House of Lords

Wednesday 12th October 2011 Lords Chamber

Wednesday, 12 October 2011.

11:00

Prayers—read by the Lord Bishop of Wakefield.

Arrangement of Business

Wednesday 12th October 2011 Lords Chamber

Announcement

11:05

[Lord De Mauley]

My Lords, it may be helpful to remind your Lordships of the advisory speaking time of eight minutes for Back-Bench contributions. As indicated on the Order Paper, it is expected that the winders will not begin their speeches before 1 pm.

Health and Social Care Bill

Wednesday 12th October 2011 Lords Chamber

Second Reading (2nd Day)

11:06

[Lord Campbell of Alloway]

My Lords, the purpose of this short speech, within the advice that has been given, is to oppose the amendment to the commitment Motion to be moved later on. I say that with all due respect, of course, to the noble Lord, Lord Owen. There are two reasons for doing so and they are fairly short. The first is that this Bill proposes urgent requisite reform—immediate reform—of the NHS structure and means of implementation and there is no way in which it can be delayed. This was as expounded by my noble friend Lord Howe and spoken to by the noble Lord, Lord Birt, and many other noble Lords, some of whom agreed, others of whom did not agree. I support the Government.

There is also a problem of extraordinary importance beyond the actual remit of what the Bill is concerned with. We are entering, and have entered, a threat of global recession. The eurozone problems have not been resolved. The banking crisis has not been resolved. Whether we incur more borrowing to pay the interest on our massive debt, I do not know, but there is a problem here because if the country is in this state the first thing that has to be done is to seek to retain our triple A rating. If we do not support the Government, the consequences could be catastrophic. Those are the only reasons that I can give. This extraordinary situation concerns not just the Bill but the realm and the Government. We need to support them in a moment of crisis. I hope that undertakings will be given by my noble friend Lord Howe—if he is able to give them—to the effect that the Government will, before and after Royal Assent to the Bill, continue to take into consideration proposals, many of which have been spoken to by your Lordships. I am grateful for the opportunity to speak.

11:10

[Lord Winston]

My Lords, some three or so weeks ago an 80 year-old lady was admitted to an inner-city hospital in the United Kingdom complaining of abdominal pain. She went to accident and emergency where she had a series of cardiac arrests and was resuscitated on four occasions, according to what I was told. Remarkably, that evening she was still alive in accident and emergency and the following morning she was sitting up in bed talking, not terribly coherently but she was communicating and was capable of asking for a cup of tea. She was still under the surgeons, of course, because she had come in labelled with abdominal pain.

The physicians were concerned about the lady and they did an ECG. They found that her ST segments were elevated and that therefore she may have had a coronary thrombosis, so they phoned Hammersmith Hospital—I have the privilege of being associated with that hospital—because there doctors do thrombolysing. There was some toing and froing about whether she should be admitted there for thrombolysing treatment. Eventually, it was pointed out that on the whole Hammersmith Hospital did not contemplate doing thrombolysing on 80 year-old patients. The patient was left there and eventually she was seen by a surgeon who did an MRI, a CAT scan and various other investigations and decided that the lady possibly had a ruptured diverticulum. The surgeon was not sure whether she was fit to be operated on. In the mean time, an anaesthetist saw her. The anaesthetist said that if the surgeon was prepared to operate, he was prepared to anaesthetise. The surgeon said that if the anaesthetist was prepared to anaesthetise, he was prepared to operate. The lady underwent a laparotomy and the diverticulum was repaired. She spent the next four days in intensive care, where she died an undignified death, which was not what her relatives wanted. They probably would not have wanted her to be resuscitated in the first place.

I tell noble Lords this brief story because it is an example of the lack of co-ordination which is common in the health service, which the noble Earl, Lord Howe, and I have discussed. We both agree that it needs to be improved. Unfortunately, the Bill does not address that issue at all. In fact, one of my concerns is that the fragmentation may actually make the situation much worse. Co-ordination was addressed by the noble Lord, Lord Tugendhat, yesterday, speaking as chairman of the Imperial College Healthcare NHS Trust. He argued that we need to close hospitals. I agree but it will not be easy to do that under the Bill. However, the noble Lord did not come entirely clean—unfortunately, he is not in his place this morning—and point out that the Hammersmith Hospital’s former trust—now the Imperial College trust—is, I believe, some £50 million in deficit this year. There is clearly an urgent need there although, unlike the noble Lord, Lord Campbell of Alloway, I do not believe that the NHS is in crisis.

To illustrate that point, I went to an independent think tank, the Commonwealth Fund, an American organisation which looks at healthcare around the world, and looked at some of its statistics. It turns out that at the end of the previous Labour Government we spent two and a half times less on healthcare than they do in the United States, 18 per cent less than they do in France and more than 40 per cent less than they do in Germany or Holland. It is interesting, therefore, to look at one issue which is really serious for us; the rising problem of ageing in the health service. I chose to look at their statistics for two operations associated with ageing; hip replacement and knee replacement. A knee replacement in the UK costs half what it costs in the US, is 10 per cent or 15 per cent cheaper than in Italy or France and costs 30 per cent less than it costs in Germany. A hip replacement is three times cheaper on the public purse in the United Kingdom than in the US. Do we therefore do fewer operations? Actually not. In the US they do 64 knee replacements per 100,000 of the population compared with 137 in the UK, 121 in Germany and 95 in France. With hips, Germany tops the league with 258 operations per 100,000; France does 208; we do just under 200; Italy, 141 and the United States, 139.

So actually the legacy of the previous Government which we keep hearing about might be a bit better than has been suggested by the present Government. We have heard a great deal about that legacy, but actually, the health service was left in a pretty fine state. I agree completely with what the noble Earl, Lord Howe, said yesterday about outcomes. Of course, it is pointless doing lots of hip operations unless we can match our outcomes with Europe. The figures are not available for those things, but the Commonwealth Fund addressed some interesting issues. Of course, as the Prime Minister said, we have to do something about the health service, but I am not sure that the figures of an independent, international body outside the UK with no political point to make at all can be refuted.

One issue is the satisfaction and the level of successful care recorded by the Commonwealth Fund. I have some figures here to show that the United Kingdom does incredibly well. For an expenditure of something like one-third of that of the United States, in every score we do better than the United States, better than New Zealand, about as well as Holland, much better than Germany, much better than Canada and much better than Australia—typical OECD countries which are rather similar to ourselves. The only place where we failed was in something which the noble Earl, Lord Howe, addressed in his speech yesterday. In the third or fourth paragraph of his speech, he talked about the need to extend longevity. The issue of longevity was clearly described recently by my noble friend Lord Darzi, not in the Chamber yesterday, but in a speech I heard him give at Imperial College last week. He showed a London Tube map from South Kensington, where Imperial College is situated, through Westminster towards Canning Town and in those seven miles longevity drops by seven years. So your expectancy of life in South Kensington, if you are a male, is around 77 and in Canning Town it is about 70. That has nothing to do with the health service; it has to do with education, with the environment, with something that the noble Lord, Lord Ribeiro, referred to yesterday—smoking and obesity. Twenty-five per cent of our population have a BMI of greater than 30. That is a very serious issue. We are about the third worst nation in the world after the US and New Zealand.

These things will not be changed by the Bill. In my view the Bill is unnecessary and, I am afraid to say, irresponsible.

11:18

[Baroness Hussein-Ece]

My Lords, like many in your Lordships’ House, I have had many letters and e-mails from people who are huge supporters of the NHS, many expressing real fear. It is unfortunate that much of the campaign we have experienced has relied on convincing the public that the NHS is set to be privatised. Many are convinced that we are heading for an American-style system and I am sure that we have all had e-mails saying that we do not want to see that. People are also worried that their children and grandchildren will not be able to receive the services that they received in their lifetime. I believe that the politicising of the debate on the NHS to this level is at best unhelpful and at worst irresponsible. It is playing on people’s fears, and I felt quite saddened by some of the e-mails that I have had. I want to see a greatly improved and more responsive health service for my children and grandchildren.

We have huge challenges, as many of your Lordships have already mentioned. We have an ageing population; more and more people will become reliant on health and social care services that must—really must—become more responsive and integrated. We have heard from successive Health Secretaries and successive Governments that it has always been their aspiration to integrate health and social care, but on the ground we know that this has not always been the case. Patients should not be passive recipients of health services. They should be treated as individuals, people who place their trust in their local health service and expect quality of care. I believe the general public have far higher expectations that we probably had when we were growing up.

Like many others, my family has experienced the best and the worst of care, and it is the worst that we need to ensure is consistently always as good as the best; for example, the care and treatment of older people, as the noble Lord, Lord Winston, has just touched upon, is not always very good in many hospitals and remains unsatisfactory. I have a story too. Four years ago when my terminally ill 88 year-old father was left covered in bedsores, with poor pain management and personal care and the loss of his basic dignity, we felt there was no one in the hospital who was prepared to take responsibility for the poor nursing care—I was always sent to speak to somebody else. The stories in the media of older people being denied basic care and dignity are nothing short of a scandal, and unfortunately we still hear them daily.

I remember a document called Hungry in Hospital?, produced a decade ago by the Association of Community Health Councils when the noble Lord, Lord Harris of Haringey, who is not in his place today, was the chief executive. It recorded the plight of many older people who were simply left to starve because there were not enough nurses to assist with the most basic form of care—food. Recent reports unfortunately show that this is still happening. I want to see reforms that ensure that this never happens.

I also want to see a better and properly resourced health and social care system for disabled children, and for child and adolescent mental health services. I received a briefing note, as have many others, I am sure, from the campaign group Every Disabled Child Matters. Disabled children are the fastest growing group in the population of disabled people and they deserve better than the disproportionately lower priority than adults that they receive when it comes to the allocation of funds. Time and again I have dealt with cases, in my previous life as a councillor and more recently, where the individual service may be good or even excellent, but the collective system has let that child down. The current legislation does not provide for this.

Health inequalities remain at a grotesque level for such an affluent country. The NHS alone cannot resolve this. I am concerned that the single most important aspect of the phrase “No decision about me without me” is still at risk of failure. This relates to commissioners’ duty to ensure the involvement of individual patients in decisions on managing their own care and treatment. I worked for years at the forefront of patient and public involvement in the NHS as the chief officer of a community health council in one of the most deprived parts of the country. CHCs were very effective. They were the patients’ voice in the NHS, with a statutory right to be consulted on any changes in their local health services. They were local and they were mainly effective. Cynics at the time suggested that that was why they were unceremoniously scrapped by the last Government in 2003, to be replaced by a plethora of successive patients’ groups at a cost of over £70 million in the first year alone. I welcome the proposals to strengthen patients’ voices, but I have concerns that must be looked at if this Bill is to be properly scrutinised at Committee.

My concerns include the patient and public involvement requirements under both the current legislation and the Bill—that those who use services are involved in planning, changes and decisions affecting how services operate. The definition of involvement is very weak. What does that mean? The National Health Service Act 2006 diluted the involvement of patients and the public so that this could be met simply by giving information. The duty is neither comprehensive nor consistent across commissioners and all types of providers; for example, the proposed PPI duty on Monitor makes no sense, referring to whatever it feels “appropriate”. There needs to be a statutory duty on Monitor to respond to referrals made to it by health overview and scrutiny committees because at the moment it simply ignores them.

I would like to see a much more patient-centred total health and well-being model, which would ensure that the Bill is fit for purpose. I am pleased that the Government have recognised that the powers of health and well-being boards need to be strengthened to ensure the co-ordination of commissioning plans with the health and well-being needs of the area. However, this proposal needs to go further. I was initially a supporter of primary care trusts. I sat on my local PCT board for four years, representing the local authority. We had a good relationship and integrated services, but many of my colleagues across the country simply did not, with local authorities barely having a working relationship with their PCTs.

My local PCT decided to close down a major primary healthcare centre, against huge public opposition. It was put out to consultation and the PCT’s decision was referred to the council’s health and well-being board, where it was properly scrutinised by democratically elected local councillors for many months. When the committee’s report was complete, the PCT board refused even to allow the chair to present the committee’s findings to the board. We were left with a huge conflict. A board of people who were unaccountable to the public and who only answered to the Secretary of State were in the driving seat, refusing to take any notice of a democratically elected health and well-being board. This experience convinced me that the present system needs reforming. Yes, the Secretary of State must be legally and politically responsible for the NHS, but there needs to be more accountability at all levels.

To conclude, I find myself in complete agreement with what the noble Baroness, Lady Thornton, said yesterday. She said:

“Our job is to scrutinise and improve this Bill”.—[Official Report, 11/10/11; col.1480]

I totally agree. She somewhat contradicted herself later by saying that she would support the amendment tabled by the noble Lord, Lord Rea—in other words, no scrutiny of the Bill. However, I am very clear that this Bill needs improving and amending to ensure that we not only improve patient care but give patients and the public greater accountability within the health service and greater confidence. Many of us have welcomed the substantial changes that have already taken place, but I think most of us would agree that the status quo is not really an option.

11:27

[Lord Hennessy of Nympsfield]

My Lords, recasting the health service arouses more sensitivities than any other reform in our national life, as this Chamber has witnessed over the past 24 hours. Why? Because the National Health Service touches more of our people more intimately than any other state-funded activity. As the great RH Tawney once wrote:

“Only those institutions are loved which touch the imagination”.

No institution surpasses the NHS in meeting the Tawney criterion. No institution ever has, since 5 July 1948, the day the service came into being, lifting more anxiety off more shoulders than any other social reform in our history. That moment was the closest we have ever come to institutionalising altruism.

In Tawney terms, for 63 years it has been impossible to conceive of our country without the NHS as a key ingredient in the way we imagine ourselves. The creation of the health service was and remains the most lustrous achievement of what historians call “Mr Attlee’s Settlement”, part of the late war/early post-war British New Deal, although we never called it that, which embraced Rab Butler’s Education Act 1944 and the national insurance legislation, as well as the National Health Service Act 1946. And yet the tension that ripples through the Bill before us today flows from its attempt to sustain traces of those post-war principles while injecting the stimulus of markets, associated with that other great politico-economic weather-maker of our times, the noble Baroness, Lady Thatcher.

My own instincts are more towards the Attleean end of the spectrum on health matters but I understand and respect the motives of those possessing stronger market impulses than mine, although few see health as an area where the market should rip without inhibition. Even that most thoroughbred of free marketeers, Mr Enoch Powell, as Health Minister in the early 1960s, did not. Asked by his biographer, Simon Heffer, about the first big post-war hospital building programme, whose planning and funding he oversaw, Mr Powell replied,

“The people have willed it. Therefore, they must have it”.

I suspect there are many in our country who would wish Parliament now to find a way of fusing the best in both instincts—of sculpting an approach that does not involve the Secretary of State for Health abandoning his traditional role as the ultimate and direct guarantor of a comprehensive service free at the point of delivery. Equally, I think, the public wish the Secretary of State to retain his function as accounter-in-chief to Parliament for the sustenance of that principle and the care it distributes to all across England, whatever their location, their needs or their socio-economic status.

For these reasons, I am sure your Lordships’ House will apply the closest scrutiny to those clauses of the Bill which incorporate the constitutional functions of the Secretary of State. Your Lordships’ Select Committee on the Constitution, as we have heard many times in this debate, has raised serious concerns about both the legal status of the Secretary of State in the Bill before us and about the strength of his accountability to Parliament. I share those worries.

The Bill, too, needs to sustain the original DNA of the wartime Beveridge report of 1942 in which the provision of healthcare stood out as one of the,

“five giants on the road to reconstruction”—

ignorance, idleness, squalor, want, disease. Central to this scheme, Beveridge declared, was that,

“medical treatment covering all requirements will be provided for all citizens by a national health service organised under the health departments”.

Clause 1 of the National Health Service Act 1946 gave that crucial Beveridge-minted strand of institutional DNA statutory form.

I do not think our people wish us to abandon the Beveridge principle. Might it not be possible, if your Lordships support the idea of a Special Select Committee to examine the Secretary of State’s powers, constitutional functions and accountabilities, to find a form of drafting which meets those concerns? Perhaps Parliament could rediscover the value of that old device of a preamble to a statute which sets out the measure’s ethos and purpose. The current NHS constitution, in fact, carries a “preamble”, followed by a set of “principles” which are eloquent in this regard.

For these reasons, I urge noble Lords to support the amendment in the name of my noble friend Lord Owen to enable the creation of a Select Committee to run concurrently with the Committee stage of this Bill with a very tight remit and a requirement to report before Christmas. I do so not in the spirit of wrecking this Bill but of improving it. I am grateful to the noble Earl, Lord Howe, and the Leader of the House, the noble Lord, Lord Strathclyde, for the generous and courteous spirit in which they conducted their discussions with myself and the noble Lord, Lord Owen. I am grateful, too, to Mr Andrew Lansley for sending me a letter yesterday trying to assuage the anxieties about his proposed powers I expressed during an interview on the “Today” programme.

The NHS, to fulfil its purposes, needs to flourish and to work within the widest possible consensus, buttressed by the confidence of those it exists to serve and sustained by a Secretary of State whose constitutional position leaves him with the unambiguous duty of securing high-quality healthcare for all. I was encouraged yesterday by the pledge of the noble Earl, Lord Howe, to put the Secretary of State’s responsibilities beyond doubt, though his words did jar with the thrust of his reply to the Constitution Committee’s report.

I stress again that my noble friend Lord Owen and I are not in the business of wrecking. This is a very tight proposal for a bespoke Select Committee. I hope the Secretary of State’s powers will be put beyond doubt. A specially tasked Select Committee for the purpose will be the best instrument for achieving that. I urge your Lordships to support my noble friend Lord Owen’s amendment.

11:34

[Lord Beecham]

My Lords, we heard a good deal about cats last week, but your Lordships will recall the famous story in which Sherlock Holmes referred to the “curious incident of the dog in the night-time”. His perceptive medical companion pointed out that the dog did nothing in the night-time, to which Holmes replied that that was the curious incident. The failure of the dog in the story to bark has not been emulated in the response to the Bill, which has evoked the equivalent of a veritable canine cacophony.

The noble Lord, Lord Ribeiro, called on his medical colleagues to stand up and be counted, but they have. In overwhelming numbers doctors, nurses and the royal colleges have rejected the Bill. No less than 70 per cent of general practitioners in the most recent survey called for it to be abandoned.

Like many of your Lordships, I have been deluged with briefings, letters and e-mails about the Bill of which precisely one has been in support of it. The Bill at inordinate length creates structures embodying organisations that are often either too big or too small to function effectively. They appear to be designed primarily to meet ideological rather than medical or social purposes. I must point out in passing that, despite its title, there is very little about social care in the Bill—another non-barking dog. Thus it creates the massive bureaucracy of a national Commissioning Board vested both with national responsibilities and the oversight and commissioning of primary care, dental and pharmaceutical services for localities. Monitor becomes an economic rather than a quality regulator, charged no longer with promoting competition but with repressing anti-competitive practices, a distinction that noble Lords might think is without a difference. The very name is apt because it was the name of the US navy vessel that in the civil war sank a Confederate warship in the first battle of ironclads and it is also the name of a carnivorous reptile.

Clinical commissioning groups have been established in a troubling act of pre-legislative implementation. They are not coterminous with local authority boundaries and, and in the case of my own city, Newcastle, for example, there are already two commissioning groups. This raises serious issues about how the commissioning of services in hospitals within a regional or sub-regional reach will actually work.

Strategic health authorities have similarly disappeared, to be replaced in effect, at least for the time being apparently, by four super-SHAs responsible to the national Commissioning Board. Health and well-being boards, which are welcome in theory, will not include representation from district councils in shire areas, despite the latter having important functions relating to communities and individuals alike. The boards moreover are effectively consultees, not decision-making bodies.

As the noble Baroness, Lady Williams, pointed out, the Bill is strong on autonomy but weak on effective accountability, whether at national or local level. It is strong on competition, for which the evidence of benefit is perhaps less than compelling, but it is weak on failure. It replaces around 150 statutory bodies with something over 500. Perhaps its most welcome proposals are in the realm of public health, reversing the wrong turn taken in the 1973 reorganisation that did away with medical officers of health and chief public health inspectors who were powerful figures, as I can testify as someone who served on a health committee in my own authority at that time.

Even in the realm of public health, however, there are a number of concerns. Thus again, districts in two-tier areas are excluded, despite having specific responsibility for housing standards, food inspection and other environmental matters. There should be a register of qualified public health professionals and a public health appointee to the national Commissioning Board, on which, for that matter, the Chief Medical Officer should serve ex-officio.

There are also questions about duties. The Bill declares that:

“Each local authority must take steps as the Secretary of State considers appropriate for improving … health”.

The Secretary of State, on the other hand, “may” take steps, although the Bill in listing some possible steps makes no mention of sexual health, obesity, nutrition, alcohol or substance abuse, air and water quality, housing standards or occupational health. There is no duty on the NHS to co-operate with local authorities on public health issues, or on councils to co-operate with each other over, for example, disease prevention. There is a real concern about the status of Public Health England as an executive agency of a department to which it really must be free to speak plainly and publicly. In the words of Paul Burstow on Third Reading in another place:

“In legal terms, Public Health England and the Secretary of State are the same thing”.—[Official Report, Commons, 7/9/11; col. 412.]

He makes the case, unintentionally, for having Public Health England as a separate body that is able to speak to the Secretary of State, rather than having the Secretary of State, as it were, speaking to himself.

There are also issues about the funding of public health services, and the funding being ring-fenced. It is unclear how the level of funding will be determined and on what basis it will be allocated. It will be essential for the Government to work with the Local Government Association on this, and to avoid limiting funding to nationally prescribed outcomes. Funding will have to reflect local circumstances. It will also be necessary to avoid the impact of the proposed health premium, which is designed to reward health improvement but may penalise councils and their citizens in disadvantaged areas whose efforts to improve health may be frustrated more by the impact of matters outside their control than the policy decisions that they take. Those matters might well include government policies and, of course, the state of the economy.

There is also a question about how funding might be affected by the impact on children's services departments of the increasing numbers of academies and free schools opting out and taking away with them a proportion of the central support funding that the local authorities will apply.

We are in danger of moving from a national health service to a patchwork of fragmented health services, which will not be at all the same thing. The health service is of great utility to the people of this country. It is not a utility like gas, water or electricity—still less an insurance fund. It falls to this House to preserve the principles of the National Health Service and facilitate its continuous improvement in the service of the people.

11:41

[Lord Fowler]

My Lords, as the noble Lord, Lord Beecham, has just said, a constant theme of the debate has been the volume of public and professional objection to parts of the Bill. I do not downplay that, but such protest about change in health policy is hardly unique. The first health debate I took part in was as shadow Health Secretary in 1975, when I came from the peaceful realm of dealing with law and order, crime, police and prisons to the health service, and found the most horrendous row on pay beds taking place. The noble Lord, Lord Owen, will remember that as he was Health Minister at the time.

A few years later I took over as Secretary of State and stayed for six years, which is something of a post-war record. I would like to claim that this was a period of unparalleled peace, but this House has certain standards of honesty and frankness. The lesson I learnt from those years was that any change or reform in the health service almost certainly comes up against the implacable opposition of the BMA and the other health unions—and, very often, of the Opposition. When I introduced general managers, there was a fierce row. When I introduced a manpower policy, there was a fierce row. When I introduced contracting out, it was regarded as the work of the devil; and a proposal to have some very modest partnership between the public and private sector at district level was described by Michael Foot as,

“the most serious attack on the National Health Service since it was originally started”.

The worst attack was when the BMA and the pharmaceutical industry combined to attack my proposals to save on the drugs bill by substituting cheaper, generic drugs for branded sleeping pills and tranquillisers. The BMA said that it was an unacceptable interference in the freedom to prescribe, and the pharmaceutical industry said that I was the worst kind of socialist. Even then, the party opposite voted against me. Perhaps it was the word “socialist” that they did not like. Needless to say, none of the policies has been overturned in the 25 years since. My point is that we should not be amazed at the noise and criticism accompanying any set of changes; that has always been the case. Having said that, I acknowledge that many issues raised in the debate are of genuine concern. Those of us who care about the future of the health service want to see them settled. The question is how that can be done.

What would be entirely unacceptable is for the Bill—by any standards a major government Bill—to be defeated by this House at Second Reading. I was a Member of the other place for 31 years and accountable to the electorate. When I came to your Lordships' House, my position changed. This House has great expertise, as the noble Lord, Lord Winston, has just shown, but it is an unelected House and should not on Second Reading substitute its own view of a major Bill passed by the elected House after an exceptional period of consideration. We were asked yesterday where the mandate was for this legislation. The mandate comes from the elected House—from MPs who are elected and accountable. Frankly I am amazed that the opposition Front Bench supports the amendment of the noble Lord, Lord Rea, because my argument is exactly the kind of argument they used in government on issues that were much less important.

The amendment of the noble Lord, Lord Owen, to which the noble Lord, Lord Hennessy, spoke, is nearer the mark. The question that they raise is not new. In many ways, it is the eternal question of the National Health Service. How, when one has an almost entirely tax-funded service, with an obligation on the Secretary of State to answer to Parliament on how money is being used, does one at the same time achieve maximum devolution for the service to be most effectively managed? I do not deny that there is an important issue here that we should consider. What I doubt is whether we require a special Select Committee to examine the issue. The normal committee processes of the House would be sufficient.

In the time available, I will make three quick points on why I support the Bill. First, any Government have an absolute right and duty to ensure that the enormous resources being devoted to the health service are properly used. We can debate by what percentage health costs go up each year, but we are now spending more than £120 billion a year on the health service. By any standards, that is a vast amount of money. What one wants, particularly in the light of an ageing population and the certainty of new treatments coming on stream, is to see that the service is well managed—and I do mean managed. It serves no purpose to refer to the many excellent managers in the health service as bureaucrats and administrators. We should value their skills in the same way as we value those of the clinicians and doctors.

The second reason I support the Bill is that it explicitly recognises that not everything needs to be run by the health service. Fair competition is not an alien concept but something that applies to every other profession in this country. I do not want to wreck the political careers of the noble Lords, Lord Warner and Lord Darzi, but I agreed absolutely with what they said yesterday about this. Fair competition should ensure the best possible service. Equally, the use of the private sector does not mean that one is privatising the service; that is one of the oldest and dreariest charges. We are committed to a taxpayer-financed service, but making sensible use of the expertise of the private sector is what any modern public service should do.

My third and final reason for supporting the Bill is that it potentially contains—I listened to what the noble Lord, Lord Beecham, said on this—one of the most important steps forward: the creation of Public Health England, with a ring-fenced budget. I have just finished chairing a Select Committee of this House on HIV and AIDS. One of our findings was that at the last count, in 2009-10, the Department of Health spent £762 million on the treatment of HIV—mainly on drugs—and £2.9 million on prevention. The trouble is that people do not march up and down Whitehall or block Westminster Bridge carrying banners saying, “Prevention, prevention”. The public demand treatment. The tragedy is that so much treatment could be avoided, as in the case of one man who wrote to me after our report saying that he was on the verge of suicide when he was diagnosed with HIV, and even today is receiving psychiatric care: a casualty of a failure to prevent an entirely preventable disease.

There has already been a long debate on this Bill. Unless we are careful, we will leave the health service in uncertainty about the future. We will leave it in suspended animation. I do not believe that anyone who is committed to the National Health Service wants to see that. My belief is that this Bill should now be given its Second Reading and that we should proceed to scrutinise it in Committee with the skill and care that this House has always shown.

11:51

[Baroness Finlay of Llandaff]

My Lords, no one could dispute that the NHS needs to change to meet its challenges, drive up quality to be universally good, and narrow health inequalities. The way to bring the benefits of research and innovation to people's health, whatever their condition, is for the NHS constantly to change and evolve. But if it is more fragmented by external ownership, any irreversible damage may not be evident for several years. The real concerns about this Bill are neither a resistance to change nor vested interests. They come from all quarters because there are so many changes to the NHS in the Bill and so many needed changes that are not in the Bill. The more we ask questions the more we are told that secondary legislation will sort out the detail.

The key risks with this Bill identified by the impact assessment include whether clinical commissioning groups have the capacity and capability to engage with and deliver clinical commissioning and to manage risk, and how the Commissioning Board will deal with the potential conflicts of interest for GPs as providers and commissioners of patient care. As my noble friend Lord Kakkar said, Nolan principles and oversight of primary care need to be on the face of the Bill. With excessive autonomy, how will we avoid a patchwork of services, with rarer conditions left out in the cold? Planning of services has always required a critical mass of population, but how will that planning happen now? Will public health, the Commissioning Board or the clinical commissioning groups have the final say?

