§ 3.32 p.m.
§ Report received.
§ Clause 2 [Prohibition of political publicity]:
Lord Underhill moved Amendment No. 1:
Page 2, line 17, at end insert ("except material produced for the purpose of—
The noble Lord said: My Lords, it may be useful for me to point out while I am moving this first amendment that it is supported from all quarters of the House. I remind the House of the actual provisions which are now incorporated in Clause 2(1) as a result of an amendment that was agreed to at Committee stage. The clause reads:
A local authority shall not publish any material which, in whole or in part, appears to be designed to affect public support for a political party".
Your Lordships may recall that an amendment was moved in Committee to except cases where material is published for the purpose of carrying out the duty of a local authority under Section 71 of the Race Relations Act 1976. I also remind the House that it was pointed out during the Committee stage that many local authorities published material to enable them to carry out that duty under the Race Relations Act.
§ In addition, material is published by the local community relations councils which in most cases are funded at least in part by the local authority and also by the Commission for Racial Equality, which, as your Lordships will know, is a statutory body. The House will not wish me to repeat all the arguments raised in our debate in Committee, but I believe the background to the matter is rather important.
§ The House will recall the widespread support at Committee stage for an amendment to deal with race 698 relations, but two arguments were advanced against it. First, following a point raised by the noble Lord, Lord Mottistone, the noble Lord, Lord Broxbourne, argued that the adoption of Amendment No. 4 at Committee stage, with its express reference to one statute, would exclude all other statutes from consideration. I believe I am correct in saying that that view appeared to be supported by the noble and learned Lord the Lord Advocate.
§ It will be noted that the present Amendment No. 1 does not refer to the Race Relations Act, but seeks to except material produced for the purposes set out in paragraphs (a) and (b) in the amendment. I am certain that there will be general agreement throughout the House with those objectives.
On the second argument, the noble and learned Lord the Lord Advocate stated, in column 549:
we consider that the courts would not hold that material promoting racial equality or dealing with race relations questions would be prohibited".
That was encouraging, but the noble and learned Lord continued:
The courts would be able to draw a distinction between material which provides objective information and promotes good race relations, on the one hand, and material which openly attacks the National Front".—[Official Report, 18/2/86.]
The noble and learned Lord the Lord Advocate went on to say that if a local community relations council wished to put out material which directly attacks the National Front the Bill does not prevent it from doing so provided that the publicity and the material is not funded by the local authority for that purpose. Those statements illustrate clearly why the amendment am moving is absolutely essential if a local authority or a community relations council is effectively to carry out the provisions referred to in the amendment. Unless this exception is included in the Bill a local authority would be inhibited in carrying out those duties.
I was disappointed that the Government had not decided to bring forward some form of amendment to deal with the important question of publicity concerned with race relations. I remind the House that the noble and learned Lord the Lord Advocate said:
Certainly as far as the Government are concerned we have heard new points and we certainly wish to consider the matter further in the light of that".
The noble Lord, Lord Elton, said:
This is an issue which the Government wish to consider between now and Report stage. That is normally an offer which is accepted by an Opposition which wishes to move an amendment but the Government are acutely unhappy with the wording proposed and without commitment agree to consider the issue as well as the wording to see if something can be arranged—and that is said without commitment".—[cols. 557–58.]
I emphasise that I recognise that those two statements were made without commitment, but it is disappointing because I am certain that the Government are as sympathetic as anyone else in the House in wishing to ensure that proper attention is given to dealing with radical incitement and racial discrimination. I am disappointed that the Government have not brought forward an amendment.
§ During the Committee stage I referred to a report in the Observer newspaper which spoke of the alarming rise in racist attacks on schoolchildren. I could have referred to an earlier report on 12th December which 699 appeared in the Guardian written by that paper's education correspondent. That correspondent expressed concern that National Front leaflets are being handed out to schoolchildren at school gates as part of a recruiting drive. The correspondent also said that the National Union of Teachers is stated to have collected information from all over the country on incidents where the National Front is trying to gain influence over schoolchildren. The article went on to say that the deputy chairman of the National Front was stated to have admitted that leaflets for schoolchildren were part of the Front's tactics.
§ The point I wish to make is that, unless this amendment or something like it is approved, local authorities could be held to be unlawful should they decide to publish material drawing parents' attention to this racial acitivity, on the grounds that such material could affect support for a political party, in this case the National Front. On the day after our Committee stage my attention was drawn to the Yorkshire Post, which during the three previous days had published special features on National Front activity and had expressed the serious concern of the chairman of the Leeds United Football Club about National Front activity to influence persons attending their matches.
§ Publicity issued either by the local authority or by the local community relations council to deal with that sort of racial publicity could be caught by the Bill as it stands in subsection (1) of this clause. In our debate the Minister suggested—and that was the noble and learned Lord the Lord Advocate—that the Commission for Racial Equality would be satisfied with the deletion of the words from subsection (1) as proposed in the amendment which was actually carried by your Lordships at that stage.
§ However, since the Committee stage the National Council for Voluntary Organisations has emphasised that there are occasions when community relations councils and black community groups may need to produce publicity material which directly attacks a particular position of extremist, racist political parties such as the National Front. Also, the wording of this new amendment which is now before your Lordships is supported by the National Council for Voluntary Organisations; it is supported by the Commission for Racial Equality, which is a statutory body; and is also supported by the National Association for Community Relations Councils.
§ Without this amendment local authorities are going to be placed in considerable difficulty in combating certain racist and racially discriminating activities in their areas. As the Government themselves have not put down an amendment, and as I am sure that the Government wish to deal with racist activity in the same way as would anybody else in your Lordships' House, I hope the Government will say that they accept this amendment which I now propose to move.
§ Lord Campbell of Alloway
My Lords, I wanted to say a word in opposition to this amendment, although a cross-party amendment such as this demands the ultimate respect of your Lordships' House. If your Lordships would bear with me for a brief moment, any meticulous examination of Clause 2 will show that this 700 amendment, far from being essential (as the noble Lord, Lord Underhill, has said) to protect any of the activities on the part of the local authorities to which it refers, is not necessary—this on the assumption, to be made at the outset, that as a result of such activities public support for a political party is affected. As your Lordships know I have had difficulties in the past with the construction of Clause 2; but on reexamination—and on this I seek the confirmation of my noble friend the Minister in due course—the position which renders this amendment unnecessary would appear to be as follows. The analysis proceeds upon the assumption that Clause 2(2) affords an essential and effective measure of safeguard and that Clause 2(2) should not be excised as proposed by the subsequent Amendment No. 3.
If the material is produced for the purpose of eliminating unlawful racial discrimination or for promoting equality of opportunity and good relations, and if it is published as part of a campaign—and the dictionary definition would be, "a series of connected publications designed to achieve an end"—it would be apparent to the court that such was the design and then, if it was so apparent, the safeguard provisions of Clause 2(2)(b) would apply. The Bill, expressly recognising in its intricate and somewhat puzzling construction that apparent design of the campaign and apparent design of the publication and the material which constitutes the prohibition in Clause 2(1) are disparate but nonetheless intrinsically related, built this measure of mandatory safeguard into Clause 2(2) of the Bill.
In those circumstances, no valid, positive purpose would be served by accepting this amendment. Indeed, its inclusion in the Bill would tend to conflict with the definition of "publish" in Clause 6(3), unless Clause 6(3) were amended to accommodate this exception—an amendment which would not be desirable for a myriad reasons and, indeed, one that has not been proposed.
As the noble Lord, Lord Underhill, has said, the safeguard provisions of Clause 2(2) have been very substantially enhanced as a result of the first Division at Committee stage; since when that alternative route to prohibition under Clause 2(1) and 2(3), the probable effect on public support for a political party, is no longer open. The only test is now, on objective consideration, whether the material appears to be designed to affect public support for a political party. The fact that the publication has affected, may affect or is likely to affect, or, to use the words of the noble Lord, Lord Underhill (words which he used a moment ago), could affect public support for a political party, as will often be the case, on a true construction of this clause is wholly irrelevant and not a matter for the court.
Questions of racial discrimination, the activities of the National Front, to which reference has been made, and equality of opportunity are dealt with by other statutory provisions, and surely it is best to leave them to be dealt with by such other provisions or by amendment of such other provisions. It is for these reasons, with deep respect to those who support this amendment, that I beg leave to oppose it.
The Lord Bishop of Rochester
My Lords, I should like to support the noble Lords from each of the other Benches in your Lordships' House who are moving this amendment this afternoon so as to make quite clear that we on these Benches also feel very strongly on this matter. I feel sure that it is both necessary and right to single out race relations for special treatment in this Bill. The promotion of good relations is already enshrined in the 1976 Race Relations Act. Surely we must make sure that this Local Government Bill is consistent with that Act, and we must be careful to see that any new legislation does not run the risk of worsening race relations.
Unfortunately, as we have already been told, there are extremist political parties whose political platforms are based on racist policies. This means inevitably that community relations councils come into direct conflict with such parties and that their own publicity material has sometimes to be directly aimed at countering such racist propaganda. Many community relations councils, such as that with which I have been associated for many years in the Medway towns, are, as the noble Lord, Lord Underhill, has said, funded at least in part by local authorities. Unless this amendment to the Bill is made, they would be very seriously impeded in their work. Indeed, as we have also been told, among other things they would be unable to publish material for circulation in schools explaining to children why the policies of these extremist political parties are harmful and why they should not be supported.
There is one other reason why I think that this amendment is important. It is that I consider it to be quite essential that there should be no grounds for legal doubt about the provisions of this Bill because any such doubts could so easily lead to the courts being used to exploit such a situation. Without this amendment the Bill could prevent the promotion of good relations and might even protect the promotion of bad race relations. That surely cannot be right, and I hope we shall make this amendment today.
§ Lord Grimond
My Lords, I rise with considerable diffidence to express a doubt about this amendment. My diffidence arises from the fact that not only do I much respect the movers of the amendment, but several of them are my political allies and I notice they are supported by my right reverend friend—if I may so call him—the Bishop of Rochester.
My doubts really arise from the letter which has been distributed by the Council of Voluntary Services, or by some branches of the council, in support of an amendment similar to this one. If I may just read a passage to your Lordships, it says that there is considerable concern about this section of the Bill, and continues:The first concern relates to the race relations implications of Clause 2(1). Because extremist political parties such as the National Front have racist policies, there are occasions when community relations councils and black community groups need to issue publicity material which is designed to affect public support for these parties.I was much impressed by the anxieties expressed at the Committee stage and elsewhere that good relations between different elements of the community should be encouraged. I sympathise with the aims but I wonder whether it is really right that public money 702 should be used for the purpose of publicity material which is designed to affect public support for certain parties. I am not sure that I wholly accept the argument that race relations are in a special category and that parties which advocate racial hatred are the only ones which are harmful in a community. I would, I think, dissent from that.
However, in any case this would create a precedent for spending public money, not for positively encouraging good race relations (which is done already) but for material aimed at particular political parties. I am not sure, to judge from what was said earlier on, that this is either legal now or something to be approved of. The letter goes on to say:For example, in the interests of racial harmony a CRC may issue a leaflet, paid for with local authority funds, calling on the public to join a campaign to prevent the National Front organising a march through their area".My Lords, detestable though they may be, the National Front are, so far as I know, legal; and subject to by-laws, and so forth, it is legal for them to march. If they march in a particularly provocative way, so I understand, they may well be in trouble with the law; but that surely is a matter for the police. I am not at all sure therefore that it is a proper use of local authority funds to campaign to prevent a lawful body doing something which is lawful. They may be wrong and we may dislike it, but is it a proper use of public funds by a local authority?
I may have misunderstood the effect of this amendment, and I wish to emphasise again that I wholly sympathise with the objectives of its movers, but I think that I would need to be rather more convinced than I am that this is a proper matter for local authority money. It is certainly a matter for voluntary societies, the Church or education authorities to promote positive racial harmony and all other forms of harmony in a community. However, I am doubtful whether they should go so far as apparently some of the councils for voluntary service think they should be allowed to go and to use public money for these purposes, to aim their propaganda very deliberately at certain bodies, and indeed attempt to stop certain activities—and in stopping them, I suppose, they might well create a confrontation which would do more harm than good to race relations. I raise these questions and perhaps at the end of the debate I shall have them answered.
§ Lord Denning
My Lords, I suggest that your Lordships do not accept this amendment, much as we sympathise with the objectives of it. The Widdicombe Report made it quite clear in their one recommendation that:There should be an express statutory prohibition of local authority publicity of a party political nature;".No exception is admitted in that recommendation, but it is now sought to put in an exception in a special category in regard to race relations. Will this be a precedent for other exemptions? Let us analyse it for a minute. It is obviously directed at allowing the funds of the local authority to be handed over to community relations councils and the like, who will then use it for propaganda against the National Front.
We have had the National Front before the courts in a case which I heard. It is certainly a political party 703 with a certain amount of support. None of us may like its objects, but it is beyond doubt a political party. It has candidates which stand for Parliament. The case arose in Great Yarmouth. The National Front, through its proper organisations, arranged for a conference in Great Yarmouth and booked a hall. The local authority allowed it and arranged its meetings. Afterwards, owing to some influence behind the scenes, the local authority revoked its decision and said that the National Front could not hold its conference in Great Yarmouth. They came to the court over which I presided, and there was no evidence to suggest that there would be violence or disorder of any kind. We said that the council must implement its promise and must allow the conference to be held for this political party. There, my Lords, is the case showing beyond question that the National Front is a recognised political party.
Is it right that an exception should be made in this Bill for local government funds to be used for this party political purpose? I would once more suggest that it is premature to decide it at this stage. Your Lordships must remember that the Widdicombe Report was an interim report. I suggest that this difficult question could be considered by them in the interim before they come to make their final report. I shall read the very last paragraph of their report:We are very conscious that the main part of our work lies ahead. One of the questions we shall have to consider in our main report is the rights of the public to challenge local authority activities and decisions".They have not been dealt with in this Bill so far.This is a wider issue on which we have already asked for views from the local authority associations, the local Ombudsman, the Audit Commission and others concerned. At that time we shall be looking to ensure that the citizen has a prompt, effective, inexpensive and local remedy for dealing with complaints about local authorities. It seems to us that the question of controlling tone and presentation of local authority publicity should not be considered in isolation now, but dealt with when we come to the question of local government activities generally.".I suggest that your Lordships should decide not to make an exception at this time. I am not sure that the Government have not already intimated that the matter will be dealt with in the next Session. The final Widdicombe Report should be out this year. We shall have the final report by next Session. Is it not best to leave the matter now rather than to introduce a special exception at this stage? It is a special category with which we sympathise, but it is perhaps better to leave it until we have the final Widdicombe Report. I hope that your Lordships will not accept the amendment at this stage.
