken against the amendment at all. All who have spoken have spoken in favour of it. Two reasons have been advanced in answer to it. The first is that it is against the current approach of Government to Scottish local government problems. I find that a quite astonishing proposition in the light of the various powers which different Governments have taken to control Scottish local government operations since 1966. I must say I find this, the first of the two answers of the Government to this amendment, a little startling and certainly unconvincing.
The second head of the Government's answer thought even more startlingly unconvincing and even worse. That is the suggestion that somehow or other it has expenditure implications. I find it quite impossible to believe that in any local authority, even the busiest, there is not a suitably appointed officer to discharge the kind of functions envisaged here. Of course, there is a lot to be said for the voluntary principle.
All I rise to say, having listened to the debate on the matter, is that I should have thought, on balance, there was no doubt at all as to what, on the basis of the arguments to which we have listened, the answer of the House should be. But, of course, it is not for me to say and I shall quite understand if those who have put down this amendment prefer to withdraw it. I can see the force of leaving it to the decision of the people on the spot, and it is for others to decide whether they will withdraw the amendment. But having listened to the debate, I thought I should at least say what I have said.
§ The Earl of Lauderdale
My Lords, when I heard my noble friend talk about a flexible approach, I knew that 1205 this was damning with faint praise. We have been given no assurance that these officers will be appointed; we have merely been told that they can be appointed—
§ The Earl of Mansfield
My Lords, I very much hesitate to interrupt my noble friend, but if he had been listening he would have heard two speakers in this debate—the noble Baroness, Lady Darcy (de Knayth), and me—say that, in fact, in nearly all cases they have been appointed.
§ The Earl of Lauderdale
My Lords, the whole point is whether it is compulsory and they all have them. It is a question of whether they ought to have them or whether they may have them. That is the point. We are told that it is a question of cost, when the job can be doubled up with another. Then we are told that this is against the Scottish custom. All I say is "fiddlesticks." I think that my noble friend's answer is really shameful. It is not for me to advise others, but I hope that they will press the amendment.
§ Lord Ross of Marnock
My Lords, I did not think that I would require to venture a word at all on this subject. I really thought that the Government would have accepted this amendment. If noble Lords who are now present had been here earlier, they would have heard exactly the kind of attitude that the Government have been taking towards local authorities and local authorities' expenditure. This is a Scottish Bill, although I think most of the House is now composed of people who are, generally speaking, less interested in Scotland. But they see an opportunity within the Bill that opens up the whole field of local authority work to do something in respect of the disabled.
Scottish local authorities, particularly the main ones, may be way ahead of this clause and may already have done the appointing. But I can remember when we started work under the Social Work (Scotland) Act in 1968 how many local authorities there were in Scotland who were very proud of what they were doing, and who gave the impression that they were doing so much in respect of personal social services. But when we came down to it, we discovered that they were doing virtually nothing at all. We made them appoint officers; so much so that the appointment of certain officers was under the direct control of the Scottish Office. It was not left to the voluntary wishes of local authorities as to whether they would appoint social work directors. In fact, all those noble Lords who are so interested in this Bill will realise that, having had so many years of it, the appointments of directors of social work do not now have to be approved by the Secretary of State, but they still have to be appointed.
We now appreciate the importance of this to a section of our community, which cannot do things that we take for granted, and cannot go to places which are open to a great many people; not in one area but in every area. I should have liked to hear from the Minister how many local authorities concerned have actually appointed. I see no reason at all why we should not put this into the Bill. As regards cost, my noble and learned friend Lord Wilson of Langside is quite right. The amendment does not say that they must 1206 appoint a new officer. It says that they must designate one officer to be the access officer. That is not going to cost all that much; it may not cost anything at all. However, it will achieve a considerable improvement in the facilities available to the disabled.
The point was rightly made by the noble Baroness, Lady Macleod of Borve, that we must not think of only one section of the disabled. A problem can be solved for one section and then we discover others about whom we have forgotten. The application of a lively mind is required to ensure that all these types of disablement are covered. That is why it is very important that one officer in each local authority should be designated for this purpose. I support the amendment.
§ Lord Drumalbyn
My Lords, I am inclined to think that in this case the noble Lord, Lord Ross of Marnock, has got it right. The word is "designate"; it is not "appoint". My noble friend may have used the word "appoint". It is a word which is often used as a synonym for "designate", but if one wishes to be accurate it is just as well to use the right word. A case has been made out for my noble friend to take back this point and look at it again.
If we consider what happens in industry, we find that constantly officers are being designated as safety officers and so on. This does not mean that somebody is being appointed specially to do this job and nothing else. It seems to me that this point was being argued by the Government on the basis of an officer having to be appointed at extra expense to do nothing else. I wonder whether my noble friend would look again at the matter in that light.