A real concern is for patients of all ages with complex, long-term, but not very rare conditions. Rare conditions will be centrally commissioned; common conditions are to be dealt with by GPs. In children, for example, conditions such as cerebral palsy, diabetes, Down’s syndrome or survivors of leukaemia are rare for a GP but not rare in paediatric practice. It is this middle group that risks falling between the cracks. Their real needs are for excellent, small-volume services. The choice—the real choice—they want is to have a service rather than no service or one restricted by stealth. Allied health professionals can be key, but where do they feature as core professionals? In the Nottingham area, we have already seen restrictions so imposed that they cannot practise properly.

Clinicians are used to rationing; the ethical principle of justice embodies it. Clinicians are also inherently competitive. It is their professional pride, not money in their pockets, that can be harnessed to drive up quality. We face the Nicholson challenge of savings and yet the impact assessment questioned the ability of GPs to deliver potential financial savings as well as transactional costs. There is also a question about how much this Bill is going to cost.

The Minister said that improving quality is motivating this Bill. But the NHS Confederation has said the jury is out on whether the Bill will actually improve quality. With more than 8,000 separate contacts, how can the Commissioning Board possibly manage primary care from a distance and monitor the quality and value of the service? The patient voice is a powerful driver to improve quality and it must be strengthened. We all welcome that. Patients’ feedback on their experience of care can change practice, so feedback from patients on the way complaints are handled and collated must inform commissioning. However, it is unclear how the Commissioning Board will discharge its responsibilities for involving patients, the public, and public health in its plans and decisions.

Let me turn briefly to “any qualified provider”. The hospice movement has provided this par excellence, sitting outside the NHS yet increasingly integrating. Where hospices have delivered best is where they have collaborated and integrated with the NHS, rather than competing fiercely for funding. I need no convincing of not-for-profit providers. However, people must have the protection of recourse to the health ombudsman, whoever the provider is—not only if it is the NHS—and every provider must have adequate indemnity.

My noble friend Lord Mawson spoke of the stifling barriers to progress when systems are not integrated and simple patient data are not available. There is a tension between collaborative integration and the possessiveness that can come from commercial competition. We must use our patient data better, not make it more difficult for them to be transferred. The personal profit motive can distort; incentives not to refer patients to other clinicians can cause delayed diagnosis. They neither achieve better quality, nor save money overall in the long term. It is good general medicine that decreases inappropriate referrals and ensures the best use of secondary care, and that requires closer integration of primary and secondary care, not less. The Government need to confirm that such integration will continue and be fostered under the proposed changes. We will meet our workforce needs only if the provision of educational and training resources is embedded in the contract with any qualified provider and is part of every tariff.

The duty to facilitate research must be strengthened in the Bill. Research drives up quality of care as well as contributing a financial benefit to the UK; when money is tight we need research more than ever. Change and innovation are essential for our health services to keep abreast of improved outcomes, to promote independence and to meet patient need. Change and innovation are driven by research. That is why universities and hospitals need to integrate more, not less.

In the past I have said that the NHS must stop being a political football. But removing so much responsibility from the Secretary of State feels more like abandonment. The recommendation of the Constitution Committee is that the Secretary of State's role be put beyond legal doubt. The suggestion of my noble friend Lord Owen seems to provide a good way to address this and to be time efficient. At the very least I hope that the Minister will agree to review this as the Bill proceeds.

I have kept asking whether we need this Bill to bring about the changes to drive up quality of care, improve outcomes, empower the patient voice and decrease layers of bureaucracy. The answer I have consistently been given is that the vast majority of changes can happen without the Bill and indeed the most important ones are already happening. I doubt whether this House will throw out the Bill, but it must amend it properly. At a time when we need to make savings and focus evermore on patient care, these reforms risk being an ever-increasing distraction for clinicians and managers. It is a credit to NHS clinical services that they continue to develop despite the uncertainty. Their concern that the NHS will not exist in five years time is driving their vocal opposition. People’s health is not a commodity to be traded.

11:59

[Lord Mackay of Clashfern]

My Lords, I should declare a non-financial interest as an honorary fellow of three of the royal medical colleges associated with the health service. One of my earliest clients was the Scottish branch of the BMA, and the first time I appeared as a counsel in this House—when the House had jurisdiction to deal with these matters—was as counsel for the Medical and Dental Defence Union. So I have had a fairly long interest in health matters, including the health service, up to the present time.

We have all had a good deal of correspondence about the profit motive in relation to the health service. It is worth reminding ourselves that the main suppliers to the health service, both of drugs and equipment, are powerful industries in the private sector, and therefore the health service has to be able to deal with these in an effective manner. But the main issue for me is that raised by your Lordships’ Constitution Committee. Its report, as we have come to expect, is clear, comprehensive and concise, and the Government have given a full response. What are required now are decisions.

The principal issue is the effect of deleting from the statutory duties of the Secretary of State the first part of the provision in Section 1(2) of the NHS Act 2006 that:

“The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act”.

It is the taking out of the word “provide” that is a small but extremely important amendment. I agree entirely with the noble Lords, Lord Owen and Lord Hennessy, that this is a vital matter. The committee referred to the decision of the Court of Appeal in Coughlan in which my noble and learned friend Lord Woolf, then Master of the Rolls, said that the Secretary of State,

“has the duty to continue to promote a comprehensive free health service and he must never, in making a decision under section 3”—

which was an issue in that case—

“disregard that duty”.

What is important is that that duty in these terms does in fact remain in the present Bill. The Constitution Committee, which includes distinguished parliamentarians and very distinguished lawyers, has put that question in clear terms to us all. I do not believe, although I have the greatest possible respect for the great range of talent in this House, that any other committee could have put it better, more succinctly or more comprehensively.

Yesterday, the right reverend Prelate the Bishop of Bristol referred to this as a “foundational” matter. I agree with that, and the sooner it is resolved, the better. The problem with the proposal of the noble Lords, Lord Owen and Lord Hennessy, is that, while I agree entirely with its importance, is the method by which it should be resolved. If, in truth, this is a foundational matter, it is very unusual to leave the consideration of the foundation to the end of the consideration of the structure, and that is what is going to be involved here. My submission to your Lordships is that the sooner the sting and toxicity coming out of this issue is removed from the consideration of the Bill, the better. I have every confidence that a full debate in an ordinary Committee of the Whole House will resolve it at the beginning rather than at the end of the process. However, according to the proposal of the noble Lord, Lord Owen, the rest of the Bill is to be considered without a decision on this point. But that decision is bound to affect all of the rest of the Bill, so consideration of the rest of the Bill is subject to a condition about its foundation, which cannot be effective. Noble Lords do not need to listen to the whole of the debate, although I have listened to a substantial part of it, to know that very important issues need to be debated in order to improve the Bill. Certainly I would like to see it improved to the best possible standard because the health service is the most precious system in our country. I personally am highly devoted to it and have now used it for long enough to have become one of the ageing population which is threatening to be a rather serious burden, although I hope that I will not be too burdensome.

The right way for this House to deal with this matter, in accordance with its ordinary methods, is at the proper place in the Bill. Whatever wrongs the Secretary of State has done—people are finding fault with all sorts of different aspects—at least this point arises at the beginning, the foundation, of the Bill. Surely this House should not lose the opportunity of dealing with it in its place, in accordance with the full and comprehensive issue put before us by our own committee.

I do not want to say anything about the issue itself at this stage, just simply that it is one of great importance which should be decided at the beginning, not the end, of the process. I hope that we will be able to decide it in Committee. It is always open to come to a conclusion in Committee, although many conclusions are reached on Report. But I would like to see this issue decided at the beginning of the Committee stage because it has the capacity to draw out a lot of the toxicity that is affecting consideration of the Bill. A lot of people have written saying that the whole of the health service is going to be damaged, lost and so on. We need to consider that and see what we can do to deal with it. I think that the Government have indicated in the other place that they would be willing to put this beyond legal doubt. The Committee has given us one way of doing that; namely, to go back to the way it was, in which case the legal doubt is resolved. But there may be reasons for not doing it which the Committee will have to consider, one of which was mentioned by the noble Baroness, Lady Finlay of Llandaff; namely, that it is highly desirable to prevent the National Health Service becoming a political football.

I have a sad recollection of a general election in which the ear of a particular patient of the National Health Service was a political football for days. That does no good for any of us. Indeed, it denigrates our health service. I am not saying that this Bill would eliminate that for certain, but the object of this change in the early part of the Bill is to try at least to reduce the risk. Your Lordships will want to consider that, but I suggest that we do so as a matter of priority at the very earliest stage in Committee.

12:07

[Baroness Pitkeathley]

My Lords, I am going to be in a minority on these Benches by speaking in favour of the Bill, at least of one very small part of it, and that is Clauses 219 to 226 in Part 7 which create the Professional Standards Authority for Health and Social Care. I welcome the changes to the Council for Healthcare Regulatory Excellence, the organisation I currently chair. The changes provided by the Bill will bring in new regulatory options for the health and social care workforce through the accreditation of voluntary registers, new areas of oversight in statutory regulation across social work and new funding arrangements. I support this package of reforms because they keep the interests of patients, service users and the public at the heart of the system regulating healthcare workers in the UK and social workers in England.

These provisions reflect evolving thinking about right-touch regulation and proportionate protection of the public. Giving the Professional Standards Authority the power to accredit organisations which have voluntary registers of health and social care workers but are not statutorily regulated introduces a new, cost-effective and flexible option for improving patient safety and experience. I also support the reforms because they allow for greater integration of health and social care regulation through our oversight function of the renamed Health and Care Professions Council, and of course the CHRE will be renamed the Professional Standards Authority for Health and Social Care to reflect the broader scope of its work. Right-touch regulation promises less but better regulation, and I pay tribute to the nine health regulators and the staff of the General Social Care Council who have embraced the proposed changes, which are not necessarily easy for them to make in a professional and positive manner. That is the limit of my positive approach to this Bill.

I am a passionate devotee of the NHS. I grew up in the Channel Islands, where every visit to a doctor had to be paid for and where good health was, therefore, largely a function of your income. My grandmother was deaf because of neglected ear infections and my grandfather was killed in a road accident because he returned to manual work too soon after being in hospital for surgery, driven by the need to pay the bill. I owe my own life to the NHS through its intervention, pioneering surgery and medical expertise, and my continuing good health to the watchful eye the NHS keeps on me.

In addition, one of the great commitments of my working life has been about social care. It is too easy, as others have said, to overlook the fact that the Bill before us is about health and social care; and about enabling disadvantaged individuals, clients, carers and patients to speak for themselves and to contribute to policy formation. How I judge proposals for changes to health and social care, therefore, is simple: first, whether the new arrangements will lead to services that are more organised around individuals and more focused on patient need; and secondly, whether there will be more integration among the providers of care, whether health services, care services or indeed voluntary and privately provided service.

The emphasis placed on integration and collaboration by the Future Forum report was very welcome but I have yet to be convinced about how its proposals, as interpreted in the Bill, will lead to better integration across health and social care. As the Future Forum report reminded us, the provision of integrated services is rarely dependent on structural change:

“The reality is that the provision of integrated services around the needs of patients occurs when the right values and behaviours are allowed to prevail and there is the will to do something different”.

It is surely not hard to understand that since delivery of co-ordinated services depends on co-ordination between individuals, individuals are less likely to have the will to do something different when they are fearful about their own futures. This is not surprising, since the dedication and commitment of public sector workers is constantly undermined by some in our society and when they are worried about the service they love being dismantled and anxious about a future which seems to offer conflict between different types of vested interests instead of a focus on patient needs.

For the patients themselves, their fear and bewilderment is reflected in the huge number of communications that all your Lordships will have received. Is there anyone who really believes that the mantra of, “No decision about me without me” is going to be facilitated by the changes in the Bill? What patients want—and, I would strongly argue, what patients have a right to expect—are services across health and social care that are easily accessible, free from fears about affordability, and provide dignity, safety and peace of mind as well as treatment or cure. I pity any patient who is seeking those things in the mess the services now find themselves in. Patients always complain about the complexity of systems and about why one bit of the service does not seem to talk to another. The plethora of acronyms and layers with which they now have to contend is hardly going to help; and woe betide any patient who looks at the horrendous flow charts and diagrams of the new system.

I share with others the concerns that have been expressed about the lack of independence for HealthWatch, the potential conflicts of interest for local healthwatch organisations, the lack of proper transition arrangements between LINks and local healthwatch, and also the lack of real power for the health and well-being boards.

In addition, although some progress has been made towards coterminosity between consortia and local authorities, the populations for whom consortia will be responsible will be based on practice lists not geographical boundaries; so there may be all sorts of problems such as we have seen many times before with health and social care professionals trying to work across geographical and administrative boundaries, as the noble Lord, Lord Beecham, has warned us.

However, my principal worry about the patient and public involvement issue—I repeat—is that all my experience shows that structural change does not bring about integration and collaboration, either within a service or across services. It is people and proper communication about the assessment of needs from the point of view of the patient that bring that about. The well intentioned changes that have been made as a result of the Future Forum work have actually led to systems and structures that are more complex and difficult to find your way around—even for the professionals who work in them, let alone the consumers.

We always—not only in these difficult times—have to face a balancing act between quality and affordability. Much mention has been made in this long debate of competition. Some say it drives up quality, and that may be true for some services. I can only say that in a lifetime of working in health and social care, I have seen very few commercial interests competing to provide preventive services or services for those with dementia or with a mental disability. Those have been left to the voluntary and community sector, who will scarcely be able to compete on a level playing field with the giant commercial interests currently circling our NHS. Unlike the voluntary and community sector, which has always subsidised these services, I doubt they would be circling unless there were some prospect of profit.

Anyone who has ever run an organisation knows you have to build a consensus if you want to bring about change—otherwise you spend too much energy fighting the change instead of facilitating it. However pressing the need for change in the NHS—and I have heard no noble Lord in this long debate argue against the need for change—the Government have utterly failed to build that consensus. All the communications we have received, and the large petition that I understand has been received today, are ample evidence of that. For the sake of patients and professionals—and the NHS which is so loved by us all—I hope that the amendment tabled by the noble Lord, Lord Owen, if carried, would give more time for building that vital consensus.

12:16

[Lord Patel]

My Lords, I declare an interest in that I hold fellowships of several colleges. As I am going to speak about medical research, I should also say that I am a member of the Medical Research Council and a fellow of the Academy of Medical Sciences—all of which is probably quite irrelevant to what I am going to say.

I agree with my noble friend Lord Winston that much of this Bill is probably unnecessary. However, we have the Bill, and I will try to focus on issues related to it. I thank the noble Earl, Lord Howe, not only for the way in which he introduced the Bill but also for making time on several occasions to meet me to discuss issues that concern me. I am also slightly concerned at the number of hours he has been sitting in his place. I hope that he is doing sitting exercises to avoid deep vein thrombosis.

The Secretary of State, in his keynote speech at the Conservative Party conference, said: “On my watch, the NHS will not be privatised, fragmented or dismantled”. Judging by the huge amount of briefs, mail and e-mails that we have all had, the perception of those who work in the NHS, patients and the public is the reverse. If the reforms are to work, listening to those who work in the NHS and to patients is going to be important.

Advances in diagnosis and treatments in areas such as cell therapy, genomics medicine, molecular diagnostics, regenerative medicine, nano-medicine and focused ultrasound therapy—to mention but a few—will be available probably in the next 10 years. It will be expensive, but it will also require a reconfiguration of health services to take advantage of it as well as better evaluation of the effectiveness of treatments. In some parts of the country patients are already not benefiting from the latest diagnostics and treatment, particularly those relating to cancer. To contain costs, better strategies for public health will be required, including regulation of diabetogenic products marketed in the high streets. The burden of lifestyle and environment-related diseases is huge and increasing: it accounts for nearly 40 per cent of in-patient admissions.

We also need more effective management of patients with long-term conditions, ideally in the community, delivered in an appropriate environment by skilled healthcare professionals. These patients are vulnerable and their experience of healthcare is often variable. I agree with the noble Lord, Lord Crisp, that we have lost an opportunity in this Bill by not having developed a strategy for delivery of treatment for patients with long-term conditions.

I agree that we need change. But is the scale of reforms proportionate, appropriate and timely? Will the many layers of increased administration that the Minister referred to lead to confusion, bureaucracy and increased costs? Some estimates suggest that there may well be between 25,000 and 30,000 people employed in the NHS Commissioning Board, the CQC, Monitor and the 350-odd clinical commissioning groups, none of whom will be involved in the direct provision of patient care. The NHS Commissioning Board alone may have upwards of 5,000 employees.

I turn now to some of the points raised by other noble Lords whose comments I support. Yesterday’s best advice to the noble Earl, as it was put, came from the noble Lord, Lord Willis of Knaresborough. Later I shall have another piece of best advice for today. However, the noble Lord, Lord Willis, was right to say that establishing the health research authority is crucial. I also hope that the Bill will provide stronger support for a duty on all healthcare providers to be involved in promoting clinical research. I will therefore support the amendments tabled by the noble Lord, Lord Willis.

My noble friend Lord Walton of Detchant expressed strongly the need for the UK to be recognised internationally for good medical training. The Bill’s proposals on the role of health education in England and of the regulator of medical education and training, the General Medical Council, cause confusion. Nothing should be done to change national training programmes. I hope that my noble friend Lord Walton will bring forward amendments that others will be able to support.

Equally, the noble Baroness, Lady Emerton, referred to several important issues relating to the training of nurses, nurse support workers, the representation of nurses on national bodies and safe staffing ratios. I will support her amendments. As a clinician, I understand very clearly that good nursing care makes patients better. She also mentioned Cause 231, but I am sure that she meant Clauses 225 and 226.

The strategy for delivering the public health agenda needs to be strengthened. There is a risk that, as currently drafted, the structures will not deliver the improvements that we need. There is also an issue about the public health workforce. I hope to have amendments on that which I hope will be accepted as a way of improving the delivery of the public health agenda.

The Minister referred to public and patient involvement. If the Government are serious, HealthWatch England should be given a stronger voice. It should be an independent body and not a committee of the CQC; it should be represented on the boards of the NHS Commissioning Board, Monitor and the CQC; and it should be well resourced. That is today’s best advice. I will table an amendment to propose that and I hope that the Minister will accept it.

The noble Earl’s key ministerial responsibility is for quality in healthcare, which is defined as effectiveness, patient safety and patient experience. The quality standards developed by NICE will be the key drivers of quality in the NHS. To be effective, they need to be based on the patient’s journey of care, as I learned when developing quality standards myself. The noble Baroness, Lady Jay of Paddington, is not in her place so I will save her blushes. I wrote her a letter on 16 October 1997 and enclosed a paper on behalf of the Academy of Medical Royal Colleges, of which I was then the chair. The purpose of the paper was to establish a three-pronged approach to improving quality of care through the use of quality clinical indicators; a strategy for developing clinical effectiveness and the accreditation of clinical services licensing through peer review; and, to do this, to establish a body called the national institute of clinical effectiveness. I am glad that it survives as NICE.

The quality standards developed by NICE will be the key drivers of quality in the NHS. They need to reflect the patient’s journey of care and to be used by the national Commissioning Board to develop currency—currency which will be used by Monitor to develop tariffs. The tariffs need to be bundled to deliver effective, integrated care that will result in good outcomes. The pricing has to be appropriate, and therefore should be reflected in the tariffs that the commissioners will use to purchase care.

However, I have to ask why there is such a convoluted way of developing tariffs. Why is there the involvement of the national Commissioning Board, Monitor and the commissioners? The NICE quality standards used by the commission could be simplified, and social care could be included.

The quality regulator, the CQC, will be responsible for making sure that the providers of healthcare follow the quality standards, but the methodology will need to be refined. The best way of assessing healthcare and monitoring quality is through peer review, as experience in other countries such as the United States has shown—and in England we also have the example of cardiac and thoracic surgery. The 300 to 350 clinical commissioning groups will use tariffs to purchase care. Good commissioning has been patchy. The Bill is unclear how that will be developed. How will conflict of interest by primary care doctors, as providers of care, and members of the commissioning group be managed? I have an issue with quality premiums—what they will be used for and the criteria for awarding them.

Performance management of GPs as providers of care is also not clear. When will we have a primary care outcomes framework? I hope that GP referral rates will not be used as indicators for quality payments. We already have evidence that for many patients, particularly cancer patients, late referrals produce poor outcomes. The noble Baroness, Lady Royall of Blaisdon, spoke yesterday—movingly and courageously—about her own family experience.

I think that Monitor as a sector regulator has too many tasks that it need not have. However, one task that it should have is as a financial regulator of social care. Healthcare regulation is complicated; it is not comparable to utilities regulation. Evidence presented at a recent seminar showed that successful regulators are simple regulators.

Time does not allow me to comment on other important issues related to competition, choice, integration, the failure regime and reconfiguration, which are important issues. Some of them have already been mentioned by the noble Lord, Lord Warner, who I hope to join with in the amendments that he brings forward. No doubt we shall have an opportunity to discuss this in detail later.

As many noble Lords have commented, this is a complex and large Bill. I hope that the business managers will recognise the need to allow appropriate time for the Committee stage. In common with other noble Lords, my intention is to improve the Bill, make the delivery of healthcare in the NHS better, and build on what is already good.

12:27

[Baroness Donaghy]

My Lords, we all have direct experience of the health service, some good and some not so good. Like most noble Lords I support change. I would like to go on to a hospital ward and find someone in charge. I hope that no one else will have to go through the obscene ping-pong of an elderly dependent relative going backwards and forwards between care home and hospital, not knowing what is best for them, but having them regarded either as a bed-blocker or a health risk.

Of course we need improvements, but it is vital that our own personal prejudices do not get in the way of the overall picture. To pretend that this Bill will solve any or all of these issues is to present a false prospectus. Despite raising these matters, we still do not know how failing organisations will be dealt with, how we will prevent GPs from abusing financial incentives, or how local authorities will be able to afford to set up elaborate new structures. We still cannot work out how the word “streamlining” can be used in the context of more committees, more overlap and more cost. Asking us to agree to this Bill is not just asking us to walk into the unknown, which is fair enough—innovation is good—it is asking us to dismantle our home beforehand.

If this were 1997, things were so bad there would have been popular support for any change, even a rotten one like this, but we are not in 1997. Things are different now. Enormous resources, self-respect, massive innovation and professional incentivisation have changed the agenda. We are now trying to protect what has been achieved. I was once involved in appointing new consultants. It was one of the most exhilarating of experiences. The new generation is chock-full of talent, is aware of the importance of outcomes and does not think that money grows on trees. We are so fortunate in our health service staff, and we should be praising them and taking them with us. As a former chair of ACAS, I know that consent is what leads to better productivity. I say to my noble friend Lady Wall that of course health service staff want certainty. They have wanted it for 63 years, and they are not going to get it. Do not be tempted by the seductive words that any decision is better than none. I have a friend who has worked in the health service all her life and is now on her 24th reorganisation. I am not saying that uncertainty is good or desirable in itself but, as the NHS constitution says, the NHS belongs to the people. As long as that is the case, politicians will always tinker. The alternative is that they might not belong to the health service any more and might be on worse conditions and have inferior pensions.

Yesterday the noble Baroness, Lady Bottomley, spoke of the burdens of ministerial office in the Department of Health, and I have no doubt that all Ministers work way beyond their best capacity. However, I believe that she obfuscated the true meaning of ministerial responsibility by emphasising day-to-day business and micromanagement, and her Tesco analogy really let the cat out of the bag: there is a national Commissioning Board if ever there was one. Some towns have so many Tescos that they are campaigning against them. Its success was built at the expense of the small provider—the local shop—and suppliers so desperate for contracts that they would enter into deals of slave-like proportions. Yes, quality was improved, but it was achieved by pushing down the exploitation to the lowest level.

Let us be clear: we are all in favour of better integration of services, but I think there are yawning gaps in the Bill about how social care will be treated. This subject is not new. In 1968, there was the Seebohm committee report, the health Green Paper and the Royal Commission on Local Government in England—the Maud report. In the debate on the Seebohm report in this House, Lord Amulree said:

“There is a need for a link between the residential homes … and the hospitals … This is something which does go wrong at the present time”.—[Official Report, 29/1/69; col. 1180.]

Amen to that 43 years later. That comment was made when most residential homes were run by local authorities. If it was difficult then, how much more of a challenge will it be under the current set-up? I believe that care homes are a scandal waiting to happen.

What of the Government? The Prime Minister is to be admired for two reasons. First, he has the luck to have one of the most talented Ministers in this House to present this Bill. The noble Earl can truly make this “Titanic” look like Roman Abramovich’s yacht. Secondly, I admire the Prime Minister for his loyalty to his friends and, in particular, his friend Andrew Lansley. I share the same birthday as the Prime Minister, although, unfortunately, not his age, so perhaps we share that value, but the Secretary of State’s stubbornness is now a liability, and the Prime Minister should consider whether personal friendship is more important than running the country.

What is this Bill really about? It is about two things, and they are simple and stark, so they have to be wrapped up in lots of packaging. First, it is passing the ration book to GPs so that they get the blame. Secondly, it is laying the groundwork for the privatisation and dismantling of the National Health Service.

I shall finish with a quotation from Benjamin Disraeli. It is not:

“England does not love coalitions”,—[Official Report, Commons, 16/12/1852; col. 1666.]

or even his comment on the Liberal Government of the day:

“You behold a range of exhausted volcanoes”.

It is this from February 1851:

“I read this morning an awful, though anonymous, manifesto in the great organ of public opinion, which always makes me tremble: Olympian bolts; and yet I could not help fancying amid their rumbling terrors that I heard the plaintive treble of the Treasury bench”.—[Official Report, Commons, 13/2/1851; col. 602.]

In a previous speech, I compared the health service with Little Red Riding Hood, with the noble Earl as an unlikely wolf sitting in bed with a frilly nightcap and speaking with a soft voice. When you consider how to vote, beware not only the big, bad wolf but, under the bed, the plaintive treble of the Treasury Bench.

12:37

[Lord Alderdice]

My Lords, when one comes near the end of a debate in which almost 100 Members of your Lordships' House have spoken, one has a good deal of time to think about what one might say when the time comes. I must first start by declaring an interest. From the time I left college until March last year, I worked in the health service, first as a junior doctor, then as a consultant psychiatrist and then as an executive medical director of South and East Belfast Health and Social Services Trust, one of the largest health and social care trusts in Northern Ireland. I retired at the end of March. During that time, when I came home from work I did not stop talking about the health service because my wife is a consultant histopathologist. If my children felt that when their aunts and uncles came at least that would be a relief, it was not. All of those who work outside the home in my generation, on both sides of the family, work in healthcare: in academic medicine; in laboratory medicine; in general practice; in dermatology; in psychiatry; and in child healthcare. It runs through our family’s veins in this generation. When I retired last year at the age of 55, I did so with a very heavy heart because in the early years I could see that in the area that I was committed to—people with mental and emotional disorders—every year I could look back and say, “There was a little bit of improvement this year. Things are moving forwards a little bit. There was a little bit of better care for the people who need it”, but that was not the case in the last years.

The noble Lord, Lord Owen, in a very powerful speech, rightly said that the health service will always be a rationed service because there is an endless possibility of using resource, but he then went on to say that people trust the health service because it is always fair. I wish that were true. For those who live at a considerable distance from the metropolis, for those who have certain kinds of disorder, for those who are very young, as we heard yesterday in terms of child and adolescent services, and for many of those who are old, there is not an entirely fair distribution of resources, so we must always be thinking about how we can make it better, and I know noble Lords would not disagree with that.

The sense for me was that things were not improving. The sense was of low spirits. It is an anxiety that I detect in the many people who have contacted me by e-mail and letter and in the many speeches in your Lordships' House in this debate. Why are people so anxious? Is it just because every time there is talk about making any change in the healthcare system people get anxious? Look what happened to Hillary Clinton and President Obama when they tried to address the healthcare requirements in their country and, frankly, make it better and a little bit more like what we have been privileged to have in our country—yet they found that people were terrified even by improvements in service. Perhaps that is part of it. My noble friend Lord Fowler has identified how every attempt by parties on either side has always been met with anxiety. Some people would suggest that we are receiving this deluge of messages because campaigning organisations now have the capacity to deliver them with enormous sophistication and speed. Maybe there is some truth in that, but it would be wrong to think that it did not represent a real anxiety and concern.

Why are there these anxieties from, for example, clinical colleagues? We need to go back a little. When general management came in, it was not Roy Griffiths’s intention to move away from involving clinicians in management. He subsequently made that clear in the early 1990s. He did not want a separate profession of managers, but I am afraid that many of my medical colleagues, and other clinical colleagues too, said: “We do not need to get involved with that. We will just get on with the clinical work, which is really what we want to do”. It is a seductive argument. Many managers also thought that it was much easier to manage if these people did not keep coming up with difficult clinical conundrums for them to address.

