Grand Committee

Tuesday 12th July 2011 Grand Committee

Tuesday, 12 July 2011.

Arrangement of Business

Tuesday 12th July 2011 Grand Committee

Announcement

15:30

[The Deputy Chairman of Committees (The Countess of Mar)]

My Lords, before the Minister moves the first statutory instrument to be considered, could I remind noble Lords that in the case of each statutory instrument the Motion before the Committee will be that the Committee do consider the statutory instrument in question? I should perhaps make it clear that the Motions to approve the statutory instruments will be subsequently moved in the Chamber in the usual way. If there is a Division in the House the Committee will adjourn for 10 minutes.

Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2011

Tuesday 12th July 2011 Grand Committee

Considered in Grand Committee

15:30

Moved By

[Lord De Mauley]

That the Grand Committee do report to the House that it has considered the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2011.

Relevant document: 23rd Report from the Joint Committee on Statutory Instruments.

[Lord De Mauley]

My Lords, I shall also speak to the Immigration (Provision of Physical Data) (Amendment) Regulations 2011.

We are committed to delivering a safe and secure set of Olympic and Paralympic Games in 2012. As part of this pledge the UK Border Agency will operate a proportionate level of its usual security checks on those taking part, supporting and helping to deliver the Olympic and Paralympic Games, who are commonly collectively referred to as Games family members. Games family members are athletes, coaches, support staff, umpires, technical staff, media personnel and other individuals associated with the Games. The regulations and order ensure that the UK Border Agency can indeed operate a proportionate level of its usual security checks on Games family members by amending respectively the Immigration (Provision of Physical Data) Regulations 2006 and the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003.

Before I set out why amendments to the 2006 regulations and 2003 order are required, perhaps I may provide your Lordships with some information about the UK Border Agency’s current use of fingerprints and facial images and the UK’s juxtaposed controls, and also perhaps ask for your Lordships’ patience, because what I have to say is quite detailed and of necessity rather lengthy.

Since 2008, aside from minor exceptions visa nationals have been obliged to provide their fingerprints and facial images when applying for a visa. The collected fingerprints are checked against government databases. Since November 2009 the UK Border Agency has checked the fingerprints of holders of UK-issued biometric visas, entry clearances and biometric residence permits at the UK border to be sure that the passenger seeking entry is the same person who made the application for which the biometrics were collected. The UK Border Agency also uses facial images to facilitate the secure entry of low-risk categories of passengers in to the UK via automated gates, easing their passage through the UK border and allowing agency staff to concentrate on higher-risk categories of passengers.

The agency also collects the fingerprints and facial images of persons already in the UK when they apply for leave to remain in certain categories, where required issuing biometric residence permits and application registration cards. The agency also collects the fingerprints and facial images of persons identified as being illegally present in the country.

By February 2011 the UK Border Agency and its partners have enrolled 8.5 million fingerprints, allowing the agency to match 50,000 people to previous immigration and asylum applications made in the UK and identify more than 6,500 people swapping their biographical details. The UK Border Agency’s use of fingerprints and facial images is therefore vital to assuring individuals’ identities, identifying fraud and securing the UK border.

Now, perhaps I may give some background on the UK’s juxtaposed immigration controls and why they are essential. The juxtaposed controls were first set up in respect of Eurotunnel for shuttle trains operating between Coquelles and Cheriton in 1994. They were then extended to Eurostar terminals in France and Belgium, in June 2001 and October 2004 respectively, to reduce the number of people arriving at Waterloo with inadequate travel documents. Then, in 2004, as part of the agreement to close the Sangatte Red Cross Centre, France agreed to allow the controls to be extended to cover Calais and other French sea ports serving Dover. These arrangements have allowed the UK to shift immigration controls that were historically operated in south-east England to France and Belgium. They have also permitted France and Belgium to operate reciprocal controls in the UK, although the Belgians have not sought to implement any. The French currently operate immigration controls at St Pancras, Ebbsfleet, Ashford, Cheriton and Dover.

The UK’s immigration procedures at the juxtaposed controls complement the immigration procedures of France and Belgium—both part of the Schengen area—and occur just before the passengers depart on the final stage of their journey to the UK. Individuals travelling to the UK via our juxtaposed controls have to seek permission to enter the UK at those juxtaposed controls rather than on arrival in the UK; those requiring leave to enter the UK, such as visa nationals, make their applications to UK Border Agency officers within the control zones of the ports.

The UK currently operates immigration controls in the French channel ports of Calais, Coquelles, Dunkirk and at Eurostar terminals at Calais-Fréthun, Paris-Gare du Nord, Lille and Brussels-Gare du Midi. We are able to exercise full examination powers at all the juxtaposed controls. Additionally, in Coquelles, UK authorities may undertake frontier controls, including customs, health, veterinary and other checks. The juxtaposed controls are vital to UK immigration procedures by allowing us to prevent inadmissible individuals arriving in the UK.

Now let me explain why the 2011 regulations and 2003 order are necessary. Games family members will be required to obtain accreditation for the Olympic or Paralympic Games before participating and will undergo a series of biographical security checks undertaken by the Home Office prior to being granted accreditation and receiving an Olympic or Paralympic identity and accreditation card. Due to commitments given as part of the host city contract for the Games, approximately 20,000 visa national Games family members who would normally require a visa to enter the UK and be required to supply their fingerprints and facial image as part of the visa application process will be able to use their Olympic or Paralympic identity and accreditation card in lieu of a visa during the accreditation period of the Games from 30 March 2012 to 8 November 2012. They will therefore not need to apply for a visa or provide their fingerprints and facial images to the UK Border Agency prior to travelling to the UK, thereby bypassing the fingerprint checks of the visa application process. The UK Border Agency therefore needs to be able to collect and check visa national Games family members’ fingerprints and facial images in the UK and at its juxtaposed controls to operate a proportionate level of its usual security checks on this group of people during the Games.

The UK Border Agency’s current powers to collect fingerprints and facial images in the UK and at our juxtaposed controls are limited and insufficient to collect such biometrics. The agency therefore requires a new power to enable their collection. The 2011 regulations provide this power by providing for the collection of a visa national Games family member’s fingerprints and facial image when they make an application for leave to enter or remain in the UK during the accreditation period of the Games. The 2011 order provides for the collection when a visa national Games family member makes a leave to enter application, as described by Regulation 2(c) of the 2011 regulations, at our juxtaposed controls in the ports of Calais, Boulogne and Dunkirk.

A similar amendment will be made in autumn 2011 to the Channel Tunnel (International Arrangements) Order 1993 and Channel Tunnel (Miscellaneous Provisions) Order 1994 allowing for the same type of collection at our juxtaposed controls at the Channel Tunnel terminal at Coquelles and at Eurostar terminals in Calais-Fréthun, Lille, Paris-Gare du Nord and Brussels-Gare du Midi. All nationals except British citizens, nationals of other European Economic Area countries, those with a right of abode or who are otherwise exempt from immigration control, are required to apply for leave lawfully to enter or stay in the UK. They seek such leave by either applying for leave to enter on arrival to a UK Border Agency officer at the border controls of UK ports, in the UK control zones of the UK’s juxtaposed controls, or if they are already in the UK by making an application for leave to remain.

Linking the collection to an application for leave to enter or remain is therefore the most effective way for the UK Border Agency to collect visa national Games family members’ fingerprints and facial images. In reality the UK Border Agency will only use the 2011 regulations and 2011 order to collect the fingerprints and facial images of visa national Games family members that it does not already hold. Those who are identified as having previously provided their fingerprints and facial images to the UK Border Agency will not have them collected again on arrival in the UK or at the UK’s juxtaposed controls. I hope that noble Lords will unite with me to support these provisions, which will help to deliver a safe and secure set of Olympic and Paralympic Games.

[Lord Avebury]

My Lords, we are very grateful to the Minister for his careful explanation of the provisions of these statutory instruments, which deal with the immigration arrangements for the 22,000 expected Olympic and Paralympic accredited contestants and their so-called family members, the categories of which he has enumerated, who will be arriving in the UK during the period from March to November 2012. I just want to be absolutely clear that Games family members actually include the family of the contestants. I should be grateful if the Minister will say when he replies that that is so, and that contestants can bring a spouse and children under these arrangements.

As the Minister has explained, the accreditation is by means of a card issued by the International Olympic Committee and the International Paralympic Committee through their contractor ATOS, but the necessary security and immigration checks are to be conducted by UKBA. They will know whether an applicant is recorded on their system as having ever been in breach of our immigration rules, and I ask my noble friend what they will do if a GFM—or, even more sensitive, an athlete—is flagged up by this check. What other checks will the UKBA undertake to confirm that an applicant for accreditation is not a threat to security or a person whose presence in the country would not be conducive to the public good?

Athletes and GFMs who are visa nationals and in possession of an accreditation card will not generally need a visa to enter the UK, as the Minister has explained; but according to the Explanatory Memorandum, there are 2,000 who will still have to apply for a visa in their countries of origin. Will the Minister explain who are these people, and is the position absolutely clear to them, so that we do not get them turning up at a port of entry thinking that they can get in with just the accreditation card? For the remaining 20,000 visa national athletes and GFMs, the accreditation card allows the holder to enter the UK without a visa but these statutory instruments, as the Minister has explained, permit the UKBA to take their biometrics at the port of entry instead of in the country of origin as would normally be the case. That comes into operation at the beginning of the period on 12 March next year.

There may still be some customer resistance to giving biometrics at the port of entry when the Government say that they are facilitating the entry of Olympians and their entourages, even though LOCOG says that it does not object to the process provided that it is communicated very clearly to the applicants in advance. I respectfully suggest that LOCOG cannot be certain that people will not still complain, but there might be one way of reducing the numbers affected. There is a special visa to be created which allows for a longer stay, enabling the contestants and GFMs to come here in advance for training and acclimatisation. Applicants will then be asked to give their biometrics overseas, as non-Olympian visa nationals already have to do. The Immigration Law Practitioners’ Association has suggested that the uptake would be increased if the special visas were free, but the UKBA has not taken up the idea. What is being charged for the extended visas, and has any estimate been made of the extra spending that would be generated in the UK by making the visas free, to offset the loss of revenue that would arise from waiving the fees?

15:45

Next, what will the procedure be if a visa national contestant or other GFM who does not obtain a concession visa shows up on the biometric checks at the port of entry, for example as a person who has overstayed in the past? There should not be many of those because checks will have been undertaken in advance when they received their accreditation. However, if some do slip through and are only detected at the port of entry, are they detained or removed, or is action suspended until after they have finished competing in the Games? Will there be any difference in the treatment of an actual competitor and a member of a competitor’s family or entourage? When a person applies for a visa they know if they are accepted or refused before they travel, but there could be an unpleasant surprise awaiting a few people upon arrival at Heathrow.

Speaking of Heathrow, I wonder if the UKBA thought it necessary to designate that airport as the main Olympic entry point? It is already the busiest of the UK’s airports and can be a real nightmare for travellers from time to time. The Piccadilly line into central London is grossly overcrowded and if Olympians are forced onto the more expensive Heathrow Express, they may suffer problems if it does not have any special arrangements to offer concessions to Olympians or to cope with the extra traffic.

Why does this order not contain all the juxtaposed controls? Why is it necessary to have this order presented now, and another in the autumn dealing with some of the other juxtaposed controls?

The Explanatory Memorandum states in paragraph 7.6 that if a visa national GFM was not required to provide biometrics on arrival, they would have to do so when applying for leave to remain within the Olympic period. What are the categories of people to whom this would apply, and if it is intended for those who originally entered before the biometric capture scheme came into operation, why do we not have one rule for all visa nationals asking for leave to remain after such a long period? I believe the Minister implied as much during his introductory speech.

[Lord Stevenson of Balmacara]

My Lords, I too would like to thank the Minister for the detailed introduction he gave to the regulations. It was interesting to hear the full explanation, particularly regarding juxtaposed controls—touching places I had never heard of, but that I am sure will feature in future discussions now that we know about them.

I understand why this order is necessary, and the noble Lord, Lord Avebury, has covered some of the ground on this. However, I also have some questions about the way in which this was actually brought into being and some of the points raised within the document. I found the document very difficult to read and the definitions a little confusing and elastic—they seem to slip around a little. For example, the Explanatory Memorandum talks about 20,000 people being involved when in fact the impact assessment gives a range of 20,000 to 25,000, with a median point of 22,500. If we are talking about 25,000 people all the proportions and timings will be changed substantially.

The first point I was confused about—the noble Lord, Lord Avebury, also raised this—is that in paragraph 4.2 of the memorandum there is a statement that persons “would usually” have,

“to apply for a visa”.

However, it does not explain why the GFM personnel get ID cards. Did I hear the Minister say that they would also have Home Office involvement at that stage, in terms of taking some of the demographic details which are being talked about? What exactly is the meaning of “usually” in that circumstance? Are there situations when visas would not be so required or, indeed, when the visa would be required but the biometrics would not be taken? “Usually” has no definitional point attached to it and it is not clear who exactly is being talked about there. The noble Lord, Lord Avebury, also asked about charges and it is also not at all clear whether charges are being made in any or all of these circumstances. I would be grateful if the Minister could give some more information about that.

My next point is also on paragraph 4.2. The wording in the documentation suggests that Her Majesty’s Government signed an agreement so that,

“in specified circumstances there would be no requirement for certain holders of,

ID cards,

“to apply for a visa before travelling to the UK”.

That seemed a very straightforward statement. Yet we now understand that it is a bit of a catch because although anybody with a GFM does not need to apply for a visa before travelling to the UK, that does not mean that they will not be required to provide the usual demographic data that are being talked about—the fingerprints and the photographic information. What are these specified circumstances that Her Majesty’s Government are using for this? It seems that we have signed one thing but are doing another. I would be interested to hear comments on that.

The process under which the regulations were consulted upon also seems rather odd. The statement we have been given is that it was thought necessary only to consult LOCOG. As the noble Lord, Lord Avebury, said, it has not objected provided that everybody involved in this knows about it. It seems extraordinary to introduce such a wide-ranging requirement on what might be 25,000 people without having some sense of whether they are going to object to it. Also, although LOCOG obviously has a key part to play in this, it is not the only body involved. There might have been some attempt made by the Home Office to consult more widely, particularly with the Olympic organisations in the various countries concerned.

Another point I want to make is, again, about the process. The documentation that we have been given suggests that the choices before Ministers when they decided to go ahead on this was either to do nothing— in a sense, to rely on such processes as are currently in place for awarding the GFM and not to do anything for those who had been promised by Her Majesty’s Government that there would be no requirement for ID card holders to apply for a visa before travelling to the UK—or to amend the legislation. That rather stark choice does not seem to involve the many other possibilities that could have been taken into account at that stage, including working more closely with LOCOG in making sure that these things are done more properly.

My final point on this issue is that there is mention in the documentation about a possible review but no specification seems to be given about whether a review will in fact be taken. Given that we have the Commonwealth Games coming up very shortly, there would be lessons to be learnt about this process and it might be sensible for the Home Office to carry out a review. Again, it would be helpful if the Minister could explain what is involved in that. In concluding, I thank the Minister very much for his initial comments and look forward to hearing his response. We will of course be back in the autumn to discuss this again, when we do the Channel Tunnel orders.

[Lord De Mauley]

My Lords, I thank both my noble friend Lord Avebury and the noble Lord, Lord Stevenson of Balmacara, for their questions, which I will now do my best to respond to. First, my noble friend asked whether Games family members will be able to bring members of their families. Certain Games family members will be eligible to bring an accompanying guest as a result of their accreditation, and that guest can be a family relative. The guest will receive his or her own accreditation card and will need to meet the requirements of the Immigration Rules in order to enter the country.

My noble friend asked how accreditation applications will be assessed. Proposals for the policy and process to decide accreditation applications for both Games have been signed off by the Home Secretary. A detailed refusals policy, including criminality thresholds, has been agreed by the Olympic accreditation decision board following consultation with the police, security and intelligence agencies, the Foreign and Commonwealth Office and the Government Olympic Executive. Each application will be determined on its own merits. Particularly complex or sensitive cases will be reviewed at the Olympic accreditation decision board. Police, immigration and counterterrorism databases will be checked.

My noble friend and the noble Lord, Lord Stevenson, asked about only certain Games family members being able to use their accreditation card in lieu of a visa, and who will and who will not. Each Games family member will be accredited under a specific accreditation category code. The International Olympic Committee advises for each Games on which of these codes the host-city country must confer visa-free access to and on which it is not so obliged. The UKBA is keeping under review the codes that do not confer visa-free access. The types of persons to whom the UK Border Agency is not obliged to grant visa-free access include: additional security personnel, such as fire, police and ambulance services; additional members of the entourages and alternate or reservist athletes; and individuals invited by LOCOG, such as domestic dignitaries or national partners. These people will be told by LOCOG that they need to get a visa before they travel to the United Kingdom.

My noble friend asked about delays at the border, which certainly is a valid concern. We are mitigating the risk of delays by reducing the amount of fingerprints and facial images we need to collect at the UK border by offering a special Olympic visit visa to Games family members, which is currently available, and by seeking to collect visa national Games family members’ fingerprints and facial images on a voluntary basis overseas and in the UK prior to the Games. We are also considering the issue he raised about the visa being issued for free.

My noble friend asked what happens if a GFM refuses to give his fingerprints and facial image. If a visa national GFM refuses to provide fingerprints and a facial image we will make every effort to satisfy ourselves about their identity. If, despite these efforts, we are unable to satisfy ourselves about their identities, we will have to refuse their application for leave to enter the UK. Clearly, if it is a very well-known athlete the process will be made a lot easier. My noble friend also asked what criteria we will use to judge each case on its merits, and the answer is whether we are satisfied of the identity. That is the critical thing. If an individual refuses to provide fingerprints or a facial image it gives rise to the question: what are they trying to hide? I think that my earlier answer goes to that point as well.

My noble friend also asked why we are not dealing with the Channel Tunnel orders now alongside the statutory instruments. We are in the process of consultation with the relevant Belgian authorities about collection at Brussels-Gare du Midi and wish to amend both Channel Tunnel orders via a single amendment order as opposed to two orders to reduce the amount of legislation, and to save preparatory work and parliamentary time. The 2011 regulations are being taken forward now because we need to have secured the legal power to collect the fingerprints and facial images in the UK before procuring the collection equipment and to allow sufficient time to test that equipment.

My noble friend asked about in-country collection circumstances. Visa national GFMs will be advised to use one of the UK’s major ports to enter the UK so that their fingerprints and facial images can be collected when they first arrive here. A visa national GFM who has not already provided fingerprints and a facial image to the UK Border Agency may arrive at a small airfield. If the UKBA is unable to deploy to meet the arriving person, officers will grant the GFM 48 hours’ leave to enter and inform them that they are required to apply for leave to remain within 48 hours at a specific UKBA office.

16:00

My noble friend asked about the use of Heathrow. Heathrow Airport has the infrastructure to deal with and process the large volume of Games family members. Therefore, it is best equipped to cope with the Games family members when they arrive.

The noble Lord, Lord Stevenson, asked about the requirements for biometric data now that we have signed an agreement not to request visas. Waiving the visa requirement did not waive the UKBA’s right to legislate to take fingerprints and facial images. The waiving of the visa requirement was agreed to facilitate Games family members’ entry into the UK, by removing the requirement from them to obtain permission to enter the UK prior to travelling. LOCOG and the International Olympic Committee are aware of our policy to collect visa national Games family members’ fingerprints and facial images and are content with it so long as the collection process is clearly communicated in advance.

Our overall aim is to deliver a safe and secure Olympic and Paralympic Games. These statutory instruments will help us to do this by enabling the UK Border Agency to maintain a proportionate level of its usual security checks.

[Lord Moynihan]

First, I apologise that I was working on other matters Olympic in Stratford and therefore missed the opening remarks. I will place on record, as chairman of the British Olympic Association and as a member of the European Olympic Committee executive, the thanks of many national Olympic committees—205 committees will be coming here—for the professional and courteous way in which the Government, in particular my colleagues in the Home Office, have been receptive to the many concerns that have been raised, particularly about access for Olympic family members to the Games. I will place on record the thanks of all sides of the House and Committee for the hard work that has gone into this. It is of enormous importance that there is smooth entry, in particular for the athletes and their immediate entourage, to ensure a successful Games.

[Lord De Mauley]

My Lords, I am grateful to my noble friend for raising that point. I share his gratitude to a lot of people who are working very hard to make these Games a success. These statutory instruments will help us to deliver a safe and secure Games by enabling the UK Border Agency to maintain a proportionate level of its usual security checks on visa national Games family members seeking to enter the UK. I commend the order.

Motion agreed.

Immigration (Provision of Physical Data) (Amendment) Regulations 2011

Tuesday 12th July 2011 Grand Committee

Considered in Grand Committee

16:03

Moved By

[Lord De Mauley]

That the Grand Committee do report to the House that it has considered the Immigration (Provision of Physical Data) (Amendment) Regulations 2011.

Relevant document: 23rd Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Legislative Reform (Epping Forest) Order 2011

Tuesday 12th July 2011 Grand Committee

Considered in Grand Committee

16:03

Moved By

[Lord De Mauley]

That the Grand Committee do report to the House that it has considered the Legislative Reform (Epping Forest) Order 2011.

Relevant document: 14th Report from the Regulatory Reform Committee.

[Lord De Mauley]

My Lords, it is now almost exactly one year until the start of the 2012 Olympics, and there is a palpable sense of excitement at the prospect. All of us want the Games to be a huge sporting success. In order for that to happen, there needs to be a well planned and executed security operation. Today, I am asking your Lordships to endorse a legislative reform order that is a crucial element in that.

I acknowledge straightaway that there have been complaints about the way in which this has been handled, not least from your Lordships' Delegated Powers and Regulatory Reform Committee. I apologise on behalf of the Government for the deficiencies and for the error that was made. I will address specific points in a moment, but perhaps noble Lords will allow me briefly to set the context.

A tried and tested approach to ensuring the security of major events is the use of muster, briefing and deployment centres. These are places where large numbers of police officers can be gathered and given a collective briefing before being dispersed for their duties. In London next summer there will be three such muster centres. The most important will be the one in north-east London, which will support the main Olympic park area.

After extensive scrutiny of many possible options, the Metropolitan Police are convinced that the fairground site of Wanstead Flats on Epping Forest is the only real option for this deployment centre. The site in question constitutes just 2 per cent of the total land area of Wanstead Flats. The Metropolitan Police will pay £170,000 in lieu of rent, in addition to all of the costs of making good the site, which will help to create lasting legacy benefits for Epping Forest.

The Government recognise that there will be some disruption for a brief period next summer for those people who use that particular part of Wanstead Flats. However, we believe, and we ask those people to accept, that this is both necessary to the security of the Games and proportionate. I am pleased to say that, despite its criticisms, that view was endorsed by the Delegated Powers and Regulatory Reform Committee.

The City of London, which is the conservator of Epping Forest, is happy to endorse what is proposed, as is the London Borough of Redbridge which granted planning consent earlier this year.

The issue which arises is that the Epping Forest Act 1878 prohibits the enclosure of any part of the forest, even on a temporary basis, hence the need for a legislative reform order to make a temporary amendment to the 1878 Act. The order was recently endorsed in another place without a Division.

The Government have no wish to see any change to the status of Epping Forest nor to the legal protections that ensure that it can be enjoyed in perpetuity. The order is therefore strictly time limited. It disapplies the protections of the 1878 Act only for a specified period of three months next summer. After the Games, the muster, briefing and deployment centre will be removed, the land restored to its former status and the full protections of the 1878 Act will remain intact. No lasting change to the law will be made.

I quote from the Delegated Powers and Regulatory Reform Committee:

“The Olympic and Paralympic Games is a special and unusual event requiring special and unusual policing. We agree with the Government’s view that members of the public cannot reasonably expect to exercise their freedoms over the Centre’s site for the limited period for which the Centre is considered necessary”.

The committee was satisfied that the order meets all the tests in the legislation and is not otherwise inappropriate to proceed.

The order was declared hybrid by the Chairman of Committees the day after being laid. The Hybrid Instruments Committee, having considered eight petitions against the order, concluded:

“Many of the matters complained of in the petitions have been so dealt with, in particular by the normal planning process or in the report to the House by the Delegated Powers and Regulatory Reform Committee … that no further inquiry into them is necessary ... there ought not to be a further inquiry by a select committee into any of the matters complained of”.

Perhaps I may now turn to the criticism of the Government’s consultation process made by the Delegated Powers and Regulatory Reform Committee. The overall proposal has been subject to three separate consultation processes, covering the police proposals to use the site, the specifics of the LRO itself, and the planning permission from Redbridge Council. Every effort was made to involve and consult local people. This included leafleting the streets most directly affected and public meetings in the area.

One of the criticisms of the Government’s consultation is that it did not offer respondents a choice of possible sites, or even details of the sites which had been considered by the police other than Wanstead Flats. The latter was clearly an error, which was remedied during the consultation.

On the former point, let me explain the Government’s stance. The Metropolitan Police considered 29 possible sites for the muster, briefing and deployment centre. Applying objective criteria, they concluded that Wanstead Flats was the only suitable site. That was the clear professional, operational advice from the police. It would have been very difficult and even potentially dangerous for the Government to try to override that advice. The effectiveness and the clarity of the consultation process would not have been enhanced had we sought views on alternative sites which had already been ruled out as unsuitable; indeed, to have done so might have unnecessarily alarmed residents living near those sites.

I absolutely stand by the principle that good consultation requires allowing people to be involved at the earliest possible stage and to be able to influence the eventual outcome. However, I do not believe that it would be practical or desirable to ask people for their views on the details of how something like the Olympics should be policed, so the question of whether or not a muster, briefing and deployment centre is necessary had to be off limits, nor could we reasonably have asked people to substitute their own judgment for that of the police when it came to assessing suitability of the alternative sites.

Another issue raised by the Delegated Powers and Regulatory Reform Committee was the error in the Home Office’s original consultation document, in consulting on removing the burden of Section 34 of the 1878 Act rather than Section 36, as it should have done. The committee said that it was surprised that the Home Office did not engage in further consultation.

If noble Lords look at the responses to the consultation, all of which were placed on the Home Office website, they will see that those who responded were either for or against the principle of what this order seeks to do. I do not believe that the positions which local people took on this issue were affected by the fact that there was an error relating to the 1878 Act in the consultation document. Nor do I believe that the error meant that anyone who feels strongly about the issue was deterred from submitting a response.

I do not believe that had we aborted the consultation at any point and started again or even if we were to rerun the whole thing again today, the results would be any different. The Government are well aware that a small number of people in the immediate area of Wanstead Flats are deeply concerned about what is being proposed and we accept that their concerns are legitimate. They were certainly not prevented from expressing their views by the consultation process and, indeed, were able to petition Parliament direct through the hybridity process.

I am pleased to be able to report that, despite its misgivings, the Delegated Powers and Regulatory Reform Committee concluded on this matter:

“On balance we consider that the information given to those required to be consulted was just about sufficient to enable them to respond coherently to the proposal for the legislative change”.

I confirm for the record that what we are doing does not in any way set a precedent for future development on Wanstead Flats. I hope noble Lords will agree that the Olympics are unique in terms of scale and the policing challenge they present. I can think of nothing else that would require similar arrangements. As we have gone for a time-limited legislative reform order, even if a future Government were minded to put buildings on Wanstead Flats, even temporarily, they would have to replicate these procedures and secure fresh parliamentary approval.

Restoration of the site was, rightly, a point of considerable interest in another place. One of the conditions of planning consent imposed by the London Borough of Redbridge was that the Metropolitan Police should agree a scheme of restoration with both the corporation and Redbridge Council in writing before work begins. I am sure that both those bodies will be vigilant in ensuring that the restoration scheme is comprehensive and that its provisions are properly adhered to. My honourable friend in another place, Lynne Featherstone, is writing to MPs whose constituents will be most directly affected to set out how the restoration scheme will be drawn up.

I respectfully suggest that what we are seeking to do is a sensible, proportionate measure. It will be a vital component in next year’s Olympic and Paralympic safety and security operation while ensuring that those who cherish Epping Forest can have the confidence that the Act that protects it remains fully in force.

I apologise again for the error and deficiencies identified by your Lordships’ Delegated Powers and Regulatory Reform Committee. It concluded:

“The Committee considers that the proposal in the draft Order meets the tests set out for LROs in the Legislative and Regulatory Reform Act 2006; and is not otherwise inappropriate to proceed”.

I ask your Lordships to support this measure.

16:15

[Baroness Doocey]

My Lords, first I declare an interest as a member of the Metropolitan Police Authority and the Home Office Olympic Security Board. For the past three years I have chaired the Metropolitan Police Authority Olympic and Paralympic Committee, and one of our key terms of reference is specifically to examine the security preparations for the Olympic and Paralympic Games.

The issue before us is one in which the committee has been heavily involved. Most of the committee’s work is done through examining all the Met’s business cases for the various elements of the Games. Committee members are very diligent as some of those business cases run to about 200 pages with lots of annexes, but despite that we spend a huge amount of time, and have done over the past three years, looking in great detail at what is proposed and challenging assumptions when necessary.

On this one, members of the committee had lots of representations, as the Minister mentioned, from various groups who had some genuine concerns. Speaking personally and, I think, for most of my colleagues, I would say that many of the concerns arose because people did not fully understand the proposals. One of the difficulties is that when people talk about consultation they are not always entirely clear about the difference between consultation and public information. Like every other noble Lord I am a great believer in consultation, but there comes a time when you have to separate that from public information. Some issues must be put into the public domain to inform the public about what will happen and why and to give all the reasons, whereas others are for consultation. Sometimes the impression is given that when an announcement is made—this happens a lot with the Metropolitan Police Authority in particular because it is such a large organisation—people will be consulted with a view that if they are not happy with the consultation they will be able to get something else done, whereas in fact, as with some of the issues we are discussing here, it is a matter of, “This is what has to be done because …”. You cannot possibly have the public saying, “No, we don’t like site A. We think that you should move to site B”.

Some of the concerns are around the fact that so much will be put on the site. I am sure that many noble Lords have had letters from people about the Metropolitan Police saying that they just need one big major briefing centre. That is not correct because plans for the site clearly show that there is more than one building. So many things will be on the site that it is just not possible not to have more than one building. We are talking about accommodating 3,500 officers every day, so it has to be large enough not just for briefings. There will be armouries because we will have to keep weapons. There will be stables, parking, secure parking, kennels, refreshments, and obviously there will have to be showers, toilet facilities and so on. It was very difficult to find a site that came anywhere near the sort of requirements needed. This site was sourced after a very extensive search. The committee considered all the proposals and the information that the Met provided—they provided everything that we asked for—and we were happy to confirm that their option was the best possible one.

The committee is entirely satisfied that Wanstead Flats in Epping Forest is not just the best way forward but is probably the only area that can provide the range of facilities for the sort of secure location required. It is near enough to the park so that officers can go backwards and forwards not just to the Olympic park but to Victoria Park, Westfield shopping centre, Stratford and to the ExCel centre. We were very happy with that option and I hope that noble Lords will be, too.

[Lord Brooke of Sutton Mandeville]

My Lords, when I represented the City of London and Westminster as a Member in the other place for well nigh quarter of a century, I worked with the City of London in its capacity as an owner and guardian of many green spaces around the metropolis. Although Epping Forest was outside my geographical remit, I remain interested in the City's role as conservator of the forest and in its work to safeguard this vital green space for the benefit of all Londoners, at no cost to the public purse.

Last month’s debate in the other place on this legislative reform order raised some questions about the City of London's custodianship of the forest in collaboration with the local residents. I speak only for the consultation exercise with which the City was concerned, not for the subsequent exercises that were undertaken by the Metropolitan Police and the Home Office and examined by parliamentary committees.

The local consultation carried out last summer by the City, working with the Metropolitan Police, involved canvassing local residents, 22 resident and community groups, local councillors and MPs. Some 6,400 fliers were distributed in the local area, outlining ways in which the public could engage with the consultation. Five public exhibitions were staged and a public meeting was held in October. Representatives of the City were present at all of these events to listen and to answer questions. The City also engaged activity with a minority of the public who raised concerns about the proposal, by responding to letters and publishing answers to “frequently asked questions” on its website.

During the debate in the Commons, there were calls for a consultation by the City on the possible uses for the £170,000 “rent/fee” that will be available for the improvement of Wanstead Flats following the use of the flats by the police. I am happy to inform your Lordships that the concerns expressed are groundless. Consultation on the issue started last summer, when the City invited local residents to comment on three possible projects to be funded: improvements to the adjacent Jubilee Ponds; landscaping the area south of Bushwood; and improvements to Alexandra Lake. The Jubilee Pond improvements received the greatest support, and the City is committed to consulting local residents again when plans for possible improvements have been developed further, and when it is certain that the muster centre will be located on the flats and that the funds will be available.

Finally, concerns were expressed that the site might not be fully and properly reinstated following the police's departure. The site will have to be reinstated, at the police's expense, in compliance with a restoration plan to be approved by both the London Borough of Redbridge and the conservators, and to the satisfaction of the acknowledged experts employed by the City. The City is—rightly—highly regarded for its husbandry of open spaces all around London, such as Epping Forest, Hampstead Heath, Burnham Beeches and several commons to the south of the City. This should provide the assurance required that Wanstead Flats, that greatly valued green lung for the City, will be restored to its former state once it has played a vital role in delivering a secure 2012 Olympic Games.

I will add a personal footnote. At the end of the second 1974 Parliament, I took a Private Member’s Bill through the House of Commons on behalf of the Corporation of London on the subject of the consequences of the construction of the M25 as they related to Epping Forest. In that capacity, I paid a visit to, and inspected, the forest, which of course lay outside my constituency. It was an era when the proposition that “George Davis is innocent” was being carved or painted in many places, including on a test match cricket ground and likewise at a cricket ground in Epping Forest, beneath which the M25 now thunders. More than three decades later, I believe that I am right in saying that Mr Davis’s innocence has been confirmed. If that is so, this sporting vignette may be a good omen for the Games next year, which of course I wish well.

[Lord Moynihan]

My Lords, I rise again and in so doing I declare the interests not just of chairing the British Olympic Association but also of having the honour of sitting on the London Organising Committee of the Olympic Games as a director of the board. I again thank the Minister, in particular, and his colleagues for their comments today. I recognise that nothing is more central to the success of both the Olympic and the Paralympic Games than effective security. Here we are talking about effective security which will be provided by a maximum—if the Minister is correct—of 3,500 police officers on this site. But of course security goes far wider. Although this order is not relevant to that wider security, it is important to recognise that before this measure comes into place we will have many of the 205 national Olympic committees here for pre-Games training camps. Their security around the country is of high importance. I have raised the issue on many occasions outside your Lordships’ House but I hope that the Minister will echo it as critical to the success of the security operation. In his opening remarks my noble friend the Minister said that this was relevant to the Games. In that context, I would be grateful if he could clarify, for the avoidance of doubt, that we are talking about both the Olympic Games and the Paralympic Games and that the order is effective from 23 June to 20 September.

On the restoration scheme, I would be grateful if the Minister would let the Committee know over what estimated period of time the restoration process is likely to take place and whether there is any visibility at this stage on the cost of that restoration scheme.

In closing, I again thank my noble friend the Minister for his introduction to this order and for the comments made by my noble friend. In particular, perhaps I may echo the latter comments relating to the sporting success of the Games. I have every confidence that Team GB will be outstandingly successful at these Games. I hope that it will match our aspirational target of fourth place, as we did in Beijing, with a remarkable level of success in more sports with more medals than we have seen in many a decade. That would be very much due to the support services provided by the Government and, above all, to their ensuring the security of the Games and the athletes who will, I hope, have the experience of a lifetime when they come to London in 2012.

[Lord Teverson]

My Lords, I am here to talk about the renewable heat initiative but I grew up in Wanstead and could never understand why it was called Epping Forest when on Wanstead Flats I could see no trees. In fact it seemed to be part of the western European plain as it stretched out into the distance. As a schoolboy I used to visit the fairs in Wanstead Flats, which was a great experience. One of the few complaints that I can remember about the area and the police was that there was never enough of them. Now, at last, 3,500 have turned up at one time, which is probably good news.

I know that this is not, nor is it meant to be, an amusing subject. However, I was slightly amused at the restoration of Wanstead Flats. When I knew it four or five decades ago, restoration would probably have meant taking it down and making sure that it looked worse than it had before. It was in a very bad state at that time. I know that it is a lot better now and I am absolutely delighted that this restoration will be taken seriously, which I am sure is most important. I am delighted to see Wanstead Flats in the centre of the Olympic Games and how it will be organised. I hope very much that despite some of the mistakes made in this process, Wanstead will play its part in a successful Games.

[Lord Stevenson of Balmacara]

My Lords, I am very grateful to the Minister for introducing this further legislation and for his explanations. He has certainly tried very hard to give a good account of what has happened. I may have to return to one or two of the points because there are issues here on which we should perhaps dwell before we leave this order. It was also useful to have in front of the Committee the words of the noble Baroness, Lady Doocey, who helped to explain some of the context of the police decision, which is absent from any of the documentation that I have seen. It was also useful to have the background from the noble Lord, Lord Brooke of Sutton Mandeville, who was entertaining as always in his recollections of his times. When will we see the book? Why do we not have it all down at one time? Every time the noble Lord speaks, he seems to have a little vignette of life either as an MP or as a member of the City corporation, which has informed the House, made us laugh and has lightened the tone on many occasions.

16:30

Two things seem to be happening here—the noble Baroness, Lady Doocey, is absolutely right that there are two halves to this. The first is the police’s decision—for all the right reasons, and probably correctly—regarding a place which they must have to secure the Games and the Paralympic Games. I do not think that we should confuse that in any sense with the processes then necessary to allow the legislation to permit us to establish the muster centre in the area that we are talking about. There is a decision properly arrived at by the police and in consultation with the appropriate authorities, which is that Wanstead Flats is the place where operational efficiency can best be achieved for the muster centre—and, for the limited period involved, that has to be the right decision. Conversely, I can imagine the impact that that decision had in the Home Office when it was realised that this was an area that is heavily constrained by legislation which has lasted for a very long time—indeed so long that they probably did not manage to read it correctly and, as has been explained, tried to consult on a provision that was introduced in 1878 but lapsed in 1882, so that the actual consultation itself was not in any sense to do with the legislation that we are dealing with.

I suspect, although I have no evidence to support this, that the downward spiral started at that point and that, the panic having set in, they decided to do all they could to cover every possible area, as a result of which we ended up with the poor people living in the area having three separate consultations over two years to deal with issues that probably should not have been consulted on, in order to give a bolstering to the process.

So we have a planning application which by all accounts seems to have gone well. I do not think that any issues arise from that. It would of course be necessary for there to be a planning process. I am glad that, until such time as the Localism Bill strikes us, these planning processes seem to work well and involve the local people. It received a proper level of response and went through.

The reasons for the police consultation have been explained—although it was not really a consultation in that sense but a public information exercise. However, this consultation was rather difficult to engage with because it was only online; it was done in a relatively short time, and they had a set of preset questions that people had to respond to. It was not possible, as it often is not in electronic communications of this type, to write in your views or explain. I think that the local people could have been quite upset about that, and it is right to recognise that. Perhaps the Minister will comment on that when he replies.

The consultation was described in another place as being potentially deficient mainly because of that. To describe, as they did in that process, the flats as,

“essential to ensuring the safety and security of the Games”,

was, as has been said, a little bit of an overstatement. I suggest that the Government have rather overegged this.

As for the Home Office consultation, as we have said, it set out on the wrong track, concentrating on Section 34, which lapsed, and not Section 36. I think that there were several factual errors as well as a rather limited approach to that. The impression, as far as I can tell from the responses that were received, was that the deal had been done and that the process that was being used was chosen simply as the best way of achieving that. That raises the one point that I would like to invite the Minister to respond on. It has been alleged in a number of places that in using the LRO procedure, the process was flawed from the start because the powers necessary to achieve the objective that the Home Office wished were already in the legislation, if it had looked in the right place; and, indeed, that this could have been done through by-laws introduced by the corporation as conservator. In that sense, a lot of this stuff would have come down a complete notch and would not have caused the subsequent difficulties.

Consultations—a word, as I have hinted, which should be used carefully—are always difficult. However, to the extent that consultations were carried out in the process that we talked about, 31 responses were received. There were also responses to the hybrid petitions, which should be counted in that. Therefore, to that extent, views have been expressed. In the debate in another place, the local Member, John Cryer, suggested that there were issues that had not been properly discussed, including the impact of this whole arrangement on traffic, although that would certainly be part of the planning proposals, but mainly in relation to traffic for commuters and others who live locally and the impact of the Games. But I suspect that that has probably not been looked at. Security might be adversely affected in the area because the location of the police centre there will bring focus to that area which otherwise would not have happened.

Although the compensation figure of £170,000 sounds very reasonable, nobody really seems to know where it came from, and although we are notionally talking about a three-month period during which the police will be in occupation of the site, there will clearly be periods before and afterwards when the site is prepared and restored during which it will not be appropriate for it to be used by local residents, so there are issues about that.

We would be grateful if the Minister will reassure us in his response, as he has done already, that the Government recognise the mistakes that were made in this; indeed, he has apologised for them, which was good to hear. However, the main consideration is that the use of the LRO in the Act that has been selected for this does not set a precedent. Can he reassure us that we can be confident that in any future arrangements of this type—it may be that there will not be so many—we will not find that this process, which was definitely flawed and possibly defective, will not be prayed in aid in order to achieve an easy win in an area that should be subject to proper consultation and discussion that gives local residents a chance to make their points?

[Lord De Mauley]

I thank all noble Lords for their comments and questions today. I shall do my best to address them. First, I thank my noble friend Lady Doocey for her helpful comments on the need for a distinction between consultation and public information; on the complexity of the buildings required, with which I entirely agree; and for her other helpful comments.

My noble friend Lord Brooke of Sutton Mandeville made some helpful comments, expanding upon mine, on the consultation process and on reinstatement. My noble friend Lord Moynihan commented on the importance of security. This order applies to both Games. He asked how long the restoration process will take and what it will cost. It will take several months for the site to return to its original state, and I say in all seriousness that it will depend to some extent on the weather because the grass will grow better if it rains. The cost is not yet known and will not be known until the centre has been removed and the state of the site is known. The £170,000 is above the cost of returning the site. I thank my noble friend Lord Teverson for his support.

Turning to the comments and questions from the noble Lord, Lord Stevenson of Balmacara, I hope that I have addressed most of the issues that he raised, but I am delighted to return to some of them. He particularly commented on the deficiency of the police consultation. I reiterate that the police leafleted local properties and held five public meetings in the area, so they did everything they could to consult local people. I have apologised. We recognise the mistakes. We will certainly do our best to prevent them happening again, and I apologise again.

The noble Lord asked about traffic. I can confirm that traffic issues were considered as part of the planning process and that Transport for London is satisfied that this is manageable, not least because it is during the school summer holidays.

[Lord Stevenson of Balmacara]

The point I wanted to make about traffic was not so much on the planning application, as that would be about the site-specific activity, but more about the impact that it would have on patterns to and from the Olympic Games themselves and on those who are commuting, so it is wider than planning.

[Lord De Mauley]

I am satisfied that that has been taken into account in the process. The noble Lord is right that it will be critical. After all, how will the police react to an incident? However, it has been part of a very comprehensive planning process. I think that the noble Lord asked whether this could have been done through by-laws. I confirm that we could not have achieved the result by amending the by-laws. I think that he also asked about the sufficiency of the £170,000 figure, which I hope I have already addressed adequately.

I am grateful to all noble Lords for their supportive comments today. I appreciate that, despite those comments, what is proposed raises strong feelings in the immediate locality. I remind your Lordships that what is being proposed affects only 2 per cent of the total area of the Wanstead Flats and is entirely temporary in nature. After 90 days next summer, the full provisions and protections of the Epping Forest Act 1878 remain in force. I take note of the points that the noble Lord, Lord Stevenson, made about the consultation exercise; and I reiterate that whatever deficiencies there were, I do not believe that those who have strong views about this matter, particularly those opposed to the proposal, felt inhibited or unable to make their views known. We are satisfied that what is being proposed is proportionate and necessary to ensure the safety of the world's greatest sporting event and I commend the order to your Lordships.

Motion agreed.

Renewable Heat Incentive (Amendment to the Energy Act 2008) Regulations 2011

Tuesday 12th July 2011 Grand Committee

Considered in Grand Committee

16:42

Moved By

[Lord Marland]

That the Grand Committee do report to the House that it has considered the Renewable Heat Incentive (Amendment to the Energy Act 2008) Regulations 2011.

Relevant documents: 25th Report from the Joint Committee on Statutory Instruments.

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

My Lords, there are two sets of regulations before you. The first sets out the details of the renewable heat incentive, which will allow the scheme to start operating. The second enables an amendment to Section 100 of the Energy Act, the primary legislation which underpins the renewable heat incentive. This change relates to our treatment of bioenergy, which I will speak about in more detail later. As with similar financial support schemes the RHI is subject to state aid clearance, which we hope to receive in the next few weeks.

The RHI regulations set out our commitment to provide 20 years’ financial support to eligible renewable generators of heat. This means support for technologies such as solar thermal, biomass boilers, ground-source heat pumps and geothermal, to name a few. The full list of technologies supported and the levels of support are set out in the regulations. These are calculated to bridge the financial gap between the cost of conventional and renewable heat systems. Once in the scheme the level of support for participants will be fixed, changing each year only with inflation. Support under the RHI will be available for renewable heat installations in England, Wales and Scotland through these regulations. However, I am pleased that provisions in the Energy Bill will now allow the Northern Ireland Executive to introduce their own RHI in future.

The RHI represents a serious investment in our future. It will provide financial support to a wide range of technologies and set us on a path towards rapid change. By the end of the decade, we will see 500,000 jobs created in the renewables industry with the RHI stimulating £7.5 billion of capital investment. Once introduced, the RHI will be available to renewable heat generators in the industrial, commercial, public, not-for-profit and community sectors. We want to see a broad range of businesses and organisations take the opportunity that the RHI offers to change the way they generate heat—for example, with businesses such as restaurants or supermarkets using food waste to generate biogas.

Ofgem will deliver the RHI on behalf of DECC. It has significant experience in delivering schemes which provide financial support to renewable energy generators already delivering the renewables obligation and feed-in tariffs. Generators will need to apply to Ofgem to be accredited under the scheme, and the processes they need to undertake are set out in guidance recently published for consultation on their website.

Because Ofgem has experience in delivering similar schemes, it will build on experience and existing structures, such as IT systems, to ensure that the RHI operates as effectively as possible. I am pleased that, subject to parliamentary approval of these regulations, Ofgem will be ready to receive applications for the scheme from 30 September this year.

To receive a payment under the scheme generators will need to commit to undertake certain ongoing obligations—for example, providing meter readings in order to receive their quarterly RHI payments, maintaining equipment and, in the case of biomass installations, providing information on a number of sustainability issues. This is part of a range of measures to ensure the integrity of the scheme. In addition, for small and medium-sized plants, both installers and the equipment to be installed will need to be certified under the microgeneration certification scheme or an equivalent.

I would now like to turn to bioenergy. The second set of regulations amends Section 100 of the Energy Act 2008. This amendment does three things. First, it amends the definition of biogas so that, as well as including anaerobic digestion, it will now also include advanced conversion technologies such as gasification and pyrolysis. The second change prevents the use of peat as biomass fuel. The third corrects a previous omission by adding biogas to the list of eligible sources of energy. These are important changes, as we believe that bioenergy is critical to meeting our renewable energy targets. We expect it to contribute over half of the over sevenfold predicted increase in renewable heat by 2020.

However, we are also aware of concerns that the increasing use of biomass raises, particularly with regard to issues around sustainability and air quality. In the RHI regulations we have addressed these concerns by including sustainability reporting criteria from the outset of the RHI, and will use existing legislation to cover restrictions on air quality for large-scale biomass. For installations below 20 MWth we will introduce emission limits in our RHI legislation when phase 2 of the scheme is implemented.

Finally, I would like to set out our position on the funding of this scheme. Last October, as part of the coalition Government’s spending review, we announced £860 million of funding for the RHI scheme to 2014. We have listened to feedback that previous proposals to fund the scheme through a levy on fossil-fuel suppliers would be unworkable, so instead the scheme will be funded through general taxation.

Therefore I commend these regulations to the Committee.

[Lord Teverson]

I naturally welcome these regulations. The renewable heat initiative is pretty unique worldwide. The concept was introduced by the previous Government and has been taken on wholeheartedly by the present Government. It is an excellent example of decarbonising the economy. We think that most carbon emissions are around electricity generation, but that only constitutes around half of emissions. That means that our targets for 2020, of 15 per cent of energy being renewable, are tough to meet. That is well illustrated in the Explanatory Memorandum by the fact that the proportion of renewable heat, currently estimated at 1.5 per cent, must rise to 12 per cent by 2020. Given the fact that part of the scheme will be implemented only next year, this is a tall order—but I am sure that it can be met.

I also congratulate DECC on its negotiations with the Treasury, in which it managed to get £860 million-worth of direct taxation at a time when the public accounts are very tight and difficult. I am sure that those of us who argue on green issues would wish for even more, but it is a large and realistic figure and I am very pleased to see it.

