Local Government Bill [HL]

The noble and learned Baroness is absolutely right that the Permanent Secretary followed this unusual, though not unprecedented, process. As I tried to suggest in an earlier amendment—though clearly I did not make myself clear—the Permanent Secretary wanted best value for money, which meant a unitary Devon and a unitary Norfolk, as opposed to a unitary Norwich and a unitary Exeter, which represented second-best value for money, let alone the status quo, which was the worst value for money. The Permanent Secretary’s letter therefore called for an organisation of local government which only the Permanent Secretary and the Boundary Committee supported, and which even the county councils would have had judicially reviewed against themselves. That is the nature of the Permanent Secretary’s request for a direction. Therefore, given that we are not debating unitary counties—I am afraid that now it is past that point—the issue is status quo versus unitary, not status quo versus unitary versus unitary county. Had that been the case, the Permanent Secretary's advice would have been correct and we would have had a very different outcome. I go back to the electoral point. It is the DCLG, not Norwich or Exeter, that lost the JR, and the department should take responsibility for its actions. With appropriate behaviour—a letter, for example—it could have abated this problem and the orders would not have been quashed. It is not reasonable that two cities that have acted lawfully on every day and at every stage of the process should pay the bill because the DCLG failed to act prudently. The costs of £100,000 in Norwich and perhaps another £80,000 in Exeter, with additional costs for all the local parties, will be incurred not because of what the cities did but because of the failures of the department. Therefore, first there is the issue of costs. Secondly, as far as concerns these elections, there is the issue of timing, which my noble friend explored. I understand that the DCLG has advised Mr Pickles that the elections should take place within 35 days. This comes into the same category as the weak advice from the department, or its failure to act appropriately, that we have seen throughout this saga. On the opinion of a counsel specialising in electoral law, the DCLG is wrong. The Minister, Mr Pickles, is assuming that these are casual vacancies to which 35 days would apply. Casual vacancies are defined in Sections 83 to 87 of the Local Government Act 1972, which was Mr Peter Walker's disastrous attempt to impose unitary counties across the country—and, belatedly, some district functions. However, these are not casual vacancies. I am sure that the noble Baroness has checked the legislation. Section 83, for example, tells us what counts as a casual vacancy: it is when there has been a failure to make a declaration of office. Section 84 deals with the resignation of an office holder, Section 85 covers the case of a councillor who has failed to attend meetings, Section 86 deals with councillors who are no longer living or working in the area or who have been disqualified for a personal offence that has resulted in imprisonment, and Section 87 covers death. In all cases, the casual vacancies relate to a particular councillor. None of the sections applies to what has happened here, which was the inadvertent failure of returning officers to hold the ordinary elections in May 2010 because they were following the existing orders that were in place until Parliament or a JR struck them down. If we are right—and we are confident that we are—this means that elections are not necessary within 35 days because the vacancies are not casual. As 35 days would take us into August, that produces major democratic issues. We are not challenging—because we cannot—the need to hold by-elections. We are challenging, first, where the costs should fall, and secondly, whether the elections should occur within the 35-day deadline, which they clearly should not. A date in September, a couple of weeks later, after the school holidays, might make the difference between a 15 or 20 per cent turnout and a 40 per cent turnout. To ask local authorities to spend £100,000 on local elections because of the failure of the department, and then to order that they must occur in August when a large proportion of the electorate will be away, compounds a democratic deficit on to departmental negligence. The law, which I have gone through, does not require it. Therefore, I hope that the noble Baroness will accept that by-elections can take place in September, for example as soon as the school holidays are over, and that there should be an appropriate recognition of the department's responsibility for their cost.