(13 years, 2 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
22:09 - Division on Amendment 199 - Ayes: 17 / Noes: 136 - Amendment 199 disagreed.
Lord Beecham
“( ) The statement may include the approach that the relevant authority has adopted for selecting information on pay policy from a provider, including any potential provider, of goods and services.”
Lord Beecham
My Lords, I do not intend to move the amendment but I urge the Government, in considering issues of procurement and the like, to bear in mind the need to ensure that reasonable conditions, in terms of pay and other conditions of service, are applicable not only to those employed within the public sector but to those with whom it contracts, and to seek to encourage the concept of the living wage, which has been adopted in London by successive mayors and which other local authorities are seeking to promote. I do not wish to detain the House further so the amendment is not moved.
Baroness Hanham
“CHAPTER 6ACommission for Local Administration in EnglandArrangements for provision of services and discharge of functions
(1) After section 33ZA of the Local Government Act 1974 insert—
“33ZB Arrangements for provision of administrative and other services
(1) Arrangements involving the Commission may be entered into by persons within subsection (4) for the provision of administrative, professional or technical services by any one or more of the parties for any one or more of the parties, whether for consideration or otherwise.
(2) For the purposes of subsection (1), arrangements for the provision of services involve the Commission if the Commission is one of the parties to the arrangements and at least one of the following conditions is met—
(a) the Commission is the party, or one of the parties, by whom the services are to be provided;(b) the Commission is the party, or one of the parties, to whom the services are to be provided.(3) The arrangements that may be entered into under subsection (1) include arrangements for—
(a) the Commission, or(b) the Commission jointly with any one or more of the parties,to have the function of discharging, on behalf of a party, any function of that party which is of an administrative, professional or technical nature.(4) The persons within this subsection are—
(a) the Commission,(b) the Parliamentary Commissioner, (c) the Health Service Commissioner for England, and(d) the person administering a scheme approved under Schedule 2 to the Housing Act 1996 (scheme for enabling complaints to be investigated by a housing ombudsman).”(2) In paragraph 13 of Schedule 4 to the Local Government Act 1974 (delegation by Local Commissioners) after sub-paragraph (2) insert—
“(3) Any function of the Commission may be discharged on the Commission’s behalf—
(a) by any person authorised by the Commission to do so, and(b) to the extent so authorised.(4) Sub-paragraph (3) does not affect the responsibility of the Commission for the discharge of the function.””
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, the three government amendments in this group give the Local Government Ombudsman the power to operate shared services with other public sector ombudsmen and clarifies the organisation’s ability to delegate functions to its staff.
Making provision for our public sector ombudsmen to share back-office functions makes sound, practical sense, providing as it does scope for better, efficient working. Moreover, making provision for public sector ombudsmen to share services, like a single point of contact for complaints from the public about public sector service failures such as social housing, has clear advantages for the public.
The amendment provides assurance that the Commission for Local Administration in England, as a corporate body, has the power to delegate functions to its officers—for instance, the ability for a member of staff to negotiate and let a contract for cleaning the office. This in no way relates to the delegation powers of the commissioners themselves, who have clear powers of delegation that allow officers of the commission to investigate cases.
The other two amendments in this group, first, make provision for the commencement of the provision that I have just described and, secondly, amend the title of the Bill to give the Commission for Local Administration in England its proper title.
Lord Beecham
All of us on the opposition Benches are happy to concur with the amendment moved by the Minister.
“Power to require property to be maintained to appropriate standard
A local authority may by byelaws make provision requiring that, on receipt by the local authority of a petition from residents of a particular street or other residential area to the effect that one or more properties in their street or area are not being maintained to the standard appropriate to properties in that street or area, the owners of the property carry out such reasonable repairs and maintenance as are necessary to keep the property up to the average standard of repair of the other properties in the street or area.”
Baroness Gardner of Parkes
My Lords, I am so pleased that we have actually reached one of my amendments. I flew back from Sydney yesterday specifically to be here for it but I felt sure that another 25 would have popped in ahead of me again. Fortunately, that has not happened.
This amendment comes about because at the moment, councils have no authority to do anything to maintain standards of appearance—and buildings at all—and this can be very bad for other residents adjoining. The home that I sold in 1977 to very rich people, who now have vast resources in this country, was done up at that time and has not been touched since. It is really quite sad to go past and see the gutters falling off and the stucco all in pieces. People in that street told me that they have repeatedly asked if something could be done about it, and the council has said that no, it has no powers to even request this. These people have taken petitions up to the owners of that house, but nothing has happened. When I asked the council, it said that it has powers if something is unsafe and going to fall down, or if it is a listed building—although even if it is a listed building, it cannot ask for it to be maintained; it can only prevent it from actually falling down when it gets to that point. I was surprised that the council says that it has no powers in this respect.
It should not be a case of demanding that people keep a place in immaculate condition. I know of a similar case in Montpelier Square, where local residents get very distressed by this. It is worth thinking about having an enabling power for councils. I hope that it would be needed. I beg to move.
Lord Beecham
My Lords, I have some sympathy with the noble Baroness, and welcome her on her return from her homeland. I trust she has not been suffering from jet lag; I will not detain her too long.
I am not sure that the amendment is necessarily the right way to deal with this. My understanding is that in conservation areas there are provisions under the Town and Country Planning Acts for steps to be taken to maintain properties of this kind. It is not without interest that in Edinburgh recently there have apparently been problems with requirements being imposed on local residents by the local authority—who appear to have powers similar to those advanced in this amendment—which have caused some controversy. Apparently large sums of money have had to be laid out on improving or maintaining properties, and some of those who are benefiting from those expenditures have been connected with the decision-making process. That would not be applicable if the amendment were carried, and one would hope that it would not occur. Nevertheless, it is difficult to define exactly what standards would be required.
There is, however, a more general point which applies to this and the other amendments in the name of the noble Baroness, and that is the general by-law-making powers of local government. This is something I took up with the previous Administration, and some modifications were made about that issue. It might be worth the Government looking at the extent to which councils are free to make by-laws as opposed to having to have everything approved by individual departments. Alongside that, perhaps the Government could look at the question of consent regimes generally, which is something again that I have been attempting to pursue for a number of years, including in some recent Written Questions.
The noble Baroness has touched on an issue, perhaps almost inadvertently, that is worth considering: the capacity of local authorities to make particular provisions for their areas without necessarily having to have everything approved by central government. I do not know how the Minister will respond; I suspect that he will acknowledge the good intentions but say that perhaps it is not appropriate for this Bill, and I certainly would not press him to go further than that. However, I ask the Government to take back the issues of by-law-making powers and consent regimes generally, not for the purposes of this Bill, but as part of a localist agenda.
Lord Shutt of Greetland
My Lords, I thank the noble Baroness, Lady Gardner of Parkes, for introducing her amendment and welcome her back to Britain. Local authorities already have extensive powers to take action where a property is dangerous or having an adverse impact on the amenity of the neighbourhood. I see no need for additional powers. Under the Housing Act 2004, local authorities can tackle poor conditions across all residential properties. If a property is found to contain serious hazards, the local authority can instruct its owner to undertake any works necessary to ensure that it is safe. Inspections and any subsequent enforcement to address the disrepair can be triggered by complaints to the local authority.
Local authorities have a key role to play in identifying empty properties in their areas, and in developing strategies to bring them back into effective use. We encourage local authorities to work with owners to persuade them of the benefits of bringing their property back into use. However, where it is clear that owners are not prepared to co-operate with efforts to get their property occupied through agreement, local authorities have enforcement powers to deal with them. Further powers available to local authorities to tackle disrepair and poor maintenance include those in the Town and Country Planning Act 1990. Where properties have an adverse impact on the amenity of the area, local authorities can require that they are tidied up, repainted and, where necessary, rebuilt. I hope this will satisfy the noble Baroness and that those who are concerned will have more luck in getting their local authorities to pursue the powers that they have.
I take on board the points made by the noble Lord, Lord Beecham, on the by-law issue. I confirm that the Government will look into that further.
Baroness Gardner of Parkes
I thank the Minister for his reply on this matter, which he went into in detail. I am even more grateful to the noble Lord, Lord Beecham, who understood the sort of point that I was getting at. I hope we will see the day when special items of need for particular councils can be dealt with more directly in that way. I beg leave to withdraw the amendment.
“Power to make byelaws about smoke-free places
(1) A local authority may make byelaws designating as smoke-free any place or description of place that is not smoke-free under section 2 of the Health Act 2006.
(2) The place, or places falling within the description, need not be enclosed or substantially enclosed.
(3) The byelaws may provide for such places, or places falling within the description, to be smoke-free only—
(a) in specified circumstances,(b) at specified times,(c) if specified conditions are satisfied,(d) in specified areas,or any combination of those.(4) Terms used in this section have the same meanings as in the Health Act 2006.”
Baroness Gardner of Parkes
My Lords, this amendment came to me because someone who lives near me in central London phoned me and said, “I don’t know what to do. I can’t open the windows on this swelteringly hot day because all the people who are working on the local building site are sitting along the garages below my residence, and the smoke is so intense that I can’t open the window. I am going to die of the heat”. She did not die of the heat; nevertheless, I rang the local council. It was not something I had ever thought about before. I said, “What can you do about it?”. The council said, “We can do nothing. We get these issues all the time, particularly with restaurants and bars. Lots of people now congregate outside them because they can’t smoke inside”. If anyone happens to live within reach of the smoke, it is absolutely deadly for them. It would be helpful if the council could make this a planning issue.
Last month, I read in the paper that Australia proposes to bring in completely smoke-free streets. I did not hear anything about that while I was there; no one mentioned it. It is obviously of more interest to the press here than it is to people there. That is a bit extreme. My amendment is fairly short and simple but I have had the most intolerant e-mails and letters from people, saying that I am a fascist who is trying to ruin their lives and take away their right to a bit of healthy smoking whenever they feel like it. It is obviously a very emotive issue—quite unnecessarily so. I am not suggesting anything wholesale. However, I am suggesting that people should have the right to live in their homes and open their windows without finding themselves so adversely affected. I beg to move.
Lord Beecham
My Lords, again, one sympathises with the motivation behind this amendment. Quite apart from the particular case to which the noble Baroness referred, it is not a particularly attractive sight to see people hanging about smoking in the street. However, the only grounds on which orders could be made would relate to the impact of that smoking on health.
Enclosed areas are of course covered by the existing legislation, and, as I understand it, there is power to designate areas other than enclosed areas, if, in the authority’s opinion, there is significant risk that without designation persons in the area would be exposed to significant quantities of smoke—areas where, although they are outdoors, there is a concentration of people or of prevailing structures around the area that might lead to people being exposed to the smoke. If that is indeed the case, as it appears to be under the Health Act 2006, there does not appear to be any need for the amendment. I would encourage local authorities to look at that Act. No doubt the Minister in replying will have more information about that.
Lord Shutt of Greetland
My Lords, again I thank the noble Baroness and the noble Lord for their comments. Indeed, I have great sympathy for the amendment as it seems to me that the place immediately after the no-smoke zone ends is the problem territory, whether it is outside a public building, or wherever it may be.
The amendment would give local authorities an explicit power to make by-laws designating areas as smoke-free. The Health Act 2006 makes provision for the prohibition of smoking in enclosed public places and workspaces. It came into force in England on 1 July 2007. Section 4 of the Act provides regulation-making powers for the Secretary of State for Health to make further regulations—for England—designating as smoke-free any place or description of place that is not smoke-free under the Act. This could cover outdoor places. Therefore, if the evidence on the harms of exposure to second-hand smoke becomes more robust, and the Government’s preference for voluntary local action to extend smoke-free places where there is a clear need is shown not to be working, the Government can consider using Section 4 of the Health Act 2006 at a later date. I would say that, at the moment, the Government do not intend to make use of these powers. However, I know that colleagues in the Department of Health welcome the debate on this important issue and will continue to monitor developments and the evidence.
While we are sympathetic to local authorities making by-laws that preserve public health, our preference is to see local authorities promote the benefits of environments free from second-hand smoke on a voluntary basis. Creating smoke-free areas through legislation gives rise to complex issues, which I know that colleagues at the Department of Health would want time to consider carefully, and I do not think this is something we should be dealing with at this late stage of this Bill. As such, I am afraid that I cannot support the amendment and trust that the noble Baroness will be able to withdraw it.
Baroness Gardner of Parkes
I thank the Minister and the spokesman from the Opposition for their very good and sound comments. I did not mention earlier that in the particular case I referred to one person left a cigarette burning which set fire to one of the garages so there is obviously a bit more of a risk in that regard too. However, I thought that was a red herring and should not be brought up.
This is a serious issue. I do not know what will happen in the future. I appreciate the points made about this being perhaps more of a health issue and therefore I am pleased to have aired it today—what a silly remark, to say “I have aired it” when we are talking about smoking. I have taken on board the comments that have been made and thank noble Lords very much. I beg leave to withdraw the amendment.
“Licensing of pedicabs
(1) A local authority may by byelaws establish a scheme for the licensing of pedicabs in its area.
(2) Such a licensing scheme may make provision about—
(a) the compliance of pedicabs with road traffic legislation;(b) where pedicabs may be stationary whilst seeking business;(c) the playing of music in pedicabs;(d) the roadworthiness and appearance of pedicabs; and(e) such other matters as the local authority may determine.(3) In this section “pedicab” means a cycle constructed or adapted—
(a) to seat one or more passengers; and(b) for the purpose of being made available with a driver in the course of a business for the purpose of carrying passengers.”
Baroness Gardner of Parkes
My Lords, it is rather an overdose of me today, but it does make up for all the times I have sat here quietly. I have mixed views about this amendment myself, particularly as yesterday I came back from Heathrow by cab and the taxi driver was very strongly opposed it. I thought that that was interesting. He said, “The moment you license them, you are legitimising them. They are so dangerous”. He had seen people injured. I find that this happens all the time when I am driving home in the evening. I will see a pedicab suddenly move from the left hand side of the traffic, without any signal, cut right across the traffic and possibly even do a U-turn. They really are a danger. In the central London area they are also a danger when they park on footpaths. People cannot walk past them and sometimes have to go out into the street to do so. It is a genuine problem.
I was interested in the cab driver’s remark asking whether you are legitimising pedicabs if you licence them, particularly as there is a Bill before the House or perhaps some other technical measure. However, this issue is being considered in a wider context. My points about loud music and so on are all perfectly legitimate, although I am not sure that this is the opportunity to consider them. Meanwhile, so that we can hear the Minister’s reply, I beg to move.
Lord Jenkin of Roding
My Lords, perhaps I may add to what my noble friend said. In fact, I introduced the London Local Authorities Bill which originally included a clause to provide for the licensing of pedicabs. It went through a long process of petitions that were heard. In the end, the promoter of the Bill, which at that stage was the City of London, decided that it was wiser to drop the pedicabs provision in order to get the Bill through. However, it was perfectly clear that the proposal aroused a lot of opposition. There is quite a lot of financial interest in this pedicabs business. I am talking primarily of London—I do not know about the situation outside London—but it is possible for those employed to drive pedicabs to make quite a lot of money if they are prepared to work hard, late into the night and in the small hours of the morning. The amendment is obviously not without some merit because there are members of the public who will use pedicabs in preference to hanging around for buses or going down to the Tube.
Therefore, I hope my noble friend can say something on this. There is a problem that needs to be dealt with, but perhaps not so much by amending this Bill but through a local authority private Bill. The issue should eventually be picked up by the Government and some form of regulation should be imposed.
Lord Berkeley
My Lords, as a cyclist in London, I have come to know the London Pedicabs Operators Association quite well. Yes, pedicabs irritate taxi drivers—and they irritate me because they are wider than my bicycle and I cannot always get past them. However, taxis, cars and white vans irritate people. At some stage, we all have to live together and hope that it all works well for the benefit of the community and for people who want to go somewhere late at night. Of course, tourists love pedicabs.
However, I agree with the noble Baroness that there is something wrong with the current situation. The noble Lord, Lord Jenkin, mentioned the private Bill debated here in, I think, 2009. My understanding is that there was a voluntary registration scheme that the pedicab association was prepared to sign, given that Westminster City Council apparently made specific undertakings in Committee to provide pedicab ranks around Westminster. That has not happened and the whole idea seems to have evaporated.
Perhaps I may move on to early this year, when a new plan came from the mayor’s office, Transport for London, the Metropolitan Police, Westminster City Council and the London Pedicabs Operators Association. They were asked to draw up a framework mechanism, documentation and software to satisfy the requirements of a formal licensing scheme that would include a partnership agreement, and to write a code of conduct—which is important—and a memorandum of understanding between those parties. However, again, nothing seems to have happened on this.
The pedicab association says that many of the issues listed in the noble Baroness’s amendment would in fact be in some of the agreements that it was setting out to achieve. The one thing that it says would be very difficult—and I agree—is to have, as suggested in the amendment, a separate agreement for each borough in and outside London. Most pedicabs operate in Westminster but I live in Camden during the week and they certainly move into Camden. Therefore, I believe that any such registration has to be London-wide and I am not sure why Transport for London is not picking this up and running with it, so to speak.
There is an issue here but I believe that licensing by TfL on a reasonable basis would work well. I know that taxi drivers do not like pedicabs because they see them taking away business, but we are not really here to preserve the monopoly of taxis in taking people around London. There is also the TfL cycle hire scheme, which seems to be doing quite well.
I believe that some of the issues that the noble Baroness lists in her amendment should be in some kind of agreement, but someone has to take that forward and I think that it should be TfL with everyone else’s agreement. However, every time there seems to be a step forward, something stops it. Perhaps, as the noble Baroness has suggested, people do not want a registration system because that would legalise pedicabs.
I think that pedicabs are here to stay. They are good fun. If they are registered, there will be some control over them, and I hope that that will get rid of those who do not comply with the regulations and that it will allow a good service to be properly enforced, with vehicles that have back red lights and front white lights, which are important. The noble Baroness makes a very good point with this amendment but it is probably not the right way to go forward at this stage.
Lord Kennedy of Southwark
My Lords, first, I think I should make it clear to the House that my father was a licensed London taxi driver and that both my brothers are licensed London taxi drivers. In fact, one or two noble Lords have mentioned to me that they have been picked up by them and taken home after a busy day in your Lordships’ House.
Lord Jenkin of Roding
If the noble Lord would give way, I have suddenly realised that my eldest grandson was for a time a pedicab driver and I should have declared that.
Lord Kennedy of Southwark
As far as it goes, I support the amendment moved by the noble Baroness, Lady Gardner of Parkes. Pedicabs, and the way in which they operate, can be a nuisance, and it is only by licensing them that we can get some control over them. It would therefore be good if local authorities could establish local by-laws for the licensing of pedicabs in their area. If people are going to travel in them, we should make sure that they are roadworthy, that there is proper insurance cover for passengers, that there are rules about where they can stand when waiting for business, that the people peddling them comply with traffic legislation and that, where breaches occur, there is provision to get them off the road.
I accept that at present they seem to operate only in central London, so Westminster council faces the biggest problem. However, like my noble friend Lord Berkeley, I would have preferred to see London-wide licensing of pedicabs. They will no doubt move elsewhere, with Camden, Islington, Kensington and Chelsea, Southwark and Lambeth all likely to have them in parts of their boroughs. By-laws that differ from borough to borough just risk confusion and it would be better to have a London-wide option. However, as I said, the Opposition support the thrust of the amendment and I hope that the Government can indicate what they will do to deal with this problem.
Earl Attlee
My Lords, I can understand why my noble friend Lady Gardner of Parkes has moved this amendment. She has explained the problem and other noble Lords have made sensible and balanced contributions. However, Transport for London and ultimately the mayor are responsible for pedicabs in London. The Government take the view that issues surrounding pedicabs in London should be dealt with at a local level, which this amendment would provide for. After all, this issue only really affects London. However, the mayor, Transport for London and the London local authorities are already taking the initiative to address the matter with straightforward measures that avoid the trap of overregulation. Noble Lords will be aware that Westminster City Council is currently working up a voluntary—
Lord Berkeley
I am sorry to interrupt the Minister but I believe that they operate in Oxford, and there is a similar problem there. But I do not know what the solution is.
Earl Attlee
My Lords, I skilfully avoided saying that this problem was unique to London, because I thought this issue might arise, and I might get challenged by someone like the noble Lord.
Westminster City Council is currently working up a voluntary registration scheme for pedicabs, with registration being incentivised by providing parking bays and pedicab ranks for members. Those operators and riders subscribing to the scheme will sign up to a code of practice, and the noble Lord, Lord Berkeley, has already alluded to these developments. This registration scheme would then tie in with the provisions relating to the enforcement of road traffic offences in relation to pedicabs, which are included in the London Local Authorities and Transport for London (No. 2) Bill, currently before Parliament. Effective implementation of the provisions in the Bill relies on a system of licensing or registration being in place. The relevant clause could not come into force until a registration scheme for owners and riders has been approved by the Mayor of London.
Baroness Gardner of Parkes
I thank the noble Earl and the noble Lords who have contributed to the debate. It has been much wider and more interesting than I had expected. However it is an issue, and I would like to respond on a couple of points.
The noble Lord, Lord Berkeley said that it should apply to the whole of London. I draw attention to the fact that traffic varies tremendously in London. For example, on the subject of disabled parking, the blue badge scheme does not apply in any of the three central London boroughs. You have to have a blue badge and a local badge as well to take full advantage of disabled parking. If you have a blue badge, there are blue-badge places you can use, but you cannot use any other parking places. Each of the three central London boroughs said it would make it impossible for them, because they would be flooded by people coming from outside the boroughs. So this is a long-standing arrangement just for central London.
I do not agree with the noble Lord that you need to have licensing for pedicabs out in Havering, for example, which I represented at one time. I do not believe there are any pedicabs running around Havering. I think they are a fun thing in central London. However my concern is not the fun element, which I agree with my noble friend Lord Jenkin, is absolutely wonderful. In Bangkok it was great fun to travel around in them. However it is not a fun element if you are at risk of being injured due to their ignoring road behaviour. That is what worries me.
This is an issue that needs to be tackled. I accept that it might be better tackled somewhere else and in some other way. Perhaps LRT could deal with it selectively, but it has to be done selectively, because many boroughs will have no problem at all. If—as the noble Lord, Lord Berkeley has said—Oxford already has pedicabs then there are other places which need this issue to be addressed now. But again, the areas will need to be limited.
I have listened to the debate and I think it is valuable to have it on record for when this issue comes up again as it surely will in some other capacity. Meanwhile I beg leave to withdraw the amendment.
Lord Clement-Jones
“CHAPTER 8Powers in relation to casino premises licenceVariation of licences: abolition of permitted areas
(1) A relevant local authority may consider and, if thought fit, grant an application to vary a converted casino premises licence so that it relates to premises to which it did not previously relate and may do so regardless of whether or not—
(a) the premises to which the application relates are situated in the area of the relevant local authority which issued the licence; and(b) the area of the relevant local authority in which those premises are situated was a permitted area when the converted casino premises licence was originally issued.(2) Subsection (1) shall not require a relevant local authority to consider any application to vary a converted casino premises licence if that local authority has passed a resolution under section 166 of the Gambling Act 2005 (resolution not to issue casino licences) and that resolution is in effect at the time the application is made.
(3) In Schedule 4 to the Gambling Act 2005 (Commencement No. 6 and Transitional Provisions) (Amendment) Order 2006 (transitional provisions), for sub-paragraph (13) of paragraph 65 (application of the Gambling Act 2005 to casino premises licences granted on a conversion application) substitute—
“(13) An application to vary a converted casino premises licence so that it relates to premises to which it did not previously relate shall be made—
(a) in the case of premises wholly or partly situated in the area of the licensing authority which issued the licence, to that licencing authority; or (b) in the case of premises wholly or partly situated in the area of another licensing authority, to that other licensing authority, and section 213(f) (definition of licensing authority) shall apply to such an application as if the licensing authority considering such an application under paragraph (b) was the authority which issued that licence.(14) Nothing in paragraph (13)(b) shall require a licensing authority to consider or grant an application to vary a converted casino premises licence so that it relates to premises to which it did not previously relate if—
(a) the premises are wholly or partly situated in the area of a licensing authority which did not issue the licence; and(b) the licensing authority has resolved under section 166 not to issue casino premises licences and that resolution is in effect at the time the application is made.”.(4) In this section—
“converted casino premises licence” has the same meaning as in the Gambling Act 2005 (Commencement No. 6 and Transitional Provisions) (Amendment) Order 2006;
“permitted area” means the area of a local authority which was a permitted area for the purposes of the Gaming Act 1968;
“relevant local authority” means a local authority in England, Wales or Scotland which is a licensing authority under the Gambling Act 2005.”
Lord Clement-Jones
My Lords, I shall speak also to Amendment 249A. This proposed new clause originates from a well researched report by Ernst & Young in July 2010, commissioned by the National Casino Industry Forum. It was designed to show the impact of a number of regulatory reforms, which would improve the economics of the gaming industry, benefit the public, and the public purse.
The current situation is totally illogical and, in the long run, unsustainable. There are currently 53 permitted areas where casinos regulated under the Gaming Act 1968 are allowed. The system of permitted areas was introduced principally to reduce the number of casinos to a manageable number. The areas were chosen on a subjective basis. The 1971 regulations included a formula under which any county borough outside Greater London with a population of 125,000 people became a permitted area.
When county boroughs were abolished in 1974, the formula was altered so as to bring in those former county boroughs which had a population of 125,000 or more at any time between 1 December 1970 and 1 October 1973. The list has remained frozen ever since. That is almost 40 years ago. In that time, demographics and economic conditions in these areas have changed enormously and 187 licences have been issued under the Gaming Act 1968. I should emphasise that this number is finite, which means that no more can be granted, but the number can be reduced. Of the 187 licences currently in force, 149 are trading; the balance have either closed down as commercially not viable or have not been opened, many for the same reason. Compare that to the 8,800 betting shops in existence, which are not similarly constrained.
Currently, a casino can relocate only within the permitted area in which it is located; so it cannot locate to another permitted area or to a town that is not in a permitted area. Hence, if the permitted area is overcrowded and the casino is commercially unviable it has no option but to close. Yet some 60 local authorities applied for a 2005 licence and were disappointed. This has led to a number of consequences. There are too many casinos within existing permitted areas; there has been a closing down of casinos with resultant loss of jobs; and the Exchequer is losing money from gaming tax lost as a consequence.
What is the solution? We need to be able to permit a casino to move to anywhere in the UK where the local authority is prepared to have one of the existing casino licences. Local authorities would consider whether they wish to have a licensing policy that states they can have a casino within their area. Many local authorities do, as can be seen from the number who applied to have a 2005 Act casino in their area, but were unsuccessful, as I stated earlier.
A casino operator with a non-operating licence—for example, where it has closed down because there were too many casinos in the current permitted area—could apply to transfer the licence to a local authority that wishes to have a casino. No local authority can be forced to have a casino. Under Section 166 of the Gambling Act 2005, it can resolve on a licensing policy stating that no casino licence will be granted. A local authority which has a no-casino policy currently in place will be excluded, unless it decides to change its licensing policy.
Even if a local authority passes a policy stating that a casino can be located in its area, the public has to be consulted. Before a new casino can open there will still need to be separate planning and premises licence applications where the public and any other interested party will be able to make representations. Only if these two things happen will the casino be able to move to a new location.
What are the consequences? The impact of this amendment, if accepted, will be to create new leisure facilities in a locality, new capital expenditure, new jobs—the NCIF calculates that 2,400 to 3,000 new jobs could be created in consequence—and increased revenue for the Exchequer. The Ernst & Young analysis confirms that up to £12 million in additional gaming duty would be levied if just 20 casinos relocated.
This proposal does not increase problem gambling as there is no increase in the overall permitted number of casino licences. Therefore, this is a genuine win-win solution. By way of explanation, Amendment 249A will extend the benefit of these provisions to Scotland. I beg to move.
