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Norwich and Norfolk (Structural Changes) Order 2010

My Lords, I will begin by declaring indirect interests. I was born in Devon, albeit within what are now the boundaries of the Plymouth unitary authority. My father's family has been Devon born and bred for as many centuries as we have been able to trace. Secondly, I have been a London borough councillor for the past 36 years. London boroughs have been unitary authorities for the past 45 years. Therefore, I need no convincing of the advantages of unitary local government. I start from a point of understanding of, and sympathy for, those in Exeter and Norwich, including some in my own party, who are keen to see these orders passed tonight. Indeed, I suspect that if I were a city councillor in Norwich or Essex, I, too, might be keen. Rightly or wrongly, councillors there see it as their last chance to gain unitary status for their cities. However, it should not be unitary status at any cost. What is before us tonight is all that is on offer at this time, and it is not good enough. The boundaries of the two proposed unitary authorities are wrong, and the timing is wrong—just as we head into what we all know will be the most challenging financial climate that local government has ever known. Even more importantly, we have a responsibility to consider the effects of the draft orders on the wider counties of Devon and Norfolk—not just on the county councils, but on the citizens, businesses and other statutory and community organisations that represent them. Others with greater personal knowledge and experience of that than I have will speak in this debate, so, in the interests of brevity, I shall leave it to them to spell out the concerns of the people of Norfolk and Devon, and indeed of Norwich and Exeter. Instead, I shall concentrate, as did the Minister to a large extent, on the process that has led us to this point. It is a process that seems to unite everyone, regardless of their view about the outcome, in condemning the most appalling mishandling by this Government. Although the Government will be accused of rushing through these orders tonight within days of the dissolution of Parliament, I agree with the Minister that this has in fact been going on and on for more than three years, characterised by much legal dispute and the expenditure of huge sums of public money. As the Minister said, in 2006 the Government invited local authorities to submit proposals for unitary status. They stated that all such proposals would have to meet each of five strict criteria, which the Minister listed: affordability, a broad cross-section of support, strategic leadership, neighbourhood empowerment and value-for-money services. So far as I am aware, every unitary authority established since that time has been judged by the Government to meet each of those five criteria. Can the Minister tell us of any that did not meet any of those criteria at the time they were proposed? The Minister has outlined the sad history since that time and I shall not go over it again in any detail but I want to say, most importantly, that in December 2007 the then Secretary of State announced that she did not think that either Exeter’s or Norwich’s bids for unitary status would meet the Government’s criteria, particularly on financial grounds. The Minister has already told us that. The Secretary of State therefore referred both bids to the Boundary Committee for advice. For reasons probably known to many here, it took two years for that advice to be deliverable but in December last year the Boundary Committee for England published its proposals. It recommended single county-wide unitary councils for Devon and Norfolk. It also made proposals for Suffolk, which are not the subject for debate tonight. Most significantly for tonight’s debate, it recommended against separate unitary councils for Norwich and Exeter on the grounds that they would not meet the Government’s affordability criteria. In February, the Government announced that they rejected all the Boundary Committee’s recommendations and proposed instead to create unitary authorities for the cities of Exeter and Norwich, even though they agreed with the Boundary Committee that such proposals would not meet their own affordability criteria. The Permanent Secretary at the Department for Communities and Local Government, in his role as accounting officer, was so concerned about this that he wrote to the Secretary of State seeking a political direction because he did not believe that the proposals represented value for money. His letter is published in full on pages 29 and 30 of the Merits Committee report. We have just had an exchange on this and the Government have said, rightly, that his action in doing so was "perfectly proper" as accounting officer—no one questions that—but that Ministers had a wider role. Indeed they do. Therefore, while his actions were certainly perfectly proper, they were also unprecedented. As the noble Lord on the Opposition Front Bench asked in his interjection, has there been any other occasion when that has happened? Now that he has notice of the question, can the Minister say whether there has been any other occasion, either within the Department for Communities and Local Government or any of its predecessor departments, when the accounting officer has felt the need to seek a political direction? I ask the question, as often is the case, in the pretty certain knowledge that the answer is no and that this is indeed unprecedented. Therefore, it may be proper, and it may be, as the Minister understandably sought to downplay, a routine part of government, but this is the first time that it has occurred. It is unprecedented and something that we should all take very seriously. Next I turn to the report of the Merits of Statutory Instruments Committee, to which reference has also been made. It examined the draft orders in some detail. It sought further information from the department. I am sure that the report will be much quoted in tonight’s debate, so I shall confine myself to quoting the conclusion. In paragraph 35, the Merits Committee concludes that, ""it has insufficient information on which to be able to determine whether these Orders are likely to implement their policy objective … they may imperfectly achieve their policy objective"." Faced with that conclusion, we might reasonably expect the Minister to give us the evidence which the DCLG failed to give to the Merits Committee’s satisfaction, on which it based its belief that there are compelling reasons. The Minister has repeated the Government’s belief, but has again failed to give hard, factual evidence to support that belief. Tonight we are asked to accept that this is an article of faith from the Government. Devon and Norfolk county councils are challenging these decisions in the High Court on 28 and 29 April. In his letter to the Secretary of State, the Permanent Secretary said that he had "clear legal advice"—I suggest that clear legal advice is a little unusual in itself—that the risk of being successfully challenged in judicial review hearings is "very high". It is not 50:50 or 60:40 but very high. Last Thursday, the Joint Committee on Statutory Instruments published its report on these draft orders. It concluded that, if approved and made, ""there will be a doubt as to whether they would be lawfully made; that in one respect in particular they would represent an unexpected use of the power conferred by the enabling Act; that in one respect their purport requires elucidation; and that in one respect they fail to accord with proper legislative practice"." The "unexpected use of the power conferred by the enabling Act", to which the Joint Committee refers, is the cancelling of the city council elections due to be held on 6 May. As the committee points out: ""If the court decides that the decisions to implement the unitary proposals were flawed"—" the Government has "clear legal advice" that they are— ""it will be too late to restore the elections which will have been cancelled"." So tonight we are asked to pass orders which the Government accept do not meet their own strict criteria on affordability; which the accounting officer believes do not represent value for money; which the Merits Committee, in its measured tones, believes may imperfectly achieve their policy objective; which the department has "clear legal advice" are of doubtful legality; and which the Joint Committee on Statutory Instruments has drawn to the "special attention" of each House and may be unlawful. We will also be cancelling elections 45 days before they are due to take place, with no time to restore them if that proves to have been unlawful. I know that this House is always reluctant to support fatal Motions, but if ever there was a strong case for doing so, surely this must be it. Surely, we have a duty to all these bodies to say, "We’ve heard what you say and we will act on it". Faced with all this evidence and more, can we simply say, "Oh dear, we really do regret that, but there is nothing we can do"? If ever there was a strong case to vote against orders, this must be it. If these orders are passed tonight, it may be that they will be overturned in the courts at the end of next month. It may be that another Government will be elected the following month. It may be that that new Government will give high priority in their first 100 days to reversing these orders before implementation. Any or all of those things may happen, but they may not. The one certainty of passing these orders tonight is that the city council elections will be cancelled only 45 days before they are due to be held. We will be denying the citizens of Exeter and Norwich their democratic right to express their view in an election. That is a very serious step to take at such short notice and one that your Lordships should consider very carefully before taking. Tonight we can simply "regret" all of this, but let it happen anyway; or we can say, "This is wrong!" and stop it happening. The decision is ours. I beg to move. Amendment to the Motion Moved by