I was slightly disappointed by the fact that a domestic RHI scheme will not come in until 2012. I understand that a pilot scheme for domestic RHI starts this year. I would be interested to understand more about how it will help the successful introduction of the full domestic scheme next year.

Finally, my one area of slight regret, inevitably, is characteristic of a market intervention such as this, great though it is. The fact that we have not been able to implement it earlier—I see all the obstacles and why it has not been possible—means that we face the irony of a number of ground heat pump businesses, for example, going out of business while people put off decisions to invest in renewable energy until the incentives come through. Regrettably, there is a generic inevitability about these schemes when people realise that there will be a subsidy but not yet. I very much welcome the RHI and hope that it will have a very successful career not just up to 2020 but well beyond.

[The Duke of Montrose]

My Lords, after the description given by the Minister I almost think that I need to declare an interest, if for no other reason than that I have a livestock production business. I thought that the present measures were largely to do with commercial production. I also have a small restaurant which, as he said, is possibly in line for a renewable heat incentive grant.

I was reassured by what the Minister said about peat. When I saw that peat was mentioned in the second instrument, I thought that the Government were going to bring it into the definition of biomass. However, it is excluded, which fits in with the other measures that people have taken regarding peat.

Noble Lords will be aware that renewable energy was the subject of a statutory instrument early on in the sequence of devolution legislation for Scotland. The term at that point largely meant wind, solar and marine energy. The Minister described all the other forms of renewable energy that this measure covers. One can presume only that we are now into a further application of renewable energy. Taking the definition used of necessity, renewable heat is now part of the devolution arrangements. All the production systems benefit from financial subsidy. I hope that the Minister will confirm that renewable heat will also receive incentives from Her Majesty's Treasury, even when it is north of the border. This will be a great help to the Scottish Administration's ambition to replace all their atomic power generation with renewable energy sources.

Further to that, and in parallel with the regulation that brings the construction of plants and facilities for coal production within the powers of the planning regulations of the Scottish Government, even though coal is not a devolved matter, I presume that the construction and provision of plant for the production of renewable heat will be subject to Scottish control, even though the measures in the Bill are retained within the United Kingdom.

[Baroness Smith of Basildon]

My Lords, I was relieved when the Minister came into the Room. Noble Lords of my age may recall a private detective on television called Eddie Shoestring, played by Trevor Eve. Just before he retreated to his programme, he slunk into his chair just in time. I congratulate the Minister on slinking into his chair just in time, given that we have some interesting business for his department before us today. I see that nobody remembers Eddie Shoestring except me.

I was encouraged by the Minister’s enthusiasm for these regulations. We share that support. I will raise three issues of which I have already given him notice. I have some questions and queries on which he may be able to satisfy me. First, on cost control, the Minister mentioned the level of budget. That is subdivided over four years: namely, £56 million in 2011-12, the first year, of which £15 million is, I understand, through renewable premium payments; then £133 million; then £251 million, rising to £424 million in the fourth and final year of 2014-15. Given that the renewable heat incentive is the policy to deliver 12 per cent of heat in the UK being renewable by 2010, will the Minister give an assurance that he considers that this budget is adequate to meet the target?

My main point is the lack of flexibility between those years. Am I correct in thinking that any money unspent or unallocated in one year cannot be rolled over into the next year but will be lost to the programme? It is quite a tall order, particularly for a programme of this kind, for any department to hit the exact budget year on year. Do the Government intend to install some kind of capped grant scheme with all the stop-go inability that that brings with it to plan ahead for a growing industry which the RHI was trying to avoid in the first place?

My worry is that not allowing some flexibility between the years will increase the difficulty of implementing a cost-control mechanism for the programme. It also creates considerable pressures regarding the accuracy of DECC’s modelling of the programme. We have seen already how the modelling on feed-in tariffs was said not to be accurate, and the same could occur in relation to this order. My biggest worry is that it would undermine industry confidence in the scheme. I have two requests for the Minister. First, will he consider allowing full flexibility between the years, although I appreciate that he may not get Treasury support in that? Or perhaps he could allow flexibility in terms of a percentage by which the budget has been underspent or overspent in one year. The budget could vary from year to year while keeping to the overall four-year budget.

Secondly, will he look at amalgamating the budget for the first two years into a single spending period? There is a strong case for that. When the CSR was published in October 2010, the renewable heat incentive was intended to start in June 2011. That start date has already slipped three months. It would be helpful if, alongside the Treasury, DECC could look again at how that money has been allocated between the financial years. The renewable heat premium payments that I mentioned—the interim payments keeping things going until the RHI is in place—are also included in that year one budget. So we can take out £15 million from that £56 million.

An announcement on that was due in May, which we still have not had, so there is less time available to spend the money. In his opening comments the Minister confirmed that the scheme will not start until 30 September—so it will not be for 12 months, but for six. Payments are made quarterly in arrears, which means that only projects that have been accredited by Ofgem by Christmas 2011 will be paid out of the year one budget—so we are now down to three months of the year one budget.

In addition, on a point that might not be quite so serious, and given that it will be the first application, where an application for accreditation to Ofgem does not have all the required information and has to go back again, the start date for the project will be the day on which the further details, not the initial details, were submitted. Projects of any complexity may not complete the process in time even if their first application is made before the end of December. If there is any minor error or mistake or information is left out, it will have to go through again. I think that the Minister will appreciate the problem and agree that that is not an unreasonable request if the scheme is to succeed and achieve its objectives. I have given the Minister notice but, if he wants to consider it further, I would be more than happy for him to come back to me in writing, rather than to rule it out now.

On a further matter, if I understand this issue correctly, the restriction is that the eligible waste is municipal waste only. Page 35 of the March 2011 policy document refers to using municipal waste, but it does not explain why it does not include commercial or industrial waste. I am aware of the balances between higher biomass—I am talking about waste with a biomass content of between 50 per cent and 89 per cent—but can he give me a reason for that exclusion? It would be helpful because Regulation 28(9) states:

“The participant may not generate heat using solid biomass contained in any waste other than municipal waste”.

17:00

I am sure that it is not the intention that a tiny amount of non-municipal waste should require Ofgem to throw an installation off the scheme permanently or without payment for the entire quarter. I do not understand why operators should be banned from using non-municipal or other forms of waste even if they are entitled to claim RHI for municipal waste only. It may be that the operator will have to persuade Ofgem about the way in which it was measured, but I do not understand why it is excluded on principle. I hope that the Minister and his officials understood that. The issue is that even if it is only a fraction of the waste used, the operator would not be able to claim RHI for the entire amount of waste that was used. That is quite a serious problem for project developers and plant operators because they need to process a range of different wastes.

I know that the regulations before us today are unamendable, but if the Minister could say something and at least give further consideration to the point and perhaps issue further guidance, it would be very helpful and give reassurance to the industry. It would also give Ofgem some discretion to be pragmatic in its approach to this because the regulations as they are worded could have unintended consequences.

My final point is about another unintended consequence. Regulation 3(2) specifies that eligible purposes are space, water or process heating where the heat is used in a building. In Regulation 2, the definition of a building is,

“any permanent or long-lasting building or structure of whatever kind and whether fixed or moveable which, except for doors and windows, is wholly enclosed on all sides with a roof or ceiling and walls”.

The previous draft had just “an enclosed structure” in Regulation 3 and did not have that definition in Regulation 2. This is where I think the unintended consequence arises. Chemical plants would not normally be considered to be a building. Even though individual parts of the equipment are fully enclosed, and are generally enclosed to a very high degree of efficiency, the structure as a whole would be in the open air, often for safety reasons. The definition now included would appear to rule those uses out of the RHI. It would be helpful if the Minister could put on record that it is not the intention to exclude industrial plant, especially chemical plants, through the drafting. I think that the Government are seeking to rule outdoor swimming pools and patio heaters out of the RHI, which is perfectly understandable, but it would be perverse if they also excluded industrial processes, particularly as that is going to be at the lower tariff. Two of those cases are clearly cases of the law of unintended consequences and I hope that the Minister can redress them today. If he can give some reassurance on those issues, or will even say that he will take them away and come back to us and issue guidance later, it will be extremely helpful and offer reassurance to the industry.

[Lord Marland]

As always with the excellent merry band that we have debating this subject of energy and climate change, we have had some very valuable comments. I am always grateful to my noble friend Lord Teverson for his representation of the landscape and for the compliments that he has made. It is a great boost to have him so supportive. He raised one specific issue in regard to the pilot scheme for domestic. That is happening this summer. If he will forgive me, I will not go into the details of it right now but, as always, I will make officials available to explain what is happening and to keep noble Lords in touch with the process as it goes on.

My noble friend the Duke of Montrose, as a true Scotsman, was very keen to check that, as a Scotsman, he was not having to pay the bill but that the English were, and, reluctantly, I have to tell him that HM Treasury is paying the bill.

[The Duke of Montrose]

I hope it is the United Kingdom that is paying the Bill. I cannot see why it should be England.

[Lord Marland]

That is a debate for later. I think that the noble Duke roughly knew the direction of travel that I was coming from. However, we were interested to hear about his great estates and restaurant business. When I am up in that part of Scotland, I may pop in to sample the fare. The restaurant probably serves his beef. That would be excellent. We know that he is not involved in the peat business because he was very pleased that peat was excluded. I confirm that and thank him, as always, for his contribution.

I say to the noble Baroness, Lady Smith of Basildon, who described me as slinky, that it takes one to know one. As I have admired her slinky movements round the House, I am delighted to see that she is no longer impeded by having a foot in plaster and has her dancing shoes well and truly on. I thank her for giving me advance warning of some of her questions and for the great support on this subject. That is not surprising as the renewal heat incentive was kick-started by the previous Government and we are happy to take action on it.

The noble Baroness makes a very good point about the budget. She knows as well as I do that dealing with the Treasury is not always the easiest thing on earth. I am grateful to the noble Lord, Lord Teverson, for congratulating us on getting the money from the Treasury. We cannot push our luck too far with the Treasury, but I totally understand where the noble Baroness is coming from. Despite the fact that each year is a cut-off point, people who started after 1 July 2009 will now be able to apply for RHI—we are going back further. There is effectively a six-month period when we can backdate RHI into another financial year, provided that the relevant person has completed his accreditation. It may well have taken five or six months to process but we can backdate the funding to the date of accreditation which, of course, may go back to a previous year. I hope that that gives the noble Baroness hope that there is an element of flexibility, although not perhaps as much as she would like. Reluctantly, I occasionally have to say no to her—I know that she is not used to it—but that is as far as we can go. I wipe the sweat off my brow in relief at not having to go back and challenge the Treasury again on this difficult subject.

[Baroness Smith of Basildon]

I am sorry to interrupt but I seek clarification. My understanding is that it is the point at which all the information is submitted and accepted—if there were mistakes, it would have had to be resubmitted—that is the date of acceptance. Is the noble Lord now telling me that that is not the case and that the provision would be backdated to when a person first applied?

[Lord Marland]

No, I am merely saying that it can be backdated. Obviously, it may take time to process a person’s accreditation, and that accreditation may go into a subsequent year. If you complete your accreditation, and then it takes a while to process it, the backdating could go back to the year when the accreditation was first accepted.

I am, as always, happy to pick up comments later but I wish to move on to the subject of waste. We are slightly in the hands of Defra as regards its definition of “waste”. I am glad to say that Defra has recently extended the definition of “waste” to include a number of other types of waste. As was said earlier, the RHI supports some commercial waste. There are doubtless one or two that it does not but we have instructed Ofgem to look at this and to provide a pragmatic solution as regards other waste. Ofgem will be the arbiter of that. I hope that through this process we will embrace as much as possible because, after all, that is our intention. It is not our intention to exclude waste, it is our intention to make it available to as many as possible, and this is a clear way of doing that.

The noble Baroness mentioned Regulation 3(2). I confirm that it is not our intention to exclude chemical plants. The intention is to show that we will not support RHI for open-sided warehouses and similar locations, where it is like trying to heat fresh air. Again, we have instructed Ofgem to clarify this issue through the process. We hope that as we proceed, with further advice from the noble Baroness and her team, in the spirit of co-operation we will come up with a good proposal for the RHI. It is an excellent endeavour started by the previous Government, which we have happily brought into legislation. I therefore commend these regulations to the Committee.

Motion agreed.

Renewable Heat Incentive Regulations 2011

Tuesday 12th July 2011 Grand Committee

Considered in Grand Committee

17:11

Moved By

[Lord Marland]

That the Grand Committee do report to the House that it has considered the Renewable Heat Incentive Regulations 2011.

Relevant documents: 25th Report from the Joint Committee on Statutory Instruments

Motion agreed.

Storage of Carbon Dioxide (Access to Infrastructure) Regulations 2011

Tuesday 12th July 2011 Grand Committee

Considered in Grand Committee

17:11

Moved By

[Lord Marland]

That the Grand Committee do report to the House that it has considered the Storage of Carbon Dioxide (Access to Infrastructure) Regulations 2011.

Relevant documents: 25th Report from the Joint Committee on Statutory Instruments.

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

My Lords, the regulations apply in Scotland as well as England and Wales, and are being made with the agreement of Scottish Ministers. I am sure that my noble friend the Duke of Montrose will be pleased with that.

The regulations transpose into UK law requirements that are part of the EU directive on geological storage of carbon dioxide. The directive requires member states to introduce arrangements that enable third parties to access pipelines and storage sites on a fair and transparent basis. Those arrangements must meet certain criteria. So, for example, we must set up independent arrangements to resolve disputes about access, should they arise. We must also ensure that if access is refused on grounds of lack of capacity or lack of connection, the operator makes the necessary enhancements when a potential customer is willing to pay for them—providing that this does not have a detrimental impact on safety or the environment. The directive also provides for access to be refused where there is incompatibility in technical specifications which cannot reasonably be overcome, or where there is insufficient current or likely future capacity.

We consulted on drafts of these regulations in December 2010. The majority of those responding to the consultation agreed that the regulations represented a sensible approach to implementing the directive’s requirements. However, there was concern about how our approach would apply to storage sites. As a result, we modified the draft regulations to recognise the constraints imposed by the natural characteristics and the environmental permitting arrangements for storage sites.

The approach in these regulations is based on the principle of negotiated access, with the ability to appeal to an independent authority if it is not possible for the parties to reach agreement voluntarily. That authority is either the Secretary of State, or Scottish Ministers where the infrastructure is located in Scotland. This approach has many advantages for carbon capture and storage, not least that it is relatively hands-off and therefore the least burdensome for what is currently an immature industry. It already applies to pipelines conveying carbon dioxide and is the basis on which the development of offshore oil and gas pipelines has taken place for many years. It is therefore familiar to many companies interested in participating in carbon dioxide transportation and storage in the future.

The regulations take as their starting point arrangements that already apply to carbon dioxide pipelines, adapt them slightly for consistency with the requirements of the directive and extend them to cover storage sites. They have effect on the construction of a new pipeline or a storage site, and where a third party seeks to secure access to existing infrastructure. Where infrastructure is being newly created, the regulations enable the authority to impose conditions when granting consents. Those conditions may, for example, require the pipeline or storage site to be constructed or permitted to a greater capacity, or in the case of a pipeline, to follow a modified route. However, those powers can be exercised only where there is evidence of demand and where the parties cannot reach agreement. The authority must be satisfied that the conditions it imposes will not compromise the safety and environmental integrity of the infrastructure or its efficient operation.

The regulations also provide for access and modification to existing transport and storage infrastructure. Again, the parties must first seek to negotiate an agreement. If they cannot do so, the party seeking access can apply to the authority for a notice granting access rights. In reaching a determination, the authority is required to consider a number of factors intended to ensure that the legitimate interests of the owner and users of the infrastructure are taken into account and to avoid a negative impact on safety or the environment. Where the authority grants access rights or requires modifications, it also has the power to determine the charges to be made. We are in the process of developing guidance, on which we will consult extensively before it is finalised, on the principles that the authority will use in coming to such a decision on this and on other powers available to the authority in regulations.

The regulations create an offence of providing false information to the authority in discharging its functions under the legislation. A determination made by the authority will be enforceable through the civil courts, in the same way as if the parties had entered into a contract that had subsequently not been honoured. The directive also requires our third-party access regime to be transparent. The regulations achieve this by requiring information about available spare capacity to be published. In determining this available capacity, the infrastructure owner is able to take account of reasonably foreseeable needs and, in the case of a storage site, against a baseline of the permitted storage capacity of the site. I hope that these regulations will find favour with noble Lords and I commend them to the Committee.

[Lord Teverson]

My Lords, again I do not know what else one could do. There seems to be an outbreak of common sense; we are implementing a European directive, which I see this as primarily, to ensure that pipeline and CCS companies do as we scold our children to do—to share, rather than keep things to themselves.

I have two questions for the Minister. First, he mentioned a long track record of facility sharing in the oil and gas industries, which there clearly already is, but I suspect that those provisions did not perhaps come in until a lot of the structures in those industries had got going. In this case, it is a new industry and I presume that we do not have any carbon dioxide pipelines going extensive distances. Clearly, they do within existing industrial plants but I wonder whether we might get into a sort of games theory where no one builds the first one because the first mover, in this instance, is the one who has to find all the finance and raise all the money, which is not inconsiderable. All the businesses coming afterwards will have to do is show that independent authority that it would make sense to share, so they miss the whole hurdle that the first people had to get over. I wonder whether that distorts the market somehow, but I am sure that the Minister will have an eloquent reply on that. Otherwise, this is good legislation.

Finally, I take this opportunity to ask the Minister where we are in terms of CCS and when we might see the network of carbon dioxide pipelines under—I was going to say across—our countryside. Where are we on the four schemes that the Government are promoting?

[The Lord Bishop of Chester]

My Lords, I, too, will ask the Minister one or two questions, perhaps going a bit beyond the immediate area covered by the statutory instrument. However, I will start with that. Do the Government anticipate that the transport of carbon dioxide will be through an entirely new set of pipelines, or will existing pipelines, in particular those used for natural gas, be used when fields dry up? Is it also possible that a given pipeline might have some form of dual use? Are we talking about an entirely separate infrastructure or about an infrastructure that will be available for both uses?

Can the Minister confirm where the expected storage sites will be, and what state of provenance they have? Are we talking simply of oil and gas fields under the North Sea, or are there other geological structures in which it is anticipated that carbon dioxide might be stored? Given that we are talking about a very long timescale for storage, what evidence exists that the carbon dioxide will not escape, through cracks or whatever?

The impact assessment states, on page 8:

“As the main method of de-carbonising fossil fuel power generation, it will be important that CCS, should it prove viable at a commercial scale”.

That is phrased in the subjunctive conditional. It raises the question: what happens if it is proved that CCS is not viable on a commercial scale? On the previous page, the assessment states:

“CCS is not currently commercial without subsidy”.

It would be helpful to have some idea of what level of subsidy the Government consider may be needed to provide CCS. This is important because, if the Government stick with their position of having no more coal-fired power stations without CCS, and if CCS adds so much to the cost that we do not have coal-fired power stations, we then have to ask what form of electricity generation we will use.

I understand that over the past year our coal-fired power stations have been used more than was expected because they proved cheaper, with the price of gas going up. This has shortened the permitted life of some of our existing coal-fired stations. If we cannot go forward with any coal-fired stations because CCS does not prove to be commercially viable, does this not contain a hidden further increase in electricity prices if we cannot rely on any use of coal generation? Perhaps the Minister could put on the record some comments in response to those questions.

[Baroness Smith of Basildon]

My Lords, first, we welcome these regulations and the new clauses on this issue added in the other place to the Energy Bill. They all lead towards ensuring that we have the available infrastructure in place and that necessary powers will be available. The noble Lord knows that we fully support CCS, and indeed that we made a commitment in government to fully fund the first CCS project. The regulations pave the way to that. However, as the comments from other noble Lords have highlighted, they do not remove the uncertainties that remain. Perhaps, in the light of the regulations before us, the Minister will be able to offer some reassurance on when the investment for the schemes will be available, because we have had no information on that yet. The CCS levy has been scrapped, the Government's argument being that the burden on business was unfair. Instead, the taxpayer is now to be funding the scheme through the Treasury but we do not know when that is going to happen, so any clarification from the Minister would be welcome.

I want to ask two specific questions on the order. I understand what the Government are seeking to do here and I support that. I will talk through this and see if the Minister can follow, as I have not given him notification of this question. My understanding is that an applicant seeking access to or modification of a pipeline can seek the approval of the Secretary of State or another consenting authority—it need not be the Secretary of State—if negotiations fail to secure such access or modifications as are required. The legislation before us allows an appeal to be made if the consenting authority, which will mainly be the Secretary of State, thinks that there has been a reasonable time in which to reach that agreement. I hope that would only be in exceptional circumstances as it seems to me that, more often than not, the problems in reaching agreement will be not on technical issues but on the commercial aspects.

The evidence base for decisions determines the criteria on which the consenting authority will make decisions, and it does not include commercial considerations. What if the stumbling block to agreement is not technical in any way but commercial? What if it is about price? It seems very difficult for the Government or any consenting authorities to intervene, as stated in the order. As I read it, the Government would not have the power to intervene.

There may be an intention that there should be a regulator to ensure that the pricing mechanisms are fair but, unless I am misreading something in the order before us or its Explanatory Memorandum, I do not see that. Indeed, if we look at the evidence base for option 2, which is on page 10, the impact assessment says on these issues:

“If the consenting authority is required to determine the financial terms for access or modification for … pipelines and storage sites … they would be guided by principles similar to those already used in other sectors”.

That implies that there is a role for the consenting authority and the Secretary of State to intervene on financial or commercial matters. It would be helpful to have some clarification because I am not sure I really welcome a Secretary of State intervening in commercial decisions. There could be a potential difficulty or a minefield if they are required to do that without sufficient guidance about which criteria they should take into account and how that should be conducted.

My only other question is: in terms of the time allowed for negotiations before the applicant can make an appeal to the consenting authority, will there be any guidance on what is reasonable? It seems that different kinds of applications could take different amounts of time, as some will be more complex than others. If the negotiation is around price, that could make it even more complex as it could be that company A is trying to preserve a position that it may want to take in the future. While I certainly support the principle, I would like some further information on those points if possible.

[Lord Marland]

I am grateful to noble Lords. It is a very opportune moment because, as of this morning, I am in the middle of a two-week lock-in negotiation on the first demonstration project. This morning was spent banging heads together to try and make it work further, but I will explain a bit more about that in a moment.

On the specific points raised by my noble friend Lord Teverson and by the right reverend prelate the Bishop of Chester, whom we welcome as always, the first demonstration project will be using existing pipelines owned by National Grid and Shell. They have great expertise and technology and are very comfortable that they can work. In fact, they have exploratory machines working on them at the moment. One has to rely on great companies to come up with the technology, so the likelihood is that a number of the CCS projects will be able to use existing infrastructure. Of course, that will not always be the case and some new pipelines may have to be built to create junctions or things like that.

The plan for the first demonstrator is to force the carbon dioxide, which becomes more liquefied, into the Goldeneye oil well, located in the North Sea. It is a largely Shell-owned platform. The ownership of it has become a bit more complicated but Shell is operating that end of it. On how we know of its ability to keep the captured carbon in storage, the answer is—

17:30

[The Lord Bishop of Chester]

In a previous incarnation, I was a chemist. In all my previous experience of carbon dioxide, it never had a liquid state. It went straight from gas to solid; hence you can buy solid carbon dioxide to keep your ice-cream cold, and so on. Under what conditions do you get liquid carbon dioxide? I have not come across it.

[Lord Marland]

I did not actually say it was liquid. I said it was more liquid than gas. Denser carbon dioxide will be moved down the pipes. It is readily identifiable as a subject because, as the right reverend Prelate will know as a great scientist, you cannot touch carbon dioxide.

The right reverend Prelate made another point about storage. We are reliably informed that there will not be leakage. We have to take every precaution to make sure that there will not be leakage and must make sure that all adequate precautions are taken. Of course, this is a demonstration project. We are moving into unfounded territory and who knows what the outcome will be. It is very important that we have rigorously tested the programme, but it is a demonstration project. I will not comment on the outcome of the demonstration project at the moment because the intense negotiations finish on Friday. We remain optimistic.

[The Duke of Montrose]

While my noble friend is on the subject of the demonstration project, I know that oil companies in the United States purchase carbon dioxide to increase the output of their oil wells. Are Shell and other firms gaining a financial benefit from this operation by taking the carbon dioxide in this demonstration project and putting it into an oil field? Is it a win-win situation so far as they are concerned?

[Lord Marland]

That is certainly not the intention. There may be residual oil in an empty oil well, but it is not the driver for them carrying out this process. However, I am grateful to the noble Duke for informing us of that.

The right reverend Prelate asked whether we know whether CCS will be commercially viable. Until we have done the first demonstration, we do not know whether we can do it on a large scale. If we achieve it on a large scale, economies of scale will come into play, and we hope it will become commercially viable. In answer to his subsidy question, that is why the Government have committed £1 billion of capital expenditure to try to make the first demonstrator work. The right reverend Prelate made a very good point about the future of coal. As he said, we are reliant on coal. It is not our intention to rid ourselves of coal but to make it cleaner within a low-carbon economy. As a scientist, he will know that they will have to put in NOx cleaning systems in 2016 and 2017 to make coal cleaner. He is probably the only person in this Room who knows what the effect is, and I will not pretend to go into detail with him on it.

The noble Baroness, Lady Smith of Basildon, kindly gave me some prior notice of her questions. She made two very good points and, if I am honest, I am not completely satisfied in my mind that I have the right answers to them. At what point does a Minister intervene? Should a Minister intervene? What is the reasonable time that should be allowed? In her own words, let us hope that it does not come to that. However, at some point you have to have an ultimate arbiter. At some point it is reasonable to think that the ultimate arbiter should be the Minister, in which case it is reasonable that at some point the Minister would intervene. Should we put a time limit on a dispute? I tend to agree that we should, but if we are too prescriptive about it, we may force the thing in the wrong direction. I will take away those points to consider in the department to see whether there is a straighter edge to put on those two excellent suggestions.

[The Lord Bishop of Chester]

On that point, page 8 of the notes states that there should be,

“the opportunity to refer a negotiation to an independent party”,

for perfectly good reasons. I entirely accept that. Is the Minister happy with the description “an independent party”? It seems to me that he will have a vested interest in being the arbiter if in a commercial situation there is no agreement. It would be normal for the Minister to be regarded as independent for those purposes, as described on page 8.

[Lord Marland]

Where does it stop? At what point is someone independent if the word means that they are able to take an objective and independent view of the problem? I do not disagree with the right reverend Prelate on the conclusion that we are trying to achieve. As I referenced earlier, I think that it needs further thought and a straighter edge. I readily said that we should perhaps try to get a little more detail on it. I do not have a prescription now. I am not necessarily sure that we should have a prescription now, but I am happy to carry on the discussion outside the Committee because it is at the margin of the reality and focus of the issue of CCS. To use the words of the noble Baroness, let us hope that it does not get to the point where we have to.

[Baroness Smith of Basildon]

I am grateful to the noble Lord and thank him for being very candid about his own uncertainties on this statutory instrument. I do not think that it is unreasonable to say that he does not have an exact time limit in mind for when a Minister or consenting authority should intervene. “Reasonable time” is a matter of judgment. I apologise if I am missing the Minister’s comments, but I am still not clear about the financial side and when it would be appropriate for a Minister to intervene in a pricing or commercial decision. It seems to me that a significant part of the regulations concerns the ability to intervene if things are not going as we would like, and agreement cannot be reached. I would appreciate it if the Minister would give me more detail or write to me, as it is crucial to the statutory instrument.

[Lord Marland]

With due respect to the noble Baroness, I think that most decisions in which people have to intervene are commercial, so ultimately a commercial decision will have to be intervened on. I can say that it will be a commercial decision. I quite understand that there may be a case for putting a time limit on when the commercial decision is reviewed. Consideration may need to be given as to whether it is an independent authority and when the Secretary of State appoints the independent authority, but these challenges or disagreements always come about through failure to reach a commercial agreement. We are suggesting that the Secretary of State can intervene and bang heads together to make sure that the agreement is sorted out. I am not sure that one can say more than that.

[Baroness Smith of Basildon]

I know that the Minister is trying to be helpful, but there are four criteria in the regulations on which the consenting authority can make the decision if there is a dispute. None of those is commercial or financial, although it does say in the notes in option 2 that it is financial. I am happy for the Minister to take this away and come back to me. I am still not clear, if the regulations do not state that one of the criteria on which the Secretary of State or consenting authority can intervene is financial or commercial, where the authority to do so will come from, when rather than a technical issue it could be the basis on which the Secretary of State will need to bang heads together, to use the Minister’s words.

[Lord Marland]

I am very happy to carry on this conversation with the noble Baroness outside the Committee, but the point I am making is that whether this is technical or financial, it is all commercial. That is the reality. Everything is commercial when it comes to negotiating these things. The noble Baroness is in danger of taking things at face value without looking at the realpolitik. As I say, I do not think that we want to get into the nuts and bolts of the definition of commerciality. I am very happy to carry on this conversation with the noble Baroness through officials, as always.

[Baroness Smith of Basildon]

That would be helpful.

Motion agreed.

Disclosure of State Pension Credit Information (Warm Home Discount) Regulations 2011

Tuesday 12th July 2011 Grand Committee

Considered in Grand Committee

17:41

Moved By

[Lord Marland]

That the Grand Committee do report to the House that it has considered the Disclosure of State Pension Credit Information (Warm Home Discount) Regulations 2011.

Relevant document: 25th Report from the Joint Committee on Statutory Instruments.

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

I feel slightly like something on a treadmill. There is only one more measure after this, noble Lords will be pleased to know. I will try to keep them entertained for as long I can, then we will rush off for a Statement.

I shall speak to the draft Disclosure of State Pension Credit Information (Warm Home Discount) Regulations 2011 for Great Britain. Noble Lords will recall considering the Warm Home Discount Regulations 2011 on Tuesday 29 March. That instrument enabled the warm home discount scheme to take effect on 1 April this year. The regulations to be discussed today allow for rebates to be targeted at the core group of low-income pensioners that I mentioned in March by allowing information to be lawfully shared between energy supply companies and government. The Warm Home Discount Scheme Regulations 2011 require that these pensioners are provided with a rebate off their electricity bill from their energy supply company. This rebate will be worth £120 this winter, rising to £140 by winter 2014-15.

This winter, we estimate that about 800,000 pensioners will receive this rebate. We estimate that this figure will rise to more than 1 million pensioners for the subsequent three years. In total, rebates worth more than £580 million are expected to be provided to this group over the four years of the scheme. To help energy suppliers to identify which of their customers is a low-income pensioner and to provide them with this rebate, we need to allow the suppliers and the Government to share information. Sharing sensitive and personal information in this way, without seeking individual consent first, requires a legal gateway. The instrument the Committee is considering today is made under Section 142 of the Pensions Act 2008, which confers power on the Secretary of State to make regulations allowing for such information sharing. These regulations also set out what data may be shared and what it may be used for, and put in place robust offences to protect the data and prevent their misuse.

I will explain each of these areas in more detail. In terms of information sharing, this instrument allows the Secretary of State to disclose name and address information of pension credit customers to participating electricity suppliers, and allows participating electricity suppliers to provide name, address and meter point administration number information about their domestic electricity customers to the Secretary of State. These records will then be compared—a process sometimes called data matching. Where there is a match, the Secretary of State will tell each supplier which of their customers to provide with a rebate. Where there is not a match, we will write to those pension credit recipients to ask them to contact a government call centre and confirm their eligibility. If they are eligible, the energy supplier will be required to provide them with a rebate. The key advantage of data matching is that most customers will get the rebate automatically, without claiming. This will help to ensure that the most vulnerable receive the support that they need.

17:45

As to keeping this information safe and secure, before any data transfers take place, very stringent DWP security standards will have to be met. In addition, the regulations set out an offences regime for unlawful disclosure of information. If a person is found guilty of one of the offences, they will be liable to an unlimited fine or a prison sentence of up to two years.

The instrument also sets out whose information can be shared in any particular year and, from this, the eligibility for the core group. The eligibility criteria must be met by the DWP and energy company customers on a certain qualifying date. The date will be set annually and made public in advance. This year we expect the qualifying date to be 11 September 2011.

In year 1 of the scheme, only those in receipt of the guarantee credit element of the pension credit will be eligible. As I mentioned, we expect that about 800,000 poorer pensioners will receive this winter’s rebate. In subsequent years, people in receipt of the savings credit element as well as the guarantee element of the pension credit will be gradually brought into the scheme, starting with the oldest first. By winter 2014-15 all those who receive the guarantee credit element of the pension credit will be included. The value of the rebate will increase annually, from £120 this year to £140 by winter 2014-15.

In all cases, the rebate will be available only where the pension credit recipient or their partner pays their own electricity bill and is with a participating energy supply company. The six major UK energy suppliers will participate, and other, smaller suppliers can also choose to be part of the core group and include their customers. The rebate will be provided on electricity bills to ensure those off the gas grid can benefit.

Finally, to make sure that this shared information is used only to help customers, the instrument sets very tight parameters to limit its use to the provision of the rebate and the offer to customers of advice and assistance, for example on energy efficiency or debt and disconnection, to help them with heating their home.

The instrument is vital to allow legal data-sharing to take place between energy companies and the Government, and to enable supplier-funded rebates worth £580 million to be provided to low-income pensioners over the next four years. On that basis, I commend it to the Committee.

[Lord Teverson]

My Lords, I remember many discussions in the Moses Room about rationalising this system, and frustration on all sides of the Committee that people in need of help with their energy bills were not being able to take it because it was impossible to share information. This was for good reasons, but we knew that because information was not being shared, a number of the most vulnerable people in our society were not able to take the benefits that they needed in such a vital area of their lives. Therefore, I welcome the regulations, because at last we seem to have a solution that gets around the problem.

That is good, although I think that all of us in this information age are concerned about the sharing of data. Data security is always an area of difficulty, and the fact that this information will be held according to government standards is some reassurance. However, the key issue is what happens in practice and who leaves which laptop or USB where. There are always risks in this area.

The one area where I pricked up my ears was that of data matching. I am lucky enough to be going on holiday to the United States this year, and I almost worry that I will be data matched with an Iranian terrorist and will be unable to come back for the October Session. My Whip would be particularly unhappy about that.

[Noble Lords]

September.

[Lord Teverson]

I am not going until October—but let us move away from my domestic arrangements to those of the more vulnerable in society. Could the Minister clarify that, once the data-matching process has occurred, if there are “leftovers” the Government will ensure that everyone who is entitled receives their entitlement? How are we going to check that the matchings that have occurred are correct? A number of people may receive these discounts when they are not entitled to them. They will thank their lucky stars that the discounts have arrived and that will be that. The issue is not one of following up the data that have not matched but of ensuring that the matching that has taken place is effective, given that those who do not receive their entitlement are not likely to follow this up for the old reason that they did not know that they were eligible in the first place. However, I welcome this measure as a breakthrough for the more vulnerable in our society.

[Lord Whitty]

My Lords, I welcome this for the same reason as the noble Lord, Lord Teverson. This has been a long-running saga, but I hope that we will get the ability to match data in the nicest possible sense in order to ensure that the benefit goes to those for whom it is intended and to whom the provision of the warm homes discount applies.

My query arises from a wider concern about the Government’s strategy in relation to fuel poverty. There is no relationship between the warm homes discount and any improvement in the energy efficiency of the home itself. The Government have cut significantly the former direct payment through Warm Front and related schemes and are relying on a variation of the eco-mechanism to redirect money back into energy efficiency. This is distinct from the previous approach of a social tariff—which may have been flawed in many ways—in that there is no mechanism for ensuring that the bills next year, for those people who will benefit from the discount this year, will be any lower, because there has been no nudge in the direction of improving the energy efficiency of their homes.

However, the Minister encouraged me in his closing remarks when he referred to the possibility of using the data to identify those who may be targeted for advice on improving energy efficiency. As long as only a discount is provided, the problem of fuel poverty will continue, and the Government will have to continue to override the tariffs structure by providing discounts, rebates and special tariffs, with all the complexities and requirements to identify individuals that that implies. However, if the policy were linked to one of improving energy efficiency, perhaps through the same supply companies, that would be a more constructive way to go forward.

The question is: beyond the giving of advice, would it be possible to gear some of this discount—on the discretion of the recipient—to improvements through the Green Deal or other provisions fronted by the supply company, rather than providing a straight discount? If that is possible, could it be made apparent to the recipient that this is not just a cash saving this year, but a step towards reducing energy consumption and therefore towards reduced bills in future years? That would be a more coherent approach and would not require any greater disclosure of data or data matching than these regulations require.

[Baroness Smith of Basildon]

My Lords, we have previously discussed the Warm Home Discount Regulations in Committee at some length and the regulations before us follow from that. When we discussed them before, the Minister was generous enough to acknowledge that the Labour Government were very clear when they brought in the voluntary arrangements that should they be successful, they would bring in legislation for compulsory support. Today’s regulations add to that compulsory support. What we did not envisage was that this would happen against the backdrop alluded to by my noble friend Lord Whitty: a drastic two-thirds cut in warm front grants. The Minister is very aware of our concerns and our opposition to those cuts. As welcome as these discounts are, my fear is that with the very substantial increases in bills for next year that have been announced, next winter’s bills will be so much larger that the impact of the discount, which will be extremely welcome to those who receive it, will be less than envisaged when the level was first set.

I have two questions for the Minister, and I have given him notice of them. One is to seek confirmation on a point which my noble friend Lord Whitty also made. It is about the use for which companies can contact recipients of grants. I want to be assured that when the Secretary of State discloses information to an electricity supplier it can not be used for the purposes of sale or promotion by that company. Sub-paragraphs (b) and (c) of Regulation 5(1) state that the reasons for giving the information are,

“enabling the supplier to so provide that rebate”,

which is entirely reasonable and welcome, and

“enabling the supplier to offer relevant assistance to that customer”,

which is also entirely reasonable and welcome. However, in Regulation 5(3), there is a very broad definition of relevant assistance including:

“energy efficiency measures, thermal efficiency measures and advice and assistance relating to energy and thermal efficiency … advice and assistance relating to the generation of electricity or heat produced by microgeneration or the production of heat produced by any plant which relies wholly or mainly on wood as a fuel”,

and the list continues. Energy companies can contact the recipient on such a broad base, and they may use that to try to promote sales growth. I am not sure that that is what is intended, so if the Minister could be clear that the broad definition is not a sales pitch for energy companies, it would be helpful.

On the previous regulations, we discussed the reconciliation mechanism that will be in place to make sure that the information shared is accurate. I am not clear whether there will be further regulations on that. I understood that second and third statutory instruments will be coming through. If they will not, will the Minister tell us how that will be funded? When we discussed this before, I think there was an issue about who would be responsible for funding the reconciliation mechanism. If he can give us an answer on that today, it will be very helpful. However, we broadly support the regulations with those two caveats on which we would like answers.

[Lord Marland]

I thank noble Lords, as always. The noble Lord, Lord Teverson, was first in to bat. Funnily enough, Teverson is not a natural terrorist name, I feel. You do not think that with that name—a Cornish name, no doubt—he is going to be immediately arrested at the airport for some data matching. The data-matching issue is very important. There is no great science. Indeed, we have trialled it. We have trialled 340,000 people on the pension credit and, luckily, we hit the jackpot with about 205,000. There is a gap, and it is very important that we follow up the people who we could not access through the matching, but we have made substantial inroads into the number.

The noble Lord, Lord Whitty, has great expertise in this area, particularly on the subject of fuel poverty. We all know that both Governments, particularly our Government, are determined to attack this dreadful feature of our society which is exponentially going off the dial in terms of numbers, despite the best intentions of the previous Government and, indeed, the much better intentions of this Government to try and sort it out. In truth, the House is unified in dealing with this dreadful problem. It is fundamental that we get to grips with it and I know that we will carry it out. As your Lordships will know, we have instructed Professor Hills to carry out a fuel poverty review. It is an independent review and we are looking forward to seeing what suggestions he comes up with.

18:00

The noble Lord, Lord Whitty, asked how we can connect this to energy efficiency measures in some form. Indeed, that joined-up thinking is no doubt the secret of his success. There is an element of joined-up thinking because we can use this data for targeting CERT, which is a temporary measure. It then may become a mechanism which we can make work with the Green Deal, as he rightly says. We have to recognise that the Green Deal is a big picture deal. We are trying to get into millions and millions of homes, not just those in this core group that we are representing, so as the Green Deal evolves we will doubtless be able to work in some joined-up thinking in that regard. However, there is indeed a gap until the Green Deal takes off, once the legislation passes through. Unfortunately, because there have been endless debates on alternative voting and reform of the House of Lords, we have not been able to get the legislation through which we perhaps required.

[Baroness Smith of Basildon]

My understanding is that the Energy Bill, which has completed its stages in this House, is being delayed in the other place, which has not been having debates on the alternative vote or the House of Lords. In fact, if he is able to enlighten us on why there is no date set for the final stages of the Energy Bill in the other place, that would be gratefully received because many of us in this House, who fully supported so much of that Bill, are very disappointed that it does not seem to be going any further.

[Lord Marland]

Indeed, no more disappointed than I am. Of course, one has to take into consideration all the legislation going into the other House. We genuinely tried to persuade the other place to allow it to come in, but it is so log-jammed with legislation. I am not sure whether it is entirely true that the other place has not debated Lords reform, or indeed alternative voting. However, I take the noble Baroness’s point and no one is more disappointed than our department in not being able to get the Bill through.

The noble Baroness, Lady Smith, made a very good point, as always, about the parameters. Broadly speaking, this is not to be used as a method of mis-selling.

[Baroness Smith of Basildon]

Nor of any sales promotion.

[Lord Marland]

Yes, nor of any sales promotion, let alone mis-selling—a subject that we debated extensively on the Green Deal. We must be vigilant that that does not happen. Let me state this absolutely categorically; indeed, I will go through the notes because I do not want to have any doubt. This instrument sets very tight parameters around the use of information, limiting it to requiring electricity suppliers to give their customers an automatic rebate on their electricity bills—it is limited to that—and to being able to offer their customers advice and assistance in specified areas on energy and thermal efficiency. Any other reason, such as sales promotion, is not permitted and would be unlawful. I hope that that clarifies that issue in words of one syllable.

There is not going to be a further order on the subject of reconciliation. We accept that pensioners who will benefit may not be evenly distributed between the energy supply companies. As a result, we have put in place a reconciliation mechanism to allow the costs of the scheme to be distributed fairly between energy suppliers, based on their market share. Regulations to allow for this came into force on 1 July 2011. I hope, with that, I can commend these regulations to the Committee.

Motion agreed.

Environmental Permitting (England and Wales) (Amendment) Regulations 2011

Tuesday 12th July 2011 Grand Committee

Considered in Grand Committee

18:05

Moved By

[Lord Marland]

That the Grand Committee do report to the House that it has considered the Environmental Permitting (England and Wales) (Amendment) Regulations 2011.

Relevant documents: 24th Report from the Joint Committee on Statutory Instruments.

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

My Lords, if I were in a football team I would have been substituted a long time ago, but I am still here and I am waiting for Alex Ferguson to send on a replacement but, sadly, that will not happen.

The regulations that we are debating today amend some of the provisions relating to the regulation of radioactive substances in the Environmental Permitting (England and Wales) Regulations 2010 in order to provide a more modern, transparent and user-friendly system for the regulation of radioactive substances, while at the same time strictly applying the best standards of radiation protection. They apply to England and Wales and will considerably simplify the often complex system of regulation, which has hardly changed over the past 50 years.

This will be particularly important for those users of radioactive substances which present a very low risk to people and the environment—for example, the holders of clocks, watches and smoke detectors —while at the same time maintaining the necessary level of protection. We estimate that several thousand users will benefit from these changes. This is a good example of the coalition’s agenda to reduce the burden of regulation on business and I am pleased to say that it has received a green light from the Regulatory Policy Committee.

There has been substantial engagement with stakeholders during the development of the regulations. They believe that the need to clarify and modernise the system is long overdue. The Government have listened to the views of experts, industry, public services, regulators and other interested parties throughout this process and have received strong support for the new regime. Indeed, it has been clear throughout the stakeholder engagement process that there would be decreased confidence by users of the regulatory process if it was not modernised soon.

During the course of development, it became clear that a logical, comprehensive and modern regime could be delivered only if the definitions of radioactive material and radioactive waste were amended, and exemptions from the requirement for permits, which are contained in 18 different statutory instruments, were made more transparent and user-friendly. The main effect of the regulations is therefore to change the boundaries that define whether a particular substance or article is outside the scope of legislation—for example, and I specifically asked for this to be put in, a banana; capable of being exempt from full regulation—for instance, smoke detectors; or otherwise subject to normal permitting, such as radioactive waste from a nuclear site.

These changes, where they have been necessary, have been made for three reasons. The current boundaries are sometimes in the wrong place. The exact position of the boundary is currently vague—I knew that noble Lords were not listening, so that banana came as a bit of a surprise. There are gaps in the boundaries because the current exemption orders are up to 50 years old and technology in this field continually advances. These changes will provide a modern, simplified and proportionate—that is, risk-informed—regulatory regime which will result in efficiencies for users and regulators. The net savings for users and regulators across the UK are estimated to be in the region of £11 million over the next 10 years.

Because we have now more explicitly implemented the levels for exemption from regulation in the relevant EU directive, some exemption levels are more restrictive than in our current system and some are less so. This will not lead to any significant change to disposal practices in the nuclear industry sector, but will be of benefit to the users of radioactive substances outside the sector. For example, there are additional exemption provisions for medical establishments to manage and dispose of their aqueous radioactive waste more efficiently and without unnecessary paperwork.

Radioactive waste is a devolved matter. The necessary legislation to achieve the equivalent changes in Scotland is ready to come into force in October, and Northern Ireland is already in the process of amending its legislation with the intention that this, too, will come into force in October. Consistent regulation across the UK will therefore be maintained, which is very important for operators who work across UK borders.

I turn to another matter addressed in the regulations. My department is working to transpose the EU directive on geological storage of carbon dioxide. Two provisions that remain to be addressed are Articles 32 and 37 of the directive. Amendments to the 2010 regulations to transpose these articles are being made in these regulations. I hope that noble Lords will agree that they provide much needed modernisation and I commend them to the Committee.

[Lord Teverson]

I was hoping that one of the noble and right reverend Prelate’s colleagues who has a degree in history and physics might be here. We have already dealt with chemistry and we have some very interesting substances listed here such as cosmic nuclides or whatever. In my electoral division in Cornwall, I have a NORM depot for the china clay industry, operated by Imerys, which is about to be replaced. I got involved in some of the issues concerning the oil industry and other areas where there is a small radioactive residue that comes from processing these minerals. I am delighted to say that I have received no lobbying from the Cornish china clay industry on the regulations, and therefore assume that they are a good improvement. Therefore, I congratulate the Minister on this change.

I have never seen an Explanatory Memorandum that has been more complicated and of which I have understood less. However, I am sure that the Department of Energy and Climate Change has our interests at heart.

[Baroness Smith of Basildon]

My Lords, I am very grateful for the Minister's explanation. I am still thinking about the banana reference, which I did not quite get. If he would elucidate further on that, it would be an enormous help. He made clear the reasons behind the regulations. They are intended to be simpler and more user-friendly, while maintaining standards for the regulation of low-level radioactive substances and complying with EU directives.

As he knows, the regulations were first consulted on by the Labour Government in 2009. As a result of the consultation, a fair number of changes were made. Normally, I would raise concerns about an order coming into force so quickly following its discussion—I understand that it will be the day after it has been signed. However, in this case there should be widespread knowledge and understanding among those groups that are affected by the regulations. For the reassurance of the Committee, it would be helpful if the Minister would state whether he is entirely satisfied that all those who need to know about the regulations do so, and, if there are any gaps, what efforts are being made to ensure that we pick up those who may have missed some part of the consultation process since 2009.

These are very technical regulations. I, too, regret that the noble and right reverend Prelate is no longer with us, because he would be helpful. Few noble Lords will understand Part 3 of the regulations. Table 2, headed “Concentration of radionuclides”, lists various concentrations in becquerels per gram. I confess that I have no understanding of what that means and so in many ways feel inadequate to the task of effective scrutiny. I therefore seek reassurance from the Minister. Can he say whether any concerns were raised through the consultation that the regulations would in any way compromise public safety? I gave notice that I would ask that question. If those concerns were raised, how were they addressed? Those who were consulted would have greater knowledge than I or other Members of your Lordships’ House would have.

18:15

Jamie Reid, the shadow Minister for Defra, who represents the constituency in which Sellafield lies, and who is an expert and supporter of the nuclear power industry, raised a number of specific questions in the other place about the impact of the changes on the nuclear decommissioning programmes on the different sites and the costs involved. Given the detail of the questions that were raised, I do not propose to go into those areas today. Support for the statutory instrument is not dependent on answers to those questions but I thought that the information should be made available. The Minister in the other place agreed to write to Jamie Reid and it would be helpful to have a copy of that letter and for a copy to be placed in the Library.

[Lord Marland]

This is hopefully the last statutory instrument before we break—oh no, there is another one. I am always happy to hear the tales of Cornwall from the noble Lord, Lord Teverson, and all about English china clay. It is fantastic. The noble Baroness asked some very good questions, some of which she has given me notice of.

[Baroness Smith of Basildon]

All of them.

[Lord Marland]

The noble Baroness did not give me notice of the banana—I had to slip that in.