§ 4 p.m.
§ Baroness Faithfull
My Lords, I rise to support the amendment but I agree with the noble and learned Lord, Lord Denning, and the noble Lord, Lord Grimond, that the case should not rest on the question of the National Front. I am a little sorry that the letter sent out by the voluntary organisations rested on the case of the National Front. I agree with the noble and learned Lord that the National Front, whether or not we like it, exists. Who are we to say that it should not exist? I, personally, do not like its views, but that is neither here nor there.
704 I support the amendment on the grounds of my experience with the Swann Committee. I sat on the Swann Committee, which looked into the education of the children of the ethnic minorities. On that committee were 22 people, 12 from the indigenous population and 10 from the Indian sub-continent and the Caribbean islands. I learnt a great deal from the people who sat on that committee, and I was grateful to them.
It is said that this area is different from any other. It is a different area. We set up a special committee to look into the education of the children of the ethnic minorities: why can we not look at this special area? I suggest that the question of race relations is something absolutely fundamental in our day and age and in our land. It is a very sensitive area in a way that perhaps other areas are not. I believe that the amendment, if passed by your Lordships' House, would make for better relationships between all sectors of our society. I commend the amendment to your Lordships' House.
§ Lord Mottistone
My Lords, I am sorry that my noble friend Lady Faithfull should speak in those terms, because I feel that she has not seen the depth of what is behind all this. I commend particularly the speech of the noble Lord, Lord Grimond, who presented all the doubts that one has about the matter.
If the whole question of race relations was handled by bodies such as those that Lady Faithfull mentioned, and they were the only ones to do so, there would not be a problem. I, personally, do not think that it is right to select one particular area, as the noble and learned Lord, Lord Denning, so clearly said, and pick it out for special treatment in this Bill, which is general. Be that as it may, race relations are very important. It is very important that they should be properly cared for in this country.
The trouble is that there are people who seek to exploit race relations and other minority interests. The people who do that do not have particularly in mind the well-being of the people whom they are exploiting: they have the aim of destabilising the country and its government. They are there, and your Lordships know that they are there. I could quote right now an example that I have in my hand, but I shall not bother because I think that every noble Lord knows about it.
In the Bill we should have an arrangement which makes clear that it is wrong to use public money for partisan purposes. That is what is behind the Bill. We must not have exceptions which erode that principle, however well meaning they are, and which will give an opportunity to those people who are keen only on destablising the country's whole system of administration and government to exploit the position as it stands.
I very much hope that noble Lords opposite will not press the amendment, because I do not think that it will achieve the aims that they have. There is a perfectly good Race Relations Act to take care of their particular problem. I think that the amendment may do extreme harm and may make it so much easier for the wrong sort of people to drive a coach and horses through the Bill's principles.
§ Lord Pitt of Hampstead
My Lords, I am indeed shocked to hear the speeches to which I am listening 705 this afternoon. I never thought that your Lordships' House would be spending the afternoon defending the activities of the National Front in the way that I am hearing. In Committee I pointed out my concern about the Bill, which was that it would, in fact, cause local authorities which make grants to their community relations councils, but which do so fairly grudgingly, not to continue to do so. It would be possible for them to be told by their legal advisers that because their community relations councils criticise the National Front, which is, in fact, a political party, that would put them outside the law.
The purpose of this amendment is merely to tell the local authority that if what is being done is for,
then the financing of the organisation is not illegal. That is what the amendment does.
- "(a) eliminating unlawful racial discrimination; or
- (b) promoting equality of opportunity, and good relations, between persons of different racial groups",
It is wrong for Members of your Lordships' House to exaggerate the position. What I am saying is that if the amendment is not included and Clause 2(2) stands as it is, in actual fact there will be legal advisers who will tell their councils that they need to be careful about funding their community relations councils. Is that what your Lordships want? I cannot really believe that that is what your Lordships want. Since I cannot believe that that is what your Lordships want, I cannot understand why there is this particular attitude to the amendment.
I do not want to put the interpretation that one would be forced to put on our Lordships' attitude, but I cannot for the life of me understand why your Lordships do not think we ought, in fact, to make sure that local authorities do not cease to fund community relations councils out of fear of breaking the law.
§ Lord Boyd-Carpenter
My Lords, the noble Lord, Lord Pitt of Hampstead, was right when he said that he did not wholly understand the debate on this amendment. I think that he was a little unfair to some noble Lords, not only on this side of the House but on the Cross-Benches, when he accused those who had criticised the amendment of defending the activities of the National Front. Let me tell him at once that that is completely untrue.
§ Lord Boyd-Carpenter
My Lords, if the noble Lord would have the courtesy to wait, I shall give way to him in a moment. I thank the noble Lord.
I have listened to every speech in this debate and none of them has for one moment defended the activities of the National Front. If the noble Lord likes to get up and quote to me somebody who had, I shall be delighted—
§ Lord Pitt of Hampstead
My Lords, the last speaker did. The last speaker said that he did not approve of the activities of the National Front but that the National Front was a political party. In fact, the noble and learned Lord did that, too. He said that it was a political party and therefore was entitled to take these attitudes.
§ Lord Boyd-Carpenter
My Lords, the noble Lord entirely confuses two things. To defend the activities of the National Front would be a very serious allegation against any noble Lord. The more one knows of that disagreeable and unpleasant body, the less any decent-minded man in this country is happy to defend it. But it is a totally different thing to say, as the noble and learned Lord, Lord Denning, said, with the authority of a Court of Appeal decision behind him, that the National Front had established its status as a political party. To establish your status as a political party does not amount to defending you. Let me say at once that there are several political parties in this country—authorised, recognised political parties; and, indeed, I see some of their representatives here—which I do not defend for one moment, and it is utter confusion of counsel for the noble Lord, Lord Pitt, to get very excited and to say that because the noble and learned Lord, Lord Denning, with high authority behind him, held that the National Front was a political party, he was thereby defending its activities. He is more than capable of speaking for himself, but as a great admirer of the noble and learned Lord I could not forbear to intervene at once on that point.
The point is a perfectly straightforward one which should not be confused with these acerbities. Subsection (1) of Clause 2, to which this amendment applies, states:A local authority shall not publish any material which, in whole or in part, appears to be designed to affect public support for a political party".That is a very important part—almost a core—of this Bill. What many of us feel is that if, because of dislike of the National Front, racism and all that, your Lordships put an exception of this sort into this Bill, the exception will not stop there. There are other bodies for which the exception can also be argued enthusiastically by a number of people. The clear-cut effect of the Bill to ban ratepayers' money being used to support a political party will be compromised if this amendment is carried into it. I therefore very much hope that your Lordships will not carry it into it.
My Lords, I had not intended to speak on this amendment, but I really feel that as a result of the speech made by my noble friend on the Front Bench here I ought to say a word to make it absolutely clear that, in general, noble Lords on these Benches are wholly in support of this amendment. I must say, too, that we are in some danger of becoming confused. Perhaps some noble Lords are in danger of becoming even more confused than they were before. In part, I would blame that, if I may, with all respect, on my noble friend, because I genuinely feel that his arguments were directed not at this amendment but at a circular letter which he has received from another source, and it is important that we direct our attention exclusively to what is said in the amendment.
The noble Lord, Lord Mottistone, said that it would be entirely wrong for public money (the noble Lord, Lord Boyd-Carpenter, who speaks with greater clarity, referred to ratepayers' money) to be spent on these activities. But public money is already spent on these activities. We have passed an Act of Parliament to make it essential that public money shall be spent, and it is spent by central government on these organisations. This amendment seeks to enable local 707 authorities to assist voluntary bodies and themselves to undertake functions which are already undertaken with the assent of the people, and with the assent of Parliament, by central government. That is all it does, and I hope that we accept it.
§ 4.15 p.m.
§ Lord Elwyn-Jones
My Lords, may I also draw attention to the terms of the amendment? I should have thought it would be common ground in your Lordships' House that it is extremely desirable that we should eliminate unlawful racial discrimination and promote equality of opportunity, and good relations, among persons of different racial groups. Those are good objectives, and it is essential that they should be asserted loud and clear in this House, because there are movements the other way not limited to a single group. There are outbursts in a contrary way, of a sinister character, which are taking hold of some of the young generation.
Here is a situation where there is a risk that a local authority faced with local uproar, fighting and hatred could well be inhibited by the terms of Clause 2 as it stands from saying a word. What have they got to be? Have they to be silent onlookers, like the people of Berlin in the early days of the growth of the Nazi movement? That was the final, fatal sin that went to destroy Germany—the sin of being silent onlookers. Is this what we are inviting local authorities to be, in the face of activity which does the opposite of the perfectly lawful objectives of this amendment, which are to make it lawful for a local authority to produce material, when it is necessary for local peace and harmony in its own community, for the purpose of eliminating unlawful racial discrimination—that would be a matter of action by the local authority which would be in conformity with the law—orpromoting equality of opportunity, and good relations, between persons of different racial groups"?Those are activities and actions, and an approach, which, so far from condemning them, this House should wholeheartedly support, and I greatly hope, therefore, that this amendment will be approved by the House.
§ Lord Somers
My Lords, I entirely agree with the noble and learned Lord that everybody should dislike unlawful discrimination, and also should be anxious to reduce unemployment. But those desires are not the monopoly of any one political party, and what this Bill is seeking to avoid is the hanging of the desire for racial equality or increased employment on to any one political party. They are universal desires. They are not at all political subjects. So far as discrimination is concerned, I can only repeat what I said two days ago on the subject of sexual discrimination: that lack of discrimination means total lack of discrimination. It does not mean removing discrimination against one side but keeping it against the other side. This would sometimes—not always—mean discrimination against the white man, and that in his own country.
§ Lord Stallard
My Lords, I, too, should like to support this amendment. I did not intend to speak, and I shall not delay your Lordships very long. But I am also concerned at the number of references to the 708 National Front. I think that the noble Baroness, Lady Faithful, was quite right. We are not discussing the National Front, nor is the National Front mentioned in the amendment at any stage. But we are discussing what I thought ought to have been a universally accepted principle. I should have liked to go further, not on this amendment but in other areas.
I would say in regard to race relations generally that we ought to be scrutinising every piece of legislation that goes through either House, or goes through local authorities, to make sure no legislation is passed that offends the race relations policy as enunciated by Parliament in various Acts that have been enacted. I cannot see any objection to that. It should be virtually a standard clause in legislation nowadays that there is no offence to race relations or to our policy of establishing equality between the races. That should be accepted by everybody. I am therefore a little surprised and a little worried.
I was disappointed when I heard the speech of the noble and learned Lord, Lord Denning, for whom I have the greatest respect. I seem to recall the noble and learned Lord saying in a previous debate in Committee that it was a very narrow line—he was quite right—and that he felt at that stage (this was my understanding and the noble and learned Lord will correct me if I am wrong) that perhaps the safest way would be to include the amendment. I was surprised therefore to find that he seemed to have changed his mind, although we have taken out the objection to the amendment which I seem to recall the Government had, which was that it specifically mentioned the Race Relations Act and it would be dangerous to mention one Act and not to mention any other. At that stage that seemed to be a perfectly reasonable objection. That objection has been removed from this amendment. I should have thought, therefore, not only that the noble and learned Lord, Lord Denning, would have had his doubts alleviated but that the Minister himself would be able to accept the amendment as meeting the objections that he seemed to have in the first instance.
I was strengthened as well in the view I held originally that the clause was so badly drafted anyway that the whole clause could have been rewritten and the Government should have taken the opportunity to take out the clause and come back with a completely different one. I now know that that was not possible and is not possible now. The Society of Local Authority Chief Executives has argued almost from the beginning of the Bill, and is still arguing, that the clause is too vague on the very points of legal niceties with which the noble Lord, Lord Campbell, dealt. The society said:We have reservations about the degree to which prohibition rests on the intention or design of publicity material. If there is to be an attempted definition of material which is party political, it should be based as specifically as possible on the nature of the material available; firstly, to allow the courts to make a judgment on whether material should be caught under the Act; but also so that local government lawyers who have the task of advising local councillors may have clear guidelines on the basis in which to give their advice".That seems to be very important. Local government solicitors and lawyers are in the day-to-day position of advising councillors on what to do. Where there are no clear guidelines as to what they ought to be doing difficulties will arise.
§ Lord Campbell of Alloway
My Lords, I thank the noble Lord for giving way and I shall be very brief. There are the clearest guidelines. If it is apparent that the object is to do something—
§ Lord Skelmersdale
My Lords, I think that perhaps we are getting into a little procedural difficulty. We are on the Report stage. As my noble friend is explaining himself in a material part of what he said originally, I am sure that if he asked the leave of the House he would get it. Nonetheless, perhaps he would very kindly ask for it.
§ Lord Campbell of Alloway
My Lords, I apologise for not asking the leave of the House, and not having done so I shall sit down.
§ Lord Stallard
My Lords, I am grateful to the noble Lord but I have made the points that I wanted to make. I am concerned at the trend of the discussion and argument this afternoon from some speakers. My main point is that I would have advocated, and would still advocate, that all legislation should be scrutinised to make sure that it does not offend the race relations policy as enunciated by Parliament in previous Acts.
§ The Lord Advocate (Lord Cameron of Lochbroom)
My Lords, when the amendment similar to this was discussed during our Committee proceedings my noble friend Lord Elton and I agreed without commitment, as the noble Lord, Lord Underhill, reminded us, to consider the issues that were raised by publication of material whose purpose was said to be to eliminate unlawful racial discrimination or to promote equality of opportunities and good relations between persons of different racial groups. Reference was made then to the manner in which the National Front and similar groups pursue their political objectives. I am sure that in this House we are all at one in total disagreement with those objectives. This has been stated in every debate that has taken place on this Bill, and of course on others. Equally we must all be at one in abhorrence at many of the ways in which those objectives may be pursued. But it is right, as noble Lords have reminded the House this afternoon, that the National Front is a lawful body and it can within the law continue to carry out its activities. I shall come back to this point in a moment but it is important to bear that in mind.
