House of Lords

Thursday 7th July 2011 Lords Chamber

Thursday, 7 July 2011.

11:00

Prayers—read by the Lord Bishop of Derby.

Legal Aid

Thursday 7th July 2011 Lords Chamber

Question

11:06

Asked by

[Lord Harrison]

To ask Her Majesty’s Government how their proposals to reform legal aid in England and Wales will impact on the welfare and rights of vulnerable children and young people.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, we published impact assessments and equality impact assessments alongside the response to consultation. These lay out our best estimates of the impact of the reforms.

[Lord Harrison]

Does the Minister acknowledge that the likely rise in legally unaided, go-it-alone litigants in family cases will introduce greater delays in getting justice, as well as uncertain outcomes? In respect of Section 37 family cases, does he recognise that there will be no legal aid for interim court orders when a child is removed from a family? Finally, will he look again at the proposal to deny legal aid in domestic abduction cases, which are often very complicated, whereas, rightly, we are retaining it for international abduction cases?

[Lord McNally]

My Lords, I will certainly take back the points raised by the noble Lord on child cases. As far as possible, our intention is that, where children are involved, legal aid will still be provided.

On the broader point of impact, it is partly our intention to divert family and welfare cases away from outright litigation towards mediation and less confrontational ways of settling disputes. That may—and, we hope, will—change the pattern of demand in this area. That is the basis on which the Government are bringing forward their proposals. However, on the issues raised by the noble Lord, I will come back to him.

[Lord Thomas of Gresford]

Does the Minister agree that applications for legal aid in exceptional circumstances are likely to increase considerably? How does he propose to handle it? Does he not think that a court would be better able to assess exceptional circumstances than a Minister and his civil servants?

[Lord McNally]

It is an interesting idea. As this legislation goes through both Houses, I am sure that suggestions of that kind will be made. At the moment, our proposal is that this matter will be in the hands of Ministers.

[Baroness Howarth of Breckland]

My Lords, I declare an interest as the chair of the children and family court system. I welcome the Minister’s information that there will be legal aid in children’s cases, but does he mean that this will be in both private and public law? Did the impact assessments carried out during the consultation process include a definitive assessment in relation to children? If not, could that be carried out?

[Lord McNally]

The impact assessment was consistent with our equality duties which included the duty to have due regard to the impact of the legislation on groups of all ages. This is detailed in the equality impact assessment. I understand that legal aid is in public law. If I am wrong on that, I shall write to the noble Baroness and place a copy of my reply in the House Library.

[The Lord Bishop of Ripon and Leeds]

My Lords—

[Lord Newton of Braintree]

My Lords, I am sorry to get ahead of the right reverend Prelate. There are least three pieces of major legislation currently going around that have an impact, as is perceived, on vulnerable people, including children, disabled people and others. I refer to the Welfare Reform Bill, this legal aid legislation and the housing provisions of the Localism Bill. Has anyone carried out an overall impact assessment of these pieces of legislation on the people we are concerned about? In other words, is this joined-up government?

[Lord McNally]

I believe it is joined-up government but it is set against the reality that all departments are faced with severe budget restrictions. I have never denied from the Dispatch Box that if you cut budgets in areas that are helping vulnerable people there will be impacts on the aid available to them. In my department and other departments we are trying to focus the scope of what we are doing so that we target what is available to the most vulnerable and needy.

[Lord Bach]

My Lords, can the Minister confirm that, as a direct result of Her Majesty’s Government’s proposals in the Bill that is now in another place, young children who have been severely injured will no longer be able to get legal aid to pursue their claims for clinical negligence? Is that not an outrage in a civilised society? How do the Government justify this denial of access to justice?

[Lord McNally]

The Government’s assessment is that in most clinical negligence cases it will be possible to carry actions forward through arrangements with solicitors willing to take the cases. Where it is not, the special legal aid fund will kick in for cases not covered by such arrangements. It is not the case that people will not have access to justice in clinical negligence cases; they will continue to have access to justice. We have taken this tough decision because we believe that there are alternative ways of gaining access to justice, with the safety net of the special fund, which will be in the control of my right honourable friend the Lord Chancellor.

[The Lord Bishop of Ripon and Leeds]

Will the Minister confirm that among those most affected by this legislation will be children fighting deportation, including those who have been in this country for many years and have no knowledge of the country where they were born? Would not such an effect be contrary to Article 8 of the UN Convention on the Rights of the Child?

[Lord McNally]

All the proposals in the legislation are fully compliant with the Human Rights Act. As I have said before, in cases where children are involved our intention is, where possible, to provide legal aid. The problem is that we are discussing the proposals against a background of questions to which we will know the answer only when the impact of the legislation is seen. That is why we have committed to keeping the impact of the legislation, when it is in place, fully under review.

Fair Employment Agency

Thursday 7th July 2011 Lords Chamber

Question

11:14

Asked by

[Baroness Prosser]

To ask Her Majesty’s Government what is their response to the proposal by Citizens Advice that the current five employment rights enforcement agencies be merged into a single fair employment agency.

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)]

My Lords, the Government are currently reviewing their workplace rights compliance and enforcement arrangements to see whether there is scope to make them more streamlined and effective. We will announce our initial findings later this year.

[Baroness Prosser]

I thank the Minister for that reply. Clearly, I welcome the establishment by the previous Government of the single pay and work rights helpline. However, does the Minister agree that taxpayers’ money could be saved and the service to vulnerable workers improved if that helpline was administered by one helpline or agency? Further, will she explain how the service provided by the current helpline could be widened to enable it to address the issue of entitlement to paid holidays? That issue was found by government-funded research to be by far the most common employment-related complaint brought by clients of the citizens advice bureaux. Currently, it can be resolved only by application to the Employment Tribunal Service.

[Baroness Wilcox]

I think the first question was to do with Citizens Advice. The review of our compliance and enforcement arrangements is ongoing and part of it is to look at the different enforcement structures that bodies such as Citizens Advice have put forward. The answers from that will come to us in October. On holiday entitlements and workers with holiday pay problems—I imagine that that is what the noble Baroness is really getting at here—at the moment, advice on holiday pay is available on the Government’s Directgov website. ACAS offers pre-claim conciliation. Then and only then, if all else fails, do you go to a tribunal. I hope that that is helpful.

[Baroness Brinton]

Does the Minister agree that, in addition to the existing benefits of the pay and work rights helpline to the most vulnerable employees, a single fair employment agency would significantly reduce the cost of redress on statutory pay and holiday claims compared with the existing employment tribunal system?

[Baroness Wilcox]

There is, as the noble Baroness will know, a review of the tribunal system at the moment, and she will no doubt wish to put her views to that. As I said, it will report in the autumn.

[Baroness Turner of Camden]

Does the Minister not agree that the present tribunal system, which makes arrangements for lay people to sit on cases, is a very effective way in which to deal with cases and really should not be changed? There is some suggestion that future cases, particularly dismissal cases, should go before a single judge rather than a tribunal, which consists of lay people as well as a lawyer.

[Baroness Wilcox]

I seem to be giving the same answer to every question. I do not mean that to be dismissive, but there are two big reviews at the moment. Obviously, any questions that are asked and answered in your Lordships' House are the sort of things that go to the review, and I imagine that the noble Baroness herself will give evidence on that.

[Baroness Gardner of Parkes]

I say this as someone who sat for 20 years as a lay member of an industrial or employment tribunal, but is the Minister aware that the provision was that people would bring their own cases to the tribunal? They were not required to have legal representation. Would she accept from me that, in my experience, people are sometimes badly represented legally, and even more so by the shark companies that pick up on cases as soon as the names are published and apply and seize these people? They can represent you far worse than you could represent yourself in many cases.

[Baroness Wilcox]

My noble friend speaks from her experience, which is usually very good on these matters. Yes, I agree—people should never feel that they cannot represent themselves in the courts. I have no doubt that the tribunal will look at this to make sure that people are very careful and that the advice that they are given does not make their case more difficult than it already is. It is very difficult to go into a court and give evidence; I have been there and I have witnessed it. People can be very nervous in doing so but, at the end of the day, if what they have to say is right and fair, they will win.

[Lord Elystan-Morgan]

Does the Minister recollect that, some weeks ago, the citizens advice bureaux published detailed accounts showing how much was saved from public funds by legal advice on employment? For every £1 spent, £7.13 was saved to the public purse. Will she confirm that these calculations have been checked and found to be accurate, and indeed show that a great denial of justice and a loss to the public purse are being brought about by these savage cuts?

[Baroness Wilcox]

The noble Lord knows how well the Government think of Citizens Advice. We take very careful note of everything it says, which is usually backed by very good figures and evidence. As we have already heard, it is asking for everything to be merged in this way. It has also campaigned on empty justice. Yes, we will listen to everything that it says and, with two big reviews going on, there is a fair chance that the things it is asking for will come about.

[Lord Davies of Oldham]

Is the Minister aware of the urgency of this situation? She must be aware of the rapidly deteriorating situation in the workplace; a local authority has sent out letters sacking all its workforce at this time. Will she inject just an element of urgency into her department to ensure that the rights of workers have some protection?

[Baroness Wilcox]

My Lords, it is this Government’s hope and plan that the relationship between employer and employee shall be of the best. It is important that we make sure that what we are doing in these reviews reflects the rights of everyone in the case, both the employer and the employed. As to the local authority, it is taking is own decisions and it is not for me to comment upon them.

Nuclear Reactors

Thursday 7th July 2011 Lords Chamber

Question

11:22

Asked by

[Baroness Smith of Basildon]

To ask Her Majesty’s Government what research they have undertaken into, and what assessment they have made of, the use of thorium in nuclear reactors.

[The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland)]

My Lords, the Government are in the process of assessing the benefits of next-generation reactor technologies, including thorium, for the longer term, and the Secretary of State has asked the National Nuclear Laboratory to prepare a report. A previous NNL assessment of a number of claims made by proponents of thorium fuel concluded that while the theoretical science is reasonably sound, the risks and resources involved in achieving commercial deployment are significant.

[Baroness Smith of Basildon]

I am grateful to the noble Lord for his response. It is helpful, and I certainly welcome the fact that the Government are taking this more seriously. He will understand that despite greater acceptance of nuclear power there remain concerns about nuclear waste, both because of its potential military or terrorist use and because of the costs and difficulties of long-term storage—as he and I have discussed on many occasions—as it cannot be disposed of. Liquid fluoride thorium reactors generate no high-level waste material, and can reduce existing stockpiles of waste. Given that, while I welcome the Government’s assessment and the expected report, is there more that the Government can do to test the technology? Also, on a wider basis, have the Minister and his department given any thought to whether this is a technology for nuclear power that could be safely developed in all parts of the world?

[Lord Marland]

I am grateful for the noble Baroness’s question. The reality is that we have waste, so it will not improve the situation with regard to nuclear waste. This Government are very concentrated at the moment on recovering from 25 years of no nuclear activity with what we have. We have to concentrate on the reactors that are available, which we have had approval for, in order to get our next-generation nuclear power off the ground. We know fully that thorium reactors will take 10 to 15 years to develop. There is a high cost in that development and, at the moment, I would not put it as a priority unless the research report that comes out at the end of this summer advises us otherwise.

[Baroness Trumpington]

My Lords, please forgive my ignorance, but what is thorium?

[Lord Marland]

If only my O-level science teacher could see me now. I am very grateful to the noble Baroness for that question because I have learnt a lot about thorium recently. For those who wish to know, it is named after the Norse god Thor. It comes out of monazite sands, which are largely found in India and Norway, and is generated by a sifting process. The noble Baroness will be pleased to know that it is dimorphic, which I am happy to explain means that it changes from face-centred to body-centred. However, other noble Lords are far more qualified than me to inform us about thorium. All I would say is that it requires two neutrons to process it rather than one. The noble Baroness can find all sorts of other facts in Wikipedia, as, indeed, did I.

[Baroness Worthington]

My Lords, does the Minister agree with me that this is a serious topic? We have just seen a disaster in Japan that has reminded us that existing nuclear technology has inherent problems. Thorium is much safer. As my noble friend said, it does not generate waste and cannot lead to the proliferation of weapons and to terrorism. It is a very abundant and available source of fuel, unlike uranium. Given those advantages, does the Minister agree that we should have a programme to develop proof of concept of this technology?

[Lord Marland]

I am very aware of the noble Baroness’s views and read about them in the Guardian a couple of weeks ago. By the way, that was an excellent and most thoughtful article on this subject. However, the reality is that the nuclear accident in Japan to which she referred did not cause loss of life and we have reacted calmly to it. We are committed to the course that I have just amplified. Government funds are not available at the moment to explore new technologies. However, as I said earlier, if the National Nuclear Laboratory comes up with other suggestions at the end of the summer, we will be very happy to listen to those and explore them further.

[Lord Taverne]

My Lords, while some very interesting work has been done in India and interesting developments have occurred on the thorium-based reactor systems, is it not true that even those who feel that the research is very useful admit that it will remain very much a second string for a long time? Is it not vital that the Government should not be diverted from the fastest possible programme for building nuclear power stations? Should it not be noted by the anti-nuclear lobbies that the German decision to close down nuclear power will make Germany much more dependent on fossil fuels and will greatly increase carbon emissions from Germany?

[Lord Marland]

My noble friend makes a valuable point. He is referring to the Kakrapar plant in India, which the Indians are trying to develop. Clearly, we must press on with our nuclear programme. We are disappointed that Germany has taken a different attitude. I pay tribute to all those involved in the nuclear industry and in this debate, particularly in this House, who have kept a steady nerve while all around us things are going pear shaped. As a result, we will come out with a very careful and committed process for new nuclear generation.

[Lord Broers]

Does the Minister agree with me that we must fully fund R&D in nuclear, including thorium, so that we develop a mature understanding of this, but, almost more importantly, that we should focus our R&D in such a way that we enable our industry to bid effectively for the contracts that will be put out to build our nuclear plants, as, indeed, the Germans have done in the supply of train carriages?

[Lord Marland]

I think the noble Lord was referring particularly to training. We have to show a very clear pathway, as we have done recently. Last week, we announced six new sites for nuclear reactors. Clearly, we have to develop a training programme for the 60,000 jobs that will be required in the nuclear industry. The Government remain very committed to it.

[Lord Willis of Knaresborough]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, we must move on to the next Question.

Personal Injury Lawyers

Thursday 7th July 2011 Lords Chamber

Question

11:29

Asked by

[Lord Sheikh]

To ask Her Majesty’s Government what assessment they have made of the practice by insurers of introducing customers to personal injury lawyers in exchange for a fee.

[Lord Sheikh]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. I should like to declare that I am the chairman of an insurance broking and financial services organisation.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the Government are sympathetic to the idea of a ban on referral fees and are looking at how to tackle the issue as part of our wider reforms, and at how we could do so in a way that would be effective.

[Lord Sheikh]

My Lords, I thank my noble friend the Minister for that reply. Lord Justice Jackson’s review of civil litigation costs prescribed a reduction in fixed costs and hourly rates for solicitors, as well as a ban on referral fees. Does the Minister agree with this position, and will he indicate whether the issue will be addressed in the Legal Aid, Sentencing and Punishment of Offenders Bill, which is currently in the House of Commons?

[Lord McNally]

Whether the question of referral fees will find its way into the Bill is a matter for the study that we are undertaking into ways that this could be implemented. However, we are trying to bring forward a range of the Jackson proposals in that Bill. As to referral fees, as my noble friend will be aware, the Legal Services Board and the Transport Select Committee advised a solution in terms of transparency. Lord Justice Jackson recommended a ban and, as I indicated, the Government are sympathetic to the idea of a ban.

[Lord Carlile of Berriew]

My Lords, in addition to that, will my noble friend confirm—as he indicated to me in a Written Answer to me on 23 June—that referral fees or kick-back fees in criminal cases are illegal, corrupt and should not be undertaken in any case by any lawyer?

[Lord McNally]

If that is what I said in a Written Answer it must be—[Laughter.] Even more so, it just sounds right.

[Lord McFall of Alcluith]

My Lords, the industry has called this its “dirty little secret”. Given that over the past 10 years personal injury claim payouts have doubled from £7 billion to £14 billion while road accidents have largely reduced over that period, is this not a clear case of market failure, and the Government should report this to the OFT to look at this issue and get this industry sorted out?

[Lord McNally]

Whether it is a matter for the OFT or the regulator is a balance of judgment. The noble Lord is right that the figures are showing a doubling. One of the factors that one must look at is the unbelievable increase in whiplash claims, about which I know the Association of British Insurers has held talks with my colleague Jonathan Djanogly. It is far too easy to find in even the most minor of accidents that subsequently whiplash is claimed, along with quite substantial damages. One of the weaknesses in the system is that the insurance companies find it easier to settle and pass on the costs to the customer than to fight these bogus claims in the courts.

[Lord Marks of Henley-on-Thames]

My Lords, does my noble friend agree that this practice of insurers charging solicitors referral fees for names is not only unethical and offensive but ensures that the claims are handled not by the most competent or well qualified solicitors but by those who are prepared to pay the most to buy the clients—thus effectively depriving their clients of their right to choose the best lawyers to handle their cases? Is that not another good reason for implementing Lord Justice Jackson’s recommendation for a ban on such fees?

[Lord McNally]

I agree with my noble friend. I hope that the more the public are aware of what the noble Lord described as this “dirty little secret”, the more it is in the public domain and the more that all parts of the insurance industry, including the insurance companies, solicitors and the consumers, will demand—and we will respond to that demand—to ban it.

[Lord Bach]

My Lords, I am now slightly confused as to the Government's position on referral fees. I note what the noble Lord said in his written response to the noble Lord, Lord Carlile of Berriew, and what he said in his reply to the noble Lord, Lord Sheikh, today. Have the Government made up their mind to ban referral fees or have they not?

[Lord McNally]

I am only surprised that someone with such long experience as a Minister should leap on this as if I were dodging the question.

[Noble Lords]

Oh!

[Lord McNally]

I can see a few more experienced ex-Ministers over there. The Government are sympathetic to the idea of a ban on referral fees, and are looking at how to tackle the issue as part of wider reforms—how we could do so effectively. Perhaps the Opposition have not yet got used to the fact that we are not a knee-jerk reaction Government; we are looking at the problem. The Prime Minister himself has made it very clear that we believe that Lord Justice Jackson has given us the solution to the problem. We are now looking at how to make it most effective.

[Lord Kennedy of Southwark]

My Lords—

[Lord Phillips of Sudbury]

My Lords—

[Lord Strathclyde]

I really do not think that the Opposition should have two goes; it is the turn of my noble friend.

[Lord Phillips of Sudbury]

Will my noble friend please take even more account of the fee-farming industry that has grown up in this country, which encourages indiscriminate and, I have to say, false claims because neither the fee-farming company nor the solicitor who purchases the case from the fee farmer ever sees the client? Without that, there is no constraint on dishonesty.

[Lord McNally]

My Lords, it is almost 15 years since I first asked a question on this. I have always had my doubts about claim management companies. There are more than 3,000 of them at the moment; 450 of them have had their authorisation cancelled by the claims management regulator, and I would like to see a lot more of them cancelled.

BSkyB

Thursday 7th July 2011 Lords Chamber

Private Notice Question

11:37

Asked by

[Baroness Royall of Blaisdon]

To ask Her Majesty's Government in the light of the loss of public and commercial confidence in News International and the imminent closure of the consultation period, whether they will suspend consideration of News Corporation’s bid to take over BSkyB.

[Baroness Royall of Blaisdon]

My Lords, I beg leave to ask a Question of which I have given private notice.

[Baroness Rawlings]

My Lords, the Culture Secretary takes the view that News Corp has offered serious undertakings and discussed them in good faith. In all the circumstances, and given that the implementation of those undertakings will be overseen by the monitoring trustee and, thereafter, monitored and if necessary enforced by the OFT, he takes the view that there are sufficient safeguards to make certain that the undertakings are complied with.

[Baroness Royall of Blaisdon]

My Lords, the House, and indeed the country, will know that that is the wrong Answer. Can the Government confirm that the Secretary of State legally has the discretion to defer if he so chooses? Refusing to suspend the process will be seen as incomprehensible by both the public and News Corporation’s advertisers and investors. Can the Minister set out for the House the reason for not doing so? If she is unable to do so now, will she do so in writing? Finally, will the Government provide for this House to debate these matters next week?

[Baroness Rawlings]

My Lords, to answer the final question first regarding a debate next week, that is in the hands of the usual channels. The Secretary of State has quasi-judicial discretion after the decisions of Ofcom and the OFT. Regarding the delay that the noble Baroness asked about, the consultation has not closed; it closes tomorrow, Friday 8 July. The Secretary of State will need to consider all the answers and all the presentations. At present, no date has been set for his decision—the Secretary of State will not be rushed. He will be fair. He has to make his decision on media plurality strictly within the law. He, like everybody else and like the press, has to work within the law.

[Lord Dholakia]

My Lords, I can well understand the dilemma faced by the Culture Secretary because the merger has to be decided on the basis of media plurality. However, I ask the Minister whether we need this sort of media plurality when all standards of professional behaviour and decency have been ignored by News Corporation. Would it not be wise to pause until the major investigations promised yesterday by the Prime Minister have been completed, because there may be some very serious criminal proceedings?

[Baroness Rawlings]

My noble friend asks an important question. The Prime Minister said yesterday at Question Time that there would be two reviews, and the Cabinet is discussing the remits for those reviews. Two areas will be looked into: one is the police investigation and the other is the practice of press regulation.

[Lord Soley]

My Lords—

[Lord Puttnam]

My Lords—

[Baroness O'Neill of Bengarve]

My Lords—

[Lord Puttnam]

My Lords, is the Minister having a conversation with her noble friend the Justice Minister, who is sitting at her side, and with the noble Lord, Lord Crickhowell, who is sitting behind her, to confirm that if she or her colleagues in another place check the record, they will discover that during the passage of the 2003 Act this exact clause was discussed in detail? The type of eventuality that we are dealing with today was anticipated and this clause was intended to deal with it. To ignore that is an abrogation of the will of Parliament.

[Baroness Rawlings]

The noble Lord, Lord Puttnam, makes a valid point. The Enterprise Act 2002 sets out the due process, which is that the Culture Secretary has to make a quasi-judicial decision on the impact of the proposed merger on media plurality issues alone. That was said by the right honourable Member in the other place, Mr Vince Cable, and that is what is happening. The decision will be made after Ofcom and the OFT have made their decisions.

[Baroness O'Neill of Bengarve]

Does the Minister agree that the Prime Minister said yesterday that there would be one or two inquiries, not reviews? Does she agree that those inquiries should be chaired by a judge and that they should have the power to subpoena documents and take evidence under oath?

[Baroness Rawlings]

My Lords, it would seem that that is necessary. However, at the moment there are several inquires going on and the Prime Minister’s reviews or inquiries will happen afterwards. I am sure that the noble Baroness is right in that they will probably have a judge but at this stage I cannot give her the details.

[Lord Borrie]

My Lords—

[Baroness Symons of Vernham Dean]

My Lords—

[Lord Phillips of Sudbury]

My Lords—

[Lord Prescott]

My Lords, I think the House would agree that you can have a full inquiry under the Inquiries Act 2005, and I am sure that that is what most of us would like to see. The Minister mentioned that the Government are prepared to look at plurality, but can I advise her that Ofcom has a responsibility to look into the invasion of privacy? Are the Minister and the Government going to take that into account in regard to the Murdoch application for BSkyB?

[Baroness Rawlings]

I have every sympathy with the noble Lord, Lord Prescott, whom we all know has been a victim of this. We feel that personal freedom and privacy are of great importance, but so is the freedom of the press. Hacking is illegal—we know that—and wrong. These cases are disgraceful and shocking. I remind noble Lords that these present hackings are not new. Hacking has been around for a very long time and it is perpetuated by many different people, not only the press. All that does not make it any better; it is a foul deed and the press have to abide by the law, as do we all.

[Lord Phillips of Sudbury]

My Lords, does the Minister agree that both of the inquiries on foot heavily conflict each other? The first is News Corp’s own inquiry, of which Rebekah Wade has been put in charge; and the second, more important one, is the police inquiry to which my noble friend referred. Sadly—one says this with some reluctance—there is a conflict of interest in the second inquiry, as there is no question but that a great deal of money has passed hands, not just between this newspaper but also between other newspapers and the police in recent years. Do the Government propose to do anything about that?

[Baroness Rawlings]

My noble friend brings up the importance and involvement of the police. We are talking about criminal cases here that are under investigation. It would be wrong to prejudge. In this whole area, the Secretary of State has been very fair and very transparent in putting everything in front of the House. We have had many debates on this. My noble friend Lord Fowler has asked questions on this; I am afraid I do not see him in his place today. We know that any payments regarding the police are against the law.

[Lord Soley]

My Lords—

[Lord Borrie]

My Lords—

[Baroness Scotland of Asthal]

My Lords, can the noble Baroness confirm that the consequence of her answers is that she agrees, first, that the Secretary of State’s hands are not tied; secondly, that there is no reason for him to make this decision now; and thirdly, that it would be quite wrong for him to make a decision about the validity of accepting the undertakings from News Corp before properly considering the impact of the horrendous allegations that are now being made? Can she also confirm that this Government chose to restrict the referral simply to plurality, but they were perfectly entitled to refer, and should have referred, this matter also on the basis of broadcasting standards?

[Baroness Rawlings]

Yes—the Secretary of State will not rush into a decision. From tomorrow, he will see all the presentations, which will take time. He will not be rushed. His hands are not tied; he is in a quasi-judicial position. Ofcom and the Office of Fair Trading are both involved. There will be no decision right now because he is waiting for the consultations to come in. As was said by Mr Ed Miliband in the other place, the hacking has nothing to do with plurality.

[Lord Mawhinney]

My Lords—

Communications Committee

Thursday 7th July 2011 Lords Chamber

Membership Motion

11:49

Moved by

[Lord Brabazon of Tara]

That the Lord Bishop of Norwich be appointed a member of the Select Committee in place of the Lord Bishop of Liverpool, resigned, and that the Earl of Selborne be appointed a member of the Select Committee in place of the Earl of Onslow, deceased.

Motion agreed.

Pensions Act 2007 (Abolition of Contracting-out for Defined Contribution Pension Schemes) (Consequential Amendments) (No. 2) Regulations 2011

Thursday 7th July 2011 Lords Chamber

Pensions Act 2008 (Abolition of Protected Rights) (Consequential Amendments) (No. 2) Order 2011

Motions to Approve

11:49

Moved by

[Lord Freud]

That the draft regulations and order laid before the House on 14 May be approved.

Motions agreed.

Localism Bill

Thursday 7th July 2011 Lords Chamber

Committee (6th Day)

Relevant documents: 15th and 16th Reports from the Delegated Powers Committee.

11:50

Clause 74 : List of assets of community value

Amendment 133E

Moved by

[Lord Greaves]

133E: Clause 74, page 61, line 9, leave out subsection (3)

[Lord Greaves]

My Lords, here we go again. I will speak also to Amendment 135A in this group. Amendment 133A challenges Clause 74(3), which states that assets that have been placed on a list of community assets will be removed after five years. This is a probing amendment. My first question is: why is it necessary to make the list temporary in this way and provide lots of extra work for the local authority? Why does an asset not remain on the list until there are good reasons for removing it, rather than being removed after an arbitrary period? Secondly, if there is to be an arbitrary period, why is it five years rather than two or 10? Thirdly, can assets be put back on the list once they have been taken off after five years? Will the procedure be the same as that for putting them on in the first place, which would seem to necessitate a lot of duplication?

Fourthly, can community organisations and parish councils propose that an asset which is due to come off the list at the end of five years should stay on? In other words, can they make a new nomination before the end of the five-year term or do they have to wait until the asset has come off the list and then make a new nomination—in which case there would be a gap between the end of the five years and the new nomination? These are straightforward questions, but they are not answered in the Bill and they are important if we are to know how the system will work.

Amendment 135A suggests that under the provision in the Bill for the appropriate authority—in England it is the Secretary of State—to change the period of five years to another length of time if he or she thinks that that would be a good idea at some time in the future, it should be possible to make different periods for different classes of assets. Why is it not possible for the local authority to make sensible decisions based on local circumstances, according to what is appropriate for a particular community asset? It will know the circumstances that relate to each asset. If there is a long-standing recreation ground that is not in council ownership—or even that is—and has been there for 50 years, having to apply every five years to put it back on the list would seem unnecessary. A village hall that might be in private or some sort of other ownership will not go away. One hopes that it will be there in five or 10 years, when the same problems will occur if the owner proposes to close it down or change its use to something else. That might also apply to a village pub or post office, and it seems that village pubs and post offices are where this legislation came from in the first place.

Why is it necessary automatically to take privately owned allotments off every five years and then put them back on? Why do all sorts of green spaces that people hope will be there for a considerable time have to come off and then be put back on? For example, burial grounds are not going to go away, although quite often there are proposals to take local burial grounds over, dig up the bodies and develop them. That is what happens in too many cases perhaps. That problem is going to be there in five, 10 or 25 years, so why cannot the local authority or even the Secretary of State allocate different periods for different classes of assets? These are practical problems and practical questions about how this legislation is going to work. It is important that we understand what the Government think about them. I beg to move.

[Lord Howard of Rising]

My Lords, before speaking to Amendments 134 and 135, I should declare some interests. I am a district councillor and a parish councillor, the owner of an agricultural estate which contains assets which might fall within the scope of the Act and chairman of the National Playing Fields Association.

These amendments, and other amendments in my name, were put down before the Minister deposited in the Library her paper on assets of community value. I thank her for the paper and for the helpful remarks she made when this Bill was being debated earlier in the week. I am most grateful as are, I am sure, many others in this House.

The effect of Amendments 134 and 135 would be to have included in the Bill a maximum period of five years for an asset to remain on the local authority’s register of community assets. It would stop the Secretary of State being able to extend the period without primary legislation and would thus avoid the worry and concern for the owner of the asset that the five-year period might be extended at short notice and without his or her foreknowledge.

In a property-owning democracy, such as ours, security of tenure is not just an important matter; it is, as my noble friend Lord Hodgson pointed out, fundamental to the way our society works. Anything which affects property ownership or value can have far-reaching effects for the vast majority of citizens of this country. For the Secretary of State to be able, by regulation, to extend the period of five years for an asset to be on the register will create uncertainty which will, in turn, affect value.

One of the faults of this Bill, as many of your Lordships have commented, in particular my noble friend Lord Jenkin, is that too much power is reserved for the Secretary of State to make what can be far-reaching changes. For the Secretary of State to be able to alter the length of time for an asset to be on the register without the requirement to introduce primary legislation could affect the value of any asset on the register. This will most affect the less well off, where the asset may represent virtually everything they have in the world. Owners of small shops and the other types of small businesses, at which this Bill is aimed, are not normally people of great resources. In the paper deposited in the Library, reference is made to renominating assets after a five-year period has ended. I urge the Minister to reconsider this, although if the five-year period remains in the Bill, having to take positive action for the asset to remain on the register would at least be a step in the right direction.

The value of assets is a theme to which I shall return in later amendments because there are other measures in this Bill which could cause harm.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)]

My Lords, I thank both noble Lords for their points on this matter, to which I shall respond briefly. The noble Lord, Lord Greaves, referred to Amendment 133A, but I think we should be referring to Amendment 133E. The amendment would remove the time limit all together. We do not think that this is a good approach because a fixed-term listing will ensure that assets do not remain on the list when they are no longer considered to be of community value.

Under Amendment 134, rather than a fixed period of five years for listing, the local authority would be able to remove the asset from the list at any time but no later than five years after listing. Amendment 135A would introduce different fixed terms for listing depending on the type of asset in question. Both amendments would have an unwelcome effect. They would make it unclear to community groups how long the listing would last and on what basis it could be brought to an end—consequently, reducing the transparency of the whole process. Under our proposals the fixed term will apply unless the site is sold in the meanwhile or the local authority changes its decision on review of the listing.

Amendment 135 would remove the power for the Government to change this period by order after the Act comes into force. We oppose this because the power will enable Parliament to review the five-year limit in the light of experience. The noble Lord, Lord Howard, suggested that this would require primary legislation but as things are in the Bill at the moment it would have to come back to Parliament without ever introducing primary legislation but on secondary legislation. We will also want to take account, for example, of the frequency with which listed assets come on to the market and how often communities wish to re-nominate assets that have changed hands.

In answer to the question asked by the noble Lord, Lord Greaves, yes, after five years an asset can be put back on the list but only if it is re-nominated and again goes through the process of the local authority having to judge whether the asset still meets the definition. The noble Lord, Lord Howard, asked whether the change of the five-year period and the period that land is listed would affect sites already listed. The answer is no. A change would affect only land listed after the change.

I hope that that answers the questions and satisfies both noble Lords for at least the time being. I ask that noble Lord to withdraw the amendment.

[Lord Greaves]

My Lords, I am grateful for those answers. The question in the back of my mind is the extra staffing resources that local authorities will need in order to compile and maintain these lists of community assets. I suppose the answer is that we do not know because we do not know how many nominations there will be. I suspect that in some places there will be a lot and in others there will be very few. We will find out in due course. However, on the basis of the Minister’s response, I am happy to withdraw Amendment 133E. I apologise if I got the number wrong earlier. I have not brought the right glasses for reading and I will have to get them.

Amendment 133E withdrawn.

Amendments 134 to 136ZZA not moved.

Debate on whether Clause 74 should stand part of the Bill.