[Baroness Smith of Basildon]

I did not expect the noble Lord to mention bananas in today’s debate, so I think that I can be forgiven for that.

[Lord Marland]

The point of the banana was to illustrate that everything is radioactive. We need to consider that as we embark on anything to do with radioactivity.

There has been extensive shareholder consultation and engagement on this, as you would expect. Naturally, it is fundamental that public safety concerns on anything to do with nuclear radioactivity are given priority. I think the general public believe that, which is why reaction to events in Fukushima has been relatively benign. We are not being complacent but I think that the public understand that we put public safety first. The Health Protection Agency has been consulted and is happy with it. A lot of it is based on International Commission of Radiological Protection recommendations, which underpin the EU basic safety standards directive. Of course, any concerns that are raised in these discussions are taken most seriously and responded to. It is fundamental to our nuclear endeavour that we do so.

Finally, I am in regular touch with Mr Jamie Reid, as I am a regular visitor to Sellafield. I hope that the noble Baroness will join me there at some point. West Cumbria is a fantastic place and we will put in the Library a copy of the response to his very detailed and extensive questions and naturally will furnish the noble Baroness with a copy as well. I commend these regulations to the Committee.

Motion agreed.

National Minimum Wage (Amendment) Regulations 2011

Tuesday 12th July 2011 Grand Committee

Considered in Grand Committee

18:19

Moved By

[Lord De Mauley]

That the Grand Committee do report to the House that it has considered the National Minimum Wage (Amendment) Regulations 2011.

Relevant documents: 24th Report from the Joint Committee on Statutory Instruments.

[Lord De Mauley]

My Lords, I am pleased to present the regulations and to speak to the National Minimum Wage (Amendment) (No. 2) Regulations 2011.

Before discussing these regulations it is important that I confirm the coalition Government’s commitment to the national minimum wage. There has been a certain amount of controversy following the recent debate in the other place on the Private Member’s Employment Opportunities Bill, in which it was suggested that people with disabilities should be able to offer themselves for work at below the minimum wage. As noble Lords know, the aim of the national minimum wage is to establish fairness in the workplace and one of its key principles is to protect the most vulnerable workers. The Government support the minimum wage, and we reject any suggestion that disabled people should be able to opt out of it.

I turn now to the two sets of regulations before us. The first regulations—the National Minimum Wage (Amendment) Regulations—do three things. First, they increase the hourly rate of the minimum wage for adults, younger workers and apprentices and increase the maximum amount for living accommodation that is allowed to count towards pay for minimum wage purposes. Secondly, they clarify the circumstances in which individuals taking part in certain government employment programmes are exempt from the minimum wage. Thirdly, they reflect the changes that have been made to the names of certain pre-apprenticeship programmes in Wales. The second set of regulations— the National Minimum Wage (Amendment) (No. 2) Regulations—exempts higher and further education institutions from the accommodation offset rules for full-time students who are employed by that institution.

I shall start with the provisions in the National Minimum Wage (Amendment) Regulations. In April, the Government announced that we had accepted the recommendations of the Low Pay Commission in its 2011 report on the minimum wage rates to come into force on 1 October 2011. These regulations implement that decision. They increase the adult minimum wage rate by 2.5 per cent from £5.93 to £6.08. We believe that this increase is appropriate in the light of the continuing economic uncertainty, while at the same time protecting the lowest-paid workers from falling further behind the average. Both the Government and the Low Pay Commission are concerned about the position of young workers in the labour market. I am sure noble Lords share that concern.

Young people are more vulnerable than they have been previously as they have been hit harder by the recession. That is why the Low Pay Commission’s remit last year specifically referred to the need to consider the position of young people in the labour market. Their position has continued to be difficult and there is evidence that in difficult economic circumstances the minimum wage level may have an impact on their ability to find employment. The commission therefore recommended lower increases for the youth rates than for the adult rate. This is because the youth minimum wage rates have increased faster than young people’s earnings generally since 2007. As a result, the minimum wage as a percentage of median earnings for young workers has increased while the adult rate has remained stable. The commission concluded that it would be imprudent for this to continue and therefore recommended lower increases than for the adult rate. We accept that conclusion. We believe that the increases in the youth minimum wage regulations are sensible and appropriate to protect the labour market position of young people.

The Low Pay Commission has also reviewed the new apprentice minimum wage that we introduced in October last year. It has found that the initial rate was cautious and recommended a higher increase in the apprentice minimum wage of 4 per cent. This will apply only to employed apprentices who are either aged under 19 or who are over 19 and in the first year of their apprenticeship. Other apprentices are eligible for the minimum wage rate according to their age.

There is currently an exemption from the national minimum wage for workers participating in certain government schemes to provide training, work experience or temporary work. At present, workers participating in government schemes provided under the Employment and Training Act 1973 are exempt from the minimum wage. However, there is no such exemption for workers participating in government schemes provided under the Jobseekers Act 1995, such as the Work Programme. Regulation 2 corrects this anomaly so that the exemption applies to all such workers.

I turn now to the third element of the regulations which is in Regulation 4. There is an exemption from the national minimum wage for a small proportion of apprentices on specified schemes who are not employed but who usually receive an allowance paid by the state instead of a wage. On 1 August, the Welsh Assembly Government will be starting two successor programmes to the Skill Build scheme that is currently specified in the regulations. We are therefore making consequential changes to reflect this.

The second set of regulations before us concerns the application of minimum wage rules on accommodation in relation to educational institutions. It is a general principle of the minimum wage that workers should be remunerated in money and not in benefits in kind. The only exception to this general principle is accommodation. However, as a safeguard to protect workers from unreasonable charges, the regulations set a maximum daily amount that an employer can deduct for the cost of accommodation, which is known as the accommodation offset.

Last year, the Government became aware that there was a potential problem with the accommodation offset where a higher education institution provides accommodation to a student who it employs, for example, as a student mentor. The problem arises because the relationship between an educational institution and its students is primarily educational, and accommodation is provided on that basis. Where an institution employs a student part-time, this does not change the basis on which the accommodation is provided. It is not analogous to the circumstances which the accommodation offset was designed to cover; namely, the protection of vulnerable workers whose employers might have sought to avoid paying the minimum wage by levying excessive rent for their accommodation.

We conducted a full public consultation on this issue earlier this year. We received 38 responses from universities, their representative groups and student representatives. There was an overwhelming consensus supporting the principle that we should address this issue. The regulations therefore exempt higher and further education institutions from the accommodation offset rules where the accommodation is provided to a worker who is enrolled on a full-time course with that institution. The overall, consistent response to our consultation was that the test for exemption should be based on the educational relationship that a student has with an institution. We have therefore based the test on whether a worker is undertaking a course with the institution. We have limited the exemption to full-time students as we consider that this approach is in line with the principle behind the exemption.

In summary, the Low Pay Commission’s minimum wage rate recommendations reflect the continued volatility of the economy, the state of the youth labour market and the uncertain prospects for the forthcoming year. I believe that the increases in the minimum wage in the first set of regulations before us balance the needs of low-paid workers against the challenges that remain for businesses. They reflect our commitment to the fair treatment of low-paid workers as well as to business. I believe it is important for the integrity of the minimum wage that the detailed rules are appropriate and, where this is not the case, that we take action to remedy the situation.

The second set of regulations addresses the unintended consequences of the accommodation offset rules as they apply to higher and further education institutions. I ask your Lordships to consider these regulations.

[Lord Teverson]

My Lords, I thank the Minister for his explanation of these regulations. The reason why I was eventually very much in favour of the minimum wage was not that given in the background papers to this. It was the fact that where we have quite a strong safety net in terms of the welfare state, it seemed to me that we were getting into a situation where companies were able to pay low wages and the state effectively subsidised the corporate sector in terms of its pay. Bringing in the minimum wage allowed us to stop that, at least to a degree. When I looked at the uprating in these areas in relation to inflation, which clearly they are well under, they probably reflect wages in the economy fairly accurately, so perhaps that is fine. I was particularly interested in some of the background notes. I learnt that almost 1 per cent of apprentices are 61 to 70 years old. I thought that was quite an interesting statistic. In fact, only 70 per cent—seven out of 10— apprentices are in the 16 to 20 year-old age group, so we learn something from the notes.

18:30

On the exemption of educational establishments, I welcome the fundamental regulation around what can be charged as rent. I know that in the south-west of the United Kingdom, where I come from, one of the main areas of abuse of the minimum wage regulations has been with migrant labour in the agricultural industry. I can see that educational establishments are a justified exemption, given that people have to be enrolled on a proper, bona fide course. I welcome these adjustments to the regulations.

I would like to ask the Minister about one of the areas of abuse of minimum wage legislation that has been highlighted recently, which is interns. Are the Government considering that area of non-employment at the moment? What might happen in that area? However, in general, I welcome these amending regulations.

[Lord Young of Norwood Green]

My Lords, I am pleased to support this important piece of legislation which makes the necessary amendments to ensure that the annual rises are made to the national minimum wage and that they will come into force on 1 October 2011, raising the wages of something like 900,000 workers.

The national minimum wage was introduced by the Labour Government in 1999 in spite of all manner of scaremongering, particularly from some sections of the right-wing press and, as I recall, it was opposed by the Conservative Party at the time. When it was introduced, it raised pay for more than 2 million people, and thereafter the Labour Government ensured that there were regular, above-inflation increases, so that in the first 10 years of its existence, the national minimum wage rose by 59 per cent. There is no doubt that those increases have raised the living standards of the lowest paid and have helped to close the gap between men and women's pay.

I agree with the noble Lord, Lord Teverson, that it did away with what was in effect a state subsidy for those parts of the corporate sector that paid significantly less than the minimum wage. As we know, when those investigations took place, a wage of £1 an hour was not uncommon in certain parts of industry. In 2004, some 50,000 low-paid teenagers received a boost in income when a minimum wage for 16 and 17-year-olds was introduced. When the Conservative Party was opposing the introduction of the minimum wage before 1999, there were claims that it would cost some 2 million jobs. In practice, 3 million extra jobs were created in the following 10 years.

Despite the initial and determined opposition to the national minimum wage, it appears that it is now accepted by the main political parties. I was pleased to hear the Minister state that the Government disagree very strongly with the remarks made by the honourable Member for Shipley two weeks ago when he suggested that disabled people should be required to work for less than the national minimum wage. I welcome that assurance.

During the first 10 years of the national minimum wage, the level of the annual increases in the national minimum wage meant that overall it rose above the level of inflation. In the past couple of years, it has risen more or less in line with average earnings. However, it worries me that we are now seeing some very rapid rises in the price of basic foodstuffs, domestic fuel bills and vehicle fuel, which has a knock-on effect on public transport and many other products. If you are on a low income, food and fuel make up a higher percentage of your expenditure, and therefore you are particularly hard hit by these rises. We have seen some very steep rises in food prices and fuel prices in the past few months, and we may well see further increases in the next few months between now and 1 October 2011, the date when the increases in the national minimum wage that we are discussing today will be implemented. If these trends continue, the additional 15p per hour on the adult minimum wage, bringing it up to £6.08 an hour, which amounts to a 2.5 per cent increase, will soon be eliminated by price rises.

Put another way, this increase of 15p per hour amounts to an increase of £6 per week for a 40-hour week, while we are seeing price rises which will soon invalidate that. If these trends continue, clearly the Low Pay Commission will be taking into account these additional costs as it does its complex analysis and consultation before making its next recommendation. Once it has made its recommendation, it will of course be up to the Government of the day to decide whether to accept it. I urge the Government to accept that proportionately high increases in the national minimum wage may well be needed to ensure that it keeps pace with inflation, given the costs faced by low-income families. If we are to make work pay, which I know is an objective of this Government, it is particularly important that the national minimum wage reflects the reality of price increases that people are encountering.

I very much hope that the coalition Government will continue the policy we had in government of increasing the national minimum wage at or above the level of inflation and that there is no intention on their part to allow its real purchasing value to be eroded by a failure to increase it in line with the actual prices people have to pay to meet their basic needs. I express those fears because we have already seen the coalition Government decide to use the consumer prices index instead of the RPI to calculate rises in pensions and benefits. I note the increase in the apprentice rate from £2.50 to £2.60. I also note the valid points the Minister made about the accommodation offset and the consultation that took place.

The success of the national minimum wage depends in part on the ability to ensure successful enforcement as a deterrent to those employers who attempt to flout the legislation. Can the Minister give us the latest statistics from the Revenue on enforcement and the number of national minimum wage enquiries raised on the employee rights helpline? I understand that since I did not give notice of those questions, the Minister or his team may not have those statistics to hand. I would be happy if he would let me have those answers in writing. They are important to give us an understanding of where we are going on the national minimum wage. That said, the work of today's Committee is to pass the statutory instruments before us, and I am pleased to support them.

[Lord De Mauley]

My Lords, this has been an interesting short debate and I thank noble Lords for their contributions. The regulations concern important issues that support the Government’s commitment to delivering fairness and supporting business. I believe that the provisions are fair and appropriate.

A number of points have been raised, so let me attempt to address them. My noble friend Lord Teverson commented on the use of the national minimum wage to ensure in the past that employers did not use the welfare state to subsidise their business, and I accept that. He also asked about interns and the Government recognise concerns about the risks of their exploitation. We are working to improve our guidance to clarify when individuals performing work experience, including interns, are entitled to the minimum wage. We will ensure that enforcement of the national minimum wage continues to be effective and that resources are focused where they will have maximum impact. HM Revenue & Customs will conduct a targeted enforcement campaign this year in sectors where internships are commonplace. Work experience as an intern, paid or unpaid, can be a valuable way for young people to gain the experience, skills and confidence that they need to get started in a career, thus improving their prospects. We want as many internship opportunities as possible to be made available to talented young people from all backgrounds, but we are clear that those who are entitled to the national minimum wage should receive it.

The noble Lord, Lord Young of Norwood Green, enjoyed pointing out that the Conservative Party originally opposed the minimum wage. While that is true, the implementation of the minimum wage has shown that it provides a valuable safety net for low-paid employees but that it has not had an adverse effect on their employment. The Conservative Party has therefore supported the minimum wage in recent years. I have sat in the chair opposite, where the noble Lord sits today, and supported the national minimum wage from that Dispatch Box. This support is continued in the coalition commitment I referred to in my opening speech.

The noble Lord also referred to inflation. The aim of the minimum wage is to help as many low-paid workers as possible without having any significant adverse impact on their employment prospects. It is for the Low Pay Commission to consider this in the first instance, as it makes recommendations to Government on the appropriate rate. It would be rash to speculate now on future recommendations. The Low Pay Commission considers a number of issues, including RPI, CPI, average earnings growth, GDP growth, employment and unemployment, and details its findings and the rationale for its recommendations in the reports that it makes to us. We also take these issues into account when deciding whether to agree with the commission’s judgment.

The noble Lord kindly said that he would accept a letter on his final question, and I will write to him.

I commend these regulations to the Committee.

Motion agreed.

National Minimum Wage (Amendment) (No. 2) Regulations 2011

Tuesday 12th July 2011 Grand Committee

Considered in Grand Committee

18:40

Moved By

[Lord De Mauley]

That the Grand Committee do report to the House that it has considered the National Minimum Wage (Amendment) (No. 2) Regulations 2011.

Relevant documents: 25th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011

Tuesday 12th July 2011 Grand Committee

Considered in Grand Committee

18:41

Moved By

[Lord Wallace of Tankerness]

That the Grand Committee do report to the House that it has considered the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011.

Relevant documents: 24th Report from the Joint Committee on Statutory Instruments.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I beg to move that the Committee considers the draft Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011. I shall also speak to the Adoption and Children (Scotland) Act 2007 (Consequential Provisions) (Amendment) Order 2011. The former order was laid before the House on 9 June and the latter on 10 June. I will provide an explanation of both orders.

The orders are made under Section 104 of the Scotland Act 1998, which provides that the Secretary of State can make such provision as is “necessary or expedient” in consequence of an Act of the Scottish Parliament. The Merits Committee has reviewed these orders and has not noted them as being of special interest.

I begin with the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011. This order is made in consequence of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, which for convenience I shall refer to as the 2010 Act.

The 2010 Act reformed Scots law in respect of persons being questioned by police constables in Scotland on suspicion of having committed an offence. In particular, the 2010 Act enshrined a right to legal advice for suspects prior to and during questioning by a Scottish police constable. It made provision for an order-making power in respect of legal advice and assistance for suspects wishing to exercise this right, and extended the period for which persons could be detained by a police constable in Scotland. The 2010 Act was enacted by the Scottish Parliament in response to the ruling of the Supreme Court in the case of Cadder v Her Majesty’s Advocate, with a view to ensuring that the law of Scotland is compatible with the European Convention on Human Rights.

The policy objectives of this order are two-fold. First, this order brings Scots law, in respect of persons questioned by Her Majesty’s Revenue and Customs and the UK Border Agency on suspicion of having committed a revenue and customs offence in Scotland, into line with the law applying to criminal investigations carried out by police constables in Scotland following enactment of the 2010 Act. The order seeks to deliver this policy objective by, first, enshrining in the Criminal Law (Consolidation) (Scotland) Act 1995 the right to legal advice for persons questioned by HMRC and UKBA on suspicion of having committed a revenue and customs offence in Scotland, and, secondly, by extending the period of time for which a person can be detained by HMRC and UKBA officers under the Criminal Law (Consolidation) (Scotland) Act 1995 from six hours to a 12-hour period of detention, with the potential to extend to 24 hours in certain circumstances with the appropriate authority.

As regards expanding Scottish Ministers’ power under the Legal Aid (Scotland) Act 1986 to make regulations disapplying the financial eligibility criteria for advice and assistance to HMRC and UKBA suspects, this provision will be underpinned by a ministerial agreement and administrative arrangement that the provision of legal aid for HMRC and UKBA suspects in Scotland will be on equivalent terms to the provisions made for legal aid in relation to persons detained by police constables in Scotland. It extends the right to access advice and assistance, without means testing, to HMRC and UKBA suspects by amending the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2011; and by including HMRC and UKBA suspects in the duty which has been placed upon the Scottish Legal Aid Board by the Duty Solicitors Regulations 2011 to ensure the availability of advice.

The second policy objective of this order is to update the law in cross-border cases to bring parity between the powers of the Scottish police, HMRC and UKBA acting within Scotland and the powers of the Scottish police, HMRC and UKBA exercising cross-border powers of arrest and detention elsewhere in the United Kingdom. The 2010 Act amended the powers of Scottish constables only when detaining or arresting suspects in Scotland. The period for which Scottish constables, Her Majesty’s Revenue and Customs and UKBA can detain suspects in cross-border cases is now markedly out of step with the detention period permitted in Scotland following the coming into force of the 2010 Act.

Cross-border detention provisions in the Criminal Justice and Public Order Act 1994 and the Finance Act 2007—which applies, with modifications, the cross-border provisions in the 1994 Act to HMRC and UKBA cross-border cases—allow for the detention of suspects for only four hours where a suspect's detention commences in England or Wales; and for six hours where detention commences in Northern Ireland. This applies regardless of whether the suspect is taken for interview to a police station in England, Wales or Northern Ireland, or is taken back to a police station in Scotland. Cross-border detentions usually arise in relation to the most serious types of cases and the current detention period raises significant challenges due to the need to allow access to a solicitor before and during questioning, which has a negative impact on the time available to conduct effective investigations.

The 2010 Act ensures that suspects are able to obtain legal advice before and during questioning by the police in Scotland. This order ensures that the right to legal advice is available to suspects who are being questioned by Scottish constables, HMRC officers conducting revenue and customs investigations and UKBA designated customs officials conducting customs related criminal investigations in a cross-border scenario as well as in Scotland. This order brings the cross-border detention provisions for Scottish constables, HMRC and UKBA customs and revenue officers into line with the provisions in the 2010 Act, thereby ensuring consistency of approach for the detention and arrest of suspects throughout the United Kingdom in investigations carried out by Scottish police forces, HMRC officers and UKBA designated customs officials.

The order also ensures that when a suspect is to be transported to Scotland for questioning, their right to have another person informed of their arrest or detention arises at the point of arrest or detention. This differs from the position where a suspect is detained in Scotland or questioned in England, Wales or Northern Ireland where the right of intimation to another person arises upon arrival at a police station. It is considered more appropriate and proportionate to grant this right at the point of arrest or detention where a suspect is to be transported to Scotland, particularly where such transportation may take a number of hours. The order will specify that the entitlement to have intimation sent to a solicitor and a reasonably named person, as well as their right to have another person informed of their arrest or detention, arises at the point of arrest or detention. This amendment avoids the provision of these entitlements being delayed until arrival at a police station, as is the current position. This amendment is both necessary and expedient as a direct consequence of the amendments to the 2010 Act. It ensures that a suspect is detained in a manner which is compliant with their rights under the European Convention on Human Rights.

The order will extend the period of time for which a person can be detained under cross-border enforcement powers to 12 hours, with the potential to extend to 24 hours in certain circumstances, with the appropriate authority. As at present, detention will begin on arrival at a police station, either in Scotland or in another part of the United Kingdom, and the suspect must be transported to the police station,

“as soon as is reasonably practicable”.

While the 2010 Act ensured that the system of arrest and detention in Scotland is compatible with Article 6, as expressed by the Supreme Court judgment in the case of Cadder v Her Majesty’s Advocate, the Scottish Cabinet Secretary for Justice also announced a review of Scottish criminal law and practice, which is being led by Lord Carloway, a senior High Court judge. He is expected to report later this year.

In the context of Lord Carloway’s review into this matter, the United Kingdom Government consider that it is sensible to do all that they can until Lord Carloway reports and his findings can be acted on, and to ensure that reserved bodies carrying out reserved functions in Scotland can continue to do so effectively and in compliance with the Supreme Court judgment in Cadder.

Once the Carloway Review Reference Group reports its findings, it is likely that the provisions of the 2010 Act and this order will need to be reviewed. However, in the interim, this order will amend powers of detention to ensure that HMRC, the UKBA and the Scottish police can continue to effectively carry out their functions to investigate serious crime, both in Scotland and in cross-border cases, in compliance with the Supreme Court’s judgment in Cadder v Her Majesty’s Advocate.

Perhaps I may now set out the details of the second draft order we are considering, which is made in consequence of the Adoption and Children (Scotland) Act 2007—the 2007 Act—and regulations made under that Act. The 2007 Act restates and amends the law relating to adoption in Scotland. It also makes further provision in respect of the care of children in Scotland. The process for adoption is updated to allow unmarried and same-sex couples to make an application jointly to adopt a child. The process of assessing prospective adopters and placing children for adoption has also been updated and is now regulated by new regulations made under the 2007 Act.

In addition, the 2007 Act introduces the permanence order to create greater flexibility for children who are looked after away from their home or who require local authority supervision. This new order replaces parental responsibilities orders and freeing orders. Both those orders removed all parental rights and responsibilities from the child’s parents and vested them in the local authority with sole responsibility for the child.

The permanence order now gives the authority the right to determine where the child shall reside allowing authorities to place the child with foster carers, for example. But, at the same time, the courts may vest parental responsibilities and rights in other individuals—for example, foster carers or even the child’s parents. The permanence order will therefore be tailored to meet the needs of each child.

This order therefore makes amendments to legislation for England, Wales and Northern Ireland to ensure that the new orders and procedures introduced by the 2007 Act will be given the appropriate recognition and effect. It does not make any new substantive policy changes: it simply updates existing legislation to take account of the changes in Scottish adoption law. The aim is to preserve the effect of current legislation in England, Wales and Northern Ireland and current cross-border processes. For example, many of the amendments relate to social security legislation which relies on references to Scottish adoption legislation to determine the status of claimants. It is appropriate therefore, that benefits legislation is updated so as to include the status of prospective adopters or adopted children under the new legislation where appropriate.

In order to ensure that existing cross-border arrangements are preserved to allow orders affecting adopted or looked-after children to be recognised and given effect where appropriate, the order proposes amendments to legislation for England, Wales and Northern Ireland in respect of the adoption and care of children. Again, the amendments are purely consequential on the changes made by the 2007 Act and its accompanying regulations. This ensures that, where an adoption application is being heard by an English court and the question of parental consent to adoption has already been determined by the Scottish courts, the English court may be satisfied that this part of the adoption process has already been dealt with. Parallel provision allowing the Scottish courts to recognise a decision of an English court on the issue of parental consent in advance of an adoption application is provided for in the Scottish 2007 Act.

I should also make reference here to the previous Section 104 order which modifies provisions in the Adoption and Children Act 2002 and the Northern Ireland adoption order to allow courts to give effect to Scottish permanence orders pending the textual changes which are made in this draft order. This order now makes the necessary textual amendments, which will allow those orders to have effect where appropriate.

Both these orders demonstrate the Government’s commitment to working with the Scottish Government and the Scottish Parliament to make the current devolution settlement work successfully for Scotland as part of the United Kingdom. I hope that your Lordships will agree that these orders are a sensible use of the powers in the Scotland Act and that the practical results are something to be welcomed. I therefore commend both these orders to the Committee. I beg to move.

[Lord Maclennan of Rogart]

My Lords, I begin by welcoming the clarity of my noble friend's explanation of the two orders. I also thank him for the very helpful Explanatory Memorandum that sets out their purposes and consequences. There are, consequentially, very few questions that I will raise, because most of the points have been very clearly made.

On the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011, have the recent United Kingdom changes in the proposed availability of legal aid affected, or will they affect in any way, the availability of legal aid to those who are suspected of serious crimes such as those mentioned in the Explanatory Memorandum? I note that powers to make regulations disapplying the financial eligibility criteria are referred to, as well as the criteria for giving advice and assistance to such suspects. It is also stated that the provision will be underpinned by a ministerial agreement and an administrative arrangement, and that the provision of legal aid to HMRC and UKBA suspects will be on equivalent terms to the provisions made for legal aid in relation to persons detained by police constables in Scotland. Will the Minister explain whether that agreement has been arrived at and is waiting for its effectiveness only on the passage of this order, or whether it has yet to be agreed—and, if so, with whom? The provisions on detention seem to be eminently sensible. It would be of some interest to know whether they are reciprocal. Does this mirror what happens if suspects are taken into custody by police constables in England?

So far as concerns the second order, again there are very few questions that have not been addressed. I would be interested to know what gave rise to the awareness of the desirability of making this change, which will result in orders being made under the 2007 Act to clarify that the 1978 Act does not apply in present circumstances. Whereas in the case of the first order there was a passage merely of weeks before it was laid, in the case of the other there has been a passage of four years. How is that explicable?

I will ask a procedural question. When changes are made by the Scottish Parliament or Government, is it automatically part of the dialogue between the Scotland Office and these institutions to consider any consequential changes that ought to be made by this Parliament under the provisions of the Scotland Act? Did this have to be drawn to someone's attention? Is it the sort of issue that the Scottish Law Commission might consider on a continuing basis or is it such a relatively minor matter—although the consequences are not unimportant—that difficulties became apparent only in seeking to take into account particular cases of adoption that arose after the law was changed? I recognise that this procedural question does not in any way take exception to the outcomes, which seem eminently sensible.

19:00

[Lord McAvoy]

My Lords, after 24 years in the Houses of Parliament I find it a bit of a shock to the system to be the Labour Party spokesperson on anything. I was expecting the doors to open and folk to come from miles around to have a laugh, but there we are. First, I thank the Minister for offering the services of his staff in briefing me on the orders. I would have taken that up, but I felt a twinge of conscience and a bit guilty that the Minister was prepared to inflict that on his staff. I am not sure what they have done to him, but I am grateful for the offer.

I start in reverse order with the adoption and children order. I certainly agree with the noble Lord, Lord Maclennan of Rogart, about the clarity of the Minister’s explanation. Even though I read the Explanatory Notes and the other literature, hearing the Minister speak was first class in getting a better and fuller understanding of what was being approved. However—as the saying goes—I have some questions. I realise from being here this afternoon that there is a practice of giving notice of questions. I was not aware of that or I would have done so. There are no trick questions; they may come on other occasions but not this evening.

This order brings consistency to the situation vis-à-vis Scotland and its part of the United Kingdom, so it seems routine, but no legislation should be rushed because mistakes happen. It seems to me that the Government are in such a state with their legislative programme that there is a heavy element of rush in the preparation and submission of legislation, but perhaps not the delay of months and years referred to by the noble Lord, Lord Maclennan of Rogart. Nevertheless, mistakes happen, and it seems that we have had a conveyer belt this afternoon. If anyone cares to look, a Written Answer to the noble Lord, Lord Grocott, in last week’s Hansard illustrated the number of times that the Government have broken conventions in terms of time. There seems to be a bit of a rush. Although paragraph 8 of the Explanatory Notes refers to “UK Government Departments” being consulted, there was no consultation elsewhere. I should have thought that on the issue of adoption there could and should have been wider consultation with professionals in the field. I was formerly a councillor in Strathclyde Regional Council which had one of the best social work departments in the whole of Europe. Nevertheless mistakes were made and incidents happened. I should have thought that there could have been more consultation.

One of the curiosities is that on pages 14 and 17 of the order there are Welsh language extracts. Is it because that is how it is presented by the Welsh Assembly or has it been inserted by the Government here? It would seem that there is a gap when it comes to Scottish matters; Scottish Gaelic should have been incorporated there as well. I am not a fanatic about Gaelic, but it is a recognised second language in Scotland, and if it can be encouraged, it should be recognised. The order is almost entirely technical and has our support.

Turning to the criminal procedure order, I have had some advice from the Law Society of Scotland. David Mundell MP advised the other place:

“The current detention period raises significant challenges due to the need to allow access to a solicitor before and during questioning, which has a negative impact on the time available to conduct effective investigations”.—[Official Report, Commons, Delegated Legislation Committee, 6/7/11; col. 4.]

I have heard from one or two others, as well as the Law Society of Scotland, who seem to maintain that the extension of the detention period from six hours to 12 hours with the option of a further 12 hours is disproportionate. This extension was argued on a number of grounds, one of which was that additional time would be required to secure solicitor access. The Association of Chief Police Officers in Scotland published data last month which showed that 83.5 per cent of detentions are for six hours or less, 15.7 per cent are for more than six but less than 12 hours, and 0.8 per cent are for more than 12 hours. I ask the Minister to outline the consultation process that came up with this time and to say whether it matches anything else so that I can make some kind of a judgment about whether it is standard, justified or just plucked out of a hat. I do not think that it was: it would be wrong to say that. Nevertheless, in the interests of transparency, it would be useful to have a response on that.

Another part of the Law Society of Scotland’s briefing echoes much of what the noble Lord, Lord Maclennan of Rogart, said about remuneration and the difficulties for solicitors who get involved in this type of thing. However, I will leave the lawyers to cry on somebody else’s shoulder, not mine.

[Lord Wallace of Tankerness]

My Lords, first and foremost, I congratulate the noble Lord, Lord McAvoy, on his maiden speech from the Labour Front Bench. He distinguished previous Labour Governments, but in a non-speaking role as a Whip. I welcome him to his post, and I am sure that, as he says, there will be many future occasions when we will engage in debate. I also thank my noble friend Lord Maclennan of Rogart and the noble Lord, Lord McAvoy, for their general support for the orders and for the important questions they raised.

I will pick up some of the procedural points with regard to this order in relation to the 2007 Act. It has taken so long—it is four years since the passage of the Act—because the Act was not brought into effect for some time after it was passed by the Scottish Parliament. Looking at the order, we see the amount of work that has gone in to trying to make sure that all the different pieces of legislation which are covered by it have been brought together. I am aware that a considerable amount of work has been done on that.

In my opening remarks, I referred to a stop-gap, temporary measure that was passed using the negative procedure earlier this year. That is repealed by this order now that we have the full provisions in place. A considerable amount of work goes on between the lawyers in my department, the Office of the Advocate-General, and the Scottish Government legal department, looking at issues when legislation comes forward. There is also a programme of work on Scotland Act orders to identify priorities in co-ordination between the United Kingdom and Scottish Governments. Both Governments feed into that programme, which leads to the orders that we take forward. Indeed, I think this morning an order was debated in another place that we will have the pleasure of looking at when we return in the autumn.

With regard to the point made by the noble Lord, Lord McAvoy, about Wales, it is my understanding that under the Welsh Assembly, some legislation now is in the Welsh language. It is reflecting that provision from the Welsh National Assembly that these provisions are in this order in Welsh. I have no doubt that if, at some stage, the Scottish Parliament passes a measure in Gaelic—that is on the heading of the primary or secondary legislation—that, too, would find its way into our orders.

I hear the point about the consultation and the Law Society. It has been a matter of routine that the Scotland Office was not consulted on orders which have been taken under the Scotland Act 1998. The majority of them are consequential to legislation which has been passed by the Scottish Parliament. Of course, the 2007 Act was well consulted on, deliberated on and debated as it went through its procedures in the Scottish Parliament. Substantially, this order gives it effect in a number of different ways in relation to United Kingdom legislation, which it was not possible for the Scottish Parliament to do. But the policy matters which are at the core were dealt with by the Scottish Parliament when the Bill went through and became an Act.

On the criminal procedure, publicly funded legal systems will be made available. The 2010 Act includes provisions to amend the Legal Aid (Scotland) Act to confer an order-making power on Scottish Ministers to make legal advice available to any person detained under the amended detention provisions. In such circumstances they may provide without reference to Section 8 of the Legal Aid (Scotland) Act 1986, which sets out the financial eligibility criteria for advice and assistance. The aim of the order-making power is to ensure that financial eligibility requirements would not act as an impediment to the availability of legal advice as a fundamental requirement of the new procedures. It is very obvious that if someone is brought in for detention and needs immediate access to a solicitor, suddenly to start filling in forms could act as an impediment to what is being sought to be achieved. It was considered to be impractical for a solicitor to have to try accurately to verify a suspect’s financial circumstances while they were detained. Of course, there was a need to ensure that all suspects can obtain legal advice. The ongoing, continuing discussions on the detail of the agreement to be reached between Scottish Ministers and the United Kingdom Government—it was agreed in principle that it will happen with the detail—is still to be worked out. When it is concluded it will follow on to this order when it goes through.

My noble friend Lord Maclennan of Rogart and the noble Lord, Lord McAvoy, raised the period of detention. It is perhaps useful to remind ourselves that the 2010 legislation was emergency legislation in the Scottish Parliament—I think that it was passed in a day. Prior to introducing the emergency legislation in the Scottish Parliament, the Scottish Government consulted with a number of stakeholders, including the Law Society of Scotland, the Crown Office and Procurator Fiscal Service, the Association of Police Chief Officers in Scotland, the Scottish Police Services Authority, the Scottish Legal Aid Board and the Scottish Court Service.

In particular, the Scottish Government consulted with a number of these bodies in respect of the decision to extend the period for which suspects may be detained by the police. During the consultation, ACPOS, the Scottish Police Services Authority and the Crown Office and Procurator Fiscal Service considered that an extension of some form was required, although the Law Society considered that any extension should not feature in the emergency legislation. Instead, the Law Society argued that options for change should be considered by a judicially led expert review. This matter is being considered by the Carloway review but the Scottish Government took the view that they did not consider that waiting until such time as the review reports, and reforms coming from the review are passed into law, was a viable option when there was already evidence that the six-hour period of detention in some cases would be too short, particularly in complex cases where a solicitor had to be brought in and, therefore, that underlay the decision to extend the time period.

This order seeks to put in terms of reserve functions, the UKBA and Her Majesty’s Revenue and Customs in exactly the same position with regard to the provisions as is the case with Scottish police officers. The purpose of the order is consistency, which is why we have used and adopted the same time periods as there are for the Scottish police. It is important that there is one set of rules which apply to the questioning of suspects in Scotland. Indeed, it may well be a joint investigation with the police and it would become very complicated if one body was operating under a different set of rules from the other. At the end of the day, the one prosecuting authority—the Lord Advocate and the Procurator Fiscal—will lead and take forward the prosecution.

19:15

My noble friend Lord Maclennan asked about the counterposition, as it were. It is the case that in England and Wales suspects are able to access publicly funded legal advice following arrest. The general rule in England and Wales is that the police or designated customs officials may not detain a person for more than 24 hours without charging him or her. If my memory serves me correctly, this goes back to the Police and Criminal Evidence Act 1984. However, police or UKBA detention may be extended for up to 36 hours in England and Wales when authorised by an officer of the appropriate rank.

With regard to cross-border enforcement, a police officer in England and Wales who has reasonable grounds for suspecting that an arrestable offence has been committed, or attempted in his or her own country, and that the suspected person is in one of the other countries—for example, Scotland and Northern Ireland—may arrest the suspected person without a warrant and take the person to the nearest designated police station in that country, or to a designated police station in the area in which the investigation is taking place, provided it appears to the constable that it would have been lawful for him to have exercised the powers had the suspect been in England and Wales. Therefore, the situation is not entirely parallel because a different detention regime operates in England and Wales; as is now the case in Scotland with the police, and will be, if these orders go through, with regard to the UKBA and HMRC.

I hope that I have answered the questions which noble Lords have raised. As I say, this is an example of two Governments working together and providing a solution which ensures that the effect of legislation passed by the Scottish Parliament is implemented in a way that covers the responsibilities of the United Kingdom Parliament. It is important that we have the provision to do that. Therefore, I commend these orders to your Lordships.

Motion agreed.

Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011

Tuesday 12th July 2011 Grand Committee

Considered in Grand Committee

19:17

Moved By

[Lord Wallace of Tankerness]

That the Grand Committee do report to the House that it has considered the Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011.

Relevant documents: 24th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Committee adjourned at 7.17 pm.

House of Lords

Tuesday 12th July 2011 Lords Chamber

Tuesday, 12 July 2011.

14:30

Prayers—read by the Lord Bishop of Chester.

Human Rights: Kashmir

Tuesday 12th July 2011 Lords Chamber

Question

14:35

Asked By

[Lord Hussain]

To ask Her Majesty’s Government what is their assessment of the human rights situation in Kashmir.

[The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)]

My Lords, we recognise that there are human rights concerns in both Indian and Pakistan-administered Kashmir and we followed the widely reported violent unrest in lndian-administered Kashmir last year. Indian Prime Minister Singh has since said that human rights abuses by security forces in Kashmir would not be tolerated. We are following the work of the three interlocutors appointed to help resolve the situation in Indian-administered Kashmir.

[Lord Hussain]

I thank my noble friend for his response. Is he aware of the Amnesty International report, A Lawless Law, which gives horrific accounts of human rights abuses committed by the Indian forces in Kashmir? Draconian laws such as the Public Safety Act allow the authorities to arrest and detain people for up to two years, and in some cases up to 20 years. According to the report, some 16,000 people have been arrested under the Public Safety Act in Kashmir so far. Will the Minister or the Foreign Secretary raise the human rights abuses in Kashmir with their Indian counterparts at their next meeting?

[Lord Howell of Guildford]

We are of course aware of the Amnesty International report. As with human rights questions in any part of the world, we are concerned, as would be all responsible citizens and responsible countries. Our high commission officials have visited Kashmir and discussed the issue with human rights groups but I have to emphasise that it is not for the United Kingdom to prescribe solutions to these matters. That is for the Indian-administered authorities to deal with and it is for India and Pakistan together to find a lasting solution to the overarching issue of the Kashmir situation.

[Lord Ahmed]

My Lords, is the Minister aware that a US-based international people’s tribunal on human rights and justice in Indian-administered Kashmir uncovered hundreds of mass graves and thousands of unidentified graves? Will Her Majesty’s Government support Amnesty International in its call for an independent and impartial inquiry into these mass graves? Will Her Majesty’s Government encourage both India and Pakistan in a dialogue where Kashmiris can also take part to resolve this outstanding issue?

[Lord Howell of Guildford]

We take the view that the three investigators appointed to help resolve the situation and look into these details must proceed with their work. We will clearly follow this very carefully and closely but it is a matter for investigation by the three appointees. That is what is now occurring.

[Lord Hylton]

My Lords, will the Government with our Commonwealth friends encourage as a background to the Kashmir dispute the maximum possible détente between Pakistan and India, for example, over land crossings and exchanges of all kinds between the two countries?

[Lord Howell of Guildford]

That is of course something that we want to see but I repeat that it is really not for the UK to prescribe on the situation or to prescribe solutions. It is for India and Pakistan to find a lasting solution. Any support, help and encouragement from outside that the United Kingdom, or any other country, can give, we will certainly be ready to offer, but that lasting solution must come from the two countries concerned.

[Lord Tomlinson]

My Lords, the Minister has expressed his concern for breaches of human rights wherever they occur. Will he once again turn to the problems of the European Court of Human Rights, which has a backlog of more than 100,000 cases, and take the opportunity of the British presidency of the Committee of Ministers to do something about this appalling neglect of the symbol of human rights in Europe?

[Lord Howell of Guildford]

The noble Lord has boldly and bravely raised this question a number of times. It is one that I am ready to call to the attention of my colleagues and it has been noted. There is clearly a backlog problem; there may be other problems as well. Those are a matter for close concern.

[Lord Naseby]

Will my noble friend confirm that Her Majesty’s Government will resist the temptation to put pressure on the three who have been appointed to investigate and give them sufficient time, without external pressure, to come up with their findings?

[Lord Howell of Guildford]

Yes.

[Baroness Falkner of Margravine]

My Lords, does my noble friend accept that the rule of law is completely within the ambit of the Commonwealth Ministerial Action Group, alongside democracy, and while Her Majesty’s Government may not have the leverage they seek through bilateral talks, they are able to address the issue through the forthcoming Commonwealth Heads of Government Meeting? Will my noble friend therefore seek to do so as he has great interest in the Commonwealth and leverage within it?

[Lord Howell of Guildford]

The precise agenda will be governed by CMAG collectively and by our Australian hosts at the Commonwealth Heads of Government Meeting, but all aspects of human rights abuse around the world are the concern of the Commonwealth, particularly those occurring in Commonwealth member countries. While I cannot guarantee that these matters will come to the fore, they are certainly something that we would like to see, along with all human rights issues, examined in an understanding way, recognising the sensitivities of particular situations such as this one, which is very sensitive indeed.

[Baroness Tonge]

My Lords, the noble Lord will, I am sure, remember that many decades ago the people of Kashmir on both sides of the line of control were promised a referendum on self-determination. Can he tell us what has happened to that and whether any progress has been made?

[Lord Howell of Guildford]

I do not think that there has been progress. This is again a matter for the Indian and Pakistani authorities. My understanding is that, at the moment, there is no progress on that front. If I am wrong about that I will write to my noble friend.

Employment: Market and Coastal Towns

Tuesday 12th July 2011 Lords Chamber

Question

14:43

Asked By

[Lord Knight of Weymouth]

To ask Her Majesty’s Government what action they are taking to increase employment in market and coastal towns in England.

[Lord De Mauley]

The Government are committed to increasing employment in all areas of the country, and national policy initiatives to boost growth and jobs apply, of course, to market and coastal towns. The rural economy growth review and the seaside resorts action plan are examples of current initiatives in support of that commitment, which will benefit market and coastal communities.

[Lord Knight of Weymouth]

My Lords, I thank the noble Lord for that reply. Our market and coastal towns are the economic and service hub for many of us in rural England. Yet without the economies of scale and transport links of cities, our market towns too often become victims of market failure in employment, retail and housing. The protections in planning are now being weakened in the Localism Bill; and the regional development agencies, and with them the market and coastal towns initiative, are being abolished in the Public Bodies Bill. How will the local enterprise partnerships fill that gap when there is market failure in market towns, given that attracting inward investment is not in their remit? What about the many rural areas not covered by the LEPs?

[Lord De Mauley]

My Lords, the noble Lord asks a number of questions. At this stage, let me say that our national policy initiatives to boost growth and jobs, which, as I have said, apply to market and coastal towns, include local enterprise partnerships, the regional growth fund, budget support for SMEs and measures in the Localism Bill. The important thing is that they can be applied to reflect the local context. Training and skills are also vital, and greater flexibility has been given to colleges and other training providers to offer the training that reflects the needs of the local labour market.

[Baroness Trumpington]

My Lords, would the Minister agree that the south-east corner of Kent has been and is a deprived area? Dover is frankly a disgrace as the place of entry to this country. My name is “of Sandwich”, so my heart is very close to that place, which will suffer tremendously with the closure of Pfizer. What are the Government going to do to help that part of the world, which for a very long time has been a deprived area from the point of view of trade?

[Lord De Mauley]

My noble friend makes a very strong point. The Government are committed to helping to rebalance the economy by supporting programmes to promote long-term private sector-led jobs and growth, including in the area that she mentioned.

[The Earl of Courtown]

Would my noble friend agree with me that SMEs are the backbone of economies in market towns and coastal resorts? Would it not be advantageous if the Government could put further pressure on the banks so they release funding for further expansion in these businesses?

[Lord De Mauley]

My Lords, I certainly agree with my noble friend that funding is a key point, and the Government are doing what they can to nudge the banks in that direction.

[Lord Beecham]

My Lords, in the light of last week’s announcement that the Homes and Communities Agency will take over the majority of the regional development agency assets—those, at any rate, that have not been sold off in the current fire sale—will the Minister indicate whether there have been any discussions with that agency, and whether any guidance has been given on the need to ensure that some of those assets at least are deployed in the interests of coastal and market towns?

[Lord De Mauley]

My Lords, I agree with the noble Lord’s point about the need for affordable housing, for instance. The Government are well aware of the need for affordable housing in rural, and indeed coastal, communities, and are looking to address this by returning decision-making powers to local councils, giving them greater control over the allocation and tenure of social housing.

[Baroness Sharp of Guildford]

My Lords, my noble friend the Minister mentioned local enterprise partnerships and local colleges and the importance of the skills agenda. Is he aware that in many cases local colleges are being excluded from local enterprise partnerships?

[Lord De Mauley]

My Lords, I am not, and I will follow that up with my colleagues.

[Baroness Farrington of Ribbleton]

My Lords, would the Minister care to comment on the savage cuts in local authority spending for areas such as Blackpool in the north, where the reduction in public expenditure is far greater than the Government have made either in the south of England or in Civil Service and government spending?

[Lord De Mauley]

My Lords, I know that the noble Baroness takes this issue very seriously. The Government are especially aware of some of the northern coastal towns—she mentioned one. A question was asked earlier about local enterprise partnerships. They now cover all northern coastal towns. As locally owned and genuine business civic partnerships, they are taking the strategic lead for economic growth and creating the right conditions for private sector growth along the coast, supported by budget measures to help small and medium-sized enterprises.

[Lord Brookman]

My Lords, I feel a bit frustrated by this Question, which is about coastal towns in England. Many of us are from the regions of the United Kingdom. Job creation is essential not only in coastal towns in England, as listed in the Question, but all over the country. Does the Minister agree?

[Lord De Mauley]

Yes, my Lords, and perhaps the noble Lord would like to take this up with his noble friend who asked the initial Question.

[Lord Roberts of Llandudno]

My Lords, I am so glad that the noble Lord opposite has mentioned the United Kingdom. I am sure that the Question about England, although it may not embrace Wales, includes Wales. However, is it not true that the demise of many of our town centres, and of employment in the centres of market towns, is because of out-of-town shopping malls and large-scale shopping centres? What are the Government doing to regulate this move out of town, which is making the centres of our market and coastal towns most uninviting places?

[Lord De Mauley]

My Lords, my noble friend makes an important point. Town centres are key to sustainable growth and local prosperity and are at the heart of neighbourhoods, giving communities easier access to shops and services. However, we must be clear that town- centre planning policy is not pro or anti supermarkets, and planning cannot seek to restrict lawful competition between retailers.

Coroners’ Inquests

Tuesday 12th July 2011 Lords Chamber

Question

14:50

Asked By

[Baroness Miller of Chilthorne Domer]

To ask Her Majesty’s Government how, under the arrangements which they have announced in lieu of a chief coroner post, they will ensure that inquests are not subject to unreasonable delays.

[Baroness Northover]

My Lords, the new arrangements announced on 14 June will allow the Government to take forward most of the provisions in Part 1 of the Coroners and Justice Act 2009, including those intended to reduce delays in the inquest process.

[Baroness Miller of Chilthorne Domer]

I thank my noble friend for her Answer. Does she agree that one of the worst things for bereaved, grieving families is to have to wait one, two or even three years for the inquest, and that that has an added cost to the NHS in all the stress and grief that those families naturally experience? Could my noble friend tell me why the Written Statement of 14 June to which she referred was silent on who would pick up the responsibility for overseeing what delays happen and why, and on what the criteria are for assessing what is an unreasonable delay?

[Baroness Northover]

The noble Baroness is absolutely right that this is a very difficult process for any family to go through, and anything that we can do to expedite inquests while holding them thoroughly is of key importance and should help the families. Section 16 of the Coroners and Justice Act 2009, which was introduced in response to the noble Baroness’s amendments, did place a duty on a senior coroner, when an investigation has not been completed within a year, to pass that information through and for there to be a register of that. As she knows, the plan is that the functions under that office will be transferred to the Lord Chancellor. This area will indeed be addressed. With the spotlight on military inquests and with the delays that used to occur, it is notable that things have improved enormously, so there is a lot to be said for getting things out into the open.