As I made clear in the earlier debate, the Government in no way wish to prevent local authorities from issuing or funding publicity that promotes good race relations—and not merely see it as silent onlookers, as the noble and learned Lord, Lord Elwyn-Jones, said of an earlier period elsewhere. One of the dangers in a debate of this kind is that of concentrating on a particular scenario. I was very grateful to noble Lords and in particular to my noble friend Lady Faithfull for bearing that in mind.
It is perhaps just as well to remind your Lordships of the relevant statutory background. We recognise that the local authorities have a duty, imposed by statute under the Race Relations Act 1976, and I quote:to make appropriate arrangements with a view to securing that their various functions are carried out with due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups".710 Noble Lords will observe that in the amendment before us only part of that section is included in the exception. Obviously in carrying out their function for education it is proper that the local authority should promote equality of opportunity and good relations in the schools. That is not in doubt. But I would observe that there is nothing in those words which imports a licence to attack political parties which have opposing views.
We further recognise that in terms of the local government legislation applicable to both England and Wales and to Scotland local authorities are empowered to incur expenditure which in their opinion is in the interests of their area or any part of it, or all or some of its inhabitants. Included within that is the power to incur expenditure on contributions to the funds of any charitable body in furtherance of its work in the United Kingdom. That is what the statute says. They may also incur expenditure on contributions to the funds of any body which provides any public service in the United Kingdom—that is what the statute says—otherwise than for the purposes of gain. This discretion is elaborated by the provisions of Clause 3 to which my noble friend has set down amendments.
It is clear from our debate this afternoon and from what we have discussed earlier in Committee that the first issue is the propriety of qualifying the clear prohibition that is contained in Clause 2(1) as it now stands. I wish to make it absolutely plain because it is important that that prohibition applies to the local authorities alone. It is a prohibition directed to them. There is nothing in the 1976 Act which gives a local authority a licence to attack a political party in any publicity material that it may produce from making appropriate arrangements with a view to carrying out any of its functions.
It is noteworthy, as the noble and learned Lord, Lord Denning, reminded the House, that the Widdicombe Committee, which was fully aware of the statutory duties incumbent upon a local authority, made no recommendation for exclusions of any kind, let alone of this kind, from the party political prohibition that it recommended. Moreover, as Widdicombe pointed out in paragraph 227, it is already widely accepted and recognised by the courts—for instance, it was in the GLC case in 1984—that it is unlawful for local authorities to use political funds to advance the interests of a political party. Of course the opposite must follow: that it is unlawful to do so to attack another political party.
I do not in any sense impugn the good intentions that have occasioned the amendment. It is clearly intended to permit publicity for the limited purpose of countering, as has been said, misleading publicity. That may be the intention behind the amendment, but it is as well to think of what its wording can actually be said to mean.
The amendment could well allow publicity that was issued for the stated purpose of promoting good relations between persons of different racial groups but which would be intentionally designed to attack the policies of another party—the immigration policy of the Government or the immigration policy of the Opposition. That is not the purpose of local 711 government, as the Widdicombe Report made perfectly plain. That is why it is so dangerous to consider this matter simply in the context of the National Front or other extremist groups of that kind.
Your Lordships are being asked to deal with that matter on a much more general basis in the amendment. The amendment does not concern an exception that will merely say that local authorities may issue publicity attacking the National Front. The amendment is seeking to do so on much more general grounds. I would counsel your Lordships that there are inherent dangers in that course.
The policies that might be promoted could be those of the majority group to which those in the local authority belong. Thus, such publicity may be supporting general policies. That is precisely the issue at which the prohibition in Clause 2 is directed and which, as I understand it, noble Lords in all parts of the House have accepted. As a result of this amendment, that principle would be breached—and yet the local authority would remain scatheless.
As I have said, Widdicombe's initial report made no such recommendation. The present amendment would in practice allow far more than that which the noble Lord, Lord Underhill, and others who have spoken in favour of the amendment, suggested. Indeed, it could never be restricted to the position with which they have dealt.
At the end of the day, the noble Lord did not answer the criticism that I made when we last debated this matter, in Committee. We were reminded then by my noble friend Lord Broxbourne of the Latin tag, expressio unius exclusio alterius. All the noble Lord has done is to adopt part of the wording of Section 71, thereby saying that matters are different, but by taking out part of the other wording he does not remove the sting of the criticism that he has, I suggest, implicity accepted.
The noble Lord, Lord Underhill, made reference also to the kind of problems that can arise. He took as an example the distribution outside a football ground of National Front literature. If such action causes or has reason to cause some breach of public order, then there are other ways of dealing with it than by putting an exception in this Bill. Indeed, I believe that the noble Lord is well aware of that. It is for that reason that, on the first issue, I say that the arguments made do not warrant the making of such a fatal exception to the purpose of the prohibition, which I understand to be acceptable to all noble Lords.
The second issue that has been raised in speeches relates to the position of voluntary organisations. They come in by virtue of subsection (3). This Bill does not impose any obligation upon them. It would not impede them in their lawful activities. The Bill will simply and solely place a duty upon local authorities. That must be right, because whether they be the authors of a publication under subsection (1) or the funders or publishers of publicity by others under subsection (3), they must remain responsible for ensuring that the prohibition is not breached.
I say with very great respect to my noble friend Lord Campbell of Alloway that he has rem acu tetigisti—he has touched the point of this clause with a needle. He 712 has got it in one, and there is very little that I can say further by way of explanation of the purpose of that clause. I simply add to what he has said that subsection (3) is clearly intended to prevent a local authority from getting around the prohibition in subsection (1) by using others as its agents, be that by way of providing money or some other form of assistance to secure such an end. I am sure that instances in which a condition requires the exclusion of political propaganda from, for instance, theatre programmes are well known to your Lordships.
It is intended to secure also the principle underlying subsection (1)—and it is the very principle to which my noble friend Lord Boyd-Carpenter and others in your Lordships' House have spoken this afternoon—that ratepayers' money shall not be employed, whether it be by direct funding or by indirect funding, where other assistance, such as the provision of a printing press or the like, produces prohibitive material. Subsection (3) is there to see that that principle is adhered to at all times.
I understand that it has indeed been the practice since the GLC case for a local authority to impose certain conditions upon the form of publicity for which the funds that they may provide are employed. If it is directly concerned in the printing or in other means of assistance for the publication of the material, then the local authority can itself see the material and make up its own mind as to whether the material breaches the prohibition. However, that provision should not be seen as inhibiting—and it does not inhibit—local authorities in any way in the exercise of their general discretion to support charities and other non-profit making bodies in their work.
I was very grateful to the noble Lord, Lord Grimond, for raising the example that he did, because it was one that had caught my eye. It seems to me that the particular instance that the noble Lord brought to the attention of the House was clearly an improper use of ratepayers' money on the basis upon which this clause is founded. There is a proper way of dealing with such marches—which, after all, are perfectly lawful assemblies unless the local authority takes other steps. As the noble and learned Lord, Lord Denning, pointed out, there is a correct way of dealing with the matter, and that is not to embark upon a public campaign using ratepayers' money for the purpose.
I have seen other publications which refer, for instance, to the National Front as being a terrorist organisation. Again, that could hardly be said to be promoting good race relations. It is that kind of thing at which this particular subsection is directed—if the local authority knows.
I have taken up much time in answering your Lordships, and I regret doing so. I can only assure the noble Lord, Lord Underhill, that we have looked again at the issues in the light of the speeches made by noble Lords in Committee and in the light of the discussions which have since continued. We can well understand the motives which have led the community relations councils and other bodies to issue publicity of the kind referred to, and to express the concerns that they have. But the question is whether it is right that local authorities should produce or finance the production of party political material, even in the circumstances described, more than is allowed by the present law.
713 I have to say that the Government still believe that the proposed amendment raises serious issues of principle. As I say, we have discussed the sort of material which the national association has brought before us, but the question must be put as to whether publication of material of a nature such as we have discussed this afternoon should be authorised at the ratepayers' expense. The Government have concluded that it would be setting an extremely dangerous precedent to enable public authorities, whether directly or indirectly, to finance publicity campaigns against political organisations engaging in activities not otherwise proscribed by law.
I have already made clear in Committee that the provisions in the Bill do not of themselves prevent voluntary organisations, including community race councils, from engaging in publicity or campaigns, with local authority funds, which counter the arguments put forward by particular organisations. Of course, it would not affect what they do with funds from other sources. What it would prevent, where local authorities have imposed conditions on the employment of funds provided by them, is the use of ratepayers' money by those organisations to produce party political material against other political parties. I suggest that there is a compelling argument that such matters are properly financed as a matter of free choice by the individual citizen or (dare I suggest it?) by other political parties.
I and my colleagues recognise the strong feelings in the House on this issue. We cannot, I regret to say, accept the amendment proposed, not least because of the potential it would give for producing party political material on a far wider scale than is intended by the noble Lords who proposed the amendment. It would lead to the very imprecision in the law against which Widdicombe warned in paragraph—
§ Baroness Seear
My Lords, perhaps I may be permitted to intervene so that the noble and learned Lord can clarify a point for me. All the matters mentioned here are based on legislation which has been through Parliament and, therefore, must be assumed to be for the public good. This is a genuine question and I am not trying to score a party point. Does the noble and learned Lord make any distinction—because I believe the distinction sometimes is made—between propagating things which are based on law as being objectives which should be pursued, and objectives which are simply matters of party policy?
§ Lord Cameron of Lochbroom
My Lords, what I am saying is that I make the distinction that the material which is struck at here is material which is designed to affect public support for a political party. On the other hand, as I think the noble Baroness is putting to me, if one has a different intention in mind then that, of course, is not struck at; although, as my noble friend Lord Campbell pointed out, it may be that there will also come with it some affect upon a political party. However, it is the intention which is important. That is what the local authority has to look at. That is what they know about, and that is the test that the court will apply, as my noble friend pointed out.
714 As I was saying, to have an exception of this kind would lead to imprecision in the law, against which Widdicombe warned in paragraph 175—a point which, again, the noble and learned Lord, Lord Denning, made. For those reasons I cannot invite your Lordships to accept the amendment.
I should also say, in parenthesis, since the point was raised by the noble and learned Lord, Lord Denning, that the Government await the publication of the Widdicombe Report in full, but it will be understood that I can give no assurance as to what will come out of it.
§ Lord Underhill
My Lords, I am certain it will not be the wish of the House that I should deal in detail with all the various arguments put forward. Needless to say, I am most disappointed with the Lord Advocate's reply.
The noble and learned Lord said that I did not fully quote the provisions of Section 71 of the Race Relations Act. He referred to the fact that every local authority should,make appropriate arrangements with a view to securing that their various functions are carried out with due regard to the need"—and then follow the two points mentioned in my amendment. But local authorities have done, and are doing today, those very things. They are finding it necessary to issue publicity material to deal with racial incitement and discrimination. Community relations councils which are funded by local authorities are finding it necessary to issue literature to deal with the situation. They are finding it necessary to do so in order to protect school children. They are finding it necessary in order to avoid disturbances at sports events. That is being done today. Unless we insert this amendment that can be imperilled.
I was glad to hear the noble Baroness, Lady Faithfull, say what she did. There may be some fault on my part because I quoted extracts from papers which stressed the National Front. However, a communication from the National Association of Community Relations Councils does not refer to the National Front or to any particular organisation. It refers to bodies which endeavour to propagate the lack of human rights and which propagate racial discrimination. I echo the point made already. What we are endeavouring to do in this amendment is to include what is already provided by Parliament in the Race Relations Act. Why did Parliament pass the Race Relations Act if it then intended to say, "But you must not do anything about it"? Parliament wants local authorities to do something about it. It wants local community councils to do something about it.
The question I pose to noble Lords is this. If the amendment is not carried, how will a local authority be able to issue literature to deal with the points which I have mentioned in the amendment? How will community relations councils, which are partly funded by local authorities, be able to carry out their work? Without the amendment what chief officer or legal adviser to a council is going to say to his local authority, "Go ahead"? There will be grave doubts, and I am glad the point was made by the right reverend Prelate the Bishop of Rochester.
715 I believe this is an important issue. If we do not carry the amendment the position will be terribly misunderstood by people throughout the country. Therefore, I wish to press the amendment this afternoon.