My Lords, if I may dare presume to poke my English nose into this wholly Scottish matter, I should like to support what the noble Lord, Lord Drumalbyn, has just said. I hope very much that the noble Earl will agree to reconsider the matter. If he is not prepared to do so, I hope that the sponsors of the amendment will not withdraw it. I think that it should be pressed.
Since this is a Scottish matter, perhaps I should turn straight away to the money side of it. What the noble Lord has said is entirely right. At the moment we have in England, Wales and Scotland a system of generic social workers under which all social workers employed by local government are regarded as universal geniuses who can take over different functions. No longer do we have children's officers, mental health officers and so on. We have generic social workers.
This is merely a requirement to designate one person to have responsibility for access. If anybody says that this will cost extra money, it cannot be so. There is no reason why it should cost extra money. That side of the argument is one which we should reject. This will involve minimal interference with the freedom and autonomy of local government, be it in Scotland or elsewhere. The requirement would be to designate one existing officer to do something which the noble Earl has admitted needs doing and ought to be done. He says that it is now being done by most local authorities. Surely it is the business of Parliament as a 1207 whole to make sure that if something is necessary it is done everywhere, not just in one or two places which choose to do it. I hope that the noble Earl will think again about this matter. If he does not, I hope that the sponsors of the amendment will press it.
§ Viscount Ingleby
My Lords, in view of the strong feelings which have been expressed on all sides of the House, I hope that the Government will agree to look again at the matter. If the noble Earl will agree to do so, I shall be very pleased to withdraw the amendment at this stage.
§ The Earl of Mansfield
My Lords, with the leave of the House, may I say that those who have followed the proceedings this evening will have seen that this is a starred amendment on the Marshalled List. This means that the Government have had very little notice of it.
I am impressed, as always, by the wealth of expertise and the obviously very strong feelings which have been expressed. It would be wrong of me in the circumstances to refuse to think again, although we are getting to a very late stage of a Bill which has almost passed through both Houses of Parliament. I will take it away, but I do not think it would be proper for me to give any commitment to do other than to consult and to reflect. I think that is what my noble friend would like me to do; that is what I undertake to do and I will communicate with him, at least, when and if I may come to any conclusion.
§ Amendment, by leave, withdrawn.
§ Clause 36 [Planning applications and consideration of the needs of the disabled]:
§ 10.15 p.m.
Lord Lyell moved Amendment No. 22:
Page 16, line 5, leave out ("In determining any") and insert ("When granting an").
§ The noble Lord said: My Lords, this is a minor technical amendment. As the clause is drafted at present planning authorities would have to ensure that developers were aware of their duty under the 1970 Act even where they had decided to refuse the application for planning permission. The amendment makes it clear that planning authorities are to be required to draw the attention of developers to their duties under the Chronically Sick and Disabled Persons Act 1970 only in cases where it is their intention to grant planning permission. I beg to move.
§ On Question, amendment agreed to.
Lord Lyell moved Amendment No. 23:
Page 16, line 7, after ("4") insert (", 5 and 7").
§ The noble Lord said: My Lords, this is a technical amendment which removes from Clause 36 an unnecessary reference to Section 6 of the Chronically Sick and Disabled Persons Act 1970. That section in 1208 its application to Scotland relates to the consideration of the needs of the disabled in the special circumstances in which the owner of a building is ordered to provide sanitary conveniences. This duty does not, however, apply to the generality of developers who are providing buildings to which the public are to have access and it is therefore unnecessary to draw their attention to it. I beg to move.
§ On Question, amendment agreed to.
Lord Lyell moved Amendment No. 24:
Page 16, line 12, leave out from ("duty") to end of line 19.
§ The noble Lord said: My Lords, this amendment removes from Clause 36 the references to the code of practice for Access for the Disabled to Buildings and the Secretary of State's power to substitute a reference to any subsequent code of practice. One of the effects of the amendment to the Chronically Sick and Disabled Persons Act 1970 which has been accepted this evening would be to incorporate in the 1970 Act provisions similar to those to be removed from Clause 36. Thus, when a planning authority draws the attention of a developer to his duties under the 1970 Act he will be made aware of the existence of the code of practice. There is therefore no need to make specific provision in Clause 36 for the attention of developers to be drawn separately to the code of practice. I beg to move.
§ On Question, amendment agreed to.
Lord Ross of Marnock had given notice of his intention to move Amendment No. 25:
Page 16, line 14, at end insert ("These factors shall be material considerations in terms of subsection (1) of this section.").
§ The noble Lord said: My Lords, if my reading of the Bill is correct, I think we have just wiped out the lines to which my amendment refers.
§ [Amendment No. 25 not moved.]
§ 10.19 p.m.