Lord Beecham
My Lords, it is almost refreshing to move from the constant headlines about the casino economy, which the world has enjoyed for the past few years, to something as substantive and reasonable as the noble Lord has brought to the House today in terms of the limited number of premises to which this amendment would apply. The key to the argument of the noble Lord is that this should be a matter for local decision within the overall context of that limited number. It seems to be entirely consistent with the approach of localism—it should be a matter for local determination—with the benefits that the noble Lord has referred to being realised in a number of places that wish to see that kind of development augmenting their current offer to residents and visitors. I hope that the Government will look sympathetically on the amendment and facilitate its passage.
Lord Shutt of Greetland
My Lords, I thank noble Lords who have spoken on this amendment. I am aware that this amendment would make changes that some elements of the British casino industry have been seeking for some time. I can sympathise with the sentiments behind it, but this is not the right time to discuss the issues that the noble Lord raises. It is not an uncontroversial proposal and it would be wrong to assume that there is unanimous support for it either inside or outside the industry.
Seventeen new licenses were provided for by the Gaming Act 2005 aimed at contributing to economic development and regeneration in carefully selected locations. We do not know what sort of impact this proposal could have on the eight competitions to award the new licenses which are currently under way. All of those have yet to launch their processes. It would not be right to bring forward measures at this stage which could undermine these competitions and adversely affect the benefits that these new casinos could bring to local communities.
Nor should we assume that the casino industry in Britain is united behind this proposal. I understand that the industry is split over the idea. The National Casino Industry Forum supports it, but the Casino Operators Association is thoroughly opposed. That is not to say that the Government reject outright the principle behind the amendment, but there is some way to go before we could consider offering our support and we would need to look at some issues. For example, the amendment as proposed does not require the 40 or 50 currently dormant casino licences to be handed back as a quid pro quo. That might be an important gesture to ensure that any new flexibility did not lead to a substantial increase in the number of casinos.
The relevant Minister, the Minister for Tourism, who is responsible for gambling policy has met with representatives of the industry a number of times and they are fully aware of his views. I am sure that he would be prepared to consider this matter in the future in the terms that I have just outlined. With those reassurances, I hope that the noble Lord is willing to withdraw the amendment.
Lord Clement-Jones
My Lords, I thank the Minister for that reply. If those are reassurances, I wonder what a negative response would be. I thank the noble Lord, Lord Beecham, for his very positive response and I am grateful for his support. This is an anomaly and it should be covered by localism, the very word in the title of the Bill. On the other hand, I understand that the industry is not completely united on this. There is some wisdom in what the Minister has to say about waiting to see the outcome of the second round of the 2005 licences.
I take some comfort from the Minister’s comments that this will be kept under review. I have an awful feeling that it is never the right time and that it is easy to say that it is not the right time now. The NCIF, myself and others will be entering the lists again just as soon as the 2005 round is over and the impact of those new casinos is known because I think the good sense of this proposal is self-evident. In the mean time, I beg leave to withdraw the amendment.
Lord Marlesford
“Litter deposited from motor vehicles
(1) Local authorities may make byelaws about litter deposited from motor vehicles.
(2) Such byelaws may include provisions about—
(a) the application of section 87 of the Environmental Protection Act 1990 (offence of leaving litter) to litter deposited from motor vehicles;(b) the procedures for identifying the person in charge of a motor vehicle; and(c) the information which the registered keeper of a vehicle may be required to provide the local authority.”
Lord Marlesford
My Lords, I seek to include a provision to support local authorities in reducing the level of litter from vehicles. The Minister will know that an amendment was tabled in the other place, new Clause 23, on Report. I also tabled an amendment to raise the issue in Committee, but I withdrew it on the understanding that it could be revisited on Report.
A minor change to the law in this area is supported by the Campaign to Protect Rural England and its president, Bill Bryson, the Keep Britain Tidy group and the Local Government Group. More than 100 councils have requested that change so that they can take action against those who litter from vehicles. I should perhaps declare an interest, having previously been for five years the chairman of CPRE and currently being the president of the Suffolk Preservation Society.
I am sorry—indeed, ashamed—to say that Britain is a very dirty nation. It is one of the dirtiest nations on a world scale but would be pretty close to the top of dirty nations on a European scale, which is very shaming. Litter is something on which we can take action. Many years ago, when I was young in the 1960s, I sat for a while at the feet of Ernest Marples. Ernest Marples was one of the most remarkable Ministers I was ever able to observe. He had a maxim in politics: “It is not what you say that matters; it is what you do”. I want to say something about what we can do about litter on roads.
I have followed the issue for a while. There are two basic reasons why there is so much litter on roads. The first, of course, is that it is thrown on to the roads; but secondly, a real problem, is that contractors or subcontractors whom the local authorities designate to clean up roads fail to do their job. I have frequently followed that up, because when I go along a really dirty road, I am inclined to put down a Question for Written Answer to ask the Government when they intend to have it cleared up. Almost always, I get the Answer that it will be cleared up shortly; and almost always it is, but I do not think that that is necessarily the best way to go about it.
We are in no doubt that littering from cars is a serious problem. It is estimated that seven out of 10 pieces of litter which blight in the countryside are dropped from cars. In 2009, the AA found in an online poll of more than 8,000 drivers that 75 per cent of them thought that littering was a serious problem and that 94 per cent of them thought that it damaged their community.
It is clear that Ministers in Defra share our concerns. In December, my noble friend Lord Henley—who has now, of course, moved to greater and even more important things—reported at the first National Litter Convention that the Secretary of State, my right honourable friend Caroline Spelman, had asked him to look at the roadside litter issue. At the launch of the Waste Review in June, I understand that my right honourable friend referred to littering from cars as a perennial bugbear and suggested that there might be a need for a roadside litter summit. Given that the issue is clearly being taken seriously by the Government, I suggest that the Bill is the ideal place to do something, rather than just to talk.
Existing law already allows for people who throw litter from cars to be fined. The problem is that, in practice, councils have found it very difficult to use the power, as it is often impossible to prove who within the car was responsible for throwing the litter. The change in the law that I advocate would correct that problem very simply and allow councils to issue fines to the registered owner of the vehicle, who would be responsible for paying the fine concerned unless another person was nominated by the driver to pay it. That is a standard feature which currently applies to speeding fines, seatbelt offences and fly-tipping. The change is not about more regulation, it is about better and more effective regulation. It is something that we know that local councils are asking for.
More than 1,000 CPRE supporters have written to their MPs to request that the amendment be made. I gather that the Labour Party made a pre-election pledge to make this legislative change, so there is clearly widespread support for making existing powers to tackle roadside littering more effective.
The amendment tabled in another place proposed that the Bill should be amended in the way that I outlined. Amendment 195ZA is very similar, but it would give local councils the power to make by-laws to address the problem. I am not saying that Amendment 195ZA is entirely practical as it stands, but I look forward to the Minister's response because, in the other place, the Minister did not provide the honourable Member for Gateshead, Ian Mearns, with a substantive reply. I hope that the Minister will commit to introducing a government amendment to tackle this problem at Third Reading. We are all on the same side in this, but it is a matter of actually doing something. I beg to move.
Lord Reay
My Lords, I have put my name to my noble friend's amendment. Litter thrown from motor cars is a scourge of the countryside. It is a regular practice for people to discard litter from moving vehicles—in particular, drink containers and food wrappings. I am sure that to try to reduce the incidence of that habit is a goal worth pursuing. It is surely one test of how well a country is governed how tidy it is. I remember, when I visited Libya in the last years of Gaddafi's regime, how staggered and disgusted I was to see the quantity of litter to be found on the road between the airport and the centre of Tripoli. It was knee-deep in plastic. Of course, that was under a dictatorship, where regulating such things should be easier.
I also understand that the present situation here, where responsibility must be pinned on the person who has thrown the litter, is unsatisfactory. It is difficult enough to trace a car from which litter has been thrown. To then require the prosecuting authority to identify the culprits in the car is surely asking too much. It seems to me quite reasonable to hold the registered keeper of the vehicle responsible. As my noble friend explained, that is the idea behind the amendment. Whether such a change in the law would be successful in reducing the amount of litter thrown, we would have to see. I can certainly imagine that it would have a deterrent effect, with vehicle keepers not wanting to be exposed to legal penalties as a result of the actions of other people, whether members of their family or not, and therefore to some extent themselves acting as policemen.
Unfortunately, the amendment, for a reason which I do not entirely understand, does not propose creating a new national offence. As I understand it, the Bill was thought to be an unsuitable vehicle, although the amendment in another place proposed exactly that. This amendment would simply enable local authorities to adopt by-laws along the lines my noble friend described. As he said, there are grounds for believing that many local authorities might be interested in doing that. On that basis, I recommend the amendment to the House. I very much hope that the Minister will indicate that the Government now intend to do something about this problem.
Lord Jenkin of Roding
My Lords, I have huge sympathy with my noble friend’s amendment. Before he left the Chamber, my noble friend Lord Newton, who is taking part in the Welfare Reform Bill Committee, said that he was sorry not to be able to add his voice because he feels very strongly about this.
For nearly 30 years I lived in rural Essex within reach of my former constituency, and one of the disadvantages of the road we lived in was that it was perennially the subject of littering. There was a corner at the bottom of the hill with a bit of spare ground on the left-hand side and my children very quickly christened it “Mattress Corner”. It had become a place where people could dump their unwanted mattresses, which then had to be cleared up by the local authority. It was not only that. We lived a mile and a half outside the village where there was a fish and chip shop. We discovered that we were almost exactly the distance away that it took people to eat a bag of chips. I found myself as the riparian householder having to go out at fairly regular intervals with a plastic sack and one of those nice machines with which you can pick up things and pop them in the sack, simply to clear up the litter on both sides of the road that had been deposited by passing vehicles. Even if you saw a car with litter being thrown out of the window as it went past, there was nothing you could do. You did not know who the driver was or who had thrown it out. There was no point in taking down the number because nobody would do anything about it. You had to prove who it was. So I have every sympathy with this.
My noble friend Lord Marlesford said that it is not enough just to talk; you have to do. I have previously declared an interest as the joint president of London Councils and I am happy to say that London Councils is engaged at the moment in tackling this problem in London. It does this on behalf of the London boroughs and I think it is now ahead of the game. The London Local Authorities Act 2007 contains a provision to decriminalise the dumping of litter from cars and to impose a liability for penalty charges on the keeper of the vehicle. That is slightly different from the proposal put forward in my noble friend’s amendment but it is clear that we all have the same objectives in mind. A London Local Authorities Bill is currently awaiting its final stages in the other place. It will make a small drafting correction to that provision which will allow it to come into force.
Other steps are necessary. Discussions have taken place and progress is being made with the Ministry of Justice in relation to the making of regulations which will enable London borough councils to enforce their penalty charges under the civil regime in the courts. Officials are also co-operating on the necessary alterations to the Civil Procedure Rules and London borough councils understand that these changes and regulations will be made very shortly. I hope my noble friend on the Front Bench will be able to confirm that the provisions will be implemented very soon and the system can start to work in London. That is doing and not just talking. I believe London will show that this solution is perfectly feasible and can be addressed by local authorities. Other authorities may wish to copy what London Councils is doing and it will not be the first time that has happened. I support my noble friend’s amendment.
Lord Beecham
My Lords, I am very taken with the image of the noble Lord, Lord Jenkin, patrolling the highways and byways of rural Essex as a sort of unpaid litter warden. It is a charming thought and I am sure he did a very good job, but he should not have to. That is the message of the amendment tabled by the noble Lord, Lord Marlesford, and I congratulate him on bringing this matter to the attention of the House and hope that the Government will be able to respond. As the noble Lord said, the matter was debated in another place on an amendment moved by the Member for Gateshead, Ian Mearns, with whom I was discussing this on the train from Newcastle this morning. He received what seemed to be a sympathetic response from the Minister, Andrew Stunell, who said:
“We will certainly look carefully at the matters that have been raised”.—[Official Report, Commons, 18/5/11; col. 441.]
Time has passed so I hope that the consideration has taken place. I think it is preferable to have this in national legislation rather than leave it to by-laws. There seems to be no reason why this amendment should not be proceeded with on this Bill or at least a clear indication given that it will have some priority in other legislation. But this is really too good an opportunity to miss and I hope that the Minister in replying, even if he cannot say today that the amendment will be accepted, will indicate that by Third Reading there will be a clear position and the Government will feel able to adopt it.
Of course, as the noble Lord pointed out, this is essentially a matter of enforcement. There is little point in having regulations without the capacity to enforce them. But, as the Essex police have found out in another context, enforcing measures concerning the driving of vehicles is not necessarily straightforward. This would certainly obviate the kind of difficulties that have arisen in another case and one would hope that the Government would see the logic of that and accept the thrust of the noble Lord’s amendment, and see to it one way or another that the objective which most of your Lordships share is carried into being.
Lord Shutt of Greetland
My Lords, I thank noble Lords who have taken part in this debate and pay tribute to the noble Lord, Lord Marlesford, and his tenacity in pursuing this issue. It is always said that this is a House of experts. I had not appreciated the expertise that we had between us about the distance from the fish and chip shop to the home. I am also an expert on this. The home where I was brought up and lived until I was 23 was the exact same distance from the fish and chip shop. It was our garden that caught the recycled newspapers which in those days were used for wrapping up fish and chips, and we had to keep shifting them, so I understand the concern that people have about litter.
This amendment would give local authorities an explicit power to make by-laws about littering from cars. Throwing litter from vehicles on to public land is a littering offence under Section 87 of the Environmental Protection Act 1990. Indeed, some local authorities successfully tackle litter louts, issuing them with fixed penalty notices. I fully acknowledge that taking enforcement action against those who litter from vehicles can often represent a practical problem. However, extending the scope of the littering offence, as was also suggested by the Local Government Group in its amendment rejected in Committee in the Commons, raises issues of fairness and proportionality. A registered keeper may be open to prosecution even though they did not commit the offence and were not present to prevent it. It may not always be a ready solution for the registered keeper to avoid prosecution by identifying who was the actual offender.
However, as has been mentioned by the noble Lord, Lord Jenkin of Roding, powers will shortly become available to London boroughs following enactment of the latest London Local Authorities Bill, currently before Parliament, which will allow them to issue a civil penalty to registered keepers where enforcement officers witness littering from a vehicle. It makes sense to learn the lessons from the application of that approach in London before moving to wider legislation—and legislation is not the only approach. Changing littering behaviour is key. That is why the Government are supporting Keep Britain Tidy in developing the Love Where You Live campaign. That work with businesses, local authorities and civil society partners will make an important contribution to changing behaviour on littering in all its forms. The Defra Secretary of State is calling together later this year representatives of vehicle hirers, motoring associations, manufacturers, service stations, et cetera, with a view to agreeing a voluntary commitment to tackle littering from vehicles.
It is one of the guiding principles of making a by-law that no by-law should reproduce national legislation, which is what this amendment would achieve. That being the case, and although I certainly support the intention behind the amendment, which is that the anti-social practice of littering should be a criminal offence, I cannot support it and trust that the noble Lord will feel able to withdraw it.
Lord Marlesford
My Lords, I am afraid that that was a real example of talk rather than action. Frankly, it was a very disappointing answer. My noble friend said that we should wait and see how the new penalty worked in London. He spoke of changing behaviour and said that the offence might be disproportionate or unfair. It is a thoroughly unsatisfactory answer. I did not get the feeling that my noble friend was indicating that any action on the Bill would be taken at Third Reading. I will of course withdraw the amendment today, but we may well have to press it at Third Reading. The Minister’s answer really was disappointing. If this Government cannot steel themselves to do something about litter, what can they achieve?
Earl Attlee
“(1) A Minister of the Crown may, in accordance with the provisions of this Part, require public authorities to make payments of amounts determined by a Minister of the Crown in respect of an EU financial sanction to which this Part applies.
(2) A requirement to make a payment under this Part—
(a) may only be imposed on a public authority if— (i) the authority has been designated under section (Designation of public authorities); and(ii) the EU financial sanction concerned is one to which the designation applies; and(b) must be imposed by a notice given to the authority under section 33 (referred to in this Part as a final notice).”
Earl Attlee
My Lords, I shall speak to a necessarily long list of amendments, starting with Amendment 195ZAA. The amendments deal with EU fines. I thank noble Lords for the constructive suggestions made during and since Committee. As a direct result, I am able to move some substantial amendments and therefore intend to take a little time explaining them.
To start, it would be helpful to reaffirm the basic principles here: this is about encouraging authorities not to incur fines for the UK in the first place. In the unprecedented circumstance that the UK is fined in relation to an infraction, it is about achieving compliance quickly, using a process which is fair, proportionate, reasonable and holds no surprises. We do not want to pay escalating fines to Europe. We have never incurred fines regarding an infraction and do not see these provisions as a prelude to being more relaxed about infraction proceedings or fines.
All this is reflected in the policy statement of the Local Government Group, which has been placed in the House Library and updates the one previously put forward by the Greater London Authority. I strongly welcome the statement, which is very helpful. I thank both the Local Government Group and the Greater London Authority for working with us so closely on this, and for their help and support. This paper will form the basis of a government policy statement on which we will consult more fully in due course.
The noble Lords, Lord Tope and Lord McKenzie of Luton, each provided convincing proposals on designation in Committee. I have combined these and taken them further so that the Minister would need to designate each authority by order, using the affirmative procedure and specifying the infraction case and related activities of the authority, before the Localism Bill’s provisions could be used. The activities described must take place after the order comes into force and will relate to the authority’s functions and obligations.
This means that authorities can be designated only for something which is their responsibility. Only actions or failures to act following designation would be taken into account when deciding whether to pass on a fine, and only in relation to the specific infraction case. The designation order would cease to have effect when the infraction case was closed. This responds to concerns on retrospectivity raised previously and highlighted in Committee by my noble friend Lord Newton of Braintree. It puts in place a mechanism which will give authorities an early opportunity to put things right, to solve the problem, before any fine. It also means that this House and the other place will have the ability to test the rationale for the proposed designation in debate. If this does not provide sufficient incentive, and in the unprecedented circumstance that the UK is fined for failing to comply with EU law, we will establish an independent advisory panel before seeking to recover any fines.
I am grateful to my noble friend Lady Gardner of Parkes and the noble Lord, Lord Best, for suggesting how an independent advisory panel could provide sufficient checks and balances to ensure that the Minister could not act, at the same time, as prosecutor, judge, jury and co-defendant on these matters. As I made clear in Committee, we remain committed to the principles of transparency, fairness, reasonableness and proportionality. This amendment will enhance all these qualities.
Such a panel would be formed at the point of need, with relevant legal, topical and sectoral expertise for the specific case. The Minister would consult the panel on the procedure and timetable. The panel would receive representations directly from the Minister and from the authorities involved. It would carry out fact-finding and make published recommendations to the Minister, including on the fair apportionment of culpability.
I remain strongly of the opinion that decision-making should remain with the Minister as an elected member of the Government with responsibility to make such decisions on resources. Any Minister acting against recommendations would need strong reasons for doing so should there be a subsequent judicial review.
The amendments on the process reflect the new role of an independent panel and will enable the authority better to plan its finances by covering all possible payments up front: lump-sum, accrued and ongoing periodic fines. This transparency could be a big help, allowing the authority to weigh the costs of fines against the costs of speedy compliance.
Any ongoing liability to pay towards a fine from the EU would end at the point where the authority demonstrated that it had taken all reasonable steps to comply. There is also provision for liability to be reduced—but not increased—if there is a change of circumstances.
We are extending the provisions to cover reserved matters in devolved areas. I am grateful to the noble Lords, Lord Wigley and Lord Empey, who spoke on this, with others, in Committee. I can confirm to the House that the extension of the provisions to cover reserved matters, without prejudicing the performance of any devolved functions, has the full agreement of all the devolved Administrations. On the request of the Welsh Government, we are also providing a mirror power for Welsh Ministers to pass on EU fines to responsible public authorities exercising devolved functions in Wales. This replicates the UK provisions in their entirety, including designation by order.
The rest of my amendments make changes to ensure that the clauses as a whole work together.
Finally, I should like to respond to the amendment proposed by the noble Lord, Lord Berkeley—in advance of him moving it—which would ensure that the Government could not designate any rail or inland waterway provider. I agree that we should not penalise companies for their private services and functions, but where a company is performing a public function, and only for that public function, it needs to be encouraged to comply with EU law in order to avoid significant fines being picked up by the British taxpayer. Where a private company has responsibility under statute to carry out public functions, the default position would be to use any existing regulatory framework to resolve the issue. A Minister would seek to designate a private company only if it was carrying out a public function, if it had caused or contributed to an active infraction case, and if any regulatory body had not been able effectively to incentivise compliance. This would of course be tested by this House and the other place should a Minister seek to designate in such circumstances.
I hope that this demonstrates that I have taken on board the points raised in Committee, and that these provisions are stronger and better as a result. With these amendments there is a very clear emphasis on incentivising avoidance of fines. We are radically devolving power, but that needs to go hand in hand with responsibility. Therefore, I strongly believe that these provisions will help to protect UK taxpayers. I beg to move the government amendment, and hope that the noble Lord, Lord Berkeley, will be willing to withdraw his amendments at the appropriate point after he has spoken to them.
Lord Tope
My Lords, as I think I was the first to complain about the original provisions of the Bill when we considered it in Committee, it is only right that I should now be the first to rise to congratulate the Minister on what he has achieved since we were in Committee. I said at that time, with great regret, that the first that local government knew of the Government’s intentions on EU fines was when they read it in the Bill, which was most unsatisfactory. That is not the responsibility of the noble Earl, Lord Attlee, at all. His responsibility is the leadership that he has shown since that time in retrieving this situation. None of us would have wished to start from there, but that is where we found ourselves. The noble Earl has worked tirelessly since that time to achieve a compromise that is fully and wholly accepted by the Local Government Group, the Greater London Authority and, as far as I am aware, all others involved in this. It is still their position that it would be better if this were not in the Bill at all, but that is not too surprising—most people would rather not have provisions to fine them in legislation. Given that it is the Government’s intention, for the reasons given, that this will be in the Bill when it is enacted, then—thanks to the noble Earl and, as I think he would be the first to acknowledge, thanks to his officials—we have achieved a satisfactory outcome.
The only point that I would like to add is to welcome—as I also said in Committee—the statement of policy. It is a very good intention that the Government will discuss with local government those areas of concern in upcoming proposed EU legislation that has a significant effect upon local government. That is a very welcome good intention but I want to be sure that it happens. I have no doubt whatever that, as far as the noble Earl’s department is concerned, that has always been the case. I have been for many years a member of the Local Government Association’s European and international board and its predecessor’s bodies, right back to the days of the Local Government International Bureau. For some time in the early days of the new Labour Government we had regular meetings not only with CLG but also with the FCO and the Europe Minister to discuss issues of concern. They fell into abeyance some years ago and do not happen any longer. My plea to the noble Earl, and through him to the Government, is to ensure that this very welcome statement of policy does not just remain a statement of good intent but is actually put into practice. I am sure that this sort of meaningful dialogue between representatives of local government and representatives of central Government—not just CLG but also the FCO and other departments dealing with these issues, as appropriate—can only be to mutual benefit and will, we all hope, ensure that the provisions that we will shortly pass will never need to be used.
Lord Jenkin of Roding
My Lords, I raised this issue at Second Reading, as did a number of other noble Lords. I would like to join my noble friend Lord Tope in expressing gratitude to my noble friend Lord Attlee for the immense amount of work that he and his officials have done to produce this substantial body of amendments, which to my mind now make this provision acceptable. I particularly welcome his efforts to produce what probably would be called a “Keeling schedule”, showing what these clauses will look like in toto if the amendments are passed. It is rather difficult otherwise to fit them into the Bill. However, that was an immensely helpful document which I hope my noble friend’s other colleagues on the Front Bench might be persuaded to imitate from time to time. For those of us who have to grapple with these things ourselves, it can be much more helpful to know what the whole thing is going to look like, rather than just looking at a whole series of amendments. This is a very helpful precedent which I hope will be followed in the future.
I have only one question to my noble friend. It is a point that I have made on previous occasions, and it concerns retrospective operation. My noble friend has assured me that nothing in these amendments will make the powers retrospective so that a penalty may be imposed on a local authority for something that has already happened. I would be most grateful if he could give us an assurance on this when he winds up the debate.
I understand that this cannot apply to fines that have already been imposed on the Government, but you could have a directive which imposed obligations on a local authority where that local authority was previously in breach and subsequently a fine was imposed on central Government. I would welcome an assurance that under no circumstances could that fine refer to anything that has happened before the date of the process introduced by these amendments. Nothing could be done before these amendments have taken effect—they must not be retrospective or retroactive. I take encouragement from my noble friend saying that one of his principles is that there will be no surprises. That, to my mind, is immensely valuable. If he could say that that rules out any retroactive effect of these amendments, that would be very helpful indeed.
I thank my noble friend for his enormous efforts. He explained to me that he had to get the assent of every other government department in Whitehall. He is a magician to have achieved that. One understands the difficulties that he has faced and I thank him very much.
Lord Berkeley
My Lords, I join the noble Lords, Lord Tope and Lord Jenkin, in congratulating the Minister. I raised one or two issues in relation to this matter in Committee and I think that the noble Earl has done a fantastic job in a short space of time to come up with a process that few can fault, if one is going to have fines at all, and they do arise. I warmly congratulate him and join others in hoping that this happens more often with other legislation that comes before your Lordships’ House.
Before I speak to my own amendments, I would like to follow up on a point that the noble Lord, Lord Jenkin, made about the retrospective nature. There will be a time when these clauses come into effect, but there is also a time when the European process moves forward from infraction proceedings and reasoned opinions to the court summons and finally the court decision. That can take several years. The UK Government have a good record in complying with EU regulations. I am involved in railway issues, and in the first railway package there are 13 member states with infraction proceedings against them. We are not one of them, except for a new one relating to the Channel Tunnel. On the whole, we have quite a good record, but quite often the cause of the eventual fine could be something that was created several years beforehand. The local authority may not have been able to do something, or something may have gone wrong and it is grinding on with the Government refusing to give way, and three or four years later it gets to the European Court. I hope that the Minister will look at the retrospective nature of this not only from the UK side but also from the European side as to where the so-called potential offence has been committed and when.
My amendment was of course a probing one. I am very grateful to the Minister for his answer, which he gave before I had the chance to speak to it. That enables me to ask another question to clarify things. The Minister said that the provision would apply to a private company carrying out or performing “public functions”. I assume that “public functions” in this respect means operating rail or inland waterway infrastructure, although that could be carried out by a private company. I am not convinced that the Rail Regulator has powers to enforce fines on Network Rail—I do not think that there is a regulator for inland waterways yet—when something contravenes European regulations. I am sure that there will be an answer to this but perhaps when he responds the Minister could agree to look at this matter further so that there is some clarity within Network Rail and eventually the British Waterways charity about the circumstances under which they might be liable for a fine. I conclude by congratulating Minister very strongly on a really good piece of legislation.
Baroness Gardner of Parkes
I am delighted by the policy statement but I have one question that I hope the Minister will be able to answer. In relation to panel membership, I notice that the statement of policy specifies:
“The relevant representative body will put forward nominations in respect of its members”,
of persons with sectoral experience, to the Minister. What opportunities will there be for bodies such as the Greater London Authority which are not part of a representative organisation to make nominations to the Minister in respect of panel membership? I would be grateful if he could answer that question, which probably relates to Amendment 195ZAJ but I find it so difficult when I look at all those amendments to know exactly which one it relates to.