[Lord Greaves]

My Lords, I gave notice of my intention to oppose the Question that Clause 74 stand part of the Bill. I do not intend to speak in the debate, although I note that the noble Lord, Lord Cameron of Dillington, would like to do so.

[Lord Cameron of Dillington]

My Lords, I rise, at last, to speak in this clause stand part debate. I shall speak to whether all the clauses in Chapter 4 of Part 4 should stand part of the Bill. In some ways I am glad that I did not get to speak on Tuesday. Our debate then and some of the statements that have just been made confirm my view that I might have a solution to everyone’s concerns.

Before I set out my position, I must first make it clear that I totally endorse the intentions behind Chapter 4. I have spent the greater part of my life trying to save community assets, as envisaged in this chapter. When I was at the Countryside Agency, we worked hard to provide funding for villages that were trying to protect and enhance their pubs, shops, sports facilities and heritage assets. On the latter, we ran the local heritage initiative for the Heritage Lottery Fund for both rural and urban communities. At the same time, the agency was one of the instigators of the Pub is the Hub movement. We also had a great scheme for encouraging the use of village facilities for multiple purposes, such as using the same room or building for everything from a hairdresser and a citizen’s advice bureau to political surgeries and Jobcentre Plus services. We also worked hard with others to persuade the Government to put £150 million a year into saving rural post offices. We were not totally successful in saving all rural post offices, of course, but we certainly helped. Ultimately, in all these things, and as is the intention behind these clauses, whether prized community assets survive depends on the oomph or activities of the community itself.

Having established, I hope, my credentials and my enthusiasm for this chapter’s intentions, I shall now explain why these clauses, as currently framed, first, will not work and, secondly, are an unnecessary nightmare of administrative red tape. First, why will they not work? On the basis that the two main community assets to be saved are probably the village shop and pub, or, in urban areas, the local shop and pub, perhaps I may use them as prime examples. I note at this point that open land used for sport or quiet recreation is already catered for by Section 15 of the Commons Act 2006, under which it can be registered as a town or village green. I put that forward tentatively because I am not an expert on the use of Section 15.

Sticking to the pub and the shop, it is important to note, first, that they are both customer-based businesses. Any interruption to their trading is tantamount to a direct hit on their sustainable future. In any period of closure, people soon develop the habit of going elsewhere for their shopping or their pint. It is surprising that even those without their own transport find alternative ways of getting what they need. More to the point, those habits soon become ingrained. There are lots of reasons why a publican or shopkeeper might want to retire. Customers may be drifting away and the business owner might be finding it hard to make ends meet. It might all be too much hard work. Believe me, running such enterprises really is hard work. There might be family reasons for moving or they might just want to retire. However, if they do want to retire, it is likely that they will want to maximise the value of their business asset. At the moment, the best way to do that is to get permission for a change of use and sell the building as domestic premises. Often, half of it will already be a house, so they try to turn it into a bigger house, or even to have two units to sell.

If, on the other hand, they want to sell their business as a going concern, that is all well and dandy and none of this is needed. If not, and particularly if the business is failing, the first thing they will do is to close the business in order to justify any change of use application. Very often the business will sit like that with the shutters closed, in my experience, for six months or a year—in some instances that I know of, considerably longer—even before an application is made. As I have already explained, that means that the business as a community asset could be snookered anyway. Of course, as far as the business owners are concerned, it is more likely that they will get their change of use because such a permission will be merely confirming a fait accompli.

I should point out that there could be as much as an extra £100,000 accruing from a successful change of use application, but the main point is that, after planning permission and building conversion, the sale of a property in this scenario—the “disposal”, as it is called in Chapter 4—is often several years down the track, by which time there is definitely no community asset to save.

If the local planning authority refuses permission—I accept that, if the property is now deemed a community asset, this is more likely—the owner will probably hang on for a year or two, maybe until the five years have elapsed, and have another go. They are probably living in the property or they can lease the living quarters for a few years. Alternatively, they might, under the new circumstances, give up and sell the business as a going concern, in which case we do not need to protect this community asset at all. If the disposal of the property, being usually six months to a year or more after the closure of the business, is used as the trigger for the moratorium to give the community a chance to galvanise itself and take appropriate action, it is already too late. To plagiarise Charles I, “The bird has already flown”. The business, as opposed to the property, already has both feet in the grave.

I accept that the focus that the Bill now gives to community assets means that the owner will know that an application for a change of use is likely to be refused and is therefore more likely than ever simply to close the business and carry on living in or letting the domestic side of the premises until the property slips off the radar as a recognisable community asset. However, the effect is the same. No trigger has been given to spark the community into action. Although, frankly, if the community is not sparked into action by the closure of the business into doing something to revive it elsewhere—perhaps by using their right to build, for example—there is probably nothing we can do to help them anyway. In any case, my point is still valid: it is very unlikely to be the disposal of the asset—I stress the word “asset”, as in that particular property—that kills the business; it is the change of use.

If all this is not bad enough, Chapter 4 as currently proposed could actually be the killer blow to the community asset when it is in no danger at all. Let us take the example of a publican or shopkeeper who dies in service. It is not unknown, as I said earlier. It is extremely hard work. The widow or executors will want to implement a quick sale in order to keep the business going, possibly for the sake of the community, but under the current proposals, they cannot do that, so the proposals could actually cause the demise of the very business that they are supposed to save. I believe that it is important to stimulate the necessary community action only when the business is actually threatened, rather than when the ownership of the property is transferred. The threat to the business really only occurs when a change of use planning application is made. It is at that stage that the community needs to take action, rather than wait for a disposal, when it is usually too late. I accept that a passive closure of the business not involving planning permission has the same effect and that this event is not covered either by my proposal or by the current Chapter 4. As I said, only the community itself will be able to take independent action to deal with that scenario.

My other point, which I shall make briefly and is similar to the points made last Tuesday by the noble Lords, Lord True and Lord Jenkin, is that this chapter is a nightmare of administration and red tape. I looked at it, wondered how I could possibly put down any meaningful amendments and realised that I could not. I am sorry to be so blunt, but to me, it is totally over the top. At a time when local authorities are desperately trying to cut down on costs, they will possibly have to start new sections of administration keeping lists, and not only lists of successful community assets, but also lists of unsuccessful ones. Why on earth one needs the latter, I do not know. Like the noble Earl, Lord Lytton, I should have thought that a non-appearance in the first list was enough for everyone.

My solution, which I hope is a positive suggestion, is that the Government should put a loose but meaningful description of a community asset on the face of the Bill. Then, when an application for a change of use comes into a planning department, the planning officer could inform the parish council or neighbourhood forum and all the members of his planning committee immediately—just in case they disagree with him—that he is deeming the premises to be a community asset. The community would then have, as at present, six weeks in which to express an interest which, if forthcoming, will result in a moratorium on the decision for a change of use for, say, six months or more to allow the community to galvanise itself so that it could, as it were, head off the danger at the pass. That would be a very simple but, in my view, far more effective approach than the current quicksands that we are all being sucked into. Do we really need 19 clauses and a whole wodge of regulations to achieve a very simple procedure? I think not.

I am sorry to have gone on for so long—I bet that those who were here late on Tuesday night are quite glad that I did not speak at that hour—but, as I said at the beginning, this is an important matter. I am right behind the Government in their intentions and I really want to make this work, which it definitely will not do in its current form. I know that there have been consultations, but I expect that the responses were based on what is currently proposed. I bet that few have had the temerity to say that the emperor has no clothes. Chapter 4 sounds good politically, but I do not believe that it will achieve what it is trying to do. I cannot see these provisions saving a single village shop or pub. Indeed, I can see them condemning a few to the grave—

12:15

[Baroness Thornton]

Does the noble Lord accept that these provisions are not primarily directed at post offices and pubs? They cover wasteland in cities, disused bank buildings, disused offices, railway arches, warehouses, mills and allotments. Might not the noble Lord be undermining his own case if he is trying to tell the House that this is just about pubs and post offices?

[Lord Cameron of Dillington]

I accept that there are other community assets. As I said, I think that the open-space community assets could be dealt with in other legislation. However, the provisions are ultimately about a change of use rather than the disposal of what is a community asset. I accept that I speak for rural communities, but I think that one of the main purposes of these clauses is to protect, alongside urban community assets, rural community assets such as the village shop and the village pub. In any case, I think that my comments here apply equally to urban properties.

I urge the Government to rethink this whole chapter. I look forward to hearing the views of others.

[Lord Reay]

My Lords, as this is the first time that I have spoken at the Committee stage of the Bill, I would like to declare my interest as a landlord and landowner.

I have put my name down to remove all the clauses in Chapter 4, so I would like to speak to all those clauses collectively, but in fact I would not want there to be nothing in the Bill on this subject. The Government have made too big a political commitment for that. Nevertheless, I have always understood that the original political interest and intention was to make sure that local communities are given a chance to intervene to try to keep going a village pub or post office or shop or public library that has been threatened with closure. Despite what the noble Baroness said, the intention goes slightly further but not much further than that. When Ministers talk about the proposals, those are the examples that they generally give—my noble friend the Minister did the same on Tuesday.

However, the Bill goes vastly wider than that. In the first place, everything would have to be listed, as the noble Lords, Lord Greaves and Lord Cameron of Dillington, have emphasised. The Government have completely glossed over the implications of that. As the noble Earl, Lord Lytton, explained on Tuesday, this would be an extremely time-consuming operation. Every local authority would have to take on someone to list all assets of community value. My noble friend Lord True, sitting beside me, on Tuesday said that he thought that his council would need two extra staff. A cheer must have gone up in the Guardian newspaper’s advertising department upon seeing this provision in the Bill.

Secondly, almost any sort of asset could, by a creative council employee, without even being mischievous, be considered to have community value. Any sort of business which employed people who lived in the locality could be argued to promote or improve the economic well-being of the local community. Any cherished landmark, any listed building—although not, as the Minister tells us, if it is a residence, as regulations will prevent that—and any popular view, even, could be argued to promote the environmental well-being of the local community.

Thirdly, I should like to ask the Minister about the degree to which the provision is limited to assets of which the community has already enjoyed the use. Could a piece of ground that in someone's eyes might make a nice football pitch, cricketing pitch or playground be listed? Could it not be argued that the prospect of enjoying the use of a certain building or piece of land had contributed to the well-being of a local community?

Fourthly, the point of sale—here, I take up the point emphasised by the noble Lord, Lord Cameron of Dillington—is not the point at which local interest and local involvement should be triggered; it should be change of use or the threat of change of use. A pub can change hands and still remain a pub, but if an owner wants to redevelop it, then the community should have the right to bid. Change of use should trigger the right to bid—ditto with post offices and village shops. Could not this be done in a way that tied in with existing planning powers?

As it is, we have a snooper’s charter which could lend itself to all sorts of inventive arguments and practices, and which would surely result in landlords and landowners who have willingly made facilities available in the past less likely to do so in future for fear of having such a restriction placed on their property. They would want to avoid a situation where, whenever they might want to sell or transfer their property, this blocking mechanism could arise to impede and, in practice, prevent the transaction. On Tuesday my noble friend Lord Moynihan explained in detail how this could have massive adverse consequences for the provision of land and buildings for recreational and sporting use by private landlords in private agreements with local communities throughout the country.

Many amendments have been put down that deal with one or other part of the objections which I have mentioned, but none deals with all of them. I liked the amendment proposed on Tuesday by the noble Lords, Lord Greaves and Lord Tope, which would have required assets to be businesses. Unfortunately, when she wound up the debate, my noble friend the Minister said that she did not like the amendment and wanted to include more than just businesses. I am not sure what specific assets she had in mind but the examples that she and her colleagues tend to give are of businesses.

I also liked the amendment of my noble friend Lord Jenkin of Roding, which would have required that land to be listed needed the consent of the owner. Again, my noble friend the Minister did not like that; she said that no private owners would sign up. That in itself is a bit of a giveaway. She and her officials know that they are imposing on landowners something that they will not like.

Unless landowners see a way of providing facilities of whatever sort on their land to local communities without incurring the risk of the land or building being listed as of community value, with all the nuisance that that could bring, I foresee that supply drying up. That would be a huge tragedy. It would be a great folly, if the outcome were likely to be so counterproductive, to allow the Bill to be enacted with this part of it unamended.

Ministers have so far not come up with anything that remotely measures up to the numerous and serious objections to this part of the Bill. However, they have certainly listened to us, and I hope that something can be achieved during the Recess if not before. Meanwhile, I shall follow carefully other amendments which we are about to come to. I certainly liked what I hope may be an amendment that the noble Lord, Lord Cameron of Dillington, mentioned towards the end of his remarks.

[Baroness Thornton]

My Lords, we need to recognise this for what it is—a full-frontal attack on this part of the Bill. I am sure that I do not need to say that to the Minister.

I need to amplify the remarks that I made to the noble Lord, Lord Cameron of Dillington. I am an urban person—I live in Bradford and in London—and I have been involved in community activities, projects and the acquisition of land and property for community benefit in both places. For example, my title is Baroness Thornton of Manningham. I am the patron of the community centre in Manningham Mills—the wool mill in Manningham which was acquired as part of an arrangement to provide a community centre in a very deprived urban area. That is what we are talking about. It was acquired through the imagination and drive of local community organisations and is replicated in thousands of initiatives, both rural and urban, across the country.

[Lord Jenkin of Roding]

What more does the noble Baroness think this part of the Bill will give to what already existed for the acquisition which she has just referred to? She and her group seem to have been very successful in acquiring it; why do they need all this bureaucracy?

[Baroness Thornton]

If I can continue with my remarks I think there will be some agreement across the House. We would all prefer the Secretary of State to have a smaller role in these matters. I agree with the noble Lord, Lord Cameron, that this is a convoluted part of the Bill which may need simplification and to give more reassurance. However, it does not need to be deleted completely. The Government are on the right lines.

In answer to the noble Lord’s question, I would be happy to list for the noble Lord, although perhaps not right now, a host of initiatives that have fallen by the wayside, either because the powers or the time did not exist for community organisations to raise the money—this applies also in rural locations—to enable them to use the asset in question for community benefit. That is what this part of the Bill is about, and I believe that the Government are on the right lines.

During the Second Reading debate I said to the Minister that we needed to discuss this part of the Bill. I have yet to be involved—as have any of my Front-Bench colleagues—in any discussions on this part of the Bill, but we hold ourselves ready. On Tuesday evening several remarks were made about the discussions taking place but, so far, those discussions do not involve us. I hope that that will change. I also hope that organisations that are expert in these issues—the Plunkett Foundation, Locality—will also be involved in those discussions. I am sure and confident that this House can resolve this situation satisfactorily.

[Earl Cathcart]

My Lords, I was in two minds whether to speak on this but I have something here that I prepared earlier.

The whole chapter has been so badly thought through that, as written, it will do more harm than good. I have two points to make. First, we must not forget that the original aim was to allow communities to save their village shops, pubs and post offices from closure. That is an admirable aim, but no mention is made of businesses and services in the Bill. Why not? Why is the wording so broad? I suppose it was thought that there may be other assets of benefit to communities, and so the scattergun approach was adopted. The great danger of using a scattergun is that one often misses the target—and that is exactly what has happened here.

The Bill needs to be drafted so that it hits the nail on the head. As it is currently written, any person, parish or community group can nominate any asset they deem to be of value to the community. As has been said before, this has put the cat amongst the pigeons. Landowners who for purely altruistic reasons have allowed their communities to use part or all of their land for sport and recreational activities are now reconsidering their positions. On Tuesday, my noble friend the Minister said:

“The fact that my noble friend Lord Moynihan spoke about the loss of sports and recreation facilities if this goes ahead, and that other noble Lords commented on the fact that landowners will be advised not to let their land be used for any community facility, is something of which we need to take cognizance. If that is what is being said, and if that is a fear … We need to take note of that”.—[Official Report, 5/7/11; col. 243.]

I assure my noble friend that I know of national firms of land agents that have already advised their clients of the consequences of this Bill as it is currently written. I was talking to my agent the other day, and at the end of the business he asked me what I was up to. When I said that I was involved in the Localism Bill, he said, “Oh, we are watching the progress in the Lords very carefully and we will advise our clients during the summer”. So warnings and advice have already been given to landowners.

12:30

I must congratulate my noble friend the Minister on all the meetings and efforts that she has made in trying to resolve these issues. As she said on Tuesday:

“I tried to bring this back from being a very wide problem into being quite a simple, singular matter … There are lots of examples already of people buying their local pubs or shops to keep them from going out of business”.—[Official Report, 5/7/11; col. 242.]

There my noble friend hits the nail right on the head. Why does not Clause 74 say that a local authority must maintain a list of shops, pubs and post offices or other similar business or services that are of community value, rather than the current list of land? As the Minister said, that would bring this back into being a “simple, singular matter”, and it would hit the target—a bull’s-eye!

I know that Governments are reluctant to put lists on the face of a Bill, so why not put “businesses and services” in the Bill, as was suggested in Amendment 133D and echoed today by my noble friend Lord Reay? As it is, we have been given the right of appeal, compensation schemes and a whole list of exemptions—inheritance, gifts, transfers between family members, between partners in the same firm, and between trustees of a single trust and homes—all to allay the fears of landowners, who are just doing things for altruistic reasons. I have no doubt that many more exemptions will be given before the Bill is through. It is all getting far too complicated. If my noble friend wants to keep it simple, for goodness’ sake put shops, pubs, post offices and/or businesses and services on the face of the Bill, and then all these bones of contention will disappear overnight. I concede that there may be the odd asset missed off the wish list, but there is no reason why a community group cannot bid for that asset if it comes up for sale, just as any other purchaser does at present.

[Baroness Thornton]

I am bound to ask, what about railway sidings, for example? What about waste land in cities? What about all those places that people want to have access to and cannot? I beg noble Lords to stop thinking about this just in terms of pubs and post offices.

[Earl Cathcart]

The noble Baroness raises a good point—what about them, indeed? If communities do not use them at the moment, they do not form part of this Bill. It is the very question that my noble friend Lord Reay has just raised.

My second point is that the Government seem hell-bent on the trigger point being when an asset is disposed of or sold. Like the noble Lord, Lord Cameron, I do not think that the selling of an asset of community value hits the spot at all. Hundreds of shops and pubs are sold every week up and down the country, with no loss to communities, as the purchasers are another shopkeeper or publican. So the business continues with no loss to the community. The real trigger point is when the facilities are closed down subject to an application for change of use or a demolition order. So I ask my noble friend to listen sympathetically to my noble friend Lord Hodgson of Astley Abbotts when he speaks to his Amendment 144.

To illustrate the point, there is great concern over the loss of so many school sports fields to development over the past 20 or 30 years. I do not believe that the measures in this Bill would do anything to stop this in future. The Minister might say, “But they can be listed as assets of community value”. And so they can. But the local authority can give itself planning permission for development without a sale of the land taking place and without triggering the right to bid provisions. The local authority can receive a shed load of money from the developers and retain ownership of the land for a nominal annual ground rent. The land has not been disposed of or sold, but the playing field has been irretrievably lost. Surely there should be an obligation on local authorities to supply alternative sports facilities.

I know that my noble friend is well aware of the shortcomings of this part of the Bill and is as keen as any of your Lordships to get it right. She recognises that the most valuable asset is the current good will and genuine community well-being that already exists.

[Lord Shipley]

My Lords, I agree with the noble Baroness, Lady Thornton, in a number of respects, not least in that I think the Government are on the right lines. Some aspects of procedure and process—how this may be delivered—might need to be looked at before Report. I wanted to give some examples from my personal experience of where this legislation could well help to protect a community asset.

This is not entirely about pubs and post offices, but let me give an example of what can happen with a pub. Let us say that a pub is owned by a national, private sector organisation and is closed down. It is sold on the open market but, when research is done with a small advert in a newspaper over the summer, it is knocked down by the purchaser, and the community has no power under planning law to prevent it being knocked down. There is then an application for a change of use, but the criteria for change of use alter because the building no longer exists. It is treated and deemed to be a brownfield site. As a consequence, different planning law pertains and new planning permission for a change of use is much easier to obtain.

My second example is more hypothetical, but it reflects a concern that I have about the financial viability of sports clubs, which often find themselves in financial difficulties and needing to do things to protect their position. This might involve a merger, for example, or moving to a new site. There is an issue about whether land used for a sporting purpose should be considered, before it is sold, for permanent use as a sporting provision. Of course, planning law and the zoning of land help in that respect, but are not the entire story. There has to be a right to give a community the power, if the sports club is going to move, to say whether some greater community interest should be considered whereby a trust could be formed to perpetuate sporting recreational activity on that site.

A third example is government-owned land or buildings. This is not just about privately owned buildings. What about a cricket pitch on open space that is within the purview of a government building, such as a National Health Service building? Planning law currently protects that. One of my great fears is that it becomes easy, when finance is difficult, to suggest that the solution to that finance problem would be to sell off more land and that, to secure a reasonable price, it needs to be sold off for housing or some other purpose with a commercial outcome, which then generates a large sum of money for that government department. The community has to have some general right to intervene to protect that open space, above and beyond the rights bestowed by the planning system.

Another real-life example involved Ministry of Defence buildings for the Territorial Army next to a large secondary high school on a constrained site. The school needed further land, ideally for expansion, because it was too tightly constrained for the growth that it needed. It was in the community's interest that the school should expand, but it was clearly in the Ministry of Defence’s interest to secure the largest income it could from the sale of the buildings and land. That was a housing use issue. We are then up against the difference in values between what one government department is prepared to pay to another. Nothing in current legislation says that one government department must give another the right to buy at a price lower than open market value—in this case, for housing development. This is a problem because the community's interest is not in the housing development—that may be in the MoD's interest—but in that of the children being educated in our schools.

[Lord Beecham]

Would the noble Lord not agree that it is most important to deal with that problem because it is a right to bid, not a right to buy?

[Lord Shipley]

I fully understand that the Bill does not deal with precisely that problem, but I am trying to give the community's point of view on what it worries about, such as controlling the assets that it perceives to be of community value in its area.

There is a further general issue with council-owned buildings: whether councils should have an automatic power to sell buildings that they own prior to testing community interest in running a building, such as a loss-making facility. With everyone's good intentions, I am sure that is what councils would do under the Bill. However, a register of those buildings would make councils ensure that they behaved reasonably in protecting community assets that local people might want to use. The development of community trusts and facilities whereby people in a neighbourhood can get together and form a community interest company trust is in the public interest. Put simply, there is a lot of discussion to have on the Bill between this stage and Report, but this debate is not simply about pubs and post offices. I agree entirely with the noble Baroness, Lady Thornton, that we have to think much more widely about what is in the public interest.

[Lord Greaves]

This has been a very interesting debate and I am stimulated to make one or two comments in view of what has been said. I am less sanguine than my noble friend Lord Shipley about whether this chapter of the Bill will help to do the kind of things that he has been talking about. I agree 150 per cent with what he said about the need for communities to be able to be much more active and involved, particularly over pieces of land. There are ways forward here, but they require resources and organisation. Local government can help in that area, but it is not just a matter for local government.

The noble Baroness, Lady Thornton, said that some of the comments were a full-frontal attack on this part of the Bill. When I first heard about this part—indeed, when I first saw it in this telephone book of a Bill that we have—I was enthusiastic and excited about it, because I thought that someone was at last getting to grips with the problem of the loss of community resources in both rural and urban areas. The more I have looked at it and thought about it, and the more I have listened to comments here, the more I think that what is being proposed will cost money but not actually do much good at all.

12:45

My personal view is that if this part of the Bill disappeared while going through your Lordships’ House, that might not be a bad thing. The basic problem is there, but I cannot see the point of introducing what looks like an heroic gesture but will not achieve anything in practice. I find myself a little surprised to find myself saying this and on the same side as some Conservative Members here, who I quite often do not agree with on this kind of issue. However, simply from the point of view of workability and practicality, and whether the money spent on it will be of any value, I question whether it is actually of great use.

There is a rural/urban division here. The noble Baroness, Lady Thornton, and my noble friend are quite right to look at some of the other problems, but the genesis of this really came from villages, particularly when losing pubs and post offices. We have to remember that post offices, for example, are Post Office businesses and not premises. When a sub-postmaster wants to retire, the contract to run that post office is transferred to whomever the Post Office thinks is the best person to take it on—if there is more than one person; very often there is not. It is not linked to a particular building; it is a Post Office business, and that is how it works.

Often, the Post Office business has been closed down not by the sub-postmaster but by the Post Office in reducing the size of its network. In quite a few villages in smaller places, the removal of the post office facility has been the trigger for closing the local or village shop, which was partly a post office but partly a typical local or village general shop. Losing the Post Office business was the straw that broke the camel’s back and made that business no longer viable. Noble Lords on the Labour Benches opposite have to understand that the biggest programme of post office closures was under the 13 years of the previous Labour Government. Often, hundreds of post offices closed a year.

Those noble Lords should also understand that this coalition Government have stopped that closure programme. My right honourable friend Vince Cable, my honourable friend Ed Davey and their Conservative colleagues—I would not take away from them as well— have stopped the enforced post office closure programme. That does not mean that no post offices will close, because the businesses might not be viable or people might retire and want to sell on the properties but there is no enforced programme under the new Government. Perhaps noble Lords opposite who are so concerned about local post offices will give some credit to the new Government for that action.

I have tried to get my mind around this part of the legislation as it regards urban areas. With the sort of area that I represent on the council, we all think of these things. I am finding it very difficult indeed to think of many circumstances in which putting assets on a list held in the town hall will make any difference at all. The moratorium will make no difference because the assets that we are talking about are often closed assets. Urban pubs are closed, and then stay empty for months and years on end while the owners of the buildings try to find another use for them. If people in the community wanted to take over those pubs, the owners would be absolutely delighted, but that is not the case. Then we are told that the measure is about railway arches, railway sidings and wasteland.

I wish to relate one more anecdote. There is a piece of former wasteland in the ward I represent that has been wasteland for 40 years. For a lot of that time we have wondered what on earth could be done about it. It has now been transformed by a partnership between local residents, the borough council and the town council into new allotments and a new mini park. It is a brilliant scheme—the sort of scheme that everyone would look at and say, “It is a wonderful, south-facing site, superb for new allotments”. Why did it never happen before? That is because the resources were not there to do it. Why has it now happened? That is because it happened to be part of an area that was included in a housing market renewal priority area and we were given money to carry out environmental schemes as part of the housing market renewal work. It was possible because public money and public resources were put into it and made it happen. I hope that it will be a brilliant scheme for the next 100 years. There is no way on God’s earth that the local community in areas that are in the top 5 or 10 per cent of deprived areas will be able to raise whatever it costs—say, £35,000—to remodel that land completely and put up new fencing. The resources are simply not there; they are poor areas.

If that piece of land was situated in a rich suburban village, the community may have been able to renovate it, but having a system tht is useful only in richer areas full of retired professional people who can devote their time to such projects is no good. A system must apply across the country in the inner cities, suburbs and former textile towns such as the one where I live. This proposal has very little to offer to the kind of areas in which I live and represent on the council.

[Lord Fellowes of West Stafford]

My Lords, I would like to make a brief observation about this business of declaring private assets to be of community value by referring to something that occurred many years ago when there was a great scandal about ruthless landlords, such as Rachman and various others, and there was a public outcry. The result was a mass of legislation protecting the tenant. Of course, that was perfectly right and proper, but during this nobody thought to ask the question: why would anyone be a landlord? The result was a tremendous shortage of rental accommodation, which eventually had to be addressed by new legislation protecting a landlord’s rights.

Nobody seems to have asked why a landlord would volunteer to allow any of his assets, either buildings or open ground for sports activities, to be used if it immediately compromised his property rights. Some whose assets are already used by the public will find themselves in this spot, but many landlords will either withdraw the assets or simply refuse to allow them to be used in future. We must ask ourselves why owners would let their property be used if that immediately compromised their ownership, and somehow address that before the Bill becomes law.

[Lord True]

My Lords, I will briefly extend the remarks that I made on Tuesday—before I had to leave—on the potential costs of this measure. The noble Lord, Lord Greaves, also commented on that. The financial memorandum to the Bill says that the total cost of the measures in the Bill, on the heads of all local authorities in this country, will be £21 million, if I remember rightly. I am afraid that that is a grotesque underestimate. I referred to the burden that I believe that the compilation of a register might impose on my authority—two officers might translate, with overheads, into about £100,000. However, that is only for the routine management of a list.

I very much welcome the fact that my noble friends have placed a discussion document in the Library. I also welcome what my noble friend Lady Hanham said about restricting the ambit of the legislation and excluding some of the potential properties which some people are already beginning to think might be included. As has been pointed out, the discussion document relates to buildings which might improve social and environmental well-being and cultural activity. We have 8,200 buildings of townscape merit in our borough. Not all of these are residential premises—some of them are—but I can certainly envisage circumstances where communities might say, “We might want to have a bit of that if it ever comes up on the market”. You have only to think of that number to envisage the time that might be devoted to this matter while this worthy legislation beds down.

I hear what my noble friend has said about looking at how the measure works in the first two years, but in the first two years there is potentially a very considerable burden. We have an appeals system. Private property owners would be able to appeal to the local authority. Beyond the local authority, there would then be an appeal to an independent tribunal. Thereafter, if there is a compensation matter, private owners will have a right to appeal, and then there will be a right to appeal to an independent tribunal on a point of law against that review decision. I make no complaint about private owners having the right to appeal. Noble Lords will not be surprised to hear that I feel as uneasy as some of my noble friends who have spoken about the potential invasion of private property rights. Given the fact that this will end up on a point of law, case law will evolve, the measure will ultimately go to the courts and local authorities will have to set up open procedures. Regulatory committees will have to consider all these measures in the open and a substantial process of quasi-judicial activity will emerge. This will cost a lot of money, involve a great deal of time and officer time will be diverted away from neighbourhood planning, to which I would like to see it being devoted, into the mere compilation of lists. However, we have plenty of lists.

I hear what my noble friend Lord Shipley said about local authorities and I acknowledge that they have a responsibility in this area but we are already supposed to have asset management plans and asset management registers, and how bureaucratic they were. I was grateful to my right honourable friend the Secretary of State for reducing some of the bureaucracy in that regard. The fundamental problem here is that this is really emergency legislation. It provides for an emergency position. It all started with people being about to lose their post office or small shop, although serious potential problems of blight are involved, as the noble Lord, Lord Cameron of Dillington, said. A giant register is being sought of all potential assets of community value across every local authority in the land. As a result, like so much else in this excellent Bill, which as I said at Second Reading I believe could be a historic Bill, the measure will become sclerotic and have unintended consequences.

This is part of a tendency, begun under the previous Government but sadly continuing under this Government, of introducing Bills which are too large, take too long to progress and contain too many important measures. This issue of trying to preserve assets of community value, which is testing your Lordships’ ingenuity and potentially interfering with private rights, could have been well dealt with in a narrowly defined piece of legislation. It could have been dealt with in Grand Committee and we could have teased out the question. However, we are here; but I hope that my noble friends—not those on the Front Bench, but the people who manage the Government’s programme—will perhaps think again about some of theses massive and wide-ranging pieces of legislation that we face.

It is obvious that the Government will want some legislation along these lines, but we should not try to include everything. I agree with the noble Baroness, Lady Thornton, about railway land. We have a lot of it but putting it on a register will not actually release it for excellent community use, as my noble friend Lord Greaves said. If we want to deal with railway land—and, my goodness, we should—let us go after it with a specific piece of legislation rather than try to include it in this wide piece of legislation. I should like there to be a narrow definition; a lot of thought about how the administration of this legislation will go forward; and quite an eye to the costs of time, effort and potential division in the communities. I hope that between now and Report we can think further. My noble friend has been generous in the information she gave to the House and the time she has spent listening.

As to the compensation scheme, which I also have not mentioned, it is assumed that local authorities will simply pick up its cost. No one mentioned that. We are asked by our communities to list all these private assets, and then we have to pay for it. There is no help there.

My final comment is that I very much agree with what my noble friend Lord Hodgson said on Tuesday. He said that there are issues about the loss of community assets that do not relate to privately owned assets. A second Tesco is opening in my small ward. I mention Tesco because the noble Lord mentioned it. That opening will do more harm to the small shops in my ward than anything else envisaged in this Bill. Where are the planning powers of local authorities to deal with such matters? I do not find them in the pages of this legislation. Some of the things that we are trying to target in this chapter could be dealt with in better and improved planning provisions. Then we might be able to pursue some of the problems that my noble friend Lord Hodgson mentioned.

Rather, as I said at Second Reading, I should like the Bill to be thinner, less sclerotic, better targeted, and respectful of the rights and interests that noble Lords on all sides have mentioned.

13:00

[Baroness Hamwee]

My Lords, the noble Lord and I live in and have represented the same borough; he still does, and although I have not always agreed with him, I very much do so on this occasion.

As to bureaucracy and cost, is he as puzzled as I am about the notion of a list? If you are a member of a local community, you know what its assets are—I use that term broadly. The proposal to set up a list of community assets suggests something much more commercial and directed at people and companies who are not within the local community. Does the noble Lord share that view?