Over many years it got to a point where many doctors and other clinicians felt that they had no way into the management. That was one of my problems. I was left on an evening with a psychotic, suicidal patient whom I knew could not be managed in the community, but as a doctor I could no longer admit them to a hospital bed without going through an administrator who knew nothing about the patient and nothing about the situation, yet was telling me I had to keep them in the community and manage them however I could.

That has left doctors in such a position that—even though the previous Government put lots more money into the service, for which I commend them, and increased the salary of doctors, for which I guess they are to be commended to some extent—it did not improve output and efficiency. It did not even improve the morale of doctors. Most people of my age—I am 56—want to retire early from the National Health Service because they feel impotent to make the kind of changes that they want.

How do we address that? We find a way of bringing back together clinical involvement and the management of the service. Management is not a dirty word, but clinical experience and involvement is necessary if it is going to be good and effective. Not everybody will welcome that. It is much easier for a doctor just to go to his clinic and have no sense of responsibility for the implications of his clinical decisions, either for his particular patient or for all the rest of the patients and community. However, I am afraid it is the responsibility of clinicians to do that. It will not be easy for managers. I am sure they are happier whenever clinicians stay at bay, but these are issues that have to be addressed. We have to face their difficulty if we are to have a better health service.

Another dilemma was that things became more and more centralised, with more targets, regulations and directives coming from the centre, to address these problems. But many of them cannot be addressed from the centre. You have to involve local people—patients, carers and elected representatives. That is why the purpose of this Bill is to get clinicians back involved with management, localities, patients and carers through health and well-being boards, HealthWatch and other facilities involved in the process. And yes, colleagues should also compete with each other, not on the basis of price but—as the noble Lords, Lord Warner, Lord Darzi and Lord Birt have made clear—there is a value in people measuring themselves against their medical and clinical peers to see whether their performance and the production of their service is the best it can be.

I see the noble Baroness, Lady Thornton, shaking her head. She approached me some time ago in the run-up to this Bill to ask if we could get together and have some workshops and seminars to make noble Lords aware of all the issues. Some colleagues said it was a trap and I should not get involved—that the noble Baroness was trying to split the Lib Dems off from the Conservatives. I said I did not believe that and that she genuinely wanted to achieve familiarisation with all the issues, almost as a kind of do-it-yourself pre-legislative scrutiny. We got involved together and it was useful work. So when she said in her opening speech in this debate that there were a series of things she welcomed and would go on to discuss in Committee, I thought it was absolutely wonderful. Then she said that she would support not having a Second Reading. I thought that it would be a bit difficult discussing them in Committee if we did not actually get to a Committee.

However, that is what we have to do. We have to get to Committee to make sure we make the best possible Bill. What would happen if it was tossed out? What would be the message to the people in the health service? No clarity, no direction, no possibility of actually approving it on the Floor of Parliament. Some people have said that we do not need a Bill and many of the things could be done away from the Floor of the House. However, then there would not be good scrutiny or the facility for proper debate that people could engage with. Some of these changes also require legislation. It is extremely important.

The noble Lord, Lord Owen, and a number of colleagues have said that a number of constitutional questions need to be addressed. That is true. There are constitutional questions that have not been touched upon. Noble Lords would not expect me to ignore the fact that, when the health service was founded, there was a United Kingdom with a single health service and a little side-bar to Northern Ireland. Now there are four health services. There have been constitutional changes that have to be addressed, but this debate shows us that the richness and understanding of the whole House is needed to address these constitutional questions. As the noble Lord, Lord Owen, made clear, it is not possible to determine how long a Select Committee might meet and it could drag things out over a considerable period.

I appeal to colleagues that we get on with our business, which is not to defy the other place but to scrutinise the legislation ourselves together on the Floor of the House. I have one final request to my noble friend. It is crucial that he makes clear when he speaks that the Secretary of State—not someone else—will retain the responsibility and the accountability and be the ultimate guarantor of a National Health Service that we can all be confident in, not anxious about its future.

12:48

[The Archbishop of York]

My Lords, let me declare an interest in this Bill as a previous patient of the National Health Service. In 2008, suffering salmonella as soon as I arrived from overseas, I was treated for nine days at University College London. I received excellent treatment. It was co-ordinated and first rate. In May 2008, at St Thomas’s Hospital, I was admitted and stayed for 12 days for the removal of a rather nasty appendix. I was looked after well, it was well co-ordinated and wonderful. In August this year, at York Teaching Hospital, I was treated for repairing my rotator cuff and removing my uvular because it was affecting my throat. It was fantastic and well co-ordinated.

All three hospitals are teaching hospitals. The question that we need to ask ourselves is: will this Bill raise and improve the standards in our teaching hospitals? I am doubtful because if you are a teaching hospital it means that sometimes things may be delayed and may not happen so quickly. They have to work hard. Will it improve the teaching hospitals of our country? I am doubtful. My Archiepiscopal colleague, the most reverend Primate of all England, Dr Williams, in the New Statesman on 9 June in a speech on education said:

“With remarkable speed, we are being committed to radical, long-term policies for which no one voted. At the very least, there is an understandable anxiety about what democracy means in such a context”.

A number of noble Lords have repeated the same view: that the Bill has no mandate. It was not in the manifesto. It will not do simply to repeat the statement that it was in the coalition agreement. Joe and Jane public did not vote on it. That is why there is anxiety in the nation and that is why there is a lot of worry about it. Therefore, the Government would be wise to persuade the public, the professionals and most of all the staff of the NHS that it is in their interest.

The best way of doing that is to allow proper scrutiny of the areas that have caused the greatest anxiety. From listening this morning, I think that the amendment by the noble Lord, Lord Owen, does that. The area of anxiety that it addresses is the extent to which the Secretary of State is still responsible, and it allows parliamentary counsel to help in the scrutiny of that particular part.

The noble and learned Lord, Lord Mackay, agrees with the right reverend Prelate the Bishop of Bristol that the role of the Secretary of State is a foundation issue. The Secretary of State has responsibility for the health of the nation. He said that since this is a foundation question, we had better deal with it quickly. But will time allow us properly to examine the foundation and secure that the foundation is good? It does not seem to me that in the short time available we will do that. Time will run out and I agree with the noble Lord, Lord Winston, that this will not improve the National Health Service. It may do other things but health is somewhere else.

12:52

[Baroness Scotland of Asthal]

My Lords, with the leave of the House I would like to speak in the gap. Your Lordships will be relieved to know that I will be very brief.

I have had the privilege of listening to this debate for much of yesterday and most of this morning. It is clear that it is one of the highest quality debates in which we have had the privilege of participating in this Session or indeed for a number of Sessions that I have been privileged to sit in your Lordships' House. Rarely have I heard the level of concern, commitment and indeed love for any particular institution. It is clear that the NHS is loved: not just valued, but genuinely loved.

The issues therefore that the House has been grappling with in many ways surround some of the legal consequences of the changes that we are minded to make. Those are difficult and challenging issues. Your Lordships will know that I sat where the noble Earl, Lord Howe, is sitting for many years. Therefore, it is my estimation that this difficulty is likely to take a great deal of time on the Floor of your Lordships' House. I hear with great care the powerful statement made by the noble Lord, Lord Fowler, that we can deal with this in our normal way and that it is part of the raison d'être of this House. I understand why he says that, but, frankly, I disagree. There will be a level of acuity that we will have to address to this particular issue that will be quite difficult to do on the Floor of the House.

We need calm, we need sagacity and we need careful contemplative consideration. That is often done away from the public eye and the public glare so that people can say what they genuinely think in a way that will benefit this House. We wish the issues between us to be narrowed so that we can focus only on those things with which we have to deal. I respectfully suggest to the House that that could be more conveniently, effectively and critically dealt with to the benefit of this House’s debate and much more importantly to the benefit of the people of our country, who will be listening with real anxiety about what this House does. It would be easier to deliver what our country needs if we entrust that duty to a Select Committee which we know will have the commitment and belief of all of us if we give them that opportunity. I therefore ask the House to consider very carefully whether we would not be better placed to support the amendment in the name of the noble Lords, Lord Owen and Lord Hennessy.

12:56

[Lord Newton of Braintree]

My Lords, somewhat unexpectedly, I find myself seeking the leave of the House to speak in the gap. I have a string of interests to declare including being chair of a health trust and a long history of being chair of health trusts and in other ways for something like 25 years.

Am I a supporter of the Bill? Yes, in general. Can it be improved? Yes, for certain. That is what we should be thinking about doing. There are three substantive points that I want to make briefly. Change in the NHS, as my noble friend and others know quite well, is a process not an event. These changes are already well down the track. In my view, it would be too late to stop them without causing total and complete chaos. If they are delayed, by whatever route, that will do more damage to the NHS, which we all much love, than if we get on with it.

In relation to the desire to refer part of the Bill to some kind of committee, I do not know about other noble Lords but I have been deluged with representations from professional bodies, every kind of association and a lot of individuals. There is ample evidence of people's views to be taken into account by this House in the ordinary way in its deliberations in Committee. That is what we are good at. That is what we have shown we are good at on the Localism Bill, the Public Bodies Bill and no doubt soon on the Welfare Reform Bill. Let us get on and do our job.

12:58

[Lord Hunt of Kings Heath]

My Lords, two minutes before time. I first declare an interest as chair of the Heart of England NHS Foundation trust, president of the Royal Society of Public Health, the British Fluoridation Society, and the Health Care Supplies Association, a health policy consultant and trainer with Cumberlege Connections and member of the National Advisory Council, Easy Care Foundation. But I speak for the opposition Front Bench.

The noble Earl enjoys huge respect in your Lordships' House. I well recall the many debates over four years that we have had across the Dispatch Box in which the noble Earl from this position cautioned me about the ill effects of the continuous restructuring of the National Health Service. Yet it is on the noble Earl’s watch that the health service is now facing the most turbulent time in its history. It is unsought after by patients, in direct contradiction of Mr Cameron's pledge of no top-down reorganisation of the NHS and is driving a coach and horses through the coalition agreement, as the noble Baroness, Lady Jolly, reminded us yesterday.

At the end of this wonderful debate, there is one question above all others that I and, I believe, many other noble Lords, want to put to the noble Earl. It is simply the question, “Why?” Why, when the NHS is facing this huge efficiency challenge of finding £20 billion, is it being diverted by this disruptive reorganisation? Why are millions of pounds being wasted on redundancies and the set-up costs of the new system? And why, when the Government inherited the NHS in the best condition it has ever been, are they tearing the whole service up by its roots?

I say to the noble Earl and the noble Lord, Lord Alderdice, that I did not recognise the health service that he talked about. We should go back to 1997, when we inherited the Conservatives’ Patient’s Charter. Noble Lords may recall that this aimed for a maximum of 18 months’ wait for hospital appointments. They could never achieve it, but we did—and more. Eighteen months tumbled to 18 weeks—a crumbling edifice was transformed into hundreds of new hospitals and there was a major emphasis on improving health outcomes.

We developed the Expert Patients Programme, national service frameworks to improve integration of services, and accessible services such as walk-in centres and NHS Direct. I do not apologise for referring to what my noble friend Lord Winston said about the verdict of the US think tank, the Commonwealth Fund. It singled out the NHS as top of the class, in the one country where wealth does not determine access to care, since it provides the most widely accessible treatment at low cost. I must say I was very disappointed that, when the noble Earl’s department was asked to comment on that assessment, instead of lauding the achievements of the NHS, it scratched around to identify problems. That was very disappointing indeed.

Yesterday, in his careful speech, the noble Earl sought to justify the Bill because of rising demand and treatment costs, and the need to improve efficiency and outcomes in areas such as stroke and some cancers. He is right; these are considerable challenges. But I repeat the question asked last night by his noble friend Lord Tugendhat: why did he not build on what he inherited? It was the Labour Government who enshrined patient choice in the NHS constitution; we introduced practice-based commissioning. Let me say to the noble Lords, Lord Kakkar and Lord Alderdice, that our disagreement with the Government is not about patient choice, it is certainly not about clinical involvement—I absolutely agree on the need for this—and it is not about devolved decision-making. My whole argument is with this expensive and bureaucratic reorganisation that they have determined on.

We all watched with interest the listening exercise and the deliberations of the NHS Future Forum, led by Professor Steve Field. It is true that the Government produced loads of amendments at a late stage in the other place. The problem is that those amendments, when combined together, proved to be of little substance. Let us take the Secretary of State’s responsibilities to provide comprehensive services. In this Bill, the Government will continue to water down those responsibilities. The noble and learned Lord, Lord Mackay, described that as foundational. Yesterday, the noble Earl said that the fact that the Secretary of State delegates so much responsibility to other bodies shows that the current legislation is not fit for purpose. The fact of that delegation is recognition of the Secretary of State’s responsibility to Parliament for the spending of more than £120 billion a year. When trouble arises, whether it is a public health disaster such as BSE, or perhaps a clinical safety issue such as occurred at Mid Staffordshire NHS Foundation Trust, it is the Secretary of State whom we look to to account to Parliament.

I understand why some noble Lords are attracted to this part of the Bill; they want to take politics out of the NHS and they want to prevent micromanagement by Ministers. But some of us are old enough to remember the glory days of the nationalised industries and the tension between the chairman of the board and the Minister responsible. In the end, it was the Minister who was always held responsible by the public. I thought the noble Lord, Lord Mawhinney, put his finger on it yesterday. He complained to Ministers through a parliamentary Written Question about the merger of local primary care trusts, and he found his complaint referred back for an answer to the very official who had driven that decision in the first place. The noble Lord had better get used to this because that is the architecture contained in this Bill. It is about Ministers evading their responsibilities. In the end, I would rather be overseen by a Minister properly accountable to Parliament than by a quango whose accountability is somewhat tenuous.

Despite the Future Forum, a huge gamble is to be taken with clinical commissioning groups. Billions of pounds will be given to GPs, without any proper accountability to the public or any expertise in major commissioning decisions. The doctor-patient relationship goes to the heart of general practice, but neither the Future Forum nor the Government seem to show any signs of understanding the ethical tension between the role of GP as champion of the patient and the role of GP as rationer of services through commissioning; and neither will patients. What are the potential conflicts of interest if the clinical commissioning group places contracts with GPs in their group, or the use—as we saw last week at the Haxby Group Practice in Yorkshire—by GPs of their NHS patient list to promote their own private services? What does that do to the doctor-patient relationship?

Then we come to the issue of competition and the role of the private sector. I agree with my noble friend Lord Hutton that both have their place in the NHS, provided that they are properly managed. I have no problems with that at all, but I do not want to see destructive competition put at risk essential collaboration between neighbouring hospitals or the cherry-picking of services, which could harm the viability of many of our NHS services. Nor do I want to see the loss of the altruism that is characteristic of so many people in the NHS. My noble friend Lady Kingsmill, former deputy chairman of the Competition Commission, said yesterday that competition red in tooth and claw has its limits. Does the noble Earl agree with that? On the issue of competition and the use of the private sector, at heart it is a question of trust, and in essence the Government are simply not trusted. I, too, share the concern raised by the noble Lord, Lord Clement-Jones, that European competition law could bite in unexpected ways.

There is also real confusion about the role of the economic regulator Monitor. Yes, the Government have nuanced the role of the regulator, but it is still to be given anticompetitive responsibilities. As the King’s Fund has said, concerns remain about the extent of competition in the future NHS and its impact on integrated care, let alone on its relationship to social care. So the Future Forum has not changed the core principles. All that has happened is tinkering at the edges while sowing the seeds of great confusion in the NHS. We see a huge absorption of power by that giant of all quangos, the NHS Commissioning Board, so it is now going to get a massive slice of the commissioning budget, strong control of the clinical commissioning groups and direct contracting with every single GP, dentist, ophthalmologist and pharmacist in the country— thousands and thousands of them, all in contract with the NHS Commissioning Board. I am a great admirer of Sir David Nicholson, but I am alarmed by the lack of accountability of the board. It does not even need to meet in public.

This is just one aspect of a confusing and flawed architecture. What about the joint responsibility of the Commissioning Board and Monitor, the economic regulator, for tariff setting? It is clouded in ambiguity. What will be the relationship between Monitor and the quality regulator, CQC? With money tight and getting tighter, there will be an inevitable tension between the financial health of an institution and the safety and quality of services. Who will moderate that tension?

We now have the Francis inquiry into the mid-Staffs NHS trust. I would have thought that it might have important things to say about that. I would ask the Minister whether it would not be prudent to await that before rushing into these problematic changes.

We then come to the local level. Here the architecture is even more confusing. The King’s Fund has said that the major reconfiguration of hospital services is urgently needed for clinical and financial reasons. These are the real reforms that are needed today, but who will give them a green light? Yesterday, the Minister accused the last Government of creating layers of administration. That is a bit rich when you look at what he and his colleagues have created. Which body will sign off the reconfiguration of services at the local level? Is it to be the putative clinical commissioning groups, yet to be authorised, or the existing primary care trusts, or the extra-statutory clusters of PCTs that have assumed enormous power to themselves, or perhaps the local offices of the NHS Commissioning Board, which are an inevitability? What about the commissioning support units, another initiative, which apparently are to be set up in each area to support the clinical commissioning groups in their commissioning responsibilities, or the local authority health and well-being boards, which will be given enhanced roles in relation to commissioning, or perhaps the local authority overview and scrutiny committees, which will still be able to refer major service changes? The clinical networks will presumably want a say, and the clinical senates will certainly want to get involved.

The Minister said that he wanted to reduce bureaucracy and remove the vacuum in decision-making. These provisions do the opposite; they have created a monster where opportunities for delay and buck-passing will be legion. No wonder that almost every noble Lord who has spoken has called for more scrutiny. Should the noble Lord, Lord Owen, put his Motion to the vote, we will certainly support him.

I listened with great interest to the noble and learned Lord, Lord Mackay, who argued that because this issue of the powers of the Secretary of State are foundational, as he described it, if we were to accept the Motion proposed by the noble Lord, Lord Owen, it would be difficult to deal with the rest of the Bill, because a vacuum would be there. But there is plenty for us to debate were the noble Lord, Lord Owen, to be successful. I would pray in aid the police Bill. The noble and learned Lord will recall that on the first debate, on the first day of Committee, the House voted to take out essentially the core clause in the Bill. We had many happy days debating the rest of the Bill, and I do not think that your Lordships found themselves at all inhibited by that.

Even at this late stage, I hope that the Minister will get up and say that he will accept the Motion from the noble Lord, Lord Owen. The Opposition are quite happy to agree with the usual channels the number of days that the Bill should be in Committee and we are quite happy to agree a date by which Committee stage should be completed. You cannot say fairer than that. I urge the Minister to accept that offer. Of course, it would be better if we had no Bill at all. Last week, 400 doctors and other medical professionals wrote to the Telegraph. They said:

“The Bill will do irreparable harm to the NHS … It ushers in a significantly heightened degree of commercialisation and marketisation that will fragment patient care; aggravate risks to individual patient safety; erode medical ethics and trust … widen health inequalities”,

and, waste much money”. And that was just the first paragraph.

That great Liberal, Sir William Beveridge, in his 1942 plan, envisaged a National Health Service covering all medical treatments. Aneurin Bevan presented his proposals in 1946, in this very Chamber, though in another place, and said that the NHS would,

“relieve suffering. It will produce higher standards for the medical profession. It will be a great contribution towards the wellbeing of the common people of Great Britain”.—[Official Report, Commons, 30/4/46; col. 63.]

The NHS has done this magnificently.

This morning, I and my colleagues received from 38 Degrees a petition containing over 135,000 signatures collected in a very short space of time asking this House to protect the NHS and to ensure that the Bill gets proper scrutiny. That is but one small reflection of widespread concern in the community and the NHS. Yes, the noble Lord, Lord Fowler, is right; there have been concerns before, when he was Secretary of State. Indeed, I hope that I was quite successful in orchestrating some of those concerns. But this is different. The scale of concern and mistrust among the public and the NHS is greater than I have ever known it before. Only this House now stands between safeguarding the NHS and these confused and damaging proposals. I hope that we will not fail the test that has been set us. I shall support my noble friend in the Lobby.

13:16

[Earl Howe]

I rise to conclude an excellent and constructive debate. It has been long, and the task that rests with me in summing it up in the space of 20 minutes is clearly an impossible one, if I am to do justice to every speaker. Therefore, I hope that the House will find it acceptable if I aim in my response to capture the main themes of this debate and to write to noble Lords whose specific and detailed questions I do not have time to answer. In addition, I am happy to offer any the noble Lord a meeting with me or with officials from the Department of Health to discuss any of the issues that they have raised.

To begin with what might seem an emotional and emotive point, it was said by more than one speaker, including the noble Lord, Lord Hennessy, this morning, that the NHS is the nearest thing that this country has to institutionalised altruism. That is surely right. It is equally right that the NHS is a part of our national life, of which we can be deeply proud. At its best, which is often, it delivers high-quality excellent care. The investment made by the previous Government has contributed significantly to that.

A number of noble Lords asked why, therefore, the Government’s reforms are needed at all. Part of the answer to that is about the clear imperative around the quality of care, about which the noble Lord, Lord Darzi, and my noble friend Lord Black spoke so powerfully. Indeed, we have excellent care in the NHS, but sadly this is not universal. The variations in quality and outcomes and longevity around the country are too great for us to sit back and do very little. But there is another less visible reason. In a sense, the need for reform is not about how excellent the NHS may be today; it is about our making sure that in five, 10 and 20 years’ time the NHS is still there as a sustainable public service, free at the point of use, delivering the care that we all want it to.

The financial challenge facing the NHS is acute. We have protected its budget in real terms, but that is not going to be enough to meet demand from an ageing and growing population unless we take some radical steps to simplify and streamline the NHS architecture and to free up the service from central control in a way that will drive innovation and productivity as never before. That is the purpose of these reforms and this Bill. It is not just about today; it is about safeguarding the future. If I had one criticism of some of the contributions from the Benches opposite it was of their failure to acknowledge the scale of the financial and quality challenge that now faces us. Money will no longer grow on trees in the NHS; we have to think out of the box. So we are seizing on the evidence of what works in order to drive quality—namely, empowering commissioners. We are cutting the cost of NHS administration by one third, and we are trusting the men and women of the health service—including, incidentally, our many excellent managers—to deliver what we know they can, which is an even better service for their patients. And make no mistake—there are doctors and nurses and managers out there who are keen to get to grips with this. Yes, of course, there are many who have no appetite for change, and there are many critics and doubters. But I have met so many clinicians that I cannot count them, who believe that what we are doing is right, and who are being inspired by these reforms to lead the way in the local pathfinder groups and in local authorities.

The NHS needs continual renewal. It has never stood still, and it cannot do so now. The noble Lord, Lord Darzi, put it perfectly when he said:

“To believe in the NHS is to believe in its reform”.

Many speakers, most prominently my noble friend Lady Williams and the noble Baroness, Lady Jay, have spoken about accountability in the role of the Secretary of State. For me, the debate on this topic crystallised into two issues. A number of speakers aligned themselves with the Select Committee on the Constitution in questioning why we have removed the Secretary of State’s duty to provide. There has been concern that this means that the Minister’s ultimate accountability for the NHS is in some way diluted. I can reassure the House that this is not so. A change as pointed out by several noble Lords, including the noble Lord, Lord Warner, and my noble friend Lady Bottomley, as well as the noble Baroness, Lady Murphy, is to reflect a fact which has been the case for many years; namely, that the Secretary of State does not directly provide services himself.

Under the Bill, the Secretary of State will continue to have a statutory duty to promote a comprehensive health service, and a duty to use his powers to secure the provision of the service. As has been the case for decades, it does not extend to the Secretary of State directly providing services. So rather than pretend that somehow the Secretary of State is responsible for all clinical decision making in the NHS, the Bill recognises that expertise for such decisions must sit with those health professionals closest to patients. Indeed, my noble friend Lord Marks put it well when he pointed to the means by which Secretaries of State will be able to do this; namely, the mandate to the NHS Commissioning Board, the standing rules, and the failure intervention powers. I may say that the improvements that my noble friend suggested to these powers sounded interesting to me, and I look forward to discussing these with him in greater detail at a later date.

The noble Lord, Lord Owen, asked what would happen in the event of a pandemic. If I could direct the noble Lord to Clause 44 of the Bill, he will read of the extensive powers the Secretary of State has to take control in an emergency—and this even extends to foundation trusts, which is a power not available to Ministers today.

The second issue raised with regard to the Secretary of State turns us to Clause 4, the duty of autonomy, and I am sorry that what I have said on this has been the subject of concern. My noble friends Lady Williams and Lord Marks highlighted this clause as raising the possibility that it will lead to an unacceptably hands-off approach on the part of the Secretary of State. We do not think that that is the case. However, I would like to repeat the commitment made by my honourable friend the Minister for Care Services at Report stage in the other place, about Clause 4, namely that,

“we are willing to listen to and consider the concerns that have been raised and make any necessary amendment to put it beyond doubt that the Secretary of State remains responsible and accountable for a comprehensive health service, which we all want to see.”—[Official Report, 7/9/11; col. 454.]

If there is an amendment which will improve the Bill, we will make it. This offer stands, irrespective of how the House votes on the amendment tabled by the noble Lord, Lord Owen, and I hope that this gives reassurance to those who have been concerned on this point. I also today commit to host a meeting with all interested Peers—including the noble and learned Baroness, Lady Scotland, if she wishes—to discuss any matters around accountability further so that we can all better understand each other’s positions and concerns, but also inform Committee discussions on these vital issues.

The second concern I would like to turn to is that of competition. Many speakers, such as the noble Baronesses, Lady Kennedy and Lady Billingham, fear that the Bill could lead to an American-style market free-for-all, with competition harming patients’ interests. Others, such as the noble Baroness, Lady Murphy, have claimed that we are actually doing too much to shackle the benefits of competition, and that we should look at removing some of the safeguards that we have put in place.

Let me be clear about what the Bill does and does not do. The Bill does not introduce a free market for all. It does not change competition law, or widen the scope of competition law. It does introduce a framework in which competition can be effectively managed as a means to benefit patients. That competition can work in the interests of patients is well backed up by academic research, such as the studies quoted by the noble Lord, Lord Warner, on mortality rates, and by noble friend Lady Cumberlege on inequalities. The Bill does not do anything which might or could lead to the privatisation of the NHS. What it does do is create a level playing field between different providers, putting an end to the subsidies and guarantees given to the private sector under the last Government.

The Bill will not mean that competition will trump integration. The safeguards and duties that it places on Monitor, in particular its core duty towards the interests of patients, will ensure that Monitor supports integration. The balance that we have struck in this Bill, once more returns to the North Star—that graphic metaphor from the noble Lord, Lord Kakkar—namely, patients. We believe that competition has a place, but only as a means to an end, the end being to improve quality and efficiency.

The noble Lord, Lord Darzi, made the case, as usual, very strongly, by talking of competition as a means to spark creativity and light innovation. However, it does require safeguards to ensure that other factors such as integration, service continuity and the prevention of cherry-picking are given due weight—and those safeguards are there.

I turn next to concerns raised that the Bill creates too much complexity, meaning that care will be fragmented, and decision-making harder to achieve, and we heard that concern expressed this morning by the noble Baroness, Lady Pitkeathley. Let me first be clear about the different organisations abolished and created by this Bill. The Bill abolishes the 151 primary care trusts, half of the national arm’s-length bodies, and the 10 strategic health authorities. It establishes clinical commissioning groups which are currently growing out of existing practice-based commissioning groups. Likewise, local HealthWatch will build on existing local involvement networks, and HealthWatch England will be situated within the Care Quality Commission. I can reassure the noble Lords that the Bill contains a number of mechanisms to ensure independence of HealthWatch both locally and nationally. Monitor will be expanded to become a provider regulator, and the NHS Commissioning Board, led by Sir David Nicholson, will be a new body, but it will draw on the best aspects of a range of departing organisations. We envisage that it will host the existing clinical networks and the new advisory clinical senates.

Concerns were raised that the board could have too much power over commissioning groups. I genuinely agree that the Bill contains sufficient safeguards against this, but I do of course look forward to discussing this issue further. Overall, administration costs across the health system will be cut by one-third in real terms by 2014-15—this will save £4.5 billion by the end of the Parliament alone—all to be reinvested in front-line patient care.