The Earl of Mansfield moved Amendment No. 26:
After Clause 36, insert the following clause:
§ ("Further provision as regards the needs of the Disabled
§ .—(1) In each of sections 4(1), 5(1), 6(2), 8(1) and 8A(1) of the Chronically Sick and Disabled Persons Act 1970 (which impose on persons undertaking the provision of public buildings etc. certain duties as regards the needs of the disabled)—
- (a) for the words "provision, in so far as it is in the circumstances both practicable and reasonable" there shall be substituted the words "appropriate provision"; and
- (b) at the end there shall be added the words "unless such body as may be prescribed by the Secretary of State is satisfied, after carrying out any procedures which may be so prescribed, that in the circumstances it is either not practicable to make such provision or not reasonable that such provision should be made.".
(2) After the said section 4(1) there shall be inserted the following subsection—
(1A) In subsection (1) above "appropriate provision" in relation to any case means provision conforming with so much of the Code of Practice for Access for the Disabled to Buildings as is relevant to that case and "prescribed" means prescribed by regulations made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament; and in the foregoing provisions of this subsection "the Code of Practice for Access for the Disabled to Buildings" means the British
Standards Institution code of practice referred to as BS 5810: 1979.".
(3) After the said section 5(1) the following words shall be inserted as section 5(1A)—
Subsection (1A) of section 4 of this Act shall apply in relation to the interpretation of the last foregoing subsection of this section as the said subsection (1A) applies in relation to the interpretation of subsection (1) of that section.";
and the same words shall be inserted as sections 6(2A), 8(1A) and 8A(1A) of the said Act of 1970.
(4) In section 28 of the said Act of 1970 (which empowers the Secretary of State to define expressions appearing therein), after the word "Parliament" there shall be inserted "—(a)" and at the end there shall be added the words "; or
(b) amend the definition of "the Code of Practice for Access for the Disabled to Buildings" in section 4(1A) of this Act.".").
§ The noble Earl said: My Lords, your Lordships will recall the full debate which we had when last we considered this Bill on the question of improving the existing legislation to ensure that the needs of disabled people are adequately considered and appropriate provision made for them in buildings to which the public are to have access. On that occasion I said I was impressed by the strength of feeling on the matter and agreed, despite the difficulties inherent in the various amendments under consideration, to consult my colleagues with a view to seeing what could be done.
§ We have considered the whole question very carefully and have concluded that it would be appropriate in this International Year of Disabled People for further provision to be made to ensure that those special needs are taken into consideration by those providing buildings to which the public are to have access. We have therefore decided that, subject to some drafting changes, we should accept the amendment tabled by my noble friend Lord Campbell of Croy, which, as your Lordships will recall, met with widespread approval in our Committee. It is right that I should say that my noble friend was good enough to tell me that he had unfortunately to leave the House before these amendments were called, but that he is happy that the Government have adopted this course.
§ Your Lordships will also, no doubt, be pleased to know that it is the Government's intention that similar provision should be extended to the rest of the country by means of an amendment to the Disabled Persons (No. 2) Bill which is shortly to come before your Lordships' House. I hope that the House will therefore be able to accept the new clause, together with our Clause 36 and our proposed circular to planning authorities, a copy of which has been placed in the Library, and these measures will represent, we believe, a significant step forward in ensuring that proper consideration is given to the needs of the disabled in buildings to which the public are to have access.
§ Details of the procedure to be followed and the identification of the body which will adjudicate cases where the developer does not propose to make appropriate provision will require to be considered carefully. It is our intention to undertake wide-ranging consultation with interested parties before determining the content of the regulations which the new clause gives my right honourable friend power to make.
§ My noble friend Lord Renton raised the matter of the appointed day. What I have to say here is that there is a need to consult widely with all interests, and therefore I cannot give a commitment tonight to 1210 have the provision come into effect at any particular time. However, I do assure your Lordships that there will be no avoidable delay in working out the procedures that will apply. In these circumstances, I commend the amendment to your Lordships' House and beg to move.
§ Lord Renton
My Lords, may I just very briefly thank my noble friend for his reference just now to what I said earlier, and apologise to your Lordships for having spoken to Amendment No. 20 which had not been moved, nevertheless making a point which has proved to be relevant to Amendment No. 26 which my noble friend Lord Mansfield has just moved. If I have understood my noble friend correctly, it seems that there is every intention, as well as hope, on the Government's part that this power will be used by the Government in this International Year of Disabled People. I do hope that is so, because, as I said earlier, it would be a pity to miss this opportunity of achieving at least that amount in this year.
§ Lord Drumalbyn
My Lords, may I say on behalf of my noble friend Lord Campbell that I know how very much he appreciates the steps that my noble friend has taken. I am sure that the whole House is extremely grateful to my noble friend for having taken this initiative, and indeed for influencing his colleagues to ensure that it extends to the whole country.