Lord Beecham
I join other noble Lords in warmly congratulating the noble Earl on the manner in which this matter has now been put back on track. The noble Lord, Lord Tope, said that most of us would not have wished to have started from here, but where we are ending owes very much to the thoroughness, attention to detail and decisiveness of the noble Earl—qualities in which he emulates his distinguished grandfather. It is some 49 years since I had the pleasure of meeting the noble Earl’s grandfather and he made a significant impression on me, young as I was at that time. The noble Earl is doing so again today, not merely on me but on all Members of your Lordships' House.
Lord Jenkin of Roding
My noble friend's grandfather lived in my constituency.
Lord Beecham
He was none the worse for that. I do not think that his wife, who used to drive him around, would have been guilty of depositing fish and chip papers anywhere near the noble Lord’s house.
The position that we have reached is one that the Local Government Association has worked very hard with the Minister and colleagues from all sides of the House to achieve. In particular, the outcomes around the designation and the opportunity to correct a situation that perhaps led to a fine—the provision of an effective appeals system—have all been significant. I am encouraged that the statement of policy that has been produced by the Local Government Group is one that I understand the Government are minded to adopt. Perhaps when he replies the noble Earl will indicate how far their consideration of the document has gone and whether there are likely to be any issues of significance that might not accord with the proposals that have been made. I understand that effectively an agreed position has been reached around four main areas: working in partnership; that there should be no surprises; that there should be a fair and proportionate process; and that consideration should be given to the ability to pay.
One of the crucial issues first voiced in the debate to the Committee by the LGA was the lack of an opportunity for local government to be involved in the legislation from which proceedings ultimately might flow in terms of infringement of European law. It is welcome that the Government have now indicated that local government will be identified specifically as a key sector for consultation when the Government enter into negotiations on EU legislation that could ultimately lead to fines coming down to local authorities. That is an extremely important extension of the consultative role that should ensure that the legislation is right in the first place, which would be a distinct improvement on the position hitherto.
The Minister has made it clear that there will be no surprises in future. No local authority will be taken by surprise because of the designation process, which is a reasonable one in which Parliament will be involved. Equally, the process will be broadly based in terms of those involved in deciding a number of matters—for example, whether the UK Government themselves have contributed to the infraction. I take it that that will also apply to any infraction that might have been contributed to by the devolved Administrations where their activities impinged on European legislation. I assume that that is taken care of in the arrangements that the Government have come to with the devolved Administrations.
My final point is crucially important. The panel will determine these matters and the Minister will consider the authority's ability to pay a fine and provide for possible alternatives in the event that the ability to pay is not present. It is conceivable that a small district council might find it impossible to pay a significant fine in respect of some infraction of environmental legislation within its competence. It is extremely welcome that the Government have acknowledged that that is a risk and that they will not be seeking to extort from such an authority a contribution to a financial penalty that would seriously impede the activities of that local authority.
Thanks very largely to the Minister, we have reached a satisfactory position on this. It has been a good example of the way in which local government and the Government can work together and in which Ministers can listen to proceedings in your Lordships' House, take back concerns and proposals and work with them. I hope that the noble Earl will feel able, metaphorically at least, to bite one or two of his ministerial colleagues in the hope that this becomes a habit across government and not confined to the noble Earl.
Earl Attlee
My Lords, I thank my noble friend Lord Tope and other noble Lords for their kind comments. First, I plead not guilty for all the work: it was my officials what done it.
My noble friend Lord Tope talked about consultation on the EU legislation and the fact that we are committed to consulting with local authorities. I am confident that the LGG will hold our feet to the fire on this issue.
My noble friend Lord Jenkin mentioned Keeling schedules. They are useful in certain circumstances but the decision to use them is decided on a case-by-case basis.
My noble friend also asked me to give an assurance that under no circumstances could fines refer to activities, errors and omissions made before the Bill passes. I am very happy to give an absolute assurance that under no circumstances can the provisions be used retrospectively. Subsection (5)(b) of the clause proposed by Amendment 195ZAH means that only actions or inactions after designation can be taken into account. This is extremely important because it allows all those affected to concentrate on solving the problem rather than listening to the lawyers and doing nothing other than arguing. It is a very important point.
Earl Attlee
And ability to pay—a very important point. The fines can only be set at a level that will not effectively bankrupt the authority. That is one of the principles in the legislation.
Earl Attlee
“(8) In this Part—
(a) “EU financial sanction” means a sanction consisting of a lump sum or penalty payment (or both) imposed by the Court of Justice in Article 260(2) proceedings for an infraction of EU law;(b) “infraction of EU law”, in relation to an EU financial sanction, means the failure to comply with a judgment of the Court of Justice given in proceedings under Article 258 or 259 of the Treaty on the Functioning of the European Union; and(c) “Article 260(2) proceedings” means proceedings under Article 260(2) of that Treaty.”
“Duty of the Secretary of State to issue a policy statement
(1) The Secretary of State must publish a statement of policy with respect to—
(a) the designation of public authorities under section (Designation of public authorities); (b) the imposition and variation of requirements to make payments under this Part; and(c) such other matters relating to the operation of the provisions of this Part as the Secretary of State may think appropriate to include in the statement. (2) The Secretary of State may from time to time revise and republish the statement of policy required by this section.
(3) A revised statement of policy may include saving or transitional provisions relating to the continued application for any purpose of any provisions of an earlier published version of the statement.
(4) The Secretary of State must consult such persons as the Secretary of State considers appropriate before publishing, or revising and republishing, the statement of policy required by this section.
(5) In exercising functions under this Part in relation to an EU financial sanction which has been or may be imposed on the United Kingdom—
(a) a Minister of the Crown, and(b) a panel established under section (Establishment of independent panel),must have regard to the statement of policy most recently published under this section.”
“The EU financial sanctions to which Part 2 applies
(1) This Part applies to any EU financial sanction imposed on the United Kingdom after the commencement of this Part, subject to subsection (2).
(2) If a Minister of the Crown gives a certificate—
(a) specifying a part of an EU financial sanction, and(b) stating that this Part is not to apply to that part of the sanction, this Part applies to that EU financial sanction as if it did not include that part.(3) A certificate under subsection (2)—
(a) may make specific provision about the application of this Part to any of the following—(i) the lump sum (if any) paid by the United Kingdom;(ii) any periodic payment due from the United Kingdom under the terms of the EU financial sanction before the certificate is given; and(iii) any subsequent periodic payment that may fall due from the United Kingdom under those terms; and(b) must be given in such form and published in such manner as the Minister of the Crown giving it thinks fit.(4) Any provision under subsection (3)(a)(iii) that is made in a certificate under subsection (2) may be varied (including in relation to its effect in relation to any periodic payment that has become due from the United Kingdom since the earlier certificate) by a further certificate under subsection (2).”
“Meaning of “public authority” and related terms
(1) This section defines various terms used in this Part.
(2) “Public authority” means—
(a) a local authority to which subsection (3) applies; or (b) any other person or body which has any non-devolved functions.(3) This subsection applies to—
(a) any of the following in England—(i) a county council, district council or London borough council;(ii) the Common Council of the City of London (in its capacity as a local authority);(iii) the Greater London Authority; and(iv) the Council of the Isles of Scilly;(b) a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;(c) a district council within the meaning of the Local Government Act (Northern Ireland) 1972;(d) a council of a county or county borough in Wales. (4) References to functions are to functions of a public nature.
(5) References to non-devolved functions are to functions which are not devolved functions.
(6) References to devolved functions are to—
(a) Scottish devolved functions, that is to say functions the exercise of which would be within devolved competence (within the meaning of section 54 of the Scotland Act 1998);(b) Northern Ireland devolved functions, that is to say functions which could be conferred by provision included in an Act of the Northern Ireland Assembly made without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998); or(c) Welsh devolved functions, that is to say functions which are exercisable in relation to Wales and could be conferred by provision falling within the legislative competence of the National Assembly for Wales as defined in section 108 of the Government of Wales Act 2006.(7) References to a public authority with mixed functions are to a public authority which has both non-devolved and devolved functions.
(8) The “appropriate national authority”, in relation to a public authority with mixed functions, means the following national authority or authorities (according to whichever one or more of the following paragraphs apply to that public authority)—
(a) the Scottish Ministers, if the public authority has any Scottish devolved functions;(b) the relevant Northern Ireland department, if the public authority has any Northern Ireland devolved functions; and(c) the Welsh Ministers, if the public authority has any Welsh devolved functions.”
Earl Attlee
“Designation of public authorities
(1) A Minister of the Crown may by order designate a public authority for the purposes of this Part.
(2) The order must—
(a) specify the public authority by name;(b) identify any EU financial sanction to which the designation applies; and (c) describe the activities of the authority which are covered by the designation.(3) The order may identify an EU financial sanction for the purposes of subsection (2)(b) by—
(a) specifying an EU financial sanction that has been imposed on the United Kingdom;(b) specifying any Article 260(2) proceedings that have been commenced and providing that the designation is to apply to any EU financial sanction that may be imposed on the United Kingdom in those proceedings;(c) specifying a judgment of the Court of Justice finding that the United Kingdom has failed to comply with an EU obligation and providing that the designation is to apply to any EU financial sanction that may be imposed on the United Kingdom for failing to comply with that judgment; or(d) specifying or describing any proceedings under Article 258 or 259 of the Treaty on the Functioning of the European Union that have been or may be commenced and providing that the designation is to apply to any EU financial sanction that may be imposed on the United Kingdom for failing to comply with a judgment of the Court of Justice given in those proceedings. (4) The order may, for the purposes of subsection (3)(d), describe any proceedings under Article 258 or 259 that may be commenced by reference to the subject-matter of—
(a) a Reasoned Opinion addressed to the United Kingdom under Article 258 or 259 (as the case may be); or(b) any other document sent to the Government of the United Kingdom by the Commission of the European Union or by another member State which gives notice to the Government of the possibility of proceedings being commenced against the United Kingdom.(5) The activities described for the purposes of subsection (2)(c) must be activities of the public authority which—
(a) are carried out in the exercise of non-devolved functions of the public authority; and(b) take place after the provisions of the order describing the activities come into force.(6) The following may not be designated under this section—
(a) the House of Commons, the House of Lords, the Scottish Parliament, the Northern Ireland Assembly or the National Assembly for Wales; (b) a Minister of the Crown or a United Kingdom government department;(c) a member of the Scottish Executive;(d) the First Minister or the deputy First Minister for Northern Ireland, a Northern Ireland Minister or a Northern Ireland Department;(e) a member of the Welsh Assembly Government;(f) a court or tribunal.(7) Before making an order designating a public authority a Minister of the Crown must consult—
(a) the public authority concerned; and(b) if it is a public authority with mixed functions, the appropriate national authority.(8) In sections 32 to 33 references to “acts”, in relation to a public authority which has been designated under this section, are to acts within a description of activities covered by the designation.”
Earl Attlee
“Establishment of independent panel
(1) This section applies where—
(a) an EU financial sanction to which this Part applies has been imposed by the Court of Justice; and(b) at least one public authority has been designated under section (Designation of public authorities) and the EU financial sanction is one to which the designation applies.(2) A Minister of the Crown must establish a panel for the purpose of carrying out any functions it may be given by or under any provision of this Part in relation to that EU financial sanction.
(3) The panel must be established before any warning notice is given to a public authority in relation to that EU financial sanction.
(4) The panel is to consist of one or more individuals appointed by a Minister of the Crown who appear to a Minister of the Crown to have suitable qualifications, expertise or experience to carry out their duties.
(5) A Minister of the Crown may invite nominations for appointment to the panel from such organisations as a Minister of the Crown considers appropriate.
(6) The validity of any acts of the panel are not affected by a vacancy among its members.
(7) A Minister of the Crown may pay to a member of the panel such fees, allowances or expenses as a Minister of the Crown may determine.
(8) A Minister of the Crown may provide such staff, accommodation or other facilities as a Minister of the Crown may consider necessary to enable the panel to carry out its functions.”
Earl Attlee
“(1) Before a public authority which has been designated under section (Designation of public authorities) can be required to make any payment under this Part in respect of an EU financial sanction to which the designation applies—
(a) a Minister of the Crown must give a warning notice under this section to the public authority;(b) the procedures set out in the warning notice (with any changes made under subsection (7)) must be followed; and(c) a Minister of the Crown must determine the matters mentioned in section (Matters to be determined before a final notice is given)(4).”
“(3) The warning notice must also—
(a) identify the EU financial sanction to which the notice relates;(b) specify the total amount of that sanction (see subsection (6C));(c) if that sanction is or includes a penalty payment, specify the amount and frequency of any periodic payments that fall due from the United Kingdom under the terms of the penalty payment (see subsection (6D));(d) set out the reasons for making the statement required by subsection (2);(e) set out the proposed procedures and arrangements for determining the matters mentioned in section (Matters to be determined before a final notice is given)(4) (which may include arrangements for securing that matters arising under the notice are dealt together with matters arising under other warning notices given to other public authorities in respect of the same EU financial sanction);(f) propose a timetable for those procedures and for any steps to be taken by the panel or a Minister of the Crown before any requirement to make a payment can be imposed on the authority;(g) invite the authority to make representations to a Minister of the Crown about the matters mentioned in paragraphs (e) and (f); (h) invite the authority to make representations to the panel (with any supporting evidence) about anything the authority considers relevant to the matters mentioned in section (Matters to be determined before a final notice is given)(4), including its response to any representations made (and any supporting evidence submitted) to the panel —(i) by a Minister of the Crown or a government department (whether in relation to matters arising from the notice or matters arising from any other warning notice given to another public authority in relation to the same EU financial sanction);(ii) by another public authority which has been given a warning notice in relation to the same EU financial sanction; or(iii) by the appropriate national authority in response to an invitation under paragraph (j) included in the notice; and(j) if the authority has mixed functions, invite the appropriate national authority to make representations about anything contained in or arising from the notice.”
“(6A) Before a Minister of the Crown gives a warning notice to the authority, the Minister of the Crown must consult the panel as to the contents of the notice (including in particular the proposed procedures and timetable mentioned in subsection (3)(e) and (f)).
(6B) If the authority has mixed functions, a Minister of the Crown must—
(a) consult the appropriate national authority before deciding to give a warning notice to the authority; and(b) give the appropriate national authority a copy of any warning notice the Minister of the Crown decides to give.(6C) In subsection (3)(b) the “total amount of the sanction” means the sum of the following—
(a) the amount of the lump sum (if any) due from the United Kingdom under the terms of the EU financial sanction (disregarding any amount that falls to be excluded from the lump sum by virtue of section (The EU financial sanctions to which Part 2 applies)(2)); and(b) the total amount of the periodic payments (if any) which have fallen due from the United Kingdom on or before a day specified in the notice (disregarding any amount that falls to be excluded from any of those payments by virtue of section (The EU financial sanctions to which Part 2 applies)(2);and the day specified for the purposes of paragraph (b) must be no later than the day on which the warning notice is given to the authority.(6D) The periodic payments to be taken into account for the purposes of subsection (3)(c) do not include—
(a) any periodic payment taken into account in calculating the total amount of the sanction for the purposes of subsection (3)(b); or(b) any periodic payment, or any part of a periodic payment, that falls to be excluded from the EU financial sanction by virtue of section (The EU financial sanctions to which Part 2 applies)(2).”
(a) ”
(b) a copy of the warning notice incorporating those changes.(7A) A Minister of the Crown must consult the panel before making any changes under subsection (7).”
“(9) In this section and section (Matters to be determined before a final notice is given) “the panel” means the panel established under section (Establishment of independent panel) to deal with the EU financial sanction to which the notice relates.”
Earl Attlee
“Matters to be determined before a final notice is given
(1) This section applies where—
(a) a warning notice has been given to a public authority; and(b) the panel has considered all representations made to it under the procedures set out in that notice. (2) The panel must make, to a Minister of the Crown, a report on the matters to which the representations made to the panel relate.
(3) The report—
(a) may be published by the panel in such manner as the panel thinks fit and, if not published by the panel, must be published by the Minister of the Crown to whom it is made in such manner as the Minister of the Crown thinks fit;(b) must include recommendations as to the determination of the matters mentioned in subsection (4)(a) and (b);(c) if the authority has made representations to the panel about anything the authority considers relevant to any of the matters mentioned in paragraphs (c) to (e) of subsection (4), must include recommendations as to the determination of the matters mentioned in those paragraphs; and(d) must include the panel’s reasons for any recommendations included in the report.(4) After having had regard to the report, a Minister of the Crown must determine the following matters—
(a) whether any acts of the authority did cause or contribute to the infraction of EU law concerned and, in relation to any periodic payments mentioned in subsection (3)(c) of section 32, whether those acts have continued and will continue to do so;(b) the proportion of—(i) the total amount of the sanction (as specified under subsection (3)(b) of that section), and(ii) any periodic payments (as specified under subsection (3)(c) of that section),that, in the light of the acts of the authority which are determined to have had or to be having an effect mentioned in paragraph (a), is to be regarded as reflecting the authority’s share of the responsibility for the infraction of EU law concerned or, in relation to any such periodic payments, the continuing infraction of EU law concerned; (c) whether the authority should be required to make any payment or payments in respect of the EU financial sanction;(d) if so, what payment or payments the authority should make towards—(i) the total amount of the sanction specified under subsection (3)(b) of that section; and(ii) any periodic payments specified under subsection (3)(c) of that section; and(e) when any such payment or payments should be made.(5) In determining the matters mentioned in subsection (4)(c), (d) and (e) the Minister of the Crown must have regard to—
(a) the effect on the authority’s finances of any amount it may be required to pay and in particular, if the authority has mixed functions, the need to avoid any prejudicial effect on the performance by the authority of its devolved functions;(b) the determination under subsection (4)(b); and(c) any other relevant considerations.(6) Before making a final decision on the matters mentioned in subsection (4)(c), (d) and (e), the Minister of the Crown must invite—
(a) representations from the authority about the potential effect on its finances and, if it has mixed functions, the effect on its devolved functions of any amount it may be required to pay; and(b) if the authority has mixed functions, representations from the appropriate national authority.”
Earl Attlee
“(2) The final notice must—
(a) identify the EU financial sanction to which the notice relates;(b) specify the total amount of the sanction (see subsection (3)) and, where relevant, the amount and frequency of any future periodic payments (see subsection (4));(c) describe the acts of the authority that a Minister of the Crown has under section (Matters to be determined before a final notice is given)(4) determined—(i) caused or contributed to the infraction of EU law concerned, in relation to the total amount of the sanction; or(ii) are causing or contributing to the continuing infraction of EU law concerned, in relation to any other periodic payments due from the United Kingdom;and set out the reasons for that determination;(d) summarise the other determinations made by a Minister of the Crown under section (Matters to be determined before a final notice is given)(4) and set out the reasons for making them;(e) specify the amount required to be paid by the authority towards the total amount of the sanction and when it is to be paid (and if it is to be paid in instalments, the instalments and the date on which they become payable); (f) specify the amount to be paid towards any periodic payment that falls due from the United Kingdom and the time when that amount is to be paid (or, if the notice so provides the time when two or more such amounts are to be paid);(g) specify how and to whom payments are to be made.(3) In subsection (2)(b), (c) and (e) the “total amount of the sanction” means the sum of the following—
(a) the amount of the lump sum (if any) due from the United Kingdom under the terms of the EU financial sanction (disregarding any amount that falls to be excluded from the lump sum by virtue of section (The EU financial sanctions to which Part 2 applies)(2)); and(b) the total amount of the periodic payments (if any) which have fallen due from the United Kingdom on or before a day specified in the final notice (disregarding any amount that falls to be excluded from any of those payments by virtue of section (The EU financial sanctions to which Part 2 applies)(2));and the day specified for the purposes of paragraph (b) must be no later than the day on which the final notice is given to the authority.(4) In subsection (2)(b) “future periodic payments” means periodic payments other than—
(a) any periodic payment taken into account in calculating the total amount of the sanction; or(b) any periodic payment, or any part of a periodic payment, that falls to be excluded from the EU financial sanction by virtue of section (The EU financial sanctions to which Part 2 applies)(2). (5) The requirement to make payments towards periodic payments falling due from the United Kingdom after the notice is given continues so long as those periodic payments continue to fall due, unless a Minister of the Crown gives the authority a notice under this subsection terminating the requirement or varying it so as to make it less onerous for the authority.
(6) A notice under subsection (5) may be given, either on the application of the authority or without such an application, where a Minister of the Crown considers it appropriate in the light of a change in the circumstances which applied when the final notice was given or when it was last varied (as the case may be).
(7) A Minister of the Crown may—
(a) consult the panel, or refer any matter relating to the possible termination or variation of the requirement for its advice or recommendations;(b) invite the authority to make representations; and(c) if the authority has mixed functions, invite the appropriate national authority to make representations,before deciding whether to terminate or vary the requirement mentioned in subsection (5).(8) If the authority makes an application under subsection (6) a Minister of the Crown may by notice to the authority suspend the requirement until further notice (but this does not affect the liability to make any payment once the suspension is ended, unless the final notice is varied to have that effect).”
Earl Attlee
Earl Attlee
Earl Attlee
Earl Attlee
““the appropriate national authority”, in relation to a public authority with mixed functions, has the meaning given by section (Meaning of “public authority” and related terms)(8);
“Article 260(2) proceedings” has the meaning given by section 31(8)(c);
“Court of Justice” means the Court of Justice of the European Union;
“EU financial sanction” has the meaning given by section 31(8)(a);
“final notice” means a notice under section 33;
“functions”, “non-devolved functions” and “devolved functions” are to be construed in accordance with section (Meaning of “public authority” and related terms);
“infraction of EU law”, in relation to an EU financial sanction, has the meaning given by section 31(8)(b);”
““periodic payment”, in relation to an EU financial sanction that is or includes a penalty payment, means a payment due under the terms of the penalty payment;
“public authority” has the meaning given in section (Meaning of “public authority” and related terms)(2);
“public authority with mixed functions” has the meaning given by section (Meaning of “public authority” and related terms)(7).”
““warning notice” means a notice under section 32.”
Earl Attlee
“PARTEU fines: WalesPower to require Welsh public authorities to make payments in respect of certain EU financial sanctions
(1) The Welsh Ministers may, in accordance with the provisions of this Part, require Welsh public authorities to make payments of amounts determined by the Welsh Ministers in respect of an EU financial sanction to which this Part applies.
(2) A requirement to make a payment under this Part—
(a) may only be imposed on a Welsh public authority if— (i) the authority has been designated under section (Designation of Welsh public authorities); and(ii) the EU financial sanction concerned is one to which the designation applies; and(b) must be imposed by a notice given to the authority under section (Final notices) (referred to in this Part as a final notice).(3) If a final notice is registered in accordance with rules of court or any practice direction, it is enforceable in the same manner as an order of the High Court.
(4) Any sums paid by a Welsh public authority under this Part are to be paid into the Welsh Consolidated Fund.
(5) In this Part—
(a) “EU financial sanction” means a sanction consisting of a lump sum or penalty payment (or both) imposed by the Court of Justice in Article 260(2) proceedings for an infraction of EU law;(b) “infraction of EU law”, in relation to an EU financial sanction, means the failure to comply with a judgment of the Court of Justice given in proceedings under Article 258 or 259 of the Treaty on the Functioning of the European Union; and(c) “Article 260(2) proceedings” means proceedings under Article 260(2) of that Treaty.”
“Duty of the Welsh Ministers to issue a policy statement
(1) The Welsh Ministers must publish a statement of policy with respect to—
(a) the designation of Welsh public authorities under section (Designation of Welsh public authorities); (b) the imposition and variation of requirements to make payments under this Part; and(c) such other matters relating to the operation of the provisions of this Part as the Welsh Ministers may think appropriate to include in the statement.(2) The Welsh Ministers may from time to time revise and republish the statement of policy required by this section.
(3) A revised statement of policy may include saving or transitional provisions relating to the continued application for any purpose of any provisions of an earlier published version of the statement.
(4) The Welsh Ministers must consult such persons as the Welsh Ministers consider appropriate before publishing, or revising and republishing, the statement of policy required by this section.
(5) In exercising functions under this Part in relation to an EU financial sanction which has been or may be imposed on the United Kingdom—
(a) the Welsh Ministers, and(b) a panel established under section (Establishment of independent panel (No.2)),must have regard to the statement of policy most recently published under this section.”
“The EU financial sanctions to which Part (EU fines: Wales) applies
(1) This Part applies to an EU financial sanction imposed on the United Kingdom if—
(a) the sanction is imposed after the commencement of this Part, and(b) the Welsh Ministers certify that this Part applies to the sanction.(2) If a certificate under subsection (1)—
(a) specifies a part or parts of the EU financial sanction concerned, and(b) states that this Part applies only to that part, or those parts, of the sanction,this Part applies to the sanction as if it included only that part or those parts.(3) A certificate under subsection (1)—
(a) may make specific provision about the application of this Part to any of the following—(i) the lump sum (if any) paid by the United Kingdom;(ii) any periodic payment due from the United Kingdom under the terms of the EU financial sanction before the certificate is given; and(iii) any future periodic payment that may fall due from the United Kingdom under those terms; and(b) must be given in such form and published in such manner as the Welsh Ministers think fit.(4) Any provision under subsection (3)(a)(iii) that is made in a certificate under subsection (1) may be varied (including in relation to its effect in relation to any periodic payment that has become due from the United Kingdom since the earlier certificate) by a further certificate under subsection (1).”
“Meaning of “Welsh public authority” and related terms
(1) Subsections (2) to (5) define various terms used in this Part.
(2) “Welsh public authority” means—
(a) a council of a county or county borough in Wales; or(b) any other person or body which has any Welsh devolved functions.(3) References to functions are to functions of a public nature.
(4) References to Welsh devolved functions are to functions which are exercisable in relation to Wales and could be conferred by provision falling within the legislative competence of the National Assembly for Wales as defined in section 108 of the Government of Wales Act 2006.
(5) The “appropriate national authority”, in relation to a Welsh public authority with any functions other than Welsh devolved functions, means the following national authority or authorities (according to whichever one or more of the following paragraphs apply to that Welsh public authority)—
(a) a Minister of the Crown, if the Welsh public authority has any functions which are not devolved functions;(b) the Scottish Ministers, if the Welsh public authority has any Scottish devolved functions; and(c) the relevant Northern Ireland Department, if the Welsh public authority has any Northern Ireland devolved functions.(6) In subsection (5)(a) “devolved functions” means—
(a) Welsh devolved functions;(b) Scottish devolved functions; or(c) Northern Ireland devolved functions.(7) In subsections (5) and (6)—
“Northern Ireland devolved functions” means functions which could be conferred by provision included in an Act of the Northern Ireland Assembly made without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998);
“Scottish devolved functions” means functions the exercise of which would be within devolved competence (within the meaning of section 54 of the Scotland Act 1998).”
“Designation of Welsh public authorities
(1) The Welsh Ministers may by order designate a Welsh public authority for the purposes of this Part.
(2) The order must—
(a) specify the Welsh public authority by name;(b) identify any EU financial sanction to which the designation applies; and(c) describe the activities of the authority which are covered by the designation.(3) The order may identify an EU financial sanction for the purposes of subsection (2)(b) by—
(a) specifying an EU financial sanction that has been imposed on the United Kingdom;(b) specifying any Article 260(2) proceedings that have been commenced and providing that the designation is to apply to any EU financial sanction that may be imposed on the United Kingdom in those proceedings;(c) specifying a judgment of the Court of Justice finding that the United Kingdom has failed to comply with an EU obligation and providing that the designation is to apply to any EU financial sanction that may be imposed on the United Kingdom for failing to comply with that judgment; or(d) specifying or describing any proceedings under Article 258 or 259 of the Treaty on the Functioning of the European Union that have been or may be commenced and providing that the designation is to apply to any EU financial sanction that may be imposed on the United Kingdom for failing to comply with a judgment of the Court of Justice given in those proceedings.(4) The order may, for the purposes of subsection (3)(d), describe any proceedings under Article 258 or 259 that may be commenced by reference to the subject-matter of—
(a) a Reasoned Opinion addressed to the United Kingdom under Article 258 or 259 (as the case may be); or(b) any other document sent to the Government of the United Kingdom by the Commission of the European Union or by another member State which gives notice to the Government of the possibility of proceedings being commenced against the United Kingdom.(5) The activities described for the purposes of subsection (2)(c) must be activities of the Welsh public authority which—
(a) are carried out in the exercise of Welsh devolved functions of the authority; and(b) take place after the provisions of the order describing the activities come into force.(6) The following may not be designated under this section—
(a) the National Assembly for Wales;(b) a Minister of the Crown or a United Kingdom government department;(c) a member of the Welsh Assembly Government;(d) a court or tribunal.(7) Before making an order designating a Welsh public authority the Welsh Ministers must consult—
(a) the authority concerned; and(b) if the authority concerned has any functions other than Welsh devolved functions, the appropriate national authority.(8) In sections (Warning notices) to (Final notices) references to “acts”, in relation to a Welsh public authority which has been designated under this section, are to acts within a description of activities covered by the designation.”