[Baroness Thornton]

My Lords, my noble friend Lord Bach and I have been campaigning together on this issue, and I won the toss to explain how disturbed we are on these Benches. The Royal British Legion, which has campaigned tirelessly about the inadequacies of the coroners’ service, has been in touch with me about this matter. It is bitterly disappointed with the proposals outlined by the Secretary of State on 14 June, where he says that he intends to persist with the abolition of the office of chief coroner. Given the overwhelming support for the chief coroner across this House, led by the noble Baroness, Lady Finlay, during the passage of the Public Bodies Bill, and indeed the overwhelming support from all parties for the reforms to the Coroners and Justice Act 2009, why are the Government persistently denying bereaved Armed Forces families a reformed, effective and well led coronial system that would provide them with the respect and support they need when they are at their most vulnerable and are grieving?

[Baroness Northover]

As I have just mentioned, military inquests have improved over the past couple of years or so, and that is very welcome. The noble Baroness refers to the position of chief coroner and to the actions of the noble Baroness, Lady Finlay, in defending it. It was clear that there was great concern about this in your Lordships’ House. Many of the provisions in the Statement of 14 June were negotiated with concerned parties, including the noble Baroness, Lady Finlay. They move most of the functions to the Lord Chancellor and the Lord Chief Justice but the position of coroner has not been abolished. It will be reintroduced in the Public Bodies Bill in the Commons so that it is there as a backstop. If the transfer of responsibilities to the Lord Chancellor and the Lord Chief Justice does not work, the provision can be reverted to. However, I make the point that in our current economic situation it was not possible—

[Noble Lords]

Oh!

[Baroness Northover]

If you look around Europe at the moment you can understand why it is important that the Government take our economic situation seriously. We have transferred all the key responsibilities here to the Lord Chancellor and the Lord Chief Justice. I am sure that noble Lords will all hold us to account if that does not work.

[Baroness Finlay of Llandaff]

Could the Government explain why the Statement, which I did not see before it went out and I did not know the contents of, did not contain a transparent costing to justify the abolition of the chief coroner? Why does the Statement contain the line,

“neither the judge nor any other individual will be responsible for the leadership, culture or behaviour of coroners”,—[Official Report, 14/6/11; col. WS 62.]

which makes it clear that the key recommendations of reviews by Dame Janet Smith, Luce and others that highlighted the reforms essential to the coroners system have effectively been abandoned?

[Baroness Northover]

I dispute what the noble Baroness says. The costings were done in 2009 and they stand. The problem about the proposals that came forward afterwards was that they talked about deferred costs, and we could not go down that route. I remind the noble Baroness, who would know this only too well, that the chief coroner was not going to be a panacea. The chief coroner could do what he or she could to persuade; they did not have statutory rights to interfere with coroners, who are independent judicial officers. They did not have that right any more than is currently the case. We all wish to improve the coroners’ system. There is a lot to be said for turning the spotlight on practices in different areas, as has happened with military inquests, and seeking to drive up standards that way.

[Lord Brooke of Alverthorpe]

My Lords, will the Minister explain why Governments get themselves into such a pickle? The idea that the amount spent on this is likely to disturb the economy of the country is ludicrous. The public can see that we spend millions on pointless referenda yet, on an issue that affects the whole country and for which there is widespread support right across the party front, the Government dig in unnecessarily. Can the Minister not take this back to her civil servants, make them see some sense and get what the public want in this area?

[Baroness Northover]

As my noble friend who is absent today often says, “To govern is to choose”. We all know the dire situation that the country is in but no one is suggesting that they short sell in Britain, unlike in Italy and Greece. That is worth bearing in mind when looking at this question. The Ministry of Justice, like all other areas in Whitehall, had to take its share of the cuts. It has had to make a 25 per cent cut in its budget. It was decided that, since most of these tasks could be transferred over and that was cost-neutral, that was what should be done. I point out again that, this having been addressed for military inquests, there have been the kind of improvements that noble Lords wish to see.

BSkyB

Tuesday 12th July 2011 Lords Chamber

Question

14:58

Asked By

[Baroness Symons of Vernham Dean]

To ask Her Majesty’s Government whether they will suspend consideration of News Corporation’s bid for BSkyB until the conclusion of the police investigation into the involvement of News of the World journalists and those currently in positions of authority in News International in phone hacking.

[Baroness Rawlings]

My Lords, on 25 January the Culture Secretary said that he was minded to refer News Corporation’s proposed merger with BSkyB to the Competition Commission in the absence of any specific undertakings in lieu. News Corporation duly offered undertakings, on which the Culture Secretary has consulted. Yesterday, News Corporation withdrew these undertakings. The Secretary of State has therefore decided to refer the proposed merger to the Competition Commission. The commission can take up to eight months to report back.

[Baroness Symons of Vernham Dean]

My Lords, I thank the noble Baroness for that response, and should say that I have given her specific prior notice of my supplementary question, which is as follows. Every day we have fresh revelations of the appalling behaviour of News International, and today was no exception. The real question that the British public want to ask, and the question that I want to put specifically to the Minister, is: how and by whom will the test of whether News Corporation is a fit and proper company to own BSkyB be applied as part of the process of consideration of its bid?

[Baroness Rawlings]

My Lords, I am grateful to the noble Baroness for the prior notice of this question. She is absolutely right; it is important to realise that the fit and proper person test is not triggered simply by the proposed merger. Ofcom has an ongoing statutory duty to make certain that the holders of broadcasting licences are and remain fit and proper persons. This is a matter for Ofcom, which is taking its responsibility in this area very seriously and is already in touch with the relevant authorities. The Government have no role in its decisions. No doubt the Competition Commission will also want to consider whether Ofcom’s investigations raise any further points relevant to its assessment of the effect of the merger on plurality.

[Lord Marks of Henley-on-Thames]

My Lords, are the Government entirely satisfied that their hands are now tied to the issue of media plurality, despite News Corporation’s failure to disclose its own nefarious activities? If so, does Section 67 of the Enterprise Act need urgent amendment? Might a way forward be to encourage Ofcom—there is no reason why it should not be so encouraged—to consider the fair and proper person test for continuing to hold a broadcasting licence under the Broadcasting Act 1990 as soon as the current investigations are sufficiently complete for it to form a view, and to delay a final decision on the acquisition until then?

[Baroness Rawlings]

My Lords, my noble friend makes some important points. I am sure that the Government will look at several amendments. The Secretary of State has returned this matter to the Competition Commission, and the review can take between 24 and 32 weeks, depending on the complexity of the case. The Competition Commission, confusingly for some, does not deal with actual competition. The European Union decided on 21 December 2010 that there was no competition problem. The Competition Commission’s decision, as my noble friend Lord Marks rightly says, will be based purely on plurality.

[Lord Lloyd of Berwick]

I am still puzzled by the timing of yesterday’s Statement. Were the undertakings offered by News International ever accepted by the Office of Fair Trading? If not, what was there to stop the Secretary of State at any time since 25 January referring the matter to the commission? Why did he wait until after the undertakings had been withdrawn to do so?

[Baroness Rawlings]

Because there were so many letters to him, the Secretary of State extended the period of consultation until Friday 8 March. He will be looking at all the answers. He is still looking at the answers. There will be quite a long delay. He does not know how long, but he does not want to be pushed into any quick decision because this is a very serious matter which everyone is quite rightly upset about.

[The Lord Bishop of Chester]

My Lords, there seems to be a difficulty in this matter, because if the Competition Commission has to report within this relatively short time span, the prospect of the police investigation being finished in that time is zero, especially if we are to reach the conclusion of whatever prosecutions take place. Indeed, the judicial inquiry cannot do its work until after that process is completed, so it would be difficult for the inquiry by the Competition Commission to reach a balanced and wise conclusion because so much of the matter has to run on beyond that time. How will Ofcom take a view until the judicial matters are completed?

[Baroness Rawlings]

My Lords, the right reverend Prelate makes an extremely good point. At the moment there are six inquiries, including a police investigation and several others on which it is not possible to comment, that of the Home Affairs Select Committee and the two inquiries that the Prime Minister has announced. All those will have to be gone through. There is a timescale. As I said, the Competition Commission review will take between 24 and 32 weeks. Ofcom will then take a decision and make a recommendation to the Secretary of State, who will make the final decision.

[Baroness McIntosh of Hudnall]

My Lords—

[Lord Phillips of Sudbury]

My Lords—

[Baroness Anelay of St Johns]

My Lords, I regret that we have reached 30 minutes.

Arrangement of Business

Tuesday 12th July 2011 Lords Chamber

Announcement

15:06

[Baroness Anelay of St Johns]

My Lords, our first business today is the Second Reading of a fast-track Bill, the Police (Detention and Bail) Bill. I understand that none of those down to speak at Second Reading propose to table amendments to the Bill. With the agreement of each of those speaking and with the agreement of the usual channels, I therefore propose that the remaining stages of the Bill be taken formally immediately after Second Reading, unless any noble Lord objects now or during the Second Reading debate. We will therefore proceed with the Second Reading and the remaining stages of the Police (Detention and Bail) Bill, followed by a further day in Committee of the whole House on the Localism Bill. As we have seen from the Annunciators, at a convenient point after 5.30 pm, my noble friend Lord Howe will repeat as a Statement an Urgent Question from the other place on the future of Southern Cross care homes. That will be followed immediately by my noble friend Lord Marland repeating a Statement on electricity market reform. We will end the day, I hope, with the notification of Royal Assent on the Police (Detention and Bail) Bill.

[Lord Campbell-Savours]

Might I ask the noble Baroness whether the usual channels have agreed to a debate on BSkyB? Could we have a Statement on that?

[Baroness Anelay of St Johns]

My Lords, since I have made a business statement, the noble Lord, Lord Campbell-Savours, is of course in order to ask a question on a different matter. I assure him that productive discussions are going ahead within the usual channels on just that matter.

Police (Detention and Bail) Bill

Tuesday 12th July 2011 Lords Chamber

Second Reading

15:08

Moved By

[Baroness Browning]

That the Bill be read a second time.

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

My Lords, I am sure noble Lords are aware of the circumstances in which this Bill comes to us from the other place. However, I will summarise the position in an effort to assist the House in its unavoidably brief examination of the Bill.

Since the Police and Criminal Evidence Act 1984, known almost universally as PACE, came into force in January 1986, it has placed an upper limit of 96 hours on the period of pre-charge detention for a person arrested on suspicion of having committed a non-terrorist offence, provided that detention past 36 hours is authorised by a magistrates’ court. That period of detention could be interrupted by one or more periods of bail, and detention time would run up to the time limit only when the person was in police detention; the clock would be paused during any period or periods of bail.

That understanding of the limits on detention was shattered last month when the High Court, sitting in Manchester, issued its written judgment in the Hookway case. The court held that, as a matter of statutory construction, the maximum period of 96 hours runs from the time that a person’s detention is first authorised and is not paused by a person’s release on bail. Once the police service had the opportunity to consider that judgment, alongside advice from some of the most eminent members of the Bar, it advised my right honourable friend the Home Secretary that the judgment posed major operational difficulties for it and that the judgment needed to be reversed at the first available opportunity.

Let me make it clear to the House that we had to wait until we had the written judgment, so that we could understand its scope, and had also tested with ACPO whether it could continue to protect the public, including victims and witnesses, within the detention and bail framework as redefined by the ruling. ACPO’s very clear advice on 30 June was that any mitigating action it might take could endure only in the short term. That is why my right honourable friend the Minister for Policing and Criminal Justice made an Oral Statement in the other place that very same day, setting out the issue and promising urgent legislation to give certainty to all those involved in the process of pre-charge detention and bail.

That urgent legislation is of course the Bill before us today.

[Lord Clinton-Davis]

My Lords, have there been any discussions with the Bar Council and the Law Society concerning this matter?

[Baroness Browning]

My Lords, there have certainly been exchanges of correspondence with the Law Society. I am not sure whether that included the Bar Council, but the Law Society is certainly aware and has exchanged correspondence.

The Bill has only two clauses and a single effect: to return the law to where it was commonly understood to have been for the previous 25 years. I cannot emphasise strongly enough that all we are doing here is restoring the status quo ante. The Government are quite clear that the Bill in no way widens police powers. So that there is no doubt, it may assist the House if I say a little more about Clause 1, which contains the substantive provisions.

Subsection (1) of Clause 1 has the effect of making clear that all time limits and time periods in Part 4 of PACE are to be read as including time actually spent in detention and excluding time spent on bail. Those limits and periods include initial time limits under Section 41 of PACE, superintendents’ extensions under Section 42 and warrants of further detention under Sections 43 and 44.

Subsection (2) of Clause 1 amends Section 34(7) of PACE. That section provides that when a person returns to detention from bail, whether that return is previously arranged or is as a result of being arrested for breaching bail, the person is to be treated as having been arrested for the original offence and the remaining detention period will have deducted from it the time previously spent in detention. The amendment in subsection (2) makes clear that those calculations also exclude the time spent on bail.

Subsection (3) of Clause 1, as part of the Government’s wish to return the law to its previous position, gives the Bill retrospective effect. I realise that that may be a matter of concern to some of your Lordships as a matter of principle—I will come on to that. As your Lordships will have seen from the Explanatory Notes that accompany the Bill, the Government have considered very carefully the issue of retrospective effect. We have come to the firm conclusion that, if the Bill is to fulfil its objective of returning the law to the position that was commonly understood before the judgment of the High Court in Hookway, it must be expressed as always having had effect. That is because, as the many lawyers in your Lordships’ House will be aware, the Hookway judgment also had retrospective effect. If the Bill were not to apply to the past as well as the future, there would be very real questions as to the legality of many past detentions, both before and since the Hookway judgment.

[Lord Thomas of Gresford]

My Lords, I wonder whether the noble Minister would help me. She says that we would be going back to detentions in the past, but she referred earlier to restoring the status quo. Well, the status quo of Mr Justice McCombe is right: it was an illegal situation, where people were detained illegally.

[Baroness Browning]

I can understand why my noble friend makes that point, but the purpose of this Bill is to restore the legislation that comes out of PACE to the understanding that has been exercised for the last 25 years as to the conditions that apply to detention and bail. My point about the need for the Bill to be retrospective is that we are seeking not to add new elements to the Bill but to restore what we believe was Parliament’s intention in passing it, and what certainly has been the understanding for the past 25 years of those who have been engaged in the legal processes from all sides, both lawyers and the police. I would therefore say to my noble friend that, if we were not to make this retrospective, there could be many thousands of claims for unlawful detention, and a similarly large number of claims that evidence gathered after 96 hours had elapsed was no longer admissible. That would be a thoroughly unsatisfactory state of affairs, which could tie up the courts and the police service for thousands of hours.

I would also point to the conclusions of Liberty on this issue, in paragraph 8 of a widely circulated briefing that it prepared on the Bill. Liberty commented:

“We do not believe that the proposals are retrospective in their nature as they do not seek retrospectively to create a criminal offence, sanction or other burden. They would not in our view … fall foul of Article 7 of the European Convention on Human Rights or the common law rule against retrospective penalties”.

I am also aware that the Constitution Committee of your Lordships’ House has commented that it is,

“concerned that asking Parliament to legislate in these highly unusual circumstances raises difficult issues of constitutional principle as regards both the separation of powers and the rule of law”.

While the Government are always attentive to the observations of the Committee, as I indicated in a letter to the Committee yesterday we do not see that the decision to legislate in advance of the outcome of the appeal to the Supreme Court raises any constitutional issues. The sovereignty of Parliament means that it is entirely open to Parliament to legislate at any time in response to a judgment of the superior courts.

I am also aware that, since the Hookway judgment, there has been some commentary from within the legal community—particularly from those acting on behalf of those suspected of an offence—which has sought to express concerns that the Hookway judgment is some sort of warning to the police that the courts will not put up with the way that they use pre-charge bail. We will take account of the wider issues of the way the police use bail, but in this particular case, nothing in the terms of the written judgment indicates that Mr Justice McCombe had any underlying concerns in relation to the operation of police bail; he seems to have reached his judgment purely on the basis of his interpretation of the statute.

Following a lot of discussion and some correspondence —indeed, I have had discussions with noble Lords in the House—I am aware of the concerns that have been expressed, including by Liberty, Justice, the Law Society and others, about excessive duration of police bail in some cases and about unduly onerous conditions attached to the bail. As my right honourable friend the Minister for Policing and Justice indicated in the other place, we are not able in this Bill to deal with any wider issues about the Police and Criminal Evidence Act. Moreover, it would be wrong to make changes to police bail in haste and without proper examination of the issues and consultation with the police, the Crown Prosecution Service, the legal profession and others. However, we will reflect carefully on the debates on the Bill, both in this House and in the other place. In relation to these concerns, it is our intention in autumn this year to consult on matters relating to bail more generally and to the conditions that apply to them.

I also point out, for those who may be concerned about this point, that anyone who is on pre-charge bail can challenge the conditions of their bail in their local magistrates' court. That is an important safeguard against any perceived abuse by the police of their powers to bail those under investigation.

I hope the House will be reassured that we are most certainly listening to people and intend to consult on those wider issues that have come to the forefront as a result of the legislation before us, but the urgent nature of this fast-track legislation means that there will be limited time today for debate on those wider issues. We will of course consider any observations that noble Lords make in that area in the course of our deliberations today and will come back to those at another time. The issue before us today is to correct the situation and restore to the police the powers required to protect the public properly. The Government believe that the Bill does that and no more. The other place agreed unanimously to the Bill when it considered it last Thursday. I beg to move.

15:21

[Lord Hunt of Kings Heath]

My Lords, we on this side of the House support the legislation, which is needed to overturn the High Court ruling in the circumstances described by the noble Baroness. It is clear that the judgment causes serious problems for policing operations, for ongoing investigations, potentially for the delivery of justice and, most seriously of all, for the protection of victims and witnesses.

As the noble Baroness so lucidly explained, it had previously been assumed that releasing a suspect on bail effectively paused the detention clock. It was thought that the clock could then be restarted when the suspect answered police bail and was redetained, even if that point was later than 96 hours after the relevant time. The recent High Court ruling is that that is not the case under the precise wording of the Police and Criminal Evidence Act 1984. Instead, the maximum 96-hour period specified in that Act runs immediately from the relevant time and cannot, as has been common police practice, be suspended by releasing a suspect on bail and be restarted later beyond the 96 hours by redetaining the suspect. The detention clock continues to run even while the suspect is on bail.

Understandably, Parliament has always been concerned to ensure that emergency legislation should be brought only on the basis of very serious considerations, and is never to be done lightly but with a clear understanding of the risks involved. However, Parliament needs to balance that with the risk to the public and to justice if we do not legislate immediately. The situation apparently means that the police are unable to recall people from police bail if they have been bailed for more than four days unless the police have new evidence that allows them to rearrest. The situation also raises serious issues about the application of bail conditions, particularly in domestic violence cases, as those conditions can include important protection for the victim. Such conditions could include someone being prohibited from going to his ex-wife's workplace, the family home or the children's school. Some bail conditions are an extremely important part of protecting the safety of victims and witnesses; and if they cannot be enforced, protection is clearly at risk.

We therefore support rapid action but, unfortunately, rapid action has not entirely characterised the response of the Home Secretary. I noticed that, in her introductory remarks, the noble Baroness emphasised the written judgment. She will know that the oral judgment was given on 19 May and her officials were informed soon after that—certainly before the end of May. The Home Secretary has said that she had to wait for the written judgment, but that has not meant that the Home Office had to suspend any action and judgment of what advice should be given to Ministers until the written judgment was received.

It is now seven weeks from the original judgment, three weeks since the written judgment was put in place, and two weeks, apparently, since Ministers were informed. The gap alone between Home Office officials being informed of the written judgment, the written judgment being published and Ministers being told has put Ministers in a difficult position. Our first concern is about the initial delay before the Home Office received the written judgment. More work should have been done between the oral judgment and the written judgment, and once the written judgment arrived, advice should have been given very quickly to the Home Secretary and the Minister for Policing and Criminal Justice about the risks in this case.

[Lord Clinton-Davis]

It is common practice for solicitors to note the judgment beforehand, so it is not necessary to await the written judgment as it unfolds.

[Lord Hunt of Kings Heath]

My Lords, that is a very telling intervention from my noble friend. Surely that is the case. All I would say to the Minister is that I hope lessons will be learned from this matter.

Changing the law retrospectively is in general undesirable and creates great uncertainty. It threatens natural justice if people end up breaking up a law they did not know existed. In this case, my understanding is that the Government are seeking simply to restore the law to what we in Parliament thought it was, to what it had been intended by Parliament at the time to be and to what the police, the CPS and others have followed in good faith for many years.

I noted the intervention of the noble Lord, Lord Thomas of Gresford. Like the Minister, I also noted the comments of Liberty, which are worth emphasising. Liberty does not believe that the Government are seeking retrospectively to create a criminal offence, sanction or other burden, so it would not fall foul of Article 7 of the European Convention on Human Rights.

[Lord Thomas of Gresford]

Is the noble Lord saying that he can envisage what Parliament meant many years ago, when a High Court judge has determined through the language used what was meant? If anybody disagrees with his interpretation, surely the appeal for which leave has been given should be pursued.

[Lord Hunt of Kings Heath]

My Lords, of course we shall have to see the outcome of the appeal. I do not know whether the noble Lord has read Michael Zander’s piece on this, which refers back to the debates in Parliament 25 years ago. From my reading of the amendment moved by Clare Short for the Labour Opposition at the time and of the response given by the then Home Secretary—the noble Lord, Lord Hurd—it is apparent that Parliament’s view was pretty clear. In that case, I must endorse the interpretation given by the Minister.

The case for rapid action is clear and that is why we are not proposing amendments today. Equally, the case has raised some important points, both of principle and of detail, which I would be grateful if the noble Baroness would respond to. Some of the commentary since this case came to light has expressed concerns about the possibility of the use of endless police bail. There appear to be cases where people have been left on police bail, including with conditions, long after another suspect has confessed to the offence, or where investigations have run dry but action was not taken to end the bail arrangements. I welcome the Minister’s offer of an opportunity for a wider debate about the appropriateness and proportionality of different lengths of police bail and what safeguards are required.

There are also issues around the fact that the original 1984 legislation has been amended many times. It would be helpful if the Minister could say in the review whether she intends to look at the legislative context in which police bail is enacted, and whether she thinks that it might warrant a review of legislation as well as practice in the fullness of time.

It is also noticeable that in some of the comments that have been made, including those from Liberty, a proposal has been made that Parliament should consider a statutory time limit to restrict the total duration of police bail to no more than six months. I would be grateful if the noble Baroness would say whether that is also a matter that will be considered in the welcome review that she has announced this afternoon.

We have also benefited from the advice of your Lordships’ Select Committee on the Constitution, which drew to the attention of the House one feature of the Bill which the Select Committee felt touches on an issue of constitutional principle. Essentially, the High Court judgment that the Bill seeks to reverse is itself under appeal to the Supreme Court. The noble Lord, Lord Thomas of Gresford, referred to that point. The Select Committee says:

“We are concerned that asking Parliament to legislate in these highly unusual circumstances raises difficult issues of constitutional principle as regards both the separation of powers and the rule of law. We have noted the constitutionally important distinction between legislative and adjudicative functions before. We are concerned that, in the understandable rush to rectify a problem which the police have identified as being serious and urgent, insufficient time has been allowed for Parliament fully to consider the constitutional implications of what it is being asked to do”.

I know that the noble Baroness has responded very rapidly—and it is very welcome that she has done so—by saying that the Government see no constitutional impropriety in the present decision to legislate in advance of the outcome of the appeal to the Supreme Court. She went on to say that it is common ground that the sovereignty of Parliament means that it is competent to legislate at any time, in response to a judgment of a court. I do not disagree with her assessment of that matter, but it seems to me that the Select Committee has raised a number of very important points, which would warrant also being considered within the review that the noble Baroness has promised to undertake.

In supporting this Bill and the actions that she has announced today, I would ask that there be an element of public involvement and input into the review that she has announced. I would also suggest to her, through the usual channels, that it would be opportune if, perhaps in the autumn, we could have an opportunity to debate these matters in this House, possibly as part of an input into the review that she has promised.

15:33

[Baroness Hamwee]

My Lords, I do not want to detain the House by repeating in detail what has already been said. There was a slightly longer speakers list earlier, and it made me wonder how many Silks it took to give a Bill a Second Reading. It also made me note that perhaps as instructing solicitor I should be saying to some of my noble friends that I was briefing them to be as succinct as I know they can be, but in making that suggestion I do not want to pick on my noble friend who is left on the speakers list. It has been agreed that we will dispense with further steps and take them formally, so there will be no refreshers.

I thank the Minister also for her introduction, and I particularly welcome the prospect of consultation. I entirely agree with her that it would not be appropriate to proceed on a wider basis at this stage without a written judgment as distinct from notes taken by people other than the judge, so I welcome this way of going about matters.

I do not think that bail conditions and maximum periods are appropriate in emergency legislation. There are real issues here, but they are difficult and warrant a more measured approach. My initial instinct was that there might be a sunset clause, but again I do not think it would be appropriate for what, in non-technical language, is not a new issue. I hope that the timing of the consultation and wider debate, as the noble Lord has just suggested, will be such that if legislation is necessary—we cannot prejudge that without having the consultation—it might be able to piggyback on other Bills now before your Lordships. We know of the problems in bringing forward fresh legislation.

I am grateful to the Minister and her officials for the time spent briefing noble Lords before today’s debate. I understand that if it is not possible to reach the point of making a charge or deciding not to charge within 96 consecutive hours, the police are trying to look at what is new evidence. I am not making any allegations, but it is clear to me that this could well be open to abuse, so again on that basis I welcome the Bill. My noble friend has picked up the use of “status quo” and I have made a note to say that it is not the status quo; it is what everybody thought was the status quo. My A-level Latin many years ago is not adequate to put the whole lot in Latin, but I do not think the use of “status quo” is quite right. Similarly, on terminology, this Bill is not so much akin to retrospection as akin to rectification, and I support it.

15:36

[Lord Pannick]

My Lords, when the three political parties, Justice, Liberty and, of course, the House of Commons all agree that this Bill deserves support, I am not going to express a dissenting opinion. But I am going to express concerns about the constitutional issues raised by the way in which the Government have proceeded. Parliament is being asked to enact emergency legislation to overturn a decision of the High Court. High Court judges, no doubt regrettably, occasionally make decisions that are perceived to be of enormous detriment to the public interest. But in all previous cases where this happened, an appeal was brought in the hope and expectation that the Appellate Committee of your Lordships’ House, now the Supreme Court, would overturn the High Court judgment, and only if that legal remedy failed was emergency legislation brought forward.

There are good reasons why emergency legislation is contemplated only if the appeal process has been exhausted. First, if the appeal succeeds, the problem disappears and Parliament does not need to become involved. Secondly, if the appeal fails, the judgment of the Supreme Court provides a much more informed basis on which Ministers and Parliament can address all aspects of the issue. Thirdly, and not least, surely constitutional propriety requires that the law should be interpreted by judges, not by Parliament. I understand that to be the point of the interventions made by the noble Lord, Lord Thomas of Gresford. It is all very well to have Members of the House confidently asserting, as they did last week, that Mr Justice McCombe’s judgment was wrong and that the Bill merely returns the legal position to what it was. It is all very well to have the noble Baroness stating today that the Bill returns the law, as she put it, to the status quo ante, but I subscribe to the apparently old fashioned view that it is for the Supreme Court to determine what was the legal status quo. Indeed, this case is even more surprising, because we are engaged in this exercise notwithstanding the fact that there is an appeal; it is pending in the Supreme Court, listed to be heard on 25 July. I shall come back to the timetable in just a moment.

The Minister said this afternoon that the decision to legislate in advance of the outcome of that appeal raises no constitutional issue, because Parliament, of course, is sovereign and competent to legislate at any time. She made the same point in her very speedy response to the report of the Constitution Committee, of which I am a member. I am sure that all members of that committee will be extremely grateful to the Minister for the urgency and speed with which she addressed the issues that we raised; but is it really the Government’s position that no constitutional issue about the respective roles of the judiciary and Parliament is raised when emergency legislation is introduced to overturn a decision of a lower court which is pending appeal to the Supreme Court and when the emergency legislation is being brought forward on the basis that it simply restores the previous position, which has therefore, it is implicitly suggested, been misunderstood by the High Court judge?

Of course, I understand that we cannot now wait for 25 July, because the Supreme Court may, on 25 July or very soon thereafter, dismiss the appeal and by then Parliament will be in recess, but that does not remove my concern about what has happened in this case. The vice is that nobody asked the Supreme Court to hear and determine the appeal more speedily. Appeal courts regularly hear and determine appeals very speedily indeed when it is necessary to do so. The timetable in this case is as follows: Mr Justice McCombe gave his oral judgment as long ago as 19 May. He refused permission to appeal on 25 May and on the same day he certified a point of law which enabled an application to be made to the Supreme Court for leave to appeal. That is seven weeks ago. It was not until 21 June that an application was made to the Supreme Court by the Greater Manchester Police for permission to appeal. For reasons which I still do not understand, the Government appear to have been unaware of the crucial significance of this case until about 30 June, even though Professor Michael Zander published an article pointing out the concerns on 18 June—he must have been aware of the problem some days before that.

The Supreme Court granted permission to appeal and expedited the case so that it will be heard on 25 July, but I have made inquiries of the Supreme Court and been told that neither the Greater Manchester Police nor anyone else asked the Supreme Court to hear the appeal earlier than 25 July because of the urgency and the need for Parliament to consider emergency legislation if the appeal was not to be heard earlier than 25 July. I am also told by the Supreme Court that, if it had been asked, it would of course have considered trying to hear the case more speedily because of the need to do so. That is what should have happened in this case. As soon as the importance of the issues was understood and the possible need for emergency legislation was recognised, an application should have been made to the Supreme Court for it to hear the case last week or at the beginning of this week on the grounds that, if the appeal failed, then and only then would the Government need, or possibly need, to bring before Parliament emergency legislation. There would then have been time to consider the matter before the Summer Recess and after the appeal if it were unsuccessful.

As noble Lords will know, the Attorney-General may intervene in any court proceedings to protect the public interest. The Secretary of State does not appear to have asked the Attorney-General to apply to the Supreme Court to hear the case more urgently. If such a request was made, it certainly was not acted upon. I should emphasise that, although the Supreme Court has very helpfully given me the information that I have recounted to noble Lords—I am very grateful to Jenny Rowe, the chief executive, for that—the views that I express on these matters are mine alone.

My concern is that this Bill is a most unfortunate constitutional anomaly. Parliament should not normally be asked to consider emergency legislation to overturn a High Court judgment when there is a pending appeal on the very issue which is before the highest court in the land. That should not happen unless every effort has been made to persuade the Supreme Court to hear an even more urgent appeal.

There is simply no precedent that I am aware of, and understandably so, for what we are doing today—reversing a judgment of the High Court with retrospective effect on the basis that we are satisfied that we are restoring a status quo, even though a Supreme Court hearing is pending and no application has been made for it to hear the matter more speedily.

I have four questions for the Minister. First, is she aware of any previous occasion when emergency legislation has been brought forward to repeal the effect of a High Court decision without first appealing to the Appellate Committee, now the Supreme Court, and asking that court to hear the matter with considerable expedition? Secondly, can she explain why, before coming to Parliament, the Secretary of State apparently did not ask the Attorney-General to apply to the Supreme Court to hear this appeal with considerable expedition so that it could it take place early in July and so that, if it were dismissed, we would still have time if necessary to consider emergency legislation? Thirdly, what steps has the Secretary of State now taken to ensure that all police authorities—indeed, all other public authorities—know that if the High Court gives a judgment on a matter of public interest which causes general concern it is vital that it is communicated to central government without delay so that steps can urgently be taken, if appropriate, to ensure that an appeal is heard with great expedition? I ask that question—I do not attribute blame—because there appears to have been considerable delays in this case in communicating concerns from Greater Manchester through to Whitehall.

My fourth and final question is this: what is going to happen if the Supreme Court hears this appeal on 25 July and if the appeal succeeds? Will the Government then bring forward in the autumn a short Bill—even shorter than this one—to repeal this emergency legislation as entirely unnecessary and to remove from the statute book a most unfortunate constitutional anomaly?

15:51

[Lord Thomas of Gresford]

My Lords, it is a great pleasure to follow the noble Lord, Lord Pannick, and I agree with everything he said. It may be that the answer to his final question is that Royal Assent should not be given to this Bill until we have the judgment of the Supreme Court, and then there could be no necessity for it to be repealed.

When the noble Lord was speaking I was reminded of the story of the acorn falling on the head of Chicken Licken, who informed Henny Penny, Goosey Lucy, Turkey Lurkey and others that the sky was falling in. Finally, they all told Foxy Loxy, who listened to their panic-stricken warnings and then ate the lot of them. Much emergency legislation is introduced like the fabled acorn. The Hookway case merely declared that the relevant legislation did not allow the police to save up unexpired periods of authorised detention and to use them to detain and question suspects pre-charge at any date in the future—and this is the important point—even though no fresh evidence had been obtained.

If this is what Parliament meant in passing the legislation, as Mr Justice McCombe has held in his complex judgment, which required to be in writing before it could be properly addressed, then it seems to me as a matter of policy a highly desirable result. If the police and the CPS advising the police do not consider that there is sufficient evidence to charge a person today, why should they be allowed to detain and question the suspect in six months’ time, he having been on police bail, on exactly the same evidence? It is lazy policing. Of course, if there is fresh evidence as a result of a more vigorous or deeper investigation—a matter of some topical relevance today—that is a different matter. In such a case, if there is fresh evidence, a power of arrest would arise and a person could be detained and questioned in relation to the whole case, including the fresh evidence.

The problem that arises in this case is that a suspect can be detained again at a later date—six months, or even more, later—and questioned when no further investigation has taken place. He is simply being questioned on what was in the past. If Mr Justice McCombe’s interpretation of the statutory provisions of what Parliament meant—which is what his judgment is and not what the noble Lord, Lord Hunt, thinks from reading an article in a magazine—is correct, then Manchester Police should continue with its appeal, for which, as your Lordships have learnt, it has obtained leave through a certificate that it is a matter of public importance.

The noble Lord, Lord Hunt, did not continue entirely with the Constitution Committee’s point, which the noble Lord, Lord Pannick, has also made, that Parliament would then have the benefit of a considered judgment from the Supreme Court to assist its deliberations if the appeal were allowed to go ahead. We would then know what the Supreme Court thinks about Mr Justice McCombe’s interpretation.

This simple Bill ensures that lazy and possibly oppressive policing can continue but it raises a much more important question: has the practice of indefinitely extending police bail become a genuine abuse? There is no statutory limit when a person is given bail pre-charge and invited to come back at a later date. In Committee on the Criminal Justice Bill of 2003, my noble friend Lord Dholakia moved an amendment to insert a provision that police bail should not extend more than 28 days, as had been recommended at that time by the Home Affairs Select Committee. He said that his amendment would limit the pre-charge period and that:

“The CPS will of course progress the case as fast as possible. However, we have concerns about the unlimited bail periods. Set deadlines go some way to ensure that matters are reviewed and less likely to drag on unnecessarily”.

The then Attorney-General, the noble and learned Lord, Lord Goldsmith, responded that pilots that had been carried out suggested,

“that in most cases a five-week period should be sufficient to enable charges to be brought”.—[Official Report, 14/7/03; col. 683-84.]

He thought extending police bail for about five weeks was appropriate. Consequently, on 29 October 2003, I moved an amendment on Report for a limit of 35 days —five times seven, taking the Attorney-General at his word. He said in response that he did not wish to have a statutory limit but that it would be better for guidance and instructions to be issued by the Director of Public Prosecutions and the Association of Chief Police Officers. Were such guidelines ever issued?

I am indebted to Mr Roger Windsor who has pursued this topic with freedom of information inquiries which reveal that in 2008, in three police areas alone out of 43—West Mercia, Sussex and Surrey—358 individuals spent more than nine months on police bail to which conditions were attached. I have supplied his findings to the Minister. I am also indebted to Mr Csoka QC of Lincoln Chambers in Manchester and Mr Joseph Kotrie-Monson for their views, which I have similarly passed on.

Not only are there no time limits in relation to how long the police can keep a suspect on police bail when no new evidence has emerged but there is no mechanism whereby the degree to which the police are acting with due expedition—or, worse, with bad faith—can be independently scrutinised. One wonders whether the cuts in funding for the police and CPS could be translated into restrictions on the liberty of those who have not been charged with any offence. The conditions that can be imposed on those bailed can include reporting, curfews, travel and residency restrictions. It is my own personal experience and that of others that conditional bail can last for months or even years with no sign of any activity by the police or the CPS. In other words, people can be given bail at the police station and are welcome to walk out of there subject to the restrictions but those can continue indefinitely without any possibility of seeing whether the police are carrying out their functions expeditiously.

When the Police and Criminal Evidence Act was enacted the police could bail only without conditions—there was merely a requirement to surrender on a future date. In 1995, after 10 years of PACE, the police were given the power to impose conditions. The use of those powers has now reached epidemic proportions. It is the experience of defence lawyers that conditional bail is used punitively against suspects who the police believe are criminals but against whom there is no or no sufficient evidence. The police can extrajudicially, by the grant of bail subject to conditions, curtail their liberty for an indefinite period. Additionally, those arrested for public order offences at political demonstrations are often bailed for inordinate periods with a condition; for example, not to enter Westminster or not to attend further demonstrations. Often no charges are ever brought. They have been subjected to a form of control order which is effectively outside the rule of law. This happened in 2009 with protesters planning a protest at the E.ON power station in Nottingham and the arrest, detention and bailing of protesters during the occupation of Fortnum & Mason on 26 March this year.

The simple solution is to bring in a legal framework which imposes time limits on pre-charge bail and gives a right to appeal. Defendants who are remanded in custody have the protection of custody time limits. Extensions of custody time limits—normally six months —can be granted only if there is a good and sufficient cause and the prosecution has acted with due expedition. It is a frequent case in court that the prosecution goes along and explains how its inquiries are going and why there has been a delay. There ought to be similar protection for those on police bail. Extensions of time could be granted by a district judge but only if the police show good and sufficient cause—that there are reasonable lines of inquiry which could not, with due expedition, have been completed within the initial time limits.

Such a system would protect not only the rights of a suspect but also the victim: a rape victim, for example, has the anxiety of waiting months to see whether a charge is to be brought. Time limits will prevent inefficiency, poor staffing or indecision from creating a culture of delay.

Unhappily, the acorn at the moment is too small and this Bill is too light to carry the burden of extensive amendments to deal with these problems. I am grateful to Mr Justice McCombe for leading Parliament to investigate this area and I am extremely grateful to the Minister for indicating that an urgent review will be carried out in the autumn into what is potentially a very considerable abuse of the system, which certainly Parliament never meant when it passed the legislation in 1985 or when it was considered at any later date.

[Lord Hunt of Kings Heath]

My Lords, that was not the point I was making. The noble Lord asked me where I referred to the supposition in relation to putting it back to where Parliament thought it would be. I quoted from an article, which in turn quoted quite clearly from Hansard of the debates at the time. But that was not the point I was arguing.

[Lord Thomas of Gresford]

I am grateful to the noble Lord for his explanation. I have made all the points that I wished to make. I look forward to the review. I look forward to participating in a parliamentary debate on that review and we can see whether this abuse, which I believe does exist, can be cured.

16:03

[Lord Condon]

My Lords, I declare my usual registered interest as a former commissioner of police. I support this Bill for all the reasons that have been set out so comprehensively by the Minister. Since 1986 it has been widely recognised by the police, prosecutors, defence lawyers and the courts that time spent on bail does not count towards the maximum period of detention without charge.

The judgment on 19 May in the case of Greater Manchester Police and Paul Hookway has caused serious problems for police operations. More importantly, it has caused very serious problems for the protection of witnesses and victims because of the doubt cast over bail restrictions, particularly in cases of domestic violence, stabbing, and intimidation on estates and in inner cities. Real concerns are being played out hourly, every day since this decision was made.

The police service is trying to manage the investigation of more than 80,000 people who are currently on police bail. I spoke yesterday eveningto Assistant Commissioner Lynne Owens of the Metropolitan Police, who has been tasked with managing the challenge of the impact of the court decision until Parliament decides to deal with emergency legislation—or otherwise. I wanted to be convinced that this was not just an inconvenience for the police service or the creation of further difficulty. After my discussion with Assistant Commissioner Owens, I was convinced.

It is 44 years since I joined the police service. I can think of no other court decision of this nature that has placed in jeopardy the accepted police procedure for dealing with prisoners, and no case that has had the impact of the scale or magnitude of this case. In London alone, 14,000 people are on bail, including 170 people suspected of murder and other grave offences. Given the position that the service is in at the moment, all those cases are incredibly difficult to manage, and I fear that police officers in custody suites up and down the country are being forced to take decisions whereby they do things that either stretch the credulity of the law or detain suspects longer than really necessary, putting witnesses and victims in jeopardy.

I accept all the concerns that have been quite properly raised by all the noble Lords who have spoken today, including concerns about the constitutional impact of this sort of legislation; concerns from the noble Lord, Lord Thomas of Gresford, about the whole operation of bail and police use of it; concerns about the absence of a sunset clause; and concerns about the chronology of actions by the Government and the Home Office in response to this decision. However, we are where we are. The police service needs the certainty and immediacy of the restoration of the law to the accepted position prior to the court decision on 19 May. I believe that the Bill before your Lordships' House will do that and no more; it does not extend police powers in any way, nor does the police service seek any extension of powers.

I accept that there are many other issues relating to bail that need to be discussed and thought through in a measured way, but today is clearly not the day for that measured debate. I am pleased that the Minister has reassured your Lordships' House that that debate will take place, but for today I hope your Lordships will accept that the police service has been left in a parlous state because of this decision. I hope that your Lordships will accept the necessity for the legislation and will support it today.

16:07

[The Lord Bishop of Chester]

I shall add a footnote primarily to the speech made by the noble Lord, Lord Thomas of Gresford, just to give an example of the problems that arise simply as a consequence of police bail without conditions. I know of a clergyman who was arrested and then bailed and told that the police would probably not get back to him for a year. In this particular case, the clergyman was retired. Because of the particular nature of the potential allegation, he clearly could not exercise a ministry in retirement. He was told that it would be most likely a year before the police came back to him at all. That could well have been a serving minister. In many situations, I would have no alternative but to suspend a person in those circumstances for what could be a very long period, so even in the case of police bail without conditions, there are potentially very serious consequences, and in our media-sensitive age these consequences tend to be magnified.

I hope the Minister will say a little more about the review that she has promised, and assure us that it will be published and accompanied by a full set of facts and figures showing how the use of police bail has changed in recent years so that we can see the trends in this area. That said, I of course understand the need for the legislation, notwithstanding the constitutional issues so clearly stated by the noble Lord, Lord Pannick. However, the wider issues surrounding police bail now need urgent attention.

14:53

[Lord Clinton-Davis]

My Lords, I apologise to the House for intervening at this stage, but I went to the Government Whips Office yesterday, and I thought that I had put my name down. It has disputed that, but the Government are very wisely allowing me to speak.

The noble Lord, Lord Pannick, has eloquently raised some pertinent issues underlying the matters that we have to consider today, and I hope the Minister will be able to reply to those points. The noble Lord argued effectively that the Supreme Court should have had an opportunity to consider these matters, and I was very surprised to hear that no one asked the Supreme Court to meet more speedily. I note that the noble Lord spoke without any intervention from the Minister. I presume, therefore, that what he said is borne out. I will listen with great patience to what the Minister has to say.

Despite the questions that have been raised, and despite my own criticisms of the Bill, I remain in support of the Bill’s intentions and urgency. As we have heard, the Bill aims to re-enact the law as we have almost unanimously thought it was; and I, as a lawyer, join that number. I am always somewhat suspicious of emergency legislation because I believe that it puts a particular duty on Parliament to scrutinise it and its future in practice with extreme care. Whether or not there is a sunset clause, which I would support, it is incumbent on us to examine the Bill, or the Act as it unfolds in future. I hope the Government will respond positively to the suggested early consideration of these legislative provisions. If, in the future, there is a clear need for emergency legislation, does the Minister agree that the relevant departments—in this case, the Home Office, Ministers and civil servants—need to anticipate the problems and how they are going to react to them somewhat more effectively and speedily than has been illustrated here?

Mr Gareth Johnson, a Conservative in the other place, made a significant point about bail and the attitude adopted by the police, about which there is still a significant question mark. He argued that the police should not view the Bill as a green light to keep suspects on bail for an inordinate period before any decision on charging is made. I hope that the Minister can assure the House about this point, since the Law Society has also drawn attention to this matter. Whether or not we have a sunset clause, it is incumbent on us to examine this Bill with care. I hope that the Minister—who is in no way to blame for this parlous situation—will be able to reply to these points.

I refer to another important issue. In my view, it is essential with questions of this nature that the Bar Council and the Law Society are consulted forthwith. That has not happened here. Why not? Do the Government intend to consult them now? More importantly, is the Minister able to say that in future, if a situation of this kind arises, there is no doubt that they will be consulted immediately? It is not sufficient for there to be a mere exchange of correspondence; that is no answer to the major point that I raise.

16:15

[Lord Dear]

My Lords, I support the Bill. I had not expected to be able to attend your Lordships’ House today but my diary changed, and I am grateful to the House for allowing me to speak in the gap. I shall be brief.

I, too, declare an interest in that I served in a senior rank in the police service in England for many years. The noble Lords, Lord Pannick and Lord Thomas of Gresford, kicked the Minister’s shins fairly resoundingly with regard to timing and wasting time. I think that we are all concerned about that point. The noble Lord, Lord Thomas, went on to lay it on pretty thick, if I may say so, regarding what he termed lazy and oppressive police conduct in setting bail. I will come back to that in a moment. I would hope that what he outlined is the exception rather than the rule, but I am concerned on those points.

The real point of the debate today is that we are where we are and the police have a substantial problem, as my noble friend Lord Condon has outlined. The provisions of PACE, as they were understood, are still being exercised on hundreds of occasions every single day. They are part of the necessary working practice of any charge room, sometimes called a “charge suite”. Without certainty in this area, that part of the work of the police will grind very slowly—perhaps even to a complete stop.

I am not particularly concerned about retrospection in this extant case. We are trying to put the legislation back to what was generally assumed, rather than bringing in a new set of circumstances that would then impede someone ab initio.

I am concerned that the Minister has, rightly, found it necessary to talk about the review that will look at excessive and onerous conditions of bail that are being set and have been set in the past—a point made by the noble Lord, Lord Thomas—and overdue duration. That has caused me concern for some time, and the review is timely and important. I look forward to a debate, probably in the autumn or shortly after Christmas, on that very point.

On the point that we are considering today, which is putting the world back to what it was assumed to be prior to 19 May, the Bill has my full support.

16:18

[Lord Rosser]

My Lords, this has been an interesting and thoughtful debate, particularly for those of us who are not qualified lawyers. As the Minister has said, until the recent Hookway case it had been widely accepted, not least by the police and the courts, that, while there is a maximum time of 96 hours for which an individual could be detained without charge, time spent on bail did not count towards that maximum permitted period. That has now changed following a decision by a district judge on 5 April, and noble Lords already know the chronology of events since then.

The written judgment of the judge in the High Court was received on 17 June, and appears to have resulted in a shortage of people sharing the view in his oral judgment that the consequences of his ruling,

“are not as severe as might be feared in impeding police investigations in the vast majority of cases”.

The effect of this Bill is to restore the position to what it had been understood to be by all concerned in relation to bail not counting towards the maximum period of detention without charge, prior to the decision by the judge on 19 May. We support the Bill. We cannot await the Supreme Court hearing on 25 July before determining whether legislation is needed as potentially witnesses and victims of crime and not least victims of domestic violence are at risk of harm if the period of time for which suspects can be bailed without charge, with appropriate conditions attached on which action can be taken if they are breached, is now severely limited.

The statement by the noble Lord, Lord Pannick, that the Supreme Court was not asked to hear the case earlier than the 25 July is very interesting indeed. I know the courts can move rapidly. In the 1970s there was an instance of the Court of Appeal sitting on a Sunday, just two days after the decision by the National Industrial Relations Court which led to the appeal. It would not appear that there is quite the same sense of urgency in relation to this case, maybe because of insurmountable problems or maybe because the appropriate question was not asked, despite its potentially devastating and immediate implications.

The High Court has now said that an interpretation of an Act of Parliament that has been universally accepted and applied by all concerned for the last 25 years, including the courts, is incorrect and that, as a result, powers in relation to bail without charge beyond 96 hours are effectively withdrawn and, even more significantly, with almost immediate effect. The situation that has now arisen, as the noble Lord, Lord Condon, has stated, is causing serious problems for policing and for the conduct of investigations as well as the delivery of justice. It also puts at risk the well-being and safety of victims and witnesses.

If the courts have now decided to interpret a law differently from the way in which it has been interpreted for the past 25 years, there must surely be a less disruptive and potentially less dangerous way of effecting that change.

This brings me to the Government’s actions in this case. The original decision by the district judge was made in early April this year, over three months ago. The single judge in the High Court gave his oral ruling on 19 May, which upheld that of the district judge. Bearing in mind the potential significance of the High Court ruling, why was no application made for the hearing to be before three judges, as I understand could have been the case, rather than allowing the decision to be made by a single judge?

Clearly, at that hearing on 19 May this case was recognised to be of real significance. Counsel representing the appellants made it clear to the court that the consequences of Mr Justice McCombe’s decision would be profound and likely to have a negative impact upon the criminal justice process. Regrettably the learned judge does not appear to have accepted that view.