§ Baroness Masham of Ilton
My Lords, I am very pleased to be able to say tonight that I am Scottish. Having been born and bred in Scotland and having spent half my life there, I can tell your Lordships that the Scots have a pioneering and thrifty instinct. My noble friends who are disabled know only too well from bitter experience how difficult it is to cope with everyday life if they cannot get into a building; and once they have got in they must have suitable facilities. It is not surprising that we have had to turn to Scotland to persuade the Government that this clause was in everyone's interest. To have access planned in the initial stage without doubt saves money, energy and time. Buildings which are suitable for the disabled are suitable for everyone.
I welcome Lord Mansfield's amendment. I thank the Government and especially the Scottish Office for doing what England seemed slow to admit was necessary. I should like to ask the noble Earl the Minister just a few questions. Who will be the prescribed body? Will it be the local authority responsible for building regulations? Who will check on the facilities for disabled people? Will that be done at the same time as all the other regulations?
It is important that mistakes are not made. As the code of practice for Access for the Disabled to Buildings will be being used mistakes should not be made. If, however, the developer disagrees with the prescribed body, he will presumably be allowed to appeal against its decision. Will that appeal be, in the first place, to the Secretary of State or to the courts? If a developer does not provide the facilities required, what sanctions will the prescribed body have? Will they be identical to those under normal building regulations?
Finally, if an individual citizen or a local association for the disabled is unhappy with the prescribed body's 1211 opinion of what is reasonable and practicable, or is not satisfied that it has exercised their powers in an appropriate fashion, might they have any redress in the courts? Presumably, if the prescribed body takes no action at all, then the developer must make appropriate provisions. If he does not, is it up to an aggrieved individual to sue him or the prescribed body?
I am sure that there will be many people outside your Lordships' House who will also welcome this clause. Much has been done in the last 10 years by good authorities and caring people. But many mistakes have also been made and it is so important that what will be done in the future will be done correctly. Now when it becomes common practice to include the needs of the disabled people at the planning stage they will feel part of society rather than outcasts of an able bodied world. I hope, like the noble Lord, Lord Renton, that this legislation will be brought into force during this International Year of the Disabled.
Baroness Darcy (de Knayth)
My Lords, the proposed new clause by the Government seems to cover all the points made in Lord Campbell of Croy's amendment and I should like to thank the Minister for all the work that he has done on it, and the Scottish Office in general who have been very courteous and most helpful. I am delighted to learn that they are going to make similar provision in the Disabled Persons (No. 2) Bill.
I should like to make two points. The first has already been referred to by the noble Lord, Lord Renton, and the noble Earl and it concerns Amendment No. 28 dealing with when the new clause will come into force. I fully realise that the Government need time to decide which body and what procedures will be prescribed. But I remember only too well that a similar thing happened when there was a Government amendment to the Education Act 1976 which ensured that handicapped children would be educated where possible in ordinary rather than in special schools. That clause was to come into force on a date appointed by the Secretary of State, and the Minister introducing it said, "I assure the House that this is not a prescription for delay". Four years later it had never been brought into force and it was repealed in the Education Act 1980. Therefore, I very much hope that the noble Earl can tell us—I know that he has given some indication—that there will only be a delay of, say, a maximum of three months while the procedure is decided upon before the new clause is enforced. Perhaps also he will consult bodies such as the Scottish Committee on Access for Disabled People and the Commission on Restrictions Against Disabled People (CORAD) before coming to any decision.
My second point is not really to do with this clause, but as this is Report stage I had better get it in now. At the Committee stage the noble Earl said that the Government intended to issue a circular to make it clear that planning authorities have the power to impose conditions on planning permissions relating to provision for the disabled. I imagine that the proposed new clause does not, in fact, preclude the issue of such a circular. I see that the noble Earl is nodding.
1212 In a letter of 7th May to Mr. Peter Large, the chairman of CORAD, Mr. Giles Shaw, who is the Parliamentary Under-Secretary of State for the Department of the Environment, said:As you point out, planning is not concerned with the internal design of buildings nor with the provision of arrangement of facilities inside buildings. It would, therefore, normally be outside a planning authority's powers to become involved in issues such as the width of corridors or provision of wheelchair-accessible lavatories".Paragraph 3 of the draft circular, which the noble Earl has put in the Library, says much the same thing; that planning relates to access to but not within buildings. This is why it is very important to have this new clause enforced as soon as possible.