A number of noble Lords have asked who takes the decisions. This Bill represents a significant step forward by directly conferring responsibilities in statute, rather than having them all delegated in an opaque way through the Secretary of State. This clarity extends to how different organisations should work together and the Bill contains significant new provisions regarding collaborative working. In her opening remarks, the noble Baroness, Lady Thornton, expressed her support for health and well-being boards, which will be hosted by local authorities. Other speakers have endorsed the plans for joint strategies to be determined and agreed by all relevant local services. Many speakers have raised service configuration, which we can happily debate. However, I believe that the Bill supports effective, clinically led reconfigurations led locally but with the NHS Commissioning Board playing an important leadership role.

A number of speakers spoke about particular service areas within the NHS and how the reforms would impact on them. Let me start by reassuring noble Lords that those working in general practice will not be commissioning in isolation. Clinical commissioning groups must obtain appropriate advice from a broad range of professionals. This would, for example, include experts in mental health, children’s health, learning disabilities or other areas as appropriate. Given this duty to obtain advice, we do not think that it is necessary to expand the membership of clinical commissioning groups’ governing bodies further than is currently set out in the Bill, which was a suggestion made by a number of speakers, including the right reverend Prelate the Bishop of Bristol. Indeed, if all the additional representatives suggested in this debate alone were to join the governing body it would quickly become unwieldy and unworkable. Clinical advice would also come through other forms, such as clinical networks, which I can confirm to my noble friend Lord Clement-Jones will continue, and new clinical senates. These mechanisms should ensure that specialist advice at all levels of the NHS is there. They are not extra layers of bureaucracy.

Many speakers have stressed the importance of public health and health inequalities and the changes proposed by this Bill. I completely agree that these are fundamental issues. Our plans seek to create a new focused approach for public health, protected by a ring-fenced budget. The noble Baroness, Lady Gould, asked a range of questions about the detail behind our arrangements and I will respond to her in writing. But in terms of inequalities, this Bill, for the first time, puts in place specific duties on key relevant bodies to act with a view to reducing health inequalities. That should surely be seen as welcome.

One or two noble Lords, including the noble Baroness, Lady Royall, raised the removal of a foundation trust private income cap and feared that it could lead to longer waiting lists for NHS patients. I am confident that it would not have this effect. My right honourable friend the Minister for Health said on Report in the other place that,

“we are proposing to explore whether and how to amend the Bill to ensure that FTs explain how their non-NHS income is benefiting NHS patients. We will also ensure that governors of FTs can hold boards to account for how they meet their purpose and use that income”.—[Official Report, Commons, 6/9/11; col. 289.]

I hope that provides some reassurance. I look forward however to further debates on that issue.

The future of both education and training, and research, were raised by a number of speakers. The noble Lord, Lord Walton, and my noble friend Lord Willis spoke passionately about the benefits of research. The noble Baroness, Lady Masham, and my noble friend Lord Ribeiro spoke equally passionately about innovation. As Minister responsible for research and innovation, I fully share this passion and I hope that I can reassure noble Lords that we are taking all necessary steps to ensure that we act quickly on taking forward the report of the Academy of Medical Royal Colleges, including future legislation.

Such legislation will also take forward the future arrangements for education and training but I can confirm to the House that we will table a new duty for the Secretary of State with regard to education and training in time for Committee. In addition, as both issues have attracted so much interest, I will ensure that new fact sheets on both topics are produced by officials in the Department of Health and made available prior to Committee. Again, my door is open to noble Lords to discuss any or all those issues.

Several noble Lords called for healthcare assistance to be given full statutory regulation. While I accept the need for action in this area, I cannot agree that statutory regulation is the best way to proceed. Our view is that employers of such workers have to take responsibility for the quality of services provided, including the use of existing systems. In addition, when tasks are delegated by qualified professionals, this has to be done with appropriate and effective supervision. I am of course more than willing to discuss this issue further as the Bill proceeds.

I turn now to the procedural concerns raised during the debate and to the Motions tabled by the noble Lords, Lord Owen and Lord Rea. First, a number of speakers questioned what they call the democratic mandate for this Bill claiming that the Bill’s proposals were not in manifestos or the coalition agreement. Both these claims are untrue, as any quick read of these documents will show.

What is true, as my noble friend Lord Rodgers pointed out, is that sheaves of documents covering every detail of policy were set out in July last year when we published the White Paper and associated consultation documents. This was followed up by a period of public engagement, a lengthy Government response, the listening exercise in the spring of this year and 40 sittings in Committee in the other place. At all stages, we have been open and transparent about our plans. This approach will of course continue and I welcome the proposal of the noble Lord, Lord Kakkar, in terms of ensuring effective post-legislative scrutiny. I can confirm today that while five years would normally elapse prior to post-legislative scrutiny of a Bill, we will bring that forward for this Bill to three years. As a result, I simply cannot accept the amendment in the name of the noble Lord, Lord Rea. I respectfully suggest to your Lordships that to vote for that amendment would run directly counter to the proper role and functions of this House.

Secondly, concerns have been raised about what has been seen as implementation of the Bill’s proposals prior to Royal Assent. I suggest that this fear is unfounded. Preparatory work is ongoing to implement the Government’s plans, such as the creation of clinical commissioning group pathfinders. This is all within the current legal framework. However, such powers can get the reform only so far; hence the need for this Bill. For example, while early implementers of health and well-being boards are emerging all over the country, until this Bill is passed they lack all the statutory powers that we think are essential for them to operate.

Finally, I turn to the Motion in the name of the noble Lord, Lord Owen. I do not feel that a further Select Committee would add significant value to our normal processes. A Committee of the Whole House with all interested Peers, including constitutional experts in attendance, would in my view be the best forum to ensure effective and thorough scrutiny. Perhaps I may say that this Second Reading debate has amply proved that. My noble friend Lord Rodgers put it well in saying:

“The House is now able to make fully informed decisions … we should not duck … them further”.—[Official Report, 11/10/11; col. 1543.]

Furthermore, I agree with my noble and learned friend Lord Mackay of Clashfern that the early clauses of this Bill, which cover the Secretary of State’s duties and powers overarch the rest of the Bill. It is right for a Committee of the Whole House to consider them at the outset of the deliberations.

I engaged in discussions with the noble Lords, Lord Owen and Lord Hennessy, to see if there was a way to accommodate their proposals for a special Select Committee. The only way, I feel, that such a novel procedure could work would be to put a clear end point on both the Select Committee and the Committee of the Whole House. It is not sufficient to put a time limit solely on the Select Committee. This Session, all pre-legislative scrutiny committees set up in this House have required time extensions.

While the noble Lord, Lord Owen, says in perfectly good faith that the committee will report before Christmas, there is no way in which this House can make that truly binding without an end date on both committees. The key point is that if the Select Committee needed more time or if it recommended amendments affecting parts of the Bill—

[Lord Peston]

Is the Minister certain that there is no way that the amendment to which he refers can be made to work so that the job gets done in time? That bears no resemblance to my knowledge of how this House works. The House can end things at any time it wants to.

[Earl Howe]

My Lords, that is the firm advice that I have received.

[Lord Hunt of Kings Heath]

My Lords, in my experience, if this House wants something to happen it finds a way for it to happen. Even at this late stage, I ask the noble Earl to give careful consideration to this. I have already said from this Bench that we are happy to meet through the usual channels to agree a date by which the Committee stage will be finished on the Floor of the House. I am sure that the noble Lord, Lord Owen, as far as he is able, will wish to say that he is happy for the special committee to finish by a certain date. I do not believe that it is impossible for agreement to be reached on this.

[Earl Howe]

My Lords, I very much welcome that offer, which has come rather late in the day. My understanding is that discussions over the timetabling of the Bill have taken place over the past week. However, we are faced with the amendment that is on the Order Paper and must vote on it as it stands.

[Baroness Royall of Blaisdon]

I beg your Lordships’ pardon but I have to say that we are and have been entirely open to this suggestion. I was not aware of it until yesterday. I give the House my pledge that the Bill will come out of Committee by mid-January, which is, I think, when the noble Earl was thinking of. We should be delighted to give our firm assurance that the Bill will come out in mid-January.

[Earl Howe]

My Lords, that is an extremely welcome offer, which we accept. I am grateful to the noble Baroness.

It is right for me to conclude, with your Lordships’ agreement. I bring this extended debate to an end by returning to the point of the Bill, which is to improve the quality of care for patients. For all the generosity of the noble Baroness’s offer, the amendment of the noble Lord, Lord Owen, would not help patients. It would insert additional uncertainty into the parliamentary passage of the Bill. As my noble friend Lord Fowler rightly emphasised, the amendment of the noble Lord, Lord Rea, would leave the NHS in far greater uncertainty. It would also leave it unprotected from both the present and future challenges that it faces.

13:42

[Lord Rea]

My Lords, after our marathon debate, I congratulate the noble Earl on his continued clarity and stamina, and the same applies to my noble friends Lady Thornton and Lord Hunt. Time presses, so I shall be very brief, although there are a thousand things that I would like to say in reply to the Minister and to those who have spoken.

I have sensed widespread unease about the Bill among your Lordships, and this alone would be enough to justify my calling for a Division. However, more than that, like all your Lordships I have also heard a tumultuous call from the country not simply to amend the Bill but to reject it entirely. I think that the Bill is virtually unamendable—certainly in the timetable that we have been offered, even if it were extended, and even if the amendment of the noble Lord, Lord Owen, were accepted. Whole swathes of the most senior members of my profession want the Bill to be sent back to the drawing board so that the National Health Service can get back to work without a sword of Damocles hanging over it. How can the Minister expect to get high productivity from a disaffected workforce?

I end by quoting Sir Roger Boyle, the retiring National Director for Heart Disease and Stroke, whose work was praised by my noble friend Lady Andrews yesterday. He says:

“All the improvements in cardiovascular care have come from collaboration and leadership. Where is the evidence that competition between commercial providers makes a blind bit of difference to cost efficiency and quality? The competition I want to see is between clinicians vying with each other over whose service is the best. If you try and improve care by getting United Health to provide the service that would be crazy.

I absolutely think the NHS is the best public service in the world. It is horrific that its future is threatened”.

I ask noble Lords to accept my amendment, which asks the House to decline to give the Bill a Second Reading.

13:45

Division 1

Ayes: 220

---

Labour: 189
Crossbench: 21
Liberal Democrat: 2
Bishops: 1
Ulster Unionist Party: 1
Independent: 1
Plaid Cymru: 1

Noes: 354

---

Conservative: 188
Liberal Democrat: 77
Crossbench: 68
Independent: 4
Bishops: 3
Ulster Unionist Party: 2

Bill read a second time and committed to a Committee of the Whole House.

14:07

[Earl Howe]

My Lords, I beg to move that the Bill be committed to a Committee of the Whole House.

Amendment to the Motion

Moved by

[Lord Owen]

As an amendment to the above motion, at end to insert, “and that a Select Committee shall be appointed to examine and make recommendations to the House on the issues raised by the 18th Report of the Constitution Committee, namely the Government’s and Parliament’s constitutional responsibilities with regard to the NHS, in particular to clarify (a) the extent to which the Secretary of State remains responsible and accountable for the comprehensive health service, and (b) individual Ministerial responsibility to Parliament, and to report on the extent to which legal accountability to the courts is fragmented; that this House requests that the services of Parliamentary Counsel be available to the Committee; and that the Committee shall report no later than 19 December 2011.”

[Lord Owen]

I shall try to be as brief as I can, but it is worth reminding the House that the procedure which I am advocating is not without precedent. On 8 March 2004 on the Constitutional Reform Bill, a Motion was moved by the noble and learned Lord, Lord Lloyd of Berwick, to leave out after,

“a Committee of the Whole House”,

and insert “a Select Committee”. I cannot avoid a little teasing by saying that the noble Earl, Lord Howe, voted for the Motion. Indeed, before he starts laughing, so did the Leader of the House, the noble Lord, Lord Strathclyde, and the noble and learned Lord, Lord Mackay of Clashfern, a man I have the utmost respect for and who has given a very compelling speech, voted for it too.

[Lord Mackay of Clashfern]

If I may say so, that was about committing the whole Bill to a Committee of the whole House and it is not, I think, a precedent for what the noble Lord is advocating now. It was quite different.

[Lord Owen]

I do not want the noble Lord, Lord Newton of Braintree, to escape either. Let me deal with that question. If we had moved this amendment regarding the whole Bill, everybody would have said that it was a blocking mechanism. Everybody would have said that we were effectively voting against Second Reading. It will not, I hope, have escaped the notice of noble Lords that I did not vote against Second Reading. Were I ever to vote against a Bill in this House, it would be after we had examined it and it is that examination which is now the question. Can we improve the Bill? So we entered into discussions to find a new way of dealing with it—it was done by my noble friend Lord Hennessy—and, to cut it very short, we reached a basic agreement on Wednesday night. We were asked to let the Government take this into consideration and we waited. In retrospect, we should probably have put the Motion down on Wednesday night.

We met again with the Leader of the House at 3 o’clock on Monday. The Leader of the House said, perfectly reasonably, that he could go along with this as long as he knew that the Bill would not be delayed. My noble friend and I said we thought it was absolutely reasonable that to protect the business of the House they wanted this Bill before the new Session. We had already made it clear that this would have to be reported out from Select Committee by 19 December, and that was acceptable. The clerks tell me they have to report it out. They may say they want more time but there has to be a report. So I think we have dealt with one of the problems.

The other problem was that we were not able to commit the House to the other date, which was when it would come out of the House. The shadow Leader of the House has made it very clear that if this Select Committee procedure went through, this Bill would finish its processes and come out by the middle of January. She was also generous enough to say that she would go along with a timetabling Motion that would not detract from the days given to debate on this. As far as possible, I thought it was understood that it would not detract from the days that were overall given to this House. It is for her to say, of course, because these are not matters that a Cross-Bencher can or should be involved in. However, it is reasonable for this House to explain that it needs a lot of consultation and a lot of time for this Bill. I am not going to get into the timing directly—maybe the shadow Leader would like to.

I would like to explain a little bit more about the thinking of my amendment and deal with the point about it being exceptional. When that Constitutional Reform Bill was referred, parliamentary counsel was made available to it. That is why in this Motion, and again it was discussed, we ask—because we can only make a request, but the noble Earl, Lord Howe, made it pretty clear that he would support it—that the services of parliamentary counsel would be made available.

Let me deal with the question of whether this is a better procedure than just leaving it to the normal procedures of the House, on the Floor. The most reverend Primate was correct when he argued why a Select Committee procedure would be the best way. A number of amendments need to be made to the Secretary of State’s powers and they have to be connected. It is a very complex and very long Bill. It is worth saying that this needs very careful study.

Now, what is this issue? The third leader in the Times today is entitled:

“The Bedpan Problem: Who’s in charge of the NHS?”

We all know the famous remark made by Aneurin Bevan that if a bedpan is dropped in a hospital corridor the reverberations should echo around Whitehall. We all know that this is an issue that has long faced the NHS, since 1948, and we all know that increasingly, with its complexity, size and the changes in medicine, the Secretary of State for Health could never manage the health service. I have made it clear that I think this problem has to be dealt with and some adjustment of what is said, even in the 2006 Act, might not be unreasonable, but it would have to be coherent; it would have to be put together by parliamentary draftsmen who know the Bill. I think that would cut down the amount of time we might wish to spend on the Floor of the House on this particular issue. Goodness knows, there are a number of other issues that will need a lot of time to give this full coverage.

Those noble Lords who genuinely think that they will get more out of a procedure on the Floor of the House should look at what happened to the amendments that were moved in Committee in the House of Commons on this question. Not a single one was accepted in the initial stages; it was only when the pause took place. That is already unprecedented. I agree there should not be delay but a matter of a week or two is a little rich coming from a Government who are responsible for taking it out of Committee in the House and having a long consultation. I praise the work of the forum.

The medical profession has had a good go at this Bill and I am not complaining about that. I do not want to be on the Select Committee myself. The work should be carried out by people with a legal frame of mind and a constitutional frame of mind who are used to looking at a Bill as a whole and trying to bring some coherence to it. That is what lay behind the thinking of myself and my noble friend Lord Hennessy.

This is not a delaying measure. If I was opposing the amendment, I would be saying that it was a delaying measure but it is clearly not. Two dates have been agreed. If it goes to a Select Committee, it has to report back by 19 December and if it goes to the Floor of the House simultaneously that will not cause delay. The shadow Leader of the House has given her word that in those circumstances—she stressed “in those circumstances”—the Bill would come out by the middle of January. There is no delay so let us not have that argument. It is a perfectly fair argument for people who wish to spend time on the Bill purely on the Floor of the House. I believe that this proposal would supplement the scrutiny of this Bill.

There is another issue I wish to draw attention to, particularly for those who have not been in the debate. We need to remember that an all-party Select Committee of this House unanimously reported to this House its concerns about this Bill. Those words and its concerns are reflected in my amendment. They are not my words—they come directly from the Constitution Committee. We also had on the morning of the debate a letter from the noble Earl, Lord Howe, which should be read by those who think that by using normal procedures changes will be made on this issue. He said about the Bill,

“the Government does not believe that this in any way diminishes ultimate ministerial accountability or responsibility for the NHS. Indeed we believe the measures set out in it strengthen and make accountability and responsibility clearer than it has ever been. We do not consider any amendments necessary to put this matter ‘beyond legal doubt’”.

You have to be a super-optimist if you think that you are going to get great changes. Only the weight of an all-party and probably unanimous Select Committee will give the weight to make this change.

14:15

[Lord Ashdown of Norton-sub-Hamdon]

I apologise to the noble Lord and the House for not being here yesterday to listen to the debate. A member of my family spent yesterday in the care of the National Health Service and I felt it was more appropriate that I was with her than here.

The case by the noble Lord that lies behind this amendment is that a Select Committee is better than the Floor of the House in dealing with a Bill that comes to us which is defective in certain ways. He draws a comparison with the House of Commons but surely that does not take into account that the House of Commons is not constructed as we are constructed and does not have the same role as we have. Our role is as a revising Chamber. I say to the honourable Gentleman—forgive me, I mean the noble Lord—that I find it difficult to understand why a Select Committee of which few of us can be members will be better at holding this Bill to account than dealing with it in the circumstances of this House where all of us can be involved.

Here is the question. If it is the noble Lord’s case that a serious and complex Bill brought to us in a defective manner from the House of Commons is not able to be dealt with on the Floor of this House but must go to a Select Committee, what on earth is our function?

[Lord Owen]

It would have been easier if the honourable Gentleman—I mean the noble Lord; I am used to thinking of him in another place—had been able to spend the time here and heard the debate. I do not want to delay the House. I gave way to him because, as a former Leader of the Liberal Democrats, it is important that his voice should be heard but this is a question for the House as a whole and I do not wish to delay any longer. I leave this for the judgment of the House.

[Baroness Royall of Blaisdon]

My Lords, I crave the indulgence of the House to confirm one point that was clarified by the noble Lord. I do not advocate any timetabling Motion: that would not be appropriate for the House. I give the assurance that, were the noble Lord’s amendment to be agreed, my Benches would wish the Bill to be out of Committee by mid-January. However, if the amendment is not accepted, it will be right and proper for the usual channels to discuss the appropriate number of days needed in the light of this excellent Second Reading debate. I cite the excellent speeches made by many noble Lords, including the wise words of the noble Lord, Lord Walton of Detchant, who spoke before me last night and who said that enough time must be given. He is absolutely right. I have no intention of delaying the Bill. My intention is to ensure that there is proper agreement between the usual channels on the appropriate amount of time that the Bill needs in Committee.

[Earl Howe]

My Lords, I will make three very brief points. The provisions that the noble Lord, Lord Owen, asks us to send to a special Select Committee affect the entire Bill. The twin-track approach that he advocates carries a major risk: the potential disconnect between the special Select Committee and the Committee of the whole House. The Select Committee might recommend amendments to parts of the Bill that have already been debated by the Committee of the whole House. The result could be that, notwithstanding the offer made in good faith by the noble Baroness, Lady Royall, we could see a slippage of the timetable of the Bill that would be most unwelcome.

I repeat my assurance that I am entirely open to considering the concerns that have been raised about the issue and to make any necessary amendment to put it beyond doubt that the Secretary of State will remain responsible and accountable for a comprehensive health service.

14:22

Division 2

Ayes: 262

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Labour: 194
Crossbench: 46
Bishops: 4
Democratic Unionist Party: 3
Independent: 3
Liberal Democrat: 2
Ulster Unionist Party: 1
Plaid Cymru: 1

Noes: 330

---

Conservative: 189
Liberal Democrat: 78
Crossbench: 49
Independent: 4
Ulster Unionist Party: 2

Bill read a second time and committed to a Committee of the Whole House.

14:41

Sitting suspended.

Rural Payments Agency

Wednesday 12th October 2011 Lords Chamber

Question

15:00

Asked By

[Lord Renton of Mount Harry]

To ask Her Majesty’s Government whether they consider that the work of the Rural Payments Agency is being of assistance to the farming industry.

[Lord Renton of Mount Harry]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and I declare an interest.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach)]

My Lords, the RPA undertakes a number of important regulatory functions, including livestock tracing and inspections, as well as making payments totalling £2.2 billion each year to farmers and traders, supporting sustainable agriculture and the countryside. Over the past year, important steps have been taken towards turning the RPA into the customer-focused agency we all wish to see. Costs have been reduced while customer satisfaction scores have increased, and good progress has been made in tackling some of the legacy issues.

[Lord Renton of Mount Harry]

I thank my noble friend the Minister for that. I agree with him that the Rural Payments Agency, which used to be chaotic, is a good deal better and more sensible now than it was then. One could go further. Perhaps I could suggest to him that the big question now for the RPA and for Defra should be: how will British farmers be affected in the common agricultural policy reform that will happen in two years’ time, when the new EU budget comes into force? Doubtless, there will be a lot of struggling at that moment as to who gets what. France is likely to end up with much more than England. Is this not an area where first-class thinking and planning should start now if our farmers are to be paid anything like the Rural Payments Agency money that they get at the moment?

[Lord Taylor of Holbeach]

I would like to think that I can reassure my noble friend that of course we shall bring first-class thinking to the challenge of this issue. This is not the listed topical Question, but it has certainly turned out to be topical because the Commission published its proposals for the reform of the CAP this morning. We are certainly going to be very much engaged in the negotiations and discussions that will take place around these proposals. Our priority will be to ensure that reform encourages competitive and sustainable EU agriculture through a system that is simple and transparent for both farmers and the RPA to operate.

[Lord Knight of Weymouth]

My Lords, I welcome the noble Lord, Lord Taylor, to his much deserved ministerial appointment. In this House, we knew him to be a flexible listening Whip, and we look forward to more of the same in his ministerial guise. I also want to record our thanks and congratulations to the noble Lord, Lord Henley, as he moves on to the Home Office.

The Rural Payments Agency has had its ups and downs over the past few years, but it performs a crucial role in getting payments from the common agricultural policy to farmers. Your Lordships have just heard that the EU Commission announced reform to the CAP this morning. Like the NFU and the CLA, we on this side are disappointed that these proposals from the Commission are a missed opportunity. The rhetoric of radical reform has turned into a tired compromise, letting down both UK farmers and our natural environment. Given that consensus, what promises can the Minister make to farmers, and to others concerned about the natural environment, that the Government will use what influence they can muster from the margins of Europe to improve this reform as it goes through the Council of Ministers?

[Lord Taylor of Holbeach]

I thank the noble Lord for his kind words. I am afraid that, as a departmental Minister, the room for flexibility is perhaps not as great as it was, but I shall do my best. We have been building alliances within the European community on CAP reform. I think many other countries will be just as disappointed as we are with what appears to be a very retrograde and regressive proposal from the Commission at this stage. Our job is to negotiate, as the noble Lord rightly said, to try to build alliances and to place not just the farmer or the countryside but even the consumer interest at the fore. That is certainly our position. That is what we intend to do, and I hope we have the support of the whole House in achieving that.

[Lord Greaves]

My Lords, I, too, congratulate my noble friend Lord Taylor on his accession to the portfolio which he dealt with in opposition with such competence and in his usual friendly manner. I look forward to him holding this job for quite a long time because he will do a very good one.

Because of other things going on this morning, I have not had a chance to look in detail at the proposals from the Commission, but does the Minister agree that it is very important to prevent the opinions and forces in this country that would like to abolish the common agricultural policy and the payments altogether? They are not the way forward. Without a reasonable level of support to British farmers, combined with the cross-compliance conditions on the environment and animal welfare and the Pillar 2 schemes, such as the environmental stewardship schemes, the British countryside would be a much worse place.

[Lord Taylor of Holbeach]

Undoubtedly my noble friend is absolutely right. That is the purpose of our discussions, that is what our focus will be in negotiations, and that is why we are going into the negotiations in a positive frame of mind: to try to achieve the changes to the CAP which we think are in the interests of the people of this country.

[The Lord Bishop of Wakefield]

My Lords, I add my congratulations to the Minister on his appointment. We on these Benches have found that he has always been very helpful and flexible. I was encouraged by his initial Answer to the Question but, as he will know, difficulties with the Rural Payments Agency have led to significant levels of stress. I gather that the Farm Crisis Network estimates that 55 per cent of its cases of problems and issues have come from the single farm payment. What lessons have been learnt from these experiences to ensure that these problems are not repeated?

[Lord Taylor of Holbeach]

We have treated this from the beginning as a very serious focus of interest. My right honourable friend Jim Paice has headed up the oversight board, which meets every six weeks and monitors progress, and there is no doubt that the performance of the RPA has improved remarkably. It is not perfect, but it is getting there, and I hope that people will acknowledge that.

[Lord Campbell-Savours]

My Lords, what has been the principal factor in securing this higher efficiency within the agency? Has there been a contribution from Workington?

[Lord Taylor of Holbeach]

From Workington? I am sorry; I should have realised the noble Lord’s connection, and I apologise for not picking that up. I am sure there has been a contribution from Workington, but there has also been a contribution from many other people involved in making this body a more responsive, speedier and easier-to-use organisation for farmers.

Energy: Gas Supplies

Wednesday 12th October 2011 Lords Chamber

Question

15:09

Asked By

[Lord Ezra]

To ask Her Majesty’s Government what are the prospects for gas supplies during the coming winter.

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

My Lords, National Grid published its Winter Outlook 2011/12 report on 11 October. Its assessment of UK gas security of supply for the coming winter is broadly benign, with lower domestic production being offset by the expectation of more imports, especially of liquid natural gas. The Government will work closely with National Grid and the energy industry to monitor the ongoing energy supply situation during the winter months ahead. We will also be publishing the statutory security of supply report together with an assessment of the security of supply risk in the gas market later this autumn.

[Lord Ezra]

My Lords, I thank my noble friend for that reassuring reply. Nevertheless, things can go wrong, so what is the Government’s policy on gas storage capacity? Our current capacity is now well below that of continental countries, has fallen back in the past year and is the one big reassurance we could have if supplies should be interrupted during critical winter periods? In the longer term, when will our demand for gas, 60 per cent of which now has to be imported, be reduced so that we are less reliant on the vagaries of the import market?

[Lord Marland]

Let me continue in the spirit of bonhomie and welcome the noble Lord’s return—

[Noble Lords]

Hear, hear.

[Lord Marland]

I obviously recognise his strong track record of expertise. It is normally about this time of year that the House has a searching Question from the noble Lord and I am grateful for it. I can also assure him that this Government are deeply committed to storage. We inherited seven storage units for 16 days’ supply, we have four under construction and we have granted planning permission for another nine storage units. We take this matter seriously.

As for the other question about European gas storage compared with ours, we have to remember that 40-50 per cent of our gas supply comes from our own resources, 20 per cent comes from a dedicated pipeline from Norway and we have a good relationship with Qatar, with a guaranteed 10 per cent from there. So we are not in the same position as, perhaps, Germany, which is dependant upon the Eastern bloc for its supply. We get less than a half of one per cent from that source.

[Baroness Worthington]

Does the Minister agree that one way of reducing our dependence on imported gas is to invest in renewable forms of heating fuels? When will the long-awaited renewable heat incentive be open for business? At this rate, it will not be ready for people to invest by next winter, let alone this winter.

[Lord Marland]

I think the noble Baroness touches on the problem of Europe agreeing our tariffs for the renewable heat incentive where we propose aggressive and supportive tariffs for people in biomass and creating biomass boilers. They were rejected by the European Union, which said that they were unfair. We have looked at them again in earnest and certainly by the end of November we shall have responded to the EU with a negotiated position. We are deeply committed to it. As the noble Baroness rightly pointed out, it is fundamental to our energy security supply that we wean ourselves off oil in particular and coal, which are no longer supplied by ourselves.