[Lord True]

I certainly have doubts as to whether we need a list of assets of community value and a list of things that are not of community value. We already have a lot of lists and a lot of local knowledge. As I said at the conclusion of my remarks, neighbourhood planning should lead to greater local awareness and involvement. It may be a better mechanism for releasing resources and it would be on a better timescale, because this is, essentially, emergency legislation and you have six months to save it. That is how it all started. Compiling the lists is extremely complex and would relate to any use to which any of the land could be put. It states in the discussion paper that the local authority could consider former or current use, any planning policies, any use for the asset that the nominator is proposing, community support provided by the nominator, any statutory provisions affecting the asset, or any alternative sites in the neighbourhood that could serve the same purpose. I wonder whether some of the people who drafted this Bill would care to volunteer to give their time to some of the local authorities in this country to prepare for and work on those kinds of lists.

[Lord Hodgson of Astley Abbotts]

I rise briefly to underline the point made by the noble Lord, Lord Cameron of Dillington, that once the shop or pub is closed the game is almost certainly over. It is certainly past half-time, and every month during which they are closed makes it less likely that they can recover. It is absolutely astonishing how quickly shopping and drinking habits change. I referred on Tuesday to my involvement with a pub company. We inevitably have a continuous refurbishment programme for our 2,400 pubs, involving putting in new lighting, carpets and so on. We have to go in and get out very quickly. If a pub is closed for refurbishment for a couple of weeks, people start to drift away. They know it is going to be reopened and that it will be better, because that is part of the programme, but you have to be incredibly quick about it. The noble Lord made a powerful point that we have to take into account when considering this matter.

Perhaps I may say to my noble friend Lord True that the arrival of Tesco damages not only in terms of shopping patterns but in the pricing of the beer and alcohol it sells, which undermines all local pubs because it sells virtually at cost price.

[The Earl of Lytton]

My Lords, this is such a complex part of what is in any event a complex Bill with a new concept of localism, but I confess that it is extremely difficult to know where to start on this chapter. I begin with the three words to which I should like to bring back the Committee’s focus—assets, community and value. Each word opens up a raft of complex and interwoven considerations. I am pleased that the noble Lords, Lord Cameron of Dillington and Lord Greaves, have brought forward this series of clause stand-part debates to deal with the chapter as it is important to see it as a whole.

On the question of assets, one might ask, “Whose assets?”. Are they land or are they services and facilities? The two are not the same. Are they intrinsic assets, are they activities or are they something that indirectly protects some other asset? Is it a current asset, a potential asset or a previous asset that has been lost? I do not need to say more, other than that it is always very difficult to turn the clock back. As to “community” as a term of art, in this part of the Bill one might ask: how local is it? How representative is it? What are its objectives? Is an objective stance being taken on behalf of the community? “Value” is a word with which I, as a practising valuer, am very familiar. What is the purpose? To whom is it of value? What is the time horizon and what are the constraints relating to it, including planning issues?

I turn to the points made by the noble Baroness, Lady Thornton. I spent the first seven years of my professional life working out of an inner city area. I spent the next four-and-a-half years working mostly in Greater London. I can relate to the issue of redundant land and wasteland. Even if they cannot immediately be used they have a negative effect by blighting the appearance of a neighbourhood. I wondered whether “asset” also meant the converse—the non-assets that detract. If so, we need to be much more careful about what we are defining.

Wasteland often relates to orphan sites that have somehow been left over. I alluded to this on Tuesday in connection with bits of rural verge. The same thing happens when urban land is built out. During the great expansion of the Victorian era, all sorts of things were left behind and no one knows who owns them. It may be that there is a case for adopting a sweeping-up principle but, if so, I would follow the dictum of the noble Lord, Lord True, that the issue is not for this Bill. It must be dealt with somewhere else.

However, perhaps the former statutory undertaker on redundant utility property land and that owned by charities, religious foundations and government agencies should have a specific social responsibility to make that land available to the community as a first choice. I point the finger at the privatised utilities in that respect. But that raises all sorts of issues, because privatised utilities are now large companies. They may be owned by French conglomerates or Scottish power companies. It is difficult to turn the clock back because the horse has gone from the stable. It does not matter what we do about the stable door, we cannot deal with that problem. As has been mentioned before, peer pressure or government pressure on companies may procure better social responsibility concerning some of that land. Again, we cannot put that in the Bill

The noble Lord, Lord Shipley, touched on a matter which I first thought might be dealt with under Section 106 of the Town and Country Planning Act: that the future use of land can be governed by legal agreements. The problem is that the legacy of past practice did not foresee where we are now. Again, it may be difficult to turn the clock back. It is possible that what we are considering is not relevant under planning law. There could be a lacuna here that we have to deal with.

I cannot remember which noble Lord mentioned Ministry of Defence land. Try getting the Treasury on side. A little thing called best value and getting the proper return for the taxpayer is trotted out. If any Member of your Lordships' House has a sure-fire way of getting hold of the Treasury, I have another proposition that I was not going to float. The noble Lord, Lord Cameron, knows what it is. If you give a douceur for offering land or assets to the community—a tax credit or tax break—you might find people making an orderly queue instead of running a mile. I have no confidence that Her Majesty's Treasury will be brought on side for that. I am also confident that it lies outside the scope of the Bill.

A county officer of parish and town councils told me not long ago that he had been approached by a parish about whether this chapter, once enacted, would enable a parish to bid for land where the recalcitrant owner was threatening to sell his paddock to Travellers. I dare say that that was a wind-up by the owner, but it brings into question whether such negatives are part of the concept of asset or something different. I think that the parish was told that the council did not think that the Bill was the right vehicle for that. I point out that relationships are not necessarily always lovely between private individuals, as owners, and communities, in either urban or rural areas. I cannot help pointing out the possibility of what I can only describe as sharp practice, where a local commercial interest gets alongside a community interest with the intention of collaborating over the ultimate division of spoils of a land development project. That is not as far-fetched as one might think. It operates as, “You, the community interest, use your neighbourhood planning and asset nomination rights and we, the commercial interest, will put in some funding and technical backing”.

[Lord Avebury]

My Lords, I do not want to interrupt the thread of the noble Earl's argument, but did I understand him to say that it was always contrary to the interests of a community for a landowner to offer to sell land for the purpose of building a Gypsy site on it? Is that invariably contrary to the interests of the community?

[The Earl of Lytton]

My Lords, absolutely not. I was going to go on to say that there are many examples where owners take a benevolent view towards the community. It has already been highlighted that they might take a much more cautious attitude in future. No, I am thinking of downstream of the Bill when there are neighbourhood planning powers vested in a community, a community right to nominate and potentially unpleasant practices.

I acknowledge the desirability of communities being able to acquire assets that are important to them. I made that point at Second Reading. That is a bit different from a facility to cherry-pick assets that are not or have never been in community use or have been provided on a voluntary basis. The mechanism is wrong. The visible benefit of the top of the iceberg that we see gleaming above the water masks a much larger lump lurking below, which we need to consider carefully.

On Tuesday, I enumerated various points where I thought that authorities preparing lists would have their work cut out. I add only one thing to that on Clause 81, which concerns the publishing of the lists. Have the privacy and confidentiality issues been considered?

I come to the question of values. As a property valuer, I must suggest that that is not without consequences. I will be brief. Uncertainty is very damaging to property values. We should not await with eagerness the first case of a claim based on a lost sale.

I shall not cover the excellent and helpful paper that the noble Baroness has placed in the Library, but I shall write to her about that, because it does not cover all the things that it ought to. In particular, I mention compensation. The Bill does not provide for an automatic linkage to what is a long established compensation code under the land compensation Acts. That begs the question of whether it is intended to include the same checks and balances that are tried and tested or to introduce something else. I would welcome her comment on that.

[Lord Patel of Bradford]

I genuinely think that this stand part debate has got to the crux of many of the amendments laid before us. It has been extremely useful. It has helped us to explore and clarify many misconceptions as well as real issues. I thank the noble Baroness for laying the note in the Library and for the many meetings that she has offered to have with us. As my noble friend said, I think that we need to have a meeting with some of the groups that have lobbied us to have them round the table and have their views heard.

We agree with many things that the noble Lord, Lord Cameron, and others have said, especially about the bureaucracy in this chapter and the rest of the Bill. My noble friend Lord Beecham pointed out one example. Clause 81(6) states:

“In this section ‘free’ means free of charge”.

I hate to say this but I would almost be willing to let the noble Lord, Lord Greaves, have the red pen and have a go at this chapter because he could probably delete some of the nonsense and actually make it workable. That is the key to this—we endorse what the Government are trying to do in this chapter; the intentions are right. The key issue, as highlighted very clearly by the noble Earl, Lord Lytton, is about definitions. What is a community asset? There are different views around the country—for example, in rural areas. What we think a community asset is in Bradford clearly differs from elsewhere. It is not just about pubs and post offices but about the use of other community assets, such as land, where the community can transform these places.

The noble Lord, Lord Jenkin, asked a very important question very early on in the debate about why we need this to do what we have already done in Manningham Mills in Bradford. It is a really important and symbolic step forward, which, if introduced, could effectively provide an additional mechanism for community groups to acquire their own assets, while increasing their confidence, independence and capacity to deliver valuable services in the area. This is really important. We underestimate the creativity, innovation and cost-effectiveness that exists there and this would be a mechanism that would allow organisations such as Locality, which has been working in this area for some 20 years, to work with community groups and give them support to do this. We only have to look at the noble Lord, Lord Mawson, who could probably spend the next two hours telling us how to transform community assets into viable, lively and effective services.

Let us not throw the baby out with the bathwater. The key intention and thrust behind this, in terms of supporting communities to acquire and develop assets and to turn blight into benefit by providing a training centre, community meeting space, young people’s activity or social enterprise start-up centre in disused buildings, is a real benefit. I know the noble Lord, Lord Greaves, is going to ask what difference this makes but—

[Lord Greaves]

It is a slightly different question. I am stimulated to stand up by the mention of Manningham Mills. I remember being taken there by an auntie who lived there when I was a small lad to look at the steam engine driving the mills—an absolutely wonderful sight. I am not aware—perhaps the noble Lord or his colleague will know—who provided all the resources and finance for that scheme. As he knows, I am passionately in favour of the kind of schemes he is talking about. In general, do they not require a great deal of resources of different sorts, whether it is money or people or whatever, from either local or national government, or from other organisations of one sort or another? Without that it is very difficult indeed in such communities to achieve such schemes. This Bill does not do that.

[Lord Patel of Bradford]

I take on board the point the noble Lord is making but I think the Minister would agree—going back to the community right of challenge—that this is about partnership. Manningham Mills was a big partnership with Urban Splash and a number of developers, but with the community as well. It absolutely needs the community. There are small communities that can raise £30,000, £40,000 or £50,000. I have seen it happen. If they are given the opportunity, they can take over small buildings or bits of land and change them. I completely take on board the anxiety about landowners who currently allow the use of their fields for cricket facilities but may become anxious about that, and we need clarification on that. I hesitate to say that it ought to be in regulations, but we absolutely need clarification on these issues. My heart missed a beat when the noble Lord, Lord Shipley, said that the local cricket pitch could go. That absolutely must not happen, despite the injuries. I look for reassurance from the Minister that we can address some of the issues that noble Lords have rightly raised—they are valid points—but I hope we can trim this down to the core, where we do not lose the gem in this; which is giving that confidence and a symbolic way forward for communities to really say, “Here is an opportunity for us to get a building we have been looking at for years on the list. We are going to get together, if need be, with local private partners, and have an opportunity with this”.

[Lord Greaves]

I am entirely in favour, as the noble Lord is, of having partnerships with the private sector and getting spin-off from that; and indeed have experience of it. That is fine. However, the noble Lord talks about cricket pitches—he will be aware of the cricket ground at Park Avenue in Bradford, which used to be a very fine Yorkshire county cricket ground and is now just used by a local team. It must be in danger, in the future, of being developed or of no local team being able to keep up the expenditure on the large ground—all the terracing and so on. I believe it belongs to Bradford Council anyway, but how will putting that on an asset register help to save it? Surely what is required is for the project and scheme to be put together that will do something about it. They might save the football ground as well, while they are about it.

[Lord Patel of Bradford]

It is ironic that this Bill could be the trigger to sort out Bradford Park Avenue, because a team called Wibsey Park Chapel plays on the ground and I have played for them for the last two years. The noble Lord is absolutely right that there are issues about not being able to maintain this historic ground. If it got on a list, I bet my bottom dollar a number of groups would get together in the community, get the money required and have this historic ground restored; and you would see cricket on there on a regular basis all the year round. That is a really good example and it is what would happen. At the moment it is in the hands of the Friends of Park Avenue, who feel like they are not the friends of Park Avenue when they see it is falling to bits. You are absolutely right: the cricket team is struggling to keep it going, because it does not have the funds. If it was opened up more widely, a number of other cricket clubs would get involved.

[Baroness Hanham]

My Lords, that was a good debate. We had a very long time for it, and quite a lot of it had very little to do with the centre-point of the Bill—we roamed pretty widely, near to the subject, but also away from it—but I return to the points I made when we last discussed this issue the day before yesterday. We are looking for a simple way of ensuring that local communities can have an opportunity to try to put together a business case and purchase a facility in which they have a particular interest if it comes up for sale. I shall not try to answer all the points made today, some of which will come up again later. This debate has gone right across this clause, but various amendments cover other clauses and I shall respond to them then. I shall be sympathetic to some of those amendments but not to others. As I also said last time, there is a terrible danger that I will go back over what I have said before. As noble Lords said, I have put in the discussion document, and at our previous sitting I gave a pretty good indication of the sort of areas that the Government are considering. I think that I have also given a pretty good indication that we are not closed to thinking about possible unintended consequences. Many of the speeches today raised the question of unintended consequences. I think that a number of those consequences are completely outside the scope of the Bill. We want to narrow the debate and return to the Government’s starting point which, as I said, was precisely to try to deal with situations where facilities simply vanish from the community’s sight because it cannot do anything about it.

I have taken notes throughout the debate and have to say that so many separate points have been raised that I will need an opportunity to consider them. As I said, I am happy to discuss these issues—some for the first time, some not—with noble Lords. We want this part of the Bill to be right. We want it to do what we believe it should do, and we do not want people to spend the next 10 years of their lives trying to sort out what it means and does not mean. As I said, I am happy to have more discussions about this to see how we can look at the issues further, if necessary.

13:30

One matter that I want to address is compensation. We have included compensation for loss of value between a notification and a sale, and we expect the general rules to apply in quantifying this, as with compulsory purchase orders. No final decision has yet been taken on it but I think we can assume that that is roughly what will happen.

We are going to come back to this issue after we have had a break and we will answer more of the points then. As I said, I am listening very carefully to what has been said but, without notice of some of the points that have been raised, I do not think that I can answer them at this stage.

I thank everyone who has contributed to the debate. I assure all noble Lords that every single point that has been raised will be taken into account. I shall endeavour to talk to noble Lords and give them answers before the next stage, or I shall talk to them and not give them the answers, in which case those points will reappear at the next stage. In the mean time, I hope that the clause will be agreed.

[Lord Tope]

My Lords, I am very grateful for the noble Baroness’s offer of further discussions, negotiations and consideration. I think that all of us in your Lordships’ House who have taken part in the Bill over the previous five days in Committee have very much appreciated the—dare I say it?—conciliatory tone from the government Front Bench and their willingness to discuss, consider and, if agreed, make changes to the Bill at the next stage.

However, as we have just found out today when the next stage will be, I ask the noble Baroness how she envisages that we will achieve that further discussion and consideration, given that the last day in Committee will be the day on which we go into recess and the first day of Report will be the day that we come back, the intention being that Report will be completed in the two weeks in which we sit in September. I do not doubt for one moment the sincerity with which these assurances and offers have been made. My concern, which I suspect will be shared on the Front Bench, is how that is going to be achieved between 20 July and 1 September, the day on which amendments have to be tabled for the first day of Report. I suspect that there is no answer to that but we have to find one.

[Lord McKenzie of Luton]

My Lords, I endorse what the noble Lord has just said. We increasingly have concerns about the timing of the process. We are doing everything we can to make sure that we make progress, but there is an issue with trying to resolve some of these matters when the House is in recess. Frankly, some Ministers will be away, and writing to everyone will be more difficult when officials are also likely to be away with their buckets and spades. If we want to get the Bill right, I urge the noble Baroness to consider that point.

[Baroness Hanham]

My Lords, it is not for me to consider. As the noble Lord knows, government business and the timing of that business are dealt with by the usual channels. That does not fall within my remit at all. We have three weeks left with virtually two days a week to be spent on the Bill. Somewhere within that time people will, I hope, come together and we will be able to discuss the issue. I just make the point that I have had several meetings and I am very happy to extend the invitation to those meetings to the Opposition.

[Lord Beecham]

My Lords, on a different point, the Minister referred just now to compensation, as she did on Tuesday. I have two linked amendments on that issue in today’s Marshalled List that we shall come to later. Have I missed an amendment on this that the Government have already tabled? I do not see a provision in the Bill about compensation, other than that an authority may make compensation available. Has an amendment been tabled? If not, is it the intention to table an amendment about it?

[Baroness Hanham]

My Lords, the noble Lord is right. I suspect that the intention is to put something in regulations but I shall check that and let the noble Lord know.

[Lord Cameron of Dillington]

My Lords, I thank noble Lords for what I thought was a very good debate. I want to make it clear that, unlike the noble Lord, Lord Greaves, I do not want this part of the Bill to disappear; I want it to work. I want it to save pubs, shops and some community spaces. I accept that there is more to life than pubs and post offices, and I totally accept that communities should get involved with their open spaces. I am not sure about railway sidings—that is obviously a very difficult matter which I am afraid is beyond me—but clearly it does not really belong in this Bill.

However, if wasteland and other sites are owned by public bodies, as the noble Lord, Lord Jenkin, said, there is nothing to stop the community getting together now and trying to buy a particular site. If it is owned by a private person, they can also make a bid, as is being proposed. As I said, under Section 15 of the Commons Act 2006 people can make a bid to have a site declared as a village green. However, I still think that the real danger to an existing community asset occurs with a change of use. That applies to the possible cricket pitch of the noble Lord, Lord Shipley, or his MoD sale for business development. I am not sure about the demolition of the pub. I always thought that you had to get permission to demolish a pub. I am told that you do not; I accept that. That may be an exception but there is probably nothing that any legislation can do to stop that in any case.

As I said, I do not want this part of the Bill to disappear. I want it to work, but there is also no doubt in my mind that the chapter as currently proposed is not the right answer to saving community assets.

Clause 74 agreed.

[The Chairman of Committees (Lord Brabazon of Tara)]

My Lords, before we move on to the lunch hour business, there are about a dozen amendments which have already been spoken to and it may be for the convenience of the Committee if we deal with those now. However, if any noble Lord wishes to move one of those amendments, we must stop immediately.

Clause 75 : Land of community value

Amendments 136ZZB to 136ZD not moved.

Clause 75 agreed.

Clause 76 : Procedure for including land in list

Amendments 136ZE and 136ZF not moved.

House resumed. Committee to begin again not before 2.38 pm.

Supply and Appropriation (Main Estimates) Bill

Thursday 7th July 2011 Lords Chamber

First Reading

13:38

The Bill was brought from the Commons, endorsed as a money Bill, and read a first time.

UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011

Thursday 7th July 2011 Lords Chamber

Motion to Regret

13:38

Moved by

[Lord Avebury]

That this House regrets that the UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011 (SI 2011/1293) changes the law that applies to appeals that have already been lodged.

[Lord Avebury]

My Lords, I am very grateful for the opportunity to discuss this Motion, which relates to an order that brings into effect Section 85A of the Nationality, Immigration and Asylum Act 2002, inserted by Section 19 of the UK Borders Act 2007. The title of Section 19 is “Points-based applications: no new evidence on appeal”, and that is a succinct description of its effect. The general rule that applies to immigration cases is that the immigration tribunals have power to consider any evidence relevant to the substance if the UKBA decision is under appeal, except in entry clearance cases—that is, cases relating to applications from abroad. In such cases, if there is a new development, the individuals have to make a new application to UKBA.

Section 19 makes provision for a new exception: all points-based system cases dealing with people either coming to or remaining in the UK for the purposes of work or study. A good deal was said about the substance of this section in the debate in Committee on the Bill which became the UK Border Act 2007, although there is no point in recapitulating the arguments against it that were deployed in both Houses, including in your Lordships' Grand Committee, on an amendment which I moved on 1 July 2007. If anyone is interested, it starts at col. GC 70, but I am afraid that the arguments are now only of historical interest.

In this short debate, I invite your Lordships’ attention to the specific reason for this Motion: namely, what I consider to be the unlawful retrospective effect of the commencement order. On Thursday 19 May, the immigration Minister, Damian Green, made a Written Ministerial Statement, announcing that this change would come into force the following Monday, 23 May, and advancing as an argument that around two-thirds of successful points-based system appeals were those at which further evidence had been submitted after the dismissal of the initial application. At some point on Friday 20 May, the commencement order was placed on the website www.statutelaw.gov.uk and printed copies were available in Parliament some time on that day.

There was hardly any time for your Lordships or Members of another place to consider the merits of the order or its lawfulness, let alone to consult with persons who might be affected by it or their legal representatives. On the Localism Bill, we have just had a discussion on the unwisdom of allowing discussions on the further edges of that Bill to be channelled into the Recess, the only opportunity between the last sitting day and the first day that we come back—it is a similar case. Your Lordships are not being given adequate opportunities for discussions on what may be very important details or of consulting with outside experts or lawyers on the way in which these matters are being dealt with.

This is not the way to treat Parliament and I would be grateful if the Minister could explain the reason for such unseemly haste when Section 19 has been lying unused on the statute book for the past four years, during which time six commencement orders relating to other sections of the 2007 Act have been approved by Parliament. It could not have been for the reason sometimes given for orders changing immigration law being brought in with little notice, which is to prevent a spike in applications before the change comes into effect. In this case the only persons affected were those who had already received a refusal from the UK Borders Agency and had either lodged an appeal or were within the 10-day working window for deciding whether to lodge an appeal.

The Immigration Law Practitioners Association, ILPA, wrote to UKBA protesting about the lack of notice and, in its reply, UKBA said:

“The order is not required to be laid before Parliament and it is not subject to the 21-day rule, as such no parliamentary conventions have been ignored in the introduction of this measure”.

No doubt that is true, but your Lordships still have the right to consider these orders, by tabling a Motion before they come into effect, as I have done. I respectfully suggest that, to table these Motions on a Friday when generally neither House sits in the hope that no one will notice them on Monday when they arrive for a busy week, is a sneaky way of preventing any parliamentary scrutiny. This case is not only an insult to Parliament, but it creates major problems for the affected applicants, their legal representatives and tribunals.

Looking at the order, the new provisions on evidence do not apply to appeals that were part heard on 23 May, but they apply to appeals that were pending before the tribunal on that date; in other words, when a person has lodged an appeal and is waiting for it to be heard. The gravamen of my Motion is that it is a violation of the principle of legal certainty when a person has gone to the trouble and expense of lodging an appeal on one legal basis only to find the rug pulled from under their feet by a change in the legal basis, which has come into effect without warning or notice. Indeed, they would have had every reason to believe that, as Section 19 had been dormant for the past four years, they would be very unlucky if it suddenly came to life during the interval between the refusal of their application and the hearing of their appeal. Such a person may have concluded or may have been advised that their prospects of an appeal succeeding were good because there was substantial new evidence available, but they would have those expectations dashed because that evidence was instantaneously disqualified.

We are advised by ILPA that the terms of the order are not lawful. It argues that unless the language clearly indicates a contrary parliamentary intention, a statutory provision has to be construed as not interfering with existing accrued rights. There is a presumption against retrospectivity which can be displaced only by clear statutory language and there is nothing in Section 19 or in Section 59 of the parent Act 2007 dealing with commencement that displaces the presumption in the case of Section 19. It is particularly telling that Section 59 displaces the presumption in the case of other sections of the Act, such as Section 26.

Without going through all the consequences of what Section 19 will mean in practice, there is one on which I seek an assurance from the Minister. This is the refusal of appeals on the grounds that mandatory evidence is missing or faulty. UKBA has issued a notice to its consultative forum, the employers’ task force, stating that a validation stage is being trialled in which applicants are contacted when mandatory evidence is missing and given the opportunity to provide it before the decision is made. Those with pending appeals on the date on which this order came into effect had not had the benefit of that validation stage and I ask my noble friend to check that none of them had their applications rejected solely on the ground that a mandatory document had not been produced. As we all know, when dealing with complicated applications, it is easy enough to omit accidentally some piece of information that is required and we would expect to be reminded of the omission rather than to be told that the service requested would not be granted to us because of the omission.

Entry clearance appeals have always been held under the law which applied when a negative decision was made by UKBA and before that by the Home Office on the application, going right back to the original immigration Act 1971. Not surprisingly, challenges to the lawfulness of this order are coming before the courts, a situation which could have been avoided if the Government had made transitional provisions for the small number of points-based system cases where the application had been refused but the appeal had not yet been started when the order came into effect. The wording of the order could simply have been amended so that it applied to appeals against decisions made on or after 23 May.

For the sake of this handful of cases, the Government are breaching a fundamental principle of law and it is the duty of Parliament to warn them of the enormity of what they are doing. We ask them to lay orders in proper time to allow Members to judge whether they are lawful and never again to scurry them in furtively over a weekend. We ask them never again to fail to make it clear in primary legislation where it is the intention to make the commencement of a section or sections retrospective. I beg to move.

[Baroness Hamwee]

My Lords, I will not repeat the arguments that my noble friend made so powerfully. I have one point and one question for the Minister. My noble friend mentioned the validation pilot. Before hearing about that, it struck me that the problem may lie in a lack of clarity about the evidence required, and in poor initial investigation. Can the Minister say anything about that?

I will not talk about making rods for our own back, but as a country we owe it to those who are applying for visas to be as clear as possible about what is required. We have talked in many debates about immigration and the importance of warm feelings on the part of other countries towards this country—the reputational area. I will mention that in this context.

[Lord Judd]

I will follow on from that sentiment, but first I feel that it is important to congratulate the noble Lord, Lord Avebury, on raising this matter. In this House, there is sometimes—shall I say?—exaggerated and even slightly operatic flattery, but it is impossible to overdo our appreciation of the noble Lord. Throughout his parliamentary career, he has been a model of what disciplined, detailed scrutiny is about. We may have big and emotional debates and focus on sensational issues, but the noble Lord has demonstrated that for Parliament, doing scrutiny well requires a great deal of detailed application and thoroughness. He does not easily let points of principle escape his attention, and we should all be grateful to him.

The issues on which it would be important to hear comments from the Minister include retrospective legislation of any kind. I deprecate retrospective legislation because on the surface it always casts doubt on the principle of legal certainty. From that standpoint, there has to be a very special case for anything that involves retrospective legislation.

My second point is one that the noble Baroness has just emphasised, namely that we spend a lot of time preaching to the world about the absence of the rule of law. Immigration policy puts us in the front line of relationships with people from other countries. It is terribly important that in our policy we demonstrate an absolute commitment to the rule of law. There is a perception—we could debate this more fully on another occasion—that what we take as important in the general administration of law does not always apply to immigration; that the task of immigration is to say no and to get people to go home rather than to find the truth behind the application; and that it is not to put ourselves in a position to understand a person’s desperate plight and to determine that no stone shall be left unturned in ensuring that justice is fulfilled in their case. From that standpoint, what the noble Lord has put before us today is an applied illustration of why it is so important to take these matters seriously. I hope that the Minister will deal fully and convincingly with what he has put before us.

[The Lord Bishop of Ripon and Leeds]

My Lords, I support the Motion of the noble Lord, Lord Avebury. Like the noble Lord, Lord Judd, I thank him for his persistence on this issue of justice for those coming to or remaining in this country, in particular to work or study. That includes a significant number of people who come at the invitation of churches and other faith communities, as well as academic bodies, to be a part of the life of churches, universities and so on in this country.

The points-based system has proved problematic for many long-established relationships with other countries. It is in some danger of causing the lack of warmth to which the noble Baroness referred moments ago. The order adds to the perception that we are more interested in obtaining decisions in favour of UKBA than in achieving justice for applicants.

I stress again the point made by the noble Lord, Lord Judd. Why do we move so fast on immigration law? Why does it appear to be different from other laws that we consider in this House? I would like the Minister to indicate as clearly as she can what we are doing here. What we should be doing is seeking justice for claimants based on all the evidence that we can possibly have at a particular moment. Any legislation that looks as though it is seeking to exclude available evidence must be dangerous and problematic. The order also appears to ignore the fact that many of those applying have little in the way of resources, and that new applications, which would be possible, will add significantly to the costs.

There ought to be an absolute rule, first, that our legislation is not retrospective, and, secondly, that commencement orders such as this should provide proper notice to those affected. As the noble Lord, Lord Avebury, indicated, this order applies to appeals already in the pipeline, and there was only a weekend between it being published and coming into effect, so it fails the test on both counts. I, too, regret this unnecessary threat to justice being done and being seen to be done for those applicants whom it affects.

[Lord Hylton]

My Lords, the noble Lord, Lord Avebury, made a very strong case, and we are all grateful to him. I will ask one question. Will the Minister tell the House how many appeals were still pending on 23 May of this year? That would be very helpful in indicating the scale of the problem.

[Lord Rosser]

My Lords, I, too, thank the noble Lord, Lord Avebury, for tabling this Motion of Regret and enabling us to probe the reasons for the Government’s actions in relation to the retrospective effect of this commencement order, which brings into force Section 85A of the Nationality, Immigration and Asylum Act 2002, inserted by Section 19 of the UK Borders Act 2007. The noble Lord, Lord Avebury, explained in some detail the background and significance of Section 19 of the 2007 Act. I do not intend to repeat all the ground that he covered, although inevitably there will be some repetition, for which I apologise.

The noble Lord raised the issue of the retrospective effect of the commencement order and, as a result, its legality. Section 19 is entitled “Points-based application: no new evidence on appeal”—which is exactly what it is about. As the noble Lord said, in immigration cases the general rule is that immigration tribunals can consider any evidence that is relevant to the substance of the UK Border Agency’s decision, including evidence from after the date of the decision.

An exception to this is entry clearance applications, and Section 19 makes provision for a new exception; namely, points-based-system cases which relate to cases about people coming to or remaining in the UK for the purposes of work and study.

14:00

As the noble Lord, Lord Avebury, said, Parliament had no proper opportunity to consider the order since the change was announced on a Thursday in May this year to be effective from the following Monday. Such haste creates difficulties for applicants, their legal representatives and the tribunals. Why such haste—not for the first time—was necessary in this instance is not clear. As has already been said, sometimes immigration provisions are brought in with little notice to prevent a sudden increase in applications before the change, but I assume that would not have applied in this case as the only people affected by the change were those who had already received a decision from the UK Border Agency and had lodged an appeal or were deciding whether to appeal within the allowable period of 10 working days.

Under the commencement order we are discussing, the new provisions on evidence do not apply to appeals that were part-heard on 23 May 2011, but they do apply to appeals that were pending before the tribunal on 23 May 2011; namely, where the person had lodged an appeal and was waiting for it to be heard. This is the issue that this regret Motion is about. The rules have suddenly been changed so rapidly and so quickly, without warning and without notice, that a person who concluded, or was advised, that their prospects of success on appeal were good, because they could challenge the reasons for refusal with new evidence, suddenly finds that their prospects of success are poor because they cannot now produce that new evidence. As I am sure the Minister must know, a clear view has been expressed by the Immigration Law Practitioners' Association that the terms of the commencement order are not lawful and that it is an abuse of the principle of legal certainty. It argues that unless the language clearly indicates a contrary parliamentary intention, a statutory provision has to be construed as not interfering with existing accrued rights and that there is a presumption against retrospectivity which can be displaced only by clear statutory language, which cannot be found in Section 19 or in Section 59 of the UK Borders Act 2007, which deals with commencement.

I am not a lawyer, and I am not qualified to offer a legal opinion, but I understand that challenges to the lawfulness of the commencement order are likely to be coming before the courts. I would like to put some specific points to the Minister to which I hope she will respond. The first is a question that she has already been asked: what is the Government's estimate of the number of people who had lodged an appeal before the tribunal on 23 May 2011 and were waiting for it to be heard? What is the Government's estimate of the maximum number of people who on 23 May 2011 could still have been deciding whether to appeal within the allowable 10 working-days window? Why was it necessary to announce the change on a Thursday and make it effective just four days later, including a weekend, on the following Monday? Why could it not have been implemented over a timescale that would not have left people who had gone to the time and expense of lodging an appeal on one basis finding that the legal basis had been changed without warning and without notice? Is it the Government's intention to follow the practice on implementation in this order in future, or do they intend to give Parliament a longer period of time to consider the implications and legality of such orders? Is it the Government's intention to make clear in future Bills that some measures will be introduced with a retrospective element so that this issue can be debated?

I appreciate that it is unlikely that the Minister will disclose the legal advice the Government received on whether the retrospective effect of the commencement order is lawful, but can she confirm in words of one syllable that it is the Government's judgment that this commencement order is not open to successful challenge in the courts? I look forward to the Minister’s response to the points I have raised and to those raised by other noble Lords, not least by the noble Lord, Lord Avebury.

[The Minister of State, Home Office (Baroness Browning)]

My Lords, I thank my noble friend Lord Avebury for the opportunity to debate this Motion, and I am also grateful to him for correspondence relating to this debate that he has made available to me. A number of points have been raised, and I will do my best to deal with the issues to which they give rise.