However, it is very true that access around buildings and between buildings is also very important. For example, you can have a beautiful sports hall with all the facilities, and then the car park may be separated from it by steps. How do you get into it? In a pedestrianised shopping centre there may be obstacles that impede access between the buildings. Therefore, I think that it would be excellent if the circular could make it clear that planning consent could be refused if there was no provision for access from the surrounding area, such as a car park or between the buildings, and from the car park to the entrance of the building in question. I hope that the noble Earl will consider this and again consult organisations for the disabled on this matter.
Apart from the concern as to when the proposed new clause will be enforced, I am very grateful to the noble Earl and, indeed, to all noble Lords on every side of the House who have supported and worked so hard and, indeed, pressurised so effectively. I am very glad to support this amendment.
My Lords, I look forward to hearing the noble Earl's answers to the very pertinent questions put to him by the noble Baroness, Lady Masham, and the noble Baroness, Lady Darcy (de Knayth). These are important questions. But in the meantime, as one who supported the noble Lord, Lord Campbell of Croy, and others who raised this matter in Committee, it would be churlish if I did not, on behalf of my noble friends on these Benches, express our indebtedness to the noble Earl for what he has done regarding this new clause, which is very important, and also for the very important assurance that he gave us with regard to steps which will be taken, concerning another measure which is shortly to come before your Lordships' House. We, too, on these Benches would like to say to the noble Earl how very grateful we are for the steps that he has now taken.
§ Viscount Ingleby
My Lords, I should also like to join in thanking the Government. Perhaps I could remind the House that our original amendment, on which this is based, was designed to create barrier-free access to new public buildings in order to put some teeth into the 1970 Act, which was a very good Act but there was no means of enforcing it. We hope that by putting the onus on the developer to show that it is not reasonable or practicable to provide access, this new amendment will just achieve that.
We are delighted that the Government have agreed to this. We are even more delighted that it is to be 1213 extended to England and Wales. I, too, should like to thank the Minister and all in the Government who must have been working very hard behind the scenes to bring forward this amendment.
I should just like to mention the circular which the Minister has deposited in the Library. With all respect, I can only imagine that this must have been drafted before the new Government amendment was put forward. I very much hope that there will be a redraft of it and that the Minister will undertake to consult with the organisations for disabled people. I very much hope that he will produce a rather different circular. With those words, I should like to join in thanking the Minister.
§ Lord Wilson of Langside
My Lords, in welcoming this amendment from these Benches, I would only say that, in order to support the view that this amendment is a significant step forward in the context of the needs of the disabled, there is nothing that I can add to what has already been said from all sides of the House, in particular by the noble Baronesses, Lady Masham and Lady Darcy (de Knayth), and the noble Viscount, Lord Ingleby. All of us are greatly indebted to the noble Earl for his efforts.
It would perhaps be a little churlish—particularly at this time of night—if I said that, when I heard him at the outset refer to the difficulties which were inherent in the earlier amendments, I saw, and many of us saw, no inherent difficulties in any of these amendments. There were a few little technical difficulties. I am bound to say, and I hope that it does not add a churlish note to the general welcome I gave and which everyone has given to this amendment, that I thought I detected every now and then—and I detected when some of us introduced the earlier amendments bearing upon this issue—a tendency (and I have said this before, but I make no apology for saying it again) on the part of Ministers to find a problem for every solution. But here I am happy to say that we seem to have found what I think for the time being will be a final solution.
§ Lord Ross of Marnock
My Lords, I think that the Government have shown themselves very responsive indeed to the powerful pressure brought to bear on Committee stage. The Government did the right thing and said that they would look at it again. If they had not given that assurance I think they would have lost the Division and it would have been amended. But the Government have used the time well. The Minister not only looked at it again but has produced a reasonable set of amendments, and I am grateful for that.
I take great pleasure in it because Clause 36 was introduced in another place by a Labour Member of Parliament, Mr. John Home Robertson. He had hoped that the Government would go further there, and that is why I had further amendments down in relation to that. But so far we have done very well indeed, and the Government have to be congratulated (a) on what they have done and (b) on their good sense in appreciating and being responsive to the mood of the House itself. I only hope that the noble Earl's promise to look again at the question of the designation of an access officer will bear the same kind of fruit.
§ The Earl of Mansfield
My Lords, I should like to thank noble Lords and indeed noble Baronesses for their welcome to this new clause. May I say to the noble and learned Lord, Lord Wilson of Langside, that nobody is churlish with more charm than he. A lot of the questions that have been asked of me will be the subject of the wide-ranging consultations with all manner of interested parties that we shall have before my right honourable friend comes to determine the content and form of the regulations which will be published in due course. I think that the noble Baroness, Lady Masham, asked me five questions. Most of them will be the subject of these consultations, but what I shall do in respect of both her questions and those that others have asked me is to look at the Official Report, and if their questions are not going to be the subject of the consultation procedure then I shall get in touch with them, I hope reasonably speedily, and possibly even before the Third Reading.