[Baroness Oppenheim-Barnes]

My Lords, to depart briefly from the bonhomie, will my noble friend tell his right honourable friend the Secretary of State for Energy from me that it took me three months on two separate occasions to change from British Gas to another supplier? To say that people are lazy not to change means that what happens in the real world is completely beyond his comprehension.

[Lord Marland]

The noble Baroness is of course known for her energy and it is not surprising that she is playing the markets. We completely agree with that. It is amazing what happens on the internet these days. This is obviously a matter for Ofgem, we are concerned that it frees up the markets so that the noble Baroness and all of us can take full advantage of competitive terms out there. Rest assured, we march shoulder to shoulder in a bonhomous way, even if she does not think so.

[Baroness Smith of Basildon]

The Minister referred to the National Grid’s winter outlook report and called its assessment benign. What it actually said was that the total energy supply this winter should be manageable under normal conditions. Given the complete inability to provide accurate long-range weather forecasts and the wild fluctuations in weather we have seen, what discussions has he had and what arrangements are in place with the National Grid and energy supply companies to ensure supplies should weather conditions not be normal?

[Lord Marland]

The noble Baroness is right. We had a very abnormal winter last year. As she has clearly read the National Grid report, which I am delighted to see, I direct her to page 33, which clearly sets out the various pressure points in terms of a cold winter, a variable cold winter and so forth and how we have coped with it. I am glad to say that, broadly speaking, we came through with flying colours from a gas point of view. That is not to say that we can be complacent: we must not. We have a serious task to make sure that everyone in this country is supplied with gas and oil in an awkward winter and I assure noble Lords is that this Government will not be complacent.

[Lord Faulkner of Worcester]

My Lords, in his Answer to the Question from the noble Lord, Lord Ezra, the Minister referred to gas supplies from Norway. Does he envisage that the proportion of gas imported from Norway will increase and how does he see the future of LNG from Norway in the future?

[Lord Marland]

I do not think that it will increase from the dedicated pipeline. But we have spent a lot of time—and the previous Government should be credited for this—upgrading our LNG ports so that they can attract LNG from every source. We are reliant on 10 per cent of our supplies from the world market, and Norway almost certainly can be part of that.

Health: Charities

Wednesday 12th October 2011 Lords Chamber

Question

15:16

Asked By

[Lord James of Blackheath]

To ask Her Majesty’s Government what consideration they have given to extending the cost-saving work of health charities by providing them with NHS premises free of charge.

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

My Lords, health charities make a significant contribution to the NHS and are valuable partners. We are keen to support initiatives that will help them make cost savings and to support them through this challenging financial period. It is for local NHS organisations to decide to whom, and in what circumstances, they can offer NHS premises at concessionary rates.

[Lord James of Blackheath]

My Lords, I thank my noble friend for that Answer, which is encouraging in the context of local interests. But does he agree that some charities carry a case for a nationwide intervention due to the huge savings that they can produce, such as the Connect aphasia/stroke charity of which I am myself a rescued case? I was rescued so well that I married my therapist; I understand that that is an option, not an obligation. In this case, will my noble friend consider whether the huge savings that can come by removing aphasia cases from a dependence on welfare handouts and enormously expensive treatment could be alleviated by support being provided from the social care allocations fund on a completely cost-effective basis? The money could be replaced afterwards by giving some nominal recognition back to the fund as a consequence of the huge number of cases that would be saved by the charity.

[Earl Howe]

My Lords, we greatly value the work that Connect and other charities carry out, working alongside people with aphasia and their families to develop communication and rebuild confidence. I can tell my noble friend that we understand that the current fiscal position is presenting voluntary organisations and charities such as Connect with challenging funding issues. But, in the end, we are looking at local services. Where local services are concerned, it is the responsibility of commissioners—currently primary care trusts and local authorities—to commission services based on their local population needs. They must ensure that the services that they secure for local people provide the best value for money and quality for patients. I am afraid that we cannot get away from the value-for-money question. It is important to emphasise that we are sending the message to local authorities and PCTs that the voluntary sector should not shoulder a disproportionate share of funding cuts.

[Baroness Finlay of Llandaff]

Will the Minister ensure that healthcare charities that provide clinical services have the same VAT exemption as NHS providers, to establish the level playing field at this time of financial stringency that the Minister spoke about in the preceding debate?

[Earl Howe]

The noble Baroness makes a good point and I shall ensure that it is passed on to my right honourable friend at the Treasury. She will understand of course that I cannot give her a categorical answer at this point.

[Baroness Thornton]

Will the Minister confirm that the Department of Health has a strategy for encouraging and supporting charities, social enterprises and mutuals, both as patient and carer advocates and as providers of healthcare? In addition, would the Minister care to say how that policy might be enacted by the proposed commissioning structures in light of, for example, the failure of Surrey Community Health—a local and qualified social enterprise—to win a very large contract, losing it to Richard Branson’s Virgin Healthcare?

[Earl Howe]

I agree with the noble Baroness that it is important we do not lose vital local services that achieve high-quality outcomes. We shall be working with PCTs, therefore, in the transition to the new arrangements between the NHS Commissioning Board and clinical commissioning groups as they develop, to ensure that the sector’s contribution to improved public health and social care is fully recognised. In the end, however, she will appreciate from our preceding debate that these matters will continue to be determined at a local rather than a national level—and it is quite right that they should be—because centrally we are not aware of local circumstances in the detail that we should be.

[Lord Phillips of Sudbury]

My noble friend the Minister will be well aware that there is a chapter in the health Bill on public involvement. Will he accept that there is a general perception that at present there is extraordinarily little attempt made by the health bureaucracies to engage particularly small local charities, which often have more to give in terms of public involvement than the very large ones?

[Earl Howe]

It varies. I am well aware of some PCTs that are engaging very creditably with voluntary organisations, but I am sure my noble friend can give examples of where that is not happening. I can only say to him that the policy of any qualified provider should mean that local voluntary organisations that can provide services to the quality and terms that the NHS requires should be in with an equal chance of providing services. We will ensure that proper guidance is issued to make sure that happens.

Human Rights Act 1998

Wednesday 12th October 2011 Lords Chamber

Question

15:22

Asked By

[Lord Bach]

To ask Her Majesty’s Government whether they continue to support the Human Rights Act 1998.

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

Yes, my Lords. However, as the noble Lord will be aware, the Government established an independent commission to investigate the creation of a UK Bill of Rights in March 2011, thus fulfilling a commitment made in the coalition’s programme for government.

[Lord Bach]

My Lords, I thank the Minister for his Answer. The manner in which this important issue was not so much debated as debased last week by senior Cabinet Ministers was frankly infantile and not worthy of the serious matters involved. For a more serious consideration of the debate, may I urge the Minister and perhaps all Members of the House to read the article by my noble and learned friend Lord Irvine of Lairg, published in today’s Guardian? The Prime Minister and the Home Secretary have both said, and I quote the latter’s words, that,

“the Human Rights Act needs to go”.

Does the Minister agree with his right honourable friend the Home Secretary?

[Lord McNally]

One of the problems about party conferences is that the newspapers like to heighten and find clashes between Ministers. I am old enough to remember it said that every time Harold Macmillan returned from a journey abroad Rab Butler was at the bottom of the steps to grip him warmly by the throat. The Government’s policy is very clear, and the Home Secretary and Justice Secretary are on exactly the same page on this. The commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights. It will provide interim advice to the Government on the ongoing Interlaken process to reform the Strasbourg court ahead of the UK chairmanship of the Council of Europe. That is the Government’s policy.

[The Archbishop of York]

Does the Minister agree that much of the criticism of the Act is based on ill-judged statements and decisions by public authorities, rather than what the European Convention on Human Rights actually says and what the courts in this country have decided in applying the Act? Does he endorse the plea of Sir Walter Scott in The Fair Maid of Perth, “Touch not the cat”?

[Lord McNally]

I am not sure that I would call in evidence Sir Walter Scott on this, but the Government have very clearly in the programme for government, set the commission the task of looking at the Act and how it is operating. We have given it a parallel but equally urgent task; we are using our UK chairmanship of the Council of Europe to push forward an agenda of reform of the working of the court. Both are extremely useful exercises and, when both are completed, we will be able to make a proper assessment of where we go next.

[Lord Brittan of Spennithorne]

My Lords, does my noble friend recall that the European Convention on Human Rights derives largely from the work and suggestions of Conservative Ministers in the late 1940s and that, although individual decisions may be uncomfortable, the general thrust of giving effect to human rights through legislation of this kind is one that reflects well on this country and provides a good example for others?

[Lord McNally]

My Lords, the noble Lord, Lord Bach, referred to the Guardian article by the noble and learned Lord, Lord Irvine, in which the noble and learned Lord says that,

“the main proponents of the European convention were Conservatives, including Churchill and Macmillan. The convention was substantially the work of British jurists in a tradition going back to the Petition of Right of 1628 and our own Bill of Rights of 1689”.

[Lord Morgan]

My Lords—

[Lord Tomlinson]

My Lords—

[Baroness Greengross]

My Lords, in declaring an interest as the second lead commissioner on human rights in the Equality and Human Rights Commission, I ask the Minister for reassurance that the Government will, in any look at a Bill of Rights, not go back on the basis of the Human Rights Act but build on it—that they will look at some of the controversial workings of the Act, which need looking at, but not take us backwards. It is very important that we are all committed, as I think we all are, to the basic human rights principles.

[Lord McNally]

Again, I can do no better than to quote the coalition agreement, which says:

“The Commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties”.

[Lord Irvine of Lairg]

While acknowledging the Minister’s own commitment to the Human Rights Act, are there not at least double standards at work, or worse hypocrisy, when the Prime Minister and other members of the Cabinet preach the virtues of human rights and respect for the rule of law abroad while trashing these self-same virtues at home?

[Lord McNally]

I think that those are rather strong words. I have said before that in a democracy where there is a separation of powers there can be a healthy relationship between parliamentarians and the judiciary, whereby parliamentarians can sometimes express concerns about how the judiciary has interpreted some of Parliament’s Acts and, likewise, the judiciary may occasionally pass an unkindly word about the behaviour of parliamentarians. As long as that is kept on a basis of mutual respect and due courtesy, it is a healthy way for a democracy to go.

[Lord Mackay of Clashfern]

Does my noble friend agree that it would be wise for all of us to be careful how we speak?

[Lord McNally]

My Lords, that is a piece of advice that I hope echoes and re-echoes down the Corridor.

[Lord Lester of Herne Hill]

With that advice, I am not sure whether I ought to ask this question, because I am a member of the Commission on a Bill of Rights for the United Kingdom, so I must choose my words with great care. Is the Minister aware that the Council of Europe has commended the Joint Committee on Human Rights, on which I serve, as a model for Europe; and is he aware also that, across the common law world, we alone have reconciled effective remedies with respect for parliamentary supremacy?

[Lord McNally]

It does not surprise me that that is the reaction. When we set up this commission, indeed when we announced that we intended to take a vigorous attitude to reform of the court, we were told, “Oh, it’ll never work—you will get nowhere with this”. The fact is that we have found an increasing number of countries around Europe which have appreciated that we are taking a proper, sensible, calm look—through the commission on which my noble friend sits—at how the act is working in practice, and we are taking to Europe some very practical proposals for how to get the court working more efficiently and thus more respected. If we get away from all the showbiz of this, and get down to what the Government are actually doing, you will find that it is something that should have the approval of colleagues on all sides of this House.

Protection of Freedoms Bill

Wednesday 12th October 2011 Lords Chamber

First Reading

15:31

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

Patrick Finucane

Wednesday 12th October 2011 Lords Chamber

Statement

15:31

[Lord Shutt of Greetland]

My Lords, with permission I shall now repeat a Statement made by the Secretary of State for Northern Ireland in the other place.

“Following my Statement to the House last November, in relation to the murder of Mr Patrick Finucane, I have considered this case very carefully. I want to set out today how the Government intend to proceed.

The murder of Mr Finucane, a Belfast solicitor, in front of his family on the 12 February 1989, was a terrible crime. There have been long-standing allegations of security force collusion in his murder.

The former Metropolitan Police Commissioner, Lord Stevens, was asked to investigate the murder in 1999. He published his overview report in 2003, concluding that there was ‘collusion’, that the murder ‘could have been prevented’ and that the original investigation of the murder,

‘should have resulted in the early arrest and detection of his killers’.

When he was asked by the previous Government to consider the question of a public inquiry, Judge Cory found in 2004,

‘strong evidence that collusive acts were committed by the Army ... the RUC ... and the Security Service’.

My right honourable friend the Prime Minister invited the family to Downing Street yesterday so he could apologise to them in person and on behalf of the Government for state collusion in the murder of Patrick Finucane. The Government accept the clear conclusions of Lord Stevens and Judge Cory that there was collusion. I want to reiterate the Government’s apology in the House today. The Government are deeply sorry for what happened.

Despite the clear conclusions of previous investigations and reports, there is still only limited information in the public domain. That is why my right honourable friend the Prime Minister and I have committed to establishing a further process to ensure that the truth is revealed. Accepting collusion is not sufficient in itself. The public now need to know the extent and nature of that collusion.

I have, therefore, asked the distinguished former United Nations war crimes prosecutor, Sir Desmond de Silva QC, to conduct an independent review to produce a full public account of any state involvement in the murder. Sir Desmond is an internationally respected QC who will carry out his work completely independently of government. Sir Desmond has worked for the United Nations on major international issues in Serbia and Sierra Leone. In 2005, Kofi Annan appointed Sir Desmond to be chief prosecutor for the Special Court for Sierra Leone. In 2010, he was appointed by the United Nations Human Rights Council to the independent fact-finding mission to investigate the Israeli interception of a Gaza aid flotilla. His track record in carrying out this work speaks for itself.

His terms of reference are to draw,

‘from the extensive investigations that have already taken place, to produce a full public account of any involvement by the Army, the Royal Ulster Constabulary, the Security Service or other UK Government body in the murder of Patrick Finucane. The review will have full access to the Stevens archive and all Government papers, including any Ministry of Defence, Security Service, Home Office, Cabinet Office or Northern Ireland Office files that [Sir Desmond believes] are relevant. The account [will be provided to me] by December 2012, for the purpose of its publication’.

I have agreed the terms of reference with Sir Desmond. I would stress that Sir Desmond is being given unrestricted access to these documents. He will be free to meet any individuals who can assist him in his task. It is, of course, open to Sir Desmond to invite or consider submissions as he sees fit. The review will have the full support and co-operation of all government departments and agencies in carrying out its work. I have spoken to the chief constable who has given his assurance that Sir Desmond will have the full co-operation of the PSNI.

This Government have demonstrated in the Bloody Sunday, Billy Wright and Rosemary Nelson cases that we will publish independent reports without delay. The same checking and publication arrangements will be put in place. This has been an exceptionally long-running issue. The previous Government sought to resolve this issue after the 2004 commitment to hold an inquiry but was unable to reach an agreed way forward with the family. I am disappointed that the family did not feel able to support the process that my right honourable friend the Prime Minister and I outlined to them yesterday. I fully recognise that the family have pursued their long campaign to find out the truth with great determination.

We do not need a statutory inquiry to tell us that there was collusion. We accept that and my apology in the House today reflects this. The task now is to uncover the details of this murder. The public should not be kept waiting for many more years for the truth to be revealed. The Government have taken a bold step by asking an internationally respected figure to produce a full public account. Details in papers and statements that have been kept secret for decades will finally be exposed. The House will be aware of the extensive investigations that have already taken place in this case. I am clear that we do not need to repeat all the work that the noble Lord, Lord Stevens, has already carried out for the truth to be revealed.

The investigations into the murder of Patrick Finucane have produced a huge amount of material. One man, Kenneth Barrett, was prosecuted and convicted of the murder in 2004. Taken together, the Stevens investigations took 9,256 witness statements. The Stevens documentary archive extends to more than 1 million pages, and 16,194 exhibits were seized. This was one of the largest police investigations in UK history.

The noble Lord, Lord Stevens, carried out a police investigation to bring forward evidence for prosecutions. A 19-page summary was produced in 2003 but the Stevens investigation was not designed to provide a public account of what happened. That is why Sir Desmond de Silva will now have full access to the Stevens files and all government papers to ensure that the full facts are finally set out. The House will not want to pre-empt the details of Sir Desmond’s report. When the report is published the Government will not hide from the truth, however difficult. I strongly believe that this will be the quickest and most effective way of getting to the truth. Experience has shown that public inquiries into the events of the Troubles take many years and can be subject to prolonged litigation, which delays the truth emerging. As my right honourable friend the Prime Minister and I have made clear for some time, we do not believe that more costly and open-ended inquiries are the right way to deal with Northern Ireland’s past.

I am acutely conscious that the conflict in Northern Ireland saw more than 3,500 people from all parts of the community killed and tens of thousands more injured. We should never forget the many terrible atrocities that took place. More than 1,000 of those killed were members of the security forces. I want to be clear that the overwhelming majority of those who served in the security forces in Northern Ireland did so with outstanding courage, professionalism and even-handedness in upholding democracy and the rule of law. The whole House will agree that we owe them an enormous debt of gratitude.

The murder of Pat Finucane has been one of the longest running and most contentious issues in Northern Ireland’s recent history. The appointment of an internationally respected and wholly independent figure to produce a full public account demonstrates the Government’s determination that the truth about this murder should be finally revealed. The House will recognise the spirit of openness and frankness with which we are dealing with this difficult issue. I would encourage everyone to judge the process that we have established by its results. I commend this Statement to the House”.

15:42

[Baroness Smith of Basildon]

My Lords, I thank the noble Lord for repeating the Statement in your Lordships’ House. Every community in Northern Ireland has suffered outrages, atrocities and murders but today we reflect on the murder of Pat Finucane. His wife was wounded in the attack, and his three children witnessed what no child ever should—the murder of their father.

Thirteen months ago the former Secretary of State, Shaun Woodward, asked the Secretary of State, Owen Paterson, to honour the commitments of a previous Prime Minister and previous Secretaries of State to hold an inquiry into the murder of Pat Finucane. This commitment was made as a result of an agreement between the British and Irish Governments at Weston Park in 2001. If peace and reconciliation are to be taken forward we need to respect such agreements. Progress made in Northern Ireland is built on trust. As we have heard, since Justice Cory’s report public inquiries have been held into the cases of Robert Hamill, Rosemary Nelson and Billy Wright but not Pat Finucane.

It was a source of great regret to us, as the previous Government, that we were not able, as the noble Lord indicated, to agree terms of reference with the Finucane family for an inquiry to take place under the Inquiries Act 2005. However, today the Minister has told us of the Government’s decision that there will be no inquiry at all. Instead, the Government have announced an inadequate review, although we welcome the apology. We are disappointed by that decision and consider that the Government should honour commitments that have been made. The incredible scenes yesterday of the Finucane family at Downing Street, expressing their feelings of anger and outrage at being completely let down by the Government, show that this is no way to deal with such a difficult and sensitive issue.

Appreciating those sensitivities and difficulties, I have given the Government advance notice of the questions that I shall ask the noble Lord today. Will he tell your Lordships’ House why, having made the decision not to hold an inquiry, the Government allowed the Finucane family to believe for so long that there would be one? What discussions were held with the family prior to informing them of the Secretary of State’s decision? What advice was give to the Prime Minister by the Secretary of State that led him to invite the Finucane family to Downing Street, they clearly believing that they were to be offered something that would be acceptable to them—otherwise why raise false hopes?

Can the Minister tell us what discussions the Government had with the Irish Government before making the decision, given that the original decision to have an inquiry was made as a result of an agreement between the British and Irish Governments? Why, on the day that the Irish Government extended by six months the Smithwick inquiry into the murders of Chief Superintendent Breen and Superintendent Buchanan regarding alleged Garda collusion, did the Government choose to deny an inquiry to the Finucane family? Do the Government accept that any form of inquiry takes time and carries a financial cost but that it is possible for both of those to be reasonable and that in themselves they should not be a barrier to the pursuit of justice?

Specifically on the review of the papers, can the Minister outline how representations, including any from the family, can be made? What is the expected cost and timescale of the Government’s proposed review, and where will the hearings be held? Will any be in secret, and will witnesses be called?

Everything that has been achieved in Northern Ireland since the mid-1990s has been achieved with consensus. The Belfast, St Andrews and Hillsborough Castle agreements were all achieved by consensus. Indeed, the Northern Ireland Executive operates by consensus.

As a former Minister with responsibility for victims in Northern Ireland, I am aware, as are many of your Lordships, that there are many horrors from the past, many atrocities and many outrages by both loyalist and republican terrorists. However, there is an opportunity for Northern Ireland to escape the grip of the past by confronting the truth about past events. Therefore, can the Minister tell us anything about the Government’s policy for dealing with the past? Having denied a public inquiry into the death of Pat Finucane, what additional resources will be provided to the Historical Enquiries Team?

The people of Northern Ireland have made real progress but we must never take that progress for granted. It has taken real effort and commitment and a great deal of trust. We are asking the Government to reconsider their decision with respect to an inquiry into the murder of Pat Finucane because it is the right thing to do. By seeking the truth and honouring agreements, the cause of justice is served and, with it, the cause of a better future for Northern Ireland.

15:46

[Lord Shutt of Greetland]

My Lords, I thank the noble Baroness for her contribution. She began by referring to the murder, and we start from the basis of, quite frankly, how appalling and dreadful it was. She then referred to what her right honourable friend in the other place, Shaun Woodward, had attempted to do, but the fact is that an inquiry on that occasion was not pulled off. That is the position—there was no inquiry. Indeed, as I understand it, my noble friend in the other place, almost immediately on taking office, wrote to the family and met them shortly after that—something that did not happen in the preceding period.

Discussions have taken place but in the end one looks at what has happened with previous inquiries. Cost is one thing, but let us put that on one side for the moment. I ask noble Lords to cast their minds back. What is their abiding memory of the Bloody Sunday inquiry? I think they will find that, ultimately, it is the apology. I went through page after page of that inquiry document because I would have to speak here on the matter at a later point, but I believe that it was the apology that really caught people’s attention. I think that the prime purpose of bringing the Finucane family to Downing Street yesterday was to make the apology—something that had not happened until yesterday. I believe it is very important to think of the apology, and that was the reason for bringing the family here.

Many discussions took place. We have to recall that one reason why the previous Government were not able to proceed in line with the wishes of the family was that at the time the family did not want an inquiry, which had been offered under the Inquiries Act. That is why we had the impasse. We are trying to break into that impasse by first making an apology and then saying, “There are a million pages of printed matter on this event. It is all there written down. We shall get a very distinguished person to look through them and set out what has happened because it is all there”. One of the problems of going down the inquiry route, irrespective of the money side of all this, is that, sadly, 22 and a half years after the event, a number of people who were involved in it are no longer alive. I recall from reading the Bloody Sunday report that a number of people who were involved in that incident were either no longer alive or had forgotten the detail of the incident, and how difficult that made it to consider the matter.

Discussions have taken place with the Irish Government so that they know what is going on. I am not privy to those discussions. The reference to the Irish case where an inquiry has been extended brings us back to the question of time. Does time matter? You might think that 22 and a half years is a considerable length of time, but more time will elapse before this matter is resolved. The review is expected to cost in the region of £1.5 million.

The Historical Enquiries Team is well thought of and does splendid work, but this is a devolved matter. This Government have added £250 million to the police budget in Northern Ireland, so they may well have the resources to tackle it. In any event discussions are still taking place with interested parties in Northern Ireland about further work.

15:52

[Lord King of Bridgwater]

My Lords—

[Lord Maginnis of Drumglass]

My Lords—

[Baroness O'Loan]

My Lords—

[Earl Attlee]

My Lords, may I remind the House of the benefits of short questions in order that my noble friend the Minister can take as many questions as possible? Perhaps we should start with a former Secretary of State for Northern Ireland and then go on to the noble Lord, Lord Maginnis.

[Lord King of Bridgwater]

My Lords, is the Minister aware that this appalling murder took place during my time as Secretary of State for Northern Ireland, 22 years ago? What made it even more atrocious as a crime were the allegations, subsequently confirmed in the Stevens report, that there may have been—there was, as the Prime Minister has accepted today—collusion by members of the security forces in that murder. Against that background, I welcome the Statement. I say to the noble Baroness—the same point was made by the Front Bench in the other place—that I think it was entirely right for the Prime Minister to see Mrs Finucane and her family. If he had not seen them and this announcement had been made, people would have criticised him for a lack of courage and not being prepared to face the situation. He invited them to come to enable him to make a formal apology to them for what has happened. That was precisely the right thing to do.

We have the appalling situation whereby the murder was committed 22 years ago and allegations of collusion emerged soon after. It is 12 years since the noble Lord, Lord Stevens, produced his report, 10 years since the Weston Park agreement was signed and six years since the previous Government approached this matter. They pledged to hold an inquiry but did nothing about it except to argue with the Finucane family about the form of the inquiry, which could not be resolved because they were not prepared to agree to the form proposed under the Act. That has left this Government with a logjam that has now to be resolved. No one can seriously suggest that it is a good idea to embark on a major public inquiry that could last another five years, during which time more people who were involved in the murder will die, as will people who may be responsible for the collusion and who ought to be liable to prosecution and brought to justice. These matters are still outstanding. I feel passionately about this.

We owe it to the Finucane family to resolve this matter, to publish a document referring to the people who may have been responsible for the murder and to make the truth known. We also owe it to all those people in the security forces, brave people who, day in, day out, 24/7, have defended the people of Northern Ireland with integrity and courage but whose conduct has been besmirched by the action of a few. We owe it to them as well as to the Finucane family to get to the truth of this as quickly as possible and then let the proper consequences of punishment, if that is appropriate, take place and for the truth to be known so that the Finucane family can see it. I hope at the end of the day—it depends, obviously, on the result of this report, but I have confidence in Sir Desmond de Silva—that Sir Desmond’s report may at last bring some satisfaction in these matters so that they can be properly dealt with.

[Lord Shutt of Greetland]

My Lords, I thank the noble Lord, Lord King, for his contribution and pay tribute to his time in service in Northern Ireland. He rightly points out the 22 years and the fact that he was in post at that time. I am grateful for his supportive comments and make the point that time and delay are features that we have to think very seriously about. Twenty-two and a half years have gone and yet the report that we are suggesting and which Sir Desmond has been appointed to produce will be achieved within 15 months. Fifteen months is a small period when we think of the 22 and a half years that have gone before.

[Lord Maginnis of Drumglass]

My Lords, I want to make it very clear first that I condemn every killing that occurred in Northern Ireland and I spent 12 years of my life ensuring that both loyalist and republican killers were brought to justice. That is my justification for saying that, while I thank the Minister for bringing the Statement here, I totally disagree with and resent the term “collusion”. Can you imagine what it is like to live 24/7 in a situation where people are being murdered, and people are talking about this in cars, in homes, in pubs, in clubs and in the workplace because they are struggling to survive the violence that we had to endure. If that is collusion, then collusion took place, but my experience over all those years, working with police and the regular Army and in command of members of the Ulster Defence Regiment, was that there was no organised collusion, and I resent that term deeply.

Let me further say that there are so many victims, and victims who are close to me: Harold Sinnamon, the brother of my assistant teacher in the school where I was principal; the Dobson brothers, whom I went to school with, two people who were not involved with anything, shot in their business office; George Shaw, who contributed to his community, who took me to my first scout camp; Eric Shields, whom I worked and played rugby with and who was not a member of my party but of the Alliance Party; all these people. Was there collusion there? Are they even considered?

In finality, I was sued by the Finucane family for saying that they were an IRA family. That is what they were, an IRA family. They sued me. When they were forced by the courts to put up or shut up, they withdrew their case against me and paid my costs. Why did that happen? Let us look at the whole picture with 40, 30 or 20 years of hindsight, at what those of us who lived through the Troubles had to endure, and see whether it is prejudiced.

[Earl Attlee]

My Lords, once more I try to remind the House of the benefits of a short question and that also, on behalf of the House, I have a very long memory.

[Lord Shutt of Greetland]

My Lords, I thank the noble Lord, Lord Maginnis, for his contribution. This Statement today is about Pat Finucane. It is not about anything else. The apology has been given because of collusion. The noble Lord, Lord Stevens, made that clear in 1999; Judge Cory made it clear in 2004. Yet we were at the point where this was not a resolved issue and there was a question about an inquiry and so forth. The noble Lord has heard the reasoning—

[Lord Maginnis of Drumglass]

Not good enough.

[Lord Shutt of Greetland]

—as to the way forward. Sir Desmond de Silva will have the opportunity to go through paper after paper and to produce a report. That may well be the time for the noble Lord to express a view. But Sir Desmond will be reporting on what the noble Lord, Lord Stevens, and Judge Cory have already indicated about collusion.