“Establishment of independent panel (No. 2)
(1) This section applies where—
(a) an EU financial sanction to which this Part applies has been imposed by the Court of Justice; and(b) at least one Welsh public authority has been designated under section (Designation of Welsh public authorities) and the EU financial sanction is one to which the designation applies. (2) The Welsh Ministers must establish a panel for the purpose of carrying out any functions it may be given by or under any provision of this Part in relation to that EU financial sanction.
(3) The panel must be established before any warning notice is given to a Welsh public authority in relation to that EU financial sanction.
(4) The panel is to consist of one or more individuals appointed by the Welsh Ministers who appear to the Welsh Ministers to have suitable qualifications, expertise or experience to carry out their duties.
(5) The Welsh Ministers may invite nominations for appointment to the panel from such organisations as the Welsh Ministers consider appropriate.
(6) The validity of any acts of the panel are not affected by a vacancy among its members.
(7) The Welsh Ministers may pay to a member of the panel such fees, allowances or expenses as the Welsh Ministers may determine.
(8) The Welsh Ministers may provide such staff, accommodation or other facilities as the Welsh Ministers may consider necessary to enable the panel to carry out its functions.”
“Warning notices
(1) Before a Welsh public authority which has been designated under section (Designation of Welsh public authorities) can be required to make any payment under this Part in respect of an EU financial sanction to which the designation applies—
(a) the Welsh Ministers must give a warning notice under this section to the authority;(b) the procedures set out in the warning notice (with any changes made under subsection (9)) must be followed; and(c) the Welsh Ministers must determine the matters mentioned in section (Matters to be determined before a final notice is given (No. 2))(4).(2) A warning notice is a notice stating that the Welsh Ministers, having regard to the judgment of the Court of Justice imposing the EU financial sanction, believe—
(a) that acts of the authority may have caused or contributed to the infraction of EU law for which the EU financial sanction was imposed; and(b) that, if acts of the authority did cause or contribute to that infraction of EU law, it would be appropriate to consider requiring the authority to make payments under this Part (which may be or include ongoing payments) in respect of that financial sanction.(3) The warning notice must also—
(a) identify the EU financial sanction to which the notice relates;(b) specify the total amount of that sanction (see subsection (7));(c) if that sanction is or includes a penalty payment, specify the amount and frequency of any periodic payments that fall due from the United Kingdom under the terms of the penalty payment (see subsection (8));(d) set out the reasons for making the statement required by subsection (2);(e) set out the proposed procedures and arrangements for determining the matters mentioned in section (Matters to be determined before a final notice is given (No. 2))(4) (which may include arrangements for securing that matters arising under the notice are dealt together with matters arising under other warning notices given to other Welsh public authorities in respect of the same EU financial sanction);(f) propose a timetable for those procedures and for any steps to be taken by the panel or the Welsh Ministers before any requirement to make a payment can be imposed on the authority; (g) invite the authority to make representations to the Welsh Ministers about the matters mentioned in paragraphs (e) and (f);(h) invite the authority to make representations to the panel (with any supporting evidence) about anything the authority considers relevant to the matters mentioned in section (Matters to be determined before a final notice is given (No. 2))(4), including its response to any representations made (and any supporting evidence submitted) to the panel —(i) by the Welsh Ministers (whether in relation to matters arising from the notice or matters arising from any other warning notice given to another Welsh public authority in relation to the same EU financial sanction);(ii) by another Welsh public authority which has been given a warning notice in relation to the same EU financial sanction; or(iii) by the appropriate national authority in response to an invitation under paragraph (j) included in the notice; and(j) if the authority has any functions other than Welsh devolved functions, invite the appropriate national authority to make representations about anything contained in or arising from the notice.(4) The warning notice may contain such other information as the Welsh Ministers consider appropriate.
(5) Before giving a warning notice to the authority, the Welsh Ministers must consult the panel as to the contents of the notice (including in particular the proposed procedures and timetable mentioned in subsection (3)(e) and (f)).
(6) If the authority has any functions other than Welsh devolved functions, the Welsh Ministers must—
(a) consult the appropriate national authority before deciding to give a warning notice to the authority; and(b) give the appropriate national authority a copy of any warning notice the Welsh Ministers decide to give.(7) In subsection (3)(b) the “total amount of the sanction” means the sum of the following—
(a) the amount of the lump sum (if any) due from the United Kingdom under the terms of the EU financial sanction (disregarding any amount that falls to be excluded from the lump sum by virtue of section (The EU financial sanctions to which Part (EU fines: Wales) applies)(2)); and(b) the total amount of the periodic payments (if any) which have fallen due from the United Kingdom on or before a day specified in the notice (disregarding any amount that falls to be excluded from any of those payments by virtue of section (The EU financial sanctions to which Part (EU fines: Wales) applies)(2));and the day specified for the purposes of paragraph (b) must be no later than the day on which the warning notice is given to the authority.(8) The periodic payments to be taken into account for the purposes of subsection (3)(c) do not include—
(a) any periodic payment taken into account in calculating the total amount of the sanction for the purposes of subsection (3)(b); or(b) any periodic payment, or any part of a periodic payment, that falls to be excluded from the EU financial sanction by virtue of section (The EU financial sanctions to which Part (EU fines: Wales) applies)(2).(9) The Welsh Ministers may, after considering any representations made by the authority under subsection (3)(g) but before the matters mentioned in section (Matters to be determined before a final notice is given (No. 2))(4) are determined, give the authority—
(a) a notice stating any changes that the Welsh Ministers have decided to make to the procedures or timetable as originally set out in the warning notice under subsection (3)(e) and (f); and (b) a copy of the warning notice incorporating those changes.(10) The Welsh Ministers must consult the panel before making any changes under subsection (9).
(11) A warning notice given to a Welsh public authority may be withdrawn at any time before the matters mentioned in section (Matters to be determined before a final notice is given (No.2))(4) are determined, but this does not prevent another warning notice being given to the authority in relation to the same EU financial sanction.
(12) In this section and section (Matters to be determined before a final notice is given (No.2)) “the panel” means the panel established under section (Establishment of independent panel (No.2)) to deal with the EU financial sanction to which the notice relates.”
“Matters to be determined before a final notice is given (No. 2)
(1) This section applies where—
(a) a warning notice has been given to a Welsh public authority; and(b) the panel has considered all representations made to it under the procedures set out in that notice.(2) The panel must make a report to the Welsh Ministers on the matters to which the representations made to the panel relate.
(3) The report—
(a) may be published by the panel in such manner as the panel thinks fit and, if not published by the panel, must be published by the Welsh Ministers in such manner as they think fit;(b) must include recommendations as to the determination of the matters mentioned in subsection (4)(a) and (b);(c) if the authority has made representations to the panel about anything the authority considers relevant to any of the matters mentioned in paragraphs (c) to (e) of subsection (4), must include recommendations as to the determination of the matters mentioned in those paragraphs; and(d) must include the panel’s reasons for any recommendations included in the report.(4) After having had regard to the report, the Welsh Ministers must determine the following matters—
(a) whether any acts of the authority did cause or contribute to the infraction of EU law concerned and, in relation to any periodic payments mentioned in subsection (3)(c) of section (Warning notices), whether those acts have continued and will continue to do so;(b) the proportion of—(i) the total amount of the sanction (as specified under subsection (3)(b) of that section), and(ii) any periodic payments (as specified under subsection (3)(c) of that section),that, in the light of the acts of the authority which are determined to have had or to be having an effect mentioned in paragraph (a), is to be regarded as reflecting the authority’s share of the responsibility for the infraction of EU law concerned or, in relation to any such periodic payments, the continuing infraction of EU law concerned;(c) whether the authority should be required to make any payment or payments in respect of the EU financial sanction; (d) if so, what payment or payments the authority should make towards—(i) the total amount of the sanction specified under subsection (3)(b) of that section; and(ii) any periodic payments specified under subsection (3)(c) of that section; and (e) when any such payment or payments should be made.(5) In determining the matters mentioned in subsection (4)(c), (d) and (e) the Welsh Ministers must have regard to—
(a) the effect on the authority’s finances of any amount it may be required to pay and in particular, if the authority has any functions other than Welsh devolved functions, the need to avoid any prejudicial effect on the performance by the authority of those other functions;(b) the determination under subsection (4)(b); and (c) any other relevant considerations.(6) Before making a final decision on the matters mentioned in subsection (4)(c), (d) and (e), the Welsh Ministers must invite—
(a) representations from the authority about the potential effect on its finances and, if it has any functions other than Welsh devolved functions, the effect on those other functions of any amount it may be required to pay; and(b) if the authority has any functions other than Welsh devolved functions, representations from the appropriate national authority.”
“Final notices
(1) The Welsh Ministers may give a final notice to a Welsh public authority only if they have decided in accordance with section (Matters to be determined before a final notice is given (No.2)) to impose a requirement under this Part on the authority.
(2) The final notice must—
(a) identify the EU financial sanction to which the notice relates;(b) specify the total amount of the sanction (see subsection (3)) and, where relevant, the amount and frequency of any future periodic payments (see subsection (4));(c) describe the acts of the authority that the Welsh Ministers have under section (Matters to be determined before a final notice is given (No.2))(4) determined—(i) caused or contributed to the infraction of EU law concerned, in relation to the total amount of the sanction; or(ii) are causing or contributing to the continuing infraction of EU law concerned, in relation to any other periodic payments due from the United Kingdom;and set out the reasons for that determination;(d) summarise the other determinations made by the Welsh Ministers under section (Matters to be determined before a final notice is given (No.2))(4) and set out the reasons for making them;(e) specify the amount required to be paid by the authority towards the total amount of the sanction and when it is to be paid (and if it is to be paid in instalments, the instalments and the date on which they become payable);(f) specify the amount to be paid towards any periodic payment that falls due from the United Kingdom and the time when that amount is to be paid (or, if the notice so provides, the time when two or more such amounts are to be paid);(g) specify how and to whom payments are to be made.(3) In subsection (2)(b), (c) and (e) the “total amount of the sanction” means the sum of the following—
(a) the amount of the lump sum (if any) due from the United Kingdom under the terms of the EU financial sanction (disregarding any amount that falls to be excluded from the lump sum by virtue of section (The EU financial sanctions to which Part (EU fines: Wales) applies)(2)); and(b) the total amount of the periodic payments (if any) which have fallen due from the United Kingdom on or before a day specified in the final notice (disregarding any amount that falls to be excluded from any of those payments by virtue of section (The EU financial sanctions to which Part (EU fines: Wales) applies)(2)); and the day specified for the purposes of paragraph (b) must be no later than the day on which the final notice is given to the authority.(4) In subsection (2)(b) “future periodic payments” means periodic payments other than—
(a) any periodic payment taken into account in calculating the total amount of the sanction; or(b) any periodic payment, or any part of a periodic payment, that falls to be excluded from the EU financial sanction by virtue of section (The EU financial sanctions to which Part (EU fines: Wales) applies)(2).(5) The requirement to make payments towards periodic payments falling due from the United Kingdom after the notice is given continues so long as those periodic payments continue to fall due, unless the Welsh Ministers give the authority a notice under this subsection terminating the requirement or varying it so as to make it less onerous for the authority.
(6) A notice under subsection (5) may be given, either on the application of the authority or without such an application, where the Welsh Ministers consider it appropriate in the light of a change in the circumstances which applied when the final notice was given or when it was last varied (as the case may be).
(7) The Welsh Ministers may—
(a) consult the panel, or refer any matter relating to the possible termination or variation of the requirement for its advice or recommendations;(b) invite the authority to make representations; and(c) if the authority has any functions other than Welsh devolved functions, invite the appropriate national authority to make representations,before deciding whether to terminate or vary the requirement mentioned in subsection (5).(8) If the authority makes an application under subsection (6) the Welsh Ministers may by notice to the authority suspend the requirement until further notice (but this does not affect the liability to make any payment once the suspension is ended, unless the final notice is varied to have that effect).”
“Interpretation of Part: general
In this Part—“act” includes omission;
“the appropriate national authority”, in relation to a Welsh public authority with any functions other than Welsh devolved functions, has the meaning given by section (Meaning of “Welsh public authority” and related terms)(5);
“Article 260(2) proceedings” has the meaning given by section (Power to require Welsh public authorities to make payments in respect of certain EU financial sanctions)(5)(c);
“Court of Justice” means the Court of Justice of the European Union;
“EU financial sanction” has the meaning given by section (Power to require Welsh public authorities to make payments in respect of certain EU financial sanctions)(5)(a);
“final notice” means a notice under section (Final notices);
“functions” and “Welsh devolved functions” are to be construed in accordance with section (Meaning of “Welsh public authority” and related terms)(3) and (4);
“infraction of EU law”, in relation to an EU financial sanction, has the meaning given by section (Power to require Welsh public authorities to make payments in respect of certain EU financial sanctions)(5)(b);
“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975;
“periodic payment”, in relation to an EU financial sanction that is or includes a penalty payment, means a payment due under the terms of the penalty payment;
“warning notice” means a notice under section (Warning notices);
“Welsh public authority” has the meaning given in section (Meaning of “Welsh public authority” and related terms)(2).”
Lord Lucas
“Empty rates
In section 45 of the Local Government and Finance Act 1988 (unoccupied hereditaments: liability) in subsection 4A for “one” substitute “or equal to one fifth”, and for “prescribed” substitute “chosen in each particular case by the Local Authority”.”
Lord Lucas
My Lords, I am not at all sure that this is the right solution to the problem but I am sure the problem is there and I very much hope this Bill will deal with it. When one is looking at the application of localism to urban environments and to giving local communities some degree of control and influence over what is happening, one of the great problems—certainly a problem in the bit of London I lodge in during the week which is Lavender Hill—is empty properties. They are principally retail properties where the owners appear to have decided that they would rather they went empty than accept a lower rent and have some kind of commercial activity within them.
My view is that these owners should pay the full cost they are inflicting on the community by following that course of action. By allowing the street to appear derelict and empty they reduce the trade for other businesses. They reduce the prosperity of the area. They reduce the opportunity for jobs for people who live in the area. It is a thoroughly delinquent behaviour. It is something that costs the rest of the community dear. I do not believe that the current arrangements that merely allow for an ordinary empty rate are at all satisfactory. If we are going to have in the future the opportunity to create a neighbourhood in Lavender Hill, one of the first things we will wish to tackle is all the empty shops. We will not wish to do it by trying to persuade people to pay the vast rents which the street used to be able to command in the days when it was prosperous which was now some long while ago—it was 10 or 15 years ago. Some of these properties have stood empty since then. We will need some way of battening on to these landlords and making them realise that although it is their property and theirs to do what they do with it, if they choose to leave it empty and derelict they should pay the community something in respect of the costs they are causing it by their actions. I beg to move.
Lord Beecham
My Lords, the noble Lord has drawn attention to a significant problem with commercial property but the same principle can apply to residential property, particularly in the private rented sector. There are a significant number of homes left empty—it runs into some hundreds of thousands. In urban areas in particular it is very often private rented properties that are left unoccupied. They are as much a blight on the local neighbourhood as empty commercial properties and of course the demand for accommodation is considerable. Just recently walking around the ward I represent I noticed a number of properties that have been empty for some years. They are not in particularly good condition but not sufficiently dangerous to allow the local authority to take steps. It would certainly be an incentive for landlords to let those properties and bring them into use for the benefit of the whole area if a similar principle were adopted for residential properties as the noble Lord proposes for commercial properties. I hope the Government will look sympathetically on that aspect of it and endorse the noble Lord’s amendment.
Baroness Gardner of Parkes
My Lords, I am slightly concerned by this amendment as I think there is an international problem occurring of people buying things online to such an extent—I heard this in Australia while I was there and I believe it is the same everywhere—that people are closing up small shops because there is simply no way they can afford to compete with online purchases. I do not know what will happen in these instances. What will local authorities do? Will the people who own the shops be encouraged to convert them into residential accommodation or would it be considered very damaging to the whole high street suddenly to find that instead of shops in continuity in a row suddenly two or three were houses? In the past there were lots of little shops that were once houses. Would we be prepared to see the reverse of that happening?
I think it is a very complicated issue, and, if the landlord simply cannot get a tenant now, what does he do? Does he allow the property to fall down? I do not know what the answer is, particularly with the shop premises.
Lord Kennedy of Southwark
The amendment moved by the noble Lord, Lord Lucas, raises a significant issue. I can clearly see the point that he is making. If the Government are not minded to accept it, I hope that the noble Lord will be able to give us some insight into the Government’s thinking on how they intend to deal with this problem. My noble friend Lord Beecham raised a significant point about residential property, which is probably just as important as the point about commercial property.
Lord Shutt of Greetland
My Lords, I thank noble Lords who have spoken on this amendment, particularly the noble Lord, Lord Lucas, who moved it. The amendment would give authorities the power to reduce the liability for empty property rates. Our ability to take action on empty property rates needs to be balanced against the costs involved, the targeted support that we already provide on business rates and the overriding need to reduce public expenditure and support the economy generally by reducing the deficit. This Government have already doubled small business rate relief for two years, which will benefit about half a million rate payers, with about one-third of a million paying no rates at all for that period. We are also taking powers through this Bill to waive £175 million of backdated business rates demands levied on businesses, including some in ports.
Unfortunately, in taking these matters into consideration, support for empty property rate measures is currently simply unaffordable. While the Government have no immediate plans for reform, we are certainly keeping this matter under review. However, the Bill does give local authorities powers to provide discounts on business rates bills as they see fit, provided they fund the relief themselves. So authorities will be able to reduce bills in the way suggested by the amendment.
I hope that the noble Lord is willing to withdraw the amendment, but I assure him that the matter is under review. It is quite interesting, because I have within the papers here a note about the reliefs. In 2007-08, 2008-09, 2009-10 and 2010-11, changes were made.
Lord Lucas
My Lords, can I just point out to my noble friend that the effect of my amendment is not to reduce business rates but to multiply them by five times, resulting in greatly increased revenue to the local authority and the Exchequer. I am afraid that in some way his briefing is somewhat wide of the mark. I should be delighted if he would write to me when his officials have been able to revise their mathematics. As the noble Lord, Lord Beecham, clearly understands, this is about increasing the rates and increasing government revenue. I would hate it to be thought that I was in any way undermining the stalwart efforts of my right honourable friend the Chancellor to reduce the deficit.
Lord Shutt of Greetland
My Lords, I am delighted that the noble Lord has made those comments. I think that the officials had difficulties with this, and quite frankly so did I. I sought out the Local Government Finance Act 1998, but I am afraid that it has been amended, because the reference that he makes is not there. Immediately before speaking, I tried to check this myself, because I had some doubt about this. The whole area is under review, as it seems to have been for four years on the trot, because Chancellors and local government people have changed the position. So it is still the fact that the area is under review, but it is one that does impact on the economy. Having heard what the noble Lord said in his latter remarks, clearly, we will need to reflect further. But I cannot make any commitments at this stage. Perhaps a few tender words here and there might help us to understand exactly what he is about.
Lord Kennedy of Southwark
Can the Minister give the House an indication that he will come back before Third Reading? I would not want the noble Lord, Lucas, to have to come back again on Third Reading on this matter.
Lord Shutt of Greetland
I will certainly use my best endeavours to see that we can write to the noble Lord and that copies are placed in the Library so that other noble Lords with an interest can see the results of that.
Lord Beecham
Can the Minister also consider the points that I made in addition to those made by the noble Lord, Lord Lucas, for Third Reading?
Lord Shutt of Greetland
I will endeavour to look at them, although I believe that they were on a different matter. Nevertheless, in the interests of moving forward, I am sure that we will be able to look at that too.
Lord Lucas
My Lords, I am very grateful to my noble friend. I apologise for being so confusing in the preparation of my amendment. I say this as an aside, in case anyone from the House authorities is listening in, it is high time that statutes in force were made easily available to Peers who wish to table amendments. They are in the Library, but that is no use if you happen to be working from outside. I imagine that I picked up the statute as it was on the internet and have been tripped up by that and have confused my noble friend and his officials. I apologise for that. But to have a proper set of statutes in force available over the internet would be a bonus.
As the noble Lord, Lord Beecham, understood, this amendment is clearly about trying to allow neighbourhoods through referenda to encourage their local councils as part of a plan to regenerate a neighbourhood to put a squeeze on landlords to bring empty properties back into use. I entirely agree with what the noble Lord, Lord Beecham, said. Flats over shops are certainly a significant problem round where we are; there are just empty properties at a time when accommodation is short. There has to be some way in which to encourage these properties back into use, some backstop that allows a local authority to get tough if a landlord will not be reasonable about these things. To my mind, that particularly applies to street frontage property, when the fact that it is empty is apparent to everybody and it becomes a blight on the other people trying to do business. To answer the point made by my noble friend, they can be converted into offices, or starter units for young businesses, which again are in short supply in Lavender Hill, and would be most welcome if we went down that route.
I know that this is a complicated area and I am not at all sure that empty rates is the way in which to attack it, but I would be very grateful for a letter from my noble friend to say how the Government intend to enable neighbourhoods to tackle this problem under the general heading of localism. But for now, I beg leave to withdraw the amendment.
“Youth councils
(1) Every local authority must establish a council representing the interests of young people within the authority’s area, to be known as a “youth council”.
(2) A local authority must—
(a) consult the relevant youth council of any authority proposal that may affect the youth council or young people in the community;(b) provide an opportunity for the youth council to respond to the proposal; and (c) take the views of the youth council into account when making a decision about the proposal. (3) Subsection (2) does not affect the ability of the youth council to make a properly constituted petition to the local authority.
(4) At least 60 per cent of the members of the youth council must be under the age of 18 years.”
Baroness Royall of Blaisdon
My Lords, I rise to move and speak to Amendment 195ZAZMAA.
I am doing some work at the moment on political engagement of young people and this amendment is the result of meetings that I have had with hundreds of young people up and down the country and with people who are working or have been working in youth services—that is to say, statutory youth services, which are fast diminishing, charities, and organisations such as Girlguiding UK, of which I am a very proud member. What happens to young people and the services that they receive is, of course, crucial to the well-being of this country and the future well-being of individuals and our society. We have the most fantastic young people in our country, who often get a very bad press thanks to a very small minority of them. Most young people in this country are full of energy and have real determination and a real desire to contribute to their communities. Sometimes, however, they need a bit of help. At the moment, rather than being helped, a lot of young people in our society are suffering disproportionately from the cuts, which we believe are too fast and too deep. In my part of the country, in Gloucestershire, the area that I know best, youth services have been decimated. While volunteers are doing an extraordinary job, volunteers are not enough. Young people in our country cannot just depend on volunteers. They need properly trained youth workers as well. The Minister may well say that it is up to local authorities how they spend their money. I think that is a bit of a smokescreen, but that is by the by.
We talk about rights and responsibilities of young people and the fact that they need to get that balance right from a very young age. We all talk about the need to engage our young people more in our communities, and we want to nurture democracy by ensuring that more and more young people vote and perhaps even become councillors or MPs. One of the best ways to engage young people is to include them and to make them part of the democratic processes in which we engage, including the decision-making process. At the moment young people, if they are under the age of 18, are excluded from the decision-making processes of councils despite the fact that so many decisions taken by local councils are extremely important for those young people and have a huge impact on their lives. I am not just talking about youth services. For example, when a decision is taken to cut bus services—sometimes for good reasons and sometimes I would question the reasons—it has a huge impact on the ability of young people to go to college or to sixth form college, and indeed to have a social life. Consequently those young people cannot reach their full potential.
I have tabled my amendment because I think it is very important that young people should have some means of engaging in the decision-making process. This is just one suggestion, on which I hope the Government will look favourably. However, if they cannot accept the amendment, I should be very grateful for an opportunity to discuss with the Minister and her officials how we can better include young people in the decision-making process in the future. Of course I understand that at the moment the voting age is 18. Personally, I would argue on other occasions that that should be reduced to 16.
Baroness Royall of Blaisdon
My Lords, we will have that discussion at a later date. For the moment, we have a voting age of 18. Notwithstanding that fact, I think that it is very important that young people who are younger than 18 should have their views properly assessed and that they should have an opportunity to have proper discussions with the people who are taking the important decisions in councils and other bodies that so profoundly affect their lives.
There is another amendment in this group that relates to petitions, but I understand that there may be some other movement from the Government on petitions and referendums. If, however, the current proposals from the Government stand, I would argue that young people themselves should have an opportunity to petition the Government as outlined in Amendment 195ZAZNZA. I beg to move.
Lord Tope
My Lords, if the purpose of this amendment was to enable a short debate on the political engagement of young people, I have no hesitation whatever in supporting that intention. If it is the intention to prescribe how local authorities should do it—and I do not think that it is—it has no place at all in a localism Bill. However, I am assuming it is the former, and indeed I think that the noble Baroness, in moving the amendment, said it was a suggestion—in fact, a very good suggestion. I want briefly to echo the importance of the political engagement of young people in the community. I can only speak with direct experience of my own local authority, where our youth parliament plays a very active role, and which in its elections last year had almost the highest turnout in the whole of London. That is in a relatively small London borough where young people play an active part. Similarly, we have young ambassadors who play a very active part not in matters particularly for young people but in the whole life of the borough, in issues that are of importance to people of all ages.
Therefore I wholly support and encourage the intention of this debate. It is important not just that young people are listened to but that what they are saying is heard and acted on. I can give another example of a project in which I am involved with a new building. We had the young ambassadors round to carry out a very detailed and thorough inspection of it. They raised a whole load of points, both about the physical nature of the building and particularly about the programmes that were being run there. They made a report to us, I ensured that the management board gave them a full written response and they came back six months later to ensure that it was being acted on. That is the sort of engagement that we want, not the rather patronising one where we say, “Yes, of course, that’s very good”, and then do nothing whatever about it. Real engagement means not that we are listening but that we are hearing and that we are acting on their suggestions. To enable me to make that point, I am grateful to the noble Baroness for the amendment. I hope very much that she will not press it, because I do not think that it is for us, in a localism Bill, to be prescribing to local authorities how they should act on this issue; rather it is for us to encourage all local authorities to act on it and to do it effectively.
Lord Lucas
My Lords, in contrast to some of my noble friends, I am very much in favour of the involvement of young people in democracy and in giving them a formal role in it.
Lord Cormack
I hope my noble friend will not mind my pointing out that one can be wholly in favour of young people being involved in democracy without necessarily believing that the age of 16 should be the voting age.
Lord Lucas
My Lords, of course I believe always in the wisdom of my noble friend, even if my own views differ. I note that the Government, in their wisdom, always intend to legislate that people of any age may be members of a neighbourhood forum; so young people may well take part in the formation of policy for their area. I regret that the age at which they may vote on it remains 18. As noble Lords may remember from Committee, I would like to see it a good deal lower. I think that when you get down to a very small area, young people have a much more active and early understanding of what needs to be done in a locality than perhaps they do when you are trying to balance the affairs of a whole local authority, let alone a country. However, I celebrate the wisdom of the noble Baroness in not putting an age limit on participation in neighbourhood forums, and I very much hope that she will encourage other ways of allowing young people to participate in neighbourhood referenda and other aspects of localism.