§ 4.48 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 100; Not-Contents, 133.716
|DIVISION NO. 1|
|Airedale, L.||Jenkins of Putney, L.|
|Allen of Abbeydale, L.||John-Mackie, L.|
|Alport, L.||Kagan, L.|
|Annan, L.||Kilbracken, L.|
|Ardwick, L.||Kilmarnock, L.|
|Aylestone, L.||Leatherland, L.|
|Bancroft, L.||Listowel, E.|
|Banks, L.||Lloyd of Kilgerran, L.|
|Birk, B.||Lockwood, B.|
|Boston of Faversham, L.||Longford, E.|
|Bottomley, L.||Lovell-Davis, L.|
|Briginshaw, L.||McIntosh of Haringey, L.|
|Brockway, L.||Masham of Ilton, B.|
|Bruce of Donington, L.||Milford, L.|
|Buckmaster, V.||Mishcon, L.|
|Burton of Coventry, B.||Mulley, L.|
|Campbell of Eskan, L.||Nicol, B.|
|Caradon, L.||Oram, L.|
|Carmichael of Kelvingrove, L.||Paget of Northampton, L.|
|Cledwyn of Penrhos, L.||Phillips, B.|
|Collison, L.||Pitt of Hampstead, L.|
|Cottesloe, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Crawshaw of Aintree, L.|
|Darcy (de Knayth), B.||Rathcreedan, L.|
|David, B.||Rea, L.|
|Dean of Beswick, L.||Reilly, L.|
|Diamond, L.||Ritchie of Dundee, L.|
|Elwyn-Jones, L.||Rochester, Bp.|
|Ennals, L.||Rochester, L.|
|Ezra, L.||Sainsbury, L.|
|Faithfull, B.||Seear, B.|
|Falkender, B.||Serota, B.|
|Falkland, V.||Shackleton, L.|
|Fisher of Rednal, B.||Silkin of Dulwich, L.|
|Fitt, L.||Simon, V.|
|Flowers, L.||Stallard, L.|
|Gallacher, L.||Stedman, B.|
|Galpern, L.||Stewart of Fulham, L.|
|Graham of Edmonton, L.||Stoddart of Swindon, L.|
|Hampton, L.||Strabolgi, L.|
|Hatch of Lusby, L.||Tordoff, L. [Teller.]|
|Hayter, L.||Underhill, L.|
|Hooson, L.||Vernon, L.|
|Houghton of Sowerby, L.||Wallace of Coslany, L.|
|Howie of Troon, L.||Wells-Pestell, L.|
|Hughes, L.||White, B.|
|Hunt, L.||Williams of Elvel, L.|
|Ingleby, V.||Wilson of Rievaulx, L.|
|Irving of Dartford, L.||Winchilsea and Nottingham, E.|
|Jeger, B.||Winstanley, L.|
|Airey of Abingdon, B.||Beloff, L.|
|Aldington, L.||Belstead, L.|
|Alexander of Tunis, E.||Boyd-Carpenter, L.|
|Ampthill, L.||Brabazon of Tara, L.|
|Auckland, L.||Bridgeman, V.|
|Beaverbrook, L.||Brougham and Vaux, L.|
|Belhaven and Stenton, L.||Broxbourne, L.|
|Bruce-Gardyne, L.||Macleod of Borve, B.|
|Buckinghamshire, E.||Malmesbury, E.|
|Butterworth, L.||Mancroft, L.|
|Caithness, E.||Marley, L.|
|Cameron of Lochbroom, L.||Massereene and Ferrard, V.|
|Campbell of Alloway, L.||Maude of Stratford-upon-Avon, L.|
|Carnegy of Lour, B.|
|Cathcart, E.||Merrivale, L.|
|Chelmer, L.||Mersey, V.|
|Coleraine, L.||Milverton, L.|
|Cork and Orrery, E.||Mottistone, L.|
|Cox, B.||Mowbray and Stourton, L.|
|Cullen of Ashbourne, L.||Moyne, L.|
|Davidson, V.||Murton of Lindisfarne, L.|
|De La Warr, E.||Nairne, Ly.|
|Denham, L. [Teller.]||Nugent of Guildford, L.|
|Denning, L.||Orkney, E.|
|Drumalbyn, L.||Orr-Ewing, L.|
|Ebbisham, L.||Pender, L.|
|Ellenborough, L.||Penrhyn, L.|
|Elliot of Harwood, B.||Porritt, L.|
|Elliott of Morpeth, L.||Portland, D.|
|Elton, L.||Renton, L.|
|Ferrers, E.||Rochdale, V.|
|Ferrier, L.||Rodney, L.|
|Forester, L.||Romney, E.|
|Fortescue, E.||Russell of Liverpool, L.|
|Fraser of Kilmorack, L.||St. Aldwyn, E.|
|Gainford, L.||St. Davids, V.|
|Gardner of Parkes, B.||Saltoun of Abernethy, Ly.|
|Gisborough, L.||Sanderson of Bowden, L.|
|Glanusk, L.||Sandford, L.|
|Gray of Contin, L.||Savile, L.|
|Greenway, L.||Sempill, Ly.|
|Gridley, L.||Shannon, E.|
|Hailsham of Saint Marylebone, L.||Shrewsbury, E.|
|Hardinge of Penshurst, L.||Soames, L.|
|Harvington, L.||Somers, L.|
|Henley, L.||Suffield, L.|
|Holderness, L.||Swinton, E. [Teller.]|
|Hood, V.||Terrington, L.|
|Hooper, B.||Teviot, L.|
|Hunter of Newington, L.||Thomas of Swynnerton, L.|
|Hylton-Foster, B.||Thorneycroft, L.|
|Ilchester, E.||Thurlow, L.|
|Killearn, L.||Trefgarne, L.|
|Kimball, L.||Trumpington, B.|
|Kinnaird, L.||Tryon, L.|
|Kitchener, E.||Vaux of Harrowden, L.|
|Lane-Fox, B.||Vickers, B.|
|Lauderdale, E.||Vivian, L.|
|Layton, L.||Ward of Witley, V.|
|Lindsey and Abingdon, E.||Westbury, L.|
|Liverpool, E.||Whitelaw, V.|
|Long, V.||Wilberforce, L.|
|Lothian, M.||Wise, L.|
|Luke, L.||Wolfson, L.|
|Lurgan, L.||Wynford, L.|
|McAlpine of Moffat, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.56 p.m.
Baroness David moved Amendment No. 2:
Page 2, line 20, leave out ("particular").
§ The noble Baroness said: My Lords, in speaking to Amendment No. 2 I shall also speak to Amendment No. 3. There was a great deal of discussion on these amendments at Committee stage and I think that the general conclusion of noble Lords, other than the Minister, at the end of the debate was that there was very little point in keeping subsection (2) in the Bill.
§ I am very sorry that the noble Lord, Lord Henderson of Brompton, is ill and unable to be here today, as he would have moved these amendments 717 and I am sure he would have been much more persuasive than I can be in explaining the case for deletion of Clause 2(2)(b). It was the noble Lord, Lord Henderson, who asked why there should be "particular regard" in Clause 2(2)(a) and just "regard" in Clause 2(2)(b). Had this any significance, he asked?
The Minister undertook to look at the disparity. As he has not come forward with any proposed alteration I hope he will look favourably on our Amendment No. 2. I have read most carefully the Minister's justification for keeping Clause 2(2)(b) in the Bill, in cols. 574 and 575 of the Official Report of 18th February, and I confess that I am still confused. In his first speech the noble Lord, Lord Elton, said:
We are looking at Clause 2(2)(b). The test there is applied to material which is published as part of a campaign … The test therefore is: what was the campaign intended to do? If it is a factual campaign, saying, "If we proceed with this policy the effects will be so and so; if we proceed with another, they will on the contrary be such and such", that is not designed to change support for a political party. The incidental effect on the national voting figures when a local authority, pursuing the interests of all its electors, puts before them the consequences of national policy, does not get caught by a definition which asks whether the material was designed to alter the support for that party. It is designed to inform the public and they can make up their own minds about which party is supporting the right policy".
But in his second intervention he said:
We are simply concerned that material which might appear neutral when it is not part of a campaign, and which is the material which links the intentions of the authority to the campaign, should not by its neutrality escape the effects of the Act: so that the consequence is that the campaign itself, which is of a nature of which the Committee disapprove, also escapes the effects of the Act".
That, in a way seems to me to contradict the earlier comment. If we are confused and mystified, what will councillors, and more particularly the officers advising them, do when faced with this unclear clause? I suppose the Minister's argument is that paragraph (b)is necessary to prohibit material which is in itself innocent but which would have political effects in the context of a campaign. That appears unsound. The matter is adequately covered by Clause 2(1). All material is subject to the prohibition there, so the political publicity which is supposed to be tainting other material in the same campaign would be barred anyway.
§ Consideration will obviously be given to the general context of material in judging whether it falls foul of the apparent design test in Clause 2. The test would be impossible to apply otherwise. It is, for instance, an essential element of the context of publicity opposing, say, rate capping that the Government support rate capping and the Opposition do not. That explains why paragraph (b) is unnecessary.
It is also undesirable because it introduces a new and vague concept: that of a campaign. "Campaign" is not defined in the Bill. In Committee the noble Lord, Lord Elton, simply said:
I am sorry that the noble Lord, Lord Winstanley, does not recognise a campaign when he sees one, but there have been a number in London which most of us have recognised".—[Official Report, 18/2/86; col. 571.]
But that is hardly adequate as a definition. Some campaigns are easily recognisable, but it might not be so easy to determine where one campaign begins and another finishes. Is a campaign to be defined in terms of its objective? A campaign by a local authority aimed at increasing employment might then be seen as
having the same objective as the Labour Party's "Jobs and Industry" campaign. Is the non-party political local authority publicity to be linked to the party political campaign? It seems to us to be unfair and dangerous to give the courts the job of interpreting that expression in such a controversial and politically charged area as this.
Widdicombe is very firm in a number of places in the interim report that local authorities should not be prevented from campaigning. In paragraph 34 the report states:
Local authorities should be able to use their powers, with incidental persuasive effect, in support of or opposition to pi 'posed legislative changes".
In its conclusions at paragraph 221 it says:
It is important at all times, but perhaps particularly in tunes of wide political differences, that our political system should accommodate the free expression of opposing views on controversial matters affecting them. In the recent contest that includes issuing information about abolition and rate-capping".
§ The amendments that we are discussing have the support of all parties in the House. We believe that there are adequate safeguards in Clause 2(1) and that the retention of this subsection will serve only to confuse. It is unnecessary. I beg to move.
§ Lord Campbell of Alloway
My Lords, I want to seek the assistance of my noble friend. I support Amendment No. 2 but oppose Amendment No. 3. Is it in order for me now to speak just to Amendment No. 2?
§ Lord Campbell of Alloway
I am much obliged, my Lords. I support Amendment No. 2. It seeks to remove a distinction which would no doubt be apposite in an advisory code of guidance but is quite out of place in context with the tripartite safeguard provisions of Clause 2(2). Those safeguard provisions are requisite to justify the interventionist measures of Clause 2(1) and (3) without undue or unacceptable restraints upon a local authority. Such is the importance of those measures in the structure of the clause that total clarity in the drafting is essential.
If under Clause 2(2) construed as a whole discretion is left to the court, as indeed it should be, the words "regard shall be had" in subsection (2)(b) are the mandatory statutory absolute in terms of grant of such judicial discretion. Those words have binding effect not only in the courts of first instance but in all revisory courts. What is the meaning in those circumstances to be given to the word "particular" in subsection (2)(a) sought to be excised? Assuredly the discussion which ensued at Committee stage on old Amendment No. 6 gave no answer to your Lordships. I respectfully suggest that there is no answer.
In supporting Amendment No. 2 on the basis of clarification of those essential measures of safeguard afforded by subsection (2)(a) and (b) it follows that I oppose Amendment No. 3, which seeks to excise subsection (2)(b). Amendment No. 2, in a sentence, is to be supported because it removes from the Bill the semblance of a distinction which on examination simply does not and cannot exist.
719 The amendment could serve perhaps to influence a redraft of subsection (2) so that the phrase "shall have regard" governs the three matters to which the subsection refers, so avoiding the consequent double drafting of "shall have regard" in paragraphs (a) and (b). One could redraft and try to make sense in English of the whole thing by putting the phrase "shall have regard" to govern the rest. But that is a matter of cosmetics and not a matter on which I should take your Lordships' time.
The far more important matter of substance—and again here I speak subject to correction by my noble friend the Minister in case I have it wrong—is this. I oppose Amendment No. 3 because the excision of subsection (2)(b) would remove an essential safeguard for the local authorities. The "material … published as part of a campaign" is included in "any material", if your Lordships see, referred to in subsection (1), and is subject to the very wide definition of "publication" in Clause 6(3). So as a matter of construction of the clause as a whole Clause 2(2)(b) must be read as being in qualification of subsection (1) and hence as affording a safeguard.
The value of that safeguard, as I mentioned previously, has been very much enhanced by the removal of the second limb of prohibition in subsection (1) at Committee stage, with its counterpart, if your Lordships remember, which lay in subsection (2)(b); because the test to be applied by the court is no longer whether the material can reasonably be regarded as likely to affect public support for a political party, or, as the noble Lord, Lord Underhill, said on the previous amendment, "could support". That is not now the case. The only test now is whether on objective analysis it appears to be designed to affect public support for a political party. The alternative route to prohibition on the ground of probable effect where there was no apparent design has now been closed.
Before making a finding on apparent design the court is enjoined to have regard to political reference under Clause 2(2)(a); and also where the material is published as part of a campaign. One has only to open a dictionary to see what a "campaign" is. It is a series of connected operations designed to achieve an end. When I looked at the dictionary I wondered whether that was where the draftsman found "designed" for the drafting. It is an unusual form of drafting. One does not usually find "designed" in this form in a statute. However, it comes perhaps from its use in the definition of "campaign".
There are therefore these two safeguards. First, in 2(2)(a) there is a reference to political parties or persons; and, secondly, where the material is published as part of a campaign regard shall be had to the effect which that campaign appears to be designed to achieve under Clause 2(2)(b).
In the result—this is why this safeguard is of such crucial importance—it is all but inconceivable, save in a wholly exceptional case, that, where material is published as part of a campaign designed to achieve an end, and that end appears to be designed (I should like to put it as generally as possible) to achieve some purpose of importance to the community, if no 720 reference is made in such material to a political party, or persons identified with a political party, the court would conclude that the prohibition had been breached. That is the effect and the importance of these mandatory measures of safeguard notwithstanding that inevitably many campaigns will affect support for a political party. However, whether it has such effect, may have such effect, could have such effect, or is likely to do so, is not a matter for the court. It is only because the Bill recognises the relationship between the apparent design of the campaign in relation to the apparent design of the publication of the material to which the prohibition relates that it has built in this mandatory measure of safeguard which is Clause 2(2).
I may have misconstrued the clause; I have had difficulty with this clause before. But if I have got it right then surely the last thing that any of your Lordships would want to do, would be to remove a measure of safeguard. I shall seek confirmation later as to whether I have got it right.
§ Lord Denning
My Lords, I hope your Lordships will not accept either of these amendments. In a way it is essential that the local authority should be given some guidance as to how they will decide the important question of whether the publicity is designed to affect support for a political party. It is a very difficult question for the local authority to decide. It is important for them to have guidance upon it.
Let us take Clause 2(2)(a). If one has in a piece of publicity a reference in terms to the Conservatives or the Conservative Party, or if one has in terms a reference to Mrs. Thatcher, then one pays particular regard to that. It is obvious. That is done in order to effect the support or otherwise of a political party. That is there already in Clause 2(2)(a) and "particular regard" should be had to the fact that they are named.
Clause 2(2)(b) deals with the important point of something which is not open, is insidious, is wrapped up in the course of a campaign, which does not name any party, or any politician, but has insidiously running through it party political propaganda.