It is a matter about which I only accept congratulation on behalf of the Government, who have taken a view which is going to extend not only in Scotland but, as we now know, in England and Wales as well in a matter which is going to come before your Lordships shortly. It is on that basis that I thank noble Lords and noble Baronesses for what they have said.
§ On Question, amendment agreed to.
§ Clause 43 [Short title, commencement and extent]:
§ 10.40 p.m.
Lord Lyell moved Amendment No. 27:
Page 17, line 20, leave out ("section 6(7) of the 1956 Act or").
§ The noble Lord said: My Lords, I will, with permission, speak at the same time to Amendment No. 35, as the two are closely linked. These are minor technical changes which will remove redundant entries from Schedule 4 and Clause 42. They are rendered necessary by a change to Clause 4 effected in the other place. The entry in Schedule 4 and the reference in Clause 42 which these amendments seek to delete were consequential on Clause 4 as originally drafted, but are now no longer necessary.
§ On Question, amendment agreed to.
The Earl of Mansfield moved Amendment No. 28:
Page 17, line 23, leave out ("Section 29") and insert ("Sections 29 and (Further provision as regards the needs of the Disabled)").
§ The noble Earl said: My Lords, this is consequential on Amendment No. 26. It reflects subsection (2) of the amendment moved by my noble friend Lord Campbell of Croy and provides that the new clause will come into force on a date appointed by the Secretary of State by order made by statutory instrument.
§ On Question, amendment agreed to.
§ Schedule 2 [Relaxation of controls over local and other authorities]:
Lord Ross of Marnock had given notice of his intention to move Amendment No. 29:
Page 20, line 37, leave out paragraph 12.
§ The noble Lord said: My Lords, this amendment was motivated by my recollection of certain incidents that took place when I was Secretary of State in 1215 respect of certain aspects of police allowances, but it would not be fair at this hour to go into such matters of my personal curiosities, and accordingly I will not move the amendment.
§ [Amendment No. 29 not moved.]
§ Schedule 3 [Minor and consequential amendments]:
§ [Amendment No. 30 not moved.]
Lord Ross of Marnock moved Amendment No. 31:
Page 30, line 48, at end insert—
In Schedule 2 (Constitution and proceedings of development corporations), at end of paragraph 9 insert—
9A. For the purpose of securing the admission, so far as is practicable, of the public including the press, to all meetings of Development Corporations themselves, the Public Bodies (Admission to Meetings) Act 1960 shall have effect.".").
§ The noble Lord said: My Lords, this amendment is designed to ensure that the public gain admission to meetings of the new town development corporations, and we have them in Cumbernauld, East Kilbride, Livingstone and Glenrothes in Scotland. Some feeling has been expressed by the public that they are shut out of what is happening in their own town. Originally, pleasant noises about the amendment were made by the Government, but then something happened and on Report in another place they were less happy about it. Whether they were nobbled by the new town authorities and the powerful influences therein, I know not. As we afford people the opportunity to attend district, region and similar meetings, it is common justice that they and the press should be allowed to attend meetings of the development corporations. What made the Government change their mind over this, having at first indicated they would incorporate such an amendment in the Bill? I beg to move.
§ The Earl of Mansfield
My Lords, as was explained in another place when the same proposal was put forward, it has been given very careful consideration because it is recognised that development corporations are public bodies spending large amounts of the taxpayers' money. However, after the most careful consideration, my right honourable friend, having met the chairmen of the development corporations on 13th March, wrote to them to say that he did not propose to direct them to open their meetings to the press and public as he recognised that the bulk of their business was of a commercial confidential nature and that there was a serious risk that fears of breach of this confidentiality might detract from the attractiveness of the new towns, especially in their important role of creating employment opportunities.
I am sure that noble Lords will appreciate, and indeed accept, that there is a difference between an elected authority, such as a district or regional council, and a new town development corporation. The former consists of elected representatives who attend under a direct mandate from the electors, while members of the corporations are nominated by my right honourable friend and are largely instrumental in carrying out his policies. The point about openness of government is well recognised and the new town 1216 chairmen are also well aware of the principle. Since the Secretary of State met them on 13th March some of them, I know, have been giving consideration to meeting the press on a regular basis, and it is hoped that all five corporations will in fact do so.
The noble Lord may also be aware that the National Union of Journalists has been actively canvassing on this matter both before and after the meeting on 13th March, and that the Government's view was outlined in an article which was placed in the press, so that the Government's views could be more widely known. Should the noble Lord wish a copy of the article (which in fact took the form of a letter from my right honourable friend to a fellow Member of Parliament) I shall be glad to make the necessary arrangements.