Lord Cormack
My Lords, I am provoked into making a few remarks. I entirely agree with the noble Lord, Lord Tope, that this amendment does not have a place in the Localism Bill. However, like him, I am grateful to the noble Baroness, Lady Royall, for raising this issue. I think we must all accept that we have not engaged our young people sufficiently. When we came back for one day after those dreadful riots, I made the point that perhaps we should consider some form of citizenship ceremony for all young people—I believe at the age of 18, although perhaps it could be 16—where they proclaim recognition of their role, their responsibilities and their allegiance. It would demand reciprocation on our part that they have a greater opportunity to participate.
I do not believe and never have believed that the age of 16 is the right age to vote, but that does not invalidate the general point that I am seeking to make and indeed that the noble Baroness was seeking to make in her brief remarks. I will make my remarks equally brief. I hope that when my noble friend the Minister comes to reply, she will at least be able to indicate a general sympathy, just as I hope—when the noble Baroness withdraws her amendment, as I trust she will—that we will be able to recognise that this is not actually part of a mandate from the Government in a localism Bill, as the noble Lord, Lord Tope, said. It is merely an opportunity for us to encourage local authorities throughout the country to address the issue of young people perhaps a little more imaginatively than some of them have done—although by no means all.
Baroness Hanham
My Lords, I thank the noble Baroness for introducing that interesting short debate on this matter. I have a lot of sympathy with what she has to say about the importance of engaging young people in what is going on. If she will forgive me saying so, though, her amendments are not necessary, and I will tell her why.
The amendment would ask all local authorities to establish a youth council and prescribe in some detail how that youth council should be engaged with. As my noble friend Lord Tope has said, there are already youth councils and youth parliaments in many local authorities. Indeed, I recall that the former Lord Speaker—maybe the current Lord Speaker will do the same—has welcomed young people into this Chamber for a youth parliament to debate things about democracy. It is understood across Government that it is vital to engage young people in what is going to be their future. I do not think that there will be any disagreement about that.
The Government are already committed to these issues. The Department for Education has recently awarded grant funding of £850,000 to the British Youth Council for 2011-13 to provide support for young people’s voice and involvement in decision-making at both local and national level in England. In addition, there is already a statutory duty on local authorities to provide sufficient educational and recreational activities for 13 to 19 year-olds, which includes a duty to take steps to ascertain the views of young persons on services and facilities and to secure that the views of qualifying young persons in the authority’s area are taken into account.
The Department for Education will be consulting shortly with a view to producing new strategic guidance on this duty, which will reflect the findings of the recent Ofsted report on the commissioning of youth services, so there is a great commitment not only to the provision of these services but to young people’s voice being heard. Those findings include the recommendation that rather than prescribing from the centre which services should be provided and to what level, the Government should look to local authorities to publish their own local offer of services to young people.
It is for that reason that, while I agree with much of what the noble Baroness has said, I am not able or minded to accept the amendment. As other noble Lords have said, it does not fit neatly into this legislation at this rather late stage. We do not want to be prescriptive about how local authorities provide services for young people, nor about how local authorities engage them in decision-making or how they create space for young people to have a collective voice. I reiterate that I know that a great many authorities already do this and value the views that they get.
Lord Phillips of Sudbury
I apologise for interrupting the Minister’s flow but, as she enumerates what the Government are doing to support citizenship, I cannot resist asking her whether she will make powerful representations to her colleagues in government not to take citizenship out of the compulsory secondary curriculum, as is now being anticipated.
Baroness Hanham
My Lords, I think I hear what my noble friend has to say. I will note that what he says is recorded. It is not a matter for my department, unfortunately, but I am sure that his views will be well received.
Regarding petitions, it is not right to make young people a special case in the way that has been proposed. If young people, then why not retired people, people from ethnic minorities or those with disabilities? It is difficult to group people and say that they can apply for a referendum. Young people and youth councils will, rightly, have every right to campaign and get involved in local democracy, as any other individual or group does.
The noble Lord, Lord Lucas, rightly drew attention to the fact that, while they would not be able to vote in a referendum on a neighbourhood plan, young people will be encouraged to be involved in the formation of what will affect their lives from what is happening round about.
I hope that, with that, the noble Baroness will be content to withdraw her amendment, on the understanding that there is a real commitment to understanding and engaging young people not only at national level but across the local authorities.
Baroness Royall of Blaisdon
My Lords, I am grateful to the Minister for her response and to all noble Lords who have participated in this short but important debate.
I have two or three responses. With regard to petitions, there is a specific reason why I tabled the amendment. I understand that the Minister would not wish to have separate sets of rules for elderly people, disabled people or whoever. The rules pertaining to petitions are for electors—therefore, people over 18. I am suggesting that there should be some means for people younger than 18 to be able to petition.
On youth councils, I was delighted to hear what the noble Lord, Lord Tope, said about what is happening in his council, and clearly there are things happening up and down the land. The fact is, though, that this is good practice but it is not everywhere. The Minister on behalf of the Government, we as the Opposition and indeed society should be doing more to ensure that young people are aware of what is happening. So often it is the same young people who participate in youth parliaments as participate in youth councils. I do not denigrate what they are doing—it is fantastic—but there are many other young people who we need to draw into this magic circle. We need to look together at innovative ways to do that. I trust that the Minister might go away and ask her officials to think about how we can ensure that there is a wider store of people whom we can enthuse about democratic engagement and engagement in our society.
The noble Lord, Lord Tope, was right that so often we claim that we are going to listen to what people say, especially young people, but do not act upon it. We have to exhort decision-makers at every level, including at local council level, to take into account what young people are saying.
I am afraid that I have to return to a political point. I realise that the Government want to do their utmost to consult young people about the services that they want in their local areas, but the fact is that the cuts are such that there is no longer any money for this to be carried out by local authorities. Young people have needs that they can and do identify, but the answer that comes from local councils is, “We’re afraid we can’t do this because the money simply isn’t there”. As I said earlier, quite often local councils turn to charities and volunteers. I salute the fantastic work done by charities and volunteers, but we cannot rely on them alone. We have to have a proper youth service, properly financed up and down the country.
I plead with the Minister to go back to her officials and try to ensure that local authorities take youth services into account when they are looking at their budgets for next year. Youth services are too easily cut. At the moment, young people in our society are often not heard when they are making their arguments to people in authority, and I plead with the Minister to try to ensure that local authorities listen both to the arguments put by young people and to their needs in our society. With that, I beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
My Lords, I understand that this amendment, like many others, would become superfluous, if, as I apprehend, the Government are to accede to amendments to be moved by the noble Lord, Lord Greaves, effectively to remove from the Bill the provisions for local referendums except in respect of council tax increases deemed to be excessive. In the circumstances that I apprehend are about to occur, there is not much point in my moving this amendment, and therefore I will not do so.
Amendment 195ZAZMB not moved.
Amendment 195ZAZN
Lord Greaves
Lord Greaves
My Lords, in moving Amendment 195ZAZN, a relatively short number compared with some we have just had, I shall speak to 17 others in this group, some of which are even shorter. The purpose of these amendments is to make the Bill itself even shorter, which I think would benefit the people of this country generally.
The first amendment removes Clause 42, which is the duty to hold local referendums—a duty to hold a local referendum under ordinary local election rules if a petition received by a council signed by at least 5 per cent of the electors in a ward, a county division, or the whole authority, is received. If passed, the result of the referendum would be advisory on the authority. The first amendment removes this duty from the Bill; the other 17 amendments in the group remove the remaining 17 clauses in this chapter of the Bill, which set out how the referendum procedures would operate and how the referendums would take place.
The reasons why I would like to do this were fairly fully set out when I spoke at Second Reading and described this part of the Bill as “nonsense”, and in the discussions we had in Committee. It is a provision which is over the top. It would be very expensive in relation to its value, which would simply be advisory referendums, and if combined with a local election, it has the potential to distort that election. If it is free-standing, then it carries the whole costs of a local election. It is open to abuse by extreme groups; as I said in Committee, in my own ward, in Waterside in Pendle, less than 200 names would be required, and the last time I stood for election the BNP got more than 300 votes. It would also be open to people demanding large numbers of referendums on all kinds of things that the council would find it extremely difficult to refuse to hold.
There is the question of planning: the Government removed planning applications from the scope of this chapter, but not the plan-making process, where it really is superfluous to a process which already has provisions for public participation.
Councils already have the powers to hold referendums when they want to do so, and as I have already said, if passed, the referendums would only be advisory anyway. Councils could simply ignore them, and the whole thing would be a waste of money.
The Bill retains provisions for referendums in various specific cases, such as elected mayors, what the Government call excessive council tax increases, and neighbourhood plans. While I have views on those referendums I am not trying here to remove those provisions, but merely to remove the provisions for advisory local referendums in Chapter 1 of Part 4 of the Bill. I beg to move.
Lord Tope
My Lords, I support my noble friend Lord Greaves in all that he has said. He has made a very persuasive case, and I would summarise it in words that we hear so often from the Dispatch Box: “My Lords, these provisions are not necessary”. As my noble friend has said, local authorities are already able to hold referendums if they so choose. The provisions elsewhere in this Bill will widen that possibility—that scope—in a number of ways.
I believe that there are better ways of testing public opinion fairly than using the very suspect means of a referendum. Perhaps in the current financial climate, even more persuasive is the fact that they are very expensive to hold. They are misleading to members of the public, who will not unnaturally think that if the local authority has gone to all the trouble of establishing a referendum using the full electoral process, then they will actually implement whatever the result is. Yet the provisions here are not binding; a local authority, if it is so minded—and brave enough—may well then decide not to abide by the outcome of the result of the referendum.
I will end where I began, in the words that I know the Minister believes to be most persuasive, because they are the words that she and her colleagues use so often to the rest of us when we are moving amendments: “My Lords, these provisions are simply not necessary”.
Baroness Hanham
My Lords, before we go any further it may be in the interests of the House if I indicate probably what is now the worst kept secret—that the Government will be minded to accept these amendments, and there may be further debate.
Lord True
My Lords, I do not wish to inject a note of dissent entirely, because noble Lords who were in Committee will know that I was one of those who was extremely critical of many of the prescriptive aspects of what was laid out in the Bill. Indeed I have laid amendments with my noble friend Lord Howard to raise the question of whether referendums might be binding in certain circumstances.
I do not fear the use of referendums; they will be possible, and I hope that in endorsing the decision of the Government, the message will not go out from the House that somehow referendums are in all circumstances undesirable or unwanted. I know that that is not the Government’s intention otherwise they would not have presented us with the Bill in the first place, but in the general maelstrom of enthusiasm that I am sure will follow this announcement, it is important for someone to place it on the record that in terms of localism and popular voice, a referendum can be a powerful and legitimate weapon of public power and authority.
One of the problems with what was drafted by the Government was not only its prescriptiveness but of course the ease with which it could be used, which led to all the problems of cost and potential abuse, and that is where we got into a number of difficulties. The noble Lord, Lord Beecham, withdrew an amendment which was effectively going to restrict the ability of one or two councillors to interfere or manipulate the process of these referendums.
Since we are going to discuss this matter late here tomorrow in relation to neighbourhood orders, Amendment 207, which gives the power to individual ward members to exercise a stopping power, is not desirable. That reason why the Government’s referendum provisions are not desirable is a good reason why I support the Government’s action in withdrawing this. It is important to state that, from my perspective as the leader of a local authority, a referendum is a weapon that can and should be used and should be accepted by those in local government.
Lord Brooke of Sutton Mandeville
My Lords, I shall be extremely brief. My morale has been sustained throughout the Recess by the prospect of shortly moving Amendment 195ZB, in which I see I have the support of the noble Lord, Lord Beecham. That amendment is directed at the issue that the noble Lord, Lord Greaves, has addressed. I tabled it at the request of the British Retail Consortium. If it makes any difference to any doubts in the mind of my noble friend the Minister about what she is about to say, she will have the British Retail Consortium on her side when she does so.
I am less sure that Amendments 195D and 195E to Clause 59, which are in my name, will now be unnecessary. If we are to have a break for dinner, there may be an opportunity to find out whether they need to be moved.
Lord Lucas
My Lords, I am significantly less well informed than the noble Lord, Lord Beecham. This has caught me by surprise, particularly since, in various discussions with my noble friend’s officials, the local referendum was used to ward off my requests for amendments in other areas. To go over some of my concerns, I have, throughout the passage of the Bill, tried to persuade the Government that they need to look at how localism will work in cities. In rural and suburban areas, planning is a great lever and generator of funds. All things will be possible if we get the planning side right. Once you have funds, you have the ability to do what you want in a neighbourhood to a certain extent. You certainly have a lever with which to negotiate with the local authority.
However, even in as gentle an urban area as Lavender Hill, planning has no function as a raiser of funds or people’s enthusiasm. The place is built out. There is very little that planning can do. You will never get a community created in Lavender Hill, let alone some of the more difficult areas of cities, on the basis of what is in the Bill. We should be turning our thoughts to how the section on allowing local initiatives to run local services might be made less formal so that neighbourhoods might group around it. We ought to turn our minds to how neighbourhoods can make representations to local councils and be listened to on subjects that they really care about, such as school catchment areas, how parking is enforced and how decisions are made about the distribution of services.
There are many ways in which we might build localism in cities. Surely the riots have shown us the importance of doing that. However, in removing this provision the Government remove the one bit of the Bill that gives a possible voice to neighbourhoods in cities in trying to persuade their local councils to do something in the way that the neighbourhood wants them to be done. I will not argue with the Minister and my other noble friends that what is in the Bill at the moment is not an expensive and bureaucratic way of doing it, but we have to find something else. The Bill is such an opportunity to improve life in cities but the Government do not seem interested in taking it. I find that enormously disappointing. I am particularly sad that—since somewhere in the great collective mind that is the department there is an awareness of my arguments—I should be kept in the dark and not given time to prepare thoughts and arguments to compensate for this loss later in the Bill. I shall apply myself to it for the rest of the evening. With luck, we shall not get so far into the Bill that I cannot find ways of putting back opportunities to argue these things. As I say, my main concern is that this great opportunity to help build communities in cities is being allowed to pass by at a time when we are all acutely aware that it should not be.
Lord Beecham
My Lords, I very much welcome the Government’s decision to accept the amendments of the noble Lord, Lord Greaves. We debated this at some length in Committee. The drawbacks of the system that the Government had intended to bring in were made manifest at that time. The Government, having made the egregious error—in the view of some of us—of adopting an American system for the direct election of police commissioners, were in danger of incorporating something like a Californian referendum system into local government. It has not been noticeably successful in California.
A referendum is a legitimate way of testing public opinion. That is absolutely right. It is less obvious that the proposals in the original Bill—to allow a very small minority of either elected members or the public to engender petitions on any subject under the sun, at any time and at any cost—would make a significant contribution to the kind of community engagement that the noble Lord, Lord Lucas, rightly wishes to see not only for the Lavender Hill mob but more generally. It is a perfectly legitimate and, indeed, important part of what local government and local governance must be about. However, there are other ways of involving communities and testing opinion. It is a pity that one of those ways—the petitioning procedure that was admittedly somewhat overcomplicated by the degree of regulation applied to it—has been abolished by the Bill. It required a council response to a petition from residents. It was a good measure. The noble Lord, Lord Shutt, made great play of the fact that it was extremely bureaucratic in the way that the previous Government laid out how these things should be conducted. There was some force in that but the principle was a good one. It required an authority to respond to a concern that was formally raised by petition. I hope that the Government might, even at this late stage, given that they have taken out this part on referendums, look again at whether that might be reintroduced, perhaps in some more acceptable form than previously.
There is also the councillor call for action. I do not think that the Government have disturbed that principle. Admittedly, it is up to a local councillor to make the call but, on the other hand, a councillor who declines to make a call when faced with a considerable body of opinion in his ward is unlikely to remain a councillor for long. There is also that mechanism. Generally, in recent years local government has been more inclined to establish local mechanisms for consultation and involvement. I hope that that will be reinforced. However, the substantial construction of the previous arrangements for referendum effectively constituted an invitation for people to make mischief, which would have happened, to divide communities, which would also have happened, and to involve the authority in considerable expense. It could run into hundreds of thousands of pounds for a significant-sized authority. The noble Lord, Lord True, expressed serious concerns on that basis. Therefore, we very much welcome the withdrawal of this proposition, which leaves three areas where referendums might occur, as we have heard. We shall come to one of those, namely the council tax referendum, shortly.
Under the circumstances, I am not sure that it is right at this point to raise some of the concerns of the Electoral Commission, with which some of your Lordships will be familiar, about how such referendums—now in only three categories—might be conducted. It raises a concern about expenditure in promoting referendums of that kind. Clearly, for local referendums that are being abandoned it will no longer apply. However, it will still be potentially applicable to other referendums—the three that have been referred to, on elected mayors, council tax and neighbourhood planning issues, which we will eventually come to. I raise it now so that Ministers might have an opportunity to think a little about the Electoral Commission’s concerns. They may of course have a response already; but if they have not, then those concerns will not disappear because these particular provisions are no longer to feature in the Bill.
I hope that in the course of further debate we will have an elucidation of the Government’s position in relation to what is a real concern in respect of how the remaining referendums might be conducted, and, more particularly, how they might be financed. Subject to that, I certainly support the amendment of the noble Lord, Lord Greaves, and I am pleased that the Government are, as the noble Baroness so gently puts it, minded to accept them.
Baroness Hanham
My Lords, I do not know that there is an awful lot more to say. It is interesting that at this stage of the proceedings we have a rather limited number of people here to debate what, in Committee and at Second Reading, was a significant and major issue, with barely a friendly voice in place for these provisions. I therefore say to a rather muted House that we have listened to the concerns and anxieties that were raised over all those aspects put forward by the noble Lords, Lord Greaves and Lord Tope, and others, about the expense. We have decided with regard to towns that the local referendums do not need to have a place within this Bill.
If I may just briefly address my noble friend Lord Lucas, who—if he will forgive me saying so—has strayed a little bit away from what these amendments would do. This is no attack on the cities. It is nothing to do with the cities. It is a general point of view and a general provision that would have allowed anybody—urban, rural, whatever—to have referendums. It has nothing to do with planning, either, as the planning referendums are not affected by this Bill, and we will be returning—probably on Wednesday—to the whole area of provisions for neighbourhood planning and neighbourhood referendums.
As other noble Lords have said—as the noble Lord, Lord Greaves, pointed out in his introduction and as the noble Lord, Lord Beecham, has said as well—there are going to be other opportunities for referendums. Not only are there the council tax referendums, there are the right-to-build referendums and the neighbourhood planning referendums. Those complement the provisions for referendums which are already open to councils to carry out on governance. Any council may carry out parish polls and informal polls which are to do with its services and functions. We believe that there is pretty good coverage of this, and that there is the chance for people to have their voice heard without these provisions.
We have accepted what has turned out to be the will of the House at a much earlier stage, namely that these provisions should be reconsidered. We have reconsidered them, and therefore I tell the House that we will accept the amendments of the noble Lords, Lord Greaves and Lord Tope.
Lord Beecham
Before the noble Baroness sits down, first of all I hope that she will forgive me for not thanking her, as I should have done, for responding, as she has just said, to the will of the House. It has been another very constructive contribution, and I am sure the whole House is grateful to her. Could I ask in respect of the issue raised by the Electoral Commission, which I appreciate is a slightly wider issue, whether the Government will be looking at that before we get to Third Reading, as there will be areas in which it might be relevant?
Baroness Hanham
My Lords, I have seen the Electoral Commission’s submissions in relation not only to the costs, but to questions and to how it should be involved. I cannot give the noble Lord a direct answer but it does seem to me to be inconceivable that we should not take quite serious note of the Electoral Commission’s representations on this. I am sure we will come back to that issue.
Lord Brooke of Sutton Mandeville
My Lords, if I may intervene before the noble Lord, Lord Greaves, winds up: am I to take it from what the Minister said that we will not be debating any amendments which involve the clauses up to at least Clause 59, as these are in fact going to leave the Bill? If that is so—and the Minister is nodding her head—may I say that the amendments which I was going to move arose because of the serious gap in understanding between the Common Council of the City of London and her department about the size of the Corporation of the City of London’s voting arrangements? I hope it will be possible—if she could perhaps give me a nod again—to deal with these matters in correspondence, simply in order to remove the misunderstandings which clearly still exist in the Bill.
Baroness Hanham
My Lords, I confirm that Clause 59 would go, along with all the other clauses, because what the amendments of the noble Lord, Lord Greaves, effectively do is to take out the whole of Part 4. If there are still areas that need clarity—and the noble Lord, Lord Brooke, has said that there are—then I will of course write to him to clarify the amendments he has tabled, although I am bound to say that I do not think that they can be of relevance any more under the circumstances.
Lord Greaves
My Lords, my amendments take out the whole of Chapter 1 of Part 4. I would be quite happy to take out the whole of Part 4 but I do not think I would get quite so much enthusiasm from the government Front Bench.
Like my noble friend Lord Lucas, I have some concern that localism in this Bill is very rurally orientated—village-orientated and small-town-orientated—while over half the population of this country lives in large towns and cities. We have a lot of hard work to do in working out how localism will work in those areas.
I am grateful for the very welcome support of the noble Lord, Lord Beecham. I do not agree with him, as he knows, about the petitioning procedure which has been removed. When the Bill introducing that procedure came to this House, I struggled manfully to stop it. I am delighted that it has now gone, and I am delighted that struggling manfully against this Bill has had a little more success. That does not mean to say that councils should not deal with petitions properly, expeditiously and seriously: they clearly should. However, bureaucratic procedures laid down from on high are not the way to do so.
Finally, I congratulate and thank my noble friend the Minister, and the whole Government but particularly the Communities and Local Government Ministers, on and for their support for these amendments.
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Lord McKenzie of Luton
“( ) On application by a relevant authority, the Secretary of State may direct that the substitute calculations referred to in subsection (5) may be increased by an amount determined by the Secretary of State.”
Lord McKenzie of Luton
My Lords, the purpose of the amendment is to try to have a safety valve in the arrangements for referendums around council tax, and for the outcomes of those, whereby the Secretary of State, notwithstanding the early determination, may direct that a substitute calculation can be increased by an amount determined by the Secretary of State. When we debated these amendments before we instanced particular circumstances where it was perhaps difficult for a local authority to disclose fully some of the sensitivities around its budget. Those matters might be commercially confidential or there might be a dispute outstanding. To spell out the consequences, risks and costs associated with that that could fall on the local authority, which could be difficult and prejudice its position. Hence the proposition that there should be an opportunity for the Secretary of State, obviously after discussions, to increase the amount determined. It may be that the Minister will say that this could be dealt with earlier in the process when the Secretary of State designates certain categories of authority, and that there will then be scope through that discussion to itemise just a few or even one particular local authority. That would be the mechanism to allow a council tax increase which was relevant to that local authority, but which was greater than the amount generally determined. That is the purpose of the amendment. I beg to move.
Earl Attlee
My Lords, I fear that my response on this occasion will be fairly similar to the previous one. The amendment does not take account of the fact that the provisional principles for council tax referendums will be announced at the same time as the provisional local government finance settlement. Authorities will then have the opportunity to make the Secretary of State aware of any exceptional circumstances that they consider he should take into account when determining the principles.
The noble Lord, Lord McKenzie, suggested that there may be financial problems that the local authority is reluctant to disclose. But what about being open to the Secretary of State about its problems? Surely it would want to keep the Secretary of State informed. I do not understand how the situation could arise whereby a local authority was in severe difficulties but wanted to keep that quiet from the Secretary of State.
Lord McKenzie of Luton
I am sorry if I was not clear. The concern was not about being open and transparent with the Secretary of State, but about the process of a referendum laying bare some difficult situations that could prejudice the outcome of those so far as the wider public is concerned. Obviously, in due course, everything would have to be properly reported and accounted for in the public domain, but there could be some sensitivity around issues just at the point where the referendum might be undertaken. That is the issue we are seeking to safeguard.
Earl Attlee
I think that I can accept, as the noble Lord describes, that you might not want to make the difficulties public at the time of the referendum, should that be necessary, but I do not understand why the local authority would not make it clear to the Secretary of State that there was a problem locally. It might have been a minor disaster, or a facility could have been destroyed, for example. The Secretary of State may or may not be aware of it but the local authority could tell the Secretary of State, and if it is a matter that does not need to be fully advertised then the Secretary of State could perhaps put it in a different category. It might be common knowledge, and therefore it would not be a surprise that the local authority was put in a different category.
In addition, if an authority is faced with difficulties prior to the referendum being held, the Secretary of State may direct that the authority need not hold a referendum if he considers that it will be unable to discharge its functions effectively or unable to meet its financial obligations. It cannot be right to allow an authority to apply to set an excessive council tax after it has been rejected by the electorate, nor can it be right for the Secretary of State to set a higher level of council tax after a referendum.
I do not think that this is localist. Indeed, it would defeat the whole reason for having a council tax referendum in the first place—to let the local electorate decide. I therefore ask the noble Lord to withdraw the amendment.
Lord McKenzie of Luton
My Lords, I am grateful to the noble Earl for his explanation. We had this response and exchange previously. I should stress that I was not in any way suggesting that a difficulty which a local authority may be in should not be fully shared with the Secretary of State. I was simply expressing the difficulty, at that point in time, of having to expose it fully in the public domain because of the adverse consequences that it might bring, to the detriment of the taxpayers in that area. That was the issue that I was seeking to pursue.
I take the noble Earl’s point that doing this perhaps after the referendum has been lost would seem to negate that process. However, I hang on to the point that there needs to be some mechanism to deal with it. The noble Earl referred to provisions, which we will cover in a different way in Amendments 196A and 196B, whereby if the Secretary of State is of the view that an authority is unable to discharge its functions or would be unable to meet its financial obligations the Secretary of State can step in. However, when we discussed that matter last time, it emerged that that would be an in extremis situation and I am still trying to focus on an issue when that situation has not been reached but it might be a material contractual issue that the local authority is facing. The issue may have reached a critical stage in negotiations, or there may be litigation pending or under way. I am suggesting a safety valve to deal with that.
If the Minister is saying that the best way of dealing with that is to have these discussions earlier so that there can be a separate category for that authority, I would accept that as a route forward. Quite how it would be viewed by the wider public if an individual authority, which presumably would have to be named, were to be separately categorised, and the inferences that might be drawn, could give rise to some—
Earl Attlee
My Lords, you could have a category with a single authority or with two authorities that have some bad luck, where something went wrong, and they could be treated a little more generously than others.
Lord McKenzie of Luton
Again, I am grateful for that. I hold to the view that although it may help in some instances, being named separately in a category with a potential council tax increase that was greater than that of most other authorities could itself engender inquiries, concerns and speculation over what might be going on. There is no easy way round this but I am happy to accept the Minister’s assurance that this type of issue could be dealt with through the mechanism that he identifies. I am content to leave it there and beg leave to withdraw the amendment.
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, I beg to move Amendment 195K but shall not move Amendments 195L or 195M because this is an overlapping provision. This amendment would delete the detailed list of issues where guidance can be given by the Secretary of State in relation to a referendum. Regulations can touch upon provisions relating to: the question to be asked; the publicity to be given in connection with a referendum; the limitation of expenditure in connection with a referendum; the conduct of the authority, members of the authority and officers of the authority; when, where and how voting in a referendum is to take place; how the votes cast in a referendum are to be counted; and for disregarding alterations in a register of electors and so on. I contend that those issues should be left to the local authority to determine. If we are to be adherent to localism and want to trust local authorities, then we do not need this degree of prescription.