The Motion deals with a distinct subject: the manner of implementation of Section 19 of the UK Borders Act 2007. As we have heard, the UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011 commenced Section 19 of that Act and introduced a new Section 85A into the Nationality, Immigration and Asylum Act 2002. That section introduces a restriction on the new evidence that can be presented at points-based system appeals so that only evidence considered by the UK Border Agency caseworker can be taken into account.

The Government believe that migration has enriched our culture and strengthened our economy, but that it must be controlled so that people have confidence in the system. In today's global economy, we need to be able to attract the best and the brightest to ensure that our companies remain competitive and our standard of living remains high. We have already pledged to transform the immigration system so that it does the best by the public. People have a right to know that the Government are protecting their jobs, keeping a firm grip on those who come here and sending home those who break the rules.

The UK Border Agency is committed to improving the quality of initial decision-making across all case categories, overseas and in-country, and has already made good progress with a dedicated programme of work under way to make such improvements. However, where evidence is not supplied with an application, caseworkers are unable to take it into account. They are then seeing their decisions overturned on appeal when appellants submit new evidence. It cannot be said that the PBS application process is complicated. A customer satisfaction survey found that around 85 per cent of applicants are clear about what evidence they need to provide and that up to 92 per cent of applicants find the application process easy to understand. I particularly draw that to the attention of my noble friend Lady Hamwee.

The Government commenced Section 19 to help ensure that applications, and therefore decisions, under PBS are made correctly first time. Before Section 19 was commenced, 63 per cent of allowed PBS appeals were allowed because appellants were submitting new evidence at the appeal hearing that was not provided to the UK Border Agency with their application. Such documentary evidence, for example, relating to a person’s level of funds or demonstrating their English-language ability, will be taken at face value by the immigration judge and cannot be validated by the UK Border Agency. There simply is not time when that new evidence is submitted at the appeal stage. I stress that that sort of information is required at the time the application is made and should not be submitted at a much later date as part of an appeal procedure where no validation can take place.

Section 19 will also help to end unnecessary appeals. Applicants should submit all necessary evidence to allow the caseworker to reach the right decision in the first instance. An expensive and publicly funded appeal is not the remedy for those who fail, deliberately or otherwise, to submit the required evidence with their applications in the first place. Evidence can continue to be presented at PBS appeals where it is in support of a human rights, race relations, asylum or EEA ground of appeal, is provided to prove that a document previously submitted is genuine or valid and is provided in support of grounds that do not relate to the acquisition of points.

The Government carefully considered the best way to introduce this legislation and decided to apply it to all appeals heard for the first time on or after 23 May, the date of commencement. Doing so creates a clear cut-off point.

The view that introducing the legislation in this manner is unfair on those who have already lodged their appeals, because they did so in the expectation that they would be able to introduce new evidence at the appeal stage but are now prevented from doing so, is contrary to the way in which the law was established in the first place. We considered very carefully the manner of introduction of this measure, which is shown in that there are transitional arrangements included in the commencement of this provision. Any appeal where a hearing has already taken place or part heard at the First-tier Tribunal will not be affected by this measure.

I would remind the House that this provision has been on the statute book since October 2007, with a clear intention that it would be implemented once PBS became established in order to give applicants and legal representatives the chance to become familiar with the process. The provision is widely known among applicants and legal representatives, and it can hardly be a surprise that the Government have now chosen to implement it.

The legislation as it stood prior to 23 May did not entitle applicants to delay submitting evidence until the appeal stage. It is the applicant’s responsibility to submit any and all relevant evidence with their application. I would remind the House of the statistics that I gave at the beginning of my remarks. Applicants say that it is easy to undertake that exercise and to understand the paperwork involved. Supplying this information at the time of application will enable caseworkers to make the right decision in the first place and to avoid that unnecessary process of expensive appeals funded by the taxpayer.

The Immigration Rules, the UK Border Agency website and associated policy guidance make it clear that all relevant evidence should be submitted at the time of application. The commencement of Section 19 does not change what is already expected of applicants. The immigration system’s integrity relies on UK Border Agency officials being able to conduct all necessary checks on applications to ensure that the right people are allowed to stay in the United Kingdom. It is vital that all relevant information is given in order to enable them to perform these checks. Simply presenting additional information at appeal, which effectively circumvents those checks, is not acceptable. The practice needs to be stopped as soon as possible.

My noble friend suggests that a better way to have implemented Section 19 would have been to exempt all those who had already lodged their appeal. I realise that this may sound reasonable but I believe that it would in practice have created confusion in the system. A person refused under PBS has 10 days to lodge an appeal. Two persons refused on the same day a week prior to 23 May could have lodged an appeal either side of 23 May, one being caught by the legislation and the other not. Implementing in that way would have led to considerable confusion on behalf of appellants and the courts.

Several noble Lords have asked for precisely the number of people in that situation on 23 May. I do not have the exact figure and I will not give a guesstimate. I think that the House would like the exact figure: I promise to write to noble Lords and to lay a copy of that figure in the Library of the House.

The UK Border Agency is working hard to improve the overall appeals system. The commencement of this legislation is just one element in an overarching appeals improvement plan which, through a mix of operational changes and longer term policy solutions, focuses on reducing the number of appeals in the system, on improving representation and organisation, and on working in partnership with Her Majesty’s Courts and Tribunals Service to modernise the system over the next 12 to 18 months. For example, we are committed to embedding a right first-time, every-time approach to decision-making in the agency and we use information we learn from appeals heard to make continuous improvement to our processes. We have already increased representation at appeals from 74 per cent last year to 83 per cent so far this year by making more flexible use of our resources and increasing productivity.

14:15

Prior to this debate, my noble friend raised some specific issues with me, which have been raised by other noble Lords. It might be helpful to the House if I touch in some detail on those points. As I have said, this provision has been on the statute book since October 2007 with a clear intention that it was to be implemented once a points-based system had bedded down. For that reason, we do not consider that this has been rushed in. The commencement order exercises a power approved by Parliament to appoint the day on which Section 19 should come into force. The commencement was publicised through the UK Border Agency website and by proactive communication with stakeholders and organisations—for example, via the points-based system employers’ taskforce.

The principle of legal certainty requires that the law must be accessible and, so far as possible, intelligible, clear and predictable for those who are subject to it. As already mentioned, this measure has been around since 2007. We know that applicants were aware of Section 19 as it is subject to some internet blogs. We know that in 63 per cent of the appeals that are allowed, new evidence is used that should have been provided at the application stage. That evidence has not been verified by the UK Border Agency and we believe that appellants have sought to circumvent our checks in this manner. It was important that this practice was ended. It is not right that applicants should rely on an expensive and publicly funded appeal to correct errors in their applications. Perhaps I should repeat that the Immigration Rules, UK Border Agency website and associated policy guidance make it clear that all evidence should be submitted with the application. The commencement of this section does not change that requirement.

On transitional arrangements, I have indicated that where a person had a hearing or part-hearing of their appeal prior to 23 May, the effect of the commencement order has an impact only on those who have not yet started their appeal. Those who have are not affected and will be able to complete that process.

Legal challenge has been raised, particularly by the noble Lord, Lord Rosser. It is not for me to say who will legally challenge this order but, unlike other statutory instruments, commencement orders are not subject to parliamentary procedure, which means that there is no requirement for them to be laid in advance of the date on which they come into force. Furthermore, the order is made at the time that the Minister signs it. There is therefore no opportunity under the legislation for Parliament to pray against it.

I promise to write to noble Lords and to my noble friend who has raised this debate today about the numbers involved as of 23 May. I hope that I have been able to give some background information as to the history of this legislation and why the Government have brought this order forward.

[Lord Rosser]

Could the Minister give me a reply to a question that I asked? Can she confirm that it is the Government’s judgment that this commencement order is not open to successful challenge in the courts, bearing in mind that the issue is the retrospective effect of a commencement order?

[Baroness Browning]

My Lords, I think the noble Lord has been in the House long enough to know that the Government do not comment on the legal advice that they receive. Certainly, in bringing this measure into being, as I have outlined, it is our understanding that, unlike other statutory instruments, commencement orders are subject to no parliamentary procedure. It would not be appropriate for me to comment on any legal advice that the Government have taken in this matter.

[Lord Avebury]

My Lords, I did not expect my noble friend the Minister to be able to respond to that question from the noble Lord, Lord Rosser, knowing that there are already actions before the courts that have not yet been heard. She obviously cannot predict the result of those actions. Nevertheless, it is worth underlining that legal advisers of some applicants believe that they have a chance of success; otherwise they would not have been able to launch their actions in the courts. The precedent and the lawfulness of the order are still under review. We will not know the answer to the noble Lord’s question until those cases have been determined.

I thank the noble Lord, Lord Rosser, and all others who have spoken in this debate—my noble friend Lady Hamwee, the noble Lords, Lord Judd and Lord Hylton, and particularly the right reverend Prelate, who made the extremely valid and useful point that to do justice to applicants, all the evidence must be heard. By this order, we deny that to many people who would otherwise be successful, as illustrated by the Government’s own figures, which were just cited by the noble Baroness. Sixty-three per cent of those who produce fresh evidence after being refused were successful on appeal. I understand perfectly well her point that 92 per cent of the applicants found the process easy to understand.

However, looking at this the other way round, 8 per cent had some difficulty with it. As I said, even those who are very used to filling in forms occasionally omit a document or make a mistake on the statement that would invalidate the whole application. These minor errors cannot then be taken into consideration at the appeal stage because the documents must stand on their own merits without exception. As the right reverend Prelate pointed out, this means that any applicant who is in that position will have to formulate a new application simply because he omitted a document or made a literal error on one of the forms. This seems an unnecessary burden on both the applicant and the tribunals.

I am extremely grateful to my noble friend for her comprehensive answer to all the points that were raised in the debate. She gave full value for money in her reply, and answered many of the points that we dealt with. We look forward to receiving answers in due course to those that she did not manage to squeeze into her time, particularly to the question about the number of people who were affected at the time.

Needless to say, I did not accept my noble friend’s point when she said that my suggestion would have led to further difficulties if it had made it into the transitional provisions. With respect, nor do I think that she answered adequately the question about why it was necessary to bundle this order before your Lordships with such haste over a weekend, with no adequate opportunity for either consideration by your Lordships or consultation with outside interests that might well be affected by it. I wish my noble friend had been able to give me the assurance that I asked for: that this would not happen again on future occasions, and the Government would not make retrospective orders unless doing so was given express authority in the parent Act. However, I look forward to these points being dealt with by my noble friend in the reply that she has kindly promised to give. I beg leave to withdraw the Motion.

Motion withdrawn.

14:24

Sitting suspended.

Localism Bill

Thursday 7th July 2011 Lords Chamber

Committee (6th Day) (Continued)

14:38

Amendment 136A

Moved by

[Baroness Thornton]

136A: Clause 76, page 62, line 38, at end insert—
“( ) by a community organisation operating in the local authority area,”

[Baroness Thornton]

My Lords, given the comprehensive debate we had before the break, I intend to speak for about 30 seconds. This group of amendments is all about who should be represented on the lists to inform either consent or denial. My amendment addresses itself to the fact that it should be community organisations operating in the local authority area; other amendments have different versions of that. In a way, we just need to listen to what noble Lords have to say and then the Minister can respond. I beg to move.

[Earl Cathcart]

My Lords, I shall speak to Amendment 136B. There has been much concern that individuals will be allowed to make nominations. The argument is that if an asset is of community value, the nominations should be made by that community group, which has local connections, and not by an individual. This amendment would provide a safeguard against vexatious individuals making nominations, or individuals listing everything they can think of just to be on the safe side. This approach would complement the earlier proposal in Amendment 136ZD, tabled by my noble friend Lord Gardiner, regarding the definition, which would require local authorities to take evidence of community support for a nomination into account. It might be worth defining “voluntary and community bodies” so that it has to be more than 21 people. This is the definition being used for a neighbourhood forum and the principle is the same.

[Lord Mawson]

My Lords, I apologise for coming in and out of the debate on Tuesday and missing the key parts of the discussion. I will speak to Amendment 136A. My day on Tuesday was punctuated by meetings about the Olympics and a meeting with a Minister. However, by 11 pm on Tuesday evening I think I had managed to get a good flavour of the debate. I also apologise for being another speaker in the debate who hails from Bradford. I do not know what was being put into the school milk all those years ago up there for so many Bradfordians to be speaking in this Chamber on this subject. I was a milk monitor for a while, but it was not me who put anything in the milk.

More seriously, who decides what land or buildings are included in the list? As I have listened to this debate on the Bill there has often been an assumption that local authorities, be they in Bradford or Tower Hamlets, are in close contact on the ground with local communities, that they know what is going on and that their staff have the entrepreneurial flair and skills to spot a building or land and create an opportunity when they see it. I hear a very different message in some things I have looked at in Bradford and elsewhere. Having had 30 years of experience attempting to negotiate with local authorities, both in east London and up and down this land, I must say that this is not my experience. There is one view looking down the telescope into a local community from the offices of a local authority. There is quite a different view looking up the telescope in east London from one of the poorest housing estates in Britain.

In my experience, often local authorities are actually not in touch with the practical opportunities on the ground presented by land and buildings. Local authority staff, and sometimes the local councillors, do not always possess the skills and mindset to know what to do with these assets, which they view from a fairly traditional public sector point of view. Some local authorities are just not innovators, and some are. Some local authorities resist social entrepreneurs like me who come along and suggest a wholly new approach or point to new opportunities presented by land and buildings that challenge the status quo. Of course, there are some excellent exceptions to this rule.

As the Bill stands, and as the noble Baroness, Lady Thornton has reminded us, the nomination of land or buildings as a community asset can be done only by a parish council, a county council or local authority. This means that, for example, the Bromley-by-Bow Centre in east London—which I founded, and of which I am now the president, so I must declare an interest—could not suggest that any land or building be included in the list. This is ridiculous. The Bromley-by-Bow Centre began 27 years ago as a small charity and has today expanded its operation such that it works closely with local residents across the whole of Poplar and beyond. We have done in practice what many contributors on the Bill have talked about. Today, what began as a small charity runs a three-acre site and has 170 staff. With local people, we have created 37 businesses and social enterprises that operate across Tower Hamlets and beyond. We built the first integrated health centre in the country that is owned by local people through a development trust, and now our doctors and their partners run four health centres in Poplar with responsibility for nearly 40,000 patients.

I also helped found the housing company Poplar HARCA, with which I do some work now and so must also declare that interest. This £300 million company has challenged the traditional logic of the housing association movement and has done a great deal of work to demonstrate how housing associations can use their capital investment in housing to trigger social and economic development with residents in a way that allows local communities to start to think very differently about how we can use both land and buildings in an innovative way. Today, the company has responsibility for nearly 10,000 housing units, operates in Poplar on an area of land that is the same size as the Olympic Park, on the opposite side of the road, and now owns 34 per cent of all the land in the area. This is a resident-led organisation. Today, Poplar HARCA, in partnership with the Bromley-by-Bow Centre and Leaside Regeneration Ltd—another interest that I must declare, as I am a director—has put together a £1 billion regeneration programme, which will have major implications for the area over the next 15 years, both for land and for buildings.

The idea that the Bromley-by-Bow Centre and Poplar HARCA, both of which are charities, should not be able to nominate land and buildings on to the list would be resisted by local residents, who have voted through a democratic process for the housing company. These charities have widespread support and are far more in touch with the opportunities for innovation on the ground than the local authority, even though we work in partnership together. What I am describing in practice is the opportunities that the Bill can present to local social enterprises and their partners if we get the detail right. I am describing what the noble Lord, Lord Jenkin, has rightly described as the wider opportunities with which the logic of this Bill might, if the detail is right, present local communities.

With regard to the fears that the noble Lord, Lord Greaves, expressed on Tuesday about large companies coming into the local area and cutting out local organisations, I understand that fear, but in practice the Bromley-by-Bow Centre has a very successful partnership with the multinational company G4S. Together, we created the first £35 million LIFT company, which has now built 10 health centres in east London. The social enterprise Green Dreams, which was founded at the Bromley-by-Bow Centre, is a landscape business that now has a contract with G4S to work on 26 school sites across Tower Hamlets. Together, social entrepreneurs and a large business are now going for large contracts that are focused on creating local jobs and skills. This has all been done in partnership with local residents. Because G4S as a company has a long-term interest in the area, as does the Bromley-by-Bow Centre, good working relationships exist on the ground. Both partners are of course constantly looking at the opportunities presented by land and buildings.

For those reasons, I suggest that this amendment should be on the face of the Bill. Local community organisations should be able to nominate both land and buildings if going local is to look like this in practice in the future. If such an amendment is not included on the face of the Bill, I fear that some local authorities will not necessarily listen to the pleading of a small but developing local charity or social enterprise that is attempting, as we have done, to grow in capacity. The danger is that the local authority will ride roughshod over the community organisation, and a small flower in a new garden, where a thousand flowers need to be allowed to bloom, will be crushed in the process. Outside this Chamber, a new world is emerging that is challenging both local authorities and the public sector, and that world is made up of organisations that are often deeply committed to the lives of local people. We need to enable this world to grow.

Finally, I must say that, in my experience, we sometimes need the intervention of the Secretary of State—not too often, but occasionally—because, without the intervention of key Ministers of State in the development of the Bromley-by-Bow Centre, we would not be where we are today. Innovation in local communities is difficult to do. I know that—I bear the scars—and sometimes you need friends in high places to help you to break through the local inertia.

This is an important amendment for charities and social enterprises across the country. I suggest that the Government should support it if they truly desire to let a thousand flowers bloom. My colleagues and I would certainly be willing to sit in a room with the Minister and her colleagues to discuss further how we might make this part of the Bill work in practice. I have certainly found my conversations with the Minister on the Bill to date very helpful.

[Lord Beecham]

My Lords, I almost feel the need to apologise for not being a refugee from the dark satanic mills of Bradford, unlike so many other noble Lords who have spoken in this debate.

[Lord Greaves]

All Bradford’s problems stem from the fact that the mills all closed down quite a long time ago.

[Lord Beecham]

That is presumably why there are refugees in your Lordships' House.

My amendments are designed slightly to strengthen and clarify the position in respect of those who should be included in the list. The first relates to Clause 76(2)(b)(iii), which speaks of “a person specified”. I simply suggest that we make that “person or persons”, because it is clear that an individual is not the only, or indeed the likeliest, source of a nomination. Amendment 136BZB would then add a qualification to make that person or persons,

“resident and eligible to vote in local elections of the relevant authority”.

Again, it is necessary to tie in the individual making a nomination to the local community.

Amendment 136BZC would give “the local authority” the right to make a nomination as well. That seems sensible and should be no problem to the Government.

However, an issue arises in that respect, and in other respects in this part of the Bill, about the definition of a local authority. There is a clause in the Bill which sets out the hierarchy of local authorities, counties and so on. There is also, I believe—I cannot for the moment identify it—a provision in the Bill which requires local authorities to co-operate on issues across the Bill. That leaves the question, with which the Minister might help us, of which authority in a two-tier area has the duty to compile the lists or whether it is both. Both levels of authority might have an interest, or one might have an interest and another not, in the particular function for which a nomination is made. For example, there might be some functions—recreation and so on—where a district councillor would have an interest; there might be others, in the realm, let us say, of social services, where a county authority would be more likely to have an interest. There seems to be nothing in the Bill to dictate, or even indicate, which of the two authorities should make the list, whether there should be a combined list or how it might operate in practice. It would be unfortunate, to pick up the concerns of the noble Lord, Lord True, about the cost, if both authorities were obliged to maintain lists and staff up accordingly.

I do not expect the Minister to be able to deal with these matters immediately, but could they be looked at, clarified and worked through, perhaps in consultation with the Local Government Association? The vague “duty to co-operate”, a phrase to which we will return when we come on to the planning section of the Bill, does not really take us very far.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)]

My Lords—

[Lord Patel of Bradford]

There is a consistent message here about making sure that local community groups take advantage of the opportunities that the Government have put forward, the emphasis being on “local”. I shall not go into this in great detail, because my noble friend Lady Thornton and my noble Bradfordian friend Lord Mawson have spoken clearly about the importance of making sure that community groups are local.

Perhaps the Minister could comment on how we define that local connection. Does it relate to the electoral register or issues? The question whether local authorities should be included on the list of those who can nominate is also interesting, though that may be covered in Clause 76(3)(b). Again, if the Minister could clarify that, it would be helpful.

The amendment tabled by the noble Lord, Lord Greaves, relating to representation of other groups, specifically people with disabilities, is obviously welcome. However, as community groups represent a number of minority groups, is that not the intention of the whole Bill anyway?

The amendment tabled by the noble Lord, Lord Cotter, on capacity, is interesting in terms of local authorities. There is a slight temptation to say to the Minister that she may want to consider placing a duty on local authorities to provide support to local groups to make sure that they have capacity.

[Lord Cotter]

My Lords, my Amendment 139A states:

“In considering whether to accept a community nomination, a local authority must be satisfied that the person or body making the nomination has demonstrated that it has the intention and capacity to be treated as a potential bidder should a relevant disposal be entered into”.

The requirement of intent is important, ensuring that persons or bodies on the list are serious possibilities, thereby avoiding frivolous or vexatious nominations.

[Baroness Hanham]

I apologise for getting up too early. I had not realised the Front Bench was boxing and coxing and acting as supports as well as leads. We can sort out who is doing what when.

These are interesting amendments. I was very taken by the intervention of the noble Lord, Lord Mawson, on Amendment 136A. That amendment would make eligible a community organisation operating in the local authority area to make a community nomination. We shall put down in regulations who nominations can be made by; that is, any voluntary or community body with a local connection. I shall see that that includes what the noble Lord, Lord Mawson, spoke about, because, if not, we limit what can be done. We shall consider bringing forward an amendment at a later stage if it is necessary.

The duty to co-operate is in the development and planning area. My expectation is that the duty to co-operate would continue to exist between one authority and another if something straddled the two authorities. I am making all this up as I go along, so I may have to come back to it. The communities bidding to put a facility on the list must come from the authority area in which it sits. I cannot see that stretching out unless there were two facilities in different authorities, in which case they might have to put on both.

[Lord Beecham]

The problem is that you have a district council within a county area, so the resident and land may be in one place geographically but there are two authorities within whose boundaries it is situated. That is the problem that I foresee.

[Baroness Hanham]

My Lords, the district would in that case maintain the list; the lower authority maintains the list. In London, it would be a borough.

[Lord Beecham]

Again, taking up the point of the noble Lord, Lord True, that might be quite burdensome for some districts. It is worth looking at again. Perhaps it can be discussed between now and Report.

15:00

[Baroness Hanham]

That is as it stands.

Amendment 136B proposes restricting those who may be specified in regulations as eligible to make community nominations. The majority of responses in the consultation which has just closed agreed with our initial proposal for groups and individuals to be eligible to make nominations. However, a large number of respondents experienced serious concerns about the risk of individuals—a point which has been made again today—and, therefore, we are sympathetic to Amendment 136B. We shall look at that issue further before Report. We will have nearly the whole Bill to come back to on Report.

Amendment 136BZA tends to assume that the term “person” in the Bill refers to an individual and has been brought forward alongside the earlier Amendment 136A. In fact, “person” is a legal term which can refer to either an individual or group of individuals forming an unincorporated body or an incorporated body such as a company. So adding “persons” does not add materially to the scope of the power to make regulations that define who can make community nominations. I shall consider whether it is sufficient for the legislation because sometimes legal definitions are totally misunderstood. It may perhaps be helpful if we consider whether it should be “person” or “persons”.

Amendment 126C would add detail to those who may be specified in regulations as being able to make a community nomination. The noble Lord, Lord Greaves, mentioned two categories: first, those with a particular interest, disability or—the amendment states “advantage”, but I presume it means “disadvantage—and, secondly, people or bodies with a common right to use land because they own or occupy neighbouring property. We do not consider it necessary to specify either category. While we fully intend for the community rights to buy to be inclusive, we do not want to be too prescriptive on the kinds of organisations eligible to list land. It will be a broad list anyway and we would rather not have specific organisations on the face of the Bill.

Amendment 136BZC would add the local authority to the list of those eligible to make community nominations. We are not sure about the local authority being able to make nominations to itself because, effectively, it would have to go through the process and would have to be the promoter, the decision-maker and the final arbiter. We think it is for local community associations to make the bid and not the local authority. The tension we are talking about is better served by the existing provisions in Clause 76(3)(b), which enables regulations to be made that specify that local authorities can list assets on their own initiative, thereby avoiding pointless bureaucracy. So there is a provision there that local authorities can do this but not that they have to go through the nomination process; they can list of their own will. We have already made it clear that we intend to include this in regulations.

Amendment 139A would require a local authority, when considering a community nomination, to assess whether the nominator has the intention and the capacity to be treated as a potential bidder to buy the asset. This would make the consideration of a nomination much more burdensome and bureaucratic—a point which has been heavily laid around us today—for the local authority, requiring it to consider the merits of the nominator in addition to whether or not the asset is of community value. Such a requirement might be more appropriate where a right of first refusal is provided to the nominator subsequently. However, in a situation where the nominator will still need to compete with other potential buyers to take on the asset, such a requirement is, in our view, disproportionate because if they cannot raise the money and they have not got the financial security, they are not going to be able to bid.

With those explanations, I hope the noble Baroness will withdraw the amendment.

[Lord Taylor of Goss Moor]

I declare my interest as both chair of the Rural Coalition and chair of the National Housing Federation. I do not think the latter is particularly relevant, but it might be.

Having listened to the Minister’s response, I have a niggling concern that the Government are creating a vastly overcomplicated system for doing something very simple. Individuals and organisations in a local community ought to be able to nominate and there should be a simple process for then deciding whether it is appropriate. I am not clear why there have to be decisions by any bodies about who those nominators are. If they are local individuals or organisations, surely they should be able to put forward a nomination. If we turn it round the other way, I am not clear about who we are trying to rule out. If they are in, or active in, the community, who are we saying should not be able to put a nomination forward? If there is not an obvious group of individuals who should be excluded—and I cannot think of any—why do we have to have a decision-taking process at the local level on who should or should not be able to make such nominations? Complexity is the last thing we need because it does not empower communities. Arguments about whether or not a nomination has been made by a relevant local individual, group of individuals or organisation misses the point; the arguments should be about whether it is a suitable nomination in the first place.

[Baroness Hanham]

My Lords, the decision by the local authority would probably have to be made on only a very few occasions because it will be blindingly obvious whether or not an organisation is a community association under the terms of the Bill. It is just possible that there might be a body which no one has any idea about; a body which might have been suddenly thrown together and claims that it comes from the local community but does not, will fall outside the parameters of the Bill and it is reasonable that the local authority should be able to say, “I am sorry, you do not fulfil the requirements” and be able to turn it down. It is expected that any body which is understood to be a community body or people of the local community will find themselves nominating quite happily.

[Lord Taylor of Goss Moor]

I still find think this is overcomplex. At the point at which an organisation has nominated something within the community for this purpose, is it really worth having an argument about whether it is a community organisation or a part of the community? Would it not be easier to say whether or not it was a suitable asset? That process would surely trump any issues about who is eligible to nominate it provided that they can show they have a community connection.

[Baroness Hanham]

My Lords, we are not trying to make this overcomplicated. I am trying to simplify the local authority’s role in identifying a community body. One is trying to rule out a very large body which does not have any particular community interest but would like the asset, coming in through the back door and the local authority being unable to stop it. That is how the Bill stands. I hear what the noble Lord says.

[Baroness Thornton]

My Lords, I am grateful to the Minister for her response. I think she has won over the Bradfordian party in the House. We look forward to the next stage. I beg leave to withdraw the amendment.

Amendment 136A withdrawn.

Amendments 136B to 136CA not moved.

Clause 76 agreed.

Clause 77 : Procedure on community nominations

Amendments 136CB to 136CD not moved.

Amendment 137

Moved by

[Lord Howard of Rising]

137: Clause 77, page 63, line 15, leave out “must” and insert “may”

[Lord Howard of Rising]

My Lords, in moving Amendment 137 I shall also speak to Amendment 138. These amendments would allow a local authority to decide for itself what assets should, or should not be, included in that authority’s register of assets. Surely this is what localism is about: allowing decisions that affect the community to be taken by that community rather than being dictated to by central government. I cannot see much localism if a local authority “must” include an asset, as defined by the Secretary of State. Would it not be more in keeping with the sentiments of the Bill to allow local authorities to decide themselves what is best for their local communities? It might well be that, for reasons peculiar to that area, a slightly different consideration is more appropriate for what asset needs to be included on the register. By setting the parameters, the Secretary of State can prevent abuse by local authorities, while the discretion that these amendments provide would allow for a modest amount of flexibility to suit local circumstances. Decisions taken locally is what this Bill is meant to be about. I look forward to hearing what the Minister has to say about this. I beg to move.

[Lord Patel of Bradford]

I have just a very short point to make about the noble Lord’s amendment. One would think that it would be better to be clear about what a local authority must do rather than introduce further doubts or a lack of clarity. That has already been debated considerably today. It goes back to supporting the Government’s intention to have clarity about what must be done rather than leaving any vague options open for the possibility of any misinterpretations. It would be good if the Minister could address that issue.

[Baroness Hanham]

My Lords, it is the Government’s intention to set out a definition of an asset of community value in regulations that will require local authorities to judge whether an asset meets that definition in particular local circumstances. It seems right that there should be some pretty clear idea of what we are talking about and what is justified.

If the local authority decides that an asset meets the definition and it was proposed by a community nomination, it is required to list. There is a “must”; it must do that, if it fulfils the ambition of the legislation. I hear what my noble friend says about leaving it to the local authority to decide what is a community asset and what is not, in its terms, but if we get it right in regulations, there should be no doubt as to what it can list and what it cannot. To leave it without the definition in the Bill would create much more room for uncertainty for both the community groups and property owners and reduce the transparency of the process.

Amendment 138 would amend subsequent wording in line with the change proposed by Amendment 137. We do not accept the amendments that my noble friend has proposed, because we think that on this matter the local authority needs to have pretty well defined parameters.

[Lord True]

I understand the point made by my noble friend the Minister, but I have some sympathy with the amendment, for reasons that she will understand from my previous interventions. I do not think that this is easy, and I look forward with interest, as many other noble Lords in this Committee will, to seeing the regulations and the guidance that her department will produce. The Minister was very receptive to that point when it was made by noble Lords two days ago and today. There are circumstances in which a local authority, using its reasonable discretion, could cut short a bureaucratic process that is pre-eminently likely to end in the rejection of a nomination. I really do not see why, taking its local circumstances into account, a local authority should not be given slightly greater freedom than is presently suggested in the Bill. I understand my noble friend’s argument and that of my noble friend Lord Howard, but in many ways I slightly move towards my noble friend Lord Howard’s because I hope that some degree of latitude and discretion will be allowed.

[Lord Howard of Rising]

The Minister said, “If we get it right for the whole country”. If it were possible for whatever is decided in Westminster to be absolutely correct from Land’s End to John O’Groats, my admiration would be endless and unlimited. The whole point of the Localism Bill is that central government cannot get it right for everyone all the time and that therefore there must be some discretion locally to make things work for each area as it thinks best. Having said that, I can see that the Minister does not want to move on this, so I beg leave to withdraw the amendment.

Amendment 137 withdrawn.

Amendment 138 not moved.

Amendment 139

Moved by

[Lord Howard of Rising]

139: Clause 77, page 63, line 23, leave out subsection (6)

[Lord Howard of Rising]

My Lords, this group of amendments seeks to remove the requirement for a local authority to give reasons for not including an asset, which has been nominated for inclusion, on its register of community assets. As has been said by my noble friend Lord True and the noble Lord, Lord Greaves, at a time when officers in local authorities are being stretched to their limits in trying to reduce their authority’s expenditure in line with the Government’s requirements, it is perverse to burden them further. Having to do the work required of them by this Bill is bad enough; if local authorities then always have to justify declining to include an asset, that must inevitably lead to a very strong bias towards officers including assets on the register in order to avoid the extra work that would be involved in justifying a refusal.

I realise, and I know from personal experience, that officers in local authorities have the highest integrity, but there would nevertheless be a strong temptation automatically to include certainly all marginal nominations and probably a number of others. Aside from the unfairness of creating this bias, ultimately it will lead to more arguments and more appeals that will, in turn, lead to much greater expense for the public purse—a worry that already concerns those of your Lordships connected with local authorities.

Over 60 per cent of referrals to the Standards Board were malicious. I should declare an interest in having been a victim of just such an accusation. There will inevitably be a number of malicious nominations for inclusion on a register of community assets. It will be time-consuming and difficult to have continually to be giving reasons for refusing this kind of nomination. Not having to justify refusal will in no way prejudice the ability of genuine community assets to get on to the register, but it will ensure a fairer consideration of what is appropriate and proper to be included on it. I beg to move.

[Lord True]

My Lords, again, I have some sympathy for my noble friend’s arguments. Any noble Lord who has seen, for example, the papers for a meeting of a licensing committee, with hundreds of voluminous pages of submissions and comments, or who reflects on the fact that I tried to draw to your Lordships’ attention earlier—that the process of a decision on whether an item should be listed is ultimately subject to appeal, as is the matter of consultation—will realise that, inevitably, however light touch it is intended to be in the first place, the process is likely to generate a large amount of natural paperwork.