Although the noble Baroness referred to one part of the Widdicombe Report, in support of what I have said I feel that in this respect the Government are following the very advice in paragraph 228. Inevitably there is a problem in distinguishing between publicity which is legitimate and that which is not. The report says,We wish to rule out such practices as:this is the campaign point—
- (a) the use of party political names in local authority publicity;
- (b) publicity which is party political in style;
- (c) publicity which makes its points by reference to well known politicians;
- (d)"—publicity campaigns, the scale of which, given their political context, may have the effect of advancing the interests of a particular party even though the subject matter is not overtly party political".That seems to be the advice of the Widdicombe Report and that is the practice that they want to rule out. In those circumstances that has been translated into the present clause, which I hope will remain as it is and not be left out.
§ Lord Silkin of Dulwich
My Lords, I always have a dislike for unnecessary words in a statute. When I see in two parts of a subsection the words "particular regard" and "regard" then I assume that the word "particular" is an unncessary word unless there is something to indicate the contrary.
The only thing that I can see which could possibly indicate the contrary would be if the intention of the legislature were that greater regard should be given by the courts to subsection (2)(a) than to subsection (2)(b). Is that the intention? No doubt the noble and learned Lord the Lord Advocate will be explaining to us in due course whether, if it comes before the court, the court or the local authority when making its mind up is required to say, "We must pay more attention to subsection (2)(a) than to subsection (2)(b)." I am bound to say that I criticised this clause as a whole at Committee stage, and, if that was the intention behind this particular word, my criticisms would have much greater force than they did at that time.
Having listened to the speech of the noble Lord, Lord Campbell of Alloway, with regard to Clause 2(2)(b) I find that what he was saying is very much what is in my mind. I should like to give an illustration of that and perhaps my noble friend on the Front Bench may consider the point I am making.
Clause 2(2)(b) tells us that when the court or local authority has to determine whether material falls within the prohibition, it shall have regard—where the material is published as part of a campaign—to the effect which the campaign as a whole appears designed to achieve. I take it that if that means that if the campaign as a whole is designed to achieve something which is not within the prohibited class—that is, that the campaign is designed as a whole not to affect public support for a political party even though incidentally it may do so—then the court would take the view that the prohibition does not apply.
Let us apply that analysis to the wording of the last amendment in this group. Let us suppose that the campaign is a campaign which, taken as a whole, appears to be designed to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups. If that is the apparent intention of the campaign as a whole, then the mere fact that in the course of that campaign there may be something which would otherwise, taken on its own, fall foul of the provisions of Clause 2(1), would take it out of the mischief of Clause 2(1). I hope that the noble and learned Lord the Lord Advocate will explain whether or not that is the Government's view on this matter, because it is most important. If that proposition is right, then I for my part would prefer to retain subsection (2)(b) because it would then be an important safeguard which would go quite a long way towards mitigating the effect of the loss of the amendment which has just been lost.
However, if that is not the intention, if I am wrong in my analysis and if the noble and learned Lord the Lord Advocate tells me and the House that that is not the way in which a court ought to look at Clause 2(2)(b), then I am bound to say that once again my criticism of the clause as a whole is reinforced and it becomes a wholly unintelligible clause which no court 722 will find it easy, if at all possible, to construe in a way which accords with the intentions of Parliament.
§ Lord Cameron of Lochbroom
My Lords, I am grateful to the noble Baroness opposite for raising these issues and I am very sorry, as I am sure we all are, to hear of the illness of the noble Lord, Lord Henderson, and wish him a speedy recovery. I was aware that the noble Lord was concerned to have these issues raised for clarification.
I should like to begin with Amendment No. 3 which deals with Clause 2(2)(b) and thereafter move on to Clause 2(2)(a). Clause 2(2) is of course intended as being an aid to how Clause 2(1) should be interpreted. Clause 2(2)(b) applies where material is published as part of a campaign. The interpretation of Clause 2(1) requires a determination as to whether the material:appears to be designed to affect public support for a political partyin a case where the material is published as part of a campaign, and the local authority and the courts should not just look at the particular material for publicity in isolation, but should also have regard to the effect which the campaign appears to be designed to achieve. I think that in a sense the noble and learned Lord, Lord Silkin, raised the point just now. I had attempted to answer that point when I replied to the noble Baroness, Lady Seear, during the last debate. It is a question of the design of the campaign. There may be certain incidental effects, but the important matter which the court has to look at is the design of the campaign itself.
In Committee the noble Lord, Lord Winstanley, pointed out that you cannot publish a campaign. However, you can of course undertake a publicity campaign, as Widdicombe pointed out. It is also important to recognise that the techniques of campaign advertisement are such that the flavour of the campaign may not be distinguished until the later or, indeed, the last round of the campaign, so material which is apparently innocuous in character when looked at in isolation can take on a wholly different character when seen in its full context.
It is important to bear in mind that when embarking upon a campaign the local authority must themselves know perfectly well what they are doing. However, of course, they can only be judged objectively when they are challenged and, therefore, it is then important to look at the material in its context, if it has a context. By the same token—and my noble friend Lord Campbell of Alloway made a point which I think is entirely correct and very valid—material which may, upon examination, within its four corners appear to offend, could, when looked at in the context of a campaign, be seen to involve no apparent design to affect support for a political party.
Therefore, this paragraph provides an important test which is to be applied to the material from the point of view both of the local authority and of the court when adjudicating upon any challenged material. If the local authority embark upon a campaign by means of publicity—a campaign which is designed to affect support for a political party—then that publicity is forbidden. Any material within it, in judging whether it is in breach of the obligation has to be looked at in full and not simply within the four corners.
723 If a court in considering challenged material thinks that it is part of a publicity campaign, then it is required to have regard to the effect which the campaign as a whole is designed to achieve in determining whether the material offends the prohibition. I suggest that that is a perfectly proper way in which to set out how to deal with these two different tests—the one which the local authority has to apply, and the one which the courts, if challenge arises, have to apply.
I should make it clear—and I think that the noble Baroness raised this point—that it has been argued that any campaign, for instance, by a local authority to increase council house sales, will be bound to appear to be designed to affect public support for a political party and the Bill effectively aims to stop a local authority campaigning on such a head. We do not accept that. As with the test in Clause 2(1), we believe that we are offering an objective test for local authorities contemplating starting or joining in a campaign. It seems to me that a campaign which genuinely—and I underline the word "genuinely"—sets out to sell more council houses, is in no danger of being a campaign which appears to be designed to affect public support for a political party. There seems to be no inherent reason why the party politics of the matter need be prayed in aid in such a campaign.
The Government are not against campaigns; clearly they can provide a useful means of disseminating information or getting over a message. However, it is because they are, in the round, such a normal and effective means of communication in present-day society, and because material produced as part of modern publicity campaigns is often significant only when considered in relation to the overall context of the campaign, that we believe local authorities should have regard to the effect they appear to be designed to have as well as looking at the individual items of publicity material of which they are comprised. Likewise that is the test which the courts should apply in the event of challenge.
I now turn to the word "particular" which occurs in subsection (2) and which serves a quite different purpose. Most of us would recognise that, in deciding whether publicity appeared to be designed to affect public support for a political party, the use that the publicity made of party political names and personalities is of considerable importance. What the word is intended to make clear is that this should be of particular importance in consideration of whether material in itself in whole or in part, falls within the Clause 2 prohibition.
The use of party political names and personalities to put across a message is one of the principal mischiefs at which the Bill is directed. The use of the word "particular" is to give emphasis to and to stress the importance of that factor. While it may be less important for this to be done in relation to a court's oversight of the prohibition at judicial proceedings, it is judged important for the emphasis to be underlined for the consideration of local authorities when they are looking to their primary obligation—not to offend against the prohibition. It is for this reason that the word "particular" has been included in this place.
724 I take comfort from the fact that in particular the noble and learned Lord, Lord Denning, supported the inclusion of this word. I do not suggest that it has any large scale merit. I do not suggest that lawyers would have especial—I was going to say "particular"—difficulty in dealing with the matter, but what we are dealing with here, as I said at the outset, is that we are giving guidance to local authorities as well as to the court, and we are making it quite plain that one of the principal mischiefs at which this clause is directed is that which was identified in paragraph (a), and that that matter must be brought firmly to the attention of the local authorities when they come to consider whether or not to publish in the first place. I hope that with that explanation, the noble Baroness may feel able to withdraw these amendments.
§ Lord Allen of Abbeydale
My Lords, on the first point it would be of great help to some of the non-legal Members of this House who find some difficulty in following the arguments if the noble and learned Lord the Lord Advocate could say quite simply: have the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Silkin, got it right? Is paragraph (b) a protection, and would the removal of it be to the detriment of those concerned?
§ Lord Cameron of Lochbroom
My Lords, perhaps with the leave of the House I may respond to that. I think I made it plain that it acts in two particulars. It can be both a safeguard in the circumstances which my noble friend outlined. Of course it is also directed to the other area where what would appear to be innocuous can, when seen in full context, be within the prohibition. It acts in two ways.
§ Baroness David
My Lords, I feel very humble having faced four noble and learned Lords, and all of them against me on Amendment No. 3 to delete 2(2)(b). On the other hand, I have had considerable support for deleting "particular" in Amendment No. 2. I do not see why 2(2)(a) should be seen to be so much more important than 2(2)(b). I am uneasy about the drafting of this clause. We might perhaps at Third Reading make an attempt to redraft it so that it is clearer, because there is no doubt that there is still a great deal of confusion. As I have had support for leaving out "particular", I shall divide the House on Amendment No. 2.
§ 5.33 p.m.
§ The Deputy Speaker (Lord Aylestone)
My Lords, th: Question is, That Amendment No. 2 be agreed to? As many as are of that opinion will say, "Content"? to the contrary, "Not-Content"? I think the "Not-Contents" have it. Clear the Bar.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, Tellers for the Not-Contents have not been appointed pursuant to Standing Order No. 51. A Division therefore cannot take place, and I declare that the Contents have it.
§ [Amendment No. 3, not moved.]725
Lord Mottistone moved Amendment No. 4:
Page 2, line 28, at end insert—
("( ) Any person responsible for incurring or authorising any expenditure declared unlawful in this section shall be liable to repay it to the local authority concerned and, where two or more persons are found to be responsible, they shall be jointly and severally liable to repay such expenditure.")
§ The noble Lord said: My Lords, this amendment seeks to introduce a new subsection to Clause 2. I would not go to the stake on the wording of it, but I hope that I may be able to convince your Lordships, and in particular my noble and learned friend on the Front Bench, that there is a reason for having this extra subsection. What it seeks to do is to make local councillors and their officials who approve expenditure on the rates for publicity contrary to the earlier subsections in Clause 2 personally responsible for breaking those provisions.
It has been suggested that Section 19 of the Local Government Finance Act 1982 performs this function adequately. I suggest to your Lordships that it does not. Subsection (1) states:
Where it appears to the auditor carrying out the audit of any accounts under this Part of the Act that any item of account is contrary to law he may apply to the court for a declaration that the item is contrary to the law"—
and the subsection continues. The important thing is that the auditor can only act when he is carrying out the audit of the accounts.
§ It may happen that this action in contravention of the earlier part of Clause 2 occurs at some time which is some months before the next audit is due, and that at the time that the local councillors sought to finance some sort of material designed to affect the public support for a political party they were so carried away by enthusiasm that they forgot or even disregarded the possibility that they might be nabbed by the district auditor in seven months' time, or whenever it might be.
§ It seems to me that we need a more positive provision which can be brought into effect immediately. In the event that a campaign of an illegal sort is mounted—against which some ratepayers might reasonably, under the terms of the Bill, seek an injunction—we should have a system by which the learned judge considering this might have the power immediately to bring into effect the sense of my amendment.
§ That surely would be a much greater deterrent than the possibility that the district auditor might—it does not say that he invariably will—find something wrong so that he can exercise Section 19 of the Local Government Finance Act 1982.
§ I believe that we need to have this extra strength of deterrent built into Clause 2. I hope your Lordships will agree that this will be helpful. I do not think it is something that would often have to be used; but, as applies so often, the law is a deterrent quite as much as, and in many cases more than, it is an instrument for the implementation of a penalty. I should have thought that this is an example of where that might be useful. I beg to move.
§ Lord Campbell of Alloway
My Lords, your Lordships will be grateful to my noble friend Lord Mottistone for moving this amendment because it makes a valuable and crucial distinction between the 726 surcharge proceedings and the proceedings under Clause 2. I support the spirit of this amendment because it seeks to inject an immediate, effective and realistic sanction regarding the observance of Clause 2. It only deals with reparation—there is nothing punitive about it—in the event of a breach of Clause 1(1) or (3).
I raised this point in column 1077 on Second Reading. I questioned whether the civil courts can order reimbursement of sums improperly expended on political publicity by councillors in these Clause 2 proceedings. For one reason or another, as my noble friend the Minister had to answer rather a lot of questions of greater importance, and I fully understood that time was getting on, we did not have the answer until today. My noble and learned friend the Lord Advocate has just said on the previous amendment that Clause 2 proceedings are only relevant to the position of the local authority. Hence the value of this amendment coming now to highlight whether it is not fair, reasonable and requisite that the spirit of this amendment should be considered by your Lordships now.
Let us consider whether the elements of this commend themselves to your Lordships. The first is the use of the term "shall be liable". Your Lordships may think that that is entirely apt and reasonable because it enables the court in its discretion, having regard to all the circumstances and the means of each particular person as a defendant, to make such order as may be just or no order at all. To be straight with my noble friend, one of the reasons why I could not support the amendment in its present form is that it does not deal with the joinder machinery—who can join whom as defendant, what defendants, what is the procedure, and so on. Until one has given thought to erecting the machinery for joinder of the personal defendant it would be wrong to introduce the amendment in this form.
The second concept in the drafting your Lordships again may think is a fair and reasonable concept. This concept is of joint, several even perhaps shared or apportioned liability on the part of recalcitrant councillors who took part in (these are my words and are not in the amendment) and supported a decision to publish material in contravention of statute. Your Lordships may think that it is only right that these recalcitrant councillors who took part in and supported the decision should be liable to reimbursement of sums improperly expended.