[Lord Mawhinney]

My Lords, I was a Minister serving with my noble friend Lord King at the time of this murder and I agree with everything that he said, so I will not repeat it. Can the Minister assure this House that when this review is complete there will be no statute of limitations issues if—and I say if—the review specifies individuals who should be prosecuted as a consequence of the murder?

[Lord Shutt of Greetland]

My Lords, I will have to write to the noble Lord on that precise point about limitations. All I would say is that we should not forget that when the report by the noble Lord, Lord Stevens, was produced, in the end it was not possible for prosecutions to take place. Other matters may come up and people may contact Sir Desmond, but we cannot say what will happen. The idea is to get the truth about what happened with a murder. That is the position, and what happens subsequently is something for another day. However, on that specific point, I will have to write to the noble Lord.

[Baroness O'Loan]

My Lords, I wish to address two points raised by the Minister. First, the significance of the apology in the Bloody Sunday inquiry was that it followed an acknowledgement of the facts that had been revealed by that inquiry. The apology alone without the inquiry would not have addressed the issue. Secondly, I would like the noble Lord to confirm that this is a review, not a criminal investigation, and that therefore there will be no prosecutions following this review by Sir Desmond de Silva.

I am one of the few people in this House who has actually read all three Stevens reports, and I am aware of the extent of obstruction by the state in the course of those inquiries. I am also sighted of much further information in relation to the activities of loyalists over the years, and I am very clear that had the noble Lord, Lord Stevens, been allowed to do the inquiry that he wished to do and had that inquiry led to prosecutions, we would have been spared a very significant number of murders, intimidation, shootings and bombings.

My question to the Minister reflects the fact that the Finucane family has always been concerned that the full story of what happened should be told. The terms of reference of the inquiry appear to be limited to the incident of the murder. The Finucane family has been concerned about what happened prior the murder and the collusion that did exist, as identified by the noble Lord, Lord Stevens, between loyalists and representatives of the state. There will be no arrangements that will enable any challenge to any decision that will be made by Sir Desmond—and I am in no way impugning Sir Desmond when I say this—but there is no accountability in this process until it is finished.

Therefore, my question for the Minister is: can he give us an absolute, categorical, unqualified assurance that access will be given to all Special Branch and MI5 intelligence in relation to anybody who may have had any association of any kind with the murder of Patrick Finucane, or with those connected with the murder of Patrick Finucane? As a former Police Ombudsman for Northern Ireland, I am acutely aware of the games that can be played in releasing intelligence. You have to get the question absolutely right or you do not get the intelligence. I therefore ask the Minister for the assurance that there will in reality be no empty promises of full co-operation but that full access to all the intelligence will be given to this inquiry.

[Lord Shutt of Greetland]

My Lords, I thank the noble Baroness and pay tribute to her work in Northern Ireland over many years. She is concerned about whether Sir Desmond has the opportunity to look at the papers. The review will have the full support and co-operation of all government departments and agencies in carrying out its work. There is no intention whatever to restrict Sir Desmond in looking at these papers. That has been clearly said and I repeat that in saying that he has free access to look at these things.

[Lord Deben]

Will my noble friend accept that all sides of this House should be extremely supportive of the Prime Minister in his unqualified apology? Much of what has happened in the north of Ireland has happened in terrible circumstances on both sides. There is a history which goes back way beyond the present troubles and many apologies which could be made by all of us, not least the Conservative Party over its actions in Northern Ireland. This apology is crucial because it shows that we have admitted that what happened should not have happened and I hope that arguments about the form of the solution will not overcome the reality of the Government’s clear commitment to the human rights involved.

[Lord Shutt of Greetland]

I thank the noble Lord for his comments. I believe that the word “apology” and what has been done is the most important thing to have happened. The further inquiry by Sir Desmond is on top of that and we have got to find out what happened. The apology is one thing and it is very important. I am glad that the noble Lord has mentioned that. But we have then got to move on because the whole thing is about moving on. Until we can satisfy all of the people who are concerned about this, it remains one of the impediments in moving on in the peace process in Northern Ireland.

[Baroness Richardson of Calow]

There were four inquiries asked for by the Cory report and I was a panel member for the fourth one that has not been mentioned—the Robert Hamill inquiry.

The Minister asked what would be remembered about inquiries. What is more important is not what the nation might remember but what is remembered locally. We had a public inquiry in which a family and all the people involved were able to express their own feelings about the murder. It released a whole lot of information but also a lot of emotion. That cannot be quantified or have a financial value. A private apology, even when it is made public, cannot take the place of allowing a family to express publicly, in a way which can be heard by everybody else, the pain and horror they have been through.

I welcome the fact that the facts will be known and be published. It is a pity that it has taken such a long time for this to happen.

[Lord Shutt of Greetland]

My Lords, I understand this and I would not want to say that an inquiry would be no use in any circumstances. We are talking about an event, however, that took place 22 and a half years ago. We know from reading about those inquiries about the people who were dead or forgotten or who could not be found. There are seven key witnesses here. There is Brian Nelson, an FRU agent who died in 2003. RUC agent William Stobie was murdered in 2001. Sir John Hermon, the ex-Chief Constable of the RUC, is dead. Brian Fitzsimons, the ex-deputy head, was killed in the Chinook crash, as was John Deverell, the most senior security service rep in Northern Ireland. Wilfred Monahan died of natural causes. These people are all dead, and this is one problem with the inquiry: one is not able to call them because they are not able to turn up. Therefore, one needs to strike a balance. When one adds three, four, six or 10 years from today, if one is going down that route, one must then consider whether, sadly, others will be added to the list. One must take that balance into account. Asking noble Lords and everyone else to wait 15 months for this review is one way in which we can then move forward.

[Lord Alderdice]

My Lords, I will take further the question raised by the noble Baroness, Lady O’Loan. I do not entirely agree with her that the events are not known and that the apology has come before they are known. It is known that there was a murder and that there was collusion: that is clear. However, the details have not yet been published and it is very important that they are.

The noble Baroness said something else that will be very disturbing to the House. She suggested that because of the form of the inquiry, no criminal prosecutions could come from it. Other noble Lords have expressed the concern in various ways that, should material come forward into the public domain, prosecutions should proceed. I seek assurance from my noble friend that that is the case and that the concerns of the noble Baroness are not necessary because prosecutions can proceed from the publication of the report.

[Lord Shutt of Greetland]

My Lords, I believe that that could happen: there could be prosecutions. I have some doubts, bearing in mind that Sir Desmond will be culling the million pages of evidence that have already been seen. That evidence did bring forward prosecutions. I suspect that because Sir Desmond's work is taking place, people may contact him, or he may contact people, and it is possible that something new may come into the domain and, because of that, prosecutions might happen.

Localism Bill

Wednesday 12th October 2011 Lords Chamber

Report (6th Day) (Continued)

16:12

Amendment 203K

Moved by

[Lord Greaves]

203K: Before Clause 97, insert the following new Clause—
“Duty to promote sustainable development
(1) Each person who is carrying out functions under any Acts relating to planning and who is—
(a) a local planning authority,(b) a county council in England that is not a local planning authority,(c) the Secretary of State when carrying out functions relating to applications for development consent,(d) a qualifying body for the purposes of Schedule 9 (neighbourhood planning),(e) a body, or other person, that is prescribed or of a prescribed description,must carry out their functions with the objective of promoting sustainable development.(2) For the purposes of subsection (1) “sustainable development” means development that meets the social, economic and environmental needs of the present without compromising the ability of future generations to meet their own needs, based on the following guiding principles—
(a) living within environmental limits, namely respecting the limits of the planet’s environment, resources and biodiversity, to improve our environment and ensure that the natural resources needed for life are unimpaired and remain so for future generations,(b) ensuring a strong, healthy and just society, namely meeting the diverse needs of all people in existing and future communities, promoting personal wellbeing, social cohesion and inclusion, and creating equal opportunity for all,(c) achieving a sustainable economy, namely building a strong, stable and sustainable economy which provides prosperity and opportunities to all, and in which environmental and social costs fall on those who impose them and efficient resource use is incentivised,(d) promoting good governance, namely actively promoting effective, participative systems of governance in all levels of society and engaging people’s creativity, energy and diversity,(e) using sound science responsibly, namely ensuring policy is developed on the basis of strong scientific evidence, whilst taking into account scientific uncertainty (through the precautionary principle) as well as public attitudes and values.(3) Section 10 of the Planning Act 2004 is amended as follows.
(4) After subsection (3) insert—
“(4) In this section “sustainable development” has the same meaning as in section (Duty to promote sustainable development) in the Localism Act 2011.””

[Lord Greaves]

My Lords, we return to the Localism Bill and have reached Part 5, which is about the substantial changes the Bill makes to the planning system. Amendment 203K, which is grouped with one other amendment, is about sustainable development. This is the third time during proceedings on the Bill that I have had the privilege of opening a debate on sustainable development. We had a comprehensive debate at the beginning of our consideration of the Bill, and a further, pretty comprehensive debate at the beginning of the planning section. Both debates took place in Committee. We are now on Report and come to sustainable development again. I am grateful to the noble Lord, Lord McKenzie of Luton, for adding his name to the three Liberal Democrat names on the amendment.

The amendment seeks to place in the Bill a definition of sustainable development. This debate reappears every time a planning Bill comes before the House, or a Bill related to planning or similar things. So far, although Governments have increasingly included the words “sustainable development” in legislation, they have always resisted including a clear definition of it in legislation. This amendment also sets out a duty of each person who carries out functions within the planning system, from the Secretary of State down to local planning authorities, to promote sustainable development. It also applies to the neighbourhood forums or parish councils which will be carrying out neighbourhood planning functions under the new provisions within this part of the Bill.

There are therefore two issues. The first is whether a definition should appear in the Bill. It has always been the view of the Liberal Democrat Benches in this House that it should, and we have not really changed in that view. The second is what that definition should be.

Sustainable development is a phrase which has been in current use for about 20 years. However, it has really come to the fore in the past 10 years. In 2005, the then Government issued a report called Securing the Future—Delivering UK Sustainable Development Strategy—I am not quite sure why the title does not have an “a” or a “the” in it. Page 16 lists a set of guiding principles, and it is those guiding principles which this amendment sets out, exactly as they appeared in the 2005 strategy. These are: living within environmental limits, ensuring a strong, healthy and just society, achieving a sustainable economy, promoting good governance, and using sound science responsibly—all with the detail set out. Although this strategy was issued by Defra, it was to apply across government, throughout all departments and all government activities. One assumes that that definition applied to the planning system, since the planning system is part of what the Government do, although parts of the strategy might be more relevant to planning, just as other parts might be more relevant to other aspects of government activity.

In 2010, we had the exciting development of the formation of the new coalition Government, who clearly had to review their policies and strategies, and in particular those which had been passed on to it by the previous Labour Government. In February of this year, the Government issued Mainstreaming Sustainable Development—the Government’s vision and what this means in practice. That vision was very much based on the 2005 strategy, and according to the Defra website, which still existed when I looked last week, the Government are reaffirming their vision for sustainable development.

The website said in February this year:

“The Coalition Government has reaffirmed its commitment to sustainable development and set out its vision of achieving economic growth, improved wellbeing and a protected environment now and for future generations”.

The word “wellbeing” has come into prominence recently since it appears in the health Bill as well, but I take it that in this context it encompasses the social side of the three prongs of sustainable development: economic, social and environmental.

The Deputy Prime Minister, Nick Clegg, welcomed the new vision by saying:

“The Government is determined that as we reduce the deficit, we also rebalance the economy and put it on a greener, more sustainable footing. In order to achieve this, we must lead by example. I am pleased to see this document”—

He means the document entitled, Mainstreaming Sustainable Development—the Government’s vision and what this means in practice published on 28 February last—

“sets out exactly how we can do that and take our place among the greenest governments of the world”.

I am going to read out much of the introduction to the document because it is crucial:

“The Coalition Government is committed to sustainable development. This means making the necessary decisions now to realise our vision of stimulating economic growth and tackling the deficit, maximising wellbeing and protecting our environment, without negatively impacting on the ability of future generations to do the same. These are difficult times and tough decisions need to be made”.

That is what they say all the time, but it is true, of course. It continues:

“This Government believes in going beyond the short term with eyes fixed firmly on a long term horizon shift”—

this is the crucial bit, and I think I know what it means—

“in relation to our economy, our society and the environment … This refreshed vision and our commitments build on the principles that underpinned the UK’s 2005 SD strategy, by recognising the needs of the economy, society and the natural environment, alongside the use of good governance and sound science”.

These are the guiding principles that appear in my amendment. The introduction goes on to say:

“Sustainable development recognises that the three ‘pillars’ of the economy, society and the environment are interconnected. The Government has initiated a series of growth reviews to put the UK on a path to strong, sustainable and balanced growth. Our long term economic growth relies on protecting and enhancing the environmental resources that underpin it, and paying due regard to social needs. As part of our commitment to enhance wellbeing, we will start measuring our progress as a country, not just by how our economy is growing”—

although clearly that is very important—

“but by how our lives are improving; not just by our standard of living, but by our quality of life”.

I could not have put it anything like as well as that.

In launching the document, the then environment Minister, the noble Lord, Lord Henley, said:

“While the Government is committed to tackling the deficit and rebuilding Britain’s economy as we recover from recession, not least through the development of a sustainable green economy, we recognise that our success and progress as a country is about more than economic growth”.

The Prime Minister, when announcing the measurement of the nation’s well-being in April, said:

“Prosperity alone cannot deliver a better life … The Government must be focused on quality of life as well as economic growth … Improved wellbeing is important to our goal of creating a more family-friendly country … Sustainable development is also about ensuring a high quality of life for our children and future generations”.

We appear to have a pretty firm commitment from the noble Lord, Lord Henley, Nick Clegg, David Cameron and from the Government themselves.

The purpose of the amendment is to suggest to the Minister that now is the time to put all this on the face of the Bill so that we are absolutely clear about what it is. If she cannot agree to do that on the wording in my amendment today, perhaps we might consider this again at Third Reading with wording suggested by the Government themselves. In any case, it asks her to give a firm assurance—in view of the controversy around the country, not least over the national planning policy framework—that the firm commitments made back in February this year by the high-ups in the Government to sustainable development are still the view of the Government. I beg to move.

[Lord Jenkin of Roding]

My Lords, I agree with almost everything that my noble friend has said about the desirability of promoting the concept of sustainable development. I rise to speak only for one reason—namely, the news of the death of Sir Arthur Norman, who was a very distinguished president of the FBI, as it was before the CBI. He and the noble Lord, Lord Barber of Tewkesbury, came to see me when I was Environment Secretary. They were very concerned about what appeared to be a growing conflict between those who championed the environment and those who were concerned with the well-being of industry. Their view was that, in fact, they are mutually dependent on each other—you cannot improve the environment unless there are the resources there to do it; and business cannot hope to succeed if it flouts all the canons of good environmental behaviour. They came and asked me to help them set up an organisation that could reflect this—and, if I may say so to my noble friend Lord Greaves, this was well in advance of the Brundtland definition, which he has just quoted. I had no hesitation in offering them a launching grant to set up what became the United Kingdom Centre for Economic and Environmental Development—UK CEED. It is going strong today.

I believe that this has now become—as my noble friend has rightly said—absolutely embedded in the policies of, I suspect, every party in this country and, indeed, across the world. My only concern with my noble friend’s amendment is whether it is actually going to achieve anything. “Sustainable development” is one of these expressions that tends to mean, rather like “humpty-dumpty”, what I want it to mean when I use it. I am not sure how far it helps to seek to have a definition, because circumstances and conditions change and one is going to find oneself having to amend it as new developments, inventions and technology come forward. I support the concept of trying to build in sustainable development, as has been done in this Bill and certainly in the framework planning policy document. I just question whether putting an amendment of the sort that my noble friend has proposed in the Bill carries this forward. I say this with some background awareness of the huge importance of trying to get everybody—every major part of the economy and the community—committed to this principle of sustainable development.

16:30

[The Lord Bishop of Wakefield]

My Lords, I, too, rise to speak in favour of the amendment put down by the noble Lord, Lord Greaves. I would like to begin by following up directly the final comment made by the noble Lord, Lord Jenkin, about whether it is helpful to have this actually set out as a definition. Those in part of the diocese for which I am at present responsible—I am thinking particularly of the south-eastern part of the diocese—live with some of the most serious deprivation indicators anywhere in England, largely because of the very rapid death of the coal industry over the last 30 years. This has led to the death of community in many places. Many of you will have seen the film “Brassed Off”, which focuses on Grimethorpe, which is in my area.

Alongside the death of community runs worklessness. There are sometimes two or even three generations of people who have never worked. Often, when talking with these communities, I use the term “loss of community” or “loss of corporate self-esteem”. All of us who have families will know that when any of our young offspring, for one reason or another, is stricken by difficulties and they lose self-esteem, then we become most seriously concerned for them. It is something that might lead people into thinking about taking their own lives. There is a similar phenomenon which eventuates from the lack of a community feeling or no clear sense of purpose. Therefore, the headings in this proposed amendment are helpful in terms of economic, social and environmental issues.

However, perhaps there is more to be said than that. When I was in Norwich, I was in a city that had enjoyed prosperity for 800 years, but not for the past 20. Great efforts were made to try to reverse the trend in the economy and eventually they were effective to a very good degree, but, once again, social and environmental concerns are key to building up a clear sense of healthy community. That seems to be the basis of sustainable development.

Another word that is often seen as controversial is “spiritual”. It seems to me that spiritual development is also a key element in this. I do not necessarily mean Christian spirituality, or even religious spirituality; we all know that there is something about the human spirit. When the human spirit is lost in people, or when it is dampened, the community and the effectiveness of individuals within that community are affected.

Therefore, I ask the Government to consider looking at a definition like that and adding to it the spiritual element. Of course, the danger is that, if we do not do that, we all subscribe to saying how important sustainable development is but, as the noble Lord, Lord Jenkin, has just said, it is not entirely clear what we are saying. My instinct is to say that we need to define it more carefully. We had an interesting discussion yesterday on the term “multiculturalism”. That is another great word which we think is very important, but no one wants to define it too much because then it could become more controversial.

Many years ago, I remember a former Prime Minister of this country—this shows my age—when asked to respond to a particular issue saying, “I’m not going down that road; that’s just theology”. As someone who has taught theology for many years, I am quite keen that there should be some clarity in what we are saying. I remember one of my teachers telling me that God was the incomparable who lets be, which I thought did not get me very far down the line at all. I do not want sustainable development which is incomparable but undefined. I say that, not simply because I am keen on a series of philosophical statements or philosophical definitions, but because I think that if we do that, it may mean that sustainable development does something for our communities.

I take noble Lords back to the place where I started, to the south-east of the area that I represent, to places like South Kirkby and South Elmsall, which are in desperate need of regeneration. If we have a clear notion of what we are going for in terms of economic, social, environmental and spiritual issues, perhaps we can begin to rebuild that community self-esteem of which, at the moment, there is a desperate lack.

[Lord Deben]

I do not think that anyone would accuse me of not being committed to sustainable development. Indeed, I declare my interest in helping others throughout the world to promote this issue. However, I have a warning about this amendment. We are trying to change the planning system in order to achieve a number of ends including ensuring that Britain is able to grow in a sustainable way and that the time taken by the process should not be such that we avoid all those good ends. I started being concerned about a detailed definition of this sort when I realised how many people will use it to take the courts into consideration. I hope that the Government will recognise that there are two elements to this: there is the natural desire of those of us who are concerned with sustainable development to ensure that no future Government with less concern should be able to use this Act to avoid some of the necessary decisions which we are making while on the other hand not wanting a definition that brings sustainable development into disrepute because it is used as the mechanism for yet again holding up decisions. I hope that the Government, in considering this amendment whose spirit I wholly support, will think hard about how we do this in a way that does not open this whole thing up to a kind of justiciable approach where every person desiring development will be able to find something here which they can use to try to overturn what a local authority has done.

Secondly, I am concerned about the definition. I know it draws from all sorts of learned and worthy bodies, but the truth is that sustainable development is two words: “sustainable”, and “development”. An awful lot of green people talk about sustainability as if development is not in it, and a lot of people who are keen on development talk as if it does not have sustainability in it. It is necessary to stick these two together. If you read this definition, there is a great deal about sustainability, but I am not sure that there is a tremendous amount about development. Yet my noble friend Lord Jenkin, who taught me these things when I was his PPS, is absolutely right to say that these two things come together. They either fuse together, or neither is able to operate on the other side. I hope that in consideration we will take that into account as well.

The third thing we have to take into account is something very fundamental. It is that we ought to move to a stage in which you do not need both words. We ought to move to a stage in which the very word “development” inevitably means that you are going to develop in a sustainable way. Here I have to say something a bit hard about the Government. It does not help when the Government say things for convenience which suggest that they do not have their heart where it ought to be. It does not help when the Chancellor of the Exchequer suggests that we are going to move at a slower speed in dealing with our emissions than the law says we have to and proposes something illegal. It does not help us when those things happen because then others can doubt our fundamental support for these beliefs.

I say to the Minister that it is crucial that we go further than we have gone so far in making sure that people understand that we mean business. The first Prime Minister to use the words “sustainable development” was John Major. I know that because I wrote that bit of the speech but, in the end, people do not give speeches unless they are happy about them—at least, if they have anything about them. He used those words because he believed fundamentally—this has to be said—that it is in the nature of conservatism that we develop sustainability. That is what the country party, on which we are based, had as its heart. We conserved; we believed in handing on to the next generation something better than we received from the previous one. There is much in this Bill which will help us to do that. We need the speed to do it, but we also need the clarity to ensure that people do not fail to recognise the two elements of sustainability and development until it becomes so much second nature that we need only one word because it means both because we have redefined it properly.

[Baroness Andrews]

My Lords, there is much that the noble Lord has said with which I agree. I must put on my English Heritage hat and declare an interest. One of the disappointments that we have tried to address in this Bill is the need to get greater clarity about the nature of sustainability. While I see the point that the noble Lord is making, that sustainability and development are two words, it is sustainability that raises greater confusion and there has been a marked lack of clarity about the whole notion. The debate that we have seen in recent weeks about the nature of sustainability in relation to development has exemplified the search for general agreement about the content of sustainability.

It is difficult because there are competing definitions, but I support the noble Lord’s amendment. I spoke at some length in Committee about this and will not repeat it, but we have inclusivity in this definition, in terms of the lifetime issue of how we must address sustainable developments in future. It also specifies content and that gets us a long way down the track. It is also a definition that is fairly familiar, so we might be able to get some agreement on it. Whether it is workable, practicable and applicable raises enormous questions about the way that the planning system operates.

I also have a great deal of sympathy with what the right reverend Prelate has said about what else might go into a definition of sustainability. I may be drifting into the danger of a list, but I feel strongly that one of the elements that is not in this amendment—and the Minister might take this away and consider it—is including something about our vital cultural and heritage needs, including those of future generations. That is an important guiding principle for what we mean by sustainability in many different ways. It would also fit alongside this expression of a strong, healthy and just society.

I do not want to draft an amendment on my feet, but one might add, for example, “meeting the diverse social, cultural, heritage needs of all people in existing and future communities and promoting well-being and social cohesion and inclusion”. This is important, because if we are to take this definition of sustainability seriously, this is a moment when we might be able to agree and implement something. It has been debated for goodness knows how long in this Chamber and I believe that our culture and heritage fit this Bill. They feed our sense of belonging, of pride, identity and resilience and they feed into our roots of personal and community life. They express, as the right reverend Prelate said, our sense of community. They help us to know who we are and what we are capable of. All that is about sustainability for future generations, for the future shape and feel of our country.

I hope that, if we are to debate the amendment—and maybe I should bring it back at a further stage—the Minister will consider whether she can be flexible in her approach to it and maybe include the new elements of the definition.

[Lord Cormack]

My Lords, the noble Baroness raises some extremely important points, wearing as she does proudly and properly her hat as chairman of English Heritage. I want to say one thing: sustainable development, as my noble friend Lord Deben has talked about eloquently, is not something of itself. We are talking about the context in which that development takes place. It is crucially important—if we are concerned about our heritage, the beauty of our landscape and the balance of it in this country—that what is added to our environment does not detract from it. For instance, if we are to have development in or near a historic town, village or particularly important building, that development should enhance the environment into which it is going and not spoil it.

That is my underlying concern about the Bill and some of the interpretations that have misguidedly been placed on it. I was greatly reassured after one conversation with my noble friend the Minister last week. I am utterly convinced that her heart is in the right place and that she does not wish to despoil any more than I do. But we have an opportunity as we debate this Bill to make it clear beyond any doubt that where there is to be an addition or development it must not only be sustainable in itself but must further sustain the environment into which it comes.

16:45

[Baroness Parminter]

My Lords, as someone who passionately believes in the potential of planning to deliver sustainable development, I was very happy to add my name to the amendment. It is particularly helpful that the amendment spells out the depth of field covered by those who will have responsibility for planning to promote sustainable development. Those individuals, bodies and authorities need guidance on what the Government mean by sustainable development. Yes, a belief in localism means giving local councils the power to articulate their visions of sustainable development for their areas through their local plans, but in the absence of a clear vision from the Government, it is imperative that they define clearly and upfront what sustainable development means in order to determine the expected route of travel.

I support my noble friend in arguing that it is right to give a legal underpinning to the definition of sustainable development that is found in the UK Sustainable Development Strategy. Its five widely accepted principles provide a common framework for sustainable development and establish the twin goals of living within environmental limits and providing a just society by means of good governance, sound science and a sustainable economy.

The crucial thing is that the definition has widespread understanding and support. Only last year, 97 per cent of respondents to a Defra consultation exercise supported or did not object to the particular definition of sustainable development used in the 2005 Sustainable Development Strategy. Restating the principles of sustainable development as outlined in that strategy would make it clear that there is no hidden agenda by the Government to redefine sustainable development. I echo the comments made by the noble Lord, Lord Deben, but some of the comments by Ministers have been less than helpful in determining exactly what the Government mean by sustainable development. Therefore, reiterating a position that is commonly understood and has been widely supported in recent consultations would suggest that the Government are serious about sustainable development and are not seeking to redefine the terms of the argument.

The Prime Minister himself recently gave an assurance that the purpose of planning is to balance the environmental, social and economic dimensions of sustainable development. Accepting the amendment would allow that assurance to be delivered.

[Lord Howarth of Newport]

My Lords, not having participated in proceedings on this Bill hitherto, I hope that the House will none the less tolerate me in making a very few remarks in response to what I have listened to this afternoon. It is desirable that the definition of sustainable development should be filled out, not least because of the suspicions that many people currently entertain in this country that sustainable development is no more than a euphemism for development at all costs.

I know that that is not the Government's intention but that is unfortunately the impression that has gained some currency. It would be desirable to fill out the definition in order to reassure people and in order to provide better clarification and guidance for planners and would-be developers as well as for the communities that would be affected by the development.

We should be grateful to the noble Lord, Lord Greaves, for having tabulated so many of the components of sustainable development in an appropriate sense. I agree also with the right reverend Prelate that, however we formulate this, it ought to be clear that the spiritual dimension of our human existence is something that is to be supported and sustained in this process of sustainable development. I am also attracted to what my noble friend Lady Andrews had to say about incorporating references in appropriate wording on cultural and heritage matters. One might also add that it would be desirable for a definition of sustainable development to incorporate language relative to design, and that it should stress the importance of good design processes in achieving sustainable development.

I think that what I am saying illustrates that we are not yet in a position to agree on a definition of sustainable development, other than in the succinct—perhaps too succinct—Brundtland definition, which the Government use in the draft national planning policy framework. I am also wary about incorporating rhetoric and aspiration in legislation. It seems to me that our legislative tradition in this country is to be as specific as we can about legislation, to enable the courts to interpret it in a practical and expeditious fashion.

I agree also with the warning uttered by the noble Lord, Lord Deben, that if an elaborate definition is placed upon the Bill, there is a danger that it will be almost an invitation, if not a challenge, to litigants to try to exploit it, whether their intention is to prevent or promote development—although the former is more likely. If the practical upshot is that development would be quite seriously inhibited by placing a more complex definition of sustainable development on the Bill, then perhaps we should be very careful indeed about doing that.

It seems to me, therefore, that if we are to fill out the definition, the right place to do this would be in the national planning policy framework itself, which is the gloss upon the Bill. This is the document that explains and interprets to the lay person, and all sorts of practitioners, the policy of the Government and what they seek to achieve through this legislation. Again there are difficulties, partly because there is not yet a sufficient consensus about how to define sustainable development. At least if you have a national planning policy framework, it is possible to update it from time to time without having to resort to all the processes of primary legislation.