Can the Minister tell us when officials of the Home Office became aware of the substance of the learned judge’s oral judgment and what steps if any they took to prepare for or challenge the consequences of his judgment? The Minister has asserted today that nothing could be done before the receipt of the written judgment. Like my noble friend Lord Hunt of Kings Heath, I find that surprising. Surely, as an interested party it was incumbent upon the Home Office to consider the consequences of the judgment immediately—whether it might be appropriate for it or the Crown Prosecution Service to intervene, and to further consider whether to apply for a stay to the judge, or ask the Supreme Court to hear the case as a matter of urgency. There was a strong issue of public interest at stake and I ask the Minister if any attempt was made to invite the Attorney-General to intervene on behalf of the public interest. I hope the Minister will be able to address these points in her reply.

While I appreciate that the effect of this Bill is to restore the situation to what everyone thought it was prior to 19 May, and by making it retrospective ensure that potentially a large number of people were not able to make a claim for damages for detention on the basis that they had been treated contrary to the law in the light of the judge’s decision, there is now a need to review and consider again the provisions in respect of bail.

Claims have been made that people have been bailed for excessive periods of time without charge, since there is no time limit on how long people can be bailed in these circumstances. It has been suggested that the lack of a time limit is not an incentive for the police to be as expeditious as they might. Whether there is any substance to these points, I do not know. However, the whole question of bail now needs to be reviewed, including, presumably, in light of the Human Rights Act, which was not in play 25 years ago. I hope the Minister will confirm what she said in her opening speech—namely, that this is what the Government intend to do and, therefore, that the Bill we are considering today may well prove to have a sunset clause. Will the Minister confirm that, if needed following the review, new legislation will be brought forward?

It is important that certainty of the understanding of the law in respect of bail without charge for the 25 years prior to 19 May is restored as a first step. On this side we shall support the Bill and, with it, this fast-track legislation.

16:25

[Baroness Browning]

My Lords, this has been a constructive debate. I welcome the support for the Bill from the opposition Front Bench. I am particularly grateful to the noble Lord, Lord Hunt of Kings Heath, for his remarks in his opening speech. He raised some issues that I shall touch on since they were also picked up by other Members of your Lordships’ House.

I shall reiterate something about the scope of the review of bail. This was raised not only by the noble Lord, Lord Hunt, but by the noble Lords, Lord Thomas of Gresford, Lord Clinton-Davis and Lord Dear, and the right reverend Prelate the Bishop of Chester. When we look at pre-charge bail later this year, it will be to consider the issues raised today, including the overall time limit. However, we will need to ground that review in evidence. At the moment, much of what we have heard is anecdotal. Therefore, any and all input to that review in advance of its terms of reference being drawn up will be welcome. I can tell your Lordships’ House and the wider community today that, further to the point raised by the noble Lord, Lord Hunt, about members of the public, there is a wide community of interest in this whole area. We would welcome, even before the autumn, any written submissions that will help us to set the terms of reference for that review, which will be wide and far-reaching. I hope it is of help to the House to know that.

I was asked about what legislation might follow. I say to the noble Lord, Lord Rosser, that it is a bit premature for me to identify any legislation that may come from the review. There might well be something, but until we see the terms of reference, have gathered that information and can see how to take the matter forward, it would be premature for me to say today what legislation might be needed.

A lot has been said about the Home Office and timeframe involved by several noble Lords, including the noble Lords, Lord Hunt of Kings Heath and Lord Pannick. I hope the House will bear with me but it might be helpful, since a lot of attention has been paid to this, if I read out for the record of the House the situation as regards the timeline. To set that in context, the wider consequences of the ruling could not be considered until the judge issued his written ruling, setting out the reasons for his decision. That judgment was issued on Friday 17 June. Most importantly, even at that stage, its wider consequences were not readily apparent. The judge himself reiterated his belief that the consequences would not be as severe as might be feared in impeding police investigations in the vast majority of cases. It was only as the complex ruling was examined early the following week by ACPO, the CPS and Home Office officials that the full consequences became apparent. However, I will, for the record of the House, read out the points in this whole process and those at which the Home Office—both officials and Ministers—was involved.

[Lord Pannick]

Can the noble Baroness explain why the Home Office was unable to understand the implications and importance of this decision on 17 June, when Professor Michael Zander was able to publish an article on this subject on 18 June and must, therefore, have understood the implications some time before that?

[Baroness Browning]

If the noble Lord will bear with me, I shall begin at the beginning and work my way through the timeline. Because we have had such a short debate, it is very important to put this on the record so that noble Lords have the full information. I will read it slowly because a lot of dates are involved.

On 5 April 2011, the district judge refused the Greater Manchester Police’s application for an extension to a warrant of further detention in the Hookway case. On 19 May, in a judicial review, Mr Justice McCombe, sitting alone at the Divisional Court in Manchester, upheld the district judge’s ruling in an oral judgment. I should point out that he sat alone because an early hearing was requested, but only one judge was available to sit; so the request was made—a point referred to by the noble Lord, Lord Rosser. On 25 May, the Greater Manchester Police sought initial views from Ann Whyte QC, who stated that the judgment may relate only to specific cases or warrants of further detention. Yet again, the legal advice was that this might have quite a discrete interpretation in terms of its wider implementation. The following day, 26 May, the Greater Manchester Police invited Home Office officials to become an interested party in an effort to seek leave to appeal to the Supreme Court and forwarded papers for consideration. The written judgment was not of course available at that point—26 May.

As I am reading this, I realise that it is all right for me—I have a piece of paper in front of me. For the purposes of clarity, when I have read this into the record I will also place it in the Library of the House.

On 17 June, the Greater Manchester Police, as we have heard, received the written judgment from the High Court and forwarded a copy to the Home Office on that day. That was a Friday. On Monday 20 June, the Greater Manchester Police and Home Office officials studied the written judgment, and the broad scope of the problems presented by the judgment first started to become apparent. Until that point, there had been some consideration—not only because of the QC’s opinion but because of the wording of the judge in his oral judgment—that this matter was not going to be as far reaching as it has subsequently proved.

It was on 20 June that the GMP and Home Office officials started to consider the written judgment. The next day, 21 June, the GMP invited ACPO representatives and the Home Office officials to meet to discuss the implications. Home Office officials agreed with ACPO to convene an urgent meeting to discuss the implications, which took place the following day. ACPO, the CPS and the Home Office officials met at the CPS’s headquarters. The full magnitude of potential difficulties then became quite apparent. The following day—we are talking about one day following the other—ACPO alerted the CPS chief executive, and ACPO issued notification of judgment to all chief constables. On 24 June, the ACPO lead met with the CPS director-general, and Home Office Ministers were informed at that point. ACPO commissioned advice from Clare Montgomery QC, and ACPO issued interim guidance to all chief constables. That was a Friday.

The following Monday, 27 June, Clare Montgomery QC’s advice was received in conference by ACPO, the CPS and Home Office officials. ACPO issued further guidance to all chief constables. ACPO commissioned forces to provide real-life examples of the impact of the ruling to support the case for urgent legislation. On 29 June, ACPO commissioned further legal advice from Steven Kovats QC. The following day, ACPO received that advice from the barrister and presented its case for urgent legislation to Home Office Ministers. On the same day, the Minister for Policing and Criminal Justice made an Oral Statement to the House of Commons on the need for urgent legislation. To pray in aid the words of ACPO lead Jim Barker-McCardle:

“It was only when ACPO received the written judgment on 17 June, and a number of senior people were able to spend some significant time considering the issue, that the seriousness of this became apparent. As the ACPO lead on this issue, I was not going to advise Ministers that the police service needed, in exceptional circumstances, fast-track legislation until I had satisfied myself first that the legislation was necessary and that the police service could not operate effectively in light of this judgment, beyond the very short term”.

I hope that that is helpful to the House and I am sorry if it is lengthy and detailed.

[Lord Thomas of Gresford]

My Lords, perhaps I may assist my noble friend a little further. Neither the district judge nor Mr Hookway was represented at the hearing before Mr Justice McCombe, and there was a single counsel appearing for the Manchester police. It was clearly very low-key at that point; the respondents to this application were not even there.

[Baroness Browning]

My Lords, I am grateful to my noble friend for adding that information.

I hope that I have been able to allay some fears that the timeframe needed was a result of the Home Office—or, for that matter, anyone else—being dilatory. Had the judge’s and the initial QC’s advice not both indicated that this was not likely to be as far reaching as it subsequently turned out to be, I might accept some of the criticisms. However, the Government have acted as quickly as possible in the circumstances.

I understand that the GMP did ask the Supreme Court for an early hearing. I gather that it was initially given a date in the autumn and, when pressed, the date was brought forward to July. I will soon come on to some of the points that were made by the noble Lord, Lord Pannick.

I hope that I have satisfied noble Lords about the timeframe and the Government’s intentions with the wider issues that have been spoken to by noble Lords, including particularly my noble friend Lord Thomas of Gresford and the noble Lord, Lord Clinton-Davis, about the need for consultation and a fresh look at bail and its conditions. I can assure the noble Lord, Lord Clinton-Davis, that the Law Society and the Bar Council will, of course, be invited to take part in the consultation. We will make sure that all partners in this matter are fully engaged in the consultation, because I know that they will have a lot to contribute to this.

I am also very grateful to my noble friend Lady Hamwee, who, as ever, brings a very measured response to these matters. We have also heard from the noble Lords, Lord Condon and Lord Dear, who have had many years of experience in policing in this country. I was rather struck by the fact that the noble Lord, Lord Condon, in pointing out the operational difficulties that the police currently have to manage, said that no other court decision has had the scale and magnitude regarding operational policing as the one that is before the House tonight. I say to the noble Lord, Lord Dear, that, again, one of the things that always strikes me, having come from another place to your Lordships’ House in the not too distant past, is that the first-hand experience that noble Lords contribute to these debates is what not only makes them of a very high quality but helps to inform the way in which we legislate and proceed in these very difficult matters.

When the Association of Chief Police Officers presented us with clear evidence of the adverse impact of this judgment on the ability of the police to investigate offences and protect the public by enforcing bail conditions, we had a duty to act as a Government, and I believe we have quickly done so. From the debate, it was evident that your Lordships accept the need for fast-tracking this legislation, for the most part. If anything, this is one of those occasions when, notwithstanding the issues that noble Lords have raised, the House has acted and come together to make some progress and help resolve a very urgent problem.

The House would rightly have been sceptical had we sought to introduce a fast-track Bill on the back of an oral judgment, given that the judge in the Hookway case said at the time that the consequences would not be,

“as severe as might be feared in impeding police investigations in the vast majority of cases”.

We now know that assessment of the operational ramifications of the judgment to be misconceived but, as I explained, that became apparent only after the written judgment on 17 June.

Professor Michael Zander QC has been cited around the House. I understand that Michael Zander is someone whom noble Lords feel confident in citing because of his reputation in the field. I do not want to let go the opportunity to cite him myself. He said:

“The Home Office has been criticized for being a bit slow off the mark. But measured from the date when it received the transcript of the judgment, it dealt with the problem in a little over three weeks—which, as these things go, is not bad going”.

We have all prayed in aid Professor Zander; he sounds a pretty good sort of chap to me. I have not met him, but his judgment is clearly respected on all sides of the House.

[Lord Goodhart]

I have known Professor Zander for 58 years, and my view of him is very high.

[Baroness Browning]

My Lords, I do not doubt that for one moment. I shall cite him as often as possible on behalf of the Home Office.

I turn to the noble Lord, Lord Pannick, who talked about there being no precedent for the fast-track legislation in front of us. There is a precedent for this. A High Court judgment in July 2002 in the case of Hwez and Khadir held that the practice of granting temporary release, subject to restrictions, to people detained under the Immigration Acts was unlawful. The Government legislated to overturn that judgment in Section 67 of the Nationality, Immigration and Asylum Act 2002. Subsection (3) provides:

“This section shall be treated as always having had effect”.

The purpose was to avoid a situation where people subject to immigration controls who do not have leave to remain but who cannot lawfully be detained were left at large without there being any way of keeping track of them. Retrospection avoided the need to reassess the cases of persons on temporary admission on an individual basis.

As a member of the Constitution Committee, the noble Lord, Lord Pannick, has raised issues that replicate some of those that the Constitution Committee raised. I notice that the Constitution Committee may return to the issue after the Bill is enacted and the Supreme Court has heard the appeal by Greater Manchester Police. We will, naturally, consider carefully any further report that comes forward from the committee.

The noble Lord also asked what steps are now taken to ensure that police and public authorities report judgments to central government as soon as possible. There is an assumption there that the Greater Manchester Police should have acted quicker in alerting the Home Office to that judgment. As I pointed out in explaining the timeframe, we were aware and officials were engaged, but under a set of circumstances that was perhaps not quite clear to the House under the legal advice at the time. I do not disagree with the principle of what the noble Lord said. Timeliness is very important; lessons can always be learnt. We need to look forward to see things coming over the hill and not just wait to see what happens, when it is too late. That is my understanding of his question. I hope that I have satisfied him by outlining the timeline, but the general principle of what he asked, which is about the timeliness of information-sharing between agencies and authorities, is important, especially in issues as serious as this. I take his point; I know that, in the Home Office, we will endeavour to ensure that it is not overlooked.

On the question of the Supreme Court, although Mr Justice McCombe gave his judgment orally in May and certified the point of law, it was not possible for police counsel to prepare the appeal papers until the written judgment available on 17 June. As I have explained, an early hearing was requested but 25 July was allocated by the Supreme Court. An early date having been allocated, neither the GMP nor the Home Office believed that there was any prospect of an even earlier date being allocated.

The noble Lord also asked why the Secretary of State did not ask the Attorney-General to hear the case earlier in the public interest. The Secretary of State was made aware that the GMP was appealing to the Supreme Court for an expedited hearing. Subsequently the police also requested that the court stay the effect of the Hookway judgment. The court gave an expedited hearing date of 25 July, which, as I have said, is earlier than the original date. The Home Secretary felt there was no reason to think that government intervention would make that hearing even earlier. That is the case and I do not think that I can add any more to that. Clearly the Home Secretary did not feel it appropriate to approach the Attorney-General because a concession had already been given with the date agreed for the hearing.

[Lord Pannick]

The noble Baroness is being very patient indeed. We do not have a Committee stage on this Bill, so I hope she will excuse me if I press her slightly on this. Does she agree in principle that it is highly desirable, before emergency legislation is brought before Parliament, that every step is taken to try to ensure that the Supreme Court is asked to hear a case with very considerable expedition so as to avoid emergency legislation if at all possible?

[Baroness Browning]

I certainly do not disagree with the noble Lord on the general principle, and I will take his point back with me.

[Lord Clinton-Davis]

What I do not understand from what the noble Baroness has said is whether counsel even asked the Supreme Court for an earlier date. All we have heard is that it would have fallen on deaf ears, but we do not know. Why did counsel not ask for that?

[Baroness Browning]

Counsel did ask for that. The original date was in October or November. Counsel went back and asked for an earlier date, and that was why it was brought forward to July.

[Lord Clinton-Davis]

If the Supreme Court had understood that Parliament would not be sitting at that particular time, should they not have been made aware that Parliament was going to rise on 20 July?

[Baroness Browning]

I do know whether or not the Supreme Court, in bringing forward the date to July, was made aware of the date on which Parliament was sitting. The Home Office was clearly actively involved in these things, but of course the GMP was approaching the court, not the Home Office. I cannot specifically answer the particular point raised by the noble Lord, but I will endeavour to find out for him.

I can only reiterate the point that I made in my opening remarks. I know that this is a matter for the Constitution Committee, but we really do not believe that we are undermining the constitutional separation of powers by asking Parliament to legislate to reverse the effect of a High Court decision in advance of the issue having been decided by the Supreme Court. As has already been pointed out, had we waited we would have been in recess when that determination was made. The House will not return until September. We have already heard about the urgency of the need to take action in this matter, particularly from the noble Lords, Lord Condon and Lord Dear; nor has the point been lost on us in our discussions with ACPO that these are really serious matters.

The daily problem of the management of bail and offenders and the impact on victims of crime have rightly been pointed out by the opposition Front Bench, particularly in certain circumstances; the noble Lord, Lord Rosser, raised the question of domestic violence and people going back into the same area where they have previously committed a crime. These are very serious operational matters for the police to have to contend with.

Picking up on points raised around the House, I hope this is something we shall deal with when we have the consultation on bail and bail conditions. The police are between a rock and a hard place at the moment in trying to manage this. They are doing incredibly well, but as has been pointed out they can manage this only in the short term. If we were to ask them to manage it throughout July and August and well into September, before this House could come back to this issue, some of the cases that would come to the attention of your Lordships, and through the legal profession, would give cause for concern, not because of the police deliberately doing things that perhaps are outwith their powers but because of the very difficult position that they are in in having to manage these matters even now.

It remains to be seen whether Greater Manchester Police proceed with their appeal once this Bill is enacted—although I understand that it is their current intention to do so—and if so, what view the Supreme Court will take. The Constitution Committee may well want to consider this legislation in the light of that judgment, whatever it may be, and may well return to this later in the year. We will of course study that and carefully consider any report on the broader issue.

Members have touched on the matter of a sunset clause, although I noted that this has not been pressed particularly hard, and I am grateful for noble Lords’ understanding of it. Given that the Bill does no more than restore the law on the calculation of the detention clock to the position that it was commonly understood to be in 25 years prior to the Hookway judgment, we see no case for a sunset clause in this instance. Indeed, this is one of those instances in which a sunset clause could well have an adverse effect, in that it would perpetuate the very uncertainty about the proper interpretation of part 4 of PACE, which we are seeking to address in passing this Bill.

Finally, let me respond to the point raised by my noble friend Lord Thomas, and touched on by other noble Lords, on the wider issues involving bail and the consultation that we are going to put in place. No hard evidence has been received, but sufficient concern has been expressed from so many quarters that we need to get this right. Examination cannot be rushed; there needs to be an ordinary process, including consultation with the police, the CPS, and legal practitioners. Noble Lords have indicated that there is an understanding in the House that we could not include that in the Bill before the House today. I welcome support from all sides of the House for the Bill.

Bill read a second time.

Police (Detention and Bail) Bill

Tuesday 12th July 2011 Lords Chamber

Committee and Remaining Stages

16:55

Moved by

[Baroness Browning]

That the Bill be committed to a Committee of the whole House.

Motion agreed.

House resumed. Bill reported without amendment. Report and Third Reading agreed without debate. Bill passed.

Localism Bill

Tuesday 12th July 2011 Lords Chamber

Committee (7th Day)

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

16:56

Clause 95 : Duty to co-operate in relation to planning of sustainable development

Amendment 147FJ

Moved by

[Lord Greaves]

147FJ: Clause 95, page 72, line 14, after “authority,” insert—
“(b) a marine plan authority, or”

[Lord Greaves]

My Lords, we now move on to an important clause of the Bill, which provides the “Duty to co-operate in relation to planning of sustainable development”. The duty applies to,

“a local planning authority, … a county council in England ... or … a body, or other person, that is … of a prescribed description”.

I should say that, as well as moving Amendment 147FJ, I shall speak to a number of other amendments in my name in this group. They all refer to Clause 95, which will insert new Section 33A into the Planning and Compulsory Purchase Act 2004.

Amendment 147FJ would add “a marine plan authority” to the list of bodies that are under a duty to co-operate. I understand that through regulations the Government intend to give this duty to the Marine Management Organisation, which is the marine plan authority for a great deal of the British seas—essentially, the inshore and offshore seas of England. The term “marine plan authority” is used in the Marine and Coastal Access Act 2009, so it seems sensible to use the same wording here. Subsection (3) of new Section 33A, inserted by Clause 95, lists the activities to which the duty to co-operate applies, which include,

“the preparation of marine plans”.

It is therefore sensible to add “a marine plan authority” to the list of authorities that are under a duty to co-operate.

Amendment 147FK probes what is meant by the third group of bodies to which the duty applies—

“a body, or other person … of a prescribed description”.

Presumably if the Government wish to prescribe people, they must have an idea of who it is they wish to prescribe by description. I want to probe the Government on who they think these bodies will be, at least in the short run.

Amendment 147GA refers to local enterprise partnerships. As we know, these are new bodies which over the past year have sprung into life in most places, although not quite everywhere yet. They are to be responsible for co-operation between local planning authorities and local businesses in the absence of regional planning bodies. The regional planning structure is being dismantled and local enterprise partnerships are taking its place. People have different views on how successful they will be, but that is not the point of the amendment. It suggests that, first, the partnerships should be subject to the duty because strategic planning is what they are supposed to be doing, albeit in general over smaller areas than the regions, and therefore they ought to be included in the legislation. They are also ideal bodies to take a lead in co-operation—in fact, they are all we are going to have—by agreement with local authorities and other named bodies.

If we are going to put LEPs in the Bill, they need to be defined. I am not sure that the Government have officially defined them, so I suggest a definition in the words,

“a partnership of local authorities and businesses in an area, that has been approved of by the Secretary of State”.

That seems a reasonable description of what they are.

The next three amendments refer to the “activities”, as the Bill calls them, to which the duty of co-operation applies. These are the “preparation” of development plan documents, of other local development documents —of course, quite a few of the documents that go in the local plan are not classified as development plan documents as such—and of marine plans. The Bill suggests that the duty of co-operation should apply to the “preparation” of these documents; I have tabled amendments to add the words “and implementation” after “preparation” in every case. Surely the duty of and need for co-operation do not end with the publication of a plan but continue, given that people have to continue to co-operate in a constructive and sensible way in order to carry out what the plan is putting forward. Otherwise, those parts of the plan that require co-operation across boundaries—which presumably will be required, because what is the point of co-operating on producing the plan otherwise?—will be more difficult to achieve.

Amendment 147HE suggests that the duty to co-operate should apply to the preparation and implementation of documents which are not planning documents under planning laws, but which,

“affect the development or use of land and associated activities”.

We have only got to begin to think that there will presumably still be co-operation—perhaps across the LEP areas or county areas or other ad hoc areas—on producing housing documents, which may be more or less strategic housing plans. For example, housing authorities in east Lancashire and across Lancashire will continue to meet, work together and co-operate in this way. It seems sensible that, when this is happening, the duty of co-operation should apply to them. Leisure and tourism facilities, for example, very often require planning and a lot of work across local authority areas or across much larger areas than local authorities, particularly where there are relatively small districts.

I shall miss out one or two of my amendments in the interest of getting on. Amendment 147HM would add to the list of what is a “strategic matter” under subsection (4) of new section 33A. My proposed new subsection (4)(c) would add,

“development or use of land that is of potential strategic importance”.

My proposed new subsection (4)(d) would add,

“development or use of land that is necessary in order to meet the needs of a planning area but cannot be accommodated within that planning area”.

Those are the provisions that I wish to add to the Bill.

In the first of those proposed new paragraphs, the reference to “potential strategic importance” is important, because there may well be development proposals put forward for land which is of potential strategic importance, but the particular proposals being put forward cannot, by their nature, be considered to be strategic. They may just be ordinary planning applications, but the land itself ought, perhaps, to be reserved for more strategic purposes and therefore the co-operation should extend to the consideration of development proposals which, although not strategic in themselves, might involve land which is potentially strategic. That should, at the very least, be discussed and considered.

My second proposed new paragraph would apply where the needs of a local planning authority could not reasonably be met within the authority’s area but could perhaps be met within that of a neighbouring authority. This is certainly the case in small districts which might, for example, be having great difficulty finding new industrial land whereas a district next door might have quite a lot. Planning in those circumstances should take place jointly—it may be for housing, an industrial or commercial development, leisure facilities or even a shopping centre. Such development needs to be looked at across an economic area. If the LEPs are supposed to represent economic areas—it is arguable whether all of them do—it is across those economic areas that such developments and facilities ought to be considered. Natural economic areas may well be larger than the planning areas and in many cases they will be.

The Bill sets out definitions, including the meaning of “planning area”. Amendment 147HN would define “planning documents”, which are not defined in the Bill. The amendment would remedy this omission. The amendment provides that “planning documents” would mean all,

“documents that set out policies … relating to the development and use of land, the English inshore region or the English offshore region”,

under a number of enactments. The list of those enactments in the amendment may not be complete, but the principle of setting them out is sensible.

Amendment 147HQ would strengthen the duty imposed on all the persons and bodies that have to co-operate. The duty to co-operate was strengthened in the House of Commons before the Bill came here, but there is quite a considerable body of opinion that it needs strengthening even further. New Section 33A(6) states:

“The engagement required of a person … includes, in particular … considering whether to consult on and prepare, and enter into and publish, agreements on joint approaches to the undertaking of activities within subsection (3)”—

which relates to the preparation of development plan documents et cetera. The amendment would strengthen the provision so that the paragraph would read,

“to consult on and prepare, and, where appropriate … publish, agreements on joint arrangements”.

In other words, the duty would be not just to consider whether to bother consulting but to actually get on and do it.

Amendment 147JA would place a similar duty on local planning authorities to get on with it, rather than just “consider” producing joint planning documents where appropriate. The word “consider” seems too weak, so I hope that the Government will look at different ways in which they can perhaps strengthen the duty.

Amendment 147N takes us back to statutory guidance and regulations. This may be getting fairly tedious, but there is a great deal in the Bill which is probably not necessary. Here again, we have the Secretary of State bossing people in great detail on how to co-operate. People know how to co-operate. They may not always do it, but if they are under a duty to do so, they will probably get on with it.

The alternative way of dealing with these matters is in Amendment 147P, which suggests that the Secretary of State can intervene, but only if he receives a complaint that one of the bodies that must co-operate is not doing so. This is a better approach. Instead of laying down in great detail how people should do things, in a very rigid, top-down and bossy way, it would provide a fall-back power whereby, if co-operation was not taking place and was clearly not working, the Secretary of State could intervene. This would provide an incentive to change behaviour. It is a failsafe, but it is a better way of doing it. Above all, it leaves open the opportunity for people in an area to co-operate in a way that is most appropriate for that area, providing a lot of innovation and best practice. If authorities simply have to do it in exactly the way the Secretary of State sets out in great detail, innovation and best practice will never take place.

Amendment 147R seeks to amend the Marine and Coastal Access Act 2009 to include a duty to co-operate in that Act. If it is necessary to amend the Planning and Compulsory Purchase Act 2004 for terrestrial planning to include a duty to co-operate in that Act, then surely it is necessary and sensible to do the same in the Marine and Coastal Access Act in relation to marine planning. When the Marine Management Organisation is preparing a marine plan, under this amendment it must have regard to the duty to co-operate set out in the new Section 33A of the Planning and Compulsory Purchase Act 2004. When a person is carrying out an independent investigation into a marine plan under the Marine and Coastal Access Act, the person must determine whether the MMO complied with that new section of that Act.

In many ways these are technical amendments but they will substantially improve, strengthen and make much clearer this part of the Bill. I beg to move.

[Baroness Andrews]

My Lords, the noble Lord, as usual, has been very assiduous in his amendments. I am grateful to him for tabling, in particular, Amendment 147FK. I declare an interest as chair of English Heritage.

The noble Lord asked the Minister what would be included in the list of bodies referred to in proposed new Section 33A(1)(c). We think it might be bodies such as English Heritage. The Bill raises a serious issue. Obviously, we all understand the need for local authorities to be obliged to assist each other in agreeing cross-border planning strategies, but it is not clear why the loss of the regional spatial strategies gives rise to the need for national bodies such as English Heritage to be obliged to provide advice and information.

Of course, English Heritage and many other bodies—but particularly English Heritage—give advice and assistance to local authorities in the planning system. It is one of our core responsibilities with which we are rightly charged but, as a national body which, like others, may be subject to this duty, we are now concerned that a responsibility may have been written into the law which would oblige English Heritage to advise and assist the 433 local authorities in England in a manner—this is very important—that would commit incalculable and open-ended resources. Clearly this is not what the Government intend but it is what the present clause, as we understand it, threatens to do. It would make us liable, without condition, to be dragged to every council table in the land.

As chair of English Heritage, I am concerned about how this might unbalance the priorities already set by Parliament and the Government. I suspect that the Minister will also be concerned about this possibility. Like the noble Lord, Lord Greaves, I ask the Minister for clarity on how this new burden will be met and qualified and whether he can explain what need this new obligation is now fulfilling. Indeed, what are the bodies not doing now that they should be doing?

I apologise in advance to the Minister because I may not be able to stay for the winding up of this debate, but I shall certainly read Hansard tomorrow with interest.

[Lord Cotter]

My Lords, in speaking to my Amendment 147H to this section of Bill, I want to emphasise the importance of local businesses in the community. I do not need to say much about the struggle that many local businesses have now, and have had for quite some time, to cope with trading conditions and other matters as this is highlighted, both nationally and locally, on an increasingly frequent basis. In this particular amendment, I am supported by the Federation of Small Businesses and many other business organisations and businesses generally.

Noble Lords will note that my amendment refers to local businesses and to the Government’s introduction of local enterprise partnerships, as referred to by my noble friend Lord Greaves a moment ago. Local enterprise partnerships are intended to sustain and invigorate businesses and the business community at local level. LEPs, as they are known, are there to fulfil that role but a key part of an LEP’s role is to ensure that small businesses have a voice. On this aspect, it is concerning that small businesses are not adequately represented on LEPs everywhere in the country. My information comes from the FSB, to which I referred, the Association of Convenience Stores and also work that I have done directly contacting businesses all throughout regions in the country. The feedback I get is somewhat patchy. Small businesses have a reasonable role in some areas and not much at all in others. I wish to highlight that strongly this afternoon. I hope that the Government will take it on board increasingly as time goes on.

Looking also at the wider aspect, on regional planning we previously had RDAs but, with the different situation we face and organisation now in place, there is a need in the Bill for clarity on how a new, sub-national approach will work. We are looking for a duty recognising the importance of business input into strategic planning and infrastructure policy by requiring local authorities to have regard to the strategic direction by the aforementioned LEPs. It is encouraging that the Minister stated on Report that the Government intend to identify LEPs as bodies that must be taken into account, and other words to that effect.

My amendment looks for more explicit elucidation of the role of LEPs within the Bill, with a formal recognition of them. There will therefore be greater clarity and a strengthening of their position and standing.

[Lord Cameron of Dillington]

My Lords, I speak to my Amendment 147M. At Second Reading, I expressed my concerns about the proposed duty to co-operate as a replacement for regional strategies. As I then said, I am not particularly enamoured with the whole idea of regions. Particularly in the south-west, where I come from, the region was far too large to be of any real relevance to people on the ground and their lives.

As I am sure we all recognise, we need some form of supralocal planning framework to deal with a whole range of issues for which it cannot and should not be left to each and every local planning authority to come up with the answer all on their own. These issues include areas such as flood defence, where water management in the upstream can impact on flooding and water quality in downstream communities. Equally, unless cross-boundary issues are addressed, pure localism could lead to fragmentation of landscapes and ecosystems. The recent national environment White Paper introduced the concept of nature improvement areas, ecological networks and local nature partnerships to rival or possibly complement local enterprise partnerships. All of these are likely to be transboundary concepts in their application.

Some form of supralocal planning is also needed for a strategic approach to renewable energy. While it is important that all local authorities work towards their own solutions for producing 15 or even 20 per cent of their energy requirements from renewable resources—many of which can be built as small, local ventures—each local authority will have different constraints and opportunities for taking different routes towards whatever technology is most suitable for their area. It will be important for everyone to see the bigger picture.

Supralocal planning will be about more than just the larger sub-regional infrastructure projects; more than just where to site bad-neighbour developments such as waste disposal facilities or even large housing developments. I am not so worried about local authorities co-operating—they always have co-operated and they always will. I do not see any real need for compulsion or threats. What they need, in my view, is a framework which sets out what they need to co-operate on—as I have already explained, this is probably wider than many councillors might assume. They need a framework that sets out who should be involved and most importantly, who should lead; the outputs and outcomes; and furthermore, having co-operated, how the results should be incorporated into local plans and local transport plans and the application of the community infrastructure levy. In that context I refer to my twin amendment on this subject under the CIL clauses, Amendment 148ZZBA, to which I speak in my current remarks.

These amendments require unitary or upper-tier authorities to prepare strategic infrastructure assessments in consultation with planning authorities and other strategic infrastructure providers, including local enterprise partnerships and local nature partnerships. I believe we need to specify these assessments as a necessary result of the duty to co-operate. It is only in this way that the duty would have a clear output that would harness the expertise and capacity of unitary and upper-tier authorities in matching investment with growth and provide a consistent framework to inform sub-regional and local plans.

I want to pause for a minute on the words “consistent framework” because I believe they are vital for any country that wishes to remain progressive. I spoke at Second Reading on the dangers of uncertainty within the planning system as a result of this Bill for everyone from businesses, through service providers to environmentalists. They all need some form of consistent framework within which to work, plan and to risk their money through investment. We cannot expect businessmen to invest and house builders to build or, for that matter, environmentalists and landscape aficionados to protect what matters if they are all working in a fog of uncertainty. If each development case has to start from scratch, only delays and increased frustration will result. I believe my amendments give clarity as to where the leadership should lie, so efforts can focus immediately on getting on with the work of strategic planning rather than risking delays because no prime mover is identified in the legislation. Obviously, it is platitudinous to say that delays are the enemy of progress but I do not believe that we can afford delays in the current economic climate. Rather, we need a coherent sense of purpose with a simple reference document as a guide for local plans and new neighbourhood plans. I believe my amendments achieve that.

[Lord Whitty]

My Lords, scattered among this vast group of amendments are four amendments of mine. The Committee will be relieved that I do not need to speak for very long on them since one of them, Amendment 147R on the marine planning side, has already been spoken to by the noble Lord, Lord Greaves, and I endorse everything he said. The other three relate to the area to which the noble Lord, Lord Cameron of Dillington, has just spoken. Amendments 148G, 148J and 148K try to sharpen up the requirement to co-operate. Much like the noble Lord, Lord Cameron, I have particular issues in mind where clearly a development, as distinct from a very high-level strategic approach, will be of interest to more than one local authority and may well be of interest to local and national authorities. I declare an interest, for example, in relation to climate change adaptation as I am a member of the Environment Agency Board. Clearly, flood arrangements need to apply to the whole catchment area, wherever the political boundaries may fall, and there may be an involvement in that of national bodies such as the Environment Agency or Natural England. On climate change mitigation, major renewable energy projects may well involve more than one authority, either because of the location of the plant itself and its connections, whether it is a wind turbine or a biogas plant or whatever, or because there are visual effects thereof which impinge on other local authority areas.

I would hope that the requirement for local authorities to co-operate will be pinned down a little more than is currently the case. My proposals to amend the new section proposed in Clause 95 would give a general subsection (1) duty to co-operate, and a clearer purpose to that, making a specific reference to sustainable development. They would also ensure that the requirement in proposed new subsection (6) to consider a “joint approach”, very much along the lines of the joint framework to which the noble Lord, Lord Cameron, referred, and “joint local development documents”, became a compulsory requirement.

I know that some local authorities are not particularly keen on those provisions being in that form in the Bill and say that they will co-operate the whole time. Regrettably, that has not always been the case in relation to flood defence provisions or to renewable energy projects, when different local authorities may have reached different conclusions coming from different angles. So it is important that the Bill itself puts a requirement so that, as far as possible—and this is mildly framed—they reach a consistent and compatible approach to these matters. This needs to be seen in the wider context of sustainable development, which the Committee debated the other night, when I was unfortunately not able to be here. If we tighten this up a little bit, there will be an extra nudge to local authorities to co-operate and take a more coherent and sensible approach to planning and projects within their areas. I therefore commend these amendments and hope that the Government can at least take the spirit of them on board.

[Lord Beecham]

My Lords, I listened with great care to the remarks of my noble friend Lady Andrews, who is no longer in her place, because I have an interest— I think that the appropriate adjective would be an historic interest—in the subject that she raised, the position of English Heritage. I served as a commissioner of English Heritage for four years, having been appointed by the noble Lord, Lord Jenkin, and removed by Mr Nicholas Ridley in due course, no doubt for good reasons. My noble friend certainly has a point about not encumbering some organisations with heavy statutory responsibilities.

On the other hand, some agencies need to be involved from the outset in the kind of strategic approach adumbrated in the Bill, and in rather broader terms in the amendment moved by the noble Lord, Lord Greaves. I have in mind, for example, the Highways Agency, which in my experience is not one of the more co-operative government agencies when it comes to its dealings with local government, or the Environment Agency or the Homes and Communities Agency. They have a better track record but, as the noble Lord, Lord Cameron, pointed out implicitly in his reference to environmental matters, they clearly have a key role to play in the development of a joint approach.

I join in inviting the Minister, in replying, to indicate the kind of bodies, though not necessarily adumbrating all of them, that might be included in proposed new Section 33A(1)(c) of the Planning and Compulsory Purchase Act 2004 under,

“prescribed or of a prescribed description”.

It would be helpful to have an indication, though not necessarily on the face of the Bill, as obviously we may need to add or change the description over time.

I also take on board the point about local enterprise partnerships made by the noble Lord, Lord Cotter, when speaking to his amendments. It is not clear to me that they have much power in any event, as presently constituted, but they should certainly be involved in consultations. Whether it is useful to have a duty to co-operate on bodies that may not have the power to do very much is perhaps arguable, but the point is worth exploring, and perhaps the Minister could enlarge a little on the role envisaged for local enterprise partnerships generally and in relation to the position under the Bill, if not today then as a matter for further consideration.

17:29

I applaud the noble Lord, Lord Greaves, for most of his amendments, which seem to open up the duty to co-operate in a constructive way. As a former chairman of the Local Government Association, I wish I could subscribe to the view that local authorities co-operate as a matter of course; it is not necessarily the case, as one or two noble Lords have mentioned. It is essential that there is something to make the duty to co-operate actually stick. I cited at Second Reading, I believe, the instance of the district council of Stevenage and its inability to secure land for housing because it is a very tightly constrained built-up authority from an adjoining authority. There was simply no way in which it could break through in the present situation. Where regional spatial strategies have gone, there is no mechanism to compel that degree of co-operation. The noble Lord, Lord McKenzie, may refer to a case closer to his heart and locality, and I am sure other noble Lords could equally cite examples of that kind.

Of course, this is not simply a question of housing. Other issues require co-operation across boundaries that may not readily be secured. The question arises: how is development to be secured? What powers need to be vested in the Secretary of State or some other body to adjudicate where authorities may have had long discussions, with or without their other partners, and nevertheless failed to reach an agreement? It cannot simply be left to that. Amendment 147P, which the noble Lord, Lord Greaves, has introduced, may offer a way forward, provided that at the end of the day a decision can emerge from some source.

Finally, I refer to the definition, again in Clause 95(1), of what constitutes a planning authority. I am not sure whether, for example, the new body in Greater Manchester—the Greater Manchester Combined Authority—would qualify in those terms as a planning authority. It might, but there may well be examples in future of authorities combining for some purposes, and it would be helpful if there were some flexibility to ensure that such bodies could be brought within the ambit of the clause. We should consider whether the clause needs to be redrafted at this stage or whether it can be left to new Clause 33A(1)(c), which refers to,

“a body, or other person, that is prescribed”—

in other words, that one deals with these on a case-by-case basis. That would be a suitable alternative.

Nevertheless, new structures may emerge at the sub-regional level, to which the noble Lord, Lord Cameron, has referred. They may need a specific reference either in the Bill or subsequently. We need to acknowledge them, extend to them the duty to co-operate, and make it enforceable or in some way justiciable. I hope the Minister will take the sense that many noble Lords have spoken. The Bill is reasonable but it would be improved by most of the amendments that the noble Lord, Lord Greaves, and other noble Lords have tabled on the duty.

[Lord Lucas]

I will get around to addressing my amendments in a moment. First, I want to say how much I agree with the noble Lord, Lord Beecham, and my noble friend Lord Greaves that there seems to be some need in this section for an ability to knock heads together. My brother first got involved in local politics when, in the local village, there was an ancient wall with a fast-growing young sycamore next to it. At the same moment, the owner of the wall was served with a notice to repair the wall where the tree was knocking it down and a tree preservation order on the tree. I will leave it to noble Lords to guess which party was in control of the district council at the time. It is hard enough to get a council to co-operate with itself, let alone two councils, particularly in the example that the noble Lord, Lord Beecham, gave of Stevenage, where what is being asked of one council it really does not want to give and the residents do not want it to give. In those circumstances, some higher ability to make the process happen is important.

I have two questions to ask my noble friend on the Front Bench. First, I do not expect him to answer immediately, but how on earth are we going to finish this Bill in the time allotted? Looking at the time that we will take discussing neighbourhood planning, all the bits on housing and all the other bits, how can we accomplish all that is to come in in effect two and a bit days? It just does not seem possible. It must have consequences for how late the House sits. It may well have consequences for what days the House sits on. Thursday appears to be available if we stretch things a bit. I do not know, but it no longer seems possible to fit it into the time that we are supposed to be fitting it into, and I would like the Government to come clean with us as to how we are going to solve this conundrum. My noble friend might come back after the Statement with a long cape and a top hat and pull the proverbial rabbit out of it. Short of that, a plain answer from him via my noble friend the Chief Whip will be much appreciated.

Lastly, I hope my noble friend will not be troubled by my two amendments. Their purpose is to draw attention to the question of how, under this Bill, you have to pick a particular place to install a facility if you want to establish a network. It does not matter much where. It will affect only one local authority, but there is a choice of several local authorities into which it could go. Two examples come to mind. One is a rail head for the transfer of freight from road to rail and vice versa. You can probably put that in quite a number of places on the network, but how are you going to decide where to put it? For a pure road transport network, given current regulations, you need to develop places where lorry drivers can sleep overnight. Again, you have a wide choice along the motorway network of where these things should be. You have to produce several of them. They are quite big facilities these days. They are not just a field with some tarmac in it. They have to be secure, they have to be lit and they will have other facilities; but how are you going to decide where on the network these areas get put? It is important for the national network that these things exist, but local authorities will have to co-operate in deciding where they should be. I see nothing in the definition of “strategic”, at the bottom of page 72, that allows such matters to be included in this part of the Bill.

[Lord McKenzie of Luton]

My Lords, we have Amendments 147FKA, 147HZA, 147HCA and 147HF in this group, which I will speak to in a moment. I will start with the question put by the noble Lord, Lord Lucas: how are we going to finish this Bill in time? I am sure the official answer will be that it depends on the usual channels and that it is not up to the Minister. However, given what we have to do, I reiterate the noble Lord’s point, which I know is shared by other noble Lords.

Our amendments are concerned with the duty to co-operate. We acknowledge that government amendments in the other place have improved the provisions, which have benefited from the input of the TCPI in particular. Notwithstanding this, we do not see the end result as providing a proper substitute for effective strategic planning for England. Many planning issues play out on a scale beyond local authority boundaries—the noble Lord, Lord Cameron of Dillington, and my noble friend Lord Whitty talked about housing, climate, biodiversity and key infrastructure issues, and the noble Lord, Lord Lucas, made a point about networks. I would say, without seeking to bring them back, whatever the difficulties with regional spatial strategies, they did provide a route to resolving these issues strategically. Is not the fundamental difficulty that the duty to co-operate will not deal with the hard issues that local authorities fall out over, particularly housing? My noble friend Lord Beecham instanced such a situation. This is an issue because there is at best a weak incentive for local planning authorities and others to comply with the duty, which is why I support the attempt of the noble Lord, Lord Greaves, in Amendment 147P to get a quasi-appeal process embedded in the arrangements.

Compliance with the duty is tested when the Planning Inspectorate takes a view on whether the local development plan is sound. It is therefore judged in retrospect. Will the Minister say more about how it is all to work? Take housing, for example. One local authority may have a need for housing that it cannot accommodate within its boundaries but which it believes could be provided in a neighbouring authority. That is not a unique situation; it is certainly one that we face locally in Luton. There might be genuine engagement around the issue but a difference of view about whether the needs should be met. The local authority with capacity might choose to accommodate the housing need of another adjoining local planning authority, or it might wish to use the capacity for a form of development that would not particularly help the restricted authority.

Is the independent examination required by Section 20 of the 2004 Act going to take a view on whether the outcome of the engagement is fair, reasonable or the most appropriate, or is it simply going to take a view on whether there has been an engagement but no meeting of minds, with the duty nevertheless satisfied? Is it not the case that there will be no mechanism in law that can require one local authority to take housing pressures generated by a neighbour? I accept the point that has been made that in many cases local authorities readily co-operate and these issues will not arise in practice, but that is not the case universally. There are real issues that the Government have to answer regarding the duty to co-operate.

We know that there is no spatial boundary and no clear relationship with LEPs, a point that has been raised by a couple of noble Lords. There is no list of key issues that co-operation should include, no key plan or outcome of the suggested co-operation. Our approach will be to support all the amendments that address these shortcomings wholly or in part, and I believe that that is the thrust of pretty much every amendment in this group, particularly those promulgated by the noble Lord, Lord Greaves.

On our own amendments, Amendment 147FKA requires an integrated transport authority and marine plan authority to be specifically included as persons to whom the duty to co-operate applies. This is a probing amendment to inquire whether there is any update of the draft list of public bodies that by order will be subject to that duty. ITAs are included on the list, as is the Marine Management Organisation, a point addressed by the noble Lord, Lord Greaves. I presume, as he outlined, that the latter covers a marine plan authority. What will the position be after the demise of PCTs, which are included in the draft list? Will GP consortia be included in it?

Amendment 147HCA adds to the activities that must be the subject of constructive engagement. They include the local transport plan and the preparation of joint infrastructure planning guidance as well as other activities that support sustainable development. Amendment 147HF expands on the requirements for the preparation of joint infrastructure planning guidance, how it should proceed and what it is to cover. Amendment 147HZA further qualifies that the active engagement should be with the objective of achieving sustainable development, consistent with the ethos that we are seeking to embed within the Bill.

I am conscious that the Minister might argue that a lot of these matters are going to be fleshed out in the NPPF. When we debated this last week, though, there was no enthusiasm for the Government to make this a statutory document. It is therefore just guidance, and anyway the NPPF is not supposed to contain anything like the level of detail necessary to ensure effective strategic co-operation. Generic planning policy does not amount to a spatial plan that shows where things go and how they relate to each other.

17:45

On the amendments in this group, we support the noble Lord, Lord Greaves, in his Amendments 147FJ and 147FK, my noble friend Lord Whitty in Amendment 147G and the noble Lord, Lord Greaves, in his Amendment 147GA as well as his Amendments 147HA, 147HB and 147HC, expanding the activities to not only the preparation but the implementation of development plans. As I said earlier, we support the noble Lord’s amendment that seeks to put in place a right for someone to make representations to the Secretary of State if someone is considered not to be complying with the duty to co-operate; I think it is Amendment 147P.

We support the amendment of the noble Lord, Lord Cameron of Dillington, that raises the issue of strategic infrastructure assessment, reinforcing the point that there are many issues that simply cannot be settled in bilateral or slightly expanded discussions and arrangements between individual authorities. There are more amendments in this group that we would support; I will not flesh them out in detail, given the time, but I have indicated the thrust of the amendments that we support.

I believe that my noble friend Lady Andrews has raised an important question about English Heritage but also more generally about what that duty would entail. The noble Lord, Lord Cotter, has focused on small business and LEPs. My noble friend Lord Beecham touched on the point that at the moment LEPs are a bit of an amorphous arrangement. It is not very clear what their status is—are they an incorporated body or an unincorporated body? The extent to which they are actually a person in law is also not clear. These matters would be helped if that were made clearer. The noble Lord, Lord Cameron, mentioned issues of CIL, which we will come on to shortly and hopefully have an interesting debate on.

[Lord Taylor of Holbeach]

My Lords, I begin by thanking my noble friend Lord Lucas for raising the whole question of rabbits out of hats. I think that the answer was given to him by the noble Lord, Lord McKenzie of Luton: a question of time is a question for the usual channels. They will indeed ensure that we achieve our aspirations for the Bill—I am certainly determined to do so. The way that the Committee has dealt with this enormous group of amendments is extremely encouraging and suggests that we will be able to meet our task, and I thank noble Lords for agreeing to this grouping.

This is an important part of the Bill. The duty to co-operate will require local councils and other bodies to work together actively and on an on-going basis to ensure that strategic issues are effectively addressed in local and marine plans. The duty will be a key element of the Government’s proposals for strategic planning once the regional strategies are abolished. The noble Lord, Lord McKenzie, pointed to the fact that some issues are on a substantial scale and the region seems the most likely vehicle for their discussion. From my own experience, which is similar to his as we both live on the borders of regions, one of the most difficult aspects of planning on a regional basis in my part of the world was the very fact that the prime focus of economic activity in the area—namely, Peterborough—was in a different region, and the construction of a road between Boston and Peterborough required an enormous amount of convoluted negotiations in order to achieve this objective. In my view, and I have expressed this in debate before, large units create much more inflexible boundaries than do small, active units and this duty to co-operate ensures that the appropriate level of scale can be brought to bear on any particular aspect of planning strategy.

These authorities will be working alongside incentives such as the New Homes Bonus and the reformed Community Infrastructure, as has been said. It will act as a strong driver to change the behaviour of councils and other bodies. We have worked closely with a wide range of external bodies whose advice and expert guidance has helped us shape the duty that we are debating today.