But the problem is that the amendment goes much wider than that. It is not a mere technical matter of drafting. Observe the words:Any person responsible for incurring or authorising";and consider whether this is not a very large net with a very fine mesh in which far too many of the administrative minnows might be caught. In other words, it is unacceptably wide, but the principle must be right. It is an important principle because before a decision is taken by the councillor he has first to consider the codes of guidance under Clause 4. Those have been produced in full consultation with the councillors in determining (your Lordships will see the provisions of 727 Clause 4) whether to incur expenditure on publicity; so they have the advantage of that.
Of course, the codes have no legal effect and are not admissible in Clause 2 proceedings. But that is not the point. The point is that they have the guidance before they make the decision of determination. Then there is the tripartite safegard in Clause 2(2) which, thanks to the endeavours of the noble Baroness opposite, is now more satisfactory—and at this point I was about to make an observation but I think that I will not.
First of all, the councillor has his recommended code of practice, then he has these measures of safeguard in Clause 2(2), and if notwithstanding all that the recalcitrant councillor makes a decision and it is by inspection on the face of it material apparently designed for supporting a political party then why—as any of your Lordships on any side of the House might ask—should he not be liable, if he has the means and if it is reasonable, to make reparation in those very proceedings? Since among all your Lordships, surely it is common ground that we really cannot have a misuse of ratepayers' money for political purposes, is this not a reasonable way of looking at it? Really, in those circumstances, if the codes are ignored, if the safeguards are spurned, then, although I cannot support this amendment for the reasons I have given, I welcome the spirit of it and commend its broad spirit to your Lordships.
§ Lord Denning
My Lords, when we considered this Bill earlier I said that there is nothing in it about enforcement. How are you to do it? This amendment suggests quite a good way. The really recalcitrant councillors who determine to indulge in political propaganda with the ratepayers' money are liable to repay it jointly and severally. I agree that the wording of it is very uncertain and doubtful at the beginning but it has a very good precedent.
If you first go back to 1963 but now come to Section 19 of the Local Government Finance Act 1982 you will find that this very provision has been in the statute book; that an auditor may apply to the court for a declaration that expenditure is unlawful and when the court makes a declaration—and I will read the very words of this statute:it may also order that any person responsible for incurring or authorising any expenditure declared unlawful shall repay it in whole or in part to the body in question and, where two or more persons are found to be responsible, that they shall be jointly and severally liable to repay it".There it is. The very precedent, with the very situation, going back to 1963. But certainly the modern section is Section 19 of the Local Government Finance Act 1982. I wonder whether this amendment is necessary at all, whether that existing section does not deal with the whole thing, and therefore whether we might not go ahead perhaps leaving out the amendment and, if I am right, trusting to the existing law.
§ Lord Orr-Ewing
My Lords, I should like to support this amendment. As I understand it from the noble and learned Lord, Lord Denning, under the current legislation, Section 19 of the 1982 Act, the responsibility is surely on the district auditor or the auditor to take action. This seems to me a more direct, 728 quicker and more succinct way of taking action against wrongdoers. If something like this is not put in the Bill then the worst thing that can happen to councillors is that in due course they may be liable; and that is a long way down the course. They may go on doing wrong things, and therefore the sooner you can take action the less the ratepayers will have to suffer financially.
We have had many examples; and I may on other occasions on this Bill, perhaps later on today or on the Third Reading, draw attention to some of the most glaring examples of where extremist councillors are continuing to break the law at a cost to the ratepayers. They seem to be flouting the law. I will give chapter and verse later on. But this amendment is an effort which I am sure has wide support in this House because nobody, wherever he sits, could think that this does anything but try to be a cheap, effective and quick way of dealing with those who are transgressing the law.
Therefore, I very much hope that noble Lords in all parts of the House will support this amendment and that the Government will say, "This is one of the occasions where there is no harm at all in accepting this amendment. It cannot do any harm—therefore let us accept it". They have already thrown a bone to the Opposition on the last amendment. Why not throw a bone to the loyal Back-Benchers on this occasion?
§ Lord Cameron of Lochbroom
My Lords, I take note of what my noble friend has just said about bones. Of course, there can be skeletons in cupboards as well. There is one here and I think that it is important to draw your Lordships' attention to it. It has already been alluded to by the noble and learned Lord, Lord Denning. That is that there is provision in the Local Government Finance Act 1982 for ordering by the court of repayment of unlawful expenditure. I think it is important to bear in mind that there is other expenditure which also breaks the law and is just as heinous as that with which we are dealing in this Bill.
I would make that point in passing because that expenditure is covered by the terms of Section 19 of the 1982 Act, and if I may I will very briefly refer to it. It says that the court may:order that any person responsible for incurring or authorising any expenditure declared unlawful shall repay it in whole or in part to the body in question and, where two or more persons are found to be responsible, that they shall be jointly and severally liable to repay it as aforesaid".But the important thing is that there is a discretion in the court. It proceeds:The court shall not make [such] an order … if the court is satisfied that the person responsible for incurring or authorising any such expenditure acted reasonably or in the belief that the expenditure was authorised by law, and in any other case shall have regard to all the circumstances, including that person's means and ability to repay that expenditure or any part of it".Your Lordships will observe that we have an echo of the first part but nothing of the second part of that section in what is proposed here. It is right, of course, that an individual should be protected in this way. Where the individual is not blameworthy he should not be punished. The result of this amendment would be that a very severe measure would be attached to, I accept entirely ultra vires expenditure; but there are other cases where ultra vires expenditure is incurred where really there could be no distinction in principle in the question of penalty.
729 That being so, I would suggest that there is no good reason in principle why in this Bill we should provide a penalty which is much more severe than that which attaches elsewhere to the unlawful expenditure in local government. It would not serve to strengthen local accountability; it would not, in fact, be directed at those who deliberately breach the prohibition in Clause 2; and it would remove the protection which I think, in fairness, the law ought to have in relation to this kind of expenditure.
I am very well aware why my noble friend raised this. I think it has been very useful to have this matter brought before the House and discussed at this stage. However, I hope that the noble Lord will feel that against the background I have outlined it would not be appropriate to proceed in this case to make an exception where adequate safeguards already exist in law to recover repayments from those who are truly responsible for unlawful expenditure.
§ 6 p.m.
§ Lord Boyd-Carpenter
My Lords, before my noble and learned friend sits down, I wonder whether he could answer a question which has been in my mind during this short debate. If the procedure he has referred to, and obviously prefers, under the 1982 Act is employed, is the district auditor necessarily involved or can any aggrieved person go to the court and ask to have penalties imposed on those who have authorised the improper expenditure? A good deal turns on this because although district auditors are very worthy officials, they can never be accused of acting with undue haste, as we have seen in recent cases; and if action under this Bill, when it becomes an Act, has to be taken it would be so much more effective if it could be taken quickly. Can he answer that point?
§ Lord Cameron of Lochbroom
My Lords, I am very grateful to my noble friend, and with the leave of the House perhaps I might reply by saying that the duty lies on the district auditor in the first place; but if he refuses to do anything, the aggrieved person may then apply to the court.
§ Lord Orr-Ewing
My Lords, before my noble and learned friend sits down, can he say, if this procedure is effective—as he has said—how many times it has been used since 1982? Can he also say whether it has been effectively used?
§ Lord Cameron of Lochbroom
My Lords, again, with the leave of the House, my information is that it has been used on two occasions. In the first instance, the district auditor did not win the case. The second case was a technical one and instigated with a view to the clarification of the law: there was no question of a surcharge there. So far, these are the only cases which have occurred but I am not of course suggesting that the paucity of cases suggests that the existing law is not a useful deterrent.
§ Lord Denning
My Lords, may I suggest perhaps that this could be considered before Third Reading? Why not let whoever is aggrieved go straight to the court and not have to go through the district auditor? By a simple provision, that could be done in this statute and it would be a good thing to do it in this 730 statute so as to show people that they are liable if they go wrong.
§ Lord Mottistone
My Lords, I thank the noble and learned Lord, Lord Denning, for what he has said. I wish he had said that as firmly in his initial speech, because that would have been helpful. I am not at all happy with the response that I have had from my noble and learned friend. With the greatest possible respect, I do not think he took up the points which I made specifically, and I am very disappointed indeed that he did not take the very point that the noble and learned Lord, Lord Denning, has just made. I am also sad because he did not seem to me to answer the points which were much more intellectually advanced by my noble friend Lord Campbell of Alloway. I would have hoped that we could have had a much more positive response.
What is missing from this Bill in this particular case is the ability of a ratepayer to take immediate action, if that is what is necessary, because the sort of thing we are trying to guard against is something that can do its damage before the district auditor gets anywhere near his audit. It is a matter, really, of having some sort of proper way of tackling the particular problems that this Bill is seeking to deal with.
I appreciate that there are other offences just as heinous but perhaps they do not fall into quite the same category where there is a need for immediate treatment, because when we are talking about information we are talking about programmes of information which catch people's imagination over a brief period of time. Then time moves on and the next attack comes up. On the other hand, some other heinous offence, such as not setting a rate, is a long-term matter. So there is a difference and I hope that perhaps my noble and learned friend might give me a chink of a hope either that he will read with great care what everybody has said and have a jolly good try to come back with an amendment of his own on Third Reading or that he will be happy to discuss the matter with my noble friend Lord Campbell of Alloway (if he would be happy so to do) and myself in between now and Third Reading, which is coming remarkably soon. If he can do that we might arrive at some sort of resolution, rather than having to rely on Section 19, which I do not believe fits the bill.
§ Lord Harris of Greenwich
My Lords, I should like to say a few words, not having spoken before on this particular amendment, before the noble and learned Lord the Lord Advocate replies. I too very much hope the noble and learned Lord will say that he is prepared to examine this matter between now and Third Reading. I am quite sure that he will read what has been said with the utmost care; but I am sure it would give us even greater pleasure if he could tell us that he was able to move in the direction suggested by the noble and learned Lord, Lord Denning.
§ Lord Cameron of Lochbroom
My Lords, with the leave of the House, perhaps I may simply say this. Obviously the Government will look very closely at what has been said today. I think I would accept a point that I tried to deal with earlier. We are aware of the problems of mounting a realistic and effective 731 challenge as early as possible. I should remind the House that this is something the Widdicombe Committee are currently looking at and which may be comprehended within their report at the end of the day. Perhaps I can simply respond in that manner therefore, and I hope that my noble friend will accept what I have said in the spirit in which it is given.
§ Lord Mottistone
My Lords, that is not quite good enough! However what I will do, if I may, is to discuss matters with my noble friends and see whether the noble Lord, Lord Harris, and the noble and learned Lord, Lord Denning, might like to join with us. Perhaps we could see whether we could come up with something which masters the points quite justifiably levelled at my amendment. Perhaps we could try that out on my noble and learned friend during the next four or five days: I shall do that whether he likes it or not. I now beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 [Other restrictions of existing powers]:
§ Lord Hayter moved Amendment No. 5:
§ Page 2, line 29, leave out subsection (1).
§ The noble Lord said: My Lords, those of your Lordships who have the Marshalled List in front of you will see a startling contrast between the amendment standing in my name and those of other noble Lords and the amendment standing in the name of the noble Lord the Minister. I think it is fair to say that in many cases the noble Lord the Minister and ourselves are trying to do the same thing; but my amendment has at least the virtue of being simple.
§ I am afraid that I have to explain the background to this amendment. It sounds rather complicated. Clause 3(1) amends Section 142 of the 1972 Local Government Act and Section 88 of the Local Government (Scotland) Act of 1973, so that in future a local authority would only be able to arrange for publication within their area of information relating to the functions of the authority, as opposed to information about local government. We have had some cases quoted during the Committee stage from which arise many problems.
§ Section 142 itself makes an important distinction between making information available on application and, on the other hand, arranging for the publication of information. The two things, if you think about it, are very different. Clause 3(1) should not significantly limit the former but it most certainly limits the latter, and I shall come to that in a moment.
§ Section 142 is often used by local authorities to fund advisory agencies. Some of those, like the citizens' advice bureaux, are concerned primarily with making information available on application. The public go to them for advice and they get it. Others, such as agencies dealing with welfare rights and take-up campaigns, often rely upon the publication of information as their main method of communicating with the public. The work of those other agencies will be seriously affected by the clause as it stands.
The proposal to narrow Section 142 to the functions of a local authority would mean that advice agencies
could circulate information only about matters relating to the functions of the local council. That will result in some extremely bureaucratic and artificial examples. I shall give two. However, before I come to that I shall make a point which is a good illustration of what is at the back of my mind. Today, I received a letter from the Kirkness advice workers group in Huddersfield, West Yorkshire. I shall read just the first two lines. It states:
The Kirkness advice workers group which represents over 50 voluntary organisations in the area has got a number of serious concerns about this Bill".
That is a comparatively small part of the country, but it has 50 organisations which are concerned about the Bill. We can multiply that all over the country. We must try to simplify the Bill as far as possible.
§ I shall now give the two examples that I promised. The first relates to an advice agency funded by a district council. It could not send out any information about welfare rights, social security or health matters because those are the functions of central government and the health authority but not of the district council. That illustrates that point. The most absurd example of all, perhaps, is that all advice agencies could have leaflets on their counters but only some agencies could send out the leaflets, because the Bill allows advice agencies funded by local authorities to have a wide range of information available on application but restricts what they can send out. We talked about that point in Committee, and I shall not elaborate on it.
As I understand it, the Government's amendments provide a three-pronged response to those examples. First, they propose an amendment which deals with the problem of different tiers of local government. In some ways, that is helpful. Secondly, the Government may well argue that there are many other powers in existence which local authorities may use to fund voluntary organisations' publicity—that would be on different subjects—and many authorities use the powers under Sections 142 and 137 when other powers are available. Thirdly, the Government may well argue that, where there is no specific power available, local authorities can use—here we become complicated—Section 137(3) of the Local Government Act 1972, which states:
A local authority may, subject as aforesaid, incur expenditure on contributions to any of the following funds, that is to say (a) the funds of any charitable body in furtherance of its work in the United Kingdom; or (b) the funds of any body that provides any public service in the United Kingdom otherwise than for the purposes of gain".
Lawyers do get up to tricks, do they not?