Even if we put a complex definition into the national planning policy framework, that may still make the process more susceptible—too susceptible—to litigation. It depends upon the legal standing of the national planning policy framework, but I think that it does have some sort of legal status. So, I just counsel caution about this. I really do counsel caution about trying to place a satisfactory definition on the face of the Bill, and I think that we should even be rather cautious about trying to elaborate the advice given—the guidance—in the national planning policy framework.

[Baroness Hamwee]

My Lords, perhaps it is a little impertinent of me to deny a compliment that has just been given by the noble Lord, Lord Howarth, to my noble friend Lord Greaves, but he congratulated my noble friend on tabulating the items, when I think my noble friend would say that he copied it out. The noble Baroness, Lady Andrews, referred to familiarity and we will all have recognised the words.

I would like to use this opportunity to ask the Minister a question. I have heard her say on a different occasion that two of the five principles are not as appropriate to planning as they are to other parts of government. These two principles are the use of sound science and the promotion of good governance. For my part, I must say that they both seem entirely appropriate. On the subject of science, let me just mention climate change and flooding. Governance, after all, is used both in the creation of local plans and in dealing with planning applications, as well as more widely. So they both seem to me to be appropriate. If that is to be a part of the Minister’s response, I hope that my noble friend can spell out why that is so. I am open-minded to hearing it, but I will be interested to hear the detail.

[Lord Berkeley]

I have some worries about the whole concept. Many noble Lords have talked about what should and should not be on this list. It is a very good list, and the noble Lord, Lord Greaves, certainly deserves a lot of credit for putting it together, if that is the right word. But there is not so much in it about development. There is lots about sustainability, which of course I love, but my slight worry is that—notwithstanding the debate going on at the moment about the presumption in favour of development, which I am sure we will talk about later—if there is to be development, it has to be done in an environmentally friendly way but must also be reasonably cost effective.

A Treasury report was produced by Infrastructure UK last year. It said that the civil engineering developments in this country are probably 60 per cent higher than they are in Germany, and goes on to say that the labour costs are much the same. The conclusion that one should probably draw from that is that the difference is to a large extent taken into account with the complexity of planning. Of course we need to have planning but, as my noble friend said just now, if we go too far down that road it will be a lawyers’ bonanza and take a very long time and nothing will get built. In the end, we are in the end going to be competing with other European and world countries about what we produce.

It is useful to have a definition. I think that we need more in it about the development side, so that is sustainable. But we must also recognise that one of the benefits of having something like this in the Bill, and possibly the national planning policy framework, is that it enables us and other people to help to hold the Government to account. Governments in the past 20 or so years, ever since John Major apparently invented the world “sustainability”, have all paid lip service to sustainability and a green environment until life got difficult. We have the 80 per cent carbon reduction target. The last Government made some attempt to go towards them, and this Government are also making some attempt, but if you look to where they have got to, in my view, many people will think, “Thank goodness that we will have retired and may even be dead by the time it comes into force in 40 years’ time—so it does not really matter”.

Yesterday the Department for Transport announced a trial of longer lorries. That is great for the environment, is it not, and great for road accidents and the quality of life? There is need for much more joined-up government right across these things, and some clauses like this would help us to hold the Government to account. I believe that we can get growth and development in a sustainable way, and this is a good contribution towards it—but possibly putting it in the national planning policy framework would be easier, and we could have a much better debate about what should be in it.

[Lord Lucas]

My Lords, I find myself very much siding with the noble Lord, Lord Howarth, on this. Sustainable development is rather like well-being; it is a concept that we think we know when we see it, and occasionally we will try to pin down what it means in definitions like the one we see before us. But actually it means different things in different times and different places, and should do so.

The development of a nuclear power station, looked at on a very local scale, is completely unsustainable, but on a national scale it may be sustainable. So scale is very important. Likewise, something which on a national scale may be an undesirable policy may be just what a village needs in order to flourish.

Again, when you set out a definition like this, even without including design or spirituality, you find that in every individual instance bits of the definition do not apply, or apply in very perverse ways. How does one apply great chunks of this definition to, say, the siting of a sewage farm? There are bits of it that do not seem to hang in there at all under those circumstances—

17:00

[Lord Jenkin of Roding]

An illustration of what my noble friend is talking about is that it is a developer who builds a new house in the forest, and an environmentalist who goes and lives in it.

[Lord Lucas]

That is a nice illustration. There are bits of wording; as my noble friend Lord Deben said, if we are going to put something in legislation, then we must produce something that works in the courts. An authority must know that it is complying with the law and other people must be able to judge whether it has complied with the law. There are bits in here which are frankly impossible from that point of view. The words “of all” appear several times, and completely remove the definition from reality when it comes to deciding the matter in a court. There are things about future generations, where we cannot know or even begin to imagine. We hardly know what is happening to the economy next week, let alone what will be the effects of a future development on future generations. We can do our best to assess that, but we cannot be held accountable for whether it does or does not; one just produces an immediate morass in the courts if one goes down that route.

There is a lack, as several noble Lords have said, of development, or the understanding of development. If you are going to assess a sustainable development you have to look at it as a whole, as a picture of everything that is happening, and not its individual bits; as a picture of what will happen over time, and not at any particular instant. There is no recognition of that at all in this definition. You could trip up a development just because it is doing a bit of harm to something, even though looked at as a whole it was doing good.

Indeed, many developments harm things but do good in other ways, and some developments compromise the ability of future generations to meet their own needs. Every time you take a bit of coal, gravel or gas out of the ground, that is not available to future generations. It is inevitable that we are living with compromise and fuzziness in this area. It is up to us to do our best by some well designed guiding lights, but we should not try to pin down a legal definition to something which is not suitable for it.

[Lord McKenzie of Luton]

I thank the noble Lord, Lord Greaves, for moving this amendment. We have added our names to it and give it our full support. On a point of detail, I wonder if the reference to the Planning Act in subsection (3) of the amendment should be 2008 rather than 2004. I particularly commend the spelling out of the guiding principles rather than the adoption of the usual shorthand of the 2005 principles.

The amendment adopts the formulation of promoting sustainable development rather than contributing to it or furthering it, which we discussed in Committee. As the noble Lord said, this amendment would enshrine in primary legislation the duty to promote sustainable development at every tier of the process, including the Secretary of State, although the duty imposed on the Secretary of State relates only to the functions concerning applications for development consent, and this would not appear to cover, for example, the Secretary of State’s engagement with promulgating a national planning policy framework. We might just reflect on that.

There has been a divide in part of our debate today between those who say that these definitions should not be in primary legislation, those who say that it should be in the national planning policy framework and those who say that we should not necessarily seek to spell these out at all. We believe that it is right for it to be in primary legislation. I agree with the noble Baroness, Lady Parminter, on that. A number of noble Lords, including the noble Lord, Lord Deben, and my noble friend Lord Howarth, queried whether doing so in a sense gives litigants a chance to challenge every decision whichever way it goes. I would argue a corollary: that not having a reasonably sophisticated framework in which these things can be judged equally, if not creating a greater opportunity for litigation, which is one of the key issues with the national planning policy framework as it stands, is a lawyer’s charter.

The noble Lord, Lord Lucas, said that we cannot possibly live every part of our life by this wording. He is right. There will always be a balance, a judgment, to be made about future generations and the current, and about local and national. To do that within the context that this wording creates gives us a real opportunity of achieving what we would broadly all sign up to.

When we discussed this matter in Committee, I understood that the Minister had indicated no change to the Labour Government’s position on the meaning of sustainable development. I think that we had one exchange and I thought that that was confirmed. If this is correct, it is very hard to see how this is reflected in the draft NPPF, which might be interpreted as giving primacy to economic development and be a view that the noble Lord, Lord Deben, may support.

A number of inclusions or omissions suggest a move away from the definition reflected in the amendment in the name of the noble Lord, Lord Greaves. The abandonment of brownfield first, the lack of content around social justice or equality and weaknesses around affordable housing proposals do not seem consistent with no change to the definition of sustainable development. If this debate does nothing else, it gives us the opportunity to hear directly from the Front Bench whether that definition is something to which it adheres, however it may be expressed in legislation or be the framework itself.

The right reverend Prelate raised spirituality and the extent to which that is included. One might argue that it is encompassed within ensuring a strong, healthy and just society, which may be the root to addressing the issues identified by the right reverend Prelate. The noble Lord, Lord Deben, referred to sustainability as being what conservatism was all about. I read these principles and say that it is a fairly good description of what socialism is all about. I am not quite sure what conclusion we might reach from that. It will never be an all-encompassing definition. Certainly, it seems to me to be not inappropriate, if we can get this in the Bill, to spell it out, to expand it and to meet the aspirations of my noble friend about including cultural in the definition. It seems to me that a strong strand from this debate is that there does not have to be a conflict between growth and the environment. The two can be encompassed. There will always be a balance in that judgment.

I was as interested as ever to hear from the noble Lord, Lord Jenkin, about his earlier experience and his historical references. He was there right at the start, although perhaps there is a competing claim that it was the noble Lord, Lord Deben, who produced, via John Major, the term “sustainability” first. I do not mind who produced it first but we should seek to make sure that we encompass it in these important planning changes before us in the most appropriate way.

We would sign up to the definition and to it being in the Bill. Given where we are in this process, it is very important that we have a clear position from the Government certainly no later than Third Reading. Whether we get partial satisfaction today on this remains to be seen but we certainly cannot let it drift beyond Third Reading. If the Government are not able to bring something forward by then, I urge the noble Lord, Lord Greaves, to revisit this—we would support him—and test the opinion of the House.

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

My Lords, in the daily horoscopes sometimes I am a Virgo and sometimes a Librarian. Today I shall be a Librarian because they are hugely well balanced and see both sides of any discussion. That is precisely the position that I am in today. It has been a very helpful discussion with, as so often, real feelings behind it. From the outset, I shall say that I hear what everybody has to say about this. I may not be able to provide a definitive answer by the end but we are getting nearer to one.

The balancing act here is to do with the question of a definition. The noble Lord, Lord Howarth, put his finger on it: the more you define it, the more trouble you get into legally. This is something that we have to take into account. Indeed, what we have also learnt from the debate is that there are potentially still extras that people would like to put into the definition. I fully see why and accept the wish of the right reverend Prelate to see spirituality included, and what the noble Baroness, Lady Andrews, said about culture and heritage. I hear what my noble friend Lord Cormack says about the importance of development enhancing. However, with this we begin to string out a lot of things that sustainable development is meant to cover. This is a difficulty that perhaps both Governments have had over the period. We all believe in sustainability. We can all define it to our own satisfaction, but the question is whether through that definition you end up in a legal minefield. The comments and speeches today have been very helpful in that regard and will certainly take us forward.

The first thing that I want to say is that we support the principle that planning should promote sustainable development. Indeed, it is central to the approach that we have taken in the draft national planning policy framework. The framework, as presently structured, makes it clear that planning has three pillars: the environmental, the economic and the social. Those are the three pillars that contribute most to a planning decision. We fully recognise that we have to balance those three elements.

Secondly, we also believe that the objective of sustainable development is appropriate for statute. There is already a duty on those preparing local plans to do so with the objective of contributing to the achievement of sustainable development. That is already the situation. The Bill will introduce a new duty to co-operate in relation to planning for sustainable development, which will ensure that councils and other public bodies co-operate effectively on strategic planning matters, including sustainable development. Our Amendment 210D, which I will move formally at the end, would extend this principle to neighbourhood planning by placing on all neighbourhood planning proposals an explicit condition relating to sustainable development. This ensures that the principle of sustainable development runs through all levels of plan-making—strategic, local and neighbourhood.

Thirdly, I understand the desire to ensure that there is clarity and consistency in the meaning of sustainable development. We have heard this afternoon how difficult that is to achieve. Everybody sees just another little gate that they might open to put forward something that they feel strongly about. I recognise that there are strong views and, as I said at the beginning, I have heard clearly what has been said. I shall ask that we reflect on that when I come to the end.

17:15

We made it clear in the February statement on mainstreaming sustainable development—a document that has already been referred to—that we recognise that sustainable development must embrace the needs of the economy, society and the natural environment, alongside the use of good governance and sound science. All those have already been identified by noble Lords. As the noble Lord, Lord Greaves, pointed out, these are the 2005 sustainable development strategy statements, which continue to provide the starting point for how we think about these issues. They are important and widely agreed principles, and, as I said, we need to reflect on them.

I say again that I have considerable sympathy with the intentions of noble Lords in tabling Amendment 203K and with those who have spoken. At the same time, I am concerned that putting this amendment on the face of the Bill could give rise to the sort of significant, although perhaps unintended, consequences that the noble Lord, Lord Howarth, and others have already mentioned. Indeed, my noble friend Lord Jenkin, in wise words, said how difficult it is to provide a long-term definition and one which will be, if we put it no lower, sustainable. I think that, whatever we do and however we approach this, it has to be recognised that the definition will be high level, otherwise we will spend more time in the courts that anyone would care to think about.

The amendment would introduce an extremely broad new duty applying to any function under any Act relating to planning. This would mean that individual planning applications would be caught. Therefore, every decision-maker, on every decision, however small, would need to show how they had sought to promote sustainable development. Not only could that result in a disproportionate amount of box-ticking to avoid the risk of challenge to decisions but it would tie up planning committees for hours while they tried to sort out whether the plan achieved sustainable development.

As we see the situation at the moment, we believe that the right place to enshrine the objective of sustainable development is in plans—that is, not individual plans but local development plans, national framework plans and so on. It is the plan-led system that we all value. It is the one that people all agree on, it is the one that goes out to consultation and it is the one that is used to weigh up applications and integrate different goals. It is also the local plan which sets the framework within which individual planning applications are assessed. That is why we think that our Amendment 210D is important.

In defining sustainable development—we have had a lot of discussion about this—we must be careful that, in seeking to capture the key elements, we do not define it to such a degree that we either dilute that essential core or impose requirements that it would be difficult or impossible to meet through the planning system. I keep emphasising “planning system” because some of the pillars that have already been identified in 2005 are generic—they go right across our departments—and they do not specifically relate to value. Apparently the noble Baroness, Lady Parminter, felt that they could. However, I think that there is a discussion to be had about whether they can.

My noble friend Lord Deben also raised a concern about definitions. I like the fact that he and, a little earlier, Prime Minister Major did “sustainable” and “development”. That is a good matter to have had clarified today.

I worry somewhat about the amount of detail with which the amendment defines sustainable development and whether all the tests would have to be met in each and every application. How, for example, would someone assessing an application for a small extension to a house—a loft extension, for example—make sure that it was sustainable in terms of any definition? We have to look at those aspects.

I believe that the essential point in applying sustainable development to planning is to meet the social, economic and environmental needs of the present, in a balanced way. I say “of the present” because I agree that trying to plan for the future is pretty difficult. The noble Lord, Lord Lucas, suggested that we have trouble getting from one day to the next without worrying about what will happen in 10 years’ time. We do not want to compromise the ability of future generations to meet their own needs, which may be entirely different from our own.

While I have real concerns that this amendment could have significant unintended consequences, I am not unsympathetic to its intent. We want to make sure that our commitment to securing sustainable development through planning is absolutely clear. I ask the noble Lord, Lord Greaves, not to press the amendment today, even if he intended to do so. I undertake to take the matter away and come back with the Government’s view on whether there is any way we can put sustainable development on the face of the Bill or whether, taking account of what the consultation on the draft national framework may say, it is more appropriate to include it in there. I am not promising that the Government will do either but I assure the House that I will take the matter away and come back with a response before Third Reading so that if more discussion is needed at Third Reading it can take place, as the noble Lord, Lord McKenzie, pointed out. I hope noble Lords will accept that as a genuine offer in view of the points that have been made. We will try to put flesh on the bones with regard to this matter.

As everybody knows, the consultation on the national planning policy framework has not yet closed and I cannot therefore prejudice what will be in it. I believe that 10,000 responses to it have been received so far, which will have to be gone through. We are also going to have two further debates on the national planning policy framework. I was surprised to discover that one will be held tomorrow, particularly as we may well have finished this part of the Bill by then. However, I am looking forward to it. There are 16 speakers. The Government anticipated the House’s desire to talk about the national planning policy framework and have tabled their own debate for 27 October. Therefore, if anybody says by the end of these debates that they do not know anything about the national planning policy framework, I simply will not believe them. As I say, I will take the measure away and come back. What we have to try to balance here is the desirability of having a definition with the consequences of the legal aspects, which can be a potential minefield. I ask the noble Lord, Lord Greaves, not to press the amendment.

[Lord Greaves]

My Lords, I am grateful for that extremely helpful reply from my noble friend the Minister. I am particularly grateful to her for reiterating that the Government believe that sustainable development is built on three pillars—economic, social and environmental —and that balance is required to resolve this matter. That is crucial. I included the statement of existing government policy in the amendment but I certainly accept that it may not be appropriate to include this detail in primary legislation. Nevertheless, I commend the principle of the three pillars and balance to the Government. I hope that they will build that into whatever solution they come up with. As the Minister and other noble Lords have said, the problem we have when moving amendments and deciding what form this Bill should be in when it leaves this House is that it is running in parallel with the national planning policy framework. The question of sustainable development is one of the key areas—probably the key area—which links the planning aspects of the Bill with the NPPF. We are shortly going on to discuss a further amendment which would do it more overtly, but regardless of whether that is to be done, the link exists and is fundamental and a lot of the concern about sustainable development has arisen, as many noble Lords have said, from the wording in parts of the NPPF.

I am extremely grateful for the astonishing amount of experience, knowledge and common sense which noble Lords have contributed to this debate. The noble Lord, Lord Jenkin of Roding, said that the problem with sustainable development is that, “It means what I want it to mean”. That is indeed the problem, but, despite that, the words “sustainable development” now litter legislation, particularly planning legislation. They also litter the Bill: the Minister’s little amendment tagged on to this group adds a requirement of neighbourhood development orders to promote sustainable development. It is normal practice in all legislation that when a Government use a term such as this it is defined in that legislation. It is normal practice precisely because the people taking action under the legislation know what it means and the courts can look at it, define it and interpret it. All Governments since, we now discover, my noble friend Lord Deben invented the term “sustainable development” for John Major—

[Lord Deben]

What I said was that that was the first time it was mentioned by a Prime Minister. It was well around in those days. I would certainly not claim anything other than being a mere conduit.

[Lord Greaves]

Well, ever since my noble friend conducted it, if that is the verb that comes from conduit, I am not sure—I have forgotten the point that I was making in relation to that, so there we go.

That is right, it is a policy statement. It can be put as a policy statement and it is existing government policy—it is still there on the website and it is confirmed. However, it was effectively confirmed by the statements in February of this year. But there is, of course, a difference—a huge difference—between government policy, on the one hand, and the words that appear in legislation on the other, and certainly a great difference as far as the courts are concerned. I understand all that. Nevertheless, the Government are on something of a hook over this matter because of the controversy about the national planning policy framework. If we can help the Government to get themselves off the hook, we will be performing a service not only to the Government but to the country.

I was grateful for the contribution by the right reverend Prelate the Bishop of Wakefield. I am not sure that I understood all the theological allusions. I spent my teenage years living on the Yorkshire coalfield near Wakefield and I admire his skill in combining a speech about deep theological matters with what in those days we called the new pit villages but are now the former pit villages. I am not sure that I understood all the theological stuff, but I agree with his basic points.

The Minister has offered to take this matter to Third Reading—we have another fortnight. I am extremely grateful for all the debate and discussion that has been taking place with her Bill team and with her and other Ministers on this matter. They are, in her words, “getting nearer”. I am aware that they are not yet there—they are having terrible trouble with their lawyers, who keep finding reasons why they cannot do things—but those discussions are going on. I will bring it back on Third Reading on the grounds that that will, at the very least, give the Government the opportunity to say how much further they have got by then, if the Minister does not bring something back to Third Reading herself. On that basis, I hope the House will give me leave to withdraw the amendment.

Amendment 203K withdrawn.

17:30

Amendment 203L

Moved by

[Lord McKenzie of Luton]

203L: Before Clause 97, insert the following new Clause—
“National Planning Policy Framework
(1) The Secretary of State must issue, designate and update a National Planning Policy Framework, which will establish policies to achieve sustainable development in the development and other use of land.
(2) Such policies should relate to mitigation of, and adaption to, climate change.
(3) Before designating a document as the National Planning Policy Framework for the purposes of this Act or before amending any such document, the Secretary of State must carry out an appraisal of the sustainability of the policy set out in the document or any amendments to it.
(4) A document may be designated as a National Planning Policy Framework for the purposes of this Act only if any consultation, publicity or parliamentary requirements set out by the Secretary of State have been complied with in relation to it.
(5) The requirements in subsection (4) above apply to any amendments to a National Planning Policy Framework.”

[Lord McKenzie of Luton]

My Lords, the purpose of this amendment is to impose a duty on the Secretary of State to produce and keep up to date,

“a National Planning Policy Framework, which will establish policies to achieve sustainable development … including mitigation of, and adaption to, climate change”.

This also requires a consultation process and a parliamentary process.

I am aware that some would argue against this proposition and that it opens the door to giving parliamentary sanction to a framework that they may consider to be flawed. However, given the potentially profound effect an NPPF can have, we consider that the better argument is for Parliament to be able to have its say. Obviously we welcome the opportunity for upcoming debates in your Lordships’ House—even two of them—but this is not a substitute for a proper parliamentary process.

I remind noble Lords that the coalition agreement said:

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

As I said in Committee, if that commitment can be enshrined in the coalition agreement, why not in the Bill? To be clear, the amendment does not seek to put the NPPF in the Bill; it simply seeks the obligation for one to be produced and updated and to be subject to a consultation and parliamentary process, which can be determined by the Secretary of State.

When we debated this issue in Committee, we did so in the absence of an official draft of the NPPF. This of course we now have, although it did not see the light of day until we were embarking on the Summer Recess. Indeed, the announcement of the planning framework while Parliament was not sitting increased fears that Ministers were trying to steamroller through important changes without proper scrutiny or debate. An assurance of a proper consultation and parliamentary process could have lessened these fears and potentially obviated some of the more unpleasant exchanges that ensued via the national press.

This amendment does not seek to spark a debate on the merits or otherwise of the NPPF, but there can be no doubt about its significance, whatever its final form and interpretation.

[Lord Jenkin of Roding]

The noble Lord has accused the Government of trying to sneak through the framework document because it was published during the recess. I am quite sure that he will have had, as I have, a letter from my noble friend that says:

“We are keen to take every opportunity to consult on and improve the text of the draft framework. We are inviting the Communities and Local Government Select Committee to comment … and are seeking to secure time for both Houses to consider the draft framework in the autumn”.

Did he have that letter?

[Lord McKenzie of Luton]

Yes, I did. The point I was making was that the document came at the start of the recess and not everyone out there got that letter—and there are plenty of people out there with a very keen interest in the NPPF. We as parliamentarians may have done; others did not. If in fact the Government are happy and prepared to have these processes then let us get it enshrined in the legislation so that it can operate in the future as well. As I said, an assurance of a proper consultation and parliamentary process could have lessened those fears and potentially obviated some of those very unpleasant exchanges that took place.

The presumption in favour of sustainable development, the definitions of sustainability, the implications for the green belt and green space, the impact on housing, particularly affordable housing, and town centre policies are all matters that go to the heart of our national life. Planning is an important democratic means of mediating between different interests, in the public interest. There must surely be due process and a role for Parliament. Despite some misgivings, I understood that it worked for the national policy statements. I took it from our exchanges in Committee that the Government were not averse to this approach—indeed, if they are going to facilitate a process before Parliament, that would seem to support that conclusion. In the light of experience of the NPPF to date, I invite the Government to accept this amendment. I beg to move.

[Lord Berkeley]

My Lords, I would like to ask the Minister a simple question. Under the Planning Act 2008, the national policy statements—which I think everyone welcomed at the time—require parliamentary approval and debate. I do not think that there has been any problem with that. They require consultation and they have had it, although some of them are receiving it rather later than some of us would like to see, though I am sure that they will come eventually. It seems to me that the national planning policy framework is a sort of parallel document to the national policy statements for planning and in respect of other smaller developments which do not come within the scope of the NPSs. As the NPSs have a link to the planning legislation, it seems logical that the national planning policy framework also should have one. I welcome the consultation and the debates that we are going to have. It would, however, seem to make it a simpler and clearer structure if there was a reference in the Localism Bill to the NPPF—not what it should say or anything like that, but just a reference.

[Baroness Hanham]

My Lords, there could have been no doubt that the draft of the NPPF was coming out: we have had several discussions in this House and I made it quite clear that it was coming. It has been on the website since the day that it was published and some of the detailed comments on it bounced out almost the following day. So there has been a good opportunity for people to form their views. That is what the consultation is all about, and having got the 10,000 or so responses—indeed it may have gone up by another 2,000—by today, there will be ample opportunity to hear people’s views. I hope that this will happen in a balanced way, because some of the discussion so far has been extremely unbalanced and not at all helpful. I think that it is calming down now and proper discussions are taking place against a real background. We can move on from there.

We are going to have two opportunities to discuss this further. In reply to the question from the noble Lord, Lord Berkeley, the national planning policy framework is not an adjunct to the policy guidance statements; it is in replacement of. Somebody told me how many thousand pages the policy guidance statements run to and it was something like 1,500. They are becoming very big, very wide, and very difficult to work through to discover the actual policy. The framework is an attempt to cut those down without losing the emphasis and the position that they took.

That is the reason why the Government will be listening very carefully to what is said and what the consultation brings forward so that we do get this right. It is extremely important as it is the background to all planning decisions in the future and for the understanding of the things that we all hold precious—the heritage, the green belt and everything that makes up planning. So the consultation is real and will bring results. My honourable friend Greg Clark, who is in charge of this Bill, has already made it clear that he is very open to discussions on this.

I do not propose to worry the House much more about this. I hope that I have answered the relevant questions. If I am not careful, I will get myself in trouble—and having said that I was a nice, balanced Librarian, I do not want to do that. Having made my point about policy statements, I had better read out what this says because otherwise I will get the wrong thing in Hansard. The national planning policy framework is a very different document from national policy statements. National policy statements are the key documents for deciding on major infrastructure proposals. The national planning policy framework is used to inform the preparation of local plans. Local authorities must only “have regard to” the national planning policy framework rather than follow it specifically. I am sure that noble Lords understood that clearly, and I apologise if I misled the House on the way.

I am looking forward to the debates that we will have, particularly the one tomorrow. Perhaps I may comment briefly on the substance of Amendment 203L, to which the noble Lord, Lord McKenzie, spoke. The amendment would put in the Bill provisions about the form and content of the NPPF—I ask noble Lords to forgive me if I stop talking about “the national planning policy framework” because I am tripping over the words all the time. I have heard the arguments about the need for the NPPF to have legislative force to reflect its importance. However, there is no doubt that everybody—the public, councils and the development industry—understands the importance of the NPPF. It is unnecessary to legislate further to give it status. Existing planning Acts already require a local planning authority, when making plans, to have regard to the policies and guidance issued by the Secretary of State. That is why the NPPF is government policy. Government planning policy and guidance is also capable of being a material consideration in the decision-making.

It is clear that the NPPF will bite in the same way as the previous policy guidelines on local decisions, and in a way that is understood. Putting it into legislation would risk changing the legal status of the framework in relation to local plans. It would cut across the primacy of locally prepared development plans. That is not what any of us want. The amendment would also mean that the policies of the NPPF would have to relate to addressing climate change. We all agree that that is crucial, but it is entirely unnecessary to legislate in this manner. There already exists a climate change duty on local plan-making. Local communities preparing plans can be in no doubt about planning’s important role in climate change, and about the Government's commitment to this issue. The draft NPPF makes it crystal clear that this is the situation as regards primary legislation. We propose that planning should fully support the transition to a low-carbon economy in a changing climate, taking full account of flood risk and coastal change. There is no need to go any further than this.

The noble Lord’s amendment also requires the planning framework to be subject to a formal appraisal of sustainability—here is that word again. The argument has been made by a number of organisations and we take it seriously. However, we are clear that the framework does not trigger the requirement for a strategic environmental assessment or a sustainability appraisal. It is not a plan or programme required by legislative, regulatory or administrative provisions, as set out in the Environmental Assessment of Plans and Programmes Regulations 2004. However, alongside the draft NPPF, the Government have undertaken to publish a draft impact assessment. We have invited comments on this, and will update and publish a final impact assessment.

In conclusion, the Government are entirely willing to enter discussions with all interested parties on the content of the framework to ensure that we get it right. We do not want to deliver a document which raises doubts about what we are trying to do, or one which leaves any doubts in the minds of those who have to work with it. Its status is clear so it does not require statutory provision. I therefore hope that the noble Lord will feel willing to withdraw his amendment.