For the reasons that I have given we do not think that it is appropriate, nor indeed desirable, that new town corporations should be treated in the same way as elected local authorities, and thus we cannot see our way to meeting the wishes of the noble Lord in this matter.
§ Lord Ross of Marnock
My Lords, I can appreciate the importance of keeping commercial negotiations confidential, but I think that that point could have been got over by means of a slight change in respect of the amendment itself. I know that the Government had very considerable sympathy with this point, but if what we have been told is the Minister's view about it, I shall not divide the House this evening, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Earl of Mansfield moved Amendments Nos. 32 and 33:
§ Page 34, leave out from beginning of line 2 to ("(5)") in line 6.
§ Page 34, line 8, leave out from ("Parliament") to ("for") in line 11.
§ The noble Earl said: My Lords, with the leave of the House I shall move Amendments Nos. 32 and 33 together. These are technical amendments, consequential on the amendment to Clause 36 deleting the power in that clause to amend the definition of the code of practice for Access for the Disabled to Buildings. They remove the provisions which would have incorporated references to the deleted Section 26(4B) of the Town and Country Planning (Scotland) Act 1972 in Section 273 of the 1972 Act, which contains references to the powers which are to be exercisable by statutory instrument and to the procedures to which the statutory instruments are to be subject. My Lords, I beg to move.
§ On Question, amendments agreed to.
§ Lord Ross of Marnock moved Amendment No. 34:
Page 34, line 23, at end insert—
(".In section 49 (Provisions supplementary to sections 45 to 48) at the end of subsection (2)(a) there shall be added the words: "to which a member has been appointed or otherwise authorised by the body to attend".").
§ The noble Lord said: This amendment deals with the question of the attendance of councillors at meetings. A situation arose in a part of Scotland where, after the election of a district council, the ruling party, 1217 which was the Labour Party, took over all committees. I do not at all approve of that; I think it is most inadvisable and is bound to cause trouble. The other members of the council, who felt themselves denied, decided that they would attend the committee meetings as observers. There was nothing to stop that. But they went a little beyond that. They then claimed attendance allowance in respect of such meetings, and I do not think that anyone can justify that.
§ I gather that it is a rather moot point as to whether they are entitled as councillors/observers to go to meetings of the committees and then claim allowances in respect of their attendance there. They have not been authorised to go; they are not members of the committee. While I understand why they went, I cannot feel that they were justified in claiming attendance allowance for so doing. The chief executive of that area, or the finance officer, refused to pay the allowance, and I believe that at the moment the matter is being settled at law.
I think the Government's feeling about it was exactly the same as mine, but in another place it was suggested, "Well, the matter is going to be settled; we are going to get a judgment, so we might as well wait for that"—and they expected that judgment to have been delivered by this time. My understanding is that there is going to be no settlement of this issue in the courts until about the end of October at the earliest, after this Bill is passed. I think we are far better to apply our common sense and make the change proposed in this amendment, to say that there shall be added the words,
to which a member has been appointed or otherwise authorised by the body to attend";
in other words, attending officially in respect of the actions which are being taken. That will legalise the matter and put things in the right position, and not leave it to the whim of the individual councillor who is not a member of the committee just to go along, not just to hear but then to claim payment for that attendance which he has decided upon for himself.
§ That is the purpose of the amendment and that is the history of the amendment. It is sickening and sad, I think, when you have to resort to this kind of thing, but it is equally wrong, I think, for people to claim an attendance allowance in those particular circumstances. I beg to move.
§ The Earl of Mansfield
My Lords, I am sympathetic to the motives underlying the noble Lord's moving of this amendment. These matters were fully ventilated during the discussions in another place, and as the noble Lord has quite rightly said, the matter is still the subject of an action in the sheriff court and it is now unlikely, in fact, that the outcome will be known until October. But we remain of the opinion that it would be prudent to assess the situation in the light of the court's judgment. If the court's decision makes clear that an amendment of the Act is necessary, then we shall take steps to give effect to this at an early opportunity.
There are three reasons why I am reluctant to accept the amendment until the need for it has been proved. First, there is no evidence elsewhere in Scotland, or indeed anywhere in England, that the alleged loophole has been exploited; and, generally, I am against legislating for legislation's sake. Secondly, I think 1218 we can rely on the good sense of councillors to operate in the public interest and not to claim attendance allowances unnecessarily. The Kirkcaldy circumstances are, I hope, quite exceptional. Thirdly, for myself, I think these matters should be considered in the courts, certainly first of all, rather than Parliament taking action which might prove to be precipitate.
Of course, it was not the intention of Parliament in 1973 to permit the payment of attendance allowance to councillors who sit in on the meetings of committees of which they are not members and which they have not been authorised to attend. On the other hand, I am equally sure that it was not the intention of Parliament that a controlling group should exclude minority groups from major committees to such an extent that members of a minority party could find out what was happening in some major committees only by sitting in the public gallery.