As I move through the amendments and the comments made in the debate, I will do my best to answer the various points. Amendment 147FK seeks to remove the enabling power to prescribe bodies that will be subject to the duty to co-operate. That would just leave local and county councils as bodies that are subject to the duty. We believe this is not enough to achieve the degree of co-operation that is needed to ensure that local and marine plans address strategic matters effectively. Bodies such as the Environment Agency and the Homes and Communities Agency play a critical role on strategic issues and that is why we intend to prescribe them along with others which have an important contribution to make.

As I have mentioned, the list of prescribed bodies will include, for example, the Environment Agency, Natural England, the Home and Communities Agency and the integrated transport authorities. The draft regulations have been placed in the House Library and we will be consulting on them during the summer. I might say in her absence to the noble Baroness, Lady Andrews, that we all appreciate the work of English Heritage but it has an ongoing engagement with local authorities on the whole issue of the preservation of heritage and historic buildings. The expectation under this Bill is that this duty should be applied in a reasonable and proportionate way but should be part and parcel of the existing ongoing relationship between these national bodies and the local authorities concerned.

The noble Lord, Lord Beecham, asked about the Greater Manchester Combined Authority, which we jointly saw through in the Moses Room one afternoon. In effect, each of the local authorities is indeed a planning authority. The Greater Manchester Combined Authority does not have powers as a planning authority but, because it is combining in its activities, it can serve as an exemplar of a duty to co-operate. Indeed, it is a very fine example of that activity. The list is in the House Library and we intend to consult on the regulations over the summer months.

Amendments 147FJ, 147FL and 147FKA seek to add marine planning authorities on the face of the Bill. Amendment 147FK also seeks to add integrated transport authorities but I have covered that point. Amendment 147R seeks to amend the Marine and Coastal Access Act 2009, with which my noble friend Lord Greaves and I were intimately involved, to ensure that the Marine Management Organisation has regard to the duty to co-operate when preparing marine plans. It would also require the Marine Management Organisation to demonstrate compliance with the duty as part of the independent investigation process for marine plans. I can assure my noble friend Lord Greaves and, although the noble Lord, Lord Whitty, is not in his place at the moment, I would like to reassure him, too, that the duty to co-operate will indeed include the marine areas for coastal authorities.

We appreciate the importance of co-operation in relation to preparing marine plans and they are included in the activities on which co-operation is expected under the duty. That builds on current practice where the MMO has consulted widely, including with local councils and organisations like the Environment Agency in preparing the East Inshore and East Offshore Plans. The noble Lord, Lord Cameron of Dillington, will understand that there is a duty under the Flood and Water Management Act, which we considered fairly recently, for co-operation, not only within local authorities but with the Environment Agency, to make sure that proper flood plans are prepared. This is another example of this system working in practice.

We appreciate the important role of the MMO and integrated transport authorities under the duty to co-operate and that is why we have included them in the list of bodies that will be subject to the duty. As a result, Amendments 147FJ, 147FL and 147FKA are unnecessary. With regard to Amendment 147R, the first part of the amendment is also unnecessary because Clause 95 already applies marine planning. It would also require the MMO to demonstrate compliance with the duty as part of the independent investigation process. This process works very differently from the independent examination procedure for local plans, not least because of the inability to make any binding proposals. Therefore, we do not consider this amendment would assist in ensuring compliance with the duty.

Turning to sustainable development, which was mentioned by a number of noble Lords, Amendment 147G seeks to ensure that the preparation of local plans and related activities enables the planning of sustainable development. Amendment 147HZA aims to ensure that the engagement between councils and other bodies will achieve sustainable development. We share a commitment to sustainable development which underlies these. The Planning and Compulsory Purchase Act 2004 includes a duty on councils preparing local plans to contribute to the achievement of sustainable development. That is why we have included sustainable development in the heading of Clause 95 and put it at the heart of strategic matters that we expect to be addressed in local plans.

The duty to co-operate will ensure that councils and other bodies plan for sustainable development by engaging actively and on an ongoing basis on strategic planning matters as they prepare local plans. We think this addresses the concerns but we will look again at it and see whether we have gone far enough.

On the activities that are covered by the duty to co-operate, the noble Lord, Lord McKenzie of Luton, mentioned housing especially as being a big issue. We are going on to discuss housing in the next group of amendments. Amendments 147HA, 147HB and 147HC seek to extend the scope of activities to which the duty applies to include the implementation of local and marine plans as well as their preparation. We appreciate and share the desire to ensure that the strategic priorities of local and marine plans are implemented but we believe that the requirement to co-operate on the preparation of plans is a powerful one. These plans set up-to-date frameworks, which will be implemented by councils through the development management system and the delivery of sites in their ownership. Plans will also set the framework for the investment priorities of other bodies, which will be set out in their corporate plans. The amendment is therefore considered unnecessary.

18:00

Amendment 147HE seeks to ensure that the scope of activities on which co-operation is required is not limited to planning documents, and that it also includes documents that affect the development and use of land. Amendment 147HCA seeks to add local transport plans and joint infrastructure planning guidance to the list of activities to which the duty applies. The duty to co-operate covers local development documents, which, under Section 17(3) of the 2004 Act, include all documents that set out the authority’s policies relating to the development and use of land in its area. This may include transport, infrastructure and a range of other strategic issues. These amendments are therefore unnecessary.

Amendment 147HD seeks to narrow the scope of activities to be covered by the duty to co-operate. It is important to ensure that the scope is sufficiently broad to cover activities that could reasonably be considered to prepare the way for local and marine plans.

We now come on to LEPs. There was an interesting challenge from the noble Lord, Lord Greaves, who asked: what is the definition of an LEP? LEPs are described thus in the draft local planning regulations:

“An LEP is recognised by the Secretary of State”.

I suppose that is a succinct and self-referential description of an LEP. I am sure all noble Lords will recognise one when they come across one.

[Lord Beecham]

The Minister has artfully described what an LEP is. Can he tell us what an LEP does? That is the thrust of the question.

[Lord Taylor of Holbeach]

What an LEP does is a subject for another debate altogether. However, it is well worth saying that it brings these local authorities, working together under a duty to co-operate in general terms, together with the local business community for the benefit of that community’s development in all the ways that we wish to see—economic, social and environmental. That, really, is what an LEP does.

[Lord Beecham]

May I press the Minister a little further? Does an LEP have powers and resources to do these things, or is it a forum for discussion? That has value but it is not quite the same as having functions of the kind I have just mentioned.

[Lord Taylor of Holbeach]

My Lords, what I am describing is exactly the vehicle through which power is exercised—the duty to co-operate and the construction of local plans. That is exactly what we are engaged in. The interface between the LEP and this process is important. We may have accidentally entered into something that elaborates, I hope, on the force of the Government’s argument in this area. My noble friend Lord Cotter was a little concerned that the membership of the boards of LEPs was perhaps not fully representative. We are not telling LEPs who they should put on their boards, but we expect board members to be drawn from a breadth of experience—from small enterprises through to large businesses and representing key sectors in their areas. My experience of the LEP that covers my area seems to bear this out through the individuals who have got involved and engaged with it.

It is appreciated that the aim of the amendments in this group is to ensure effective co-operation on local economic development issues. We share that objective but believe that it is better to give LEPs the space to innovate, rather than to impose a national statutory model on them. Effective co-operation on economic development issues can be achieved through an enabling power, which requires bodies that are subject to the duty to have regard to the activities of other bodies when preparing their local plans and related activities. We intend to prescribe local enterprise partnerships, which will represent local business interests in local planning regulations, for this purpose. We have placed the draft regulations in the House Library and will consult on them later this month. The approach that we are taking will support growth and strengthen local economic co-operation under the duty, but it will leave LEPs the freedom to innovate and work flexibly.

[Lord Greaves]

I hear what my noble friend says with interest. First, will he reflect on having just described LEPs as representing business interests? Surely the whole purpose of LEPs is that they are a partnership between business and local authorities, and therefore represent both those interests, not just one of them. Secondly, could he explain how merely putting a duty on LEPs to co-operate and promote co-operation amounts to a rigid national statutory framework?

[Lord Taylor of Holbeach]

I am sorry if I misled the Committee. I am well aware that LEPs are joint bodies, representing the interests of local government and business. I think that is what I described earlier. If the syntax of what I just said implied that that was not the case, I withdraw that. However, I think I said that we intend to prescribe local enterprise partnerships, which will represent local business interests in local planning regulations for this purpose. My point is that they represent business interests as well as community interests.

There are several amendments that I would loosely describe under the heading “Engagement under the duty to co-operate”. They include Amendments 147J, 147K, 147HP, 147HQ and 147JA. They seek to strengthen the engagement required under the duty to co-operate by requiring actions, rather than giving councils and bodies the flexibility to consider whether to undertake these actions. I refer again to the contribution of the noble Lord, Lord Cameron of Dillington. The key point is that strategic planning needs to be flexible to allow councils to decide how to co-operate effectively. This will depend on the issues that they face. As I have already described and as the noble Lord himself said, flood and water management requires a totally different combination of interests from, say, highways or housing policy, which are founded in different ways. That is the great advantage of this structure. Prescribing a specific outcome, such as a joint infrastructure assessment, would not allow for the flexibility that is needed to make this an effective vehicle.

Moving on, Amendments 147L and 147M address similar concerns about engagement. They seek to establish a specific document—a joint strategic infrastructure assessment—to be produced as evidence of effective engagement under the duty. Amendment 147HF addresses similar joint infrastructure planning guidance, which it implies should be included in the activities to which the duty applies. It sets specific requirements in terms of the purpose and content of these documents. The amendment seeks the involvement of councils that are part of a local enterprise partnership and requires that the objective of the bodies preparing these documents should be the achievement of sustainable development.

We share the objective of having a duty to co-operate that will ensure effective co-operation by councils and other bodies. However, strategic planning is not a one-size-fits-all approach. It needs to be a flexible process led by councils that allows them to respond to particular issues and local circumstances. Flexibility is essential to allow them to decide how best to work to serve their local communities, businesses and interested parties. We agree that strategic infrastructure plays a critical role in supporting the delivery of economic growth and housing, and that is why we have included it in the Bill.

Clause 95 requires councils to consider whether to work jointly on policies and activities related to strategic cross-boundary and county issues. It gives local planning authorities and county councils flexibility on how to fulfil this responsibility, rather than forcing them to produce specific documents. That strikes the right balance by ensuring that co-operation will result in effective local plans and by strengthening accountability to local communities, businesses and interested parties.

Councils that are part of a local enterprise partnership will already be subject to the duty to co-operate, and there is no need to refer to them separately. I have received assistance for the noble Lord, Lord Beecham, on the functions of LEPs. We do not want to be precise on their roles or functions. They should follow local priorities that they and their communities consider important. We want LEPs to leave development proposals to local enterprise. That is their task and their role. They are not public bodies and are not reliant on grant funding, but they provide a forum and an agency to start up funding, if that is part and parcel of the proposals. LEPs are therefore facilitators rather than providers, if I may describe them in that way.

Amendment 147J would also remove the requirement on councils and other bodies to consult on agreements on joint working approaches. However, we believe that this is an important element of co-operation in local planning that will allow all the relevant parties to suggest the most effective ways of working.

A number of amendments in the group seek to describe strategic matters, and would delete the reference to sustainable development and focus on development that impacts on at least two planning areas and projects forming part of a strategic network. Amendment 147HM focuses on development needs that cannot be accommodated within one planning area and the development of potential strategic importance. One might say that the issue of the housing requirements of Stevenage that the noble Lord, Lord McKenzie, brought to our attention is relevant.

It is appreciated that there are many ways in which strategic matters could be defined for the purpose of the duty to co-operate. We recognise that the concern behind these amendments is to ensure that the duty effectively captures strategic matters that affect more than one authority. We share this concern but believe that the duty should capture strategic matters in a way that is flexible and allows councils to respond to particular local circumstances. We wish to retain the reference to sustainable development because of the importance that we attach to it, as I highlighted earlier.

Some concern was expressed about statutory guidance. Amendment 147N deletes the requirement on councils and other bodies to have regard to any guidance that the Secretary of State may issue about how the duty to co-operate should be complied with. Such guidance, should the Secretary of State decide that it is necessary, will be important in helping councils and other bodies to understand how to discharge their responsibilities under the duty to co-operate. It will therefore be important that they have regard to it.

18:15

Amendment 147P makes provision for representations to be made to the Secretary of State regarding compliance with the duty to co-operate and provides the Secretary of State with very broad powers of direction. A linked amendment, Amendment 148ZZZZBA, removes the sanction of failing the local plan examination if an inspector finds that a council has not complied sufficiently with the duty. We do not think that this approach is proportionate. The requirement for compliance with the duty to co-operate when making local plans is coupled with a powerful sanction. If councils cannot demonstrate that they have satisfactorily complied with the duty, their local plans may not pass the independent examination. In addition, local planning regulations will require councils to report progress on compliance against the duty to co-operate. This strikes the right balance. We do not think that the direction-making powers proposed are necessary—nor would they be consistent with our aspirations for localism.

[Lord Beecham]

To take the Stevenage situation again as an example—there will be others—one authority may say, “We are not going to have housing in our borough to accommodate you”. There are two distinct points of view, and there is no real sanction. If a plan does not get approved, that suits the authority that wants to keep the status quo. Therefore, there is no recourse for the Stevenages of this world in that situation. Is that not the problem? There will be no co-operation and no plan, and there will be no solution to the problems that one of the authorities might have.

[Lord Taylor of Holbeach]

The process of co-operative working actually requires co-operation and a sense of shared purpose in serving the communities that the local authorities represent. There may well be tensions. There may well be situations where there is difficulty in seeking agreement. The law will place on local authorities a duty to seek to resolve these differences. If they show that they have not considered the outcomes of a co-operative process in formulating their local plans, those plans will be rejected. There is, therefore, gentle coercion. However, as with all circumstances where power is being devolved down to local authorities, the public interest is being vested in those democratically elected bodies—namely, the local authorities concerned. That is the purpose of this legislation. I do not need to lecture the noble Lord, Lord Beecham, on the virtues of democracy and the accountability that comes with it. What is missing is the sense that Whitehall is looming large over the whole process and is seeking to put pressure to achieve a particular outcome through this process. It is important to emphasise that.

[Lord McKenzie of Luton]

The noble Lord has been generous in speaking to all the amendments, but I want to be clear on the housing issue that the noble Lord, Lord Beecham, described. We have a similar issue in Luton. One authority with a desperate need for affordable housing that cannot be accommodated within the borough may look across the boundary and see opportunities there, but the other authority may take the view, “We don’t want any of this affordable housing encroaching upon our villages”. How is that situation to be resolved? You might have one authority that has genuinely gone through a consultation exercise, has taken a view, and has said, “We don’t want that form of housing here”. Another authority may have a desperate need for that housing. When the soundness of the plan is due to be judged, will the inspector involved just see whether or not the processes and so on have complied with what is required under the co-operation duty, or will there be some value judgment that the inspector can make, and say, “In all the circumstances, this was an outrageous position for you to take, and you have therefore not complied with the duty to co-operate”?

[Lord Taylor of Holbeach]

It may be easier to consider the detail of the point that the noble Lord has raised when we come to discuss the next series of amendments. In general terms, there will be evaluations not just of the outcome of the local plan but of the way in which evidence has been collected together in order to provide that plan. That is perhaps a safeguard that we might have. We will have an opportunity to talk about housing in particular, so I hope that the noble Lord will forgive me if I seek to move on—I have been talking a long time, but there were a lot of amendments.

In winding up, let me deal with Amendment 147HN, which seeks to define planning documents by referring to town and country planning and marine planning legislation. However, the term “planning documents” is not used in the provision. As it stands, the duty covers all local planning authority documents that set out their policies in relation to the development and use of land. It also covers marine plans. This amendment is therefore unnecessary.

Amendment 147LA, which seeks to require the bodies subject to the duty to co-operate to have regard to the activities of prescribed bodies, is also unnecessary as this is already provided for in Clause 95, in new Section 33A(2)(b).

I now come to an exciting point in bold type that says that Amendment 147Q addresses a typographical error in Clause 95. We are happy to accept this amendment when it is moved by the noble Lord. I hope that noble Lords will remind me when that particular amendment is called.

I will close by saying that I am satisfied that the duty to co-operate will ensure that local councils, county councils and other bodies work together in the spirit of constructive and active dialogue. That will maximise effective working in the preparation of local and marine plans in relation to strategic cross-boundary issues and county matters. With these reassurances, I hope that the noble Lords are willing to withdraw the amendments.

[Lord Lucas]

My Lords, perhaps the solution to the difficulty of the noble Lord, Lord McKenzie of Luton, is to reach back into the history of local government and reinstate single combat between neighbouring chiefs, who would then be seen to be earning their salaries at least.

In that great Gladstonian oration that we have just heard, I missed the answer to my question. How does the wording in Clause 95 permit the duty to cover the sort of situation that I was discussing, where there is a national network to be looked after and it needs to be discovered where the burden of that falls between various local authorities? I do not see how that is dealt with. I would be happy if the noble Lord would write to me between now and Report.

[Lord Taylor of Holbeach]

I will certainly do that.

[Lord Greaves]

My Lords, I thank the Minister for the great care that he has taken in responding to these amendments. We might get on a bit quicker on one or two of them if the people providing him with his briefings understood that, often in Committee in this House, we put down “leave out” amendments in order to find out what things mean and how they will work, rather than delete them. We are not actually always trying to get rid of them. I realise that sometimes they have to guess which it is, but that is the case.

There is a difference of approach. Some of us would like to have a much clearer high-level duty placed on local authorities and other bodies and far less detailed regulations on how to do it. Some of us would like to rely on that, rather than have a weaker duty and then masses of detailed regulations. The duty to co-operate is a classic case of that. On the central issue of whether the duty in this part of the Bill is as strong as it needs to be, some further discussion will be required before we are finished with the Bill. There is a feeling in quite a bit of the Committee that perhaps it would be a good thing if we could find ways of strengthening the duty a bit further without resulting in even more reams of detailed rules and regulations. I hope that the Minister would be open to discussion of that, in so far as we are able to have discussions over the summer.

On that basis, I thank the Minister and everybody who took part in this debate, and I beg leave to withdraw Amendment 147FJ.

Amendment 147FJ withdrawn.

Amendments A147FK to A147P not moved.

Amendment 147Q

Moved by

[Lord Greaves]

147Q: Clause 95, page 73, line 38, leave out “(1)(b)” and insert “(1)(c)”

Amendment 147Q agreed.

Amendment 147R not moved.

Clause 95, as amended, agreed.

House resumed.

Southern Cross Care Homes

Tuesday 12th July 2011 Lords Chamber

Statement

18:27

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, I shall now repeat as a Statement the response given earlier today by my honourable friend the Minister for Care Services to an Urgent Question tabled in another place on Southern Cross Healthcare. The response was as follows.

“As the House will be aware, Southern Cross has been working with its landlords and lenders to agree a restructuring process to secure a viable way forward for the future. The Government have made clear, as I set out to the House on 16 June, that our overriding concern is the welfare and safety of the 31,000 residents in Southern Cross’s care, and we expect all parties to work together to secure a consensual, solvent restructuring of the business that meets their collective responsibility to secure the welfare and care of those residents.

When I last updated the House on 16 June, Southern Cross, its landlords and its lenders had announced the previous day an agreement to work through, over a period of four months, arrangements for a consensual, solvent restructuring. Yesterday’s announcement was one step in that ongoing process, and discussions continue to resolve the remaining steps.

I know that there has been some concern about what yesterday’s statement may mean, and that residents and their families—as well as staff—are anxious to know what will happen. Let me repeat the assurance I have given to this House before: whatever the outcome, no one will find themselves homeless or without care. We will not stand by and let that happen. We have worked and will continue to work with the Association of Directors of Adult Social Services, the Local Government Association, the Care Quality Commission and others to ensure that there is an effective response to any potential disruption to the continuity of care, and that all residents are protected. A consensual restructuring that assures a smooth transition to new arrangements will mean that those contingency arrangements will not be needed, and that is what we want to see.

Let me reassure the House on some of the questions that I know honourable Members may have. First, yesterday’s announcement—which stated that at the end of the restructuring process the Southern Cross corporate entity would cease to exist—has no effect on the provision of care or the operation of care homes. Southern Cross remains in operation, and will continue to operate all its care homes until any transfer to new operators takes place.

Secondly, the transfer of care homes to alternative operators will be a managed process that ensures the continuity of services. Yesterday’s statement makes clear that care home staff will transfer on their current terms, and the service that residents receive should be unaffected by the transfer. All parties involved in the negotiations have given a clear commitment that continuity of care will be paramount in this process. Local authorities are already working to ensure that they can assist in the smooth transfer of arrangements of homes in their area, and the department has been working with ADASS and the LGA to support that.

Thirdly, no transfer will take place without the new operator being approved and registered by the Care Quality Commission. There has been speculation that companies with no experience in the care sector will take over the running of homes. That will not happen. Alternative operators will need to be reputable and experienced companies which are able to satisfy the CQC that they are capable of delivering high quality care and meeting all regulatory standards. The CQC will not drop its standards in ensuring that requirements are met. I understand that each of Southern Cross’s landlords are settling their arrangements as to which care home operator to work with, and that is an essential part of the discussions that are ongoing. That will cover all landlords, so that there is a clear way forward for all homes.

Finally, I can assure the House that the Care Quality Commission has been working with Southern Cross, landlords and other stakeholders for several months to ensure the smooth transition of services and has processes to deal with re-registration and undertake the essential checks needed as a priority. It is having ongoing conversations with Southern Cross, landlords and other providers on the timing of applications.

Our priority as a Government is to ensure that the current problems with Southern Cross are resolved and that a sustainable way forward can be secured. But as the Prime Minister has previously stated to the House, we are also clear that we will take action for the future to ensure there is proper oversight of the social care market. The Health and Social Care Bill allows us to extend to social care—if we decide that it is needed—the financial regulatory regime we are putting in place in the NHS. However, regulation is not the only solution. We will approach this in a measured way and as part of wider reform in the social care market to ensure that we do not face a similar problem in future.

I said that yesterday’s statement from Southern Cross was one step in an ongoing process over the coming weeks and months. Until all future arrangements are settled, Southern Cross will continue to operate and provide care in all its care homes. It is only at the end of the process, when all transfer arrangements have been completed, that Southern Cross as an entity will cease to exist. By then, all homes will have a clear plan for future operation and for the continuity of services into the future.

What we now want to see is a swift conclusion to these important discussions, to offer reassurance and certainty to residents and their families. I want to reassure the House that the Department of Health has been and remains fully engaged, and senior officials are in daily contact with all the parties to ensure that the interests of residents are at the forefront of all discussions. The Government will continue to keep close contact with all involved in the process, and I will continue to keep the House informed”.

My Lords, that concludes the Statement.

18:35

[Baroness Thornton]

My Lords, I thank the Minister for repeating the Statement. Although we had a discussion about Southern Cross two weeks ago, it is an ongoing sorry tale which seems to get worse by the day for the residents, their families and the staff of Southern Cross. I think the Minister will accept that Southern Cross’s announcement yesterday that the responsibility for managing the 752 homes will pass back to the 80 landlords who own them will almost certainly cause a vacuum that is bound to be the source of great uncertainty and anxiety among residents and their families.

I am reassured that the Government are very active on the matter, but there are questions that we need to have answered. Southern Cross is not being informative and there are things that we need to know about the situation. My questions concern what happens next and how the Government will manage this difficult situation. Can the Government publish a list of all 80 landlords? I have read in the media rumours that some landlords still have to be identified. Yesterday, it was further announced that control of 250 of the homes would be handed back to their landlords immediately. What does immediately mean? Does it mean tomorrow? What will happen? What is the process?

The House needs to know which homes those are and who is running them. Is a list available? It is certainly not available on the Southern Cross website. It is also likely that many of the landlords will have little or no experience of running care homes. For example, does the Minister have any information on the intentions of property-owning companies such as London & Regional, which owns 90 Southern Cross homes, or Prestbury, which owns 21? In the previous Statement in the House, the Minister assured the House, as he has again, that the Association of Directors of Adult Social Services is trying to support its members, who will have a key role in ensuring that the new operating companies are able to provide good quality care and that they know how to perform financial stress tests to ensure that their business models are sound. What support and assistance are the Government providing to ADASS?

I read from my press cuts that Downing Street has said that public money will be used to ensure that those in the homes can stay. Is that true and how would it be achieved? Would money be made available through local authorities? If the Government intend to provide additional resources, they will need to do so to hard-pressed local authorities if they are expected to help. What advice are the Government giving to local authorities if the property company or landlord for any of the home-owning companies is offshore?

I am reassured that new operators taking control of the homes will need to be registered with the Care Quality Commission and that plans are in place to ensure that that happens, but given the pressure on the CQC, I wonder how it will be able to achieve that within the timescales that we seem to be facing. Will the Government make more resources available to the CQC to deal with that worsening situation?

What can the Minister tell the House about the terms and conditions of the 44,000 employees of Southern Cross? Does the Minister know how many homes are likely to close? What is the timetable for such closures likely to be? What will happen to those residents? We know that, for the very old and very vulnerable, a move such as that can result in their death or hospitalisation. That is an extremely distressing matter.

Turning to the care home sector more generally, it would seem that although Southern Cross is definitely the most urgent, it is not alone in the sector in its struggles. The UK’s second largest care home provider, Four Seasons Healthcare, has amassed debts of £730 million that have to be repaid by September 2012. What will happen to the Lloyds properties, as this landlord is in administration? NHP, which owns 250 homes, is at a standstill with its bondholder. Indeed, my honourable friend John Speller MP, in his question in another place to the Secretary of State for Business, Innovation and Skills, pointed out that it is not just old people we are talking about here. For example, Craegmoor provides residential care services for adults with mental health problems or learning disabilities. It has 3,300 places, 174 care homes and a debt of £37.8 million. Care Principles provides similar services. It has 450 places in 17 care homes and secure hospitals; its debt is £45.77 million. Care UK runs care homes and services for the elderly. It has 3,100 places in 57 homes and a debt of £127 million.

Clearly these problems have to be addressed. I do not expect the Minister to answer questions about those homes. However, I am asking the Minister whether there is a plan and, if so, what is it? It seems to me that Southern Cross is actually the beginning of this process and solving its problems may not be sufficient.

18:41

[Earl Howe]

My Lords, I am grateful to the noble Baroness for her comments and questions. She asked a number of the latter. I hope I can answer most of them. It is important to appreciate that this is a managed process. The announcement that the Government made last month of a four-month restructuring window still applies, and we are at the first major stage of that process. Therefore, anxieties about the welfare of residents are misplaced because this is not a case of the collapse of Southern Cross. It is still very much a managed and solvent restructuring that is going on.

The noble Baroness asked me about the landlords. It is not for the Government to liaise with all the landlords directly but they are all represented on the restructuring committee, working to develop a plan for the future. Local authorities and the CQC will link as necessary with all the landlords as they take through their plans for the future management of homes. I am advised that the CQC understands that the Southern Cross landlords’ committee wants the handover of care home properties to take place at the end of September. The CQC is co-ordinating its activities to ensure that regulation does not prevent the handover across England. I hope that reassures the noble Baroness that nothing is going to happen tomorrow. It is very much part of a planned and structured process.

The noble Baroness asked about care homes that were in debt. Many companies, in all sectors, may have some degree of debt, quite obviously—this is a normal part of business, not necessarily a concern. We are clear that Southern Cross’s particular business model—not owning but leasing nearly all its properties—is a unique model and that is what has given rise to its particular problems.

The noble Baroness asked about the consequences of the landlords taking back their properties. The department is very clear that it expects all parties to maintain service continuity and quality of care while the restructuring process is ongoing. Our principal concern, as I have said, is for the safety and well-being of the residents. CQC will pay particular attention to any care homes where there is a concern that quality may be at risk or inadequate. It does have the resources to do this. It has indicated that there is not a problem in that sense. CQC has regular dialogue with Southern Cross at corporate level in addition to the attention it gives to individual services. We have emphasised to CQC the importance of ensuring that Southern Cross homes continue to comply with regulations and safety and quality requirements. Of course, we expect CQC to take the necessary action if it finds, for example, that staff reductions are affecting safety and quality of services.

The noble Baroness asked about government money for Southern Cross. Southern Cross is not asking for a bailout. It is looking to resolve its problems and it is for the company, its landlords and those with an interest in the business to put in place a plan that stabilises ownership and operation of the care homes. That process is happening and we must let it continue.

A number of providers that will acquire Southern Cross homes are already registered with the CQC as care providers in their own right, such as Four Seasons. There are established processes in place to allow these providers to extend their current registration to take on additional care homes. That process, assuming that it occurs, is relatively straightforward. Providers who are not known to or registered with the CQC will require a full application that will be subject to full scrutiny and a determination of fitness to provide the service. This cannot be a case of companies registered overseas suddenly becoming care home operators—that will not happen. Any new operator must demonstrate that they are fit and proper people to conduct this type of business and prove that to the CQC. Each landlord will be required to ensure that it has arrangements with a reputable and capable operator which can meet the CQC’s requirements. This is what the companies are now resolving as restructuring discussions continue.

It is also important to emphasise that while the CQC is committed to ensuring continuity of care, it will not lower the regulatory bar or reduce the rigour of registration. CQC’s principal concern is the safety of service users and it will not compromise on the standards that are required. At the same time, we expect that local authorities will ensure that any transfer or new arrangement to provide care for residents takes place smoothly and with continuity of care for service users assured. We are talking to the Association of Directors of Adult Social Services, the Local Government Association and, of course, the CQC, as I have mentioned, to ensure that robust local arrangements are in place.

Finally, the noble Baroness asked about the staff and their legal position. This is not a matter that the department can comment on directly, but staff are protected by the relevant employment law. I understand that Southern Cross has undertaken in a letter to care staff that they will be transferred under their existing terms to new operators under TUPE. That is our understanding of the position.

[Earl Attlee]

My Lords, perhaps I may remind the House of the benefits of short questions which will enable my noble friend the Minister to answer as many questions as possible.

18:48

[Baroness Barker]

My Lords, first, I wish to return to the issue that I raised with the Minister on 16 June when we last discussed this matter: the inequalities in geographical distribution of the problem. In particular, will help be given to local authorities in the north-east, where Southern Cross was the major provider? There are not vast numbers of other providers and the problem is far more acute because there is no surplus residential care into which people can be quickly fitted.

Secondly, will the department put in place a monitoring programme for all the residents of Southern Cross, to be carried out over the next two years to monitor the welfare of the individuals who are in the midst of this crisis? The noble Baroness, Lady Thornton, mentioned a fact that has been borne out by research over many years, which is that when people in residential care are subject to stress of this kind it has a very detrimental effect on their health. I wonder whether, in the midst of this, the Government might take that duty upon themselves.

[Earl Howe]

My clear understanding is that many homes will continue in operation with the same staff, and that the residents of those homes will therefore not be required to move. We hope most earnestly that no resident of any Southern Cross care home will be required to move. I am not aware of the precise situation in the north-east of England, but my noble friend’s comments suggest to me that there is no undue cause for concern in that part of the country. The plan certainly would be, as far as possible, to maintain the residents in their current homes, and they should notice no difference in the quality of care that they are receiving.

To the extent that residents are required to move—and as I have said, we hope that that will not be necessary—yes, of course there will have to be a process of monitoring the welfare of those people in those circumstances. The duty to do that falls primarily on local authorities, where they are the commissioner of the care, but I have absolutely no doubt that the CQC will wish to add to that oversight. I believe that it is too soon to speculate—because we are not sufficiently far down the restructuring process—on the extent to which residents will be disrupted, but the number of homes that do not in the end prove viable as businesses will emerge in due course.

[Lord Campbell-Savours]

My Lords, first, I noticed that the noble Earl did not respond to the question asked by my noble friend on the publication of the names of the property companies that stand behind many of these homes. Will a special regime be introduced by the CQC of random unannounced visits for homes managed by property companies? It is important that we get an assurance that it will carry out random unannounced visits as against other forms of visits which are possible. Secondly, given that Regulation 13 of the CQC registration regulations 2009 requires a service provider to,

“take all reasonable steps to carry on the regulated activity in such a manner as to ensure the financial viability”,

of the operation, who then is going to monitor compliance with Regulation 13? Should we not now have—set and enshrined in some regulatory arrangement —some authority given the power to seek to secure compliance, or are we simply going to leave it to an offence, as the noble Earl has referred to in an Answer he has given to me, whereby no one is actually monitoring these matters?

[Earl Howe]

First of all, the CQC is an independent body; it is not under the jurisdiction of Ministers, and it must be free to organise itself as it sees fit. I cannot undertake on its behalf that it will perform random unannounced visits. It does, however, do that as a matter of course, and it generally does so on a risk-based basis so it would surprise me if, where the CQC saw that there was an enhanced risk to residents, it did not make it its business to perform inspections. Looking ahead into the medium term, should the Health and Social Care Bill pass through Parliament, as the Government propose, local HealthWatch will be in a position to enter and view care homes, as LINks are at the moment, but I believe that HealthWatch will be, in most areas at least, in a better position to undertake such inspections on a random basis.

The financial liability will of course not be the province of HealthWatch, but any concerns about the welfare of residents would be subject to the powers of HealthWatch to refer up to HealthWatch England, and in so doing, through HealthWatch England to the CQC. The financial viability of care homes is of course a live issue. I have commented on this in the past, and we are certainly considering whether Clause 57 of the Health and Social Care Bill could be used to extend the regulatory regime that we are proposing for the NHS to care homes. That is something that we will need to discuss because it would amount to a regulatory burden on care homes. Nevertheless, I do not belittle the issue. My ministerial colleagues in the Department for Business, Innovation and Skills are looking at the issue of private bodies that provide publicly funded services and whether there are implications in the sense that the noble Lord has indicated.

[Lord Elystan-Morgan]

My Lords, has the Minister considered the legal question of fraudulent trading, which seems to be apposite not only to the case of Southern Cross, but indeed—according to the comments made by the noble Baroness, Lady Thornton—to other care companies as well? Does the Minister recollect that exactly 50 years ago, in a case called Wellfield, this House, sitting in its judicial capacity, defined fraudulent trading as a situation where the directors of a company continue trading, knowing that there is a risk that debts will not be able to be cleared as they arise? Bearing in mind that as far as Southern Cross is concerned, many months ago, it announced that it would not be able to pay its tax liabilities, nor indeed to pay more than 70 per cent of the rents due to lessors, would it not seem that there was a clear breach of what is now Section 993 of the Companies Act 2006?

[Earl Howe]

My Lords, my advice is that Southern Cross is not insolvent in either sense of the word. Its assets, I am told, exceed its liabilities, and it is able to meet its commitments as they fall due, thanks to the agreement reached between the company, its landlords and its bankers. The process announced on 15 June is the key to this: the company’s restructuring committee is developing a plan to stabilise the ownership and operation of Southern Cross care homes. We expect, as I have said, that there will be an orderly process of reassigning homes to landlords and new operators. That process will take place between now and October, during which time continuity of care will be maintained. Nothing that I have said changes the outlook for the medium term, and I believe that we can say, and that the company can say, that insolvency is not an issue at present.

[The Lord Bishop of Manchester]

My Lords, for all the assurances that the Minister has given, and for all his obvious sensitivity to the issues that many residents face, the truth remains that a lot of people in these care homes feel themselves at present to be in an extremely vulnerable position. In these circumstances, does he feel that the level of salary and bonuses that some directors have is appropriate, and would he like to comment, in the light of what he said earlier about financial implications, on whether or not that is an area that in future he would feel needs to be examined more carefully?

[Earl Howe]

I am grateful to the right reverend Prelate. I do not think any of us feels comfortable if the directors of struggling companies take substantial bonuses. I have to say that I do not have a briefing on whether the directors of Southern Cross have taken substantial bonuses in recent months, but I shall make it my business to try to ascertain that. But of course the right reverend Prelate is right to say that we must be clear that the stability of care homes, looking after frail, vulnerable, elderly people, should not be put at risk by mismanagement. I am afraid that Southern Cross has been a story of mismanagement since it was established in its present form.

[Lord Beecham]

My Lords, my noble friend Lady Thornton referred to the fact that the owners of many of these properties are offshore companies. Is the Minister comfortable with the fact that according to a claim by the GMB union, some 336 of these care homes—just under half the total—are owned by companies outside the UK, with 325 of them registered in tax havens? Does the Minister agree, as I asked yesterday of his ministerial colleague about the Statement on the White Paper on public service reform, that the high proportion of residential care places managed by Southern Cross—some 18 per cent of the total of places, with roughly a further 18 per cent managed by another five companies—does not represent diversity of provision and increases the risk of things going seriously wrong on a large scale, as has happened in this case? Does that not lead to the possible conclusion that to talk about diversifying without any indication of a limit on the number of places that might be operated in a field like this needs to be rethought?

[Earl Howe]

I think the noble Lord and I are at one in wanting to see diversity of provision. The restructuring that I suspect we are likely to see emerge from this will result in just that, as a matter of fact. It appears that Southern Cross is to be split into a number of smaller enterprises, and that in itself should, we hope, lead not only to a more diverse arrangement but a more secure one. However, I do not take issue with the thrust of the noble Lord’s remarks at all.

On the issue of the ownership of some of these care homes, our concern as Ministers is not so much where the shareholdings lie as on whether that in itself has implications for the quality of the care that residents receive. I am not aware that that has been a factor. As long as the ownership of these care homes is legal and we are not seeing tax evasion as opposed to tax avoidance, to an extent it is not an issue for the Government. But it is something that is likely to be examined quite closely as the restructuring takes place.

[Lord Sutherland of Houndwood]

My Lords, I welcome the way in which the Minister’s Statement has given reassurance to those in care homes and their families. It is immensely important that we continue to do that. There is, however, a further area of reassurance that I hope the Minister will be able to say something about. We have reassured staff through TUPE that perhaps there is some protection for their terms and conditions, but speculation in the press today suggests that the cost of care in these homes might rise significantly because of a period of underinvestment. I hope that we can at least monitor any such rises to ensure that they are gradual rather than sudden and therefore financially debilitating.

[Earl Howe]

My Lords, the noble Lord, Lord Sutherland, makes a very good point. The advice I have been given is that during the restructuring process, the cost of care should not be a factor. While local authorities may have to revise their budgets, that should not result in disruption for residents.

[Lord Popat]

My Lords, does my noble friend agree that most of the landlords of these care homes were the former operators themselves, and therefore the transfer of registration by the CQC will be a very smooth process? However, we will end up with a few homes where the landlords might not want to take them back. Should we not have contingency plans for local authorities to rent such premises on a temporary basis until a permanent solution is found?

[Earl Howe]

My noble friend is quite right to say that it is indeed possible that landlords may not wish to take the properties back, but in that scenario it has been agreed that those landlords will look to partner with a reputable care home operator. So it might well be that a care home will join a consortium run by one of the major care home operators which is now in discussions.

[Lord Bilimoria]

My Lords, the Minister said that Southern Cross’s business model was unique, but surely it is not since so many care homes have been following the Opco/Propco model. Does the Minister therefore agree that it was possibly not just mismanagement that was responsible for this situation, but the fact that the business model which worked in the good times—the previous owners did very well out of it—is not working now? As the noble Baroness, Lady Thornton, said, several care homes are in difficulties. Does the noble Earl think that the cuts that are being made might have a role to play as well? Have the Government made a full analysis of the dire situation in the care home sector?

[Earl Howe]

Clearly, my Lords, before the Government produce a White Paper on social care a thorough analysis will be done, and we have the Law Commission report that will guide us in part. Southern Cross developed a business model that worked during times of increasing prosperity, when property values were buoyant and occupancy levels were similar, but it entered into contracts with its landlords which are proving unsustainable in the present climate. Demand for residential care is reducing generally. Not only are councils purchasing fewer care home places, but people are also opting for greater personalisation and more innovative approaches to providing care services, including being looked after at home. My advice is that the Southern Cross business model is unique. That may be—the noble Lord has considerable knowledge in this area—an overstatement and perhaps there are some care homes which are similarly structured, but it is certainly the largest and most significant model of its kind that we are aware of. From the advice I have received, I do not think we should be unduly concerned that other instances on a par with Southern Cross are likely to occur.

[Lord Hollick]

My Lords, I welcome the Government’s decision to prioritise sustainability because the demise of Southern Cross is a stark example of the dangers to sustainability of overly aggressive financial engineering: too much debt, too many unwise property deals and too many gullible banks; in short, too much avarice and not enough prudence. As the Government contemplate how best to regulate the financial aspects of this industry, how will they ensure that the new operators of Southern Cross care homes will be financially sustainable?

[Earl Howe]

My Lords, we are reverting to the question asked by the noble Lord, Lord Campbell-Savours. The CQC already has some duties to ensure that the care homes it registers are able financially to sustain their business, as well as simply providing a quality service. But this is clearly an issue that needs to be looked at. As I have mentioned, we are taking powers in the Health and Social Care Bill which potentially could see the care-home sector subject to the kind of financial regulation that we are applying to the NHS. This is a work in progress.

[Lord Campbell-Savours]

My Lords—

[Earl Attlee]

My Lords, I am very sorry, but we are out of time.

Electricity Market Reform

Tuesday 12th July 2011 Lords Chamber

Statement

19:10

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

My Lords, with the leave of the House, I shall now repeat a Statement made in the other place by my right honourable friend the Secretary of State for Energy and Climate Change. The Statement is as follows.

“With permission, Mr Speaker, I would like to make a Statement on the reform of the electricity market.

Since privatisation in 1990, our electricity market has served us well, delivering reliable, affordable electricity, but in the years ahead we face unprecedented challenges. The existing market was not designed to meet them. Over the next decade, around a quarter of our existing power stations will close, threatening the security of our energy supplies. Some £110 billion of investment is needed to replace them and to upgrade the grid. That is twice the rate of investment of the last decade and the equivalent of 20 new power stations. At the same time, demand for electricity could double over the next 40 years as the population increases and we increasingly turn to electricity for heat and transport. We also face ambitious carbon emission and renewable energy targets, as we seek to build a cleaner energy future for Britain and the world.

In order to achieve our goals we need to take decisive action now to increase low-carbon electricity generation, including nuclear, renewable energy and carbon capture and storage. None of these challenges can be met for free. We will have to pay to secure reliable, clean electricity for the future and we cannot ignore the long-term trends in electricity prices. Increases in wholesale costs and in the carbon price are likely to lead to higher bills in the future, even without factoring in the huge investment needed in new infrastructure. So it is vital that we put in place market arrangements that deliver this investment as cost-effectively as possible. The current electricity market is simply not up to the job. It cannot deliver investment at the scale and the pace we need.

Without reform, our reserve capacity—the power plants we can call on when demand surges—will fall to uncomfortable levels. We would face a much higher risk of blackouts by the end of this decade. We would also be locked into a worrying reliance on fossil fuel imports, putting us at risk of rising and volatile prices. Consumers could end up paying even more. That is why I am putting before the House today a series of measures to reform the electricity market, diversifying our generation mix and boosting investment in secure, sustainable and home-grown, low-carbon technologies. There are five key elements to our reforms.

First, the Chancellor announced in the Budget a new carbon price floor to put a fairer price on carbon, reduce uncertainty for investors and provide a stronger incentive to invest in low-carbon generation now.

Secondly, we will send a clearer message that low-carbon electricity is a key part of our future energy mix. We will introduce a new system of long-term contracts in order to remove uncertainty for both investors and consumers and to make low-carbon energy more attractive. Contracts for difference will be introduced for all forms of low-carbon generation, lowering the cost of capital and allowing clean technologies with high up-front and low long-run costs to compete fairly against traditional unabated fossil fuels. This will build on the carbon price floor, providing the additional clarity and certainty that investors need.

Thirdly, we will introduce an emissions performance standard to send a clear regulatory signal on the amount of carbon new fossil-fuel power stations can emit. This will reinforce the requirement that no new coal-fired power stations are built without carbon capture and storage, while ensuring that vital investment in gas can take place. CCS is a key part of our plan to decarbonise electricity generation. It is the only technology that can potentially reduce emissions from fossil-fuel-fired power stations by as much as 90 per cent.

Fourthly, to ensure security of supply in the future we will introduce a new contracting framework for capacity, changing the way we secure our back-up electricity. This capacity mechanism could mean centrally procuring capacity which is set aside from the market and used only when it is needed, or it could mean a market-wide mechanism, in which all providers offering reliable capacity are rewarded. Under both options, we plan to ensure fair and equivalent treatment between all the ways of achieving what we want—demand response, storage, interconnection with our European partners and extra generation. Shifting or cutting demand for electricity is likely to be more cost-effective than simply building more and more power plants. It complements our work to drive down demand through energy efficiency measures such as the Green Deal and smart meters.

Fifthly, we will put in place transitional arrangements to ensure that there is no hiatus in investment while the new system is being set up, and we will create new institutional arrangements to deliver the reform package.

Together, these reforms will tackle the immense challenges facing the electricity market. They will put in place the framework to deliver the capacity and demand-side response we need in order to guarantee future security of supply. They will encourage investment in proven low-carbon generation technologies and they will give investors confidence that there will be a market for electricity generated with commercial carbon capture and storage, confidence that will drive investment in both demonstration and commercial CCS plants.

Six energy companies supply around 99 per cent of customers in the UK. Alongside action by Ofgem to improve liquidity, these reforms will boost competition within the market and make the UK a magnet for low-carbon investment, generating jobs and growth. This will help energy-intensive industries. However, we are also committed to bringing forward a package of measures to ensure our continued international competitiveness.

Finally, the reforms I have set out today will achieve our aims at least cost to the consumer, with bills for households and businesses likely to be lower and less volatile over the period up to 2030 than if we had left this market as it is. They will enable us to build a flexible, responsive electricity system, one powered by a diverse and secure range of low-carbon sources en route to a cleaner, greener future, insuring us against fossil fuel price shocks, ending 25 years of policy dithering and keeping the lights on and the bills down.

Alongside the electricity market reforms, I am also publishing today the renewables road map. For too long, discussion about renewable energy has focused on barriers. Now, for the first time, we have set out a detailed step-by-step plan to overcome those obstacles. The road map sets out a comprehensive action plan to accelerate the UK’s deployment and use of renewable energy. It puts us on a path to increase our renewable energy consumption fourfold by 2020 while driving down the cost over time. Growth on that kind of scale will be challenging, but necessary. The road map identifies eight technologies that have the greatest potential for the UK, such as offshore wind, where we have abundant natural resource and already have the world’s largest market.

Subject to further value-for-money assessment, the department is setting aside up to £30 million over the next four years to support technology development programmes to improve the efficiency and reduce the costs of offshore wind. With industry, we are setting up a task force to drive the work to achieve cost-competitive offshore wind. The recently published microgeneration strategy also outlines the actions that the Government are taking to tackle the non-financial barriers which could prevent microgeneration from realising its full potential. Together, the renewables road map and the microgeneration strategy will reduce costs for consumers and enable mature renewables to compete against other low-carbon technologies in the longer term.

I am also publishing today the final report of the Ofgem review. The review reaffirms the Government’s commitment to a strong, independent regulator, able to give confidence to investors, protect consumers and help meet our energy and climate targets. The summary of conclusions was published in May; this final report provides further detail on how the Government will seek to strengthen the regulatory framework.

The package of reforms that I have announced today will yield the biggest transformation of the market since privatisation. They will create an enduring framework for future investment and secure our electricity supplies for the future. They will provide our consumers with the best deal possible, help us meet our ambitious carbon targets and put us at the forefront of low-carbon technological development, ready to lead the world in the next energy revolution. I commend the Statement to the House”.

My Lords, that concludes the Statement.

19:20

[Baroness Smith of Basildon]

My Lords, I thank the Minister for repeating the Statement. We welcome the fact that Chris Huhne, the Secretary of State, is seeking to address the matter and agrees with his predecessor on the need for reform. We should recognise that he has come a long way on this issue. He no longer describes nuclear as a “failed technology”, but says that it is an essential part of the UK getting off the “oil hook”, accepting its role as part of the energy mix for energy security. I am still unclear on the Government’s position on subsidy for nuclear. Chris Huhne has mentioned on many occasions that there will be no subsidy, but that seems to be interpreted as no subsidy that is different from that for other low-carbon generation.

In his December Statement, the Secretary of State said:

“We have a once-in-a-generation chance to rebuild our electricity market, rebuild investor confidence and rebuild our power stations … this will be a seismic shift, securing investment in cleaner, greener power and delivering secure, affordable and low-carbon energy for decades to come”.—[Official Report, Commons, 16/12/10; col. 1066.]

We agree that that is what this reform should deliver, although I would have put greater emphasis on affordability. That is why this Statement and the legislation that will follow are so important. If we were to get this wrong now, it would be a missed opportunity and would bind future generations to costly and ineffective measures.

So what do we expect from this reform? First, the consumer must be at the heart of any reform. We have to reconcile the interrelated aims of energy affordability to protect the consumer, decarbonisation to protect the environment, and energy security to protect both the consumer and the economy. The Government have recognised that the current energy market structure will not deliver investment in new low-carbon technology and provide the additional capacity that is needed to meet our carbon reduction targets. We welcome that acceptance, because it is clear that fundamental change is necessary to meet these targets, secure energy supply and encourage investment. We will want to be reassured that these proposals add up to a responsible and realistic package that will deliver those interrelated aims

I regret that, to date, despite our seeking to be very constructive with the Government, we consider that they have fallen short in their stated aim to be the “greenest Government ever”. Every time that one firm announces a price increase, the Secretary of State’s advice is to shop around and change energy supplier. We can do that only so many times as one after another company puts up its prices. For the sake of the economy, business and domestic consumers cannot continue paying ever higher prices.