I am afraid that I missed all the fun over the removal of referendums earlier in the Bill as I was in the Committee on the Welfare Reform Bill. This is one area where referendums clearly remain in the Bill but I believe that the prescription should be removed.
Earl Attlee
My Lords, this amendment removes the power to make regulations in relation to significant issues relating to the conduct of council tax referendums. If there are to be no regulations, what are there to be? Are authorities to be left to make up their own rules on conducting council tax referendums and counting the votes?
Voters are entitled to see referendums handled in a consistent way with proper safeguards. The Government have accepted, on the recommendation of your Lordships’ Delegated Powers and Regulatory Reform Committee, that the regulations should be subject to the affirmative resolution procedure.
When I responded to similar amendments proposed in Committee, I said that the regulations would be modelled on existing regulations on the conduct of referendums on local government executive arrangements and would be subject to consultation with the Electoral Commission. Therefore, we are not suggesting a completely different system for operating a referendum; we are merely suggesting changes, where necessary, for this particular type of referendum.
Given that the regulations will be given considerable scrutiny and will be subject to the approval of both Houses, I request that the amendment be withdrawn.
Lord McKenzie of Luton
My Lords, I do not think that we are going to agree on this issue. We think that the Bill is unduly prescriptive and unnecessary. Clearly, the local authority has to have a referendum if it is going to deal with its council tax levels or if it wishes to go above the designated level. It cannot avoid that. If it acted spuriously or arbitrarily, it could obviously be held accountable for that.
There is also the question, which we touched on in Committee, of what happens if the referendum is found to be flawed in some respect in due course. What happens to the declared outcome of that referendum? That is an adjunct to these provisions but, on the specifics of seeking the removal of this prescription, I think that I understand the Government’s position. I do not agree with it but I do not see that there is a great point in pursuing it further this evening and I beg leave to withdraw the amendment.
Earl Attlee
“(6A) No regulations under this section are to be made unless a draft of the regulations has been laid before and approved by resolution of each House of Parliament.”
Earl Attlee
My Lords, in its report, your Lordships’ Delegated Powers and Regulatory Reform Committee recommended that regulations made under new Section 52ZQ should be subject to the affirmative procedure.
These regulations will set out the rules for conducting council tax referendums, and I am content that the Bill should be aligned with this recommendation. To give effect to this recommendation, Amendments 196 and 197 will add new subsection (6A) to new Section 52ZQ of the Local Government Finance Act 1992, which is inserted by Schedule 5 to the Bill, and will amend Schedule 6 accordingly.
There are a number of further minor and technical amendments—Amendments 197A, 197ZA, 197ZB, 197ZC, 197ZD and 197ZE. These do not alter the policy effect of the council tax referendums provisions but they ensure that minor drafting errors are corrected and that the provisions operate appropriately in relation to Wales. If your Lordships desire, I can give more detail on these amendments, but I assure noble Lords that they are minor and technical. I beg to move.
Lord McKenzie of Luton
My Lords, I am content with the government amendments and have no points to raise in connection therewith. Although they are grouped together, I have not yet spoken to Amendments 196A and 196B. I do not know whether they will be called separately but I can support the government amendments as they stand.
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, this amendment takes us back to the point that we touched on earlier this evening: whether circumstances might arise where currently the Secretary of State can determine whether an authority will be unable to discharge its functions in an effective manner or will be unable to meet its financial obligations unless it has a so-termed excessive council tax increase. Our amendment would bring to that process the right to seek an independent assessment of those same criteria, so that there is a process, other than, or in addition to, the Secretary of State’s own engagement with that decision. That may, in part, provide a route for dealing with the issue that we discussed earlier concerning one-off events arising for local authorities.
My understanding is that these tests are to be judged in the extreme—only if there is a cataclysmic situation and not one somewhere along the spectrum before that. I do not think that that is what the wording actually says or what the natural meaning would be. However, I believe that an authority should have a right to an independent assessment when it is heading towards situations which are very serious for it and which, without an excessive council tax increase, it could not see its way through.
Earl Attlee
My Lords, similar amendments were withdrawn in Committee. I set out the Government’s position there and my noble friend Lady Hanham followed up in significant detail in her letter to the noble Lord, Lord Beecham, dated 19 July, a copy of which has been placed in the Library of the House. I shall not repeat all those points in detail, other than to reiterate that it would be inappropriate for an unelected and unaccountable person to make the decision, which will involve a judgment about whether local taxpayers should be entirely unprotected from excessive increases for a financial year.
My noble friend’s letter made it clear that authorities will be able to make the Secretary of State aware of any special circumstances applying to them during the process when council tax principles are formulated and finally determined. We talked about the possibility of having a separate category. If my right honourable friend got this decision wrong, clearly there could be very serious consequences if it turned out that a local authority was not able to carry out its functions, and there would be political repercussions for my right honourable friend. My noble friend also said the Government would keep an open mind about the context within which this power to disapply a council tax referendum would be used. With this in mind I would ask the noble Lord to withdraw these amendments.
Lord McKenzie of Luton
My Lords, I am grateful again for that assurance being on the record. As with our earlier discussion, if the categorisation of authorities heading for severe difficulties is the route to deal with it, I am pleased to see that on record. I beg leave to withdraw the amendment.
Baroness Hanham
“31A In section 113(3) (orders and regulations to be subject to annulment by either House of Parliament, except in certain cases) after “except in the case of” insert “regulations under section 52ZQ above or”.”
Baroness Hanham
Baroness Hanham
Baroness Hanham
(a) in sub-paragraph (i) omit “general fund or (as the case may be)”, and(b) ”
“(3A) In subsection (2)(a) omit the words from “, other than” to “1988 Act”.
(3B) In subsection (3)(a)—
(a) at the end of sub-paragraph (i) insert “or”, and(b) omit sub-paragraph (iii).”
“(3A) Omit subsection (3).
(3B) In subsection (4) omit “or subsection (3) above”.”
“Police Reform and Social Responsibility Act 201152 The Police Reform and Social Responsibility Act 2011 is amended as follows.
53 In section 19(7)(f) (function of calculating budget requirement may not be delegated by police and crime commissioner)—
(a) after “calculating a” insert “council tax requirement or a”, and(b) after “section” insert “42A or”.54 In section 23(2) (minimum budget for police and crime commissioner: amendments to section 41(1) of the Police Act 1996) for paragraph (c) substitute—
“(c) for “its” substitute “the commissioner’s”.”
Lord Shutt of Greetland
“(2A) The persons or bodies who may be specified by regulations under subsection (2)(d) include a Minister of the Crown or a government department.”
Lord Shutt of Greetland
My Lords we now move to that part of the Bill regarding right to challenge. The first set of Government amendments—there are eight amendments in the group—seek to improve the workability of the right and to clarify certain issues that arose in response to our recent consultation exercise and indeed at the Committee stage in your Lordships’ House. Our consultation on the community right to challenge showed there is a real appetite to extend the duty to consider challenges under the right to more public authorities, including central government departments. Seventy-three per cent of respondents on this issue supported this course of action and I believe it has the support of many in this House. During our deliberations in Committee the noble Lord, Lord Jenkin, suggested several services provided by government departments to which the right could be extended.
Clause 69(2)(d) already gives the Secretary of State the power to add other persons or bodies carrying on functions of a public nature as relevant authorities. Amendment 197B ensures that these persons or bodies could include a Minister of the Crown or a government department. Amendment 197C ensures that if the duty is extended to a person or body that exercises functions outside England, the right to submit an expression of interest will apply only to services provided by that person or body in England.
Amendment 197D responds to a query raised by the noble Lord, Lord Patel, in Committee about whether a public or local authority could be a community body. This was never our intention. In line with the definition of a voluntary body in Clause 69(6), we are therefore amending Clause 69(8) to clarify that a public or local authority cannot be a community body.
Amendments 197E, 197F, 197G and 197H are about enabling relevant authorities to determine timescales. They make changes to the provisions on the timescales associated with the community right to challenge in response to concerns raised by many local authorities, and others, during our recent consultation. These concerns focused on the difficulty of setting timescales nationally that could take account of the wide variations in services and circumstances and did not interfere with timescales for existing commissioning cycles. We agree with these concerns and are therefore amending the provisions to remove the Secretary of State’s powers to set timescales in regulations and replace them with a requirement for relevant authorities to set these timescales instead. We intend to set out in guidance, to which authorities will need to have regard under Clause 73(2), the factors they should take account of in doing this.
We have outlined what we expect these factors to be in the policy statement on the community right to challenge which was recently made available to Peers. Chief among them is the need for authorities to set timescales that give relevant bodies sufficient time—whether that is to prepare and submit an expression of interest or organise themselves to bid effectively in a procurement exercise or ensure relevant bodies are notified of decisions within a reasonable time. Authorities will also be required to publish details of these timescales.
Amendment 197E therefore removes the Secretary of State’s powers to specify the minimum periods which authorities can specify for the submission of expressions of interest. Clause 70(2) already enables authorities to specify periods for the submission of expressions of interest and Clause 70(3) to publish details of these periods.
Amendment 197F removes the Secretary of State’s power to specify the minimum and maximum periods which must elapse between the acceptance of an expression of interest and the commencement of the procurement exercise. Instead authorities are required to specify and publish details of these periods, which can be different for different cases.
Finally, Amendments 197G and 197H remove the duty on authorities to make a decision on an expression of interest within a timescale specified by the Secretary of State in regulations. Instead the authority must specify and publish the maximum time this decision will take. In order to prevent delay, relevant authorities will also be required to inform the relevant body of this maximum period in writing, either within 30 days of the end of the period for receiving expressions of interest, or where none exists, within 30 days of receiving an expression of interest. It must then notify the relevant body of its decision within the timescale it has specified. I beg to move.
Lord Lucas
I should be very grateful if my noble friend could go into a little more detail about Amendment 197E. He has removed there the ability of the Secretary of State to set minimum timescales. I understand what he says about flexibility. But if a local authority wishes to discourage activity under this part of the Bill, then timescales are where it will squeeze most easily. As my noble friend says, community organisations will take time to get themselves organised, to get their bids in and get them up to the standard required for subsequent scrutiny and competition. It is not clear to me in all the liberalising—from the point of view of the local authority—which is going on in these amendments, how the community, or bits of the community, can effectively appeal against, or have some notice taken, of a local authority which is setting very short timescales, which make things impracticable. There is guidance there. If the local authority does not go along with guidance, there does not seem to be any set of teeth that can be sunk into the local authority.
My experience of this is mostly in terms of parking regulations. There, again, the Government issue guidance. If the local authority goes against that guidance, no one takes any action of any description at all. Here it seems to be rather more important that in order to encourage action under this part of the Bill, there is an effective policing of the actions of local authorities to make sure that they are opening themselves up to what must be in many cases an inconvenient and, in their view unnecessary, application of neighbourhood rights and interests, with a system which they have got running very nicely, thank you very much. I would very much like some comfort that there will be an effective substitute for the backstop provided by the Secretary of State in the Bill as we have it now, which is being removed by these amendments, in cases where a local authority is acting to make this part of the Bill unworkable. I hope my noble friend can give me some comfort on that.
Lord Shutt of Greetland
I do not know whether I can give the noble Lord any comfort. The problem is that, on the one hand, people are asking for localism and letting the locals decide and, on the other hand, the noble Lord is saying, “Let the Secretary of State be on their back”. We cannot have it both ways. We certainly hope that people will be reasonable. For example, to have an expression of interest that is open for five minutes would not be reasonable. I should have thought that there would be other ways in localities to put a stop to that. It is as a result of our earlier debates and concerns about the Secretary of State being too prescriptive in these matters that some of these amendments have been brought forward. I should have thought that that would be appreciated by the House. But we are seeing the other view, which I know exists from time to time, that there will be recalcitrant local authorities which will not get on with things as people hope they might. I think we have moved in the right direction and, if it goes wrong and the recalcitrant authorities become a multitude, clearly something would have to be done, but perhaps we ought to trust local people and local authorities.
Lord Greaves
I take it that that was not the Minister’s reply to the debate. I have three brief points to make. We are moving on to the community right to challenge, and some of us have found it quite difficult to understand how it will work and how some of the problems which might result will be overcome. I thank the Bill team for their time and patience in explaining exactly how they see it working and being fairly honest about some of the difficulties which might exist. This is a difficult part of the Bill and it is one which, when it is enacted, as no doubt it will be, will need a careful eye kept on it. I cannot say that we have not had an immense amount of co-operation in trying to thrash it out.
I very much support Amendments 197B and 197E to 197G on the timing issues. Those are clearly a result of responding to the public consultation, but also to the discussions in Committee. I do not share the worries of the noble Lord, Lord Lucas, about the timing issues. The way in which the timing issues are now presented in the Bill is much better and leaves a great deal of initiative to local authorities. It is much better than the existing wording which leaves it all to the Secretary of State to lay down rules and regulations. I wish that the Government had been more flexible on similar matters in the 100 or so areas in the Bill that we can point to as giving excessive powers to the Secretary of State. In this instance, the Government have listened and we welcome that.
Lord Beecham
My Lords, the Minister referred to the extension to Ministers of the definition of agencies which might be subject to the right to challenge. That is the burden of Amendment 197B. Perhaps in his reply the Minister might indicate whether that could also include next-step agencies of government, which might carry out functions. More particularly, when one looks at Amendment 197D in conjunction with Amendment 197B, it seems to me that something of an anomaly is being created. There would be a community right to challenge Ministers under Amendment 197B, and that would extend to parish councils, but it would not, by virtue of Amendment 197D, extend to other local authorities, assuming one defines parish councils as local authorities. So we could have the anomalous situation of a parish council being able to exercise a right to challenge a government department or Minister about a provision of a service, but not the principal authority in which it is situated.
I do not imagine that that has been deliberately constructed in that way, but I should be grateful if the Minister would undertake to look at that anomaly before Third Reading. Parish councils can be quite substantial bodies—there can be 40,000 or 50,000 people in a parish area—and they might bid for a government service, whereas the county or district in which they are situated could not. That strikes me as a situation which would be difficult to explain. Perhaps it has not been envisaged as a possibility, but it seems to arise from these amendments. Perhaps the Minister could indicate a willingness to look at that point before we get to Third Reading.
Lord Shutt of Greetland
I thank noble Lords who have contributed to the debate. I am able to say to the noble Lord, Lord Lucas, that we are requiring local authorities to publish the timescales, so that if there were hideous timescales they would be shown up. I cannot imagine that they would endeavour to publish timescales which looked as though they were totally impossible for people to cope with. As a matter of public law, they must act reasonably. We have to bear that in mind and I hope that gives the noble Lord some comfort.
I understand the concerns of my noble friend Lord Greaves. I know how much hard work he has put into trying to understand the issues in this area. I shall write to the noble Lord, Lord Beecham, if I am wrong, but I believe it is quite right that a parish should be in a position to exercise the right. I believe that if one were able to challenge areas of government, local authorities could then become relevant. I may have to write to him to clarify that, but that was my belief when I heard people speak on that area, although it may be that some tidying up is required. I trust that noble Lords will be able to accept these amendments.
Lord Greaves
Before the Minister sits down, and without wishing to pre-empt the noble Lord, Lord Beecham, is that an indication that there might be some tidying up to be done at Third Reading, and that that issue therefore could be considered then?
Lord Shutt of Greetland
If we can do this by writing a letter and giving comfort in that way, it will be done that way. If, ultimately, it really were needed, we would indeed have to come back to it at Third Reading.
Baroness Hanham
Lord Greaves
Lord Greaves
My Lords, this little group of amendments raises some important and fundamental issues relating to the community right to challenge. I shall speak also to Amendment 197DA. I think that there is also a Labour amendment in the group.
We are back in the Alice in Wonderland world of relevant bodies, relevant authorities and relevant services. Amendment 197CA would leave out the provision that two or more employees of a relevant authority—a local authority—can be specified as a relevant body, in other words, a body which can challenge to run a service. The Bill defines “relevant body” as,
“a voluntary or community body, … a body of persons or a trust which is established for charitable purposes only, … a parish council, … in relation to a relevant authority, two or more employees of that authority, or … such other person or body as may be specified by the Secretary of State”.
The term “two or more employees” of a relevant authority does not seem to fit in with that list of defined bodies. One assumes that the other bodies defined by the Secretary of State will be community bodies. Employees are different.
That is not to say that there are not circumstances in which employees can, and indeed ought to, take over responsibility for the running of services on behalf of the principal council. Many of us would like to see far more organisations such as mutuals and co-operatives, which provide what, in a long lifetime ago in the Young Liberals, we used to call worker control—my noble friend Lord Tope remembers all that. Employee bodies or groups of employees taking over the running of services in a co-operative way is a perfectly valid and desirable way in which, in appropriate circumstances, public services can be run. They may be arm’s-length or more than arm's-length bodies.
However, it is our view that if the Government are interested in that—they have given some indication that they may be—that should be addressed as a separate issue. It is not the same as allowing a couple or half a dozen employees to go off on their own initiative and to do their own thing regardless of what the rest of the staff think. The Labour amendment in this group suggests that any such initiative should have the support of at least half the employees. On the face of it, that seems sensible.
There is concern that a small number of employees could act as a proxy for commercial companies coming in on the back of the provision. In our discussion with Ministers and civil servants, we have been given many assurances that safeguards are set out in the Bill to avoid that happening. The Ministers we have talked to have been absolutely clear that they do not see that as desirable, that it ought not to happen and that it can be prevented. I am asking my noble friend today not just for a statement that the safeguards are there but for a clear explanation on the record of how local authorities will be able to prevent that possible abuse. It is possible, as Ministers have told us, that that is unlikely to happen very often, but that is not a reason for not taking action to prevent it.
As for the process in which the community right to challenge will take place, I am widening the debate slightly to avoid saying quite so much on the next group of amendments. The first process is that a relevant body has to be approved by the council. If it is a parish council, it is automatic. If it is a community or voluntary body, the principal council will have to approve it as being a relevant body. The second part of the process is that a relevant body may make an expression of interest to run a service and the principal council has to decide whether to accept that expression of interest. So long as it fits the rules and regulations, it will not be able to reasonably refuse it. The third part of the exercise is that, having accepted an expression of interest, the principal council has to carry out a procurement exercise.
The concern that a lot of us now have is not about the processes in this Bill for approving a relevant body, which are full of all kinds of safeguards, with the possible exception of the provision relating to employees. We are not too concerned about the process of accepting an expression of interest, which again seems to have a number of safeguards written into it. It is in the procurement exercise where the problems seem to lie. Once the expression of interest is accepted, the procurement exercise comes into effect automatically. It seems to us that safeguards against abuse of the process are crucial.
Amendment 197DA is a different amendment. In Clause 69(8), “community body” is defined as,
“a body that carries on activities primarily for the benefit of the community”.
This amendment would add on the end of that,
“and is actively engaged in doing so in the area in which the relevant service is being provided”.
The amendment restricts the definition of a community body to a body which is active in the community referred to. It restricts it to local bodies or to wider bodies which are already active in the area. Otherwise, it would be wide open, for example, to a large national charity that has no presence whatever in an area to move in and try to take over services. If it is about community bodies, surely it is about bodies which are already active in that community.
I look forward to the Minister’s comments on that and in particular to his explanation of how the safeguards will apply to prevent abuse, particularly of a small number of employees putting in a bid for a service. Also, in general, what safeguards will there be against large commercial companies using this operation to sweep up services, which is what Ministers are repeatedly telling us they do not intend to happen?
Lord Lucas
My Lords, I face in a slightly different direction from my noble friend Lord Greaves. I hope my noble friend on the Front Bench can give me some comfort that, when the regulations are set out for this, they will have in mind how desirable it is that we should encourage the creation of neighbourhood-based community organisations to take on services currently provided by the state. One of the difficulties that we face in cities is that people have become used to the comfort of state provision, although they are getting extremely grumpy in some cases with the way in which it is provided.
If a community in a city is to get together and go through the process of preparing to bid for a service which it values, it is going to need considerable comfort and assistance in the regulations to make sure that it is not going to get tripped up on technicalities and that the local council can offer advice rather than having to stand back and treat this strange creature as a competitor to any commercial interests which may come along to bid for it afterwards. We need to be equipping ourselves in this Bill to nurture local enterprises and communities in cities to give them a chance through the provision of services to generate a surplus for reinvestment in the community. That is what we are doing elsewhere in this Bill for rural communities, which will generate a comfortable surplus out of planning permission, but we are doing nothing for inner city communities. This is the bit of the Bill where we give relatively compact communities easy access to a diversity of resources. Cities exist because they have that advantage over rural communities.
We need to give the local elements of those communities a real chance to get involved in providing local services and in that way generate surpluses which they can reinvest in the community and do the things that they want to do. I should like my noble friend to give me comfort that the department has urban communities in particular in mind in this part of the Bill.
Lord Beecham
My Lords, I certainly support the amendment of the noble Lord, Lord Greaves, in respect of the proposal that two or more employees could issue a challenge to the authority, which I would much rather were not in the Bill at all. Failing that, my Amendment 197CB, would at least require a majority of the employees affected to support such a move. I really hope that the Government will take that seriously. It does not seem appropriate that two or more employees—it might be a director or deputy director; it could be people lower in the organisation—could simply take a decision which would affect a considerable number of people without their consent and outsource a whole section of the local authority. That seems wholly unreasonable and not at all compatible with the general thrust of the Bill, which looks to secure support for a range of measures on the part of communities. I hope that the Government will acknowledge that there is an issue here and will accept one or other of the amendments. My preference would be that of the noble Lord, Lord Greaves, but, failing that, I would be delighted to accept his support for the fallback position.
However, I am less persuaded by his Amendment 197DA. I quite take the thrust of his intention, but I am not sure the wording is very compelling. The amendment refers to the body concerned being required to be,
“actively engaged … in the area in which the relevant service is being provided”.
Let us take as an example a county area and services for the elderly or domiciliary care. There might be an organisation in one corner of the county carrying out that service. It would hardly meet the description of being,
“actively engaged in the area”;
that is, across the area in which the relevant service is being provided. It is difficult to define in the way that the noble Lord seeks.
I am therefore unenthusiastic about the way in which the noble Lord reaches his objective, although I am bound to say that I am not sure that I can offer a better alternative. However, in respect of the previous two amendments, the Government need to rethink their position to facilitate at the very least a majority decision by those who would be affected by a move of two of their colleagues. I cannot see any logical reason why the Government should resist that.
Baroness Hamwee
My Lords, I have later amendments on the same issues. In relation to Amendment 197DA, I would like to say to my noble friend that I think that experience in the particular activity that is at issue is less important than the geographical link. I take his point about wanting a connection, but I am not quite convinced that it is the particular connection that he has mentioned. However, by and large I am entirely with him on this issue.
The noble Lord, Lord Lucas, framed this in terms of urban needs, and I myself am very much an urban and suburban person. He also mentioned the comfort of state provision. Since this debate has morphed into discussion not just about two employees, but about whether two employees might, as it were, sell out to Tesco, it does remind me that there is often a very sharp divide on this issue. People do not like Tesco, but they do like being able to shop in Tesco, which creates quite a dilemma.
My question for my noble friend is whether there is any room for local variation in a local authority’s response to such an expression of interest? I will come to my other questions when we come to my amendments later.
Lord True
My Lords, there is a gentle sense of irony in the representative of the workers’ party, and my noble friend who is yearning for the days when his party stood for worker control, expressing so much concern at the prospect of employees, however few—less than half, I gather, is unacceptable— expressing an interest in undertaking a function. It seems to me that we are witnessing major change in communities and local government and that it is perfectly reasonable, indeed it is already happening all over the country, that groups of workers and employees are coming forward with propositions to set up social enterprises, to take on existing bodies and to take on other activities. I am sorry that I was not in the Chamber to welcome the withdrawal by my noble friend of regulation in the previous group of amendments, which I do welcome. Yet here we are being pushed to prescribe and put blocks in the way of people putting forward expressions of interest simply on the basis that they might be employees of the organisation and, still worse, that they might secretly be in cahoots with capitalism.
Lord Beecham
That is not what I said, nor is it what the noble Lord, Lord Greaves, said. What we object to is the idea of two people in a potentially large organisation committing the rest of the employees. Where is the democracy in that?
Lord True
There is nothing to say that this deals with a large organisation—some of the things that we are discussing at the moment are relatively small. It seems inconceivable to me that two employees would act against the wishes of those people that they actually want to work with in the future. For years the noble Lord endured the policy of his party being made by small, powerful executives purporting to speak in the names of millions of people—for all we know, they probably still do. I do not see any reason why a group of workers or employees should not get together and entrust their negotiations about an expression of interest to two or three of their number. I think that we should be extremely careful in framing this Bill not to put forward regulation that makes employee initiative more difficult.
Lord Shutt of Greetland
My Lords, I thank noble Lords who have contributed. The noble Lord, Lord Greaves, introduced the debate and then strolled off into the area covered by my notes for the next section, so I will trespass into them and see whether that works.
Before I respond in general I will deal with the matters raised by the noble Lord, Lord Lucas, because I am aware that he was not particularly comforted on the last occasion that I responded to him. I hope that he will be now, because if he looks at Clause 74, he will see that it is headed, “Provision of advice and assistance”. I will not say that it is littered with the words “Secretary of State”, but they are there half a dozen times, which suggests that the Secretary of State may well give advice and assistance to those who want to be involved in the challenge. I understand that the department’s view is that the clause would be used to give help and advice to various organisations that may be far better able to tackle the challenge.
Lord Lucas
My Lords will my noble friend clarify whether that would be the case when the Secretary of State was being challenged under the amendments made earlier by my noble friend?
Lord Shutt of Greetland
That is a little further down the road, is it not? If the clause states that that advice is being given, then that advice is being given. Therefore, if the Secretary of State is directly giving a service that is ultimately challenged, I would have thought that that had to be, quite frankly. However, that is a little further down the road and it will not happen tomorrow. Nevertheless, it is there that advice can be given and I hope that that will be helpful to my noble friend.
I will look at these notes and respond accordingly. Amendment 197CA would remove relevant authority employees as a relevant body, meaning that they would be unable to express an interest in running a relevant service. The coalition programme for government committed to empowering public sector staff to take control of their own services in new enterprises such as mutuals. That was reinforced in the recent publication of the Open Public Services White Paper. The Cabinet Office is leading on implementing this commitment by introducing a new right to provide. The inclusion of employees of the relevant authority as relevant bodies under the right to challenge will implement the right to provide in relation to local authority services.
To accept this amendment would be a great shame. Employees are often best placed to see how services could be improved and their ideas could make a huge difference in delivering more efficient, effective and responsive services. The amendment could prevent those good ideas from seeing the light of day by forcing employees to organise themselves as a charity, voluntary or community body simply in order to express an interest. Employees may not be prepared to be in a position to undertake such a process before an expression of interest has even been accepted, although of course they will have to comply with the requirements for what must be in an expression of interest.
In addition, this could create a parallel process with employees putting their ideas to local authorities outside the procedure set out in the right. This would risk jeopardising the transparency of the process: proposals should be evaluated consistently whether they originate from existing employees, a parish council or a voluntary or community body.
It is worth noting that in the policy statement, the Community Right to Challenge, which was made available in the House Library on 8 September, we make it clear that safeguards will be in place to prevent the kind of abuse of the right that is concerning some noble Lords. For example, the policy statement states our intention to provide that expressions of interest will have to set out the relevant body’s case that they are capable of providing the service and of competing in a procurement exercise. That will work to ensure that only employees serious about running a service express an interest in running it and should discourage any abuse of the right. In addition, employees submitting an expression of interest will need to set out how they propose to engage with staff affected by the expression of interest in the development of their proposal.