What has happened is that in the Kirkcaldy District Council the ruling Labour group, which holds 23 of the 36 seats, have in fact excluded the minority parties entirely from the policy and resources committee, although this is by no means uncommon, but also from the housing committee, which is one of the main committees to which a district council addresses itself. Of the remaining major committees—that is to say, environmental matters, planning, leisure and recreation and general purposes—the ruling group have allowed only two places to the non-Labour members on a committee of 12 or 14. The ruling group have also decided which members of the minority parties will in fact be invited to occupy the two seats. So one could say, I think without fear of contradiction, that the minority parties on the Kirkcaldy District Council have been totally excluded from some major committees, such as the housing committee, and grossly underrepresented on others.
Local government statute vests responsibilities not with individuals, as with Ministers of the Crown, but with councils collectively. If a council decides to behave as Kirkcaldy has done and excludes a minority party from a major committee to which matters are delegated, then the members of the minority party none the less have to share in the collective responsibility of the council for the actions taken by their committees and sub-committees without having any opportunity to contribute to the debate in committee on the policy decisions reached. Obviously this is a thoroughly wrong and unsatisfactory situation. One can well understand why members of the minority parties of Kirkcaldy District Council felt it necessary to press the point by the device of pressing for an attendance allowance for sitting in the public gallery at meetings of major committees from which they had been excluded. Having said all that, the obvious answer is that the majority party on Kirkcaldy District Council should behave as other majority parties of any political complexion on other district councils normally do behave.
I hope, particularly for the three reasons which I gave to the noble Lord, Lord Ross of Marnock, that he will not press his amendment now. The Government are very alive to the problem, but we think, for the reasons r have given, that we should wait for the sheriff's court to announce its judgment before rushing towards legislation.
§ Lord Ross of Marnock
My Lords, I thought I had explained that I have no sympathy with the action taken by the majority party on Kirkcaldy District Council, but what they did was legal. We may think that it was not the right behaviour, but it was legal. What the aggrieved parties then proceeded to do was to go and see what was going on in the committees. But not being authorised to be there as members of the committee or as observers, they were not there officially. The question now arises, what is it they have done in not officially attending but claiming an allowance? From my recollection of the intention of the 1973 Act, what they did was illegal. It is going to be settled by this test case and the noble Lord the Minister says the best thing to do is to wait; if the matter is settled to the advantage of the authority and as it was intended by Parliament, then that is that and nothing need follow.
But we have seen some surprising judgments at times in relation to the interpretation of statutes. I can remember one case in which a man who had been Solicitor-General in the Government passed an Act, or was concerned with an Act, and as a judge gave a judgment on part of that Act which threw the whole negotiating procedure in relation to teachers' salaries. There was a complete upheaval.
Since we know that there is the possibility of a loophole, would it not be far better to close that loophole? The Government say that if things go the wrong way then they will take an early opportunity to act. We have an early opportunity in respect of one Bill—I believe to do with water—with almost a pledge of legislation next Session. What will be an "early opportunity" for another Local Government (Miscellaneous Provisions) (Scotland) Bill? I would say, nil. What about the great civic Bill we were promised? We were told it was going to come before the House this Session and now we hear it will be in the next Session; it might or it might not. "An early opportunity" does not mean a thing. Anybody who knows anything about the jostling for position on the legislative programme will appreciate that the Scottish Office are not masters of their own house so far as this is concerned; it is tied in with the Government's whole programme, and how many Bills are going to be passed? I think the Government are quite wrong not to take this opportunity to close the loophole.
I was fascinated by the Minister's statement that, simply because one local authority does something, it does not mean there should be legislation on it. Does that apply to Clause 14 of this Bill as well? The only local authority we heard about that necessitates action is one authority, and we have the most impressive legislation that Scottish local government has ever experienced in the history of local government. I am afraid that the flexibility of the Minister of State's mind, certainly in relation to the use of argument against the various parts of this Bill, just does not add up to sense. His attitude to this particular one is not good sense. At this point I do not propose to take the matter further.
§ Amendment, by leave, withdrawn.
§ Schedule 4 [Repeals]:1220
Lord Lyell moved Amendment No. 35:
Page 40, line 38, column 3, leave out from ("buildings";") to ("and") in line 40.
§ The noble Lord said: My Lords, I spoke to this amendment when moving Amendment No. 27. I beg to move.
§ On Question, amendment agreed to.
§ In the Title:
§ The noble Baroness said: My Lords, this is a paving amendment necessitated by the inclusion of the noble Earl's most welcome new clause after Clause 36. I beg to move.
§ On Question, amendment agreed to.