I also submit that as a strong supporter of committee action, as I hope I will reveal when we discuss neighbourhood planning, I believe that those who wish to propose that a property should be listed should be prepared to take the trouble to attend a meeting and argue their case. There is a high risk that in a process that ultimately becomes subject to a test at law, whether by judicial review or by whatever other process is envisaged under the Bill, these matters will not be able to be decided by officers setting out a letter saying, “Sorry, chaps: we’ve decided we’re not going ahead with this one”. There will have to be paperwork and a process. Adding a further burden on local authorities to send out individual written notices to every body or individual who suggests that an item be listed may be extremely burdensome, in administrative terms. My noble friend Lord Howard of Rising might not have the right mechanism in what he seeks to excise from the Bill but he touches on what is, potentially, a very important matter.

[Lord Patel of Bradford]

I will be very brief. The noble Lord, Lord True, has touched upon some of the key issues and the noble Lord, Lord Howard, raises some important points. As this is a localism Bill, it should be left to local authorities in local areas to determine this, but we have an issue about the need for transparency. If a community or others go to the trouble of listing or raising issues, they need a clear and transparent response. Some balance has to be struck between reducing the bureaucracy and, perhaps, issues in regulations that allow local authorities to take the actions they want to. However, we certainly say that they should give reasons that should be clear for anyone who has gone to the trouble of putting in a bid of any kind.

[Lord True]

I agree with the noble Lord’s point on transparency. My point is simply that, given the potential legal implications here, the process would have to be transparent in the way that a licensing process ultimately is. It would therefore be a matter of public record, properly minuted and so forth, so that setting up a separate process by legislation seems otiose.

[Baroness Hanham]

My Lords, five of these amendments look to remove the requirements on the local authority to give reasons for its decisions in connection with the scheme, whether in favour or against. On those five amendments, Clause 77 provides that where a community nomination is unsuccessful the local authority must enter the land on the unsuccessful nominations list and give the nominator written reasons for the decision. Amendment 139 would remove that requirement of giving reasons to the nominator.

Clause 78 deals with notices about the lists. Amendment 140 would remove the requirement for the local authority to give reasons in its notice for removal of land from the list of assets of community value. Amendment 141 to Clause 79, which gives a landowner a right to review of the decision to list, would mean that the local authority would not have to give the owner the reasons for the decision it has taken following the review.

Amendment 141A also concerns the right to review in Clause 79. At present, if the local authority decides on a review to remove the land from the list of assets of community value, it must give a written copy of the reasons for the review decision to the person or body whose community nomination had previously been accepted. Amendment 141A would remove this requirement. Clause 80 concerns a list of unsuccessful nominations. Amendment 142 would remove from this clause the requirement for the local authority to include in the entry the reasons for not putting the land on the list of assets of community value.

These amendments would all remove an essential guarantee of transparency from the scheme. We of course expect local authorities to behave reasonably and tell a community organisation why its nomination was refused, or why an asset had been removed from the list. We would also expect them to tell an owner who had asked for a review of the decision on listing the reason for the decision. These are basic provisions that we consider essential for all community groups and landowners to be able to expect in every case if these measures are to be effective in giving communities real power. That is why we think it is important that these requirements are set out clearly in the Bill, and stay there.

Amendment 141B concerns what should be included in the procedural regulations for the review of listing. This also relates to Clause 79. At present, the Bill sets out matters which the Secretary of State or Welsh Ministers may include in these procedural regulations. The amendment would mean that these matters must be included in the regulations. This appears to take a contradictory approach to that taken in the previous amendments, as there is a request for prescription of the process but no intention to tell the owner or the nominator of the outcome. In every case it is the Government’s intention to make procedural regulations and to ensure that they contain those details that are necessary for the effective operation of the scheme.

Finally, Amendment 140A appears to be seeking to amend Clause 79, so that where an owner requests a review of the decision to list, the time limit, if any, set for the owner to make this request is not as provided in regulations. We believe that this would be unhelpful to owners of listed land as it would create uncertainty as to how quickly they should act, and would again reduce the level of transparency. I hope that, with that explanation, the noble Lord will be happy to withdraw the amendment.

[Lord Howard of Rising]

I cannot say that the explanation thrills me. What is proposed will create an immense amount of work and a very strong bias to go in a certain direction. Existing freedom of information legislation would enable the transparency to be maintained. I do not suppose that there will be any assistance from the Government in funding this work or, indeed, in creating the lists in the first place. It would be nice if the Government would consider removing this provision, thereby reducing the amount of work that will be necessary for overstretched local authorities to carry out. I might want to return to this subject later. Meanwhile, I beg leave to withdraw the amendment.

Amendment 139 withdrawn.

Amendment 139A not moved.

Clause 77 agreed.

Clause 78 : Notice of inclusion or removal

Amendment 140 not moved.

Clause 78 agreed.

Clause 79 : Review of decision to include land in list

Amendments 140A to 141B not moved.

Clause 79 agreed.

Clause 80 : List of land nominated by unsuccessful community nominations

Amendment 142 not moved.

Clause 80 agreed.

Clause 81 agreed.

Clause 82 : Moratorium

Amendment 142A

Moved by

[Baroness Hanham]

142A: Clause 82, page 66, line 11, at beginning insert “A person who is”

[Baroness Hanham]

My Lords, this group comprises various minor and technical government amendments to improve the working of the community right-to-buy provisions. Before I go through each amendment, I wish to give a short introduction on them.

Clause 82 contains key details for giving communities the chance to bid for listed land. There are four broad aspects to consider: first, who has to do what to initiate the windows of opportunity; secondly, the identification of certain types of disposals which will be exempt from complying with the rules at all; thirdly, disposals which can be permitted within the full moratorium period; and, fourthly, the lengths of the interim and full moratorium periods—that is, the windows and the protected period.

15:30

We are concerned not to interfere with property transactions where the objectives of the policy will not be compromised. I can assure noble Lords that we intend to make provision for a range of types of disposal to be exempt from compliance with the rules. These include, as I indicated on Tuesday, transfers made by inheritance, gifts, transfers between family members and between partners in the same firm, or between trustees of a single trust. We are also very aware of the concerns of landowners who willingly make land or buildings available for some form of community use. They are worried that this benevolence will risk their property being listed as a result and that, if they wished to dispose of a larger site including the listed asset, they would have to delay the disposal.

There are two aspects to this. The first is the extent to which it will be appropriate for the local authority to consider occasional or periodic use of a particular site as meeting the definition of an asset of community value. There is a large difference between the use of a field once a year as a car park for the annual village fete and the licensing or leasing of a barn to a local group to run a playgroup. We will give further thought as to how to make it clearer when such use should be sufficient to justify listing.

The second aspect is whether the listing of a small site—say, part of a field or a single building on an estate—should be allowed to disrupt the sale of a whole legal estate of which the site is just a small part. There is a question of proportion here that is of particular relevance in the case of privately owned property, and we need to give further thought to that. As I have previously indicated, I am taking this issue back for reconsideration and we will discuss it with noble Lords. I hope to have a solution for Report.

A further area for possible exemption that has been raised through the consultation and in amendments before the House is the disposal of going-concern businesses. Again, we have some sympathy with this concern because we do not wish unnecessarily to disrupt a thriving business, such as a village shop or pub, by delaying its sale. That could relate to a sale for the same use, whereby a pub transfers to another owner who will use it for the same purpose. We wish to consider that issue further and will come back on it at a later stage.

We are also keen to ensure that where there is a community interest group with a strong interest in a particular asset and the capacity to pay an acceptable price for it, the owner should have the option to dispose of the asset to that group without waiting until the end of the window to do so. This would, for instance, allow local authorities to make asset transfers to community interest groups without being restricted by the windows. We therefore intend to make provision for this in regulations as a right of first offer.

In considering the length of the various windows, we have taken careful account of the responses to the consultation and of the need to balance community benefit and the rights of property owners. In the consultation, a broad consensus of 71 per cent of respondents were in favour of an interim window of six weeks, and 67 per cent were in favour of a protected period of 18 months. We believe that these are the right periods. Opinion was much more divided on the length of the full window. A majority of 55 per cent of respondents favoured a window of six months, as opposed to 40 per cent who favoured three months. We are minded to make the full moratorium a period of six months. This would include the interim six-week period; in other words, the window would last for four and a half months after the interim period. A body of experience suggested that a window of less than six months could undermine the benefits of the policy to community interest groups. We considered that communities would thereby be given the time and the best opportunity to succeed.

We also accept that there is a case for providing greater certainty by considering whether to add the respective periods to the Bill. On the other hand, we are also aware that this would limit the opportunity to review the periods in the light of experience, once the scheme is in operation. We will therefore be listening to the debate and will come back to that matter at Report.

I shall address directly the Government’s amendments to Clauses 82, 83 and 85 and the proposed new clauses to follow Clauses 84 and 87. All these are technical amendments that are intended to prove how the provisions will work in practice.

The introduction in Amendment 147F of a new clause to follow Clause 87 is proposed in response to questions raised in Commons Committee about how sites which are split between two or more local authorities would be dealt with. The new clause would require local authorities to co-operate when making all decisions on a site located in more than one local authority area. That does not undermine what I said earlier to the noble Lord, Lord Beecham.

Amendments 142A and 143ZB to 143ZD—the two sets of amendments to Clause 82—and the proposed new clause to follow Clause 84 contained in Amendment 147D are both about the operation of the moratorium. They ensure that the local authority is informed of a community interest group's intention to be treated as a bidder to buy the land, and require the local authority to inform the owner of a listed asset as soon as practicable that it has received such a request from a community interest group.

Our second amendment to Clause 82, Amendment 143ZB, ensures that it will not be possible for a new owner to get the benefit of the protected period relating to the owner from whom the land was bought. That ensures that the moratorium conditions apply afresh to a new owner if they wish to sell. The amendments proposed to Clause 83, Amendment 147B and 147C, remove the surrender of the lease as a relevant disposal for the purposes of the community right-to-buy scheme. In practice, it is often difficult to decide whether a surrender of a lease has taken place; surrenders are often determined only retrospectively in the courts. Removing the surrender of a lease from the definition of a relevant disposal avoids those difficulties in the very small number of cases where surrender may occur.

[Lord Beecham]

I have three short questions on Clause 83. The noble Baroness may not be able to answer them immediately; if not, perhaps she will write to me. First, for the purposes of subsection (2), could a charge on a property be regarded as a disposal if the property is then vacant? The second question arises under subsection (6) in respect of the qualifying leaseholders’ state, which would have to have at least 25 years to run. It strikes me that someone might grant a lease for less than that, which would take it outside the parameters of the clause, with an option for the tenant to renew it which could effectively carry it beyond 25 years. Had that been a straightforward grant, it would be within the framework. Does that need to be considered? Finally, subsection (7) gives the appropriate authority the right to amend the clause by order. As in previous debates, I would like confirmation that that would be subject to an affirmative order, as it deals with personal property rights, rather than a negative resolution.

[Baroness Hamwee]

My Lords, I was intending to ask some questions on the clause.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester)]

The Minister has not yet moved the amendment.

[Baroness Hanham]

My Lords, I have nearly finished. I apologise that I have been rather long. In fact, I have only another two lines to read.

The proposed amendment to Clause 85, Amendment 147E, would enable the regulations to include an appeal against compensation decisions under the community right-to-buy scheme. The amendment will strengthen the protection for property owners affected by the scheme. I beg to move.

[Baroness Hamwee]

My question on Clause 83 has turned into a short supplementary to the questions asked by the noble Lord, Lord Beecham. The Minister has told us that the order-making power in Clause 83(7) will be used to deal with matters of inheritance and partnership. Can she give the Committee an assurance—I am sure she can—that the order-making power will not be used to alter the principal definitions of relevant disposal, which are already contained in the Bill? As subsection (7) is set out, it could, on the face of it, actually change the 25-year term or the definition of disposal in Clause 83(2). Those are quite fundamental points.

[Lord Taylor of Goss Moor]

My Lords, I welcome much that the noble Baroness said about the Government’s willingness to look at the particular circumstances that may arise, for example, in the sale of going concerns and where the community asset is a small part of a larger concern. These issues have certainly raised great concerns, and I would like to add another.

I am not sure that I need to declare an interest but I shall do so just in case. I chair the eco-town strategic partnership in the St Austell area, a wide area of mining land which was mined formerly by English China Clays and more recently by Imerys. Over many years the policy of past and present mining companies in the china clay area has been to open large areas of land to community access, but always with the proviso that it might be worked in future. That is not a bad example of the concern that I want to put to the Minister about the deterrent effect that this policy—a policy which, broadly, I very much support—could have on landowners of that sort in opening up land to community use, whether for walking, riding, cycling and so on, if it were severely to limit their ability to sell and dispose of the land as part of the operation of their business. My fear is that, as things stand, it will simply freeze in aspic the current position on community access as people would be able to argue that access already exists and to list it. Equally, in terms of new community access, it is in the nature of mining land that the areas which may be accessed by the public will change over time depending on where the workings are and where land restoration has taken place following tipping. I can see this creating a substantial block to opening up land for future community use. The same may well apply to the farmer who very willingly allowed a corner of his land to be used by the cricket club. That usage now exists and a listing could be applied for. It could also create a substantial deterrent to any landowner opening up land for such use in future.

I am very much in favour of the idea that we should register assets of community value—which clearly applies to things like village shops, community halls and so on—but I am concerned about how to ensure that the creation of new community resources is not blocked by the fear that these elements will be applied.

I have one more question; I should already know the answer to it, and no doubt there is an answer. What is the position when the sale of land options—which are usually bought because planning permissions might be granted—in practice trumps these proposals to register community assets? I wonder whether the purchase of an option in any sense triggers this process.

[Baroness Hanham]

My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lords, Lord Beecham and Lord Taylor, for their interventions. The noble Lord, Lord Beecham, had three questions. I have the answer to two of the questions but cannot remember the other one. Would he like to ask me again, if he can remember it? If he cannot then that is fine. Perhaps we should both read Hansard. I apologise—I was getting so excited about the orders that I forgot about the next bit.

The noble Lord, Lord Beecham, asked about the 25-year period. The land will qualify only if the lease is granted for 25 years, rather than having 25 years left to run at the time of disposal. If it is granted for less than 25 years and is therefore subject to renewal, I suspect that it will not qualify, because the lease will have to be for 25-plus years.

15:45

[Lord Beecham]

I understand that and am grateful to the noble Baroness. That of course means that there is a way out for an owner. My first question was whether, assuming that the property was vacant, a legal charge would constitute a disposal. The Minister may need some legal advice about that, as indeed I may do too.

[Baroness Hanham]

If noble Lords know the answer to that, I shall be extremely grateful. I shall have to write to the noble Lord on that as I do not have a response.

Any orders will be affirmative, and that is also my answer to the noble Baroness, Lady Hamwee. Under the Bill, the need to change will stay unamended. It is fair to say that at some stage there might be a requirement to change the definition. If that is the case, again it will be done through an affirmative order.

The noble Lord, Lord Taylor, has produced the sort of conundrum that we had over private land where a small piece is taken out or is open to community use. I suspect that mining land is not part of the Bill, although I shall have to write to the noble Lord. However, if it is, I accept that what he said is very similar to what was said about the problems of small bits of land being used, through benevolence, for cricket pitches. I shall come back to that with an answer before the next stage.

Amendment 142A agreed.

Amendment 143

Moved by

[Lord Hodgson of Astley Abbotts]

143: Clause 82, page 66, line 13, leave out “C” and insert “D”

[Lord Hodgson of Astley Abbotts]

My Lords, I listened very carefully to what my noble friend said in her introductory remarks to this set of amendments. I do not think that she has shot my fox but she has probably hit it. Nevertheless, I should like to press on. I think that what she was saying—and she is sympathetic to not interfering with commercial transactions—is at the root of what I am seeking to achieve with this amendment. At the same time, the amendment addresses some of the issues raised this morning by the noble Lord, Lord Cameron of Dillington, in our Clause 74 stand part debate, as well as the issues that have arisen in prior debates on the difference between a service and a piece of property and on how a “going concern” works in relation to assets of community value.

Amendment 143 is an introductory amendment that seeks to add a further requirement where the moratorium takes effect. That relates to Condition D in my Amendment 144, which would permit disposals unless,

“the business is at risk of closure … the business is closed … the business is subject to an application for change of use”,

or,

“the building is subject to a demolition order”—

the sorts of issues that came up in our earlier debates. In other words, where the business is at risk, the community has some reason to interfere. However, where there is a going concern and the service will continue to be provided or the business will continue, it is not clear why there needs to be any interference with normal commercial development and commercial enterprise. That takes us back to the balance between the right to enjoy one’s private property and the rights of those in the locality. Of course, this will apply to pubs probably more—I shall say a few words about that in a minute—but it will also apply to anywhere where an entry fee is charged and anywhere run as a commercial enterprise. It will include farm shops, rural zoos, gardens and parks. Therefore, it is important, in that it could cover a wide range of commercial assets that are owned by individuals.

On the specifics of the pub trade, pubs are sold in blocks and there can be between three or four or 200 or 300 in a single block. Why is that? It is nothing very unusual or surprising. It is perhaps because an individual has run a pub successfully and would like to buy two or three more and wishes to do so in a particular area because geographical proximity improves managerial control. It may be that a specific pub operator is overrepresented in one geographical area and underrepresented in another and, therefore, both wish to rebalance their portfolios.

Then there is the question of different companies viewing different sectors of the pub trade as offering particularly attractive opportunities. Those noble Lords who read the Financial Times will have seen in today's copy a long article on the decline of what is known as the wet-led trade; that is what is called the spit-and-sawdust boozers, where there is just drink and not much of a food offering. Beside those sorts of pubs, which have been under considerable strain, there are obviously town bars, village pubs, housing estate pubs and trunk-road pubs, with hotels attached such as Travelodge and Premier Inn, which do not provide food, so the pub does. Increasingly now, there are also retail park pubs.

I would argue that, provided that the pub, business or service is to continue, there is no need for the community to be involved. If it is going to be closed and it falls into one of the categories that I have listed in my Amendment 144 then there would need to be a locus for the community and I could understand why the community might wish to get involved. I would say caveat emptor—pub companies do not close pubs that are very successful, they close them because they are failing. It is not an idyll, rural or urban. In this country 30,000 of the 60,000 pubs are individually owned. They are free houses, and there are 30,000 small businesses struggling to make a living.

Perhaps I may be permitted a brief rant. Governments of all persuasions talk about the importance of the pub trade as a centre where community activity can be developed and a community feeling can be expressed. That is all very well until you come to the legislation, which continually hammers pub operators, big and small, with legislative procedures and processes. You have only to look at the amendments that we shall be discussing on the Police Reform and Social Responsibility Bill to see how many of those will land quite heavily on small pubs and small pub operators.

There are the competitive pressures. The fact is that, so far, nothing has been done about supermarket pricing. On their way home tonight noble Lords can buy a pint of lager in their local supermarket for 60p a pint, but they will have to pay £2.80 in their local pub. In the supermarket it is sold at or below cost—probably below cost— before a bank holiday weekend.

Inevitably young people will buy a slab—as they call it—in the supermarket and sit in the village square or the street drinking the cans, which they may then drop on the ground while vaguely insulting the passers-by; and at about 8.30 pm they will go into the pub to watch the football and have a couple more pints. They may then be sick outside the pub, and the pub will get blamed for the disorder caused.

There is a lot in this trade which is not as easy as it looks. There are the societal pressures of people staying home, as well as the rapid societal and economic changes in our towns. A simple example is that 15 years ago, the company with which I am involved had 20 pubs in Kidderminster, the home of the UK carpet trade, and today there are three. The carpet trade has gone, so the pubs have gone. The rapid changes in our society have left pubs of all types and sizes beached.

The noble Lord, Lord Cameron, referred to the Pub is the Hub scheme. It is an excellent idea and a brilliant concept. However, its case studies emphasise very strongly the need, for example, for obtaining sound professional advice on running a pub as soon as possible, and include comments to the effect that running a pub is more complex than was anticipated, no one should underestimate what is involved in running a successful pub, running a pub via a committee is challenging, and so on. While we talk about the need, even where a pub has closed, to safeguard the rights of the community—I quite understand that—it is important that people are realistic about what can be achieved with these assets. They have not got into the state they are in merely because they have been neglected, but most often because they are in a declining or difficult section of the trade or of their particular geographical location.

That is the end of my rant. The purpose of the amendment is to urge the Government to consider carefully the exclusion from the provisions of arm's-length commercial transactions. If there is going to be a change of the sort listed in my amendment—a closure or a change of use—of course the community should get involved: it has every right to. Otherwise, we are in danger of impeding normal commercial transactions of varying sorts concerning various sorts of assets, which cannot be in the interests of the vibrancy of our local communities. I beg to move.

[Lord Cotter]

My Lords, I will speak to Amendment 143ZA. There is an overall concern that the Bill is sometimes aimed at property rather than at the services provided. Surely it is vital for our local communities that there is a good provision for local needs. It is fair to say that in this country—many noble Lords have spoken about this—too often, for various reasons, local shops and services have been lost. I cast my mind back—I thought it was 10 years ago, I have now written “20 years” but actually it was 25 years ago—to when I was a councillor. I thought it was not that long ago. Supported by local people, I managed to get our local council to realise that a local parade of shops was at risk of being turned into a parade of building societies and offices. Fortunately, we were successful in getting the matter addressed at that time.

Under the Bill, if a business intends to sell, say, a community shop as a community shop, that will be welcome, and would be welcomed by local people. The amendment inserts,

“unless the relevant disposal will be the sale of the land privately to another business for the same use as when it was listed as an asset of community value”.

[Lord Gardiner of Kimble]

My Lords, I will speak to Amendment 144A in my name and that of my noble friend Lord Cathcart. The intention is to set out explicitly some types of disposals of land that should be exempted from the moratorium rules and that would therefore not require notification to the local authority. I am very aware of many discussions that noble Lords have had about seeking a positive result from what we do. I hope that the amendment will produce some harmony, because there are legitimate concerns from owners of private property.

New paragraph (a) proposed in Amendment 144A would exempt from the moratorium disposal of a listed asset where the asset forms part of a larger site that is held as a single legal estate. The intention is to avoid delaying the sale of a larger piece of land or an estate if one small part of it has been listed as an asset of community value. New paragraph (b) would exempt other types of disposals of land, such as bona fide gifts following a philanthropic donation, transfers between members of the same family, made as either a gift or a sale, land passed on by inheritance, transfers between associated companies or companies in the same group, and transfers between trustees or partners in a firm. Indeed, there may be other exemptions that other noble Lords are more aware of. The intention of this amendment is to avoid any disruption to internal transfers between business partners and trustees. It would not interfere with the rights of landowners to pass their land on to future generations.

[Lord McKenzie of Luton]

I start by reiterating that I hope it is clear that we on these Benches very much want to see the Government achieve their aspirations in these provisions. However, Amendment 144A in particular illustrates the danger we are getting into of making this very complicated and bureaucratic. For example, there is a proposition that transfers between companies in the same group should not be a relevant disposal. Let us reflect on how you would cast that provision. There are plenty of differing definitions of groups of companies around. If we think one step beyond that, what happens if you sell the shares of a company that owns the asset, but not the asset itself? If that company were not only to have the asset but another asset, for example, the group of pubs mentioned by the noble Lord, Lord Hodgson, where does that leave you? We ought to be focusing on something that is deliverable, even if at the edges it is a bit rough and not technically watertight. It offends me as an accountant to suggest that, but this group of amendments and the issues that were raised in respect of the previous amendment illustrate the complexity that we are in danger of building into this provision which could undermine it completely.

[The Earl of Lytton]

What the noble Lord, Lord McKenzie, has just said highlights the fact that we are trying to talk about exclusions from something that would cover a potentially vast range of circumstances. I support the thrust of what he said. We need to reverse that so that we catch the transactions that need to be caught because in the global family and order of property transactions that could potentially be caught, the class of transaction that we are trying to catch is very small. The problem is the lack of definition, and therefore the clause has to be all-encompassing, and it sweeps up all these other things that other noble Lords have referred to. I think of situations where there might be transfers of assets one way or another between parish and rural community councils or between community groups of whatever form and structure. What about transfers of assets between various tiers of authorities? Are all these to be caught up? It seems to me that we are almost at the point of needing a category of owner that gets caught by the Bill, but I am not going to suggest that because I think there might be a simpler way of dealing with it, as the noble Lord, Lord McKenzie, suggested. However, there is a relatively narrow class of circumstances, and it all boils down to the fact that we have these open-ended definitions. I plead with the Minister to find some way of rendering this down so that we can get to the nub of the issue and not have a one-line provision and then 1,000 lines of exclusions and caveats and things to try to exclude all the bits that have got caught up and should not be in there in the first place.

[Lord Cameron of Dillington]

The nub of the issue is the change of use.

[Baroness Hanham]

My Lords, we keep coming back to the same issue. I take the point that we probably need to look at the narrowing of the classification but by doing that we will still have to look at what would not be caught, which is what these amendments address. I heard the rant by my noble friend Lord Hodgson and I do not suppose for a moment that he expects me to say anything other than that we have heard what he said. I will deal with all the points raised but I should like to say from the outset that we are quite sympathetic to looking at this again.

On the government amendments, I have already said that we are sympathetic to the intention of Amendment 144A. We understand the concerns of some rural landowners who are already making their land available for periodic community use. It is certainly not our intention to discourage them from doing so. Where a listed asset forms part of a larger piece of land, we recognise that to delay the sale of the whole estate would in most cases be completely disproportionate. I am happy to confirm for the noble Lord that we will have a look at this, which complies with my previous commitment.

As set out in our consultation document, which I am sure everyone has read from cover to cover, we intend to exempt a range of different types of disposals that do not impinge on the intended aim of a policy. We have already indicated our intention to exempt disposals of land due to inheritance and gifts, and transfers between family members, in light of responsible consultations. I think that that encompassed everything put forward by the noble Lord, Lord Gardiner. But in hoping that we have a little time before the Recess and Report stage to discuss these issues, I am happy to say that we will reconsider or consider those with him and other noble Lords concerned.

Amendments 143, 143ZA and 144 would exempt the disposal of business-to-business transactions where there was no risk to the continuation of the business. Earlier, I mentioned that we understood that the use of a power might stay as the use of a power but if it was sold between two companies we would not expect that to be caught up in the community asset ability to buy.

However, we are slightly afraid that the amendments could have some unintended consequences and would create more confusion than clarity, which a number of noble Lords seem to think this is anyway. We are not sure what the terms “risk of closure” and “business” mean. We are prepared to look at these again and discuss them with noble Lords to see whether we can avoid any further unintended consequences that would impact on the aim of the policy. I hope that the noble Lord will withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, I am grateful to my noble friend for those answers and for her sympathetic ear to these probing amendments. Amendment 144 is focused on business-to-business transactions. I entirely accept that the phrase “risk of closure” would not commit itself to parliamentary draftsmen but I have never known any Back-Bench Members who have ever committed themselves to parliamentary draftsmen because they always want to take it away and tidy it up. As regards the point made by the noble Lord, Lord Cameron, the time to act is before the closure takes place but, once the closure has happened the business, or service, may well be doomed or its risk of failure much increased.

I am grateful to my noble friend for her positive response and look forward to returning to this matter later when we have some further thinking from the Government. In the mean time, I beg leave to withdraw the amendment.

Amendment 143 withdrawn.

Amendment 143ZA not moved.

Amendments 143ZB to 143ZD

Moved by

[Baroness Hanham]

143ZB: Clause 82, page 66, line 14, leave out “the owner” and insert “that particular person”

143ZC: Clause 82, page 66, line 14, leave out “the owner’s” and insert “that person’s”

143ZD: Clause 82, page 66, line 17, leave out “or the owner”

Amendments 143ZB to 143ZD agreed.

Amendment 143A

Moved by

[Baroness Thornton]

143A: Clause 82, page 66, line 20, at end insert—
“( ) where the owner is a public body, any community interest group or groups which meet the requirements of subsection (3)(a) have been provided with the option of first refusal to purchase the asset, with regulations for this purpose specified by the appropriate authority, or”

[Baroness Thornton]

My Lords, I shall speak also to Amendment 147A. I realise that we are moving to a sensitive part of the Bill about which noble Lords have already expressed various anxieties.

There are two things that I should like to raise at this time. I understand that the Government propose that a community group should have the first right of refusal not within the moratorium period but, rather, at the end of it when the community group would compete against others on the open market. That presents a real difficulty. We all want to avoid the bureaucracy that has been a big problem in Scotland. On the other hand, we do not want to find ourselves in a position where the new community right leads to a widespread loss of assets of community value. It is a question of balance that we need to explore.

For the assets of community value in public hands, I suggest that there should be a first right of refusal for community groups. I think we all believe that it is a reasonable presumption that, where assets of community value are already being applied for public benefit, the default position should be to retain that public benefit. Only if there is no community purchaser should the asset then go on the open market. Therefore, the first right of refusal in such a case would require the introduction of mechanisms. Based on experience to date, it is possible for local authorities, with support from the Asset Transfer Unit, to devise a sensible low-cost system to agree a sale price, decide between competing community bids if applicable and establish fair arbitration mechanisms.

For assets of community value in private hands, I think everybody accepts that the right of first refusal might not be the best way forward. Again, we do not want to go down the road that has been followed in Scotland. The desire to safeguard private interests, which we have already discussed, is already resulting in a level of procedure and regulation that could stifle community efforts in some cases. That is what leads us to the idea of a simple system in which a moratorium at least provides a window for any community group to prepare a bid, rather than any complex process that will tie the community up in red tape.

That brings me to the second amendment in this group, which deals with the moratorium period. I am not alone in suggesting that the period should be a minimum of six months, which could be extended if necessary. Our experience and that of community groups across the country is that even the most capable and well established community organisations certainly need more than three months to get themselves up to speed. It often takes from six months to a year to progress to the point of purchase. Therefore, we need to find a mechanism that means, when there is willingness on all sides, the process will not be stymied by a moratorium period that has a cut-off point. Instead, if there is agreement to proceed, the moratorium period should be flexible enough to allow that to happen. I beg to move.

[Lord Mawson]

I shall speak specifically to Amendment 147A. I notice that the noble Baroness, Lady Eaton, has now joined us in the Chamber. I assure noble Lords that the Bradfordians are not pulling the wagons around in this debate.

Six months seems to be a reasonable period. We live in a very bureaucratic world. If you are a small charity or a social enterprise, without all the back-up of a local authority to get your ducks in a row and achieve the necessary permission, it can take at least six months to move forward with land or buildings. One property that my colleagues and I have been working on with a very competent group of people has taken at least two years to get through planning and to reach a point where we can do the development. That is with even the support of local neighbours and a lot of people behind us. Six months is a reasonable period; all my experience tells me that it is about right.

The noble Lord, Lord Rogers of Riverside, who has great experience in this field, is no longer here but I know he would tell us that nowadays it takes a mini-miracle to build a building or get a development going. It is very difficult to get projects off the ground. We wonder sometimes why we are not hitting the housing targets. It is because, as the noble Lord, Lord Hodgson, reminds us, there is so much red tape and treacle that you have to swim through to make any of this work.

The real test for the Bill will be whether it will be easier for those of us who develop land and buildings, whether we are business or social entrepreneurs, to do so. Will this legislation make it easier for us to do this work, or harder? This is the real practical challenge for this piece of legislation.

16:15

[Lord Howard of Rising]

My Lords, Amendment 145 seeks to place a time limit on how long a community interest group is given to purchase a community asset. Again, this amendment was tabled before the Minister deposited her paper in the Library. Having read her paper and seen that she is minded to have a window of six months, I imagine she will be falling over herself to accept this amendment.

I spoke earlier about the importance of excluding measures from the Bill that might affect the value of property. As I mentioned then, the erosion of property value is far more important to the less well-off, for whom such an asset might be all they have in the world. Uncertainty over the length of time an asset must be held while local interest groups find the necessary cash to make the purchase would very seriously damage the value of any asset. Banks and financial institutions will not lend if the sale of the asset concerned could be delayed for an unknown period. Having a fixed term in the Bill would give the measure of certainty that is needed to enable banks, mortgage companies and other financial institutions to provide the funding for the sale and purchase of the sort of asset that the Bill is aimed at.

It is no help that the time available can be altered by regulation by the Secretary of State. The Minister, when responding to my Amendment 134 earlier, commented that regulation would come before Parliament, but in practical terms this is a formality. In no way does it have the strength of having to introduce primary legislation. Who knows what some future Secretary of State might decide is an appropriate length of time? I have the utmost confidence in my right honourable friend the present Secretary of State not to do something unreasonable, but he will not be in that position for ever and it is important that the Bill does all it can to avoid creating doubts over the value of assets included in the register.

Mortgages and other forms of long-term finance usually extend over the life of more than one Government. The protection given by having a maximum period of six months for a community interest group to raise finance is essential if property values are not to be badly damaged by unreasonably hampering the ability of owners to sell their possessions. There is an argument that the Human Rights Act would prevent a community interest group having an unreasonable length of time to find funding, but this would in no way be an adequate substitute for including a time limit in the Bill. I recall that it has been Conservative Party policy to abolish the Human Rights Act.

[Baroness Thornton]

How would the noble Lord feel if a vicar leading a group to turn the local shop into a community shop run as a co-operative missed the deadline by two weeks? Is he suggesting that you have a six-month cut-off point and that is it?

[Lord Howard of Rising]

Yes, that is precisely what I am suggesting. There would be nothing to prevent a local interest group starting long before an asset came on sale. We should also remember that assets of the nature we are talking about usually come up for sale only because the local population, or community, has not been using them. As someone who has subsidised his local shop for the past 30 years, I can tell you that there is a frightful squeal if people think that it will close, but while it is open they all go off to Tesco or Rainbow or wherever and never use the shop, so my sympathies are rather more limited.