§ Our response to that is that Government Amendment No. 6—I should have said that Amendments Nos. 5 and 6 are in the Marshalled List to be discussed together with the Government's agreement—deals with the problems of local government but not the publicity about central government's functions. Secondly, it is important from the voluntary sector's point of view that those powers are made widely known.
§ The Government have talked about producing a circular once the Bill is enacted. It could include many of those powers with examples on how they can be used to fund different types of voluntary organisations. Nevertheless, we feel that there are still some types of 733 voluntary organisations which could only be funded through Section 137. That leads to a third point, which is that the use of Section 137—this will come as a surprise to many of your Lordships—is limited to the product of a 2p rate. For a variety of reasons, not least the abolition of the GLC and the metroplitan counties, some local authorities have now reached or are close to reaching their 2p limit.
§ The voluntary sectors are therefore seeking an undertaking from the Government that if they support the idea of local authorities making more use of that section to fund voluntary organisations' publicity, then the Secretary of State for the Environment should exercise his power to increase the 2p limit in certain areas. Further, since Section 137(3) relates only to charities and bodies providing a public service, I shall also seek to move Amendment No. 8 to the Bill, which currently restricts Section 137(1) in an unacceptable way.
§ The Minister of State, Department of the Environment (Lord Elton)
My Lords, am I to understand that the noble Lord wishes to take Amendment No. 8? Is he speaking to it? I understood that the agreement to which he earlier referred was that Amendments Nos. 5 and 6 went together on their own. Doubtless we can change that, but my notes have been shuffled on a number of occasions already and I do not want to become more confused than perhaps I now am.
§ Lord Hayter
My Lords, I should say that my notes have been shuffled as well on a number of occasions. No, it is clear to me that Amendment No. 8 will be brought before the House only if by some ill chance Amendment No. 5 is not carried. We are not speaking to Amendment No. 8 at the moment.
If Clause 3(1) is to remain, albeit in the amended form as set out in Amendment No. 6, the voluntary sector is, first, reserving the right—let me put it that way—to bring Amendment No. 8 to the notice of your Lordships' House, if by any chance we should lose this amendment. Secondly, I should like an assurance from the Government that the 2p limit on Section 137 spending will be raised to meet the new demands that will be made upon it in many areas.
The simplest solution of all is to follow the Widdicombe Committee's recommendation and leave Section 142 as it is—in other words, to delete Clause 3(1) from the Bill altogether, as the amendment proposes. That would overcome all the voluntary sectors' concerns and would have the added advantage of overcoming all the other concerns about which I have talked. I sincerely feel that the amendment goes a long way to meet the Government's objective of trying to get the right balance between the powers of government and those of the voluntary organisations. I beg to move.
§ The Deputy Speaker (Baroness Serota)
My Lords, I should mention to your Lordships that, if Amendment No. 5 is agreed to, I cannot call Amendment No. 6.
§ Lord Denning
My Lords, I hope that your Lordships will not leave out subsection (1), because Sections 142 and 137 are terribly complicated and 734 difficult for anyone, even for me, to understand. Section 142 has been used to a great extent and the Widdicombe Report states in paragraph 65:The scope of this section is undoubtedly very wide. Local authorities have been able, quite lawfully, to rely on its provision to undertake a variety of publicity exercises, some of a broadly political nature".I need not go through it all. Local authorities have been trying to use it over the abolition of the GLC. They have been using it over rate capping, and so forth. It seems to me absolutely essential that Section 142 should be narrowed. At the moment it enables local authorities to deal with anything relating to local government matters. That is wide enough to cover a multitude of sins or whatever it may be.
As I understand it, under the clause as it will stand, information will be confined to matters relating to functions of the local authority. We know what those are. There are many—housing, education, Sunday trading and so on. A local authority can deal with all those functions and explore them as it likes, but it should not have any wider power. Although it is difficult to limit "relating to the functions", nevertheless I think that the judges or the local authorities can do it. They can deal with all those functions and have whatever publicity they like, but they should not go wider and trespass on matters which are political in their nature.
The judges have tried to impose a limit by saying that it must be confined to information and not go on to persuasion. That is not a very satisfactory line for anyone to draw. Information can turn into persuasion at any time. It is absolutely essential to bring in some amendments to Section 142 so as to make the position clear, and for that reason—I shall not go further into the matter—I support the Government's Amendment No. 6.
§ Lord Sandford
My Lords, I should like to speak to both these amendments and to start by thanking my noble friend on the Front Bench for having fulfilled the undertakings he gave to us in Committee, which were that he would look at this matter again and, if possible, come forward with an amendment which met the points that we were making, and he has done that. On the other hand, I have to remind your Lordships of what Widdicombe said about Section 142. The committee said that Section 142 should be left unchanged. They rejected the view that this is too wide a scope for local government publicity, and Amendment No. 5 is the amendment which gives precise effect to what Widdicombe recommended. That was a body which the Government called into being to advise them, but in this respect their advice has been ignored.
We have not had very much from my noble friend about why the advice of Widdicombe has not been accepted on this point. My noble friend said nothing in his first speech at Second Reading. In his winding-up speech, he said what he and his colleagues had decided to do, but gave us no justification for it and not very much in Committee, except to the effect that they disliked local authorities publicising the fact that they had declared nuclear free zones and matters of that sort. I do not think that is very important. In fact, from a purely party political point of view it is probably an 735 advantage to have our opponents behaving in such a silly way.
But I ask your Lordships to note that the Widdicombe Comittee published its interim report in July, and there have been a number of things which have happened since then which might have occasioned the Government to take a different view from the view that the Widdicombe Committee took then.
Of the events which have occurred, I put the following four before your Lordships. Parliament, in that very month, passed the death sentence on seven metropolitan counties, which included in their membership the ringleader, the GLC, for perpetrating the abuses with which this Bill is designed to deal and the execution of those seven authorities is now less than three weeks off. Secondly, the Labour Party has itself now set about removing Militant Tendency at least from the two authorities where its effect has been most baleful—namely, Liverpool and Lambeth—and no doubt it will go on to do the same elesewhere. If it does not, its fortunes at the next General Election will, of course, be parlous—a fact which it obviously knows very well.
Thirdly, the Queen's Bench Divisional Court disallowed the appeals only the other day of the London Borough of Lambeth and the Liverpool City Council—two authorities in which these activities have been particularly notorious—and surcharged 80 of their councillors. Fourthly, we know now that the district auditors are about to move on six further Labour councils—namely Greenwich, Hackney, Sheffield, Camden, Islington and Southwark—and will be surcharging another 300 Labour councillors.
I should have thought that with all that action, covering the 13 authorities which my noble friend at Second Reading described as being the ones that are causing all this trouble, and with all those councillors being removed, if there was a need for any adjustment between what Widdicombe recommended and what we now need to do, it was in the general direction of doing rather less than Widdicombe had proposed, and causing less inconvenience and restraint on the remaining authorities, whom no one is accusing of causing any of these abuses at all.
So, on the face of it, one would favour Amendment No. 5 as against Amendment No. 6. But of course one has to face the political realities and I put it to the House that they are these. If, as I suppose, the sponsors of Amendment No. 5 are not to be satisfied with what my noble friend on the Front Bench had to say in response to their amendment—maybe they will be and that will be fine—and press Amendment No. 5 to a Division and win it, two things will happen. First, my noble friend will not be able to move his Amendment No. 6, which, inadequate as it is, is at least something; and, secondly, when the Bill goes back to the other place with subsection (1) taken out of it, it is absolutely certain in my mind that it will be put back in and we shall then end up having gained nothing at all. So my advice to your Lordships is that Amendment No. 5 should not be pressed and that we should accept the third or the quarter of the loaf which is offered in Amendment No. 6.
§ Baroness David
My Lords, before the noble Lord sits down, may I ask him whether that is the policy of the Association of District Councils, of which he is president?
§ Lord Sandford
Not at all, my Lords. It is my own personal view, which is what I normally express to your Lordships.
§ Lord Elton
My Lords, I thought that we might have a view from the official Opposition on this matter. Perhaps it is reserved. In the interests of expedition, I will make my concluding speech now and it can stand unless the noble Baroness makes it necessary to trespass in the accustomed manner on your Lordships' patience with a further speech.
I have listened with care to the arguments which noble Lords have put for the omission of the whole of subsection (1) of this clause of the Bill. Your Lordships will recall, I dare say, how I explained at an earlier stage that both the Government and a great many private people were becoming increasingly fed up with the way in which some local authorities have recently developed a new style of publicity on which they spend considerable sums of money in promoting their own views on matters which no one can seriously hold to be part of their proper function. We had the spectacle of London boroughs pursuing their own defence and foreign policies on the hoardings in their streets. Whether that strikes one as comic or tragic or, as I believe, both, it was certainly not one of the purposes which Parliament created these authorities to fulfil. It is not, therefore, a purpose for which it is proper for them to spend the money which they take from their ratepayers, nor indeed the money which they take from taxpayers.
The power under which these few but significant authorities felt able to make this expenditure was the power provided in Section 142 of the Local Government Act 1972 in English legislation. The parallel to that in Scottish legislation is Section 88 of the Local Government (Scotland) Act 1973. It is these two sections of existing legislation that Clause 3(1) sets out to amend. We approached the task of making that amendment in a somewhat simplistic way, perhaps, though I think it was a pretty commonsense approach that we adopted. We converted the sections simply to exclude the interpretation that the maverick councils, which are not only the councils which fall to be abolished on 1st April, were placing upon them which enabled them to lay down policies that were outwith their functions and responsibilities.
Since then, in both Houses and outside them, it has been borne in on us that this is too restrictive. While we remain firmly of the opinion that local authorities have no business in posturing as though they had national responsibilities and doing so at public expense, we accept that the functions of other tiers of local government in their area are the proper concern of a local authority and that it is proper for them to communicate with their electorates and their public on that subject. It is because we are still entirely convinced that local authorities should not spend public money as if they had the power to make treaties or declare war that I cannot ask your Lordships to accept Amendment No. 5 in the name of the noble Lord, Lord Hayter, and his supporters.
737 The effect of that amendment would be to leave unaltered Section 142 of the English Act and the equivalent section of the Scottish Act. That would mean leaving them in the condition which now permits this ludicrous waste of public money, and the surcharges which we have recently seen and to which my noble friend referred do not bite on this abuse. The alternative is not, I am persuaded, to leave the Bill as it is now drafted, because that would exclude local authorities from an area which is, we recognise, their proper concern. Instead, I therefore ask your Lordships to support the Government Amendment No. 6, to which I shall, with your Lordships' leave, now speak. I shall not take leave to speak on Amendments Nos. 7, 9, 10 and 13, which are relevant to publicity-related expenditure, in the same way that the noble Lord, Lord Hayter, did not speak on Amendment No. 8. On Amendment No. 8, I merely tell the noble Lord that it would survive any untimely reverse on this particular amendment were that to take place.
Perhaps I may explain what we have done. Rather than making piecemeal amendments to Clause 3(1), we have chosen to remove the substance of Clause 3(1) completely and replace it with new subsections. The need for this arises chiefly because our proposals require separate provisions to be made for Scotland. The amendment is drafted in response to the specific anxiety to which I have already referred, expressed to us by those who pointed out that local government functions and responsibilities exist and are discharged at a variety of levels and that knowledge of them is important at every level and should be disseminated at every level.
The first amendment to Section 142 contains three paragraphs. Paragraphs (a) and (c) repeat the provisions previously in Clause 3(1). The effect of these provisions is that in Section 142(1) and (2) of the principal Act the references to "local government matters" would be replaced by the words,relating to the functions of the authority".Paragraph (b) of the amendment contains the provision which broadens our original proposals in Clause 3(1). It provides that:A local authority may arrange for the publication within their area of information as to the services available in the area provided by them or by other authorities".What "other authorities" means is defined in the second amendment to Section 142.
This makes it clear that in England and Wales principal councils, the Common Council and parish and community councils will by this amendment be able to make information available or publish information about the services available in the area provided not only by themselves but also by other tiers of local authorities such as parishes, districts and counties, by the Inner London Education Authority, by any joint authority established by Part IV of the Local Government Act 1985, and by any authority, board or committee which discharges functions which would otherwise fall to be discharged by two or more local authorities. In Scotland, local authorities to which Section 88 applies will similarly be able to publish information about the services provided by other tiers, including services provided by any authority, board or committee which discharges 738 functions which would otherwise fall to be discharged by two or more local authorities.
These amendments provide local authorities with the wider powers to produce publicity within the sphere of local government which we undertook to consider while ensuring that their powers are limited to matters which are properly within the sphere of local government. They apply generally to the different tiers of multi-purpose authorities ranging from the parishes to the counties. My noble friend suggested that we had gone well beyond Widdicombe. I think it is fair to say that we have stayed well within the spirit of Widdicombe. We could not—I did say that my notes have been shuffled and your Lordships are seeing evidence of that. As my noble friend did not dwell long on Widdicombe, I shall not do so either.
The noble and learned Lord has already drawn your Lordships' attention to the way in which we have kept within the spirit of what Widdicombe proposed.Publicity, unlike for example lobbying, raises issues in its own right concerning the proper use of public funds and the risk of party political advantage. There is therefore a need for caution in the framing of publicity powers, and while they should extend to matters relating to local government, they should not be open-ended in the … subject matter they cover".We entirely agree.
I ought to anticipate difficulty by saying a brief word in exposition or furtherance of what the noble Lord, Lord Hayter, said. I know that my noble friends are concerned about it. I refer to the power of local authorities of all kinds to fund bodies other than themselves that provide a public service. The noble Lord has already reminded your Lordships that the Bill does nothing to amend the provision of Section 137(3) of the principal Act. As he rightly told us, that section empowers local authorities to incur expenditure on:
That widens the criterion and that is why the lawyers got up to that trick.
- "(a) the funds of any charitable body in the furtherance of its work in the United Kingdom; or
- (b) the funds of any body which provides any public service … otherwise than for the purposes of gain".
Neither this amendment nor the Bill strike upon those powers in any way. Nor does it prevent them from publishing or paying for information about any of the services provided by the other authorities. Here I think your Lordships have perhaps missed a point. The span of services for which local authorities are responsible at one level or another is perfectly enormous. To take the quickest sample—education, environmental health, general health, countryside, planning, food and drugs, gypsies, town development, sewerage, housing, roads, consumer protection, social services, fire, weights and measures, transport, crematoria, public libraries, local licensing duties; I could go on—to say that those matters are being cramped within a narrow area of interest is not to understand the provision of existing statutes.