The Energy and Climate Change Committee in the other place has recommended that any reforms need to be accompanied by,

“sound social policy to protect vulnerable consumers”.

Given that the Government have pulled all government-funded energy efficiency programmes, can the Minister say anything today about how these reforms will help both business and domestic energy consumers with their ever-increasing bills?

The Minister’s comment in the Statement that bills for households and businesses are,

“likely to be lower and less volatile over the period … than if we had left the market as it is”,

really is not good enough. If, as predicted, consumers are going to be asked to pay more to deliver this programme, we need to give them far greater certainty. I ask the Minister and his colleagues to reflect on that.

Another concern is that recent ill-judged government intervention in the energy market has already led to a hiatus in energy investment and uncertainty across all sectors. I do not want to labour the point today as we will debate on Thursday the solar feed-in tariffs fiasco that has destabilised the solar sector and sent shockwaves through other renewable sectors, but there are other issues which have had an impact on investment. Companies, including RWE, are considering pulling out of the UK because of the uncertainty caused by the Government on investment. That has been underlined by the Pew Environment Group’s report showing the UK slumping from fifth to 13th in a global ranking of countries for green investment. Constraints on the green investment bank have led the CBI deputy director-general, John Cridland, to say that the bank,

“certainly won't work if it needs the Treasury's permission to blow its nose”.

The Energy Bill seems to have disappeared into a black hole in the other place; it will not even have its final stages before the recess. To date, the Government’s track record is not as good as we would want it to be. In all our interests, with the White Paper before us today, the Government cannot afford to get this wrong.

As the Minister has acknowledged on many occasions, we want to be supportive, and I always approach these issues constructively. We will support measures that achieve the Government’s stated aims and benefit the consumer and the economy. The Government will want to satisfy some key tests if reform is to work. A new market needs to be greener but also create confidence, clarity and certainty for industry; make room for innovation in emerging energy solutions; provide a good deal for both domestic and business consumers as users and taxpayers; and deliver the necessary investment in the UK energy sector for security of supply.

The document before us today is quite lengthy, as are the associated documents published by the Government. They propose a mixed bag of measures. I am not sure that I yet fully understand how they will work together to give us the policy structure that we need to achieve our objectives.

For example, the Energy and Climate Change Committee in the other place considers that the level at which the emissions performance standard has been set,

“would have no material impact and is therefore pointless”.

Since that report was published, have the Government been able to take note of those concerns and make any adjustments before the final White Paper was published today?

The carbon price floor was introduced by the Budget independently of these proposals. DECC seems now to understand the impact of what is seen as a tax grab on industry, thereby potentially exporting businesses and their emissions overseas. What action will the Government take to ensure that this does not disadvantage British business, and what discussions on these issues has the Minister had with organisations representing intensive energy users in industry in the UK?

I certainly welcome the Government’s acceptance that their message that low-carbon electricity is a key part of our future energy mix has not been clear enough and that action will be taken to remedy this. I look forward to further announcements on the detail. As he will appreciate, the renewables road map, to which he referred, can work only if investors can have confidence in the Government’s ambitions.

The detail in the Government’s plans regarding the ongoing consultation on the capacity mechanism and the contract for difference will be crucial. These are complex issues and the devil will be in the detail.

The transitional arrangements to ensure that there is no hiatus in investments while this new system is set up are welcome, but, as I have already said to the Minister, there is a hiatus now and transitional arrangements are urgently needed to restore confidence in the market. Perhaps the Minister could say something about the timing of the transitional arrangements. That would be very helpful.

Our existing “big six” energy companies will undoubtedly need to help to provide our new energy generation, but we need to free up the suffocating oligopoly which stifles real competition from new energy investors. Today’s announcement and publication of the documents is welcome and part of an ongoing process. However, to identify the problems is easy—we have discussed them in your Lordships’ House and the other place on many occasions—but the challenge is to meet the objectives. We will continue to play our part in that.

19:28

[Lord Marland]

My Lords, I am very grateful to the noble Baroness for her comments. She rightly said that meeting the challenge is very difficult. The previous Government found it very difficult. I am happy to say that we have played our modest part by encouraging six new nuclear power stations, setting out a road map and introducing a series of measures that will regenerate the energy and electricity supply market—which, as I said earlier, has not happened for 20 years. We have inherited a legacy of inactivity. It is a major structural problem; it is not one that we welcome, but we in this Government intend to get our hands on it and deal with it.

I note the noble Baroness’s point about nuclear subsidy. I shall continue to remind her that we have always said there will be no subsidy for nuclear other than that available to wider technologies. The wider technologies obtain a subsidy and nuclear is now part of that.

On the noble Baroness’s comment about bills, it is fair to say that bills have risen and are going to rise. I go to my petrol pump and find it costs me £1.33 to fill my car—no, I am sorry, it costs me £1.33 per litre. That is more than £1.33 to fill the car—it is about £1,033. Bills are rising outside our control because we are reliant on fossil fuels and oil coming from different shores, rather than the wonderful security in which a number of noble Lords, including my noble friend Lord Lawson, were able to bathe—an oil supply from our own sources. When you invest in a new infrastructure which needs £110 billion there will be bill increases on the horizon. Do we want to do this? Of course we do not—we want to keep bills as low as possible and to reduce them—and the plans we have set out will enable us to recover that position and to not see the same exponential rises that we have had of late.

The noble Baroness referred to feed-in tariffs, doubtless with the solar photo voltaic debate that will take place on Thursday in mind. Do we think it right that the Government should prioritise billions of pounds to support an industry which is not necessarily climatically suited to this country? The Government have to make tough decisions; they have to establish value for money for the taxpayer when deciding where to allocate funds to support developing technologies. The current Government, of which I am proud to be part, do not consider that this technology requires the same degree of support. The industry is becoming mature and the cost of equipment is coming down dramatically and we have therefore taken a view on it.

The noble Baroness referred to RWE. I believe that RWE is less certain of its future in its home country than it is here. It has various jurisdictional issues in terms of the future of its own nuclear industry that present it with far-reaching problems beyond our shores.

The Government have committed to the green investment bank and we have allocated funds to it. You cannot just click your fingers and establish a funding bank overnight, but in 12 months we have got to grips with the issue and it is well on the path.

We have consulted on the issue of EPS but we have not changed fundamentally what we set out to do. It is important that we have standards for companies that do not comply with a reduced performance format. That is the long-stop part of regulation which will set a clear regulatory path of where people can perform in energy supply.

Clearly we need to take into consideration the energy-intensive industries and we are consulting with them at the moment. We will announce a package of support for them to encourage them towards lower carbon usage. They are major employers in the country and major international exporters. It is important that we recognise that in any regulation we introduce, and at the end of the year we will announce a package of measures to support that.

I hope that that explanation goes a long way towards answering a number of the excellent points made by the noble Baroness. I have a feeling that there will be some more excellent points in a moment.

[Earl Attlee]

I remind the House of the benefits of short questions in order to allow everyone who wants to get in an opportunity to do so.

19:30

[Lord Lawson of Blaby]

My Lords, this is a most extraordinary Alice through the Looking Glass Statement. Is my noble friend the Minister not aware that almost every single assertion in it is the precise reverse of the truth? Is he not aware that if renewable energy was genuinely cheaper than conventional carbon-based energy, there would be no need for this plethora of measures? Is he not aware that every single energy expert, from Ofgem to all the independent experts in the universities, Professor Dieter Helm and so on, has said that the Government’s policies will lead to a substantial increase in electricity prices?

My noble friend mentioned 2030. Is he not aware that the Treasury has estimated that the carbon floor price alone will lead to an increase in electricity prices of between 60 and 70 per cent by 2030, to the great detriment of the consumer, British industry and the British economy, which—goodness knows—is in a fragile condition as it is? On this issue, the Government’s policies are not the solution but the problem.

[Lord Marland]

It is always a joy to hear my noble friend—as indeed he is. Let me quote him back a figure on prices. Is he not aware that electricity prices went up 18 per cent in one week? Forget 60 per cent in the time span he is talking about; they have gone up 18 per cent in one week. Why? Because we have been reliant on fossil fuels imported from other countries, with no control over security of supply.

With due deference to his great knowledge and to his great achievements as an Energy Minister and in the Treasury, he must be aware that there has been no investment in the energy infrastructure of this country in the past 20 years. The Government of which he was part and the previous Government were part of that. He must at least give credit for the fact that we are about to embark upon a massive investment and that, in order to establish an investment, you have to set out a pathway on which people have clarity for their investment.

My noble friend has quoted various institutions to me, and I would like to make him aware that we have consulted and discussed this with every energy supplier in the country and with a wide range of people. By and large, as much as one can possibly tell, this has been universally applauded by the industry and those who are seeking to invest. We may be proven wrong but, at the moment, it is all looking quite good.

[Lord O'Neill of Clackmannan]

The Minister has to take some credit for making another stab at market reform. It is not the first one for 20 years; there were two in the late 1990s—the NETA and BETTA reforms—so he is wrong to say that nothing has taken place in this matter. However, those reforms are now out of date. We need reassurance for investors and I think that, to an extent, we will get that from this document. However, I am not sure whether the social dimension and the cost to the consumer will necessarily be given equal weight.

The emission performance standards rely heavily on carbon capture and storage being realised—taken out of the laboratory, on to the factory floor, produced and then adapted for use in power stations with turbines in excess of 400 megawatts—but that seems to be a long way away. I worry that, come 2015 when we have the large plant directive, we will deny ourselves access to coal-fired power stations and will not have CCS available by that time. We could, therefore, well have a dash for gas on the scale that we had in the 1990s, with all the price implications that the Minister has already stated. When does the Minister expect carbon capture and storage to be available to British power generators, and particularly to the coal-fired industries? Unless we get that assurance, this will be, in large measure, a pipe-dream of the Government. I say that more in sorrow than in anger. We need to have a clearer indication of when we are likely to get carbon capture and storage. My inclination is that it will not come before 2020 at the earliest.

[Lord Marland]

The noble Lord, Lord O’Neill of Clackmannan, is an expert in his field. He also knows that I am responsible at the moment for leading the negotiation on carbon capture and storage. I am delighted to make the Statement in your Lordships’ House because it withdrew me from the negotiation process where we are in something called lock-in at the moment. I will not venture to suggest the outcome of the negotiations. They are extremely determined and it is a very complex programme. At the moment, we have three energy providers and me in one room at different times trying to bottom out where we can get to. I have been set the task of achieving this in operation by 2016. We may or may not get there. I am not going to predict one way or the other because it is a quantum leap. We must not underestimate the extent of that.

The noble Lord is quite right that a number of our energy policies are predicated on carbon capture and storage—but by no means all of it. The fact is that the EPS provides for gas. As my noble friend Lord Lawson would ask me to say, gas is fundamental to the future. I completely support his view on that. It is much less carbon intensive, will be fundamental to our electricity generation going forward and will be a large proportion of it.

[Lord Teverson]

My Lords, I generally welcome this Statement and the reforms that are there, in two areas particularly. We have often said in the House that if we had a proper carbon price that managed, in the jargon, to internalise the externalities of the cost of carbon we could then just let the market get on with it. Unfortunately, the EU ETS has not managed to deliver on that sufficiently. I understand that we only have a carbon price floor here for electricity generators. At least that is a move in that way.

I also particularly welcome the emissions performance standard. I have argued for that for ages and could never understand why, if we have emissions standards for cars and various other implements that we buy, we do not have them for the largest energy users such as power stations as well. I am not so concerned by a short-term dash for gas as long as that supply is diverse rather than concentrated in terms of our energy security.

I want to ask the Minister two things. He is absolutely right that the real risk to pricing is fossil fuels but it is also to a degree market concentration. How will these reforms make sure that there is less concentration of market power in the energy industry and how are we going to make sure that there are new entrants that can grow substantially to challenge that existing power? In terms of the market mechanisms, is he confident that there will be enough liquidity in the markets to make sure that these contracts for difference and that whole mechanism will work, so that we are able to deliver the policy objectives as he wants?

[Lord Marland]

My noble friend Lord Teverson has always asked the apposite question. First, we want to get away from the language of a “dash for gas”. Gas will be fundamentally important. We are not dashing for it. We have to make sure that we separate the price of oil and gas. Gas is now a very competitive energy product, as we have noticed in the USA where shale gas has been discovered. We do not want to call it a dash for gas. It is long-term support for gas.

As to the market mechanism, Ofgem will be tasked with bringing liquidity into the market as the regulator. It has got to show some teeth in generating regulation. You get there by people generating their own electricity and feeding into the market on the one hand, and on the other requiring less from the electricity providers by having energy-saving products such as the Green Deal and smart meters—part of the programme that we have been pretty unified in wanting to adopt.

[Lord Jenkin of Roding]

My Lords, I will be quite short but can my noble friend answer one or two questions? First, we have waited a long time for this Statement. As I understand it, the reforms will require legislation. When are we likely to see the Bill? Secondly, he referred to the various forms of energy generation but I am a bit disappointed that we have in this White Paper a framework for renewables when we also need a framework for nuclear—my noble friend will realise that the Select Committee is currently looking at this. While I welcome the regular statement that is put out by Ministers on the importance of nuclear, there is huge doubt at the moment about what is going to happen after what they call the interim date of 2025. This is certainly affecting the idea of any investment for the future.

Finally, my noble friend referred to the need for new institutions to administer the FIT with contracts for difference, and also the new capacity payments. Can he give us a little more indication of what form those institutions might take? They are clearly going to perform a very important role in the new market structure that the White Paper foreshadows.

[Lord Marland]

As ever, the noble Lord, Lord Jenkin, knows the subject. I am slightly disappointed that he does not believe that there is a nuclear framework. We announced that there are to be six new nuclear power stations and reaffirmed that announcement two weeks ago and the sites where they will be located. Realistically, there are a number of issues in terms of the balance sheets of some of the companies wanting to invest—as we have seen from the fall-out in Germany. Having spoken with EDF, Iberdrola and others this week, I know that they are very committed to the cause of the nuclear framework.

As to when the legislation will happen, we are obviously hoping that it will start at the end of this year. There are some timing issues, even with getting the first Energy Bill back to this House—as we all know. The legislation issue will be difficult because there is a certain logjam in the other place.

On who will operate and regulate the supply, this will largely be Ofgem, which will have greater teeth. As we are running a little bit out of time, I am happy to discuss at a later time with the noble Lord the various component parts of that rather than going into it now—if he is happy for me to do so.

[Lord Reay]

My Lords, this is an extremely important White Paper—

[Earl Attlee]

My Lords, it is the turn of the Labour Benches.

[Lord Boyd of Duncansby]

My Lords, I want to ask one question, relating to the position of the devolved Administrations, particularly Scotland. The renewable obligations are executively devolved to Scotland and that has enabled the Scottish Executive—now the Scottish Government—to shape that as they wish. What role does the noble Lord anticipate that the Scottish Government will be able to play in the new feed-in tariffs with contracts for difference? What will be the relationship between the Scottish Government and the new institutions that he talked about?

[Lord Marland]

Naturally, we work very closely with the devolved Governments. We are all travelling down the same path. However, HM Treasury, rather than the Scottish Government, will be responsible for the renewable heat incentive funding. That is in the spirit of the union, I think.

[Lord Reay]

My Lords, this extremely important White Paper sets out to introduce the reforms, if one can call them that, which the Government consider are necessary if they are to meet their targets for extremely high-cost, heavily subsidised renewable energy. I hope we will get the chance to debate it.

I have just one question for now. The Statement mentions offshore wind on three occasions but makes no mention of onshore wind. Can we take it that the Government are lowering their sights with regard to onshore wind and, it is to be hoped, abandoning their targets altogether? It is a deeply unpopular form of renewable energy, it bitterly divides local communities and it is destroying some of our finest countryside.

[Lord Marland]

I do not think my noble friend can take that from our Statement. The reality is that onshore wind does divide communities—my noble friend puts his finger on it—and it therefore becomes an issue for local communities to decide through the local planning process whether they want it. A large number of local communities in Scotland are embracing onshore wind whereas a number of communities in this country—I am sure my noble friend Lord Reay’s community is one of them—do not want to embrace it. The reality is that the Government have a target. Two-thirds of that target for onshore wind is either met or is in the process of being met so there is a very limited amount of headroom. Our real push is to get offshore wind up to the target we wish to achieve.

[Lord Dixon-Smith]

My Lords, I hesitate to intervene but there is one thing I need to say and one question I need to ask. We should stop worrying too much about cost. I have said this before but I have seen farm tractor diesel prices rise by well over 4,000 per cent since I started in business. That has been vexing occasionally. It is always difficult to put up with rising costs but we live in a different world. This is an evolution in costs over a similar period. If we can keep the costs down below that sort of increase we shall have done very well indeed. That is a harsh reality which my noble friend Lord Lawson may find uncomfortable. However, when he was Chancellor of the Exchequer, he may have had something to do with what has happened.

The Minister is essentially setting out a programme through until 2030. The difficulty is that the major infrastructure investment he requires will consist in many instances of projects which will still be running in 2050, by which time we shall have to have a carbon-free, or virtually carbon-free, energy industry. There will still be one or two essential uses. What is the Minister going to do if he finds that the 10 per cent of the carbon which still has to be emitted in a coal-fired power station is incompatible with the 2050 target when he is committing a 40-year investment? That is what it will be if he gets someone to build a CCS power station today.

[Lord Marland]

My noble friend Lord Dixon-Smith asked me what I would do in 2050 if we had not reached our targets. By my calculation I will be about 90 so I will either get on the plane to Switzerland or I will not worry about it because I will not have my marbles to worry about it.

On a serious note, it is very impressive that all of us in this Room are thinking about the next generation and the supply of electricity and how we are going to get to it. I take issue slightly, but not with the sentiment, that we have to stop thinking about prices. We have to think about prices. It is absolutely fundamental that we find ways of keeping the country competitive with the rest of Europe, as we are at the moment in terms of our prices, and that electricity and energy are affordable to the people of this country. However, I think the fundamental point my noble friend is making is that prices are going to go up, they do go up and they have gone up. It is a fact of life, unfortunately, but it is incumbent on government to ensure that the cost to the people of this country is as low as possible and is mitigated as much as possible.

Localism Bill

Tuesday 12th July 2011 Lords Chamber

Committee (7th Day) (Continued)

19:56

Amendment 148

Moved by

[Baroness Greengross]

148: After Clause 95, insert the following new Clause—
“Local development: survey of area
(1) Section 13 of the Planning and Compulsory Purchase Act 2004 (survey of area) is amended as follows.
(2) After subsection (3) insert—
“(3A) The local planning authority shall undertake and publish a numerical assessment of the level of housing need and demand for all age groups in its area, together with its proposals for addressing such need and demand including plans relating to the provision of housing across all types and tenures.””

[Baroness Greengross]

My Lords, localism and the Localism Bill present many opportunities for people of all backgrounds and all ages to be involved in local decision-making and developing their neighbourhoods. I declare an interest as heading up a think tank, ILC-UK, which looks at the impact of demographic change on all our lives. Some of the research ILC-UK carried out showed that opportunities in the Bill may benefit only those who already enjoy an advantageous position in society and may not adequately protect and demonstrate the needs of those who are marginalised, particularly older people. Given that much of the development of new homes and communities is going to depend on neighbourhood development plans, which will be voted in by the local population, there is a danger that these plans may not adequately reflect the needs and wishes of marginalised groups in the local population.

Amendment 148 therefore seeks to strengthen the requirement for local authorities to produce adequate assessments of the housing needs of their local population. If they are to do this, it is essential that they have robust social and demographic data—they are certainly not going to make informed decisions about future housing provision without those data.

Section 13 of the Planning and Compulsory Purchase Act 2004 lists what councils should look for when producing housing need assessments. It states that an authority must keep under review matters that are likely,

“to affect the development of their area or the planning of its development”,

including,

“the size, composition and distribution of the population of the area”.

However, this piece of legislation has had very limited impact—indeed, in some cases it has sadly been completely ignored. One example of the failure to assess adequately the demand for new homes at a local level relates to the housing needs of older people.

I will quote two examples that were outlined in a recent report by the National Housing Federation. The Audit Commission’s review in 2010 of a sample of 112 local authorities’ financial plans showed that only 10 per cent made any estimate of the financial impact of provision for increasing numbers of older people despite a rapidly ageing population, as I think everyone will acknowledge. In October 2010, the National Housing Federation surveyed local councils on older people’s housing strategies—153 councils responded to the survey but 32 per cent of them had neither a strategy nor plans to develop one. This is partly because in many cases local councils do not include in their plans the need for retirement housing, even though the ageing population is rapidly expanding. Certainly the largest provider of retirement accommodation in the country, McCarthy and Stone, believes that is the case. Fulfilling the need for retirement housing would be a very good way of getting underused housing vacated for the use of the younger generations who are having great difficulty in getting on the housing ladder, but in order to do that we have to provide specialist housing for older people.

Localism will rely on the correct evidence base being in place, so it is essential that councils are required to produce those data. Without strong guidance provided by central government, the examples quoted here show that local authorities will continue to struggle to produce robust housing needs data. Amendment 148 seeks to address that problem. I beg to move.

20:00

[Lord McKenzie of Luton]

My Lords, we have Amendments 148ZZA and 148ZZZBA in this group, but they are consistent with the amendment moved by the noble Baroness, Lady Greengross, which we support. They have been proposed to us jointly by Shelter, the TCPA and the National Housing Federation. These amendments would help to ensure that local authorities produce a robust and public assessment of housing needs to inform local plans. Amendment 148ZZA requires housing needs to be addressed in the local development scheme, while under Amendment 148ZZZBA the LPAs must regularly survey their areas and publicise the results.

Local plans must integrate land use planning, housing strategies and delivery. While the national planning policy framework, when it appears, may help to promote this objective, we think that this issue is too important to leave to regulations and guidance. All local authorities should be required to undertake a strategic assessment of housing need and demand to provide the necessary evidence to inform the development of housing strategies and planning policies for their areas—the points raised by the noble Baroness cover this—and the needs of an elderly population that is growing older.

The information should be key to determining the amount of housing required, including affordable housing and housing specifically designed for people with care and support needs and in allocating a sufficient amount of land to meet and identify housing requirements. Bodies such as Shelter, the TCPA and the National Housing Federation have welcomed a more localised approach to planning and see the reforms to the planning system as an opportunity to allow local people to play a more active role in shaping development in their area by helping to shape local plans and hold their local authority to account.

In order to enable local people to play a more active role, it is vital that they have access to data that give them as full a picture as possible of the housing situation in their area and enable them to assess their local authority’s performance. Through local authorities setting out clearly in the local plans how they plan to address housing need, local people will be far better placed to hold their local authority to account on the success that they have achieved. Without clear aspirations being set, local people are likely to find it difficult to assess how well their local authority is performing.

The importance of providing access to good local data was outlined in the Conservative Party’s Open Source Planning paper, which sets out that in developing their local plans, councils will be expected to ensure as a minimum,

“the provision of good data by the local planning authority to the electors in the neighbourhoods, so that they can develop their vision for their community on a well-informed basis … this will need to include analysis by the council of the likely need for housing and for affordable housing for local people in each neighbourhood”.

The introduction of more consistent data sets will also allow local authorities greater opportunities to increase integrated working across areas such as sharing back office staff. That would be particularly useful in some areas of local housing planning, but varying data sets would make the practicalities of joint working more difficult. This will help to deliver the aims of a more localised system by ensuring that local people are able to play an effective role in shaping local plans and holding their local authority to account while enabling local authorities to work together more efficiently.

In Committee in the other place, the Minister stated that the Government would require from local authorities,

“an absolutely clear, transparent, robust numerical assessment of housing need”.—[Official Report, Commons, Localism Bill Committee, 17/2/11; col. 637.]

However, he argued that Section 13 of the Planning and Compulsory Purchase Act 2004 already outlined the necessary duty. In fact, with respect, Section 13 does not consider a critical element of housing need, or other needs, which is a forward projection of future need and demand. In the absence of such a clear duty, it would be easy for some local authorities to look narrowly to immediately presenting housing need and to avoid responsibilities, especially to the next generation and to the wider housing market. It is on that basis that I propose these amendments and support the amendment of the noble Baroness, Lady Greengross.

[Earl Cathcart]

My Lords, forgive me if I am wrong, but I thought that all councils were already required to make a housing needs assessment under the existing PPS3. If that is the case, I am not sure what the amendments will add other than to make councils do their job better.

[Lord Best]

My Lords, I give qualified support to Amendment 148 in the name of my noble friend Lady Greengross and to Amendments 148ZZZA and 148ZZZBA tabled by the noble Lord, Lord McKenzie. My support is qualified because the words,

“the local planning authority must”,

are not popular in local government circles. I would find it hard to be entirely supportive of extra obligations being placed by central government on local authorities, but I am supportive because noble Lords are absolutely right that collecting local data on housing markets and making them available, not least to any neighbourhood preparing a neighbourhood plan, as well as to the local authority preparing its local development plan, is more than just good practice; it is essential if housing providers are to meet local needs and demands.

To take the example of the area of interest to the noble Baroness, Lady Greengross, if the local authority’s assessment shows that many thousands of family houses are occupied by one older person or an elderly couple, with the certainty that all those occupiers will grow older in years to come, clear signals can be given to private house builders and housing associations that there is a big market for attractive, manageable, economical apartments that are tailor-made for older people to buy or rent.

I give full backing to the intention behind these amendments and hope that their objective of getting local authorities to do what they should can be fulfilled, not least through the national planning policy framework, even if that objective is not accomplished by a new obligation on local authorities.

[Lord Beecham]

I hesitate to express a slightly different point of view as a vice-president of the Local Government Association from our esteemed president, but I am not quite as reluctant as he is to see this kind of duty, as proposed by the noble Baroness, Lady Greengross, and my noble friend Lord McKenzie, incorporated into the law, particularly given the state of the housing market in general and the huge unmet demand for housing, particularly affordable housing. It is important that all authorities recognise that there is a need to promote the provision of more accommodation. It is noticeable that since the disappearance of the regional spatial strategy, something like 200,000 houses it is estimated will no longer be built that would have been built had those plans been progressed.

I add one further dimension to the prescription from the noble Lord, Lord Best, for encouraging new building. I entirely agree with him that it is very desirable for private builders and housing associations to help to cater for the needs of an increasingly ageing population and indeed others. To that I would add local authorities themselves. That might be something that they would appreciate. Perhaps as a quid pro quo for having the extra responsibility of drawing up plans for affordable housing, the fact that they might actually be able to provide some themselves might be an additional incentive. I hope that sweetener will persuade the noble Lord, Lord Best, that his qualification might safely be abandoned.

[Lord Whitty]

My Lords, I support the principles of the amendment proposed by the noble Baroness, Lady Greengross. A whole section of this Bill later on in Part 6 deals with social housing and changes many of the existing arrangements for tenure, what the local authority is obliged to provide and tenants’ rights. Some of them I support and some of them I strongly oppose. However, the whole point of a social housing strategy is that it relates to the totality of the housing need in the area. Unless there is a provision somewhere in this Bill, such as the provision suggested by this and related amendments, dealing with social housing in the abstract is nonsense.

All forms of housing tenure are in crisis. We know that a lot of people who would have got a mortgage by the age of 30 now can no longer get a mortgage until their late 30s or even into their 40s. More and more people are having to rent in the private sector and are being delayed in setting up an independent household. We know that the rate of household formation is growing because of various developments in society, but it is growing at twice the rate of new build housing. We therefore have to have an holistic approach to housing need, area by area. If we are not going to achieve the targets through the regional spatial strategies, which I admit were a bit Stalinist in their approach, we have to ensure that the local authorities themselves take responsibility for looking at housing need in their areas and assessing it against their private sector development plans and the social housing that they and the housing associations in their areas can provide.

Somewhere in this Bill we need to tell local authorities that part of their responsibility from now on must be assessing total housing need against costs, against price and against demographic trends. That is not covered by the 2004 Act in sufficient detail. Given what I would regard as something close to a crisis in the housing market in all forms of tenure, I think it would be appropriate for us to set that out in the Act. Then, when we consider the social housing provisions, we can set them against a requirement for every local authority to assess needs, supply, demand, price, and demographic and employment changes, and to set its social housing targets and provision against that background. Unless we do that, social housing is isolated and is a residual form of housing based on what is already there. It does not relate to the needs of the totality of the community in which local authorities operate. If the Government are prepared to accept the noble Baroness’s amendment here, they need to say that at least somewhere in this Bill, and we need to ensure that local authorities behave accordingly.

[Lord Taylor of Holbeach]

My Lords, this has been a very useful debate. I do not think that the Committee is very far apart on the essential importance of housing and making housing one of the key ingredients of the planning process. I thank the noble Baroness, Lady Greengross, for the typically intelligent and sensitive way in which she introduced her Amendment 148 and led the group.

The amendments that we are considering include those of the noble Lord, Lord McKenzie, which seek this numerical assessment by a local authority of current and projected housing needs, the balance of affordable housing and proposals for addressing those needs in local development schemes, which are the documents setting out the programme and timetable for producing plans. Also required is the publication of annual reports of the matters reviewed and the changes proposed to implement local plans, and the publication of a review of a range of environmental, social and economic issues specified in the Planning and Compulsory Purchase Act 2004 prior to preparing its local plan. As I said, I do not think that we are a million miles away on the objectives.

20:15

I hope that I will be able to satisfy the Committee that the provision in the Bill is adequate and will achieve what we are all seeking to do. I fully agree that local authorities should understand and plan for the differing housing needs of people of all ages in their area, including the elderly population, families with children and people in need of affordable housing. Affordable housing plays an important role in creating sustainable communities and our economy. Good quality housing for people in later life can promote health, well-being and independence and reduce the need for costly care. From what they have said, I think that almost all noble Lords would support the efficacy of extra care housing, as advocated by the noble Lord, Lord Best, in meeting a targeted need in this way. Strong strategy provisions already exist in the Planning and Compulsory Purchase Act 2004, as noble Lords have said. Section 13 of the Act requires local planning authorities to keep under review matters that affect the development of their area, including the size, composition and distribution of the population in the area. This is a strong starting position from which to plan effectively for the needs of different groups of people.

National planning policy in this area is well understood and accepted. We intend to strengthen policy in the review that we are undertaking. As my noble friend Lord Cathcart said, planning policy statement 3 and its associated detailed guidance on strategic housing market assessment make it clear that local authority plans should be informed by a robust evidence base of housing need and demand in its area for market and affordable housing.

The noble Lord, Lord Whitty, is right: local authorities must look at housing policy in its totality—I think he used the word “holistic”. Local authority plans should consider a range of issues including demographic trends and the accommodation requirements of specific groups, particularly families with children, older people and disabled people. Section 19 of the Planning and Compulsory Purchase Act requires local planning authorities to have regard to national policy when preparing development plans in their area. The requirement to monitor and report annually on the implementation of their housing policy already exists in Regulation 48(7) of the 2004 regulations for local plans. Councils,

“must specify the number of dwellings built in the … area”.

Regulation 48(6) makes it clear that this number is,

“net additional dwellings in any part of the area of the authority”.

That is a long-standing arrangement that councils agree with and which we are not changing. However, we want to strengthen the arrangement further and already propose to include a requirement to report on affordable housing as part of our new streamlined regulations, which were placed in the House Library this week for information. We want local authorities to be held to account for their performance by their communities, and the Bill will remove top-down involvement by Government as councils will publish information direct to the public in the interests of transparency and accountability.

[Lord McKenzie of Luton]

Would the Minister repeat what has been placed in the Library this week? Was this today or yesterday? What notification has been given of that?

[Lord Taylor of Holbeach]

I am sorry, my Lords, my notes here say that it was placed in the House Library this week for information. Indeed, I think that I referred earlier to draft regulations that have been placed in the Library this week for the information of noble Lords. I hope that that will inform this debate. We are going on to debate housing, though probably not this evening, so noble Lords will have an opportunity to swot up on those.

The noble Baroness, Lady Greengross, mentioned neighbourhood planning. She wanted to know how it would protect minority groups. Neighbourhood plans will be tested at an independent examination and must have regard to the national policy and be in line with strategic elements of the local plan. Everyone has the right to be heard at the examination, and human rights issues can be considered.

I come to the point made before we broke by the noble Lord, Lord McKenzie, about two authorities with some tension trying to deal with an issue that was affecting their neighbourhoods. Compliance with the duty to co-operate is assessed through the independent examination of draft local plans, and failure to demonstrate satisfactory compliance risks the local plan failing the examination. Having no local plan means that councils lose control of how their area will develop. This disfranchises their constituents, who will hold them to account, as I said in my previous comments.

I would like to correct something that I said. When I said that the draft regulations had been put in the Library this week, I meant last week. Unfortunately, we are all suffering from a slight sense of jet lag as the Bill is moving with such rapidity through the House.

The noble Lord, Lord Beecham, mentioned the low housing build. I am sure that noble Lords opposite will reflect on the fact that this extends back into the period of the previous Administration. We must remember that the market for housing has suffered for reasons entirely unconnected with planning. However, the experience is that numbers in regional plans did not provide a reliable indication of the number of homes actually being built. We know that indicative planning at the regional level for housing need caused huge stress within the system.

We will shortly be publishing the new national planning policy framework, which reviews all national planning policy. I know that my ministerial colleagues understand and take seriously ensuring that the new policy framework makes clear the need for local authorities to understand the housing needs of all people in their area and to monitor the effectiveness of their policies. We will shortly be consulting on the draft of the framework, and will listen to all the views on this and other areas to ensure that the policy is as strong as it can be. I hope that that encourages the noble Baroness and that she will feel free to withdraw her amendment.

[Lord McKenzie of Luton]

Before the noble Baroness answers, can I thank the Minister for alerting us to the regulations which have been posted in the Library? It is very difficult to keep abreast of what is going on in this Bill. We had some government amendments tabled yesterday of which we had no prior notice and it does not help an expeditious focus on the Bill.

Those, together with the NPPF, as soon as we get it, will reassure us on some of these points, although we would like to see this obligation embodied in primary legislation on the face of the Bill. My noble friend Lord Whitty encapsulated a debate which we will have more intensely in due course about the problems and challenges in respect of housing in the UK at the moment. Regional spatial strategies are not necessarily flavour of the month but, if you look at the record, there were years when they were beginning to deliver. If you look at 2007-08, we had the highest levels of house building for something like 20 years, just as that process was beginning to get under way.

I am grateful for the support of other noble Lords who have spoken and I am still unclear about the central issue of when you have a dispute between neighbouring authorities over housing provision and how, in terms of the examination of the plan and whether that plan is sound, those judgments will be made. I reiterate the point so that the noble Lord might reflect on it and possibly write in due course, certainly before Report. If you have two authorities which are at odds and take a different view, does the examination of the plan have to take a view as to which of those two authorities might be the most reasonable in their approach and therefore influence the outcome, or is that process in terms of co-operation just looking at whether each party played the game?

[Lord Taylor of Holbeach]

One of the things the Bill provides for, as we have just discussed in Clause 95, is the duty to co-operate. It is not a light thing; it is a duty. I mentioned in the précis I gave in response to the noble Lord that there are sanctions against authorities whereby they run the risk of their local plan failing the examiner’s test. If the noble Lord would like me to write to him specifically on that I will do so. I apologise if communications have been such that he has not had the usual courtesies extended in terms of being informed about government amendments.

[Baroness Greengross]

I thank noble Lords who have supported this amendment and the Minister for responding in the positive way that he has. This is broader than social housing and, although I am really pleased to hear that everybody agrees that local authorities must know the facts in order to meet the needs of the local population, something is not working at the moment, as the examples I quoted demonstrate. Because there is so much good will towards getting this right, I hope that that is going to happen, with the work that is going to be undertaken and with the commitment of the Minister and the Government to get this right. I reserve my judgment as to whether anything needs to be taken further but, in the mean time, I thank noble Lords again and beg leave to withdraw the amendment.

Amendment 148 withdrawn.

Clause 96 : Local development schemes

Amendment 148ZZZA not moved.

Amendment 148ZZA

Moved by

[Lord Cotter]

148ZZA: Clause 96, page 74, line 15, leave out subsection (2) and insert—
“(2) For subsection (3) (requirements as to preparation of schemes) substitute—
“(3) The local planning authority must have regard to sustainable development and Town Centre First Policy, as defined in accordance with subsection (3A).
(3A) The Secretary of State must lay before Parliament an order to define sustainable development and Town Centre First Policy.
(3B) A statutory instrument containing an order under this section may not be made unless a draft of the instrument has been laid and approved by a resolution of each House of Parliament.””

[Lord Cotter]

My Lords, this amendment addresses the issue of keeping trade local. I am sure many Members, Ministers and others will be aware over a number of years that there have been sustained campaigns on this issue of keeping variety and choice for the consumer, the issue of protecting small shops and the issue for people in business as well as the local community of having choice.

The Federation of Small Businesses carried forward a strong campaign, including coming to Parliament, lobbying and getting a lot of support for this. In the light of this very large Bill, which we are struggling to get through in time, I could speak at great length on this issue, although I will not. However, it is a very big and important issue.

20:30

I shall say a few more words, hoping that the Minister will accept that this is a big issue that has been running for many years. We see the decline of town centres gathering pace. This amendment looks for statutory protection for a diverse, sustainable high street. No one can deny the need to keep our high streets and town centres vibrant and alive. Week by week, over many years and currently more than ever, we learn through our newspapers and the media generally how many town centres are withering away.

I do not expect many Members here tonight to have studied a Bill that I introduced, the Retail Development Bill. It passed through this House and I now have it in my hand. It was printed in January 2008. It more widely addressed the issue that I have just talked about in lots of different ways. That Bill was the result of my campaigning over many years on behalf of small shops and the support that I got from the community. I hope the Minister will at some stage perhaps at least refer to that Bill, which is far broader than the amendment I am moving tonight. Notwithstanding that, and for the reasons that I have given, I have tabled it because there is a great need to protect our local shops.

Without saying much more about it, I say to the Minister that the amendment deals with only a small part of the Bill, which is very comprehensive. However, I maintain that in one way or another, this amendment, addressed to this specific issue, is absolutely vital. I would be doing less than the duty that I feel to the community and its shops if I did not press forward with the amendment, and hope that this could be addressed in some way at some stage. It is, as I say, so important. On that basis, I beg to move.

[Lord McKenzie of Luton]

My Lords, we have tabled Amendment 153AKA in this group. It requires the local authority to prepare and maintain a retail diversity scheme as part of the local development scheme. It calls for a sequential approach to the development of a hierarchy, putting existing centres first, followed by edge-of-centre locations and then out-of-centre sites. This is very much consistent with the amendment of the noble Lord, Lord Cotter. I was interested to hear about his Retail Development Bill, which I must confess I have not studied in detail, although it seems that neither has his colleague who is sitting in front of him. Perhaps he has. Maybe I could borrow a copy during the Recess.

The amendment will be familiar in that it is a rerun of what was proposed in the other place. On reflection, we should have deleted the proposed power of direction for the Secretary of State. We have brought it back because it was spoken to warmly by the Minister, Greg Clark, who said:

“Policy on town centres has always been part of national planning policy … I wish to signal clearly the importance of having robust policy, including the sequential test that is currently in planning policy statement 4. That will absolutely be in place, and it will be clear in the new national planning policy framework”.—[Official Report, Commons, 17/5/11; col. 270.]

It is difficult for us to test that issue because we still do not have the new NPPF, but we live in hope.

The amendment of the noble Lord, Lord Greaves, which he has not yet spoken to, requires there to be an assessment of,

“the vitality and diversity of the shopping areas”,

and makes it necessary,

“to include appropriate policies to promote the vitality and diversity”.

The noble Lord’s amendment states that there must be a consultation, including with the traders. So far as it goes, we can and will support that amendment, but it is vital that there is clarity on the sequential approach. The existing vitality and diversity of shopping centres can dramatically be undermined by inappropriate out-of-town development.

I should recall that I spent a brief time as a Minister in CLG at the tail end of the previous Government, as well as trying to cope with DWP issues. As the noble Baroness, Lady Hanham, will know, you are allocated planning issues to look at when they come forward, one of which stuck in my mind. There was a proposal for a significant retail development in an area, which would have been fantastic for that area in terms of jobs and the retail offering but would have destroyed three or more shopping centres in close proximity. There is an issue about how the duty to co-operate will work in such situations where there is a retail opportunity in one local planning area, which is substantially in the interests of that area, but could be of real detriment to other areas. We will follow with interest these issues around what the NPPF says and the extent to which that overlays local development plans.

The noble Lord, Lord Cotter, referred to the current situation on the high street. It is in a pretty dire state. Some 12,000 shops closed their doors in UK high streets last year, and 85 per cent of people feel less optimistic about the prospects for economic recovery when they see boarded-up shops in their local high street. In the past fortnight, Jane Norman went into administration, Carpetright shut 75 stores, and Habitat put 30 premises outside London into administration. Retailers Homeform, HMV, Comet, Mothercare, JJB Sports and Thorntons have recently been hit. Local Data Company states that 14.6 per cent of retail premises are now vacant. This indicates that approximately 50,000 units are not currently open to business on the UK high street, which shows just how challenging the situation is on the ground.

This matter is particularly relevant at this point for the economy of our country, and demonstrates that we need to do whatever we can through the planning process, as well as through other means, to preserve, protect, encourage and promote development on the high street. That is the purpose of these amendments, and I hope that the Minister will support and accept them.

[Lord Greaves]

My Lords, as the noble Lord, Lord McKenzie, said, I and my noble friend Lord Tope, have tabled Amendment 153AKC, which proposes a new clause, entitled,

“Health and diversity of town centres and high streets”.

Before speaking directly to that amendment, I should first acknowledge the work of my noble friend Lord Cotter in this area over the years. He has been determined and diligent in pursuing these matters and is to be congratulated on bringing the amendment. It is true to say that the three amendments in the group are all rather different but address the same basic problem. I am sure that if the three of us sat around a table, we might well have been able to come up with an amendment with which we all agreed and which would combine the best of all three amendments.

The amendment that I am proposing is slightly different because, unlike the others, it concentrates not so much on town centres but on town centres and high streets. That is not to say that town centres are not important—they are vital—but the shopping streets that we are talking about are not just in town centres. My amendment, which internally we are calling the “Cambridge amendment”, comes from campaigners in a part of Cambridge called Mill Road—a shopping street that is not part of the town centre but is a district shopping street of great variety that is under threat. It was the suggestion of the campaigners that resulted in us putting this amendment together. It clearly overlaps with the other amendment.

I want to speak to Amendment 153AKC, which relates to Section 19 of the Planning and Compulsory Purchase Act 2004 about preparation of local development documents. I want to include an extra section in that, saying, first, that the duties in putting together the development documents should include,

“a requirement to assess the vitality and diversity of the shopping areas in the area”.

Secondly, that:

“When preparing local development documents and other local planning documents the local planning authority must consider the results of that assessment and consider whether to include appropriate policies to promote the vitality and diversity of those shopping areas”.

Thirdly, that:

“The local planning authority may prepare a scheme for retail vitality and diversity which may be a local development document or other local planning document”.

The policies that we set out are similar to those in the amendment from the noble Lord, Lord McKenzie, but a little different.

The local planning authority may,

“define a network of retail centres in the area … assess the existing character and vitality of those centres … designate the desired retail mix for each of these retail centres … promote sustainability and diversity in the retail mix that is desired in each case”.

In doing this, it must consult with the local community, which includes the traders in each shopping centre, and a shopping area means an area of town centre or high street where the substantial use is retail. So sustainability and diversity, which we are suggesting should be foremost in these policies, means that there is an appropriate balance of independent and multiple traders, of unit sizes, and balances of classes of use.

We are putting the emphasis on what is there now. The Labour Party amendment, if I can put it that way, talks about the importance of maintaining the existing policy of the sequential test. If there is a proposal for a new supermarket, can it be fitted in the town centre, can it be at the edge of the town centre, can it be at the edge of town, or does it have to be in the countryside? It is very important that that is maintained, but it is not the only important thing. If you are having a new supermarket, or even a new relatively small Tesco- or Sainsbury’s-type store, like a Tesco Express, the issue is not just where it is, but the effect it will have on the balance of shopping in its area.

In some areas, it might do more damage if it is in the high street than if it is 10 miles away in the countryside. According to a campaign there, Mill Road in Cambridge is described as having an eclectic range of small, specialist independent retailers; as the most ethnically diverse part of the city; and as Cambridge’s Brick Lane. A Tesco Express opened some time ago to widespread concern, and now a Sainsbury’s express wants to open on the other side of the bridge. The fear is that this will seriously undermine the independent local shops, which are a combination of ordinary food shops and specialist shops. If the food element comes under intense competition, those shops might then become unviable. It is suggested that policy and guidance is changed so that the local planning authority can take much more vigorous action to take these issues into account and, if necessary, turn down planning applications if they are thought to be detrimental to the diversity and vitality of a particular high street, whether in the town centre or elsewhere.

This is not just a Cambridge issue. We all saw on television the remarkable scenes in Bristol, where there were riots at night that apparently were connected with the opening of a similar type of convenience store in a street there. For those who live in relatively small towns, as I do, the vitality of our town centres is a very similar issue. In my own town of Colne, there are a lot of small independent shops, and maintaining that vitality and diversity means that we need the policy handles to be able to resist developments that, even if they are in the town centre and high streets, could be detrimental to their future.

Again, that is a very localist view, because it will put more power in the hands of the local authority and local people. There is no magic answer. Keeping the shopping centre and the high street going requires hard work not just by the traders but by the whole community, but it can be done. There are examples around the country where it is being done, and we need to do what we can to stop that being undermined.

20:45

[Earl Cathcart]

My Lords, I agree with the sentiments of what everyone has said so far. We must revitalise town centres. We have all learnt from the mistakes of out-of-town shopping, with its free car parking. In Fakenham, in Norfolk, when a new shopping centre opened about 15 or 20 years ago, within six months, 26 town-centre shops shut. That was very sad, and it is very difficult to get them back again. The other mistake made is that too many councils charge for town-centre car parking. That is daft. If you want to encourage people to use the town centre, make it as easy as possible for them to pop in there, go to the bank and then go into the butcher, baker and candlestick maker without any car parking charges. That is an irritant. Those who charge are being very shortsighted.

[Lord True]

My Lords, if my noble friend wants to come to our high street, he can have 30 minutes of free parking. The Mill Road story, to which my noble friend referred, is extremely interesting. Unfortunately, the Tesco Express, which was its original focus, was successful. There are defects with all the amendments before the Committee; I hope that my noble friend will not feel that all of them have to be addressed.

I was very encouraged by what was said in the other place. One difficulty is that not everyone has the same view of vitality. My predecessor as leader of my council from another party said that he would be delighted if he heard that a Tesco was opening in his area, because it would bring people to that shopping area. We must address head-on the nature of the retail multiple and the manner of the high street. Can my noble friend assure us that before we finish examining the Bill, when we have seen the national framework, Parliament will give local authorities real power to deal with the problems which my noble friends, Lord Cotter and Lord Greaves, and the noble Lord, Lord McKenzie, raised? That is all I ask for at this stage, not a detailed commitment. I hope that my noble friend can give that assurance.

[Lord Beecham]

My Lords, I warmly endorse the thrust of the three amendments. It is clearly desirable to have a proper planning framework to encourage retail diversity. However, although that is necessary, it is not a sufficient condition of ensuring that we get retail diversity. There are other significant considerations, particularly financial considerations and other policies which may militate against the achievement of the aspirations of the amendments—with which I entirely concur.

I can cite examples from my experience. When I was chairman of the development committee in Newcastle, I tried to persuade our partners in the city centre shopping centre—we were partners because we owned a substantial stake in it—to diversify the offer to try to get away from chainstores, which were pretty much all we had there, and provide for some niche retailing. Despite the fact that we were significant shareholders, I was totally unable to persuade them to do that.

In another example of the Tesco influence, in the west end of Newcastle adjoining a street in an ethnically mixed area with a lot of little local shops and one or two other retailers, Tesco has secured planning permission to build a largish store on the site of a former hospital. The hospital is very keen to get the money from it, for obvious reasons. I am afraid that council officials supported the recommendation, and indeed an inspector upheld the recommendation. So we have a Tesco store not far from the town centre that is likely to do serious damage to local shopping.

I fear there are policies that might encourage that kind of trade-off, where you are effectively getting a financial benefit—in that case for the hospital but in other cases for the local authority itself. Most of us welcome the proposal for tax increment financing but that puts a premium on promoting development that will generate significant rateable value on which you are then going to borrow. There will be a temptation, frankly, to push that kind of development at the expense of the kind of development that these amendments are interested in promoting, which is less likely to contribute hugely in terms of rates and certainly is more difficult to put together. So you potentially have a policy that might militate against the thrust of these amendments.

We are also now going to get a range of enterprise zones. I do not know if the Minister can tell us whether there will be any restrictions this time round on retail developments in the enterprise zones. As I understand it, it is pretty much carte blanche for whoever develops these zones. Again, I speak from experience—and there are other Members of your Lordships’ House who will know the kind of damage that was done to city centre shopping in places such as Newcastle, Manchester, Sheffield and Birmingham by some very substantial out-of-town shopping developments in enterprise zones. Enterprise zones were originally designed to promote investment in manufacturing industry and so on. It would be unfortunate if again they were to be captured by the interests of large retail developers, thereby threatening diversity in existing centres.