I think that six months is a perfectly adequate amount of time for people to put together such a bid, bearing in mind that they could start long beforehand. In my view, it would be perfectly adequate to allow three months, which I hope is the time limit that will appear in the regulations. My amendment mentions six months as a maximum only so as to give the Secretary of State room for manoeuvre. I might also say that, whatever period of time is chosen, the point that people would feel rotten if they missed the target by two days would still apply. If we made it 20 years, people would still say, “Oh, how terrible, if it was 20 years and two days”, so that is not an argument.

[Lord Patel of Bradford]

Before the noble Lord sits down, could I just ask a question for clarification? Did I hear correctly that it is his party’s policy to do away with the Human Rights Act?

[Lord Howard of Rising]

I did not say that that is my party’s policy. Let me just see from my notes what I said—I did think about this before raising it. I recalled that it has been Conservative Party policy to abolish the Human Rights Act.

[Lord Tope]

My Lords, for the avoidance of doubt, I should make it clear that that is not the coalition Government’s policy.

[Lord Howard of Rising]

I did say that it has been the Conservative Party’s policy.

[Lord Tope]

Some people are capable of misunderstanding.

[Lord Hodgson of Astley Abbotts]

My Lords, my Amendments 146 and 147 in this group have been slightly overtaken by the paper that my noble friend has put in the Library, by her opening remarks today and, indeed, by the remarks of other noble Lords during the preceding debate. I am aware that the timescales for the moratorium are controversial, and I quite understand the point made by the noble Baroness, Lady Thornton, about the difficulty of getting together local initiatives and getting them to the financing stage.

The simple purpose of Amendment 146 is to encourage the Government to put on the face of the Bill the moratorium periods for the interim window of opportunity, the full window of opportunity and the protected period. As a result, Amendment 147 would remove from the Bill the power to change this by regulation. I seek to do that really for the reasons given by my noble friend Lord Howard of Rising. I think that this issue is sufficiently important and goes sufficiently deep into our culture and into the structure of our society that these periods should not be able to be altered by means of a statutory instrument, which I think Members on all sides of the House would agree do not get quite the scrutiny that they often deserve, in the sense that voting down a statutory instrument is always a nuclear deterrent and so is a very rare thing indeed.

As a matter of principle, there is a strong reason for having the time periods on the face of the Bill, although I am less concerned about what those time periods are. As my noble friend Lord Howard has said, most communities will know that something is happening and, therefore, they will not start de novo from the day that a decision is announced; they will know that the particular service or shop or whatever is in trouble and, therefore, will be able to begin to get their act together. However, there is clearly a difficulty or problem or issue with timing, to which the noble Lord, Lord Mawson, referred. I am just concerned that we have clarity about the timings on the face of the Bill, which should not be capable of being altered for better or for worse—for longer or for shorter—by a future Government.

[Lord Patel of Bradford]

My Lords, I will speak briefly in support of Amendments 143A and 147A.

As noble Lords have heard, the first of these amendments concerns the conditions by which an owner of a listed community asset can dispose of that asset. For example, Amendment 143A would ensure that,

“where the owner is a public body, any relevant community interest group or groups … have been provided with the option of first refusal”.

This additional protection would make sure that the priorities of local communities come above those of the landowner. That has to be a good principle to support in a Bill that seeks to make local communities the prime driver in considerations about the use, sale and disposal of community assets. I shall not repeat the arguments already succinctly made by my noble friend Lady Thornton, but I hope that the Minister will give this matter serious consideration.

Amendment 147A is different from the others in this group, but they are all concerned with the appropriate time that any moratorium should be in place. Amendment 147A would ensure that the prescribed period for any full moratorium should not be less than six months. This is another important protection, especially for community and voluntary groups, which may need more time to respond to any bid and to take advantage of the provision for community assets in the Bill, as the noble Lord, Lord Mawson, said.

However, I understand the concern raised by the amendment of the noble Lord, Lord Howard; that is, that the prescribed period should not be more than six months as it is reasonable for there to be some time limit to the process. At the same time, I believe that the specification of a minimum time is equally important and I hope that the Minster will accept it.

[Baroness Hanham]

My Lords, we are continuing to cover ground that we have largely covered previously, but in the interests of clarity I am quite happy to go over it again. As the noble Lord, Lord Hodgson, said, we have looked at this matter, but it is important that we return to it in light of these amendments.

In considering the length of the various windows, we have taken account of responses to consultation and of the need to balance community benefit with the rights of property owners. The consultation demonstrated a broad consensus in favour of an interim window of six weeks to allow a community association to decide whether it is able to put its name forward for a bid, and a protected period of 18 months. We believe that these are the right periods.

Opinion was more divided on the length of the full window, though a majority favoured a window of a maximum of six months as opposed to 40 per cent of respondents who favoured three months; that is, less rather than more. We are minded to accept six months, as I have already said.

Amendments 145, 146, 147 and 147A propose a range of lengths—in some cases, a maximum or minimum—but all agree on the importance of providing some certainty by including reference to the chosen lengths in the Bill. We have also noted the recommendation of the Delegated Powers and Regulatory Reform Committee that, if the moratorium lengths were to be set in regulations, the first exercise of the power should be subject to affirmative procedure. I also heard what my noble friends said about having assurance in the Bill. We accept that there is a case for providing greater clarity. I shall therefore come back to this matter on Report having consulted with the Welsh Government and otherwise as necessary.

We oppose Amendment 143A, which would give a right of first refusal to community interest groups where the owner of the asset concerned was a public body. The noble Baroness, Lady Thornton, introduced the amendment very persuasively, as she always does, but the amendment would mean that the existing government proposal would apply only to assets with private owners, including the voluntary sector.

The two schemes would need to be run in parallel, imposing greater costs and making the system more confusing for those trying to use it. Powers already exist under general disposal consent for local authorities to transfer assets to community ownership at less than the best consideration to further local social, economic and environmental well-being. We think that that would satisfy the noble Baroness’s problems.

We already intend to provide in regulation for both public and private owners to be able to sell their asset to a community group while the window of the opportunity is in operation. If there was a willing buyer and a willing seller, they could just get on with it. This would give community groups advantage over other purchasers, who would have to wait until the end of the moratorium period for a decision to be made. With those confirmatory explanations—because I think that I have given them previously—I ask noble Lords not to press their amendments.

16:30

[Lord Greaves]

Am I right in thinking that during the six-month period there is a moratorium on disposal but not on putting property or land on the market? The land could be marketed during those six months and, presumably, if it was a competitive market, the resultant price would be the price that the community group would have to cough up if it wanted to buy it.

[Baroness Hanham]

My Lords, the noble Lord, Lord Greaves, is correct. The moratorium does not prevent property being put up for sale or marketed. All it does is to prevent the sale taking place before the community group has had an opportunity to consider whether it can match or beat what has been brought forward.

[Baroness Thornton]

I thank the Minister again for repeating what she has now said three times. Indeed, I believe she gave the answer to the question of the noble Lord, Lord Greaves, late on Tuesday evening.

I am quite pleased. I think we have made some progress and I beg leave to withdraw the amendment.

Amendment 143A withdrawn.

Amendments 144 to 147A not moved.

Clause 82, as amended, agreed.

Clause 83 : Meaning of “relevant disposal” etc in section 82

Amendments 147B and 147C

Moved by

[Baroness Hanham]

147B: Clause 83, page 67, line 7, leave out “, assignment or surrender” and insert “or assignment”

147C: Clause 83, page 67, line 8, leave out “, assignment or surrender” and insert “or assignment”

Amendments 147B and 147C agreed.

Clause 83, as amended, agreed.

Clause 84 agreed.

Amendment 147D

Moved by

[Baroness Hanham]

147D: After Clause 84, insert the following new Clause—
“Informing owner of request to be treated as bidder
(1) Subsection (2) applies if—
(a) after a local authority has received notice under section 82(2) in respect of land included in the authority’s list of assets of community value, and(b) before the end of the interim moratorium period that applies under section 82 as a result of the notice, the authority receives from a community interest group a written request (however expressed) for the group to be treated as a potential bidder in relation to the land.(2) The authority must, as soon after receiving the request as is practicable, either pass on the request to the owner of the land or inform the owner of the details of the request.
(3) In this section “community interest group” means a person who is a community interest group for the purposes of section 82(3) as a result of regulations made under section 82(6) by the appropriate authority.”

Amendment 147D agreed.

Amendment 147DA

Moved by

[Lord Greaves]

147DA: After Clause 84, insert the following new Clause—
“Local authority additional powers for assets of community value
(1) A local authority may acquire and make fit for community use any land that is included in the authority’s list of assets of community value.
(2) An acquisition under subsection (1) may be by compulsory purchase if authorised by the Secretary of State.
(3) Any land acquired under subsection (1) or any interest in it less than that acquired may be sold or let to a community interest group or to a person representative of the group.
(4) A sale or letting under subsection (3) may, subject to appropriate restrictions of use and further disposal, be at less than the full market value.
(5) A local authority may contribute the whole or part of any expenditure that is incurred by or on behalf of a community interest group in the acquisition, improvement or maintenance of a community asset subject to appropriate conditions.”

[Lord Greaves]

My Lords, I have tabled the amendment in order to discuss the role of local authorities and other public bodies—but particularly the role of local authorities—in assisting with community purchases as a result of this legislation. The amendment states that the local authority may acquire and make fit for community use any property which is the subject of these proposals; that an acquisition could be by a compulsory purchase order, with the approval of the Secretary of State in the usual way; and that the local authority could sell or let a property or a business to a community interest group, and could do so by not charging the full market value—in other words, by subsidising the purchase or the maintenance of the community asset. I think the definition of a local authority should include a parish, although I have not included it.

I am not suggesting that this proposal should lead to a large-scale acquisition by local authorities of new community assets. Given the present financial circumstances of local authorities, that is unlikely to happen anyway in most places. However, this will change. In the very nature of things there is a cycle, which many of us have seen more than once, in which local authorities, for various reasons, are more flush with money at one time than they are at others for this kind of purpose. However, being practical, in many areas the only way in which the purchase or the running of community assets that are being disposed of is going to work is through some kind of subsidy from the local authority. It may be from some other public body but it is most likely to be from the local authority. In many areas, it simply will not happen and simply will not work unless that happens.

The subsidy might be relatively modest or it might be quite substantial—or it might be a big subsidy to purchase the asset and then no subsidy, or a small one, towards the maintenance of it, or the other way round. It all depends on the circumstances. But in practice, unless there is an active interventionist policy by local authorities in areas that are not as prosperous as a few places appear to be, it is simply not going to happen. It may happen on a small scale. The noble Lord, Lord Patel of Bradford, said earlier that communities can raise money. I agree with him. They can. But very often they will raise money as targets and as matching funding as against other grants, and so on. Therefore, it seems to me that local authorities ought to have those powers.

I may be told that, at least in the areas that do not involve subsidising a purchase or passing it on at a lower price than cost, the local authority has these powers anyway—and if they have not, they will have them under the general power of competence, and therefore this amendment is not needed. A short debate is needed on the role of local authorities in this matter and the absolutely central role that they will have to have if this is going to work in a lot of areas, and certainly the areas that I am familiar with. I beg to move.

[Baroness Hanham]

My Lords, we appreciate the intention of this amendment and agree that local authorities have an important role in assisting community interest groups to take on assets of community value. Indeed, the Secretary of State has announced a social responsibility deal for councils, asking them to give greater support to voluntary and community groups. However, that does not need new powers; they already exist. Therefore, this amendment is not necessary.

Local authorities already have wide powers to acquire land by compulsory purchase—for instance, to secure the proper planning of their area and grant public access to land for recreation. In June, we published revised guidance to local authorities to take seriously all viable requests from voluntary community groups put to them for the compulsory purchase of a threatened community asset. But community purchase is not a step to be taken lightly, and the local authority has to demonstrate a compelling case in the public interest that outweighs the private interests of the current owners.

The amendment goes further to suggest that local authorities be given the power to sell the acquired site to a community interest group. Local authorities already have extensive powers to dispose of land, including under the general disposal consent the power to sell land at less than market value, if it is for the social, economic and environmental benefit of the community. We therefore ask that the amendment be withdrawn as it is not necessary.

[Lord Greaves]

I am grateful to the Minister for saying what I thought she would say—but it is important to have it on the record in relation to the system or scheme that is proposed. One problem with compulsory purchase is making the case that the interests of the wider community outweigh those of the individual who owns the property in the first place. When you have community facilities that are not being put on the market and whose owners are closing them down and refusing to consider transferring them, or are putting them on the market deliberately to be bought by people who are not going to use them for community purposes, an interventionist role for local authorities may be necessary in some cases. I am grateful for what the Minister said and beg leave to withdraw the amendment.

Amendment 147DA withdrawn.

Clause 85 : Compensation

Amendment 147DB

Moved by

[Lord Beecham]

147DB: Clause 85, page 67, line 34, leave out “may” and insert “must”

[Lord Beecham]

My Lords, the Minister and I have previously exchanged amicable words about the question of compensation and it is clear that the Government have an intention to bring forward regulations. However, the Bill does not strictly require that. The purpose of this amendment is to reverse the onus. In a previous amendment the noble Lord, Lord Howard, who is not now in his place, wished to transfer “must” to “may”. In this clause, I want to do it the other way round and substitute “must” for “may”. The intention being what it is, I cannot see any difficulty in the Minister accepting this.

There are legitimate concerns, some of which we have heard today and previously, about the position of owners in relation to the possible losses that they might incur as a result of the processes created by the Bill. There is the question of delay, the loss of a potential purchaser and so on, and perhaps other expenses involved in contesting the situation. I appreciate that time is still running on this, but it would have been helpful to have had draft regulations. I hope that by the time we get to Report, there will be draft regulations because we need to be in a position to assure landowners, business owners and so on that there will be a proper scheme for compensation and a suitable method to adjudicate the amount in the event of a dispute. That is the purpose of my second amendment, Amendment 147EA, which would refer any contested issue to the district auditor—I beg your pardon, not the district auditor but the district valuer—as would be the case in relation to a compulsory purchase, with which this is an analogous situation.

As it is, the clause indicates that the regulations which might be made under it will deal with a range of matters with the widest possible discretion for the Secretary of State on compensation—the amount, who is to be entitled to it and so on—and, indeed, on the review of decisions made under the regulations. It would help the passage of the Bill and help reassure people with an interest if, by the time we get to Report, at least draft regulations could be tabled and discussed. In the mean time, perhaps some comfort could be given by going beyond the expressed intention of declaring that regulations will be made to accepting this amendment, which would require regulations to be made to deal with these matters. I beg to move.

[Lord True]

My Lords, I am grateful to the noble Lord, Lord Beecham, for raising this matter. I referred to it in earlier remarks and I will not repeat what I said, but it would be extremely helpful for the Committee to see this, given the far-reaching potential range of the regulations—who is to pay, who is to be entitled, what it should be in respect of, the amount, the procedure, appeals and so on. That is not only from the point of view of the potential effect on landowners but, as I argued earlier, from that of local authorities. I would not expect my noble friend to answer this now.

I have now found the financial memorandum to the Bill—it is indeed £21 million which is suggested as the total cost to local authorities—where we are told that funding for these new burdens will be provided through the Secretary of State. I wonder whether that is the case. When the regulations are produced, I wonder whether my noble friend could give some estimate of what she thinks the total cost of compensation levied on local authorities might be, assuming that it is levied on local authorities. From the financial memorandum, it may be that the Secretary of State is going to produce the money. That is not clear to me but perhaps those things could be clarified when the note for which the noble Lord, Lord Beecham, has asked is laid before the House.

[Baroness Hanham]

My Lords, the question of regulations is not going to be in my hands. I will make sure that the request that they should be available is passed on but it is not up to me, I am afraid, to make sure that they are. I assure noble Lords that we recognise the importance of offering compensation and have said that in the consultation document.

Through the consultation we sought views on the detail of the scheme—for instance, who should be entitled to compensation, what costs could be compensated and how claims should be dealt with. The noble Lord, Lord True, asked about those matters. We are therefore sympathetic to the spirit of Amendment 147DB, but believe that it is unnecessary as we have already indicated our commitment to establishing a compensation scheme and will be making regulations to do so. I will try to ensure that we at least have sight of those.

Amendment 147EA is also not necessary because we are proposing a government amendment to add to Clause 85 the power to give a right of appeal. That would be done through regulations. This will be an additional power to give landowners the right to request an internal review by the local authority of its decision on compensation.

We consider that the proposed introduction of an external right of appeal will be more suitable than the proposal in Amendment 147EA to have the appeal referred to the district auditor, by which we presume is meant an independent auditor appointed by the Audit Commission. Their role is to check the financial—

16:45

[Lord Beecham]

I had intended to say that depends entirely on the district valuer.

[Baroness Hanham]

My Lords, I apologise, the noble Lord did correct himself. However, we still believe that we have a better route than the noble Lord. We do not think that the district valuer would have a role in this. As I say, we think that that provision would be unnecessary in view of the legislation that we will be introducing.

[Lord Beecham]

My Lords, we will have to see what happens as regards the draft regulations. I cannot say that I am persuaded by the argument that the district valuer is not the appropriate person to deal with these matters. However, we shall see precisely what the Government have in place when somebody else provides the noble Baroness with the ammunition. I hope that by Report we can have a clearer picture and possibly reach an agreement. If not, it may be a matter on which we shall have to take the opinion of the House. In the mean time, I beg leave to withdraw the amendment.

Amendment 147DB withdrawn.

Amendment 147E

Moved by

[Baroness Hanham]

147E: Clause 85, page 68, line 9, at end insert—
“(vii) appeals against decisions made under the regulations.”

Amendment 147E agreed.

Amendment 147EA not moved.

Clause 85, as amended, agreed.

Clauses 86 and 87 agreed.

Amendment 147F

Moved by

[Baroness Hanham]

147F: After Clause 87, insert the following new Clause—
“Co-operation
If different parts of any land are in different local authority areas, the local authorities concerned must co-operate with each other in carrying out functions under this Chapter in relation to the land or any part of it.”

Amendment 147F agreed.

Clauses 88 to 90 agreed.

Clause 91 : Meaning of “local authority”

Amendment 147FZA

Moved by

[Lord Beecham]

147FZA: Clause 91, page 70, leave out lines 14 to 22 and insert—
“(a) a London borough,(b) a metropolitan district,(c) a unitary council,(d) a county council, or(e) by agreement between a county council and one or more of its constituent district councils, a district council.”

[Lord Beecham]

My Lords, this amendment reverts to the issue that I raised previously about districts within counties and who is to be the appropriate authority. It suggests a framework whereby there may be a shared interest that might be disposed of between the two tiers within county areas. I am not asking for a decision on that today but perhaps it is something that we might look at. The views of the Local Government Association might be taken on how best to deal with these matters. I suspect there may well be cases where at county level there is an interest—at district level, possibly not—and it would be invidious if there was a refusal by a district council when the county council might wish to accede to a request. It is worth exploring that grey area further. If the noble Baroness will indicate that discussions can take place, I would be very happy. I beg to move.

[Lord Greaves]

My Lords, I have tabled Amendments 147FA and 147FB in this group. I do not wish to pursue the technicalities of what they say but they are a means of probing the role of national park authorities in all this—whether the proposed system would be any different in national parks, and whether the special nature of national parks might mean that the system will have to be tweaked or be quite different in those areas. I shall be interested in what the Minister says.

In relation to the amendment of the noble Lord, Lord Beecham, and with my district council hat on, I have to say that if this job is to be done—and, as I have already demonstrated, I am sceptical about whether it will have any real value—this really is a matter of local knowledge. Whether a particular pub in a remote area in the Forest of Bowland is an appropriate community asset to be stuck onto this register, or whether it is the kind of pub that the noble Lord, Lord Hodgson, was talking about—which is nothing to do with the local community—are local judgments. I cannot see the county barons who sit in their fastness in county hall having much of an idea about it. If they were to set up a system, they would have to decentralise it and set up systems at local and district levels. If county council functions can be operated at those levels, they should be operated by district councils. That seems to be common sense, but we discussed that earlier.

[Lord Beecham]

Would the noble Lord concede that in children’s or adult services there might be a need and a demand for buildings or other facilities to be made available whereby the actual funding and support would probably come from the county council, rather than the district, and that there would be no need for the county to be involved? That is the sort of issue that I suggested we needed to discuss. Given the costs of all this, might not some very small district councils find it difficult to operate this scheme? Is there not a case for flexibility here between the two levels—obviously while promoting co-operation between them—in the interests of the community that we would all seek to be fulfilled?

[Lord Greaves]

My Lords, the last point might apply in some places. If it does, the basic power should rest with the district council, and if there is to be an agreement, it should be devolved upwards from the district to the county, rather than the other way round, which the noble Lord’s amendment suggests.

His other point about children’s services or other care services may be valid, but it is clearly different from funding a service—for example, totally or partly funding a voluntary or community-based service—where funding might well come from the county council. However, as to the question of who maintains the asset register, which is the narrow point we are talking about, it seems to me that if this job is to be done it ought to be done by the more competent people who, in this case, are probably the more local people.

While I am on my feet, I think that I need to declare another interest, given that I am talking again about councils. I am informed that in this past week I have been added to the long list of vice-presidents of the Local Government Association. I am not sure that it was the thing that I most wanted in life, but if it is an honour, it is an honour. I am sure that it is nothing like as big an honour as being a freeman of the Royal Borough of Kensington and Chelsea, but we all pick up these crumbs where we can. So I declare that interest.

[Lord Beecham]

Did the noble Lord by any chance replace the Secretary of State as a vice-president of the Local Government Association?

[Lord Greaves]

I would like to replace the Secretary of State, but I do not think that there is much possibility of that happening. I do not know whether I would do a better job, but I might have better ideas—in some areas. I had better be careful what I say or the Whips will be after me again. We have been talking about Bradfordians a lot. There are about half a dozen Bradfordians in the Committee. The Secretary of State pretends to be a Bradfordian, but he is not really, he comes from the posh part of Keighley.

[Earl Cathcart]

The noble Lord, Lord Beecham, has twice raised an interesting point about county councils having care homes within a district and whether they should be involved. Could not the county council nominate that asset as an asset of community value? Then it would be registered with the district and, if something happened to it, the county council could make an offer to bid, or whatever it wanted to do. Would that not be the answer?

[Lord Beecham]

That is what I suggested under a previous amendment, but I think the whole area needs looking at.

[Baroness Hanham]

My Lords, that was an amusing exchange. I look forward to seeing the noble Lord, Lord Greaves, taking over as Secretary of State, although I do not think that the Secretary of State would appreciate that. This exchange is about matters which I have answered briefly, although, I appreciate, not in detail.

We believe that it is important that we clearly set out who should run the community right to buy. Clause 91 defines what we mean by local authority and who will be responsible for administering the provisions. It makes sense that a decision on listing is made directly by the local democratic authority, rather than any other. For that reason, we have chosen to give powers to specified local authorities to run the scheme.

Where there is more than one local authority in an area, we have decided that, in most cases, implementation of the scheme should be by the local authority with the relevant planning powers. That would mean that, in two-tier areas, the running of the scheme would fall to the district council. However, in the case of the national parks and the Broads Authority, which have planning powers for the area but are not elected authorities, we have left administration of the scheme with the local authority as having democratic accountability. We would expect the local authority to liaise with the local national park or the Broads Authority where appropriate. We also consider it important to retain the Secretary of State's power by order, if necessary, to amend the definition of local authority in the light of experience. Amendment 147A would remove that power, so we resist it.

Amendments 147FA and 147FB would give powers to a national park authority and the Broads Authority to make decisions on what is listed and to run the scheme. National parks and the Broads Authority have members appointed by the local authorities, but they are not themselves democratically accountable local authorities, so they would fall outside the scope of the definition of local authority.

Amendment 147FZA would replace the current list in Clause 91 of what counts as a local authority for the new list. Some items are the same, but the proposed new list would allow a county council in a two-tier area to take responsibility for administering the scheme by agreement with the district council or councils. That would remove the important link between these provisions and the planning authority. The new list also omits the Common Council—the City of London—and the Council of the Islands of Scilly and deletes the Secretary of State’s power to amend the list later for England, although not the power of Welsh Ministers to do the same in Wales. For the reasons I have given, I cannot accept the amendments, and I hope that noble Lords will feel able not to press them.

Amendment 147FZA withdrawn.

Amendments 147FA and 147FB not moved.

Clause 91 agreed.

Clauses 92 and 93 agreed.

Amendment 147FC

Moved by

[Lord Greaves]

147FC: Before Clause 94, insert the following new Clause—
“The purpose of planning
Before section 1 of the Planning and Compulsory Purchase Act 2004 insert—“A1 Purpose of planning
(1) The purpose of the planning system is to achieve sustainable development. (2) Any person exercising functions and duties under the planning Acts must do so with the objective of furthering the achievement of sustainable development and shall have regard in doing so to any guidance given for that purpose by the Secretary of State.A2 Interpretation
In this Act—
(a) “sustainable development” means development that meets the social, economic and environmental needs of the present without compromising the ability of future generations to meet their own needs and includes the application of the following principles—(i) living within environmental limits,(ii) ensuring a strong, healthy and just society;(iii) achieving a sustainable economy;(iv) promoting good governance;(v) using sound science responsibly;(b) “the planning Acts” include—(i) the Localism Act 2011;(ii) the Planning Act 2008;(iii) the Planning and Energy Act 2008;(iv) the Planning and Compulsory Purchase Act 2004;(v) the Town and Country Planning Act 1990;(vi) the Planning (Listed Buildings and Conservation Areas) Act 1990;(vii) the Planning (Hazardous Substances) Act 1990; and(viii) the Planning (Consequential Provisions) Act 1990.”

[Lord Greaves]

My Lords, I shall speak also to Amendments 147FD to 147FF, which are grouped. We had a good debate at the very beginning of Committee about sustainable development. We are now back to where many people may think that we ought to be, which is planning and the planning system. This is a serious attempt to strengthen the commitment to sustainable development in the planning system at all levels and to probe the definition of sustainable development and whether we can get a definition in the Bill, which some of us have tried with quite a number of Bills over the years. This is turning out perhaps to be one of the really important flashpoints as far as this Bill is concerned—certainly one of the key issues that is facing your Lordships as it goes through this Committee and then through the House. I do not think this discussion today will be the last we see of it.

The amendments do several things. The first amendment, as set out, is headed, “The purpose of planning” and states very clearly:

“The purpose of the planning system is to achieve sustainable development”.

It does that by amending the Planning and Compulsory Purchase Act 2004. Then it defines sustainable development as set out in one of the traditional definitions. One of the purposes of tabling these amendments is to probe whether the Government will tell us any more about whether they are trying to or intend to change that definition, and in what way. They may tell us to wait for the draft of the national planning policy framework, which we are promised we will have before Report. However, these are matters where we are going to continue prodding.

17:00

The second amendment changes the sustainable development duty under the same Act to make it stronger and absolutely clear that the duty would be to “further” sustainable development, rather than “contribute to” it, as it is currently set out in the Act. Noble Lords who were around when we discussed that Act will remember we had a lot of discussion about that and tried to get it changed to “further” sustainable development; we tried again in 2008 with the Marine and Coastal Access Bill as it went through the House and we are trying again now. At the moment the Act says there is a duty to contribute to sustainable development. These amendments increase the numbers of specific instances where that has to happen and list all the main planning legislation over the years—this Bill, the Planning Act 2008, the Planning and Energy Act 2008, the 2004 Act and the parent Act, the Town and Country Planning Act 1990. They also add specific duties in relation to neighbourhood development plans, development control, local development orders and the neighbourhood development orders that are being introduced by this Bill and by the community right-to-build orders. I think we will come back to those as there are some amendments from the noble Lord, Lord McKenzie, when we actually get to discussing neighbourhood development orders and so on, which try to make it specific in those cases, again with the same definition.

The third amendment amends the Planning Act 2008 in a similar way. All these amendments change “contributing to” sustainable development to the much stronger “furthering” sustainable development. The final amendment is about sustainability appraisals in the Planning and Compulsory Purchase Act 2004 and the preparation of local development documents, which go into what people have got used to calling the local development framework since the 2004 Act and which the present Government are encouraging us to call the local plan again, which seems to be a better way to describe it. If we never have to talk about local development frameworks again, I would be very happy, and we can talk about the local plan, of which by and large people have some understanding.

Section 19(2) of the Planning and Compulsory Purchase Act says:

“In preparing a local development document the local planning authority must have regard to”,

and we want to add,

“the findings of the sustainability appraisal required under subsection (5).

We also want to add that the local planning authority must,

“proceed with the proposals in each development plan document only if it considers that the results of the appraisal indicate that it is appropriate to do so”.

In other words, there has to be a very clear and overt sustainable development check on each of the documents. Furthermore, the question of whether the authority has complied with that duty is a central part of the independent examination.

This issue has become rather topical. An article in the Times purported to leak the draft national planning policy framework. I have no idea whether it was accurate. When I have asked people about it, they have said, “Don’t believe everything you read in the papers”, to which I have responded that it has been a very long time since I stopped believing everything I read in the papers. Nevertheless, the matter is topical. It is being discussed partly because of the conflicting messages that have come from different members of the Government at different times.

There are two main issues that, at the very least, we have to get to the bottom of, understand and, I hope, get an acceptable resolution to before the Bill leaves this House. First, will the Government at long last be persuaded to put sustainable development, as well as a definition of it, firmly in the Bill, and what will that definition be? People who, like me, have been arguing for a firm definition all these years might not be very pleased if the Government say, “Yes, we’ll put it in”, and then we do not like the definition. Perhaps that would be even worse.

Secondly, will it be the traditional kind of statement that balances sustainable economic development, sustainable environmental development and sustainable social development, and what will the balance be, or will there be a very different presumption for development, which might be called sustainable development but is basically economic sustainability? If there is an environmental or social spin-off, that is fine, but at the core will be economic growth. It would be foolish for any of us to be against economic growth but that clearly has to be balanced with environmental and social improvements. One might say that there needs to be economic growth, environmental growth and social growth.

It is easy to pigeonhole this issue as a simple choice between pure economic growth and a more balanced sustainable approach. However, it is not quite as simple as that because individual decisions have to be made which tilt the balance one way or another. What matters are the overall mix and the overall result. Nevertheless, are we looking for pure economic growth as sustainability or for a synthesis and a balance of economic growth, social progress and environmental sustainability and improvement? I have said that about three times in different ways but it seems to be absolutely fundamental to where we are going with the Bill.

We are not going to resolve this matter today—not least because we are not going to get the draft national planning policy framework. We have had a semi-unofficial version of it but none of us quite understands whether it is right or not. We have articles in the Times saying that the Government are going to unleash massive building all over the green belt and that the five-year supply of housing is going to be the only thing that matters in local plans. This is probably an exaggeration, at the very least. Nevertheless it is very worrying. If a positive planning system—that is the wording in the draft NPPF, which we will see when we get it—is to be brought in, it will mean that the Government expect the planning system to encourage growth proactively to meet the needs of business. If that is predominantly what it says, then that is a very substantial shift and one that, at the very least, this House will want to scrutinise very closely and about which it might be very concerned. I beg to move.

[Lord Jenkin of Roding]

My Lords, I have read these new clauses with some interest. I am not sure that they could sensibly form part of the Bill, but they provide a useful vehicle for debate. When will we get the national planning policy framework? It was foreshadowed in a very positive and, to my mind, very welcome Statement made by my right honourable friend the Planning Minister, Mr Greg Clark, on 15 June. It addresses many of the questions which the noble Lord, Lord Greaves, has been speaking about.

What attracts me is the presumption in favour of sustainable development, which is right, but the default position will be that an application should be accepted, subject to the important environmental safeguards that one would need to have for such important features as the green belt, national parks and so on. This is quite different from what has grown up over the years. It was already apparent when I was in charge of the planning system, which was several decades ago, when there almost seemed to be a presumption that it should not be allowed. If we can change the balance, that would be right.

We are facing a period of need for more jobs and more homes, which may well require development to go ahead. For too long we have been prisoners of the nimby phenomenon and people making enough fuss to stop something happening. I remember being told by one of my very senior officials, “Just watch it, the man who starts as the champion of new homes and eventually finds himself the owner of the last home in a new development, immediately signs up to become the secretary of the local preservation society”. That is nimbyism. I was also told of another phenomenon, note—not over there either. Of course, it is summed up in the well-known expression banana—build nothing anywhere near anybody. These are public attitudes which are deeply ingrained and, in the past, they have tended to colour the way in which the planning system works.

As I said, we need more jobs and we certainly need more homes. A planning policy that is worth the paper it is written on must have that very firmly in mind. I hope that, when we get the national planning policy framework, it will be made very clear. Having said that, I repeat the question: when will we get it? Will we have it in time for the Report stage of the Bill? It is rather like Hamlet without the Prince of Denmark; we do not yet know what will be in it. Like my noble friend Lord Greaves, I do not believe the press on such matters. They have not seen the draft but they think they have; they have seen something. I await the genuine document. Please may we have it fairly soon?