I have tried to be brief. I have tried to show that the scope which our amendments give to local authorities is very considerable indeed, and much more than has been suggested. Incidentally, the difficulty which I think the noble Lord, Lord Hayter, put before me of a local authority anxious to assist a voluntary body promoting an advice service for take-up social security 739 is swept up in the list of responsibilities which I have already read out. I hope I have shown that local authorities therefore will be able to cover a great spectrum of the matters with which your Lordships are concerned.
Rather than repeating and adding to the tedium of the things I said at Second Reading, which my noble friend said were inadequate, I will merely add that there are a great many Members of your Lordships' House and of the community generally—not only members of my party—who are affronted to see their money (whether they are ratepayers or taxpayers) spent by local councillors posturing as though they held national, foreign and defence policies within their hands. That is not what the rates are for. I hope, therefore, that, as the noble and learned Lord, Lord Denning, has advised, your Lordships will leave Clause 3(1) in the Bill, and when it comes to it will accept the amendments which I propose in Amendment No. 6, which will relieve so many of my noble friends of the anxieties they have about it at it stands.
§ Lord Kilmarnock
My Lords, before the Minister sits down and before the noble Lord, Lord Hayter, decides whether he is going to divide the House on this amendment, perhaps I may ask one or two questions. As the Minister knows, it has been common for district councils to make their voice heard on matters that may not be strictly related to their functions—such as public transport, local hospital services, water and sewerage (which the noble Lord himself mentioned), and others.
The noble Lord's amendment would enable a local authority to inform people about matters that are within the remit of another local authority or joint board in its area. We on this side of the House consider that that is a step in the right direction. However, my feeling is that the amendment is still too limited and that it would be more acceptable if, given the right wording, it could be extended to cover the work of all public bodies in government departments, such as the DHSS and Department of Transport, in so far as they affect the people in a particular council's area.
I wonder whether the Minister will give consideration to that point, so that we might be able to extend the amendment at the next stage of this Bill. It seems wrong that we should hamper proper democratic activity in local authorities simply because of a few activists who have gone beyond what is reasonable. The noble Lord, Lord Sandford, made that point extremely well.
One other point is not made clear by the noble Lord's amendment; that is, whether councils will have the right to comment upon and publicise proposed changes in local government functions and their consequences for the people in their locality. Widdicombe said that they should, and we say so too. The words in the clause, even as the noble Lord proposes to amend them, do not seem to cover that point specifically.
On balance, we would prefer to leave the law as it stands and as it has stood successfully for the past 40 years. Before we make up our minds, I will be grateful to the noble Lord for his comments.
§ Lord Elton
; My Lords, the noble Lord puts me in a slight difficulty as I do not know the intentions of everybody else. I made a winding up speech and the noble Lord has asked me to reply to him before I sit down. In theory I am still standing, although I am sure that I was in contact with the Bench. If this is the end of the matter, then I shall give the noble Lord an answer, but if the noble Baroness is to make a speech then I shall probably have to reply to it—and I must not waste time, speaking three times.
§ Lord Mottistone
My Lords, I rise to say thank you very much to my noble friend the Minister for carrying out in his Amendment No. 6 that which he promised he would in relation to my amendment in Committee. Although his amendment is not quite as good as we would have liked, it is very nearly there.
§ Baroness David
My Lords, I shall be brief because the noble Lord, Lord Hayter, has put the case for getting rid of Clause 3(1) with such skill that his comments need no elaboration. As we might have expected, the Minister has made a very spirited defence of the Government's position and has described his own amendment very clearly. However, although he quoted from and referred to various parts of the Widdicombe Report, he was very selective. Whatever Widdicombe may have said as to posing this or that possibility, he concluded his report by saying that subsection (1) should be deleted. That is the position we want to hold on to. So do the voluntary organisations.
The amendments that the Government have brought forward are at least an improvement on what went before, and we are pleased to see them. However, we do not believe that they go far enough, as the noble Lord, Lord Kilmarnock, has just said. They will allow specified publicity across tiers of authorities, so that is an improvement. However, the existing scope of Section 142, allowing authorities to publish information as to local government matters affecting the area, is still narrowed by the Bill and is restricted to information on functions or services available.
Even as amended, the Bill would still be contrary to Widdicombe's recommendation that the scope of local authorities' general powers to issue publicity should be as currently set out in Section 142. I may say to the noble and learned Lord, Lord Denning, who commented that it is a difficult section to understand, that local authorities have been perfectly well able to understand it for 14 years and so it cannot really pose a great difficulty.
Even under the Government's amendments, publicity would appear still to be ruled out on wider issues, such as closure of local amenities that may be vital to the life of a community—for instance, a railway, shipyard, sub-post office or hospital; the principle of proposals such as rate capping or the abolition of a tier of authority; and services provided by other public authorities in the area—for instance, drug dependency clinics run by health authorities, and flood protection, such as the Thames Barrier, run by a water authority.
741 6.45 p.m.
Those seem to me to be clearly matters of local concern in which, as Widdicombe said, local authorities should have an effective voice. When the Minister gives his final reply, perhaps he will comment on the points I have mentioned. He may be willing at a later stage to widen the clause, if we do not carry our amendment, to make it possible—as the noble Lord, Lord Kilmarnock was asking—for other matters to be included. That is all I want to say at the moment, except to back up what was said by the noble Lord, Lord Sandford; that the demand for restricting the use of Section 142 is very much less than it was when Widdicombe reported, and when the Bill was first introduced in another place.
§ Lord Elton
My Lords, this can indeed be a brief intervention because I have set out before your Lordships the reasons for keeping Clause 3(1) in the Bill. When your Lordships read Hansard I hope that you will grasp, if you have not already done so, the very wide extent of the matters on which local authorities will be enabled to comment under our amendment.
The noble Lord, Lord Kilmarnock, suggested that we might amend the subsection further. That encourages me to think that he will assist us to keep it in the Bill for that purpose, in order to urge that upon me on Third Reading. If the clause is not there, he will not be able to do so, and therefore he will of course be voting with us on the first amendment if the noble Lord, Lord Hayter, is still persuaded that he should progress it. The noble Lord asked also whether local authorities will be able to comment upon proposed changes to the functions and powers of local government as Widdicombe suggested. Yes, they will be able to do so, as Widdicombe suggested. That is embraced in the amendment.
The noble Baroness asked a number of questions. I do not possess the encyclopaedic knowledge of local authorities' powers that would give me an instant reply, except in respect of drug dependency clinics. There are in that instance hospital service powers under the Public Health Act. I am assured that local authorities have public health powers. I am prepared to write to the noble Baroness to set the record straight.
I have made clear the very large number of matters that local authorities will be able to publicise. If a parish is threatened with something that affects everybody to the extent that the parish council is itself involved, then that suggests to me that at that local scale the proper course is for the community to get together. The local parish councillors would be quite able to take an active part in that procedure in their personal capacity. I say that because we do not believe that it is the law of the Medes and Persians and received wisdom that a local council should have the authority to speak upon every matter that is of interest to parishioners.
That said, your Lordships' minds must be clear that there is an overriding case for keeping Clause 3(1) in the Bill. We have made advances in our amendment for which my noble friend—before he heard the catalogue that I read out—gave very grudging but recognisable thanks and recommended your Lordships to accept. Since then, I hope that I have 742 revealed that they were far more generous than he understood them to be. If asked to consider Amendment No. 5, I hope that your Lordships will throw it out and accept Amendment No. 6.
§ Lord Hayter
My Lords, I should have prefaced my remarks on Amendment No. 5 by saying a courteous word to the Minister because it is true that he has done several things that he promised he would do, and for that we are grateful. However, I still feel—partly on the ground of simplicity—that our amendment is the better of the two. I therefore wish to press it to a Division.
§ 6.50 p.m.
§ On Question, Whether the said amendment (No. 5) shall be agreed to?
§ Their Lordships divided: Contents, 66; Not-Contents, 107.743
|DIVISION NO. 2|
|Airedale, L.||Kearton, L.|
|Attlee, E.||Kilbracken, L.|
|Bancroft, L.||Kilmarnock, L.|
|Barnett, L.||Kissin, L.|
|Bernstein, L.||Lawrence, L.|
|Birk, B.||Lovell-Davis, L.|
|Boston of Faversham, L.||McGregor of Durris, L.|
|Bottomley, L.||McIntosh of Haringey, L.|
|Brockway, L.||Mishcon, L.|
|Campbell of Eskan, L.||Nicol, B.|
|Cledwyn of Penrhos, L.||Ogmore, L.|
|Collison, L.||Oram, L.|
|Darcy (de Knayth), B.||Ponsonby of Shulbrede, L. [Teller.]|
|Dean of Beswick, L.||Russell of Liverpool, L.|
|Diamond, L.||Seear, B.|
|Donoughue, L.||Serota, B.|
|Elwyn-Jones, L.||Shackleton, L.|
|Falkender, B.||Stedman, B.|
|Fisher of Rednal, B.||Stewart of Fulham, L.|
|Gallacher, L.||Stoddart of Swindon, L.|
|Glenamara, L.||Strabolgi, L.|
|Graham of Edmonton, L.||Tordoff, L.|
|Greenway, L.||Underhill, L.|
|Gregson, L.||Vernon, L.|
|Hatch of Lusby, L.||Wallace of Coslany, L.|
|Hayter, L. [Teller.]||Wigoder, L.|
|Houghton of Sowerby, L.||Williams of Elvel, L.|
|Hunter of Newington, L.||Wilson of Rievaulx, L.|
|Ingleby, V.||Winchilsea and Nottingham, E.|
|Jeger, B.||Winstanley, L.|
|Jenkins of Putney, L.||Winterbottom, L.|
|John-Mackie, L.||Ypres, E.|
|Airey of Abingdon, B.||Carnegy of Lour, B.|
|Ashbourne, L.||Cathcart, E.|
|Auckland, L.||Chelmer, L.|
|Beaverbrook, L.||Coleraine, L.|
|Belhaven and Stenton, L.||Colville of Culross, V.|
|Beloff, L.||Colwyn, L.|
|Belstead, L.||Cork and Orrery, E.|
|Birdwood, L.||Cottesloe L.|
|Boardman, L.||Craigavon, V.|
|Boyd-Carpenter, L.||Cullen of Ashbourne, L.|
|Brabazon of Tara, L.||Davidson, V.|
|Brougham and Vaux, L.||Denham, L. [Teller.]|
|Broxbourne, L.||Denning, L.|
|Butterworth, L.||Dilhorne, V.|
|Caithness, E.||Donegall, M.|
|Cameron of Lochbroom, L.||Drumalbyn, L.|
|Campbell of Alloway, L.||Elliot of Harwood, B.|
|Elliott of Morpeth, L.||Munster, L.|
|Elton, L.||Murton of Lindisfarne, L.|
|Ferrier, L.||Newall, L.|
|Fraser of Kilmorack, L.||Nugent of Guildford, L.|
|Gisborough, L.||Orkney, E.|
|Glanusk, L.||Orr-Ewing, L.|
|Gray of Contin, L.||Pender, L.|
|Gridley, L.||Penrhyn, L.|
|Hailsham of Saint Marylebone, L.||Reay, L.|
|Hardinge of Penshurst, L.||Renwick, L.|
|Harvington, L.||Rochdale, V.|
|Henley, L.||Rodney, L.|
|Holderness, L.||Romney, E.|
|Hood, V.||St. Aldwyn, E.|
|Hooper, B.||St. Davids, V.|
|Hylton-Foster, B.||Saltoun of Abernethy, Ly.|
|Kimball, L.||Sanderson of Bowden, L.|
|Kinnoull, E.||Sandford, L.|
|Kitchener, E.||Savile, L.|
|Lane-Fox, B.||Shrewsbury, E.|
|Lauderdale, E.||Skelmersdale, L.|
|Layton, L.||Swinfen, L.|
|Lindsey and Abingdon, E.||Swinton, E. [Teller.]|
|Long, V.||Teviot, L.|
|McAlpine of Moffat, L.||Thomas of Swynnerton, L.|
|McFadzean, L.||Thorneycroft, L.|
|Macleod of Borve, B.||Trefgarne, L.|
|Malmesbury, E.||Trumpington, B.|
|Mancroft, L.||Vaux of Harrowden, L.|
|Marley, L.||Vivian, L.|
|Massereene and Ferrard, V.||Ward of Witley, V.|
|Maude of Stratford-upon-Avon, L.||Whitelaw, V.|
|Merrivale, L.||Wolfson, L.|
|Mersey, V.||Wynford, L.|
|Mottistone, L.||Young, B.|
|Mowbray and Stourton, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.58 p.m.
§ Lord Elton moved amendment No. 6:
§ Page 2, line 32, leave out from beginning to end of line 5 on page 3 and insert—
- ("(a) in subsection (1) (power to make information available) after "other authorities" insert "mentioned in subsection (1B) below" and for "as to local government matters affecting the area" substitute "relating to the functions of the authority";
- (b) after that subsection insert—
- "(1A) A local authority may arrange for the publication within their area of information as to the services available in the area provided by them or by other authorities mentioned in subsection (1B) below.";
(1A) After the subsection (1A) insert by subsection (1) above, in section 142 of the 1972 Act insert—
(1B) The other authorities referred to above are any other local authority, the Inner London Education Authority, a joint authority established by part IV of the Local Government Act 1985 and any authority, board or committee which discharges functions which would otherwise fall to be discharged by two or more local authorities.";
and in section 88 of the 1973 Act insert—
(1B) The other authorities referred to above are any other local authority and any authority, board or committee which discharges functions which would otherwise fall to be discharged by two or more local authorities,".").
§ The noble Lord said: My Lords, I have already spoken to this amendment during our recent debate. I beg to move.
§ On Question, amendment agreed to.744
§ Lord Skelmersdale
My Lords, in moving that further consideration of this Bill on Report be now adjourned, may I say that we shall not return to this Bill until at least 8 o'clock. I beg to move.
§ Moved accordingly, and, on Question, Motion agreed to.