These amendments are entirely on the right lines and I hope that the Government will consider them very seriously. However, I also ask them to recognise that there is a need to look at the other policies that impinge on this area and try to ensure that there is a sensible look across the piece at the implications of a range of policies on the objectives that these amendments seek to promote. Perhaps that is a debate for another occasion but I do not think that we can look at these things in isolation. We need to bring them together, and I hope that these amendments may help us start to do that.

[Lord Taylor of Holbeach]

My Lords, I thank all noble Lords for participating in this useful debate on this group of amendments, which has been informed by my noble friend Lord Cotter’s Retail Development Bill and his experience in this area. I am very grateful to him for moving his amendment. As noble Lords, including my noble friend Lord Greaves, have said, the amendments in this group raise similar issues around town centre policy and retail diversity. The noble Lord, Lord Beecham, is absolutely right: a healthy retail economy is the most important thing in maintaining healthy town centres.

We understand and share the concern to ensure that developments should be sustainable. Planning has a key role in achieving this. The coalition’s commitment to this should not be in doubt. We also acknowledge the value to communities of prosperous and diverse high streets. Town centres are key to sustainable growth and local prosperity. They are at the heart of neighbourhoods, giving communities easier access to shops and services. The noble Lord, Lord McKenzie, is right that the Government have already made a clear commitment in debates on this Bill in another place—and, as noble Lords will know, as part of the Budget—that we will maintain strong policies that put town centres first for new retail development.

Perhaps I can address the interest expressed by my noble friend Lord Greaves in Mill Road, which is no doubt an important local area in Cambridge. Local councils have many tools to support local shops—not just planning but business improvements districts and, under this Bill, neighbourhood plans—and to bring complementary developments to the area. There are levers available to assist within the armoury that local authorities have at their disposal.

However, I just caution noble Lords that there is a risk that these amendments are a backdoor attempt to get at supermarkets. We must be clear that town centre planning policy is not pro or anti-supermarkets. Planning cannot seek to restrict lawful competition between retailers; in fact, planning policy is, and has always been—under all Governments and under different controlling administrations of local councils—blind to whether the operator of a retail proposal is a supermarket or an independent. We want the right scale and type of development in the right location to meet people’s shopping needs. That is the issue that we need to be addressing. That is what planning policy can support local councils to achieve in a more practical manner than legislation.

Perhaps I may deal with the point that the noble Lord, Lord McKenzie, made earlier, when he asked about the duty to co-operate in situations where the impact or influence that a development might have crosses local council boundaries. This is analogous to the housing issue. The duty to co-operate is not actually the main safeguard in this respect. Retail developments in one council area must be assessed for their impact on town centres in the catchment area. If catchment areas cross local council boundaries, it makes no difference—the impacts must still be assessed on the basis of the catchment area. This particular safeguard therefore already exists in planning practice.

[Lord Beecham]

My Lords, I just wonder about the definition of town centres. In an area such as Newcastle, the town centre is obvious, but in an area like Doncaster or Kirklees, where a number of towns are brought together under one unitary authority, what would be the definition of a town centre? I am sure that the Minister understands my point.

[Lord Taylor of Holbeach]

I think that I can help the noble Lord. Large centres of population have clearly identifiable city or town centres, but the outer suburbs usually have shopping malls and streets that are very important as neighbourhood shopping areas. We really want to be able to strengthen all these traditional shopping areas that people have been able to access. The whole purpose of this is of course to make sure that we do not lose the heart that lies at the centre of all our great communities. The issue applies just as much to a market town—or coastal town, as we were discussing earlier today—as it does to a large city. That is the focus. I will go on to say that the long-expected, shortly-to-arrive national planning policy framework will indeed make clear what our position is on that.

It is really up to the local council to decide what constitutes its view of a town centre and what it wants for the local population. After all, local councils are best placed to set locally relevant policies for the scale and type of retailer they want to see in their area and to integrate them with other policies on housing and economic growth. The best place to do that, then as now, is in the local plan rather than in a separate retail diversity scheme. Earlier, the noble Lord, Lord Whitty, mentioned the word “holistic”. I quite like that word because I think planning should be done on an holistic basis. More widely, local authorities can work with local businesses to help them offer a distinctive and attractive product to consumers using tools such as business improvement districts.

The noble Lord, Lord Beecham, asked a specific question about enterprise zones. Any retail development in an enterprise zone will still be subject to the strong town centre first policy as in national planning policy. I hope that that satisfies the noble Lord that the Government are ensuring that this matter is addressed properly. Further, I hope that my responses encourage the noble Lord to withdraw his amendment.

21:00

[Lord True]

Before my noble friend sits down, may I say that I was disappointed by his absolutely granite remarks about supermarkets? There are serious issues around what is a vital, viable, sustainable and diverse high street. Many factors are involved, both economic and social, and I do not think that Parliament can for ever lag behind public opinion on this matter. We all acknowledge and respect small shops in high streets, but the reality is that, up and down the country, people believe that our high streets are being systematically parasitised in a property grab by a small number of large businesses, which frankly do not worry too much about the profitability of individual sites.

I do not know whether the answer lies in this Bill or in planning, but I would submit that in social terms Parliament must address this matter with some seriousness and urgency. The nature of our high streets is changing. I believe that it is changing too fast and, as I have asked in the course of our discussions on the Bill, we should at least look to see whether there is a way we can do slightly more to protect the diversity of our high streets. That may be through giving grants and setting up business districts, but we do not have the resources to do that kind of thing. However, if we could bar the gate to one or two predators, I believe that that would be extremely helpful.

[Baroness Byford]

My Lords, before the Minister responds to my noble friend, perhaps I may say that I am certainly a great advocate of variety and choice. However, it worries me that it is actually the shoppers themselves who do not support independent shops. That is why those shops have been squeezed out of many places. We need to resolve that in a philosophical way, and I am not sure how that can be done within this Bill.

I understand the point that has been made all around the Committee and I am sympathetic to it, but what we see, particularly in smaller towns, is that people will use the shops in a minor way but continue to do their bulk buying in a supermarket because that suits them better. This is the dilemma we face. Occasionally I think we ought to put our feet where our mouth is, if I can use such a dreadfully vulgar expression. I am not sure how this is to be done in a Bill. I should like to add a word of caution. I am a huge supporter of independents and we use our local shops whenever we can, but we are lucky in that our village is quite large and still has a variety of shops. In some areas, the shops have disappeared, so the nearest shop is probably in fact a supermarket.

[Lord Taylor of Holbeach]

Perhaps I might respond because otherwise we will prolong a discussion about something that is not particularly apposite to this group of amendments. I believe that all sides of the Committee have faith in liberal market economies, and one of the effects of liberal market economies is that consumers tend to make their own choices. My noble friend Lady Byford pointed that out. I am really rather sorry that my noble friend Lord True is slightly less enamoured with the market, but I would say to noble Lords that retailing is a highly competitive business. Any noble Lord who has been engaged with retailing in any way will know just how competitive it can be. Indeed, it is changing all the time. The latest development in the area from which I come is not a shop but a shed, where people go to collect their orders that they have placed online.

I am sorry, but we live in rapidly changing times. It is a great challenge to local communities and a great challenge to those who are trusted by election to run local authorities, but the Bill is designed to give local authorities power to set the framework in which I suspect noble Lords will all accept that the market has to operate. I hope that it is possible for noble Lords not to press their amendments at this stage.

[Lord Greaves]

I shall certainly not move my amendment when I come to it, but I want to make a slightly different point. My amendment does not in any way suggest that there should not be supermarkets of any size. It suggests that in any particular place there should be an appropriate balance which ought to be determined by local people in the normal processes of discussion and so on. It may well be that it is unreasonable to keep out a small supermarket from a shopping street. It seems to me that it is not unreasonable to prevent that shopping street being turned over to three or four such shops, or two or three such shops, which then drive the others out—that is not a matter of competition, it is anti-competition, because it is driving out the people who cannot compete at that level. Obviously, we all agree with the market, but I agree entirely with my noble friend Lord True—the Government need to think a bit more about this.

It is absolutely true that it is a very difficult world out there for retailers, but shopping centres, high streets and town centres can, to a degree, make their own fortune. If there is sufficient campaigning desire locally, as there is at Mill Road in Cambridge, that must in itself be a plus factor in keeping that shopping street going as a diverse street. I will refer yet again to my own town of Colne where, over decades, there have been active groups of local councillors, traders, residents, historians and others interested in the town centre who have formed organisations, campaigned and actually rolled up their sleeves and done things to make Colne an attractive place to be. If you have a shopping centre and a high street which is attractive and somewhere local people are proud of, that gives the traders, who are all part of this, a head start. There are a great many towns the same size as Colne across the north of England which have something like 30 per cent or 40 per cent of their properties boarded up and empty now. I dare not say that Colne is thriving, because every time I say that, the local people—

[Lord Taylor of Holbeach]

May I remind noble Lords that I have responded on behalf of the Government to these amendments and I believe that the noble Lord is reiterating arguments which have been very well laid before the Committee already. We want to get through quite a lot of business and I hope that my noble friend will appreciate my interruption—I hope that I have not annoyed him to the point at which he will press his amendment. Perhaps he will wind up.

[Lord Greaves]

I shall say one more thing. I apologise if I am going on too long. I invite the noble Lord, who is into flowers, to come to Colne and look at all the flowers in Colne now, done by the wonderful organisation Colne in Bloom as part of the Britain in Bloom system. He would be proud of it and it is the kind of thing that keeps people in the town and encourages people to shop there. I invite him to come to Colne; he would be proud of all the flowers there.

[Lord Cotter]

I thank the Minister for his responses. I deliberately said, in proposing my amendment, that I did not want to go on too long, because it is a very big issue and we know what pressure we are under on the Bill, so I will try to resist going on too long now. However, I say to the Minister that this is a very big issue. The few of us here this evening, including my noble friends Lady Byford and Lord True, and the noble Lords, Lord McKenzie and Lord Beecham, have come forward with tangible examples. If the House was full, which I do not expect it to be at this time of night—let us say that it was Question Time and everybody was here—I could guarantee that many people would come forward with many more.

I am grateful to my noble friend Lord Greaves for his support and for his example from Cambridge, which encapsulated what has been happening throughout the country for many years. Other noble Lords came up with other examples. Were we to have had a full debate, the number of examples would have been enormous. I shall resist trying to go on too long. It was good to hear the Minister express awareness of many similar problems throughout the country and talk about the need for healthy town centres. He spoke of the coalition’s commitment to high streets and local shops and its desire to strengthen shopping areas. Although it is above my pay grade, he referred to the national planning framework coming along the line, as if that were something we can hope will help in this particular area.

It has been striking that, while the amendments are quite different, their whole thread expresses the same concern. I shall not go on very much longer, because I realise that we are under pressure. I did not wish this to become a discussion about the benefits or otherwise of market forces—we all approve of market forces, and I do not wish there to be a battle between supermarkets and small shops. However, when one goes down that road, one picks up the fact that, if you get a supermarket in an area, it reduces its prices until such time as it drives other competitors out. I shall not pursue that further save to say that very complicated issues surround market forces, competition and such like. Although I shall seek to withdraw my amendment, the concerns remain. I am sure that the Minister has listened to this debate, and will perhaps have a fresh look at my retail development Bill—which addresses a particular aspect of this matter—but also have regard to the points put forward by my noble friend Lord Greaves, the noble Lord, Lord McKenzie, and many others, which tangibly express a major concern for this country. I beg leave to withdraw the amendment.

Amendment 148ZZA withdrawn.

Clause 96 agreed.

Amendment 148ZZB

Moved by

[Baroness Smith of Basildon]

148ZZB: After Clause 96, insert the following new Clause—
“Development plan documents: climate change and carbon budgets
(1) Section 19 of the Planning and Compulsory Purchase Act 2004 is amended as follows.
(2) For subsection (1A) substitute—
“(1A) Development plan documents must include policies designed to secure that the development and use of land in the local planning authority’s area—
(a) achieves reductions of greenhouse gas emissions in line with the carbon budgets set under the Climate Change Act 2008; and(b) meets the current national planning policy objectives on assessing the risk of and adapting to climate change in relation to that area.””

[Baroness Smith of Basildon]

My Lords, I shall speak also to Amendment 150ZA. The amendments were inspired by existing legislation to which the Government have already signed up, mainly the Climate Change Act 2008. The Government have agreed to and supported an overall target of a 60 per cent cut in CO₂ on 1990 levels by 2030. That cannot be achieved unless there is real commitment behind it. That commitment cannot be isolated in the silo of just one government department; it has to be a theme across all government policies. If the Government wish to achieve their objective, there must be a culture change whereby all departments and Ministers in them have to be aware of the impact of policies which might seem unrelated on the Government’s commitment. If the Government are truly serious about meeting that commitment, as I believe they are, that is what they have to do.

In many ways, there is nothing new in these amendments, which I hope will make it easier for the Minister to accept them. They do not seek to introduce new policies; they seek merely to assist the Government in making those linkages and connections between this proposed legislation and legislation that is already on the statute book.

21:15

The noble Lord and I spent many hours on the Energy Bill and we heard the Minister then say that the Government wanted to be the greenest Government ever. We wholeheartedly support the Government in that objective and we offer to help whenever possible and to be supportive. It is in that spirit that we bring forward these two modest and sensible amendments. If the Government cannot accept them tonight, I urge the noble Lord to take them away, consider them further and perhaps bring them back as government amendments in due course.

The amendments set this legislation in the context of the existing legislation. On Amendment 148ZZB, at present the duty to consider climate change applies to the preparation of LDFs but not—this is very important —to neighbourhood planning. The amendment seeks to bring the obligation to consider climate change into local planning. At the end of the existing Section 38A, it would include that it,

“achieves reductions of greenhouse gas emissions in line with the carbon budgets set under the Climate Change Act 2008;” and … meets the current national planning policy objectives on assessing the risk of and adapting to climate change in relation to that area”.

Amendment 150ZA provides for a stronger and clearer obligation on local councils to consider the implications of mitigation and adaptation and the provisions of the Climate Change Act to making their plans. There is no confusion about the Government’s intentions. It is clear that the legislation is working with existing legislation and not against it or undermining it.

It may assist the noble Lord in considering this issue to know that there is very widespread support from all quarters for both amendments. I shall not read the entire list—that might tempt his patience with me—but it includes organisations such as the Campaign for National Parks, the Council for British Archaeology, the Environmental Law Foundation, the Royal Town Planning Institute, the RSPB, the Town and Country Planning Association and many other wildlife and environmental groups. It may also be of assistance if I point out that Birmingham City Council, which is, at the moment, a Tory and Liberal Democrat controlled council, and the London Borough of Sutton, which is a Liberal Democrat Council, both support these amendments. I hope that on that basis the noble Lord will be able to accept them.

[Lord Berkeley]

My Lords, I support these amendments. In some ways they are no-brainers: it is so obvious that they need to be there to close the gap that my noble friend mentioned.

Proposed new subsection (1A)(b) in subsection (2) of the amendment covers flooding risk, which gets greater all the time. However, many local authorities, sadly, do not take that into account when they allow new developments. Going back 20 years, there was an amazing story in Cornwall where someone wanted to develop a site near the beach in St Austell Bay. The developer produced the plans and everything went fine but the local people said, “The sea will overtop it”—many tens of millions of pounds had been spent on this development by then—but the developer said no and the council said nothing. A week later the sea did overtop it and flooded a large area. It was a high tide, which happens every now and then. Five years on, planning permission was finally obtained for this enormous development but with a very much higher sea wall. The amount of money and time wasted by people not taking into account the risks of climate change are tremendous.

I remind the Committee that proposed new subsection (1A) means including policies to encourage walking, cycling, public transport and much less use of the car; and the location of schools, hospitals and other such places where there is so often a consolidation which means that people have to travel much further to use them through no fault of their own. These issues never seem to come into the assessment. I hope that when the Minister responds he will support the amendment or come back with one in his own words if he thinks it is defective in its drafting, which I have heard him suggest before.

[Lord Boyd of Duncansby]

This is the first time that I have spoken in this stage of the Bill so I declare an interest as a solicitor in private practice, mostly in Scotland but also to some extent in England. I want to make two quick points. First, the Climate Change Act establishes legally binding objectives and targets for the reduction of carbon emissions by 2050. The development plan is the way in which the built environment is shaped for the future. It is really important that we ensure a seamless see-through in meeting these targets. The development plan is an important element of that.

Secondly, the national policy statements on nationally significant infrastructure projects all have within them considerable sections targeted at climate change. The Government are to be congratulated on taking forward those national policy statements in that way. There is an argument that, if the national policy statements make such a priority of ensuring that developments meet the carbon target, surely the development plan fulfils a similar function.

[Lord Taylor of Holbeach]

I share the concern of those wishing to be ambitious in meeting the challenges of climate change. I also agree that planning has a big part to play. We have underlined this in the carbon plan, our response to the Environmental Audit Committee’s report on adaptation and—as the noble Baroness, Lady Smith, will know—the renewable energy road map published today. The national planning policy framework, which we will publish very shortly for consultation, will make tackling climate change a priority for planning.

We already have a climate change duty on plan-making which was introduced by the previous Government. That duty seemed to them to be sensible and I agree—let me explain why. The current, existing duty expects a local council’s development plan documents, taken as a whole as their local plan, to include policies designed to contribute to mitigating and adapting to climate change. Neighbourhood development plans will need to be in general conformity with the strategic policies in local plans, including policies on climate change. The national planning policy framework will be clear on planning’s important role in rising to the climate change challenge. On the point of the noble Lord, Lord Berkeley, the NPPF will be clear on the need to cut carbon emissions and properly adapt to the impacts of climate change, including flooding.

Local planning authorities must have regard to national policy in preparing their development plan documents, as well as in determining planning applications. Neighbourhood development plans will need to be appropriate, having regard to this national policy. The current duty is a sensible approach—I hope that the noble and learned Lord, Lord Boyd of Duncansby, will accept that. It reflects that places are different and will be able to make different contributions to tackling climate change. It also recognises that not every development plan document, as a component of the local plan, can make the same contribution. One of the anxieties I have about these amendments, for example, is how every local planning authority would ensure that development in their area achieves reductions of greenhouse gas emissions in line with the national carbon budgets. Places are very different. Some are able to make big contributions, others less so however hard they try. For instance, some have natural energy resources, be it geothermal or wind in more exposed rural areas, that other areas just do not have.

While I understand the direction of travel intended by the two amendments in this group, I do not believe it will help get us to where we want to be in a trouble-free way. For that reason, I cannot support these amendments. I reassure the noble Baroness, Lady Smith, that the combination of the existing duty and planning policy within the framework provided by the Planning and Compulsory Purchase Act 2004 makes this amendment unnecessary and I hope she will feel able to withdraw it, because I do not think there is any disagreement between us on the objectives we are seeking to achieve. It is just whether these amendments achieve that objective.

[Baroness Smith of Basildon]

I am grateful to the noble Lord and, if I understand him correctly, he is saying the amendments are unnecessary because such provisions are already included. I suppose I had hoped that the temptation of joined-up government would have been irresistible and he would have wanted to accept these amendments to the Bill to make it absolutely clear that this is a thread that runs through all government policies.

I will take away and listen to what he has said. I am not for one minute suggesting that in every case the same contribution should be made to neighbourhood plans, but there should be some consideration of these issues at every level of the planning stage. I am grateful for his explanation. There is not much between us in terms of what we are seeking to do but I will look at that and be happy to withdraw my amendment at this stage.

Amendment 148ZZB withdrawn.

Clause 97 : Adoption and withdrawal of development plan documents

Amendment 148ZZZZBA not moved.

Amendment 148ZZZZBB

Moved by

[Lord Greaves]

148ZZZZBB: Clause 97, Page 75, line 32, leave out from “modifications” to end of line 33

[Lord Greaves]

My Lords, the numbering is getting bizarre but the content of the amendments makes up for it. I will also speak to the other amendments in this group. We are now on to the fairly short section of the Bill that deals with local development schemes and Clause 97 about the adoption and withdrawal of development plan documents. The purpose of these amendments is to set local authorities free, once again, to make their own decisions in a considered way, following independent examination by an inspector.

Individual documents make up the local development framework, the local plan, under the Planning and Compulsory Purchase Act 2004—the Act that was going to deliver our new streamlined planning system but has not quite worked out that way. Before then, the local plan was put to inspection—a public inquiry and an examination by an inspector. He or she made recommendations to the local authority and the local authority then had the freedom to accept those recommendations or not, modify them, or accept them in part or whatever they wished to do.

In 2004, the system was changed so the local authority, in effect, has to adopt what the inspector says. If the inspector says it is okay it has to be adopted; if the inspector recommends modifications they have to be accepted exactly as proposed. The local authority can decide not to follow the inspector’s decision but if it does it is back to square 1 and has to produce its plan all over again.

I remember my noble friend Lady Hamwee opposing the changes in 2004 with some eloquence and we can all go back and read her speeches and others from then, so you do not need much more from me. However, there is a principle here—local authorities are elected and they should be responsible for agreeing their own plans. Nobody is objecting to the process of inspection and examination and most authorities in the past adopted most of what the independent inspector proposed, but they did not have to and could make up their own minds.

There was a promise, which I thought the coalition Government were going to deliver, of freeing local planning authorities to make up their own minds once again. However, what we have in front of us in this Bill is a very weak relaxation of restrictions, which does not fundamentally change the position. Under the Bill, local authorities can make additional modifications to those proposed by the independent examiner, but only if they do not make material changes to the policies in the plan. In other words, they can tidy up a few loose ends but that is about that. The purpose of these amendments is, essentially, to remove Sections 21 and 27 of the Planning and Compulsory Purchase Act 2004 in order to free local authorities to make up their own mind. I beg to move.

21:30

[Lord Taylor of Holbeach]

My Lords, I thank my noble friend for introducing these amendments. I understand his purpose, but we are not minded to accept them. We are concerned particularly about the first two amendments, Amendments 148ZZZZBB and 148ZZZZBC, because they would reintroduce regulatory bureaucracy by restricting councils from making small text edits, such as correcting mistakes, page numbers and notation, before adopting their development plan documents. We do not see that that can possibly be justified.

If noble Lords are concerned that councils are being given powers to adopt or change policies without proper public debate, I reassure them that this is not the case. The Bill makes sure that councillors can adopt plans only when they are considered suitable by the inspector. We trust councillors to prepare plans that reflect local needs and bring forward sustainable economic growth.

Amendment 148ZZZZBD seeks to remove the Secretary of State’s existing powers to direct withdrawal of a council’s local plans during examination. We disagree with my noble friend on this issue, and we think that this is bottom-up. We have introduced Clause 97(5) to retain the existing backstop power in exceptional circumstances only, alongside our proposals in Clause 97(4), which will allow councils to withdraw their plans at any time before adoption. We believe that that is the right approach.

Amendments 148ZZZZBE, 148ZZZZBF and 148ZZZZBG collectively seek to remove sections from the 2004 planning Act that allow the Secretary of State to intervene in the preparation of local plans. These are existing long-standing measures that have not been used by this Government. In a practical sense, the powers are simply existing safeguards, which a future Government may consider it appropriate to use in the highly exceptional circumstance when a council is unwilling or unable to develop plans for their area. It acts as a useful reminder for local communities that their own councils should plan properly on their behalf and that they can hold them to account. I hope that with those assurances the noble Lord is prepared to withdraw his amendment.

[Lord Greaves]

My Lords, I am prepared to withdraw my amendment. I did not think I would get anywhere, but it is still very disappointing. The Minister said that the Government trust local councils to produce plans that will produce sustainable development, and so on. The truth of the matter is that no Government nowadays trust local councils at all unless they do what the Government or the inspector want, or follow the detailed rules and regulations. It is a very sad state of affairs, but it is clearly going to continue for some time. I beg leave to withdraw the amendment.

Amendment 148ZZZZBB withdrawn.

Amendments 148ZZZZBC to 148ZZZZBG not moved.

Amendment 148ZZZZBH

Moved by

[Lord McKenzie of Luton]

148ZZZZBH: Clause 97, Page 76, line 13, at end insert—
“( ) In section 23 (adoption of local development documents) after subsection (3) insert—
“(4) Subject to subsection (5), if a development plan document has not been adopted by the date that this subsection is brought into force, it cannot constitute a reason for refusing planning permission.
(5) Subsection (4) does not apply in relation to a replacement or revision of an adopted development plan document that is sustainable.””

[Lord McKenzie of Luton]

My Lords, this is a probing amendment, prompted by the National Housing Federation. It specifically focuses on an authority that has not adopted its local plan document and provides that this cannot constitute a reason for refusing planning permission. In a sense, this picks up just part of the federation’s proposition, which sets this in the context of a statutory definition of sustainable development and the presumption in favour of sustainable development. We have already discussed definitions of sustainable development and whether they should be enshrined in primary legislation, and we touched on the Government’s draft presumption in favour of sustainable development. We will doubtless return to these points on Report.

In the mean time, we have the demise of regional spatial strategies, no agreement—as the noble Lord, Lord Best, said last week—to preserve for at least a limited period related policies that are not directly incorporated into LDPs, and no draft official NPPF. Perhaps the Minister could spell out for us how things will work when local planning authorities have not yet adopted a local development plan. It must be right that the absence of a plan cannot automatically be used to deny an application for planning permission. However, is the Minister’s position that, where a local plan is not yet complete, it is necessary to look just at the NPPF, given that the Government have heralded this as a framework that sets out government priorities only to the extent that it is relevant, proportionate and necessary to do so? Do they not envisage distinctive local and indeed neighbourhood issues that are clearly outwith the NPPF?

Clearly the answer to all this is for local authorities to get on and approve their LDPs. However, we should acknowledge that they are faced with challenges on resources—challenges faced generally by local authorities—that are not made easier by the requirement to support neighbourhood planning and not helped by the hiatus caused by the actions of the Secretary of State when coming into office. Nevertheless, I stress that this is a probing amendment, and I would be interested to hear the Minister’s response to this issue.

[Lord True]

My Lords, I am conscious of the need to make haste and I am perhaps making too much. There are a lot of “nots” in this amendment. Obviously where local development frameworks are in place, local authorities are consistently working on development plan documents. In any clarification that may be being made, we would not want to arrive at a situation in which an emerging policy of an authority, which is traditionally given some weight by planning committees and often by the inspector, is disallowed because the final plan has not yet been formally adopted after the hearing by the inspector. I do not expect my noble friend to respond in detail on that point, but it is an extremely important point because emerging DPDs are very often the reflection of the latest thinking of local people and a response to localist pressure.

[Lord Taylor of Holbeach]

My Lords, the noble Lord, Lord McKenzie, is quite right in moving this probing amendment to emphasise that the preparation of plans is a great challenge for local authorities. It is central to the Localism Bill and is certainly very important for them. We believe in a timely plan-led system, free from unnecessary targets imposed by central government. We trust local councils and their communities to choose to prepare plans where they feel that they need to shape development in their areas as quickly as they can. This is why we have been careful to retain the basic process of developing local plans, including public examination, and we are trying to make them work better in the interests of transparency and accountability.

The noble Lord’s amendment, which I accept is probing, would penalise councils without adopted plans in place by the time the Bill is enacted. I think we would all accept that this would not achieve good, responsible local planning. Perhaps I can help the noble Lord, because we agree that councils should get on with their plans. Our presumption in favour of sustainable development would be the right tool to ensure that planning applications are considered. We are clear that the presumption should be that councils should say yes to development if their plans are out of date. While we share the previous Government’s ambition that the plans should not be delayed, we know that their approach of top-down deadlines imposed in the 2004 Act just did not work.

In addition, the amendment also comes across as an unnecessarily centralising measure. Instead we want to use positive incentives, such as the new homes bonus and the community infrastructure levy, to encourage councils to plan properly. We are clear that councils will be expected to say yes to development where their plans are out of date. There is a steady flow of plans coming through and we do not believe that legislating for deadlines is the right approach. The aforementioned NPPF and a policy presumption in favour of sustainable development are the right tools. Together they are more immediate and effective levers that will incentivise the same behaviour.

The amendment would also undermine a fundamental part of the system by removing the discretion from the decision-maker to determine what issues should be material considerations to an individual case. With those assurances, I hope that the noble Lord, Lord McKenzie, is in a position to withdraw his amendment.

[Lord McKenzie of Luton]

I am grateful to the Minister. I will certainly withdraw the amendment, but I am still a little unclear about the situation in which the local planning authority has not yet gone through the processes and got its local development plan in place. What will determine the acceptability of planning permissions that are sought in the interim? Very soon there will be the NPPF but I understand that it will be written at a fairly generic level—necessarily, as this is the virtue that has been made of it by the Government—so it will not pick up a lot of detail. How will those issues be settled, with the lacuna of no current plan? On what criteria will planning applications be made?

[Lord Taylor of Holbeach]

I think I gave the noble Lord the answer to this when I said that the presumption would be that the planning should be in accordance with the NPPF and any other material considerations. Outside that, the presumption must be that approval is given, so there is an incentive for local authorities to get these plans in place.

[Lord Berkeley]

Could the Minister clarify that? Is there not going to be a sort of bonanza before the LDP is finally approved? Before that, all the applicants will have to do is comply with the NPPF, which must be a very high-level document. Will there not be a flood of planning applications that, as the Minister said, the local authority will probably have to approve?

[Lord Taylor of Holbeach]

My Lords, there is an incentive for local authorities to get these plans in place—I think I have made that point throughout our discussions on these amendments—and all other material considerations have to be met, so it does not happen totally in the void. Local authorities must have regard to their own circumstances when taking other matters into account, which is all the more reason for them to be working on these plans at the present time.

[Lord McKenzie of Luton]

My Lords, I am grateful to the Minister again. I think that my noble friend Lord Berkeley has articulated the issue more effectively than I did. I would like to read the record on this. In the mean time, I beg leave to withdraw the amendment.

Amendment 148ZZZZBH withdrawn.

Clauses 97 and 98 agreed.

Amendment 148ZZZBA not moved.

21:44

Clause 99 : Community Infrastructure Levy: approval of charging schedules

Amendment 148ZZZBB

Moved by

[Lord McKenzie of Luton]

148ZZZBB: Clause 99, Page 76, line 40, at end insert—
“( ) In section 205 (the levy), at the end of subsection (2) insert “without prejudicing the provision of affordable housing in accordance with the development plan”.”

[Lord McKenzie of Luton]

My Lords, in moving Amendment 148ZZZBB, I will also speak to the other amendments in my name, namely 148ZZZBC, 148ZZZBD and 148ZZBAA. I will comment on the other amendments in this group after they have been spoken to.

Amendments 148ZZZBB, 148ZZZBC and 148ZZZBD deal with the community infrastructure levy and its consequences for the provision of affordable housing. The amendments, which were prompted by the National Housing Federation, seek to ensure, first, that the need for affordable housing is taken into account when setting the CIL and, secondly, that the CIL charging schedules contain a provision that allows for the CIL to be waived if securing the entire amount would prejudice the provision of affordable housing.

The NHF says that the community infrastructure levy will be in most cases mandatory on new developments. With 40 per cent of social housing having traditionally been delivered through Section 106 agreements, it is vital that the CIL is set at a level that does not prejudice the delivery of levels of affordable housing in accordance with local plan policy. It is also important that, where the combination of the CIL and affordable housing makes development not viable, there is a clear mechanism that allows the CIL to be waived in whole or in part so that levels of affordable housing do not fall automatically.

In the debate in the other place, all parties agreed that the CIL should not prejudice the provision of affordable housing. The Minister was explicit about this and said that the present arrangements in the Planning Act 2008 and the CIL regulations offered sufficient protection, though he did commit to return to the issue. The Minister suggested that the requirement in Section 211 of the 2008 Act to have regard to the economic viability of development meant that proper scrutiny would be given to the effect on affordable housing.

Regulation 14, which gives practical effect to Section 211, requires a balance to be drawn between the desirability of securing funding from the CIL and the effect on the economic viability of development across the area. However, this type of balancing exercise does not protect affordable housing and it cannot do so if, as is often the case, there is no clear numerical target for additional affordable housing units. It would be far better to legislate to make the position explicit that the CIL is not meant to lead to a reduction in levels of affordable housing or land for affordable housing. There is no evidence that affordable housing requirements have genuinely been taken into account in the emerging CIL charging schedules to date.

The document Community Infrastructure Levy—An Overview, which was published by DCLG in May of this year, appears to make two things clear. First, it states:

“The regulations rule out the application of the levy for providing affordable housing”.

In relation to planning obligations, the document says:

“The levy is intended to provide infrastructure to support the development of an area rather than to make individual planning applications acceptable in planning terms. As a result, there may still be some site specific impact mitigation requirements without which a development should not be granted planning permission. Some of these needs may be provided for through the levy but others may not, particularly if they are very local in their impact. Therefore, the Government considers there is still a legitimate role for development specific planning obligations to enable a local planning authority to be confident that the specific consequences of development can be mitigated”.

However, the document then goes on to say in a sense that the planning obligations proposals had been drawn tightly by circular 5/05 and that is now enshrined on a statutory basis in the regulations.

Therefore, I have a fundamental question for the Minister. Given that the CIL cannot be used for affordable housing and the Section 106 agreements cause its focus to be narrowed, what will happen to the vital source of funding for affordable housing that came from the Section 106 stream? I stress that this is not a trick question. There is a genuine inquiry here; I am trying to understand how this should work and what the Government’s intentions are. Funding generally for affordable housing has been heavily restricted. I know that the Government are looking at so-called affordable rents or intermediate rents as a means of generating resources for affordable housing. However, if that Section 106 stream is to be reduced, and potentially overshadowed by the CIL, how will that all work? How will it help the delivery of affordable housing? I beg to move.

[Lord Greaves]

My Lords, I have some amendments in this group, which I shall try to rattle through as quickly as possible. I start by saying that we support the broad thrust of what the noble Lord, Lord McKenzie, has just said.

Amendment 148ZZBBB is a kite-flying amendment that would include building improvement and renovation of housing. The noble Lord has spoken more eloquently than I would have done, so I shall say no more about that. However, this is a very serious problem with the new system.

Amendments 148ZZBBA and 148ZZCA, are very similar to amendments that were tabled in the House of Commons by my right honourable friend Simon Hughes. He asked us to table them again here, since he was given a fairly sympathetic response by the Minister when he talked to him about the amendments—they were tabled in the Commons but they were not debated there. They would widen the possible use of the CIL. Amendment 148ZZBBA leaves out the words “providing infrastructure to support” and inserts the word “supporting”. The proposed provision refers to the development of an area. In other words, the amendment would allow the CIL to be spent on projects that support the development of an area, and not just what might be narrowly defined as infrastructure. The amendment would amend Section 205 of the Planning Act 2008.

Amendment 148ZZCA makes a similar amendment to Section 216 of that Act, which at the moment—ignoring the preamble—reads:

“CIL regulations must require the authority that charges CIL to apply it, or cause it to be applied, to funding infrastructure”.

Amendment 148ZZCA would add “or any other matter”. That means that CIL could be used to fund things that are desirable in the area but not necessarily described as infrastructure.

Many areas, particularly big cities, do not necessarily require extra investment in their infrastructure, but that does not mean that local residents are not inconvenienced by development. They might be inconvenienced by noise, dirt or dust, or there may be nuisance from the operation of the development. A supermarket could have people coming in and out all the time, and making noise around closing time. This could be mitigated by investment in, for example, double glazing. However, this is not currently allowed under the legislation; it is not regarded as infrastructure. In reality, councillors with the opportunity of getting CIL will always levy it and will always find ways of spending it. However, they will not necessarily spend it on the best and most useful thing that they could spend it on if they have to stay within the narrow definition of infrastructure.

Amendments 148ZZBBC and 148ZZCC just propose replacing “ongoing” with “continuous”. I regard “ongoing” as being an unpleasant American word that came in probably several decades ago—I do not know—but the English word is, in my view, “continuous”, which would be better and more elegant.

Amendment 148ZZCD refers to regulation-making powers in the Bill that refer to passing CIL,

“to a person other than that authority”.

I am not trying to remove that provision, and I should say that this is a probing amendment to find out what that phrase means and who these other persons might be that the authority would or might have to pass the CIL to.

Amendment 148ZZBAZA relates to the same argument about authorities being able to make up their own minds after a charging scheme has been examined by an examiner and to obtaining their recommendations. It is the same argument that was made two groups ago, and I will not say any more about it. I do not imagine that the Government will agree with me about that, but it is important. The next amendment in the group is about the same matter, so I shall not speak to it any further.

Finally, I speak to Amendment 148ZZZBE. On page 77 of the Bill, proposed new subsection (7A) to Section 211 states:

“A charging authority must use appropriate available evidence to inform the charging authority’s preparation of a charging schedule”.

That seems to be garbage. Why does that have to be in legislation? There are then eight indications of what CIL regulations may make provision for. I shall not read them all out, but only a couple of them to provide a flavour, including,

“provision as to evidence that is to be taken to be not appropriate”,

and,

“provision as to how evidence is, and as to how evidence is not, to be used”.

They are all like this. Finally there is,

“provision as to how the use of evidence is to inform the preparation of a charging schedule”.

They are the kind of quite extraordinary provisions that ought not to be in legislation.

It is insulting that local authorities cannot make sensible decisions on their own without being given such minute and detailed instructions on exactly what to do. If the Government are to respond to all the criticisms made in this Committee about the detailed regulations that are being imposed, I hope that they might look at this provision as being at best redundant and at worst quite ridiculous.

[Lord Lucas]

My Lords, I wish to speak to my Amendment 148ZZCBA. It proposes to remove subsection (3)(b) of Clause 100, not, as my noble friend might think, in protest at the word “ongoing”, although it is an entirely unnecessary word. Perhaps the clause should refer only to future costs. What costs would be in or out, or out or in, because of “ongoing” being in the clause? The word is totally unnecessary. However, I want to mention this matter because it is a breach in the whole principle of CIL, which should deal with the infrastructure costs that are caused, or need to be contributed to, as a result of the proposed development.

Once you start to allow consideration of future costs, you will allow the whole CIL to be diverted to revenue and you will not get the infrastructure that you are supposed to get, and you will create a large deficit in the provision of infrastructure, because cash-strapped local councils will just hang on as long as they can without building the infrastructure. They will allow the roads to become more crowded and the schools to become fuller until the local authorities have to do something, and spend the CIL money on current costs. This is the sort of budgeting for which we criticised the previous Administration. I am very surprised that we are contemplating it ourselves.

[Baroness Hamwee]

My Lords, perhaps I, too, may ask a question about the provision of infrastructure on an “ongoing” basis. I entirely sympathise with the search for elegance, as my noble friend put it. My question is whether providing infrastructure on an ongoing basis means maintaining it. If that was what was meant, these lines could simply read “providing and maintaining infrastructure”. Presumably, therefore, it means something else. Does it mean something else excluding maintenance or something else and maintenance? Perhaps the Minister can aid the Committee in the interpretation of the provision.

22:00

[Earl Attlee]

My Lords, the purpose of the CIL is for owners or developers of land to contribute to the cost of providing infrastructure that supports the development of the area. Almost all development has some impact on the need for infrastructure, or benefits from it. It is fair that such development pays a share of the cost of providing that infrastructure. In setting a charge, local authorities must have regard to the actual and expected costs of infrastructure and its other sources of funding. They must also have regard to the economic viability of development, which includes the need to deliver affordable housing.

The noble Lord, Lord McKenzie of Luton, proposes amendments to provide that affordable housing provision will not be prejudiced by any levy charges that an authority may set. As we explained in the other place and to the National Housing Federation, the existing legislation already provides appropriate safeguards to avoid negative implications for the delivery of affordable housing. The statutory guidance issued under Section 221 of the Local Planning Act 2008, to which local authorities are required to have regard, explicitly sets out that a charging authority must take development costs, particularly those for affordable housing, into account when setting a charge. The point of the levy is to support and not frustrate the delivery of a local development plan. The statutory guidance is specifically clear that an examiner should consider whether a local authority’s proposed charges would put their affordable housing target at risk. Where the independent examiner considers that it does, they should not approve the proposed charge.

The noble Lord, Lord McKenzie, asked me about the Section 106 funding source for affordable housing. It does not follow that the imposition of a CIL charge will result in lower Section 106 contributions. In setting a charge, a council has to consider the impact on the economic viability, including affordable housing, and ensure that the levy does not put it at risk, which will include affordable housing funds. These amendments are clearly well intentioned. We agree that affordable housing is important and must not be harmed by the implementation of a levy. I can reassure noble Lords that the amendments are unnecessary, as appropriate safeguards already exist.

The noble Lord, Lord Greaves, in his Amendments 148ZZZBE et cetera, seeks amendments that would in effect allow local authorities to implement a charge without first having to remedy any deficiency identified by the independent examination of their proposals. Local authorities are in the best position to know what level of charges will work in their area to support development and encourage growth, but we do not accept that they should have complete freedom to set any charges they like. Instead, we are maintaining proportionate safeguards to prevent unreasonable levy charges, which could put development at serious risk. Our proposals rebalance the relationship between the examiner and the local authority, to provide that it is the authority that has the final decision on how any deficiencies in their proposed charging schedule are addressed. However, we are clear that any changes made by the authority must be sufficient and necessary to remedy any non-compliance identified by the independent examination of the proposals.

Noble Lords also seek to remove powers that allow for regulations to make provision about the evidence that a local authority must or must not consider in setting a charge. Our experience of similar examination of local plan-making shows that the decisions of independent examiners vary. Councils have tended to give a great deal of weight to previous decisions, and that has sometimes led to restricted local flexibility and freedom. We want to ensure that that does not occur with the levy. The proposed power will enable the Government to respond in a robust and flexible way to practices which threaten to undermine the ability of councils successfully to introduce their local levy charges. Our proposals strike the right balance between ensuring that local authorities have real discretion to set charges in their area while retaining appropriate safeguards to ensure that proposals do not put development of the area at risk.

Amendment 148ZZBBA, tabled by my noble friend Lord Greaves, would widen the permitted use of levy receipts beyond infrastructure to matters that support the development of an area. My noble friend has raised an interesting point. We are clear that the point of the levy is to support growth and new development. Infrastructure is of course central to supporting new development and unlocking growth, but it is not the only matter necessary to enable and incentivise development. We want to reflect on whether continuing to limit spending solely to providing infrastructure restricts local authorities’ ability to support and enable development of the area. We want to consider whether widening permitted uses of the levy would make the instrument more effective and better placed effectively to promote, support and enable new development.

My noble friend Lord Greaves also proposes Amendment 148ZZBBB, which would do two things. First, it would alter the purpose of the levy so that it is focused on supporting communities rather than development. We have set out proposals to pass a proportion of the funds raised in an area to the parish council for that area and for those funds to be spent on infrastructure to support the development of that area. Control over the remainder of the funds is to be retained by the charging authority—normally the unitary, district or borough council—to provide the infrastructure needed to support the development of the larger area. The point is that the impact of the development and the infrastructure needed to support it are not confined to the geography of the community. Some will be, and our changes to direct a meaningful proportion of funds to the communities where development takes place will deal with that. Other matters, such as transport, span communities—and, indeed, charging authorities.

Secondly, the amendment proposes to allow funds to be used for the building, improvement and renovation of housing. That is unnecessary, as existing primary legislation in the Planning Act 2008 already contains the power to allow for levy receipts to be spent on affordable housing. However, regulations currently prevent that. Allowing such spending is therefore not a matter for the Bill, but the treatment of affordable housing is relevant to the amendments sought. I can confirm that we will consult during the summer on making that change through regulations.

In Amendment 148ZZCB, my noble friend Lord Greaves seeks to remove the provision for regulation to set out the ongoing costs to be funded by the levy. The powers we propose mirror existing ones in the Planning Act 2008, which allow for regulations to set out the works, installations or other facilities to be funded by the levy. The existing powers are currently used to specify that the Mayor of London must use receipts to fund strategic transport infrastructure. London is unique in that the London boroughs may also levy charges in their area, but are free to spend the receipts on any infrastructure to support their areas. We have no plans to use the power to specify the ongoing costs to be funded, but we envisage that it is necessary to deal with similar exceptional circumstances.

[Lord Berkeley]

Can the noble Earl clarify what is covered by “future ongoing costs”? Is it maintenance of housing or maintenance of a road? It is a bit of an open-ended commitment. You can understand a capital cost but if it is maintenance for roads or housing forevermore, it seems a bit odd.

[Earl Attlee]

My Lords, perhaps it would be helpful if I first answered the question from my noble friend Lady Hamwee on whether ongoing means maintaining the infrastructure or excludes it. Clause 100 sets out that this includes maintenance and operation of infrastructure.

Amendment 148ZZBBC seeks to allow the levy to fund the provision of infrastructure on a continuous rather than ongoing basis. We do not believe that this amendment would have a material effect. Our changes clarify that levy receipts can be used to maintain the ongoing costs of providing infrastructure but such spending will still have to satisfy the requirement that it also supports development of the area. The reason for our change is that the current provisions are being construed as limiting spending only to the initial costs of providing infrastructure. This could prevent infrastructure that is wanted and needed from being provided where the funds necessary to maintain and run it are not available. This is a perverse outcome and we are making sure that councils have the flexibility to deliver what is needed to support development of their area.

My noble friend Lord Lucas seeks an amendment that would prevent regulations allowing levy receipts to be reserved for future ongoing costs. I have explained that our proposals are concerned with ensuring that local authorities have real flexibility to spend the funds on the matters that are needed to support development in their area. We believe that this amendment would constrain this flexibility and could result in inefficient and ineffective spending by requiring funds to be used now rather than retained for future strategic projects that are planned.

Amendment 148ZZCD, tabled by the noble Lord, Lord Greaves, and others, proposes to remove provisions that provide for regulations to place a duty on charging authorities to pass all or some of any community infrastructure levy received to other persons. Alongside the physical barriers to new development, growth can be slowed or restricted by local concerns about its impacts. We intend to use the powers conferred by Clause 100 to require charging authorities to pass a meaningful proportion of receipts raised from new development in an area to a parish, town or community council for that area where there is such a local council. The local council will be required to spend the funds to provide infrastructure to support the development of its area.

When communities understand that new development is directly contributing towards the cost of the demands that it places on the infrastructure of their area, and see that they will be given real control over how these resources are used to address those demands, they are more likely to accept and indeed support it. Our reforms to the levy will make it genuinely pro-growth. Addressing the demands that new developments place on infrastructure will enable development to happen and it will incentivise communities to accept it. Using receipts to invest in the local area will ensure that growth is supported and sustainable, which will in turn unlock new development and growth.

We want to reflect on the amendments proposed by my noble friends Lord Greaves and Lord Tope to allow the spending of the levy on matters other than infrastructure. It is essential that the levy operates in a way that helps drive growth as effectively as possible. We will carefully consider whether permitting spending on other matters can improve the instrument’s ability to support and enable development. As ever, I am very happy to discuss these matters privately between this stage and Report. I hope that noble Lords will feel able to withdraw their amendments at the appropriate point.

[Lord Greaves]

My Lords, I am grateful for the fairly positive response to some of the amendments I moved. I look forward to further discussions, and I hope that the Government will have completed their reflection by the time we get to Report.

The specific question I want to ask is on the payment to other persons. The Minister twice referred to the intention of paying over a proportion of the levy to parish town councils and community councils in Wales. Is it the intention that it would only be to parish and town councils, and to no other persons? If so, that would mean that in areas without parish and town councils no levy would be passed over to the community, which is a minority of the land in the country, but a clear majority of the people who live in England who do not have town and parish councils. Can the Minister also give us an indication of the proportion of CIL which the Government are thinking of requiring to be passed to parish and town councils?

22:15

[Earl Attlee]

My Lords, that is quite a detailed point. It would probably be safer if I wrote to the noble Lord on that.

[Lord Lucas]

My Lords, I would certainly like to take up my noble friend’s offer of conversations between now and Report. I think I heard three different answers to the question posed by my amendment, and I hope that I will end up with one answer by the time we get there.

[Lord McKenzie of Luton]

My Lords, I, too, thank the Minister for a full and indeed very positive, or broadly positive, reply. Certainly at this hour, I should like to read the record and perhaps revert to those who pressed this particular amendment on us to talk it through with them in detail. I am grateful to the noble Lord, Lord Greaves, for the thrust of his support. These issues around who else the levy should be paid to are certainly important ones, and I would be happy to be included in that correspondence if I may. It is also important that it is done by diktat of the Secretary of State rather than being the local authorities’ decision.

Can I just check: did I hear the Minister correctly when he said that he thinks it is right that the legislation provides for affordable housing to be included within infrastructure—the regulations currently preclude that? Did the Minister say that he was looking to consult on that later this year to change that rule, so affordable housing could be included? Was that what he said?

[Earl Attlee]

My Lords, I think the noble Lord will have to read the Hansard, but what I said was quite clear and the words in my speech will make that clear. The short answer is yes.

[Lord McKenzie of Luton]

In which case, I am most grateful to the noble Earl.

Amendment 148ZZZBB withdrawn.

Amendments 148ZZZBC to 148ZZBAA not moved.

Clause 99 agreed.

House resumed.

Royal Assent

Tuesday 12th July 2011 Lords Chamber

22:18

The following Acts were given Royal Assent:

Sports Grounds Safety Authority Act,

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act,

Wreck Removal Convention Act,

Police (Detention and Bail) Act.

House adjourned at 10.19 pm.