17:15

[Lord Cameron of Dillington]

My Lords, I support the amendments in this group. I put my name to them but was too late to get on the Marshalled List. I support them not because they are necessarily the right amendments—as the noble Lord, Lord Jenkin, said, the wording could be different—but because I believe strongly in the principles of sustainable development. In the old days it was called “stewardship”. Probably the most important thing that we can do in our short stay on this planet is to leave it in as good a condition as it was when we arrived—or, one hopes, better.

The great thing about the principles of sustainable development is that they can cater for short-term needs such as today's economic recession, but also ensure that the best solutions will look after today's and tomorrow's needs of people, of the countryside and of the environment that surrounds us all. We must plan—as most farmers farm—as though we are going to live for ever.

We can be justifiably proud of the planning system in England. I say “England” because it is the fifth most densely populated country in the world, yet we still have some of the most sensational countryside in the world, including our national parks, our AONBs and our coast. Who has not revelled in the TV programme of that name? Even some of our ordinary, unremarked villages, dales and copses are an integral part of our historical culture. We must not damage them.

Bill Bryson once wrote a foreword to a booklet on the English countryside. I know that because I wrote a co-foreword to the booklet. Noble Lords can imagine which foreword was the most readable. In his, he said that one of the unique features of the British countryside was that it was almost certainly the most loved countryside on earth. I believe he is right. Therefore, politically this clause has huge support from the vast percentage of our population, including most business leaders. The clause is in no way anti-business and anti-development. It merely incorporates a different way of thinking about progress.

The other reason I support the principles behind the amendment is that it would give certainty to all sides involved in the planning system and would endure. I spoke at Second Reading, and will do so again in Committee, about the necessity for a framework of rules to underpin our planning system and make it effective so that everyone will know where they stand. There is no doubt that the existence of a clause such as this would be a central pillar of such a framework.

What would happen if a local development framework or a neighbourhood plan—or even a strategic impact assessment, if I have my way later—is not ready on time or is not renewed when it should be? The existence of a clause such as this could be an important safety net. Its principles could be a satisfactory guide for the planners of the day and it would provide a framework within which we would all understand the principles on which our planning system operates, in the absence of a detailed local context. Therefore, I urge the Government to accept this or some other similar proposal.

[Baroness Andrews]

My Lords, I am very happy to support the amendment and to follow the noble Lord in much of what he said. Amendment 147FC is very important. I feel a bit like a sinner saved, because I remember the many arguments that I marshalled in relation to the 2008 Act about why it was very difficult to put such a clause in the Bill. I hold my hand up and say that it is absolutely right that we do so in this Bill and make it good.

It is very timely to start with a positive definition of the purpose of planning. Planning gets a bad press. It is misunderstood, and most of the time people come across the planning system because it stops them doing things—or they assume that it will. A positive definition stating that its purpose is to achieve sustainable development is very important now.

Perhaps the Minister will say that the amendment is not needed and ask what other purpose planning could have. However, it is because the purpose of planning is obscure that we need a definition. We need it precisely because of the limitations on the definition of sustainability that the Government offer in their presumption in favour of sustainable development. We need a consistent definition that does not retreat from the Brundtland definition, and I believe it is time that we had a legal definition in the Bill that reads across to other legislation.

The noble Lord, Lord Jenkin, has already referred to the pressures in the system. There is pressure on land, the greatest non-renewable resource we have, for housing, employment, green space, aggregates and all the things we need increasingly urgently for a growing and ageing population. We need to balance land for housing and all those other demands within a framework that is trustworthy and transparent and works. Like the noble Lord, Lord Cameron, I believe that in England we have a planning system that works. A statement that planning is there to sustain the needs of the community within environmental limits serving the well-being of society alongside a sustainable economy is extremely timely and welcome, but the amendment becomes crucial when you set it alongside the limitations of the definition set out in the presumption of sustainable development as published by CLG. When you read it and follow its logic, it destabilises the careful definition of sustainability offered by Brundtland.

This amendment lays a responsibility on our generation not to put at risk future generations in the way we use our resources. Anything that moves away from that balance is extremely regressive, out-of-date and out of tune with what most people want, and that includes the business community. My experience is that good business leaders know that economic growth and sustainability are not incompatible. Indeed, good planning plans for both because they are symbiotic. The argument that growth and sustainability are interdependent is no longer a minority interest or a minority argument. It is mainstream in what planning is trying to do and what the economic and business community is trying to do in terms of its own future. It does not make sense to invest in unsustainable development, and to collude with the notion that there might be a conflict between growth and sustainability is rather irresponsible at this point. If we move to dilute that, we move the clock back and deny credibility to those who do not believe that climate change is a reality, and we undermine effective planning.

However, I agree that the amendment is not perfect. Few amendments are. The text serves very well in terms of its principal definition. I am confident that the Minister is going to accept the amendment or, at least, that he will take it away for further consideration. I have to put on my hat as chair of English Heritage and declare an interest. I believe that the definition can be improved. I would like to see inserted a reference to sustainable development meeting the social, economic and cultural needs of the present. I believe that takes on board the entire well-being that is represented by our landscapes, our historic environment and all the things that make places work for people and make our country so special. I believe that definition of cultural will give depth to the purpose of planning, bring in the nature and wealth of our built environment and give it protection. I hope that Minister will be very pleased to accept the amendment when he replies.

[Lord Berkeley]

My Lords, I am very pleased to support these amendments. They are some of the most important ones in the Bill because I get the impression that the Bill somehow dilutes the sustainability agenda and gives rather confusing messages, as we have heard. It is going to encourage more development, possibly in the green belt, if the Times article can be believed. Then we have the nimby’s charter which allows anybody to have a referendum if they want to stop big projects. At Second Reading, I said that if the Secretary of State wants to build his high-speed line to Birmingham, he will have 25 referendum votes against it all the way through the Chilterns. I do not know whether that is the way to build a sustainable railway.

The problem we have at the moment, which I hope these amendments could help dilute or even get rid of, is that over the years we seem to have built up a policy whereby we believe in sustainability unless it costs us more. Then we somehow find a way of saying, “We are going to have to do this even if it costs more” or “If it does not cost any more and is cheaper, it may use up a bit more CO₂ but we cannot help it”. For example, we have got the 80 per cent carbon reduction target, which this Government have confirmed. But I suspect that if there are problems with nuclear power stations—I hope that there will not be any but if there are—windmills or something else, the dear old coal-fired power stations will be fired up as no Government will allow the lights to go out if they can pollute the atmosphere with a bit more CO₂. The same would happen with transport.

I have just been involved in investigating with Thames Water the tunnel that will collect all the drainage from London and go from somewhere in Hammersmith underneath the river towards Beckton. I discovered that Thames Water is planning to remove all the spoil by road, which I calculated would be about 500 trucks a day from central London. That is about 10 times what Crossrail was criticised for when it was moving spoil from one of its stations. I was told, “This is all very fine. If you want us to be more sustainable and not cause quite so much damage to the residents of London, it will cost someone £70 million more”. I asked where the evidence was for this and was told that the regulator would not allow it. We are still in discussions but it is extraordinary that it can claim that this is a very sustainable solution. It might make the river cleaner, but we need to debate whether it is the right solution. The fallback situation was, “We will use road unless someone can pay us extra”. To some extent, that reflects the national policy statement, to which we will come in future amendments, which basically says that you should use river or railway transport rather than road if it is economically viable. Of course, the figures can be adjusted to suit whatever you want.

The important thing is that even for those big projects, the policies as set out in these amendments need to filter down, as other noble Lords have said, all the way through the planning system to even the smallest planning application and discussion. It seems to me that this is a good way of setting out the structure, about which we can debate many more things later. I join other noble Lords in asking the Minister when we will see this national planning policy framework. I would also ask—again, this will come up later—whether it will be statutory, voluntary or advisory.

On the basis that the House of Commons is required to approve and debate national policy statements, will the House of Commons and, I hope, the House of Lords, be asked to debate this one? There is quite a lot to talk about on this and a lot of questions to be answered. I join other noble Lords is asking this fundamental question. Do the Government accept the need for some comprehensive sustainability definition in the Bill?

17:30

[Baroness Byford]

My Lords, I should like to add a few comments to those made by the noble Lord, Lord Greaves, in moving his amendment. All those who have spoken are very conscious of the fact that planning in the future must surely be a balance between social, economic and environmental needs. Subsection (4) of Amendment 147FD in the name of the noble Lord, Lord Greaves, clearly defines that. However, I have a slight problem with what to include and not include in the list. It is always the same whenever there is a list. Certainly, I have no difficulty with,

“social, economic and environmental needs of the present without compromising the ability of future generations to meet their own needs”.

That is something to which I hope the Minister will, when he responds, say, “Yes, this is something that we feel is extremely key”. I have a slight difficulty as we go through paragraphs (a), (b), (c), (d) and (e) because it is quite difficult to strike a balance between them. I suspect that the noble Lord, Lord Greaves, might well feel, for example, that environmental limits should be given a higher priority than the economic side. I think that the two go together and you cannot define them separately. I have difficulty with paragraph (b). We would all like to see,

“ensuring a … healthy and just society”,

included but most of us know that the society we live in is not fair for all as it is. Therefore, I have concerns about putting that in the Bill.

Turning to paragraph (e), “using sound science responsibly”, I would much rather have seen something such as “using our resources better”. We have such wonderful new technologies available to us now. We can make better use of water and can use better means of energy-saving. In future, we shall see many more of those technologies coming on-stream.

I do not wish to be a killjoy on the amendment. I support the thrust behind it. However, as it stands, it raises certain questions. Lists have never been one of my great loves. One often puts things in that one should not, or leaves out things that ought to be included. However, I very much support the theme behind subsection (4), which I started by mentioning—social, economic and environmental needs.

[Lord McKenzie of Luton]

My Lords, I have put my name to these amendments and am happy to support them. The noble Lord, Lord Greaves, has set out the case in his usual exemplary manner. My noble friend Lady Andrews said that it was right that we should have a positive definition, which this is. She referred to the need possibly to expand it to include cultural needs. We have the opportunity to debate that in relation to other amendments in the not too distant future.

The noble Baroness, Lady Byford, challenged the definition and the listing of some of the principles. However, this is not a new definition, but one that has been around, and internationally accepted, for some time. Those principles were enshrined in the 2005 sustainability principles that were set out by the previous Government and have, I believe, been accepted all round. My noble friend Lord Berkeley referred to a fear of what has been accepted to date being diluted. The noble Baroness may also have strayed into that territory. The noble Lord, Lord Cameron, said that there was no conflict between business and the environment. The definition and proposition are neither anti-business nor anti-development.

There are imperatives for having this definition in the Bill. The planning proposals in the Bill represent a major upheaval for the current system. Amid all the change, it is important to anchor a focus in the purpose of planning. There is concern among some that, despite the rhetoric and the expressed ambition to be the greenest Government ever, that ambition is being sidelined. With a new governance framework involving neighbourhood planning, the achievement of sustainable development must be at the heart of the local decision-making process.

This issue is brought into sharper focus because there are apparently other versions of the draft national planning policy framework. Like other noble Lords, including the noble Lord, Lord Jenkin, I ask when we shall see the official version, which will clearly help our deliberations through the myriad amendments on planning. There are concerns that the drafts vary from the previously adopted and accepted meaning enshrined in the 2005 UK sustainable development strategy. We have also seen, along the way, the demise of the Sustainable Development Commission on the basis that its funding will go towards mainstreaming sustainability.

We took it from earlier responses by the Minister, Lady Hanham, at Second Reading that we were in accord with the definition of sustainable development and the five principles set out in the amendment. I think it follows from that that we should be in accord with the “purpose of planning” definition, but perhaps the Minister will take this opportunity to reconfirm that on the record. Of course, we must await the final, official draft of the NPPF, but perhaps the Minister will also say whether he considers the current version of the NPPF to include an identical definition of sustainable development, the purpose of planning and the principles set down in this amendment. It is important for us to be clear whether our discussion with the Government—and a possible disagreement with the Government on this—is on the substance of the definition or the principles, or on the fact that it is in the Bill, in primary legislation.

These issues have been brought into focus by a number of matters which lead to concerns that attempts are under way to redefine sustainable development. For example, the draft presumption in favour of sustainable development—my noble friend Lady Andrews referred to this—has a definition that states:

“stimulating economic growth and tackling the deficit, maximising wellbeing and protecting our environment without negatively impacting on the ability of future generations to do the same”.

Such statements give rise to fears that overwhelming weight might be given to the need to support economic recovery and to incentivise development that will facilitate this.

Of course tackling the deficit is an issue of huge importance, although—this is probably not the occasion for the debate—we believe that the Government’s approach is dealing with it too far and too fast. However, economic growth is only one of many objectives that the planning system can and is meant to deliver. On sustainable development duties, as the noble Lord, Lord Greaves, said, there are existing duties under the Planning and Compulsory Purchase Act 2004 and the Planning Act 2008 on local planning authorities and the Secretary of State to prepare planning policy with the objective of contributing to the achievement of sustainable development. However, in order to properly achieve sustainable development, the statutory duty, as the noble Lord said, should be more positive and proactive. That is why we support the amendment in this form.

The noble Lord, Lord Jenkin, was not particularly enamoured of this form of amendment. He made reference to the default position of LDVs, where there is not a full suite of plans at local level in place. One issue that seems to be emerging is that, if the new NPPF is written in a high-level general way and is therefore not specific around special issues, and if LDVs are not in place, then the presumption and the default position could open up opportunities for development, which would not be the case if, in fact, that local development framework was in place. If I have misunderstood the noble Lord, I apologise, but I think that he almost equated sustainability with nimbyism. I do not believe that that is right.

As other noble Lords have said, this is an extremely important start to our deliberations on planning. It is fundamental, we believe, to get that definition clear, agreed and in the Bill, because that will help drive our deliberations on a whole raft of stuff, the tiers of planning, that flow from the Government’s effectively new system.

[Lord Lucas]

My Lords, the noble Lord, Lord McKenzie of Luton, contrasted two definitions of sustainability—theirs and ours, as it were. May I say to my noble friend how much I prefer ours, which is in plain, understandable English? One can understand what its implications are for any particular project, while the definition in these amendments is largely phooey.

[Lord Taylor of Holbeach]

My Lords, I will not enter into that controversy, but I will say that it is quite nostalgic to be discussing these issues. Indeed, my noble friend Lord Greaves and I have been arguing a case not entirely dissimilar from that of today in other Bills and in other situations—only the geography of the Chamber appears to have changed, whereas the arguments remain. However, in my contribution to this debate, I think that I can show that the argument has in many ways moved on, and I would like to think that the Government have also moved on. I have enjoyed listening to the debate because I am interested in the subject area and, as I am sure noble Lords will know, I share the concern that all developments should be sustainable. I also think that it is important that we try to make sure that a theme of sustainability runs through all this planning section of the Bill and, indeed, through the Bill as a whole.

The Government's commitment to sustainable development should not be in doubt. That point was made forcefully in the statement published in February by the Deputy Prime Minister and the Secretary of State for the Environment. We have recently indicated how we intend to introduce a presumption in favour of sustainable development in the forthcoming national planning policy framework. I agree with all noble Lords that it would make today’s debate so much easier if we were all clutching a copy of that freshly minted document, which would inform our debate. However, I can reassure noble Lords that the document will be published not only “shortly” but “very shortly”, in which case I feel that I can assure noble Lords that the document will be available before we discuss these matters on Report. The document will inform the debate, and I think that everyone senses that in the way that the arguments have gone.

On the subject of the national planning policy framework, the noble Lord, Lord Berkeley, asked whether the document would have statutory force and whether the House of Commons or House of Lords would have an opportunity to debate it. The national planning policy framework—which, as that is a difficult thing to say and we know what we mean, I think I will call the NPPF—will be an important material consideration in all planning decisions. The NPPF will flow throughout the whole planning system from top to bottom: plans will have to take it into account and individual decisions will need to be plan led. As has been said, the Minister for Planning has made a commitment that he will present the framework to Parliament. Obviously, it will be up to the usual channels to provide an opportunity for it to be debated.

As I say, the NPPF is an important document and we want that presumption in favour of sustainable development to be at the heart of the system. We have said that we see the three pillars of sustainability—namely, economic, social and environmental—as interconnected. The NPPF will be pro growth, but it wants that growth to be sustainable, and I am sure that all noble Lords would share that view. Therefore, we understand the genuine intentions driving these amendments, but perhaps I can explain why, in the Government’s opinion and in the context of this Bill, they might well set the bar too high.

For example, Amendment 147FC seems to expect any and every planning decision to be reached with the objective of furthering the achievement of sustainable development. However, we must bear in mind that planning decisions can require trade-offs. There must be freedom for decision-takers to make such choices according to the circumstances of the individual case. For example, what are the implications of applying the duty in Amendment 147FC to applications to carry out works to nationally important listed buildings? The noble Baroness, Lady Andrews, would understand the implications of a rigid sustainability test for that task.

17:45

[Baroness Andrews]

Since the Minister raises that point, my argument would be that the conservation of historic buildings is a central expression of sustainability. Sustainability in terms of our historic environment serves a wider purpose and does not back up the case that the Minister would want to make.

[Lord Taylor of Holbeach]

The case that I was making, if I may repeat it, is that the materials used and the standards required may not necessarily be the most sustainable. One has that with listed-building provision already. There are limits to a rigid test of sustainability, which I was hoping to illustrate by using that example.

[Lord Berkeley]

Is the Minister suggesting that it would be better if one of my noble friend’s buildings fell down? Or is he talking about using old-fashioned mortar instead of new cement? It seems a bit of a detail in the context of this debate.

[Lord Taylor of Holbeach]

Of course, my Lords, it is a detail; it is an illustration. All noble Lords have said that they felt that the context of this debate was the influencing of all planning decisions. This planning section of the Bill deals with just those issues, when it comes to local decisions being made in the context of sustainability. That is why it is important to understand the implications of the detail of the amendment and why—without my arguing with the general principle—there may be deficiencies in it as it has been presented by my noble friend and supported by a number of noble Lords.

Amendment 147FD is formulated slightly differently but in essence applies the same set of expectations on plans, most—but in this case not all—decisions under the planning Acts, and policy or guidance issued by the Secretary of State relating to planning functions. The amendment, like Amendments 147FC and 147FE, risks pushing to and beyond the limits of planning. I have no difficulty with the five principles of sustainable development promoted by the previous Government, but they risk loading on planning more than it can deliver. Would all five have to be met by any development proposal? How would, for example, someone extending their home demonstrate that they are promoting good governance?

Amendment 147FE focuses on the planning regime for major infrastructure—the noble Lord, Lord Berkeley, referred to a project here in London. It proposes a number of changes to the existing legislation, including extending the sustainable development duty currently applicable to the preparation of national policy statements to all decisions on applications relating to major infrastructure. In this, it is consistent with Amendment 147FC and mirrors Amendment 147FD. It therefore has the same pitfalls.

For example, applying the sustainable development duty at the decision stage could introduce great uncertainty, because it would require the decision-maker to second-guess policy in the national policy statements, which will have been scrutinised and secured Parliamentary approval. By applying the sustainable development duty in the way proposed, the amendment could unintentionally undermine our efforts to deliver energy security.

I remind the Committee that we already have sustainable development duties applicable to the planning system. These are as follows. For major infrastructure, the duty applies to national policy statements for good reason. These national policy statements set out the policy framework for decisions on major infrastructure and integrate the Government’s objectives for infrastructure capacity and development with its wider economic, environmental and social policy objectives, including climate change goals and targets, in order to deliver sustainable development. We also have a planning duty on sustainable development in the Town and Country Planning Act system. The duty applies to those preparing plans, which in turn bears on planning decisions.

The noble Lord, Lord McKenzie, emphasised how important it was that we have a future debate on these subjects with the NPPF available to us. I am sure that it will inform such debates and will be greatly to our advantage. I have not seen any text on this document at present. However, we know that the current duties within the planning system work. They avoid the risks that these amendments pose to the Bill and I hope that my noble friend will feel free to withdraw the amendment.

[Lord Taylor of Goss Moor]

My Lords, I have listened carefully to what the Minister had to say but, although I welcome the Government’s commitment to sustainable development, the longer he spoke the less I was convinced of the argument he was making.

I conducted a review of rural planning policy for the previous Government. The first chapter of the review was devoted to sustainable development because there are potential perverse consequences in the way in which it is interpreted by planners at the local level from time to time. Most typically they argue that the community is not sustainable because it lacks public transport and other facilities, or people have to travel into a town to do their shopping, and therefore no development should be allowed because it is unsustainable. This ignores the fact that no development will make the community less sustainable in the long term, and that change can improve the sustainability of a community even if it does not deliver perfection.

With his colleagues, the Minister has committed the Government to the principle that we should favour sustainable development—so much so that there will be a presumption in favour of such development in the absence of other policy. Yet the Minister argues now against these amendments on two grounds. The first argument is that the detail of the amendments is imperfect—and, indeed, most of the comments against have been around that. However, if we are to believe that we should incorporate policies that favour sustainable development as a default option, surely it is incumbent on us to have a clear idea—and, more importantly, that the Government have a clear idea—of what we mean by that. If the Government do not have a clear idea, the principle that we are in favour of sustainable development as a default option cannot possibly stand.

We may have our differences around this—I do not think it is that complex an issue—but if the Minister has doubts about these amendments, he and his government colleagues should come forward with what they believe is the right definition and establish it in the Bill so that we are clear what we are empowering to happen as the default option in planning.

The second argument against is that it will in due course be in the national planning policy framework. That is welcome. I am sure that it will elaborate the detail of it and, of course, those details over time will be able to shift within the framework. However, what is being proposed is not a mere detail but is central to the Bill. In the absence of policy, the Government want it as the default option that we will approve proposals that support sustainable development—yet they will not incorporate the fundamental answer of what that means into the Bill.

I am sympathetic to much of what the Bill is trying to do; I am a proponent of sustainable development. I have argued about the perverse consequences of the misapplication of this—the gold standard. The Minister referred to it in terms of heritage, but it can be reduced to absurdity whereby nothing is allowed because nothing ever meets perfection. It is precisely for those reasons that the Government in due course should come forward with their explanation and proposition in the Bill so that we understand what it is we are being asked to approve in this legislation.

[Baroness Andrews]

My Lords, I completely agree with the noble Lord. I think that was a very eloquent exposition of the Government’s dilemma. The Minister addressed the amendment’s frailties in its language and definition, but perhaps the Government could be persuaded to agree in principle that there should be a definition of sustainability in the Bill, which we could debate. It could build on the NPPF definition of the presumption in favour of sustainability, which is not adequate, but it would be a good start for a debate. There is an opportunity now, which may not occur again, to have something which recognises—as so much else is recognised in climate change legislation, for example—that this is a very serious issue for the economic future of the country.

[Lord Berkeley]

Can I just add to those comments? The noble Lord, Lord Taylor of Goss Moor, introduced some very interesting comments about how this might be taken forward, as did my noble friend Lady Andrews. The Minister mentioned the national policy statements. I welcome the fact that the national planning policy document is to be published very soon and that it might be debated in both Houses. What is the relationship between that document and the national policy statements, if and when and as they are developed? Furthermore, with any planning application that falls below the cut-off level for NPSs, the policy still has to take into account the relevant parts of the NPSs. Is that going to stay? What is the relationship between these two documents and the hierarchy? My noble friend suggested putting a basic definition of sustainability in the Bill. Maybe the Minister could put in the more detailed bits of these amendments in the NPPF and then we would see it all together.

[Lord Lucas]

I very much support what my noble friend Lord Taylor of Goss Moor said. It is terribly important for the neighbourhood planning parts of this Bill that sustainability should be able to be interpreted at that level. At the moment in Hampshire it is part of the local policy that there should be no development in the countryside. If that is allowed under the new system, it will completely wipe out all neighbourhood planning in Hampshire. The argument is that development should take place in towns, where it is more sustainable, but if one applied that nationwide we would choose the wettest, least attractive part of the country and put all development there. It must be possible to focus down on a neighbourhood and look at what is sustainable for that neighbourhood.

[Lord Greaves]

Can I ask the noble Lord to decouple the words “wettest” and “least attractive”? Some of the wettest parts of the country, such as the Lake District and the Pennines, are some of the most attractive.

[Lord Lucas]

I am sorry if I coupled those words in the wrong way. I meant that it had to be both. It has to be the wettest because clearly we do not want to put a lot of houses where there is a water shortage. Having decided where it is wet enough, you then choose the least attractive place. I am sure that we can all have arguments about where it should be, but clearly it is not Kent or Norfolk.

[Lord Taylor of Holbeach]

Perhaps I can start with the whole business of neighbourhood planning, because in some ways this is a bottom-up Bill and neighbourhood planning is perhaps the first building block of a new way in which to look at the planning process. I agree that sustainability must be an integral part of neighbourhood planning—and, indeed, neighbourhood plans will need to be prepared in conformity with a strategic policy in local plans, which in turn need to be set with the objective of contributing to the objective of sustainability. That is already built into the Bill, as it stands.

18:00

Perhaps I might look at the concerns expressed by the noble Lord, Lord Berkeley, about the national infrastructure projects and their relationship with the NPPF. The national infrastructure projects, which derived from the Planning Act 2008, require decision-makers to take decisions in accordance with the relevant national policy statement. The NPPF is capable of being an important and relevant consideration in these decisions but this amendment conflicts with the intention of the 2008 Act. We are working closely with lead departments to ensure that NPSs work in concert with the NPPF, which is a national framework for the whole planning process.

I hope I can explain that the Bill is only part of the Government's presentation of policy on this issue. The NPPF will put sustainable development at its heart and the Bill provides the mechanisms for its delivery. I hope I have been able to reassure noble Lords that it would be much easier to do so when they have had a chance to see the NPPF. In the mean time, I have taken notice of the elements of this debate and the enthusiasm for a more precise definition in the Bill. We will no doubt return to this, not only in subsequent debates today but on Report.

[Lord Greaves]

My Lords, I thank everybody who has taken part in this interesting debate, not least my noble friend the Minister, who answered a lot of the points. He spoke with customary care in the words that he used and we will read them with interest, to try and work out if any sort of Kremlinology is to be found in them. We will probably find that there is not, but it is nevertheless worth trying. He said that this amendment conflicts with the Planning Act 2008. I do not think it conflicts with it; it is trying to amend it by shifting its balance and emphasis. That is not a conflict but trying to improve it. However, he is absolutely right that we will return to these debates before we finish with this Bill.

The noble Lord, Lord Jenkin, made some very interesting comments. He mentioned a default position that applications should be accepted. That always used to be the case. It was when the town and country planning system was introduced after the war, and it was until about 20 to 25 years ago—I am not sure exactly when it was changed—when Parliament made an overt decision that the system should become plan-based. It might have been a 1990 Act; I do not know. There is a difference because you start with the assumption either that an application is passed unless there are good reasons not to; or that the provisions in the local plan will prevail so that if an application is in accord with that plan it will be passed but, if it is not in accord with it, it will not—subject to other considerations.

I am not clear where the Government are going on this because, on the one hand, we have statements suggesting that what the noble Lord has said will be the new policy and, on the other, we hear Ministers say that the plan in future will be sovereign. That was said in the House of Commons, and by Ministers in briefings that we have had. We understand that it might perhaps be even more sovereign than it has been. You cannot have both those. This is one of the fundamental differences that we have to resolve. It is one of the fundamental discontinuities as regards what individual members of the Government are saying, and what some of the same people are saying at different times.

This is a new planning Bill; we should be under no illusions about that. Part 5 of the Bill is a planning Bill on its own and could have been presented to us as a planning Bill on its own. Personally, I wish it had been as we could have given it better consideration. It is turning the planning system upside down, or making very fundamental changes to it in exactly the same way that the Planning and Compulsory Purchase Act 2004 did. It will fundamentally change the way the planning system works from top to bottom. I am not saying that what it is proposing is not a good thing; I am saying that that is the situation. We have to ensure, if only to apply the workability criterion of the noble Baroness, Lady Andrews, that at least the thing will not cause chaos when it leaves here.

The same difficulty in understanding what is proposed applies to neighbourhood plans as opposed to the rather top-down, pro-growth agenda which was pushed by the Chancellor in his Budget speech and in documents issued after that. On the other hand, promises seem to be being made to people that, in future, neighbourhood planning really will be neighbourhood planning and decisions will be made at the very local level. I have heard the noble Lord, Lord Lucas, wax lyrical in these debates about how the new neighbourhood planning system will release growth. It may well do so but it will not do so everywhere. There is absolutely no doubt that in some places it will result—if the neighbourhood level is going to be predominant—in the nimbys winning, because if you have local democracy and make decisions at local level, some go one way, some go the other way, but they certainly do not go the way that you want. This all stems from the original Conservative document, Open Source Planning, which came out over a year ago. That was a very interesting document but it was based on the premise that everybody would have a local neighbourhood plan and the district plans—the local authority plans—would be a sort of jigsaw made up of each of the local plans stuck together. That was a bit idealistic as you have only to think of two adjoining places having completely different policies to realise that that does not work, but that is what the document said. My interpretation of what we have now is that the philosophy underlying Open Source Planning has gone through the mill of the civil servants, who have turned it into something a bit more practical—or is it a bit more practical? That is what we have to find out.

It is delightful to hear the noble Baroness, Lady Andrews, arguing the case that I was arguing when I was sitting where she is sitting. I am still arguing it over this side. It would be interesting to go back to those debates and see what the noble Lord, Lord Taylor—the Minister—said then. However, we understand how this works and Governments have to take a corporate view. If the noble Baroness is a repentant sinner, we should remember that there is more joy in heaven at one sinner who repents than there is with everybody else, so she can bask in that glory for a moment.

The noble Lord, Lord Berkeley, talked about HS2. That is a classic case. As I said when I was moving the amendment, this does not mean that every single decision has to have exactly the same balance. The important thing is that you have the framework that sets out the balance and you make the judgments on each individual decision—each project, planning application or plan at whatever level—in the light of that overall framework. Clearly, there are trade-offs and compromises—that is life. I passionately support HS2. However, on the basis of its effect on a small narrow strip of the Chilterns, you could say that it is environmentally damaging—how damaging you can argue about. If, on the other hand, you look at it from the point of view on the other side of the environmental dimension—climate change—you would probably agree that investing in new railways rather than new roads is a good thing. You have to balance those judgments, but that does not alter the fact that you need an overall framework that balances the different elements.

I accept what the noble Baroness, Lady Andrews, said about cultural factors. However, a scheme in Nelson involved building a new school as a regeneration project in a different and unique conservation area, which was an old industrial area with lots of old houses. We had a long battle with the noble Baroness—or at least with her organisation—and other heritage groups about how many of the derelict empty terraced houses we could knock down. I am very pleased to say that the issue has been resolved, planning permission for the new school was approved last week, and the scheme will go ahead. However, as to the compromises and trade-offs between the different viewpoints on the scheme, we were very irritated—a mild word to express how we felt—at the behaviour of the heritage organisations. Perhaps they were right and in the end we may get the best solution because it will be balanced and do what everyone wants it to do.

I have said enough. There should be a statutory framework for this matter. I am not suggesting that these amendments are absolutely perfect, but I nevertheless strongly believe that something within this general framework should be in the Bill; it must be the purpose of the planning system; and it must apply, if not to everything, then at the very least to all the plan-making activities within the planning system. I hope that when we reach Report we might have something that has been agreed with the Government and that we can all support—who knows? If that is the case, as with everything else, none of us will think it is perfect but we will accept it as a trade-off and compromise. I hope that the Government will look at this in that way. I beg leave to withdraw the amendment.

Amendment 147FC withdrawn.

Amendments 147FD to 147FF not moved.

[Lord McKenzie of Luton]

My Lords, I was not sure that we had formally debated Amendment 147FF, which is in a separate group—although I think the noble Lord spoke to it.

[Lord Greaves]

The noble Lord is in the position that I was in on Tuesday of having an old list. In the interests of getting some brownie points with the business managers and the Whips, I grouped it with the other amendments.

[Lord McKenzie of Luton]

Perhaps I had the 11 am, rather than the 11.10, list this morning.

Amendment 147FFA

Moved by

[Lord McKenzie of Luton]

147FFA: Before Clause 94, insert the following new Clause—
“National Planning Policy Framework
(1) The Secretary of State must issue, designate and update a National Planning Policy Framework, to establish policies to achieve sustainable development.
(2) Such policies should relate to mitigation of, and adaption to, climate change.
(3) Before designating a document as the National Planning Policy Framework for the purposes of this Act or before amending any such document, the Secretary of State must carry out an appraisal of the sustainability of the policy set out in the document or the amendment to it.
(4) A document may be designated as the National Planning Policy Framework for the purposes of this Act only if consultation, publicity and parliamentary requirements set out by the Secretary of State, have been complied with.
(5) The requirements in subsection (4) above apply to any amendments to the National Planning Policy Framework.”

[Lord McKenzie of Luton]

My Lords, this amendment relates to the national planning policy framework, which we have just discussed and will doubtless feature in each day of our considerations. The amendment requires the Secretary of State to,

“issue, designate and update a National Planning Policy Framework”

that must set out,

“policies to achieve sustainable development”

and focus on mitigation of climate change. Before designating a document as an NPPF, the amendment requires there to be an appraisal of sustainability and for the proposal to be the subject of consultation, dissemination and an appropriate parliamentary process. It is not, at this stage, specific about what that process might actually be.

I contend that the amendment goes very much with the grain of government and with what the Minister said earlier. The coalition agreement stated:

“We will publish and present to Parliament a simple and consolidated national planning … framework covering all forms of development and setting out national economic, environmental and social priorities”.