Amendment 197CB, tabled by the noble Lord, Lord Beecham, deals with employee support for challenges. I understand that the intention behind the amendment is to apply a condition to Clause 69(5)(e) that employees must first obtain the support of a majority of employees affected by their expression of interest before they can be considered a relevant body. The policy statement I referred to previously also set out our intention to require employees to set out in their expression of interest their proposals for staff engagement. However, we do not want to be prescriptive about how this is to be achieved. It is best decided locally rather than centrally. The experience of the way the right to request has worked in the National Health Service shows that existing, well established communication channels are likely to play an important part in engaging staff. There is no requirement for a ballot to demonstrate staff support for a proposal under the right to request. However, the face-to-face meetings, intranet updates and staff clinics undertaken when some 1,200 staff from the Hull primary care trust used the right to transfer to a social enterprise show that good communication between the staff involved is likely to be at the heart of any successful challenge.
Lord Greaves
My Lords, I am very grateful for the long and comprehensive explanation. I am sorry—I have a cough, but I shall try to keep going until I get a drink of water. Thank you for that; I am glad that some of my elders and betters have got important things to do. I shall try not to spill water on the Bench.
I am grateful to everyone who has taken part in the debate. I shall simply say to the noble Lord, Lord Lucas, that I think that there are major problems with the whole of this Bill in urban areas, but these are matters to which we will come back time and again. To the noble Lord, Lord True, I will say that I do not think that the Liberal Party ever stood for workers control. There was a slight difference in the 1960s between the young Liberals and the party as such, as my noble friend who was in the young Liberals with me at the time will no doubt confirm.
The more explanations I hear about this, the more questions seem to come. I am extremely grateful for the efforts made to explain it all, but some of the answers that we get confirm that there are difficult questions that have not been resolved. As for the coalition programme and open public services, in a sense they confirm my concerns. Involving employees and staff in running or even handing over services to groups of staff is something quite different and requires a different approach to that of a community right to challenge. I agree entirely with the noble Lord, Lord Beecham, that employees have to be seen as a group, as a body, and not as individuals. When councils recognise relevant bodies in the community, as I read it, they are recognising voluntary groups. They are recognising community groups. They are recognising parish councils representing the community. However, when it comes to employees, any two or three or half a dozen people seem to be able to come along and ask to be recognised as a relevant body, whereas what they seem to be is a group of individuals. I think that if transferring services to staff is going to be successful, it has to be done by negotiation and agreement across the staff, not just by two or three individuals, who may be disaffected because they have not been promoted and think they ought to have been, or who may be senior members of staff who think that they can run things perfectly well but do not have the support of everybody in their departments. There are serious problems here that will come out in practice. I suspect the matter will come back to allow a better and more comprehensive view of it.
As the Government have said in all the briefings, they would have to show how they propose to engage their staff in their proposals. Surely they should have engaged them and got their views before they put the proposals in, not afterwards. We were told that this would take up a lot of time, energy and resources, but if asking the people who are going to be working in this enterprise is going to take up too much time and energy, how on earth are they going to find the time and energy to put in the sort of comprehensive bid that, we are assured, is an absolute safeguard that it is going to be a serious bid?
Bulky Bob’s gets raised quite a lot in your Lordships’ House. I suppose most of us have been there to see it at various times, and it is great. However, Bulky Bob’s has done what it did under the present system by agreement and negotiation with the councils and the communities in which it works. It did not do it by challenging them from outside. In a sense, I do not think that it is a good argument for the Bill at all.
We are grateful for all the policy statements in the briefings that have been produced, even if some of them seem to confuse more than help. In Committee my noble friend the Minister said he hoped that we would have draft regulations by this time, so that at least we could look at them rather than the much vaguer policy statement. I know that he has made strenuous efforts to try to achieve that. It has not been possible, but it is not his fault at all. However, when we see the regulations, I think that we will have a better idea of whether this is going to work and how it is going to work. In the mean time, I beg leave to withdraw the amendment.
Baroness Hanham
Baroness Hanham
Lord Greaves
“(1A) The Secretary of State may by regulations specify an annual cost of a relevant service at or above which level a relevant authority may reject an expression of interest.
(1B) An annual cost of a service that is specified under subsection (1A) shall be set at the level at or above which a full open tendering process is required to take place by any Act or regulations.”
Lord Greaves
My Lords, this is the other group of key amendments in this part of the Bill. I speak to four others in the group, and there are two more in the group from my noble friend Lady Hamwee. These amendments are all about the process of procurement once an expression of interest has been accepted from the relevant body. The problem is that once the expression of interest is accepted, the procurement procedures roll forward automatically. The kind of procurement may vary according to the scale of the operation. It could be very small—for example, taking over a local pocket park. It could be modest, such as meals on wheels in a village. It could be a bit larger, such as running a village hall, an estate community centre in a town or a local library. It could be quite substantial, such as providing adult domiciliary services across a district, refuse collection and recycling across a large borough, or county library services. So the challenge, at least in theory, could apply to a wide range of services.
All these processes will have to be carried out according to basic standards such as openness, transparency, non-discrimination, equal treatment and proportionality, which, apart from anything else, are imposed by the relevant European directive, which was transposed into the public contracts regulations in 2006. As I understand it, and perhaps the Minister can confirm this, the underlying system is unchanged relating to contracts by local authorities that contract out services.
In addition, we have the standards of auditing and supervision by, at the moment, the Audit Commission, by the system that will replace it, by the councils’ own standing orders and by financial regulations. As I understand it, the community right to challenge contracts will all be bound by existing regulations in this way. The key cut-off is imposed by European rules and public contract regulations. Those regulations are set out in euros so the monetary threshold varies a bit according to how the euro goes up and down, but I am assured that it is around £156,400. That is the threshold over which the annual value of a service must be open to tender throughout the European Union.
The fear and the danger is therefore that the community right to challenge could open the way to a new and rather random form of compulsory competitive tendering and the takeover of relevant services by large commercial companies, even if that might be against the wishes of the principal council—the “relevant authority”, in the jargon of the Bill—and the community group, the parish council, the charity or whichever relevant body put forward the bid.
Again, we have had a large number of government assurances. Ministers at all levels have stated time and again that that is not their intention with this provision. If councils want to test the market, as they are able to, they should do so clearly and deliberately, not by accident under the community right to challenge. That is what Ministers in the Government assure us is their position. However, it is not clear how that can be prevented in the Bill as it stands. May we have a clear statement that the Government do not intend the community right to challenge to be a way in for large commercial companies, and that clear guidance will be given to councils on how this can be prevented? May we please know how it can be prevented?
Meanwhile, the amendments suggest two possible ways forward as safeguards. Amendment 197EZA says that the relevant authority can reject an expression of interest for a service above the annual cost at which a full tendering process is required. In other words, if it goes over that threshold, that can be a reason for saying, “No, we’re not going to put it out to tender because of the consequences”. In practice, this is the £156,000-odd threshold imposed by the public contracts regulations.
Amendments 197EB, 197EC and 197ED would allow a council, instead of going for competitive procurement by tender, to carry out a full and open public service review. New subsection (3A), which we are proposing, reads:
“A service review carried out for”,
this purpose,
“must include a consultation process with the relevant body, users of the service and any bodies representing them, employees engaged in providing the relevant service and their representatives, residents of the area and such other persons that the relevant authority considers appropriate”.
In other words it would be a very open, transparent and, one hopes, effective process, looking at how the service was provided to see whether the challenge from a particular group could in fact provide the service more effectively, economically and advantageously for the community.
These amendments may not be the best ways to provide safeguards against the problem that we have identified, but that there is a problem seems to be the case. There does not seem to be an answer to the problem that if you go for a competitive procurement you are bound by the European rules and regulations, and if it is a service that is worth more than £156,000 each year, then there is a real risk that you are putting it out to a commercial company. I beg to move.
Baroness Hamwee
My Lords, I have Amendments 197FA and 197FAA in this group, and I am well aware that my noble friend at the Dispatch Box will tell me that what I am proposing is not lawful. What I am proposing is that a local authority can apply its own criteria essentially in assessing the expressions of interest, and include whatever restrictions and requirements it thinks appropriate—to very much the same aim, the same end, as my noble friend. I have no expectation about the amendments being accepted but, like him, I am looking for reassurances.
My noble friend the Minister said in response to the previous group of amendments that an expression of interest by two or more employees would not be a proxy for a commercial organisation, and referred to that in terms of abuse. I wrote down what he said about that but confess that, having printed off the policy statement to which he referred some weeks ago, I have completely forgotten about it, and it is probably somewhere in a pile of papers on my desk at the moment. What he said was that those expressing an interest would have to show that they are capable of providing a service, that they had engaged with the staff, and that what they were doing was not vexatious or frivolous. I have to say that I would have thought that any commercial organisation will very easily satisfy those criteria.
A concern to which my noble friend Lord Greaves has not referred is that having set up the arrangement—and this of course is not just something that would apply to the two employees; it could apply to a community body as well—it could then sell the business or dispose of the shares in the company which it had formed to run the service. I have not seen any way in which this could be prevented. I suspect that I would be told that it would be improper to prevent it. But it concerns me that it is taking this proposal a good deal further than appears on the face of the Bill.
I turn to subsections (5) and (6) of Clause 71, the first dealing with an expression of interest, the second dealing with a procurement exercise. Both talk of the authority considering—and I will come back to that term—whether the activity would,
“promote or improve the social, economic or environmental well-being of the authority’s area”.
Well indeed, and well and good. But consider: it is not bound to apply those factors. It needs to consider them. I dare say that means that it must be able to show how it has considered them.
Turning to subsection (7), we are told that this,
“applies only so far as is consistent with the law”.
There is no particular assurance at all here, if I may say so. Subsection (7) refers to the procurement exercise but I am worried that an authority may well read this as applying to the expressions of interest as well. In general, I suspect that local authorities will need quite a lot of reassurance over how they apply these provisions.
I speak only for myself in this. I am finding it difficult to articulate some of the unease that is almost more instinctive than technical. However, general expressions of reassurance and consolation may not go quite so far, technically, as to amount to real reassurance. I have rambled enough. I hope that the House has a sense of my unease.
Lord Kennedy of Southwark
I shall be brief. The amendment moved by the noble Lord, Lord Greaves, raises important concerns. The other amendments in the group seek a process to deal with these concerns. Without these amendments or something else, it is all rather open to interpretation, which is not a good place for us to be. I agree with the comments of the noble Baroness, Lady Hamwee, about the sense of unease.
The amendments in the names of the noble Lords, Lord Greaves and Lord Tope, and my noble friend Lord Beecham, are absolutely right. They make provision for a consultation process with the users of a service, their representatives and residents of the area. If the noble Lord, Lord Shutt, is unable to accept these amendments, will he tell the House when he responds how he squares that with his previous remarks about localism? I genuinely feel that the Bill is confused. In some cases it gives power to the local community, in some cases it takes it back. There is a lot of regulation. It is all a bit confused here. I would be grateful if the noble Lord could address that point in particular.
Lord Shutt of Greetland
I thank the noble Lords who have spoken to this set of amendments. I have notes on these amendments and will do my best to deal with them. Frankly, I am not certain that there is an absolute assurance, but let us see how we go with these amendments.
Amendment 197EZA would give the Secretary of State a power to specify in regulations a service value threshold above which an expression of interest may be rejected. It further provides that this threshold will be set at or above the level at which a full, open tendering process is required to take place by any Act or regulations. I understand that the intention here is to focus the right on those contracts where it is perceived that community groups might have a greater advantage in the procurement process. However, it is worth being clear that while only contracts valued at more than £156,000 must currently comply fully with processes set out in the public procurement regulations, procurement below this level will still be subject to requirements of openness, transparency, freedom to provide services and non-discrimination.
Furthermore, it is not right to limit the range of services open to challenge in this way. It is not true that the voluntary sector delivers only small-value services. The right ensures that good ideas for improving any services get a fair hearing and gives those groups the opportunity to go for it. A threshold that prevents consideration of ideas for better or more innovative delivery of higher-cost service contracts seems unnecessary, given the safeguards that I have already mentioned, and a shame.
This amendment also risks discouraging growth and partnership. For example, a consortium of Holy Cross Centre Trust, Mind and Camden Volunteer Centre won a £2 million contract to deliver mental health daycare services. Would this consortium not be able to challenge? Or take the example of Hackney Community Trust, which started off as a small social enterprise delivering local community transport and has expanded into a highly successful social enterprise. At what point would we say “Sorry, you have grown too much, so your ideas no longer deserve a fair hearing”?
Finally, it could also limit opportunities for larger charities and communities of interest to challenge for higher value services. Nobody would argue, for example, that Age UK does not represent the interests of older people. Yet if Age UK wanted to challenge to deliver the meals on wheels service alongside other services in a large authority area, this amendment could prevent it from doing so. It would be inflexible to set a threshold for service value above which an expression of interest could be rejected, and we would not want to reduce the scope of services that could be challenged.
Amendments 197EA and 197EB would enable relevant authorities to carry out a service review instead of a procurement exercise following the acceptance of an expression of interest. Amendments 197EC and 197ED would require relevant authorities to consult widely in carrying out such a review. We have introduced the community right to challenge to ensure relevant bodies with good ideas for how they can deliver services differently or better get a fair hearing and a chance to compete to run the service. These amendments would put at risk both of these aims.
It is unclear what a service review would constitute under these amendments, and the authority would not be compelled to take any action as a result. Many of you will have received the briefing from 10 leading voluntary and community sector groups, including ACEVO, NCVO, NAVCA and Locality, which states:
“Giving local authorities the choice whether or not to respond to an Expression of Interest with a procurement exercise would negate the right to challenge entirely, by effectively allowing local authorities to ignore Expressions of Interest”.
We are supportive of authorities reviewing their services and consulting widely as part of that activity. This is what good authorities will be doing regularly anyway. But that should not detract from or obstruct these important new rights for communities and I do not agree that they should be watered down in this way.
Having said that, if a local authority and any groups that had submitted an expression of interest can agree together that a service review is the most appropriate course of action, there is nothing to stop those groups withdrawing their formal interest and working with the authority to conduct such an exercise. Leaving the power in the hands of the community group ensures that the right is protected but gives the flexibility—where there is a good and proactive local authority—that noble Lords are requesting.
Amendments 197EC and 197ED impose an onerous duty and go beyond, for example, the best value duty consultation requirement, where the duty is to consult representatives of people who may be affected. Contacting every individual resident and service user would constitute a significant new burden. Again, good authorities already engage a wide range of service users and their representative groups as part of the commissioning and engagement process, and should be designing and commissioning services that best meet the needs of their communities.
Amendment 197FA seeks to enable relevant authorities, when assessing bids in a procurement exercise, to apply any criteria they consider appropriate relating to how they might promote or improve the social, economic or environmental well-being of their area as a result of the procurement. This amendment is unnecessary as it is already possible for relevant authorities to apply such criteria within the limits of procurement law. Any criteria applied beyond these limitations could be unlawful and subject to legal challenge.
Amendment 197FAA would require relevant authorities carrying out a procurement exercise following the acceptance of an expression of interest to consider,
“whether it would be appropriate to include particular restrictions on or requirements of persons bidding in response to the exercise”.
I can reassure noble Lords that this amendment is not necessary to ensure that a local authority can control the identity of the service contractor to which it lets the contract during the life of that contract. It is already standard practice for public contracts to contain a term that any purported transfer by the service contractor of its performance of the contract to another person will lead to termination of the contract.
Local authorities will want to retain control over the identity of the person providing services and will already do that in their service contracts. Even if that were not the case, EU procurement law is strict about a change of identity of the contractor. The substitution of a new contractual partner for the one to which the contracting authority initially awarded the contract could be regarded as a change to an essential term of the public contract in question. This could trigger a new procurement exercise.
We have not sought in these provisions to tell relevant authorities how they should design contracts, and nor should we. We have heard many times in these debates that we should be less prescriptive in what we ask of authorities, while ensuring power is really pushed down to communities. A local authority may already impose restrictions or conditions that apply to all persons bidding, as long as such restrictions or conditions are lawful and do not discriminate between bidders. Any attempt by a local authority commissioning a service to impose conditions or restrictions on some but not all persons bidding in the procurement exercise would risk being unlawful as being discriminatory.
I hope that noble Lords will feel able to withdraw their amendments. Yet, I understand the concerns that many noble Lords have about the Trojan horse issue—whether employees, a charity or someone else is challenging just with the idea of someone else coming in on the exercise. Clearly, all that has been proposed is a community right, and it is all about communities. The question comes when the community has challenged—I suspect that the community will have done that because of dissatisfaction—and the authority then says, “Well, we had better have a procurement exercise”. Certainly, if that exercise is beyond the EU figures there is no question that the exercise will be open. People will have put work in, as will have the community bodies and so forth. However, I do not see circumstances in which that procurement exercise can somehow be limited, because that would be outside the law of the land because of our involvement with the European Community. We must be careful not to kid ourselves about that.
However, having said that, everything in these proposals is about the community’s right. In my view, the community would be exercising that right because it thinks that it can do things better and that the service that it is getting would be better in the future than it received in the past.
Lord Kennedy of Southwark
I am pleased that the noble Lord understood the concerns raised on this important group of amendments, spoken to by the noble Lord, Lord Greaves. Is there nothing that the Minister can offer us in terms of looking at this further? Perhaps he may agree to consult with colleagues and come back at Third Reading.
Lord Shutt of Greetland
What I will say is this: I have been giving some thoughts regarding guidance, to which there has been reference all along. Guidance will be given and notes will be available from the department, but there may be circumstances where that guidance will be, “This is something on which you make your own mind up”. I am sure that the department will cull the debate and look at where offers ought to be made. Certainly, if guidance is required, guidance will be given. However, there will be instances where, because we are talking about localism, local people and people on local authorities will be making their own minds up.
Lord Kennedy of Southwark
Before the noble Lord sits down, can I ask whether there is any possibility of guidance being available by Third Reading, even in draft?
Lord Shutt of Greetland
It is extremely unlikely that the noble Lord will get it as quickly as that, but I believe that it will be available before 31 March.
Lord Greaves
Before my noble friend sits down and before I stand up, perhaps I may ask a question which has just occurred to me. If a service—for example, the refuse and recycling service—goes out to a contract and it is for well over £156,000, will an existing in-house provider be able to take part in that tendering exercise and compete against outside contractors in exactly the same way as it would under the old compulsory competitive tendering system or under the system in which councils sometimes put out a contract to test the market against their own in-house provision? Under the community right to challenge, if a contract goes out to tender like that, will the in-house provider still be allowed to take part in the exercise or will it be doomed?
Lord Shutt of Greetland
I may need to think about that and write to my noble friend. However, it seems to me that the in-house provider here could be the “two or more employees”. Those in-house people whom my noble friend speaks of would be the group of workers. That is how I think it would be done but, if I am wrong about that, I shall let him know. It seems to me that that is how the challenge would be used. However, if my noble friend is talking about procurement and there is an existing body, I do not see any circumstances in which that existing body will not be able to participate in the procurement exercise. I hope that that is helpful.
Lord Greaves
My Lords, I am grateful for that. I realise that my noble friend has not had a chance to think about that question but I think that the issue of “two or more employees” is totally irrelevant in this case. We are talking about a challenge made by an outside body or organisation. The contract is put out to general tender and there is not a two-person or six-person challenge from inside the organisation. There is an existing department full of staff who are currently working for the council and who may or may not be able to take part in the competitive tendering exercise. The more I think about this, the more it seems to be a crucial point, and it would be very helpful if the Minister could come back to us on it. This is a very new point and perhaps some clarification of it at Third Reading, if only to put the Government’s view on it on the record, would be extremely helpful. I hope that that will happen.
There are times when I listen to Ministers reading out their briefing when I think, “If that is the best they can do, I must be on to a good point”. The attempt to rubbish my amendment concerning a service review by suggesting that it would involve consulting every single resident, which would not be possible, was really rather derisory. I do not blame my noble friend for that; he has his briefing to read out. Councils and other bodies consult users of services all the time and they know how to do it. It is not difficult and you do not have to be absolutely certain that you have consulted every single resident. You put out a consultation by whatever means are reasonable. It might be through the internet, leaflets, articles in local newspapers or whatever. Therefore, I thought that that response was a bit pathetic.
The Trojan horse argument is important but the real problem arises when that Trojan horse is accidental. If you get a community that is really keen on taking over a service and it has real local support but the contract has to go out to tender and the community cannot possibly match what an outside commercial organisation can provide in terms of cost, then that community is not going to be very pleased. It is going to say, “We challenged and these people from outside who have come in to make a profit have stolen our services away from us”. They might well have preferred the service to stay with the council rather than for that to happen. That kind of scenario will simply lose public support. It is not about rights for communities, it is about communities potentially being set up to provide rights for the commercial challenges from outside. The advice to councils is going to be absolutely vital. It has got to be clear, it has got to be strong and it has got to provide councils with all the safeguards they need—not to stop communities challenging and taking services over—but to stop it being abused.
Baroness Hanham
“(4) A relevant authority must specify—
(a) the minimum period that will elapse between—(i) the date of the relevant authority’s decision to accept an expression of interest, and(ii) the date on which it will begin the procurement exercise required by subsection (2) as a result of that acceptance, and(b) the maximum period that will elapse between those dates.(4A) The relevant authority may specify different periods for different cases.
(4B) The relevant authority must publish details of a specification under subsection (4) in such manner as it thinks fit (which must include publication on the authority’s website).
(4C) The relevant authority must comply with a specification under subsection (4).”
Lord Greaves
Lord Greaves
My Lords, I think we have thrashed this to death now. I do not think there is anything else to come. I will therefore not move it.
Baroness Hamwee
“( ) A relevant authority that is considering an expression of interest from a relevant body may require the body to provide any information that the authority considers desirable in connection with its acceptance or rejection under section 71(1).”
Baroness Hamwee
I shall not speak at much length. This amendment was tabled at the last stage as well. It would provide for a relevant authority being able to require whatever information it thinks desirable. I dare say my noble friend will confirm that it is not necessary to state this because it is implicit or provided for elsewhere. The reason I am moving it is because I want to quickly comment on some of the things he said in response to the last group. As it was Report stage I could not come back on them then. He said, “It’s all about community”. But what my noble friend and I are saying is that we fear that it is not. I very much welcomed his comment that guidance might well say, “Make your own minds up”. That is exactly what one would want to see. But I wonder if I could suggest to him that guidance might include some sort of flow chart which would assist authorities to understand what they can do and what they cannot do, and what direction they have got to be thinking in. I also say that my noble friend Lord Greaves’s point about how a procurement exercise allows for a tender from the authority—from the in-house service—is very serious. It may be one of those things where the answer is so obvious that none of us can see it because it is blindingly obvious. If it is not obvious, and if it is not answered in a way in which the Minister will understand we would regard as satisfactory, then it is so serious that we must not lose sight of it. We should not discard it now and we should return to it at Third Reading to ensure that it is entirely clear. I hope that will not be necessary. I beg to move.
Lord Shutt of Greetland
These matters are grouped together. I thank the noble Baroness. There are four amendments in the group and two have not been moved. This is the third one and I take it that the fourth will not be moved. On that basis I respond to my noble friend Lady Hamwee.
Amendment 197FC would enable a relevant authority to ask a relevant body for any information it considered desirable in deciding whether to accept or reject an expression of interest. The amendment is unnecessary. Clause 69(1) already enables the Secretary of State to specify in regulations the information to be included in an expression of interest. The majority of respondents to the consultation broadly agreed with our proposals on this and the policy statement placed in the Library of the House sets out the information we intend to specify be included in an expression of interest. This information will enable the authority to decide whether there is one or more grounds for rejection. If expressions of interest do not include any of the required information, we would expect relevant authorities to take a common-sense approach and simply ask for it.
This amendment would enable authorities to place additional requirements, and potentially a disproportionate burden, on relevant bodies, and treat expressions of interest from different relevant bodies differently, which would be unfair and could potentially leave authorities open to challenge. If the experience of implementing the community right to challenge shows that a relevant body may need to provide further information to enable authorities to take a decision on an expression of interest, then we can consider whether we need to amend the regulations to allow for this.
In the circumstances, I trust that my noble friend will feel she does not need to press this amendment. Following her other comments about guidance, I am sure that the resources of the department will provide guidance, flow charts and material in any form that clearly gets over to authorities the information that they need. As I have indicated all along, I believe that all these proposals are right, but, in the event, it is about trust and it is about communities; it is not about exposing big contracts to organisations under the umbrella of something which has been done for communities. I trust that everyone has got that trust and that it will work in this way.
Baroness Hamwee
I thank my noble friend for that response. Of course, I shall not press the matter, but I note that he talked in terms of the Secretary of State making regulations which will allow for certain information to be requested. I am looking for a little more individuality than that. However, I shall use this opportunity to add a coda to my point about the in-house service and procurement. I am not asking for an answer now, but I shall put the question on record. In order to take part in it, would the in-house service have to form a separate, new entity in order to be able to bid? That would seem to involve a lot of extra bureaucracy and work, which I do not think any of us would want to see. I shall put my noble friend out of his agony and beg leave to withdraw the amendment.
Baroness Hanham
“(3) A relevant authority must specify the maximum period that will elapse between—
(a) the date on which it receives an expression of interest submitted by a relevant body, and(b) the date on which it notifies the relevant body of its decision in respect of the expression of interest.(3A) The relevant authority may specify different periods for different cases.
(3B) The relevant authority must publish details of a specification under subsection (3) in such manner as it thinks fit (which must include publication on the authority’s website).
(3C) A relevant authority that receives an expression of interest from a relevant body in accordance with this Chapter must notify the relevant body in writing of the period within which it expects to notify the relevant body of its decision in respect of the expression of interest.
(3D) The relevant authority must give the notification under subsection (3C) —
(a) where the expression of interest is one to which a specification under section 70(2) relates and is made within a period so specified, within the period of 30 days beginning immediately after the end of the period so specified, or(b) otherwise, within the period of 30 days beginning with the day on which the relevant authority receives the expression of interest.”
Lord Wills
“Freedom of information and contracts
(1) Any contract for any sum over £1 million made by a relevant authority with any person after the coming into force of this section shall be deemed to include a freedom of information provision.
(2) Where such a contract is to any extent performed by means of a sub-contract, that sub-contract shall be deemed to include a freedom of information provision.
(3) In this section a “freedom of information provision” means a provision stipulating that all information relating to the performance of the contract which is held by—
(a) the contractor,(b) a sub-contractor, and(c) any other person on behalf of the contractor or sub-contractor,is, notwithstanding any contrary provision, deemed to be held on behalf of the relevant authority for the purpose of section 3(2)(b) of the Freedom of Information Act 2000 or regulation 3(2)(b) of the Environmental Information Regulations 2004.(4) A freedom of information provision shall not require—
(a) a contractor to disclose to the relevant authority any communication between itself and a professional legal adviser in connection with the giving of legal advice to it with respect to its obligations, liabilities or rights in relation to the relevant authority under the contract;(b) a sub-contractor to disclose to the contractor any communication between a professional legal adviser and itself in connection with the giving of legal advice to it with respect to its obligations, liabilities or rights in relation to the contractor under the contract.”
Lord Wills
My Lords, I shall speak also to Amendments 200 and 201 in my name on the Order Paper. The amendments are similar to those that I tabled in Committee, so I do not intend to detain your Lordships' House long by rehearsing at length the arguments that I made for them then.
However, the noble Lord, Lord McNally, was good enough to write to me on 18 July setting out why the Government felt that they could not accept those amendments, and placed a copy of that letter in the Library. Despite all the fine words in that letter— some noble Lords may even have read it—about freedom of information, I found the arguments advanced by the Government so weak that I felt I had no alternative but to table the amendments once more in the hope that the Government might think again.
I hope that I have good reason to think that the Government might think again about the amendments, designed to promote transparency, because of the pledge that they made in their coalition agreement, to,
“extend the scope of the Freedom of Information Act to provide greater transparency”.