If the commitment can be enshrined in the coalition agreement, why can it not be in the Bill? This does not call for the NPPF itself to be part of the Bill, just the requirement to produce one. We could have asked for—and we may do so on Report—an obligation to review and update on a regular basis.

On 13 September 2010, the CLG Select Committee inquiry into the work of the department asked the Minister how the NPPF is to be produced. He said:

“We are committed to bringing together and simplifying a set of planning documents that has become like the tax code, it has grown over time and we want to step back and distil it to its essential principles. In so doing, and I do not want to pre-empt the announcement we will make, but I do not want that to be done in the way that these things have been done before, behind closed doors, drafted by people in secret and then just a puff of white smoke emerges and there it is. I want this to be collaborative. There are lots of people who have a great interest in the financial planning framework. Whether town planners, whether people in local government, whether environmental groups and I want them to participate in that re-drafting in a way that I do not think has been extended to them before. That is the direction that we are going, but obviously I need to make a formal announcement to the House in due course”.

He was asked:

“Will Parliament be able to contribute?”.

He said yes. When pressed again about whether it was the committee or Parliament, either or both, the Minister, Greg Clark, said, “Both”.

It is unfortunate that we have to discuss the issue without the benefit of the official draft, in circumstances where what purports to be an unofficial draft seems to be in wide circulation, already commented on by various organisations and the press. The Minister has told us when an official version will be available—very shortly, was the expression that I believe he used.

As we made clear previously, it is very difficult to debate some planning issues effectively without that. There has already been pre-consultation and a draft of the NPPF produced by the practitioners’ group, and there is now to be a full public consultation, so the Government are delivering on aspects of the promises that they made last September, but perhaps the Minister can confirm how they will complete that promise and what will be the role of Parliament, particularly the role of the House of Lords, as well as the House of Commons. The role of Parliament is crucial, given the fundamental significance of the NPPF, as the Minister himself outlined. It represents, according to Mr Clark, part of a radical overhaul of planning policy cutting out thousands of unnecessary central instructions.

A role for Parliament would be especially important if there is anything in some of the fears expressed by certain groups on the basis of the unofficial draft. They say, on the one hand, that the NPPF is written at a high level without much detail. It is therefore difficult to gauge compliance of local plans with the NPPF. Where many local planning authorities have yet to adopt local plans, the bulk of planning applications will be assessed against the NPPF. They characterise that as a potential planning free-for-all. It remains to be seen whether that is the case, but it remains imperative that Parliament has a say in the outcome. I beg to move.

[Lord Berkeley]

My Lords, my Amendment 166VZC is grouped, and I of course support my noble friend Lord McKenzie's amendment. My amendment is designed to be a helpful contribution to Ministers. As we have not seen the NPPF, it is a suggestion of what it might contain.

I declare an interest as chairman of the Rail Freight Group. There is not much about rail freight in here, but there might be a bit. The key point is in subsection (2) of the amendment, which tries to set out in more detail how the activities and development of other parts of local authorities, regional authorities, the Government and other people could be made more sustainable if they took into account the cost of environmental issues such as transport. The obvious example is when, two years ago, a lot of law courts were closed in different parts of the country, which meant that people had to travel for long distances and sometimes even stay overnight or pay for taxis because there was no public transport. Of course, the assessment of the benefits of closing law courts did not include anything to do with transport, and one could make the same comment about the closure of hospitals. Therefore, the amendment is intended to try to link planning with transport and to look at the sustainable elements involved.

Transport routes are fundamental in the location of warehouses and distribution sites so as to reduce distances travelled and traffic congestion on busy roads. I have included something about former railway lines. I know that the Government are not yet interested in reopening former railway lines, and I can understand why in the present situation, but a lot of people will be looking at this. I know that it is planned to locate High Speed 2 on some disused railway lines, but there are many other lines in this country which could be used not for railways as such but for cycle ways and other transport routes to get people off congested roads. However, it is very difficult to reinstate corridors for those types of purposes if bits of the land are sold off. Reinstatement costs an enormous amount.

I mention in paragraph (d) under my proposed new Clause 2 in the amendment the need for travel to be minimised and, in paragraph (e), sustainable transport modes for the movement of people and freight. However, it is also useful to talk about, as I do in paragraph (f), public transport, pedestrians, cyclists and disabled people. I believe that in future all these things will have a much greater impact if we are to meet the famous 80 per cent reduction in carbon. That is the Government’s target and I think we all support it but achieving it is going to be pretty challenging. Lastly, paragraph (g) would remove the need to travel so far and would maximise sustainable modes of transport. I do not know whether those points will be in the final version of the NPPF but, if they are not, perhaps the Minister could consider making a few last-minute amendments and including them.

We have talked about the parliamentary requirements, and there is obviously a need for consultation.

Proposed new Clause 5 in the amendment makes yet another attempt at achieving sustainable development. I do not think that I need to go through it with your Lordships now because noble Lords will all have read the NPPF and we all have ideas about what it should contain. However, it certainly demonstrates to me the need to have something like this in the Bill and to have more detail somewhere in the NPPF, as I have tried to do in the amendment.

[Lord Reay]

My Lords, there was considerable discussion in the debate on the previous group of amendments about the national planning policy framework, although there was no mention of it in any of the amendments in that group. We come to it for the first time with these amendments.

I agree with those noble Lords, including the noble Lord, Lord McKenzie, who said that it is unfortunate that we do not already have the NPPF—the document that is, as I understand it, in 50 or 60 pages going to replace 2,000 pages of PPSs, PPGs and other planning documents that stretch back over 50 years or more. Of course, it will have a very large impact on how the Bill works in practice. I hope that we will have it very shortly, as the Minister said, and debate it.

However, I do not believe that this is the right place to debate the NPPF or to go further and pre-empt it, as the amendment in the name of the noble Lord, Lord Berkeley, seeks to do here in particular, with four pages of text setting out suggested contents for the NPPF. Being an amendment of the noble Lord, Lord Berkeley, it concentrates on transport and is highly prescriptive in that field. It talks about giving priority to bicycles and pedestrians, installing electric charging points and so forth. I shall not say what I think about any of those details because I simply do not think that this is a suitable moment to debate them. However, what I most certainly do not agree with is a reference in the first amendment of the noble Lord, Lord McKenzie, to climate change policies. I do not believe that either the NPPF or this Bill should be used to give impetus to the Government’s renewable policies. I shall have more to say about that on a later group of amendments. I hope that the noble Lords who put their names to this amendment have said what they want to say and that they will be able to withdraw their amendments and not reintroduce it.

[Baroness Hamwee]

My Lords, we shall come, although not tonight, to clauses in the Bill dealing with national policy statements. Many noble Lords here are veterans of the debates about how national policy statements should or, in many cases, should not be dealt with. Perhaps it is not fair to say, “should not be dealt with”, but perhaps I should say, “should have been dealt with in a more extensive and iterative fashion”.

I use this opportunity to say to the Minister that I hope that by the time we get to Clause 114, on national policy statements, he may be in a better position to explain to the Committee how the national planning policy framework will be dealt with in procedural terms. I cannot gaze into a crystal ball, but I do not think it takes much imagination to guess that we shall debate the role of this House, as this House could make such a contribution to the planning policy framework and to the policy statements. I am sure we shall debate those things. As well as making that plea, I put down a marker for what I have said might be a more iterative and more measured process and certainly for the House to have an opportunity to make more of a contribution than it was able to do on the current arrangements under the Planning Act 2008.

[Lord Greaves]

My Lords, I would like to add a couple of points. Following on what my noble friend Lady Hamwee has just said, anyone who has taken part in the discussions on the national policy statements in this House probably realises that it has not been a very satisfactory process. When we talked about them under the 2008 Bill, there was a question about whether this House would be involved in discussing them at all. A campaign was led by the noble Lord, Lord Jenkin of Roding, for this House to have a role in scrutinising them. That was successful to a degree, but the powers that be restricted what was to happen to the absolute minimum. The level of scrutiny which national policy statements have had in this House has consisted of a session in the Moses Room, when there was a debate with a speakers list, and then the matter came back to the Chamber. In theory, amendments could be moved when it returned to the Chamber, but I cannot remember any. Apparently, there were some. Did we vote on any? The noble Lord will know better than me.

[Lord Jenkin of Roding]

In the House, we had some very good debates and amendments that were debated. When the Government published their revised national policy statements, they took every single amendment and most of the comments that had been made and responded to them. Apart from the issue of approval, which of course is new in this Bill, and is confined to another place—the noble Lord, Lord Berkeley, has a lot of amendments down on that—I would have thought that the way in which the Government have handled the national policy statements has been exemplary.

18:30

[Lord Greaves]

I stand reprimanded by the noble Lord. All this excitement obviously took place in a period when I could not be in the House. I still think what I thought at the time—that the best way to scrutinise detailed documents such as this is to have a Select Committee-type scrutiny process. If that could be combined with the exciting dénouement debate in the House that the noble Lord spoke about, that would perhaps be the best solution.

This will be a very important, overriding and high-level document. I am starting to use American management jargon: next I shall start talking about deep-diving into the detail and that sort of rubbish, but never mind. One of the great things about these Committees is that we veer from talking about high-level things to debating how they will affect a particular group of allotments or whatever.

My second point is a question to the Government. What is the timetable—perhaps I have missed this—for the phasing out of planning policy statements and the phasing in of the NPPF? Local authorities are in some sort of limbo as regards planning policy statements and planning policy guidance. They still employ people to make sure that their local development documents are in accord with them, but they are not sure to what extent they are wasting their time, or whether it is useful work as guidance for what they are doing. At what stage will there be a changeover? Will the planning policy statement suddenly cease to have any validity when the new system comes in? When that happens, what will local planning authorities do with the work they are doing? Will they have to start again from scratch if they are half way through developing their core strategy in order to make sure that it accords with the new national policy planning framework, as opposed to all the documents that they have been working on until now? Many local planning authorities are in limbo. They are not sure what is going to happen and could do with advice on what to do.

[Lord Taylor of Holbeach]

My Lords, this has been a useful debate, which has reinforced our previous debate and put the NPPF at the heart of it. In its absence, we can but note its significance and importance in relation to the Bill. I will start by reassuring the noble Lord, Lord McKenzie, that the Government plan a full public consultation on the document—it will not be just for Parliament to debate the matter—and will follow established best practice for consultations. We have already sought a variety of consultations in formulating the NPPF, including with community groups.

Bearing in mind the interest of noble Lords in this matter, I will ask that as soon as it is published copies will be made available to all noble Lords who have participated in the debate. I appreciate that there may be an interval before we in the House are able to debate this. That is a matter for the House authorities, not for the Government. However, it is an important part of the discussion of this document.

[Baroness Hamwee]

My Lords, there is a great appetite to see the document. However, on the matter of timing, I note that the noble Lord said that the consultation will accord with best practice. Will that include taking account of the August holiday period, given that publication is likely to be just as that starts?

[Lord Taylor of Holbeach]

I assure my noble friend Lady Hamwee that this is at the heart of what we are trying to achieve.

The Government are not seeking to railway—I am looking at the noble Lord, Lord Berkeley, and I immediately think of railways—railroad this through. They want it to be a proper discussion document because it is going to be at the heart of the planning process. Indeed, community involvement is going to be vital in the planning system at the local level where plans are created and decisions are taken. Community engagement is embedded at the heart of the planning process through tools, such as the statement of community involvement, to ensure that local people are involved in the shaping of their area.

There is no need formally in legislation to forge a link between the framework and sustainable development because the latter has long been the basis for all planning policy, as I said in the previous debate. It will be a core principle of the new framework. The noble Lord, Lord McKenzie, asked about where plans are not up to date. The NPPF will be able to provide a clear basis for determining applications. It will be up to decision-makers to decide the weight to give to the plan and the NPPF in each case.

I understand the desire to put a presumption in favour of sustainable development on a statutory footing as it should be central to the way the reform of planning policy works, but in making it central to the NPPF, as we propose, we believe we can do that without creating conflicts with existing legislation, as this amendment would do. For example, we could not, as proposed here, require in law all individual proposals to be approved wherever possible and still have a plan-led system.

Turning to the proposals put forward by the noble Lord, Lord Berkeley, the transport planning policy has been set out within the national policy. This is the best place to spell out how the impact of new development should be considered through the planning system. Legally, decision-makers must have regard to national policy where it is material to their decision, and transport issues are one of the material considerations routinely taken into account. Importantly, policy is more flexible and more capable of responding swiftly to changes in circumstances than legislation. Therefore, I do not think it is appropriate to make changes to transport policy through legislative means, particularly when the Government are due to publish the NPPF, which will include transport policy. If changes are required to transport policy, they should be carefully considered as part of that consultation and, if appropriate, taken forward through the NPPF.

Moving to the next issue, the proposal that the NPPF should be able to trump all other plans where there is an inconsistency fundamentally changes the way the plan-led system is designed to operate. At local level, this is unnecessary and deeply centralising. Section 19(2) of the Planning and Compulsory Purchase Act 2004 means that local plans should be prepared having regard to national policy, which will include the new NPPF. The Planning Act 2008 requires decisions on major infrastructure projects to be taken in accordance with any relevant national policy statement. There is a national need for a new infrastructure, and it is essential for growth. That is why the Government are establishing what is needed and how planning decisions should be taken for those national-level schemes that will have impacts and benefits beyond the local area. Each infrastructure sector is different, which is why we are urgently pressing ahead with sector-specific national policy statements rather than a single national policy statement to cover all sectors.

[Lord Jenkin of Roding]

Can the Minister confirm what has always been my understanding that the national policy statements will continue to exist and operate under the 2008 Act alongside the new national planning framework? It is not, as I understood the noble Lord, Lord Greaves, to suggest, that one is going to sweep away the other.

[Lord Taylor of Holbeach]

My noble friend Lord Jenkin is absolutely right. I am happy to confirm that and I thank him for his helpful intervention to clarify that point. Of course, the two run in parallel and the design is that they should be in harmony.

[Lord Berkeley]

That is good news and what I understood myself. Will the Minister give any indication of when the missing national policy statements might see the light of day? They keep being delayed and delayed. Some are published in draft form but it would be nice to see them and eventually debate them.

[Lord Taylor of Holbeach]

Like the train, one might say that they will be along in due course, but I do not have the timetable to hand. I am left rather, as is the noble Lord, waiting on the platform. They are on their way. I think that the most urgent document we want to see is the NPPF. I am sure that is where we all stand on this issue.

[Lord Berkeley]

But we do not stand on the platform for a year.

[Lord Taylor of Holbeach]

I have a note here to say that we are working with the lead departments to ensure that the national policy statements and the NPPF work in concert. We see them as being in harmony with each other. I have a note which might be useful to my noble friend Lord Greaves. He asked for the timetable of phasing out PPSs. The current suite of policy and guidance will remain in place until the NPPF is finalised but we will notify the arrangements in that respect. I would imagine that the NPPF will influence planners immediately after it is published.

Perhaps I may say to my noble friend Lady Hamwee that the consultation period will continue way beyond the summer, as I implied in my opening statement.

[Baroness Andrews]

This may be the only time we get a chance to discuss the NPPF. I understand that guidance on the NPPF is being prepared. It will be very important because the NPPF is a reduction of principle and it is vital that local authorities in particular understand exactly what they are meant to do. The production of guidance alongside the NPPF is critical. Will we be able to see the guidance as well when the NPPF is published and will there be an opportunity for the House to have a look at that at some point? That will be very important.

[Lord Taylor of Holbeach]

I cannot give an answer to the noble Baroness at this moment but I can assure her that when the copy of the NPPF is sent, I will accompany it with a letter giving the arrangements for the guidance to go with it. I hope that that will help the noble Baroness. In the mean time, I hope that this has been a useful debate. It has rather reinforced the debate we had earlier and I hope that the noble Lord will feel able to withdraw his amendment.

[Lord McKenzie of Luton]

My Lords, I am most grateful to the Minister for his reply and for the contributions from other noble Lords. I am not a veteran of past debates and discussions around planning and I am not sure yet whether that is a disadvantage or an advantage. Perhaps I should assess the matter at the end of proceedings.

The noble Lord, Lord Reay, is right. There is no point in debating the document if we do not have it—so the sooner we get it, the better. I would not agree with him on climate change but it looks as though that will be a subject for debate as our deliberations proceed. As the noble Lord, Lord Greaves, said, this is a very important document. I am a little unclear from the Minister whether he supports the principle that there should be in the Bill an obligation to produce an NPPF and some parliamentary process attached to that. I am not asking for the content of it but whether he supports the principle. I may have missed it when the Minister was responding, but I am not sure that he dealt with that point. I understand that, as a parliamentary process, a Select Committee might be a more productive route than a few days on the Floor of this House, although that can be good fun as well. I should be interested in the Minister’s view on that.

I apologise to my noble friend Lord Berkeley. I had not realised that his amendment had been grouped with this one. As the Minister said, it is, perhaps, more prescriptive. My understanding was that national policy statements sit alongside the NPPF, and I think that is what the Minister has confirmed. I am happy to withdraw the amendment but before I do so, can the Minister say what the problem is with having a requirement in the Bill to produce an NPPF? That requirement is not there. What is it that obliges a Government to keep it up to date?

[Lord Taylor of Holbeach]

The noble Lord is quite right: there is no reference to the NPPF in the Bill. The Government have no intention at this stage to include it in the Bill, but we will listen to any argument that the noble Lord puts forward and consider the matter. However, it is not the Government’s intention to produce an amendment to put a reference to the NPPF in the Bill.

[Lord McKenzie of Luton]

Will the Minister just say why? I know it is not there at the moment and that he will not accept this amendment, but why do the Government not wish to put that in the Bill?

[Lord Taylor of Holbeach]

I am answering the question directly. I think the noble Lord wants to know what the Government’s position is. The rationale behind it, I expect—I am only deducing this—is that the Government want flexibility in the mechanisms that they use in national policy frameworks in future and in any replacement device that they might consider necessary. Not enshrining the NPPF in primary legislation makes it easier to change the arrangements. None the less, there is determination at the moment to use the NPPF as the main device. I have some advice on this matter which may help. The law already requires a local planning authority, when making plans, to have regard to policies and guidance issued by the Secretary of State. As we know, the NPPF is a replacement for that guidance and advice. Therefore, this applies to the NPPF. The NPPF’s authority derives not from this Bill but from the Planning and Compulsory Purchase Act and the Town and Country Planning Act. In the absence of an NPPF, the Secretary of State would still be obliged to issue guidance under those Acts. That is where the NPPF fits into the equation.

[Lord McKenzie of Luton]

My Lords, again, I am grateful to the Minister for that response. As I understand it, he is saying that local planning authorities must have regard to what the Secretary of State issues. The missing link is what requires the Secretary of State to produce the framework. This is an issue to which I should like to return. I beg leave to withdraw the amendment.

Amendment 147FFA withdrawn.

Amendment 147FG

Moved by

[Lord Best]

147FG: Clause 94, page 71, line 40, at end insert—
“(3A) Subsection (3) shall not apply to those policies in an approved regional strategy that have been specifically referred to as part of the policy content of a Local Development Framework submitted under section 20(1) of the Planning and Compulsory Purchase Act 2004 (independent examination) in advance of the coming into force of this section.
(3B) Subsection (3A) shall apply until whichever is the earlier of—
(a) at the end of the period of three years starting with the date on which regional strategies are revoked under subsection (3) above,(b) the day when in relation to a policy covered by subsection (3A), a new policy which expressly replaces it is adopted or approved.”

[Lord Best]

My Lords, Amendment 147FG relates to Clause 94 and the abolition of regional strategies. I fully accept that regional spatial strategies are to be abolished and the Government will not want to extend their life. However, there is a danger of a hiatus before the issues currently covered by the regional spatial strategies can be properly incorporated into new local development plans by the relevant local planning authorities.

Quite apart from the many cases where no local development framework has been completed, there are the situations where a local development framework has been properly finalised, but refers specifically to items in a regional spatial strategy which will now disappear, or where the local development framework is silent on an issue because it is addressed by a regional spatial strategy and those preparing their local development framework were encouraged to exclude matters already set out in a regional spatial strategy, particularly relating to environmental aspects of the plan. The local development framework has gone through its planning inquiry exercise with evidence in public and endorsement by the planning inspectorate. If it wishes to change its contents now to take on board those items which the abolition of the regional spatial strategy means are no longer in place, it has to go through a partial review, through the whole consultative process all over again. With cuts in staffing levels, not least in growth areas, through the loss of the previous planning and housing delivery grant for extra staff and IT, getting into a new local development plan exercise will be expensive and problematic.

My amendment to Clause 94, Amendment 147FG, would mean the retention of those items in regional spatial strategies which local development frameworks relied upon, but which will evaporate with the abolition of the old regional spatial strategies. This transitional measure would stay in place for up to three years, giving local authorities the chance to produce a new local development plan that can take into account the fact that the RSS no longer exists. I have resisted suggestions that I table an amendment that would retain regional spatial strategies until such time as all the new local development plans are prepared and approved. Indeed, it will be necessary for local development plans to embrace the new national planning policy framework’s content in due course and this will include the definition of sustainable development, which will thereby be incorporated into local development plans. However, all this is some months away. Nevertheless, I do not think that hanging on to the regional spatial strategy would be acceptable to the Government. Instead, I am hoping that the Minister likes this way of approaching the transitional problems that particularly face the 40 per cent of local authorities that have been efficient enough to produce their local development framework. The amendment would let them avoid having to go through the LDF process all over again simply because some words in the regional spatial strategies were not repeated in their own local development framework.

The Royal Town Planning Institute feels that this amendment would be of considerable help and I hope that the Government will look sympathetically at it in order to help local planning authorities get through this transitional phase to the new system. I beg to move.

[Baroness Andrews]

My Lords, this is a very important amendment and it is supported by other organisations as well as the RTPI. I hope that the Government will take this in the spirit in which it is intended. I believe that this is an oversight, in fact, and one which, unless it is addressed will really make life difficult for, ironically, the very assiduous local authorities which completed their LDFs, as the noble Lord, Lord Best, says. I will not say that we have given up the case, because I believe that regional spatial strategies had a great deal to offer, but we are not revisiting that debate at all here. This is about a transitional situation, where a local authority has its LDF in place, but where it has preferred, to save itself time and resources and to be consistent, to use the content of the RSS as a way of indicating what its policies—on housing supply and distribution, on climate change—will be. It is now in a very difficult position, if there is this lacuna, because, obviously, with the RSS having gone, the content has been abandoned as well, or put into some strange sort of limbo.

It is very important that we do not waste those resources, such as the information and the data sets. More importantly, the local authority should not have to waste time and resources by revisiting those matters or by reiterating the process through a partial review. That would not make any sense. Therefore, it is extremely important that the Government look closely at this provision to see what can be done, which I suspect would not be too difficult to do. I think that the noble Lord, Lord Best, has a good amendment here.

[Lord Greaves]

My Lords, I, too, support the thrust of the amendment of the noble Lord, Lord Best. I am concerned that the change-over to the new system will simply result in more delay and more expense for local planning authorities that have struggled to produce their local development frameworks—or local plans, as we may now have to call them.

My Amendment 147H is slightly different. It seeks to tackle part of the same problem, but it looks at the issue from the point of view of the local planning authority rather than from that of the regional strategy. My amendment reads:

“The provisions of this section do not affect the validity of any local development documents or of any policies contained in any local development document whether or not any such policy was adopted in order to be in conformity with a regional strategy or structure plan”—

the old structure plans were incorporated pro tem into the regional strategies, although I do not know how much of them survive. The crucial thing is that, if a local planning authority is taking its core strategy, for example, to an inquiry for examination, the strategy should not be torn apart just because those aspects of it that have been adopted in order to be in conformity with the regional strategy—or regional spatial strategy—would no longer need to be so if the local authority was starting again from scratch. Although the local authority might be able to argue that a policy is good for this reason or that reason, the true reason that a policy has been included might be in order to achieve conformity with the regional strategy. The issue is as simple as that.

Under the old system, the local authority’s approach to the examination could be to say, “It is there because it has to be there,” and that would have been the end of the argument. However, the inspector might now say, “Yes, but we have a new system now, so are you sure that this applies to your area?”. As we know, the imposition of regional policies has not always been in accord with what was desirable in a particular area, such as was the case with the old housing targets. As the noble Baroness, Lady Andrews, will remember, in East Lancashire we fought for a long time with the Government to be allowed planning permission for new housing. Because the housing targets were so low and had all been achieved, we were not allowed to give housing permission for housing that we wanted. That was a total nonsense as a result of the planning system being too prescriptive and too top-down. We were in the opposite position to that of authorities in the south-east, which were arguing against being forced to build too many houses.

However, that has all gone now. I do not know how much the noble Baroness had to do with this, but when I asked a Question in your Lordships’ House, the Answer that I got from her colleague the noble Baroness, Lady Morgan, started a process. It then took a year before what Ministers were saying here and in the Commons filtered down to grass roots, but it actually changed what was happening, and I was very grateful for that. That is very good example of how the old system did not work very well.

[Lord McKenzie of Luton]

My Lords, briefly, I support Amendment 147FG for the reasons that the noble Lord, Lord Best, has very fully described. Basically, the policies were two sides of the same coin and, if one set of strategies drops off the edge, that will give rise to the possible confusion and legal challenges that have been mentioned.

I also support the amendment of the noble Lord, Lord Greaves. If I understand what he said, his amendment is slightly different, in that it would provide that, where policies from the structure plan are still around, they would be saved. In a sense, that is unlike the situation where the policies do not exist at local level because they disappeared with the regional spatial strategy. I would certainly support the thrust of his amendment as well.

19:00

[Lord Taylor of Holbeach]

My Lords, I am grateful to noble Lords for raising this issue because it is important that the Government have an opportunity to explain their position on it. I am also grateful that noble Lords have not sought to revisit the fundamental decision.

We know that the difficulty with regional strategies is that they imposed policies and targets on local councils and communities. As my noble friend Lord Greaves said, this has created a certain antagonism and set people against development. As a result, the regional strategy process has been controversial and protracted, creating uncertainty for communities and investors. In reality, the process has not been effective. Regional strategies did not deliver the housing that the country needs, and housebuilding fell to the lowest peacetime level since 1923-24.

In proposing Amendment 147FG, the noble Lord, Lord Best, seeks to allow councils to retain regional strategy policies for a three-year transitional period, but the Government do not agree that there is a need for this sort of transitional arrangement. The coalition agreement clearly set out the Government’s intention to abolish regional strategies and to return democratic decision-making powers on housing and planning to local councils. The Government’s intention to abolish regional strategies has therefore been public knowledge for some time, so we do not consider a further period for transition to be necessary.

[Baroness Andrews]

My Lords, this is not the point. We agree that regional spatial strategies should not be revisited; we are not challenging that point. The point is that there is a gap in the ability of local authorities to develop and implement the policies that they have already agreed, because the content was in the regional spatial strategy. What allowance will be made for those local authorities which might now have to go through a partial review and reinvent it all? Why is it so difficult simply to allow them to save those policies? I am sorry for having interrupted the Minister prematurely, but I just felt that he was not addressing the point that we had made.

[Lord Taylor of Holbeach]

I may not be addressing the immediate point of the debate; I was trying to put the Government’s position in the context of their wanting to set the drivers for local authorities to address this issue and set about these reviews as quickly as possible. We did not want to leave the regional spatial strategies in place as a backstop, because the drivers for change must come from local authorities undertaking the review themselves.

We recommend that any reviews be undertaken as quickly as possible. That will enable councils to move away from an inflexible, top-down approach, which I think the noble Baroness will admit was the effect of the regional strategies, and take a lead in planning to meet the aspirations of their local communities.

Councils are perfectly capable of addressing strategic issues locally, working with adjoining authorities—we will talk about the duty to co-operate when we meet again—and other bodies as needed. The duty to co-operate will help them to work together. We know that some councils are already forging ahead and developing strategic policies in their local plans.

Reviews should be proportionate, focusing on relevant key issues. Councils do not need to undertake wholesale reviews as a result of the change. Plans must be based on robust evidence and be deliverable, otherwise they will not have the confidence of communities or investors and may not pass the tests of soundness at independent examination. I reassure noble Lords that the same evidence that informed the preparation of regional strategies can be used to support local plan policies.

Amendment 147FH would ensure that policies in existing local plans which were originally drafted in conformity with saved structure plan policies, or regional strategies, were not undermined by the revocation of these policies. As with the Government’s intention to revoke regional strategies, the commitment to revoke the saved structure planning policy has been known for some time and, for the reasons I have already given, we do not think that the amendment is necessary. Councils will be free to incorporate elements of saved structure plans and revoked regional strategies into their local plans when they review them. It will be for them to decide how much of these policies they wish to retain for their areas.

Revoking regional strategies is an important part of our proposals—I think the Committee recognises that—to decentralise decisions on housing and planning to local councils and communities. It will make local plans drawn up in conformity with national policy the basis for local planning decisions and put greater power in the hands of local councils and communities. If councils intend to review their local plans once regional strategies are revoked, they should do so quickly and in a proportionate way. There is no necessity for transitional arrangements.

With these assurances, I hope the noble Lord is willing to withdraw the amendment.

[Baroness Hamwee]

The Minister referred to the inclusion in the coalition agreement of the abolition of the regional spatial strategies, and all noble Lords understand that. I am sure that the Government would not say that local authorities should work on the basis that regional change had happened as a result of an announcement, as distinct from within legislation. If I am right about that, can the Minister give the Committee any news about when the Government intend to bring what will be Section 94 into force? Its commencement might answer some of the points about transition. It strikes me that there is a relationship there.

[Baroness Andrews]

My Lords, requiring local authorities to go through this process is completely inimical to the idea of localism. As I understand it, the Government’s policy is to reduce burdens on local authorities, but I do not know whether the problem that is being addressed is a political problem—we understand why the Government want to get rid of regional strategies—or a methodological problem; you cannot save these regional spatial strategies if you have abolished them. I do not whether the Government are wrestling with a practical problem or a political problem.

On the basis of the information that I have received, I know that in every previous attempt at moving from one planning system to another there have been transitional arrangements and a capacity to save plans. This has meant consistency and the saving of time and resources for local authorities. The noble Lord, Lord Best, and I are genuinely trying to help the Government in this situation and to help local authorities to avoid having to go through an elaborate double process.

[Lord Taylor of Holbeach]

My Lords, perhaps it would help if I reiterate what I said before. There is no conflict here. It is possible to inform the review on the evidence provided by the regional strategies and to form the new plans on that basis. Indeed, elements from the regional strategy can be included in them, as I have made clear. It is important to see this as an evolutionary change. We believe that the drivers to get local authorities to address this issue need to make it quite clear that local authorities are responsible for it.

The noble Baroness rather oversimplified what localism means in the sense that it would release the burden on local authorities. It will not; in many ways it will increase the responsibilities that local authorities will have in forming their own destiny and their own policies. It is an oversimplification to say that this Bill is about relieving the burdens; it is about delivering a much more community-led planning policy. That is why the Government are very keen to make sure that it comes into effect as quickly as possible.

I cannot answer the question asked by the noble Baroness, Lady Hamwee, unless it is on the piece of paper that I have just been given. It says that revoking the eight regional strategies will be by commencement order as soon as practical after Royal Assent.

[Lord Greaves]

The Minister said, about amending the local development frameworks or documents, that authorities should get on and do it quickly. Does he have any understanding of how long it actually takes to do these things, even for an efficient authority? Can he give us an estimate of the delay that that will take in a typical authority?

[Lord Taylor of Holbeach]

When I made my introduction to the Government’s position on this, I hope that I made it quite clear that we go back to May of last year for indications of what the Government would require of local authorities in this respect. I cannot believe that local authorities have been sitting there, waiting for this to happen. I believe that local authorities are sufficiently on top of the job to know what they are required to do to make their local plan that much more relevant to their community. I believe that they feel liberated because of that and I think that most of them will eventually set about that process. Indeed, many of them will already be well down the road.

[Lord Best]

My Lords, I must confess to being a bit disappointed. I clearly did not explain the position adequately. When I asked the people behind these proposals what they expected the Government to do about this, I was told that they thought the Government would be very pleased not necessarily to accept the wording of the amendment but to have a peg to hang something on to handle the transitional problem that faces local authorities. It faces in particular the good guys, who have already prepared their local development frameworks. Just for a partial review of the local development framework, they will have to go through the whole process of hearing evidence in public, getting the planning inspectorate back again and allowing all kinds of people to come and make their case. They may need that partial review just because the framework had referred to a regional spatial strategy that suddenly did not exist and could not be referred to any more, or because it was silent about a particular ingredient because the authority was encouraged by the DCLG not to put in something that the regional spatial strategy already had in it. Those are technical changes that will require a whole bureaucratic process to be restarted, when we could have a quite simple transitional arrangement.

I had rather hoped that the Government would say, “We will fix this, maybe not in the way that you suggested—but we absolutely understand that nobody wants to go through all that bureaucracy just for nothing, since it is a very expensive exercise. We will sort it”. I confess to being rather disappointed at this stage, but I beg leave to withdraw the amendment.

Amendment 147FG withdrawn.

Amendment 147FH not moved.

Clause 94 agreed.

Schedule 8 agreed.

House resumed.

Police (Detention and Bail) Bill

Thursday 7th July 2011 Lords Chamber

First Reading

19:14

The Bill was brought from the Commons, read a first time and ordered to be printed.

House adjourned at 7.15 pm.