However, as I set out in Committee, if the Bill works as it is intended to, far from extending the scope of freedom of information, it will restrict it. This comes in the context that, nearly a year and a half into the life of the Government, they have done virtually nothing to extend the scope of the Freedom of Information Act beyond the actions taken by the previous Government. By any account, the Government have a considerable way to go if they are to demonstrate that they made that commitment to transparency 18 months ago in good faith.
In his letter, the noble Lord, Lord McNally, rejected what is now Amendment 199, which deals with the question of what information the public can obtain under the Freedom of Information Act about the work done for a local authority under contract. He did so on the grounds that the Government are committed to reducing the regulatory burden on business. That is a commendable commitment. I say that as someone who set up a small business and ran it for 12 years. But it is not an overriding commitment. However irksome business may find regulations, Governments still impose them in the public interest. This Government have, for example, quite recently proposed to do that for the banking sector.
The Government say that they believe that freedom of information is in the public interest, so presumably, if businesses want to profit from taxpayers' money, they should be prepared to account for the use of it to the taxpayer. I should be grateful if the Minister could say in his reply whether the Government agree with that principle. If so, why are they resisting the amendment, especially as I have reworded it to ensure that very small businesses are not caught by it because there is now a limit of £1 million on the size of the contract that would be covered? That is particularly the case as the Freedom of Information Act and regulations already contain exemptions to protect the legitimate interests of business—for example, trade secrets or information likely to prejudice their commercial interests.
Much the same arguments apply in support of Amendment 200, which would bring companies controlled by local authorities within the scope of the Freedom of Information Act. In his letter, the Minister rejected that on the grounds that,
“it would create uncertainty for requests about the coverage of the FOI Act given that companies could pass in and out on transfer of shares”.
I agree that there might occasionally—not often, but occasionally—be some such uncertainty, but it could easily be clarified. It hardly constitutes a compelling argument for keeping secret from the public important information about how their money is being spent. Clearly the Minister recognised that this was not the strongest of arguments as he then added:
“Where a company is only partly owned by the public sector, there is an increased likelihood that areas of its business will be unrelated to the public sector”.
That is true but it is not a reason for keeping secret those areas of business which are paid for by the public and operate on the public’s behalf. It is not beyond the ingenuity of all those clever officials and lawyers who work for the Government to draft accordingly.
Lord True
My Lords, I must intervene. Obviously the noble Lord has not developed his arguments at the same length as in Committee but I am afraid I am as unconvinced by them now as I was then. It is certainly a worthy thing to pay lip service to freedom of information but one has to think about the practical impact of what is proposed. Although the noble Lord says that in Amendment 199 he places a limit on the extent of the burden by specifying contracts for any sum over £1 million, this is vitiated by the fact that his amendment goes on to say:
“Where such a contract is to any extent performed by means of a sub-contract, that sub-contract shall be deemed to include a freedom of information provision”,
and so on. It is like unwrapping a Russian doll. As we discussed in Committee, many of these large contracts may relate to construction, for example, where many small businesses will be involved. This may be onerous for small businesses and those businesses may well find themselves caught by the way that this amendment is drafted. The only people exempted are legal advisers to those bodies. Indeed, any other person acting on behalf of a sub-contractor, such as the bookkeeper of a small business, may be brought in to the scope of that amendment, as I read it. I should like the Minister to reflect carefully before going in that direction.
I argued that the new clause proposed by Amendment 201 could be absurdly onerous on local authorities. The noble Lord’s amendment uses “relevant authority”, which means that any parish council or community council in this country would have to publish annual reports on the Freedom of Information Act, environmental regulations and information on the number of requests that it had received. All the provisions here would apply to every authority in the country. My own council is very willing to comply with the Act—anybody can ask a question about it at council; we had a question on it answered two council meetings ago and this information was given—but the cost of doing so is already more than £100,000 a year. With the greatest respect, I do not think that extending this degree of reporting responsibility down to the level of the merest parish council and community council in this country, let alone larger authorities, is appropriate or necessary.
While respecting the enthusiasm of the noble Lord, Lord Wills, I hope that my noble friend will resist his amendment for the reasons that I and others have given and that we can proceed with the rest of the Bill.
Lord Lucas
My Lords, the noble Lord, Lord Wills, is quite right that enthusiasm for freedom of information seems to wane the longer a party is in power. He is perhaps sitting there, safely in the far corner of the Back Benches, so that he does not get too heavily stamped on by his own Front Bench. The Labour Party quite clearly lost enthusiasm for the Freedom of Information Bill in the course of taking it through Parliament. It was by the narrowest of squeaks that it survived at all, and that was only six months into government. If it has developed a new affection for it now, I am delighted, but I do not expect it to last.
However, on our Front Bench, we have Mr Freedom of Information himself. My noble friend has been dedicated to this cause for a long time, so I hope that he will take a constructive view of what we might do. I share many of the concerns of my noble friend Lord True and do not think that this amendment does the trick. However, more openness in local government and more consideration of which of the larger contracts in local government should be open to freedom of information would be consistent with the way in which the Government are going; for instance, in considering whether examination boards should be subject to the Freedom of Information Act or putting UCAS on the list of bodies subject to it, as we have a draft regulation to do at the moment. If the processes of the Health and Social Care Bill lead to a substantial transfer of what is currently public activity away from the public gaze, I shall propose that we make sure that it is brought back swiftly through the Freedom of Information Act. I do not see this Bill as leading to large-scale transfers of activity away from the public gaze into obscurity, but there should be some protection in case there is. I hope that we get a constructive answer from my noble friend.
Lord Beecham
My Lords, I shall resist the temptation to stamp on my noble friend; it is a highly resistible proposition. I support the thrust of his amendments. Indeed, I detect certain sympathy on the detail of Amendment 199 from the noble Lord, Lord Lucas. There are matters in it that are worthy of further consideration by government and I hope that they will not simply reject the topic out of hand even if they cannot quite accept the wording of the amendments for reasons which have been advanced tonight and perhaps others.
On the new clause that would be inserted by Amendment 201, it is not an extraordinary demand to make of a public body that it should keep a record of, or at least do a report on, requests for freedom of information. I should have thought that this was a reasonably appropriate matter for a council audit committee—I serve on such a committee—to have before it as it is information about the governance of the authority. It does not seem to me that the amendment seeks to impose an inherently onerous obligation. It is one that should be within the knowledge of members of that authority. I think that routing it through the audit committees, or possibly standards committees, of councils would be a good way to ensure that elected members do not lose sight of the council’s obligations and that they ensure that their officers actually comply with them. I hope that the Minister will accede to my noble friend’s request to think about this and to perhaps bring something back at Third Reading. It is an important issue and although sometimes, obviously, there are difficulties in complying with requests, there is no reason why these issues should not be examined and, in the interest of good governance, improvements made to the local regime.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am very grateful to the noble Lord, Lord Wills, for moving the amendment. It is well known that he was himself, when in office, a champion of freedom of information. I am very grateful for the comment of the noble Lord, Lord Lucas, about my own record. I failed to persuade Jim Callaghan to put freedom of information into the programme of the 1976-79 Labour Government, but I was very happy that it was with Liberal Democrat votes that the Freedom of Information Act that is now on the statute book passed through this House. I am sad to read that the Freedom of Information Act is among Mr Blair’s major regrets of his premiership as it remains one of the things that I am most proud of being associated with.
I think that the noble Lord, Lord Wills, is a little ungenerous about the approach of this Government. It is not true that we have done nothing since coming into office. In fact, quite the reverse is the case. I think that the initiative that this Government have shown in relation to freedom of information and transparency has been quite revolutionary. The Government are committed to extending the scope of the Freedom of Information Act and to increased transparency and have made considerable progress in this since May 2010. For instance, as part of a package of measures announced in January, we have already introduced primary and secondary legislation to extend the Act’s scope and are currently consulting on more than 200 further bodies in this regard. In order to ensure that the Act continues to meet the needs of its users, the Act as a whole will be subject to post-legislative scrutiny. I do not think that noble Lords fully appreciate just how revolutionary that is. Indeed, when I urged that we bring forward post-legislative scrutiny, some of the strongest supporters of freedom of information were slightly nervous that the Act would come under too much criticism. What I say to them, and say to supporters of the Act now, is that post-legislative scrutiny and the assessments built into it will give the opportunity to prove what I still believe: that freedom of information underpins good governance.
Lord Wills
I am extremely grateful to everyone who has spoken in what has been a not particularly lengthy but very revealing debate. I am grateful to the noble Lord, Lord True, for his contribution. It reminded everybody of the battles that still need to be fought for the public to get the mechanisms that they need to hold those who serve them properly to account.
I am grateful to the noble Lord, Lord Lucas, for although I think he disagreed with the wording of my amendments—I have always made it clear that I am very happy for them to be revised—I detected a sympathy towards the general thrust of them. I hope I am not wrong in that. I join him in paying tribute to the Minister as he has a very honourable, long and splendid record in campaigning for transparency and freedom of information. Any criticism I might be about to make does not reflect on him personally. He has a very long and honourable record in this field.
I agree with him. This bit of legislation will benefit, I am absolutely confident, from post-legislative scrutiny. Post-legislative scrutiny was a very welcome constitutional innovation brought in by the previous Government. I am wholly in favour of it and I think this legislation, as all legislation, will benefit from it. I agree with him on that but there I am afraid our agreement ends. I ask him to look at Hansard tomorrow to see what I actually said about the record of this Government. I did not say they had done nothing. I said they had done nothing that they had not inherited from initiatives taken by the previous Government. Everything he has mentioned was set in train by the previous Government. In the coalition agreement they said they would increase transparency. I take that as going beyond what the previous Government did. That is where, I am afraid, I was very disappointed in the Minister’s response. In all sorts of other areas of constitutional legislation which we have debated at great length in this House they have rushed it through with great vigour and energy, brushing aside getting all their ducks in a row and all those other metaphors the Minister brought out just now. There has been none of that. It was so urgent and so important it had to be ramrodded through Parliament at great speed with consequences we are going to suffer from for a very long time.
Why is transparency for this Government so much less important than all those other constitutional measures? In my view it should be even more important and the Government are showing absolutely no urgency in this field. If this Bill simply left the situation as it was I could perhaps sit down now and say, “Oh well, give the Minister a bit more time to see what happens”, but it does not. When this Bill goes through, as it will, if it works as intended, and I am sure it will more or less, it will not leave things as they are. It will decrease, perhaps significantly, the scope of the Freedom of Information Act. The people we serve, the voters and taxpayers, will suddenly find they cannot get information they think they have a right to know because suddenly great swathes of services will be removed from their right to know. That cannot be right. The Minister said they will do it when they get they get their ducks in a row and all the rest of it—some time, never. He cannot even commit to coming back at Third Reading—
Lord McNally
There has been an absolute tsunami of transparency. My right honourable friend Francis Maude has been frightening the life out of Whitehall and his ministerial colleagues by the way he has been forcing through transparency and the transparency agenda. It really is no good the noble Lord, Lord Wills, rewriting the history of the past 18 months. In fact, this has been a period of real progress in transparency in government. He should have the decency to acknowledge it.
Lord Wills
If the Minister would actually listen to what I was saying—I would be delighted if that was the case. I would sit down happily. I am sitting here on the Back Benches. I have no need to sign up to the Front Bench position any more on anything. I sit here quite happily committed to greater transparency. If what the Minister had just said were the case I would sit down happily now, but it is not the case. The coalition agreement says greater transparency. All the Government are doing is carrying through what the previous Government had already put in place. That is the record. It is not rewriting history. It is there firmly on the record. All I asked the Minister to do at the end was to set a timescale—maybe next year, maybe two years or sometime this Parliament. Absolutely nothing he said suggests that he going to do anything in this Parliament to make sure that this Bill does not restrict the scope of the Freedom of Information Act. On that basis, with great reluctance, I am afraid I am going ask to test the opinion of the House.
Lord Brooke of Sutton Mandeville
My Lords, this is the first time in my parliamentary life that I have found myself moving two initial amendments to be followed by 19 government ones, which in turn secrete in their midst a single Cross-Bench one, to be moved by the highly experienced noble Lord, Lord Cameron of Dillington. I am also conscious that when today’s business started, this group of amendments was the haven towards which the Government were sailing.
I am moving my two amendments on behalf of the British Retail Consortium, the BRC, which supports in principle greater localism in decision-making and welcomes the Localism Bill. It has been active throughout the Bill’s passage and has supported the Government’s focus on facilitating greater business participation within the decentralisation process. Although significant improvements have been made, though, there are still areas of substantial concern for retailers that, if left unresolved, will increase uncertainty for business and could reduce the potential for economic growth.
Your Lordships’ House will be familiar with the state of retail markets at present. Although my only home is now in rural Wiltshire, only a blind man could miss the effects of a struggling economy on the nation’s high street. In the eyes of the BRC, the clauses covering the community right to buy have the potential to distort markets for property and land, as well as having unintended consequences on the performance of businesses impacted by assets being placed on a statutory list. I am using this more clumsy definition because listed buildings, or listed assets, have another, more specific definition.
The BRC is calling for maximum certainty about what is and is not a “community asset”. In its view, there should be a clear national framework within which local decisions are taken. It is calling for minimum uncertainty for current owners and would-be investors. Assets such as undeveloped land and buildings, or assets with only potential future community value, should be excluded. The BRC is also seeking full and genuine opportunities for businesses to be consulted and listened to during the development of this legislation and when the listing process is established.
In short, the BRC is seeking amendments to the Bill to help provide clarity as to what “community value” may encompass and to ensure that potential building usage and undeveloped land are excluded. To this end, I hope that Amendment 201A is self-explanatory.
I realise that Amendment 202A may also be inelegant and clumsy, but its purpose is to avoid distorting markets for property and land and the legendary incidence of the law of unintended consequences and to protect the proper behaviour of markets—that is, to accelerate economic growth. I understand and concur with the Government in their emphasis on growth in their planning arguments but sauce for the goose is also sauce for the gander, and attention should be paid to business interests in their analysis of what will happen if the legislation serves in any way to impede economic growth taking place at this time. I beg to move.
Baroness Hanham
My Lords, I apologise at this time of night, but I am going to take a little time both in responding to the first amendment and in going through the amendments that are down in my name.
In Committee we discussed a lot the concerns of noble Lords in relation to some aspects of the provisions within these clauses, and I agreed to take those away and consider them further. I do not think that the noble Lords were on the whole opposed to the principles of the provisions; they were just concerned about the implementation.
There were particular concerns that the provisions could act as a disincentive to landowners who are currently making their land available for community use, and could impact on their ability to dispose of their land to family members or through inheritance. There were also concerns that the provisions could have a detrimental impact on the sale of going-concern businesses, and that the provisions were open to vexatious nominations from individuals with no real desire or ability to purchase the asset in question. There were also calls for greater certainty to be put on the face of the Bill regarding the definition of an asset of community value and the length of the moratorium periods.
We have been working over the Summer Recess with interested parties to address these concerns, and I am therefore going to beg to move a series of amendments that will provide greater certainty and clarity and will minimise any unintended consequences. As I said, I hope the House will forgive me for taking a little time to go through these.
As for the amendments proposed by the noble Lord, Lord Brooke, I say now that I do not think that the response I have got is adequate, and I am hoping that by the time I get to the end of what I am saying the Box will have provided an answer for me. If not, I am going to have to write to him.
In summary, these amendments will place a definition of community asset on the face of the Bill; clarify that individuals will not be able to nominate assets to go on the list; set out a number of exempted disposals, including transfers of land within families and by inheritance, and business-to-business going-concern sales; put the length of the moratorium periods on to the face of the Bill; and remove various delegated powers.
We placed in the Library a policy statement which we sent to everybody on 8 September and which explains these amendments and sets out our thinking about the content of the regulations in more detail.
Perhaps I may pass over the amendments of the noble Lord, Lord Brooke, for the moment. I hope that I get an answer that is nearer to what he was dealing with than the one that I have at the moment. I hope he will forgive me for that.
I turn to the government amendments. Amendments 202B and 202F place a definition of asset of community value on the face of the Bill. A building or other land is to be defined as an asset of community value if the following requirements are met: first, if its actual current use furthers the social well-being and interests of the local community, or a use in the recent past has done so; secondly, that that use is not an ancillary one, such as where farmland is used for the annual village bonfire; and thirdly, it is realistic to think that there will be a use which furthers social well-being in the future, whether or not this is exactly the same as existing use. This means that for an asset which already furthers social well-being or interest, it must be realistic that it will continue to do so. And for one which did so in the recent past, it must be realistic to think that there will be community use again within the next five years—and that is the period for which a listing would last.
Amendment 202F clarifies that social interests can include cultural, recreational and sporting interests. Each local authority operating the scheme will refer to this definition when deciding whether a building or other land should be listed as an asset of community value, and in the light of these amendments we are proposing to remove, through Amendment 202E, the power for the Government to set out matters that local authorities must take into account in deciding whether a nominated asset should be listed. These amendments are in line not only with concerns that noble Lords have raised but, importantly, with the results of our recent consultation exercise, in which 80 per cent of respondents agreed that local authorities should have the power to decide what constitutes an asset of community value based on a broad definition and the list of exclusions.
Lord Cameron of Dillington
My Lords, I rise to speak to my Amendment 203ZA and to ask one or two questions about the Government’s new amendments and proposals. However, before doing so, I should like to thank the Government for listening to the debate and to the concerns of this House in Committee, and for listing to the numerous comments they have received from outside bodies. In particular, I thank the noble Baroness for her understanding and flexibility throughout all this. While I am not totally satisfied with what we have now, it is fair to say that we can work within the rules that she has set out. I still think that the red tape is a good example of what all Governments do, which is to go over the top. However, the Government having moved so far and the fact that we have had extensive debates, we—or certainly I—will accept where we are now.
My amendment is designed to pre-empt the regulations that, I gather, will give the landowner only 28 days to appeal for a review of the nomination of his or her asset. This is a short period in which to prepare a case and supply the necessary evidence. Such haste is not warranted because such a review will probably take place at a time when the assets are nominated rather than when an asset is about to be sold. Therefore, there is unlikely to be any real urgency at this time.
More importantly, the asset is actually on the list until it is taken off and the community’s interests therefore remain protected during any pause, and thus a delay is to the community’s advantage and not the landowner’s. It is therefore right that the latter should have more time to prepare their case for appeal. In my amendment I have suggested a period of 60 days. I hope that the Government can agree with me.
I have three questions on the proposals put forward by the noble Baroness—actually, my third question relates not to those proposals but to part of this chapter. My first question relates to Amendment 202H on nominations from voluntary or community bodies with a local connection. I am concerned about the use of this provision and the possibility of vexatious claims, nominations and proposals. There need to be firm rules to prevent them. I realise that these rules will, I hope, be forthcoming in the intended regulations, but I was hoping for some indication of the Government’s thinking at this stage. How longstanding does a group have to be before it can put forward a nomination? How many people have to be involved? Is there a percentage of the population of the community who must be involved? Do they have to be registered as charities, or if they are sports organisations or other clubs, do they have to be affiliated to a regional or national body? What is to stop a husband and wife or two neighbours forming the “Ambridge Tiddlywinks Society” today and trying to register a piece of land tomorrow? I hope that the Minister can provide helpful words of wisdom on that.
As to my second question, what is the reason for the Government requiring lists of unsuccessful nominations? I am not complaining about that but I want the reasons to be spelt out for me. Is it to put that land definitively beyond the reach of any community group and to make that knowledge public, or is it to announce to the world that this land nearly made it and maybe next time, with a bit of careful rewording, it will make it? If, as I hope, the latter is not the case, why remove the nomination from the failed list after a period of five years, as opposed to there having to be a change of circumstances involved—which would seem to be a much better way forward?
Finally, I refer to Clause 80(6)(d), which states that regulations will provide for appeals against an adverse review of a decision to nominate an asset. As I understand it—I am not sure that this remains the case, but I have seen it somewhere—the appeal will be judged by the same council that carried out the review in the first place. This must be wrong. Everyone knows that whenever possible a local council, or for that matter any other body, will favour its own team against an outsider. Would the Government be prepared to rethink that proposal? Would they be prepared to consider an independent outside body to look at such further appeals against a decision on review, and to state now clearly on the Floor of the House that the regulations will affirm that?
Lord Gardiner of Kimble
My Lords, concerns about the unintended consequences of the assets of community value provisions were raised at Second Reading and in Committee. Indeed, my noble friend Lord Cathcart and I tabled amendments because of our concern. Therefore, I thank the Minister very much for her understanding and determination to ensure that the Bill hit the right target in bringing forward the Government’s amendments tonight.
I also include in my acknowledgement and appreciation of the work undertaken the Bill team and, indeed, outside bodies such as the Country Land and Business Association for securing practical solutions. The common objective that we all share is vibrant communities for the future and I hope that the Bill as amended will help to fulfil that aspiration.
Lord Greaves
My Lords, I thank the Government for listening to the debate on this matter in Committee and for coming forward with amendments which, by and large, are very sensible. I particularly appreciate their picking up the ancillary use point that I raised in an amendment, a great deal of which makes sense. Furthermore, I think that we all owe a debt to the noble Lord, Lord Cameron of Dillington, for the hard work that he put into this part of the Bill—not least because it meant that we could leave it to him and concentrate on other parts of the Bill.
Lord Kennedy of Southwark
My Lords, we have had an interesting debate at this late hour on this group of amendments. I can offer the Government some measure of support tonight, as there is lots to welcome in their proposals here, and they have clearly listened to the concerns expressed in the House.
The origin of some of the proposals can, of course, be found in the previous Administration. Amendment 201A, moved by the noble Lord, Lord Brooke of Sutton Mandeville, is not an amendment that we on these Benches can support, although his Amendment 202A , requiring the Secretary of State to publish criteria by which an asset must be assessed in order to be defined as being of community value, could be of some merit, as is the proposal from the noble Lord, Lord Cameron of Dillington.
Baroness Hanham
My Lords, I am extremely grateful for the more or less general support for what we have done, and, in my turn, I thank all those who have diligently attended meetings—not only the noble Lord, Lord Cameron, but my noble friends Lord Gardiner, Lord Cathcart and Lord Howard of Rising. I fear that I may have forgotten someone but there have been great consultations, mostly over the summer, and I am very grateful for the time that noble Lords have put in to ensure that these provisions do not have the unintended consequences that were anticipated.
The noble Lord, Lord Cameron, was the only person to pose questions and perhaps I may turn to those. His amendment would give landowners 60 days to request the local authority to carry out an internal review of its decision to list an asset. We are now going to move from 28 days to six weeks, which is a bit longer, but we think that that will give a landowner time to decide whether he needs to appeal the decision. The details of the procedures for carrying out an internal review, including who can do it, will, I am afraid, be in regulations. I am sure that we will have an opportunity to talk about this further before then, but it is anticipated that that is what will happen.
The process will be that the landowner will first be contacted by the local authority if the land has been nominated by a community group. Therefore, in practice, landowners will have been aware of the process well before they receive the formal notice of the local authority’s decision. Once a review has been requested, it is proposed that the local authority will have six weeks to conduct the review. We also intend to provide in the regulations that, if a local authority and the landowner agree, this period can be extended. Therefore, I think that flexibility is built into that system.
I was also asked who can nominate an asset and about the voluntary and community body. Conditions will be set out in the regulations to demonstrate a local connection. The intention is to ensure that such groups are genuinely concerned with the social well-being benefit of their community and that they are based in the relevant community or neighbourhood. This may include unincorporated groups, so as to allow groups that have recently been set up to help save an asset. There are many examples that have already taken place where people have set up a group to try to save their pub or an asset. We know that that can and has happened. We do not feel that we ought to stand in the way of such groups. However, we will look to see whether we need to place stricter requirements on them as to whether they need to be incorporated or recognised, very much as the noble Lord has said. I will come back to him on that as we make those regulations.
I am extremely grateful to all those who have given their time to do this. I hope that we have more or less answered their concerns. I know you can never be 100 per cent sure—there is bound to be somebody round about who does not think we have quite gone far enough—but I think we have addressed all of the concerns that were raised.
Lord Brooke of Sutton Mandeville
My Lords, if I may say a word at the close of this debate, having moved the original amendment that stimulated the admirable speech by my noble friend the Minister, I think that I am right in saying that I put down my amendments either just before or at the same time as those of my noble friend the Minister. Therefore, my amendments did not take into account the amendments that the Government were putting down. However, I join everybody else in congratulating my noble friend on and thanking her for the admirable series of amendments that the Government have provided.
As to what my noble friend very kindly said in response to my own amendments this evening—on which the whole debate was in the end hung—I will of course read her response and compare notes with the British Retail Consortium. I do not expect there will be a need to come back to this matter at Third Reading, but nevertheless I reserve the possibility after I have had those conversations. I am most grateful for all the contributions made in this short debate. I am sure everyone will be delighted when I sit down. I beg leave to withdraw my amendment.
Baroness Hanham
(a) an actual current use of the building or other land that is not an ancillary use furthers the social wellbeing or social interests of the local community, and(b) it is realistic to think that there can continue to be non-ancillary use of the building or other land which will further (whether or not in the same way) the social wellbeing or social interests of the local community.(1A) For the purposes of this Chapter but subject to regulations under subsection (2), a building or other land in a local authority’s area that is not land of community value as a result of subsection (1) is land of community value if in the opinion of the local authority—
(a) there is a time in the recent past when an actual use of the building or other land that was not an ancillary use furthered the social wellbeing or interests of the local community, and(b) it is realistic to think that there is a time in the next five years when there could be non-ancillary use of the building or other land that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community.(2) The appropriate authority may by regulations—”
““social interests” includes (in particular) each of the following—
(a) cultural interests;(b) recreational interests;(c) sporting interests;”
Baroness Hanham
“(za) the meaning in subsection (2)(b)(iii) of “voluntary or community body”;(zb) the conditions that have to be met for a person to have a local connection for the purposes of subsection (2)(b)(iii);”
Baroness Hanham
“but where it appears to the authority that it is not reasonably practicable to give a notice under this subsection to a person to whom it is required to be given, the authority must instead take reasonable alternative steps for the purpose of bringing the notice to the person’s attention.”
Baroness Hanham
(a) may (but need not) be removed from the list by the authority after it has been in the list for 5 years, and(b) while it is in the list,”
Baroness Hanham
Baroness Hanham
(a) if the disposal is by way of gift (including a gift to trustees of any trusts by way of settlement upon the trusts),(b) if the disposal is by personal representatives of a deceased person in satisfaction of an entitlement under the will, or on the intestacy, of the deceased person,(c) if the disposal is by personal representatives of a deceased person in order to raise money to—(i) pay debts of the deceased person,(ii) pay taxes,(iii) pay costs of administering the deceased person’s estate, or(iv) pay pecuniary legacies or satisfy some other entitlement under the will, or on the intestacy, of the deceased person,(d) if the person, or one of the persons, making the disposal is a member of the family of the person, or one of the persons, to whom the disposal is made,(e) if the disposal is a part-listed disposal of a description specified in regulations made by the appropriate national authority, and for this purpose “part-listed disposal” means a disposal of an estate in land—(i) part of which is land included in a local authority’s list of assets of community value, and(ii) part of which is land not included in any local authority’s list of assets of community value,(f) if the disposal is of an estate in land on which a business is carried on and is at the same time, and to the same person, as a disposal of that business as a going concern,(g) if the disposal is occasioned by a person ceasing to be, or becoming, a trustee,(h) if the disposal is by trustees of any trusts—(i) in satisfaction of an entitlement under the trusts, or(ii) in exercise of a power conferred by the trusts to re-settle trust property on other trusts, (i) if the disposal is occasioned by a person ceasing to be, or becoming, a partner in a partnership, or(j) ”
“(6A) For the purposes of subsection (5)(d), a person (“M”) is a member of the family of another person if M is—
(a) that other person’s spouse or civil partner, or(b) a lineal descendant of a grandparent of that other person.(6B) For the purposes of subsection (6A)(b) a relationship by marriage or civil partnership is to be treated as a relationship by blood.”