17:45

[Lord McKenzie of Luton]

My Lords, I thank the Minister for that reply. Parts of it, I am bound to say, I thought were a little strange. In terms of the comparison with the national policy statements, she suggested that the NPPF had a lesser impact because local plans only had to have regard to it. Given where the Government are on the presumption in favour of sustainable development and where they are so far on transitional provisions, is it not the fact, or the likelihood, that unless something else changes before we conclude with this legislation, the NPPF will be the key document for determining a whole range of development applications? This is because local plans may not be up to date or complete for all the reasons that we are going to discuss shortly. To make that distinction therefore seemed to me somewhat strange.

The noble Baroness also said that there was no statutory requirement to have a sustainability appraisal of the NPPF. But is there a statutory requirement—again we are pre-empting an amendment we will come to—to have a sustainability assessment associated with the revocation of regional spatial strategies? If the Government are doing an assessment for that on a voluntary basis, as I understand them to be, then that does not seem to be a very coherent argument for not having an appraisal of the NPPF.

We are partly looking back, and partly shutting the stable door after the horse has bolted on the first NPPF, but this is looking forward as well. It deals not only with the existing NPPF, but requires there to be some parliamentary process attached to it. Of course I accept that we have two debates, by one route or another, coming up in your Lordships’ House. I am not sure what the arrangements are at the other end; the Select Committee always has the opportunity to review a policy and hold the Government to account. However, that is not the same as having a formal process by which Parliament can have its say and express its opinion on this hugely important document before it is finalised. If the NPPF were so insignificant and something that people only had to have regard to, then why on earth has there been this great furore both inside and outside Parliament? It is partly because of trying to understand the Government’s intent, and I can see that that can be resolved in due course. I also accept that the Government are as a matter of fact involved in a lot of consultation and discussion, and that is to be welcomed. But what is so wrong in having that as an obligation written on the—

[Lord Greaves]

My Lords, I cannot avoid teasing the noble Lord, and I hope he will answer this question. The national planning policy framework will replace planning policy statements and such of the old planning policy guidance documents as still exist. Why was it not necessary to have a requirement for planning policy statements on the face of primary legislation if it is now necessary to have it for the NPPF?

[Lord McKenzie of Luton]

My Lords, an argument could be mounted to that effect. I prayed in aid my absence from those debates before, so I shall excuse myself. The question is a fair one, but that does not necessarily mean that the balance should come down in favour of not having this process for the NPPF. It is such a hugely important document. One has just to look at the impact assessment of some of the changes being proposed covering town centre and parking policies. These things are very important and really go to the heart of our national life in so many respects. It is about communities, how we conduct our lives and how we plan for the future. To take that formally outwith Parliament does not seem to be right. In the circumstances, I am inclined to test the view of the House on this matter.

17:50

Division 3

Ayes: 140

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Labour: 120
Crossbench: 14
Independent: 1

Noes: 217

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Conservative: 135
Liberal Democrat: 59
Crossbench: 16
Ulster Unionist Party: 3
Democratic Unionist Party: 1
Independent: 1

18:05

Clause 97 : Abolition of regional strategies

Amendment 203M

Moved by

[Baroness Hanham]

203M: Clause 97, page 75, line 7, after “sections” insert “70(5),”

[Baroness Hanham]

The Bill currently provides for the revocation of the eight existing regional strategies outside London and any remaining county structure plan policies saved as part of the transitional arrangements following the Planning and Compulsory Purchase Act 2004.

Government Amendments 203M, 203N, 203P and 203Q provide the Secretary of State with the power to revoke the existing regional strategies and saved county structure plan policies by a free-standing order-making power. Amendments 203S, 203T, 248ZD, 248ZF, 248ZG, 248ZH, 248ZJ, 248ZK and 249F are consequential amendments. These are largely technical amendments that will provide the Secretary of State and Parliament with an opportunity to consider the environmental assessments of the revocations that we are undertaking before decisions are made on whether to revoke the existing regional strategies and remaining saved structure plan policies.

The Government intend to lay orders in Parliament revoking the existing regional strategies and saved structure plan policies as soon as possible after Royal Assent of the Bill, subject to the outcome of the environmental assessment process. In the mean time, councils should press ahead in preparing up-to-date local plans. These plans will be important in defining strategic priorities and setting the context for neighbourhood plans. Up-to-date local plans also provide councils with the opportunity to control how development and growth are planned in their area and they provide the basis for planning decisions. Until they are revoked by order, local plans must be in general conformity with regional strategies which remain part of the development plan.

Amendment 204E is a technical amendment that closes a loophole to ensure that the local plan meets the statutory requirements and is sound. This is an important amendment, otherwise councils could adopt a local plan without complying with the duty to co-operate. I beg to move.

[Lord Beecham]

My Lords, I was taken with the Minister’s venture into the area of astrology earlier. However, I think she called herself a “Librarian”. I think a librarian is someone who works in a library. I think she meant “Libran”, which is rather different. I hope she will forgive me if I assume the role of a scorpion when we look at this amendment, as Scorpio is my astrological sign.

I am slightly puzzled by the explanatory letter that the noble Baroness circulated a couple of days ago. Perhaps, in her reply, she will be kind enough to elucidate it further because the letter refers to,

“an environmental assessment of the regional strategy”.

I am not sure what that means. Are only the environmental aspects of regional strategies being assessed? Could she explain how the process of assessment is taking place? The letter also says that this is on a “voluntary basis”, which I take to mean that it is a non-statutory exercise and that the Government will be consulting on these documents shortly. I do not know whether those documents are yet available or, if so, where they might be obtained, but I would also be grateful if she could indicate the nature of the consultative process. For example, we now have local enterprise partnerships, so will those partnerships be consulted? I assume local authorities will be, but one could also assume that those partnerships would be involved in all that.

Like other Members of your Lordships' House, I regret the demise of all the regional development agencies, although I accept that in some areas they were not particularly effective or popular. However, I suspect that we may see, just as in health, the quiet restoration of something rather similar—perhaps more at the sub-regional level, but no doubt under another name. I hope that the Minister will be able to confirm that that approach of looking at sub-regions will be part of this assessment and will also take note of some of the other developments in policy over the past few months; for example, the creation of enterprise zones and the operation, such as it has been, of the regional growth fund. These matters are clearly relevant to the planning regime, but it is not clear whether and to what extent they will be part of this assessment.

This group also refers to the position of transitional arrangements. The noble Lord, Lord Best, will no doubt be speaking about that, and I do not want to anticipate what he will say, but I strongly support the terms of his amendment because there is a considerable danger of a gap which would create difficulties in the light of the arrangements that the Bill contains. I hope the Minister will consider sympathetically the amendment that the noble Lord will, no doubt, move shortly. I would be grateful if the Minister could clarify, if not today, then subsequently, the questions I have raised.

[Lord McKenzie of Luton]

My Lords, like my noble friend I was puzzled by this group of amendments, and I hope the Minister can help us on a range of points. This seems a further twist in the saga of regional spatial strategies. The Secretary of State sought to do this by diktat and was ruled out of order, then it was provided for in the Bill before us and now, according to the letter from the Minister to which my noble friend Lord Beecham referred, by a stand-alone order-making power. Along the way, the Government seem to have determined voluntarily that they wish to undertake an environmental assessment of the revocation of the regional strategies and the structure plan policy, so it is the process of revocation which is the subject of that assessment.

Can we hear a little more from the Minister about how this all came about? At what point was the decision taken to undertake an environmental assessment of the proposed actions? Who is conducting the assessment and what are its precise terms of reference? How long is it expected to take? What is the status of local development frameworks in the interim? Can the Minister explain how this fits together with the NPPF and, in particular, the presumption in favour of sustainable development? We know that there are local plans which, together with existing regional spatial strategies are, one might say, complete one day but not the next, unless the transition provisions are put in place. The statement that we want to do away with regional spatial strategies as soon as possible and then the caveat about “subject to the sustainability assessments” smacks a little of predetermination rather than predisposition. Does this hold out the prospect of some regional spatial strategies being revoked and others not? If so, how does this all fit together? Is there not a risk that all this just creates further uncertainties in the planning world? Will the order be subject to the affirmative or negative arrangements? The Minister may say that this is all code for having some fairly loose transitional provisions, but this seems a rather strange set of amendments. Like my noble friend, I would greatly appreciate some further explanations.

18:15

[Baroness Andrews]

Perhaps I can buy the Minister some time while she looks at her notes by asking another question about the nature of the order. Why is an order necessary? Does this help to deal with the issues we raised in Committee about transitional arrangements that would have involved saving part of the regional strategies where they were relevant to the LDFs, so that local authorities would not have to repeat all the work that went into making that part of whatever strategy had been located in the regional strategy? If so, it would be very welcome.

[Baroness Hanham]

In reply to the noble Baroness’s question, the noble Lord, Lord Best, has an amendment on transitional arrangements that we will get to later, so perhaps we can deal with that when we get to it.

I will answer as many questions as I can and then, if the noble Lord will forgive me, I will write on those I have not answered. The public consultation is 12 weeks. Local enterprise partnerships will be able to respond if they wish. They are not required to, but they will be consulted as one of the organisations that will be expected to have an interest. It is an environmental assessment from the regional strategies, exactly as it says it is. Initially, if there is a major objection with one strategy that has to be looked at under the environmental assessment, it will not be able to go forward in a bulk order. At the moment, the expectation is that that order will come forward separately or they might all come forward on the same day. It is the negative process at the moment.

The intention is to revoke the regional strategies and all eight strategies as soon as possible after Royal Assent to stop muddle of any sort occurring. We can do it separately or together. The face of the noble Lord, Lord Beecham, always delights me because it is so revealing. I know when I am saying something he does not agree with. The provisions are simply to make sure that those orders can be revoked. The local development frameworks still have to conform to the regional spatial strategies until they are revoked. Anything in them that is required, even if they are developing them at the moment, will have to be taken into account.

I did not pick up all the questions asked by the noble Lord, Lord Beecham. I will make sure that he gets an answer. He has the puzzled look of one who is going to ask me again.

[Lord Beecham]

I congratulate the Minister on her anticipation. Am I right in thinking therefore that although an environmental assessment is being undertaken, upon which there will be a consultation, the revocations will go ahead anyway?

[Baroness Hanham]

I did not say that. I said that they will be put forward as soon as possible after Royal Assent. The consultation on the environmental assessment is taking place. You cannot do anything without having taken account of the consultation, so the revocations will be only after the consultation has been considered.

[Lord McKenzie of Luton]

I am sorry to ask the Minister again, but I think it is important we get to the bottom of this. Can she tell us why there is this change in approach? This was not the original plan, was it? If it was, this group of amendments would not be necessary. How does the presumption in favour of sustainable development work in the interim? For so long as those local plans and the regional spatial strategies which support them are in place, will they hold sway? That will obviously change the minute the plug is pulled, if it is, on the regional spatial strategies. I am interested to understand why and at what point it was decided to undertake these environmental assessments. Can the Minister confirm that what is being assessed is the consequence of the revocation of those strategies? It seems a fairly significant change in where we all thought we were heading and did not want to head.

[Baroness Hanham]

My Lords, I think I am right in saying that there was a legal challenge that required these environmental assessments to be carried out. It is a necessity to make sure that they are all carried forward properly. The noble Lord asked about the relevance to the presumption in favour of sustainable development. There will be no change to that until the local development frameworks are developed and the national planning framework comes in.

[Lord McKenzie of Luton]

If the noble Baroness would forgive me, I am trying to understand the status of the NPPF in the interim before—or if—these strategies are revoked. Where does that leave the presumption over that period? It seems from what she said that there has been a legal challenge which, essentially, has forced the Government to go down this route. I therefore presume that this is not just a cosmetic exercise but is real; and the consequence could be that some strategies might be revoked and others not. Is that right? It seems to me to leave an entirely chaotic situation. Does the Minister recognise that it could lead us into a situation which nobody has contemplated or to date recognised?

[Baroness Hanham]

My Lords, the national planning policy framework is being consulted upon and, once it is an approved document, it will be the document to which people will refer and will replace the regional strategies. The consultation on the environmental impact assessments is a consultation, as I have said, and we will need time to consider it. If all the orders can be dealt with at, or nearly, the same time, they will be. All I can say is that a consultation is a consultation and there are always results; you cannot ignore them so we will have to wait and see the response and the impact of it. I will not know that until the 12-week period is over and the consultation can be considered.

As for regional spatial strategies, their effect stays until they are revoked. The national planning policy framework will then either have been put forward just before that or very shortly afterwards. By that stage, anyway, it will be capable of being the primary document.

[Lord McKenzie of Luton]

I will not press the Minister again but, given what I think is a quite significant development, could I ask for the chance of discussions before Third Reading, so we fully understand all its ramifications?

[Baroness Hanham]

I am sorry that I have not succeeded in convincing the noble Lord but, yes, of course we are happy to discuss this issue further and we will make arrangements to do that.

Amendment 203M agreed.

Amendments 203N and 203P

Moved by

[Baroness Hanham]

203N: Clause 97, page 75, line 7, after “82(1)” insert “and (2)”

203P: Clause 97, page 75, line 8, leave out “(effect” and insert “(interpretation and effect”

Amendments 203N and 203P agreed.

Amendment 203Q

Moved by

[Baroness Hanham]

203Q: Clause 97, page 75, line 15, leave out subsections (3) and (4) and insert—
“(3) The Secretary of State may by order revoke the whole or any part of a regional strategy under Part 5 of that Act.
(3A) An order under subsection (3) may, in particular, revoke all of the regional strategies (or all of the remaining regional strategies) under Part 5 of that Act.
(3B) The Secretary of State may by order revoke the whole or any part of a direction under paragraph 1(3) of Schedule 8 to the Planning and Compulsory Purchase Act 2004 (directions preserving development plan policies) if and so far as it relates to a policy contained in a structure plan.
(3C) An order under subsection (3B) may, in particular, revoke all directions (or all remaining directions) under paragraph 1(3) of that Schedule so far as they relate to policies contained in structure plans.”

[The Lord Speaker (Baroness D'Souza)]

I must advise your Lordships that if Amendment 203Q is agreed to, then I cannot call Amendment 203R by reason of pre-emption.

Amendment 203Q agreed.

Schedule 8 : Regional strategies: consequential amendments

Amendments 203S and 203T

Moved by

[Baroness Hanham]

203S: Schedule 8, page 315, line 36, leave out “omit paragraph (a)” and insert “in paragraph (a) after “situated” insert “(if there is a regional strategy for that region)”.
(2) Omit section 38(3)(a).”

203T: Schedule 8, page 316, line 31, at end insert—
“Local Democracy, Economic Development and Construction Act 2009 (c.20)17A In section 70(5) (which provides for how a regional strategy is to be interpreted) for “the regional strategy” insert “a regional strategy under this Part”.
17B In section 82(2) (during the interim period, a regional strategy does not include the regional economic strategy) for the words after “For the purposes of that section,” substitute “a regional strategy under this Part is to be regarded as consisting solely of the regional spatial strategy under section 1 of the Planning and Compulsory Purchase Act 2004 that subsisted for the region concerned immediately before 1 April 2010.””

Amendments 203S and 203T agreed.

Clause 98 : Duty to co-operate in relation to planning of sustainable development

Amendment 203U

Moved by

[Baroness Young of Old Scone]

203U: Clause 98, page 75, line 33, leave out “maximising” and insert “relation to the planning of sustainable development and to maximise”

[Baroness Young of Old Scone]

This amendment and those in the group tabled by my noble friend Lord Whitty and myself relate to the duty to co-operate. The importance of this duty is indubitable and there has been considerable discussion about it. The mechanism for strategic planning is now only the duty to co-operate. It is new and the only mechanism, so it is important, not just for strategic infrastructure and economic development, that the duty to co-operate applies. It should take proper account of issues that need to be planned on a wider basis than a single authority, such as adaptation to climate change, flood risk, coastal erosion, biodiversity and other environmental measures.

To give two examples: river basin management plans need to operate on a wider basis than a single authority and they are a statutory requirement under European law. Likewise, landscape scale biodiversity can often be resolved by two or more authorities working together. The Government’s Natural Environment White Paper and the importance of landscape scale land management for conservation have already been outlined in the ecosystem assessment that the Government conducted. There are many reasons why it is really important, because this is now the only mechanism for strategic planning at a higher level than a single authority that this duty to co-operate works.

It is doubly important now because the national planning policy framework has no spatial element to it. It is simply a set of policies that do not refer to any particular part of land or the country. Since the regional spatial strategies are disappearing there must therefore be a stronger duty for adequate co-operation between local authorities.

The groups of amendments that the noble Lord, Lord Whitty, and I have tabled cover four points. Amendments 203U and 203W strengthen the wording within the duty to co-operate to ensure that co-operation is for the purpose of achieving sustainable development. The purpose of achieving sustainable development is in the heading, but not in the text of the Bill as it stands. It also tries to ensure that the duty to co-operate is linked with the sustainable development duty under Section 39 of the Planning and Compulsory Purchase Act, so that the two duties are carried out simultaneously and in a complementary way.

The second issue covered by this group of amendments to strengthen the duty to co-operate is to ensure that co-operation is consistent and complementary across administrative boundaries—Amendment 203V. The third issue is to make clear that this duty to co-operate should cover all development, not merely development that is sustainable. We seem to be falling into the trap both in this Bill and in the national planning policy framework of seeing “sustainable development” and “development” as almost interchangeable terms. Of course, they are not. If I had a pound for every development that I have argued against that was manifestly unsustainable, I would be an extremely rich woman. We should not just assume that the two are interchangeable terms.

To leave out, as is outlined in this group of amendments, “sustainable” in Clause 98 is to make sure that co-operation will be around all strategic developments whether they can truly be said to be sustainable or not. It is probably more important to have co-operation around the ones that are not sustainable. This interchangeability of the words is a worry in the way in which the Bill and the NPPF are pitched.

The fourth area covered by this group of amendments is again to ensure that the whole issue of consultation and preparation of joint documents between authorities is not optional. Amendments 203ZA and 203ZB remove the word “considering” so that it does not become an optional process but becomes a requirement to consult on co-operative approaches and on local development documents in these important strategic issues that cover more than one authority. I beg to move.

18:30

[Lord Deben]

My Lords, I have great sympathy with what the noble Baroness has put forward. However, we should be careful about putting the words “sustainable development” into every sentence. We are in a slight difficulty. As three or four authorities all have responsibility to do these things in the context of sustainable development, it is difficult to consult without doing it in those terms. Each individual consultee already has that responsibility and by the sound of what the Government are prepared to do will have that to an even greater extent. I would like to say to the Government that I hope they will be careful with the confetti element—every time there is a doubt add the words “sustainable development”. I say that as someone who is much in favour of sustainable development.

Secondly, I agree with the noble Baroness, Lady Young, that sometimes in the document the word “development” has been used when we mean sustainable development. It is important for the Government to say again that on those occasions real care will be taken to make sure that we have that right.

Thirdly, I would like to repeat the view that one day we will be able to use the word “development” and automatically mean sustainable development. That is what we would like to see, but the noble Baroness is absolutely right that that is not where we are at the moment.

Fourthly, I suggest to the Minister that the idea of a localism Bill is for it to be local. I worry when those who have always been enthusiastic about central direction suggest that on this or that occasion people should be required to do things. Co-operation is something that you do because you want to or it is not co-operation. Otherwise, you may as well return to a situation in which people are bossed about. We are trying to create a world in which we are not bossed about.

I have just looked on my iPad at the advice given to me by yet another of the green organisations that are so helpful in giving me advice, but I notice that most of them are central organisations, which find it difficult to deal with the concept that associations between Norfolk and Suffolk, for example, might be conducted differently from those between Warwickshire and its neighbouring counties.

It is very simple. The point about localism is that it will be different. We think and do things differently in East Anglia. We do not include either Essex or Bedfordshire, which the previous Government did in their curious manner. We do things differently and we will do them together because we want to not because some superior person tells us that it is good for us.

I have to warn the noble Baroness, Lady Young, that that will mean that we will often do things that she will not like but that is because we want to do them and it is our sustainable development for our place. We will want to do things in our way. The Government must not have a localism Bill that is a fraud. That means that although it is proper to say that consultation will be a duty, it is improper to say that the consultation will be a duty to be carried out in the way that the Government or anyone else suggests is a good idea.

In thinking about this, I hope that the Government will take on board the perfectly justifiable concern that we do not do things without sustainable development being close to our hearts and minds. That concern has not actually been helped by some of the statements by Ministers in circumstances that sometimes lead people astray. That was the phrase used by the noble Lord, Lord Shutt, earlier on. I thought that it was a good way of expressing it. There was a rueful look on the faces of the party opposite at the same time. They also know about party conferences. We understand that, but it means that we have a backlog to make up.

So we have to repeat the words, but we should not repeat them so that it becomes like motherhood and apple pie and means nothing. Let us also be careful that we do not trumpet localism and then suggest that the only way to get it is by telling people how to be local. We know how to be local: please let us do it.

[Lord Newton of Braintree]

My Lords, I congratulate my noble friend on showing signs of becoming the second free radical on the Government Benches in these matters. He is a better informed free radical than I am but I welcome his addition to the ranks. Secondly, I confirm, having connections with both counties, that Essex and Suffolk do not always do things in the same way. I will not judge which is best because I would be dead in one county or the other if I did, but they are certainly different.

Thirdly, I will show that I am an uninformed free radical on this occasion by saying that what is mystifying me, especially in the wake of the non-pressing of the amendment that appeared to be trying to define sustainability a few minutes ago is whether there is a definition of sustainability in the Bill. I cannot find it. If it is in the Bill, where is it? If it is not, what is it?

[Lord Greaves]

My Lords, my noble friend has missed a little of the discussion this afternoon. I have to confess that I always thought that Essex was in East Anglia and I claim to be a geographer. I stand corrected and I will never make that mistake again. All I know is that all those places in that easterly bulge in the country are deplorably flat.

The serious point that I want to make on these amendments is simply to lend my support to the point made by the noble Baroness, Lady Young of Old Scone, and the noble Lord, Lord Deben. It would be good for the Government to use “development” and “sustainable development” in a rather more rigorous manner and not confuse them with each other quite so much.

[Lord McKenzie of Luton]

My Lords, my noble friend Lady Young’s amendments are entirely reasonable and I see the thrust of them, but I thought that they were about removing the term “sustainable” from provisions in the Bill and not adding it.

On the duty to co-operate, the noble Lord, Lord Deben, makes an interesting point about knowing how to be local. However, to be local on a sustainable basis in some respects needs co-operation and engagement not only with near neighbours but on a broader front. Some of us have ongoing concerns about the demise of regional spatial strategies. They were not necessarily the answer to everything and were perhaps not perfect, but with those gone the only thing that exists between the regional strategies that were there hitherto and local authorities is this duty to co-operate.

It seems to me that there should be requirements on local authorities to co-operate. Part of the problem is knowing how extensive that co-operation would and should be—for example, on transport or waste issues. Unless there is recognition that this must be an integral part of the way forward, then I think this really is going to be a recipe for isolationism, that we are going to draw up the barriers around our little location, irrespective of what happens around us. As regards definitions of the eastern region, I can say as somebody who lives in Luton—long since known as the urban bottom of the county—that Luton and the rest of Bedfordshire do not always do things the same way. I must apologise—I have been referring to the noble Lord, Lord Gummer, and it should be Lord Deben. I do apologise. Thank you for that correction.

I hope that I have made my point. It seems to me that my noble friend is addressing the strength and importance of the duty to co-operate, and in that we support her.

[Baroness Hanham]

My Lords, I, too, am guilty of the terrible solecism of not referring to the noble Lord as Lord Deben. I have known him so long as John Gummer that Gummer naturally slipped out. None the less, I apologise.

[Lord Deben]

Perhaps my noble friend will allow me to say that one remembers the name when one remembers that Suffolk is not flat. I look down over the River Deben, and it is quite a long way down.

[Baroness Hanham]

Well, I did not make the point that it was flat. Never mind, we shall get around that.

I must say at the outset that we are committed to promoting sustainable development through the duty to co-operate. I do not want to take a confetti approach to sustainable development in every single sentence—as the noble Lord, Lord Deben, suggests we are doing—but to some extent I am going to have to in reply to this amendment.

We looked at Clause 98 in Committee to see whether there was scope to give sustainable development even more emphasis. The noble Lords, Lord Deben and Lord Newton, are concerned about the localism aspect, but there are clearly times when it is important that local authorities and others work together to ensure that there is a proper plan.

We have gone on to consider this matter carefully during the months since Committee, and Amendments 203U and 203W provide me with an opportunity to explain why I do not think further amendments are necessary. There is already a duty to co-operate on councils preparing local plans, with the objective of contributing to the achievement of sustainable development. The duty is contained in Section 39 of the Planning and Compulsory Purchase Act 2004. It will also now apply to local and county councils and all the other bodies covered by the duty to co-operate as they plan for strategic cross-boundary matters in local plans. This is the important aspect—not to negate localism, but to make sure it can be carried out where strategic plans are being developed because the proper people have been consulted at the proper time.

Councils are already required to promote sustainable development through the duty to co-operate. We have also made it clear in the title of Clause 98 that the duty relates to the planning of sustainable development, and we have put sustainable development at the heart of the strategic matters on which we expect councils and other public bodies to co-operate in preparing local and marine plans.

I hope that my description of the duty to co-operate and its relationship to the wider duty in Section 39 of the 2004 Act illustrates why we do not need to amend this Bill. We believe this policy is a more appropriate way to emphasise the important role of the duty to co-operate in promoting sustainable development, and we will consider further, as part of the consultation responses on the National Planning Policy Framework, whether that is necessary. We shall also consider whether it would be helpful to emphasise the importance of sustainable development in any guidance that the Secretary of State issues on the duty.

I understand that Amendments 203X, 203Y and 203Z are intended to ensure that co-operation between councils and other public bodies is not limited to co-operation on sustainable—and I put that in inverted commas—development. The key issue here is that the duty applies to the preparation of local plans and where they relate to strategic cross-boundary matters. Local plans will set out policies for the sustainable development and use of land.

As I said earlier, councils and other bodies covered by the duty will already have to work jointly on local plans, with the objective of contributing to the achievement of sustainable development. Given these requirements, we do not consider that Amendments 203X, 203Y and 203Z are necessary. However, we shall consider whether this needs to be addressed in guidance issued subsequently on the duty to co-operate.

18:45

Amendments 203ZA and 203ZB would provide more prescription regarding the engagement that is required between councils and other public bodies under the duty to co-operate. We agree that the duty must be effective. That is why this has already been strengthened during the Commons stages, and we have worked closely on this with external experts such as the Royal Town Planning Institute. I do not think we are going to want to up that any more; this has already been done as a result of the Commons’ intervention.

Strategic planning is not—and I think other noble Lords have suggested this—a one-size-fits-all approach. It is now localised. It needs to be flexible, allowing councils to respond to particular issues and local circumstances. Our requirements for engagement will give councils and others the flexibility to decide how to fulfil their responsibilities, rather than forcing them into specific actions. We believe this strikes the right balance, ensuring that co-operation will result in effective local plans, and strengthening accountability to local communities, businesses and interested parties. We are pleased that this view is supported by others. For example, the RTPI believes that the duty now has the potential to improve planning at the larger-than-local level and encourage effective solutions to cross-boundary issues.

The further Amendment 203V adds detail to the description of engagement required under the duty. We have looked at this text carefully, but do not think that it adds to the clause in drafting terms and have concluded that it is not necessary on the face of the Bill.

If I could amplify how extensive this duty should be, the draft national planning policy framework sets out the strategic priorities that we expect councils to address in local plans, working cross-boundary and with other public bodies. The issues include housing, economic development, environmental protection, climate change and infrastructure, which of course will deal with the transport matters that the noble Lord, Lord McKenzie, referred to.

So, with the explanation that in fact most of this is either already in or has been strengthened since coming from the other place, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Young of Old Scone]

I would like to thank the Minister for her words, and to thank the noble Lord, Lord Greaves, for his support for my worries about “sustainable” being tacked on to every use of the word “development”. I would also like to thank the noble Lord, Lord Deben, though I must admit I agree with him on the fact that Amendments 203X, 203Y and 203Z should not have “sustainable” tacked on automatically, but do not agree with him on Amendments 203V and 203W, where I think the word should be present. So that was the selective approach to using the sustainability word.

I would like to object that the noble Lord, Lord Deben, portrayed me as a top-down, centralist, Stalinist control freak. I am simply expressing concerns about the quite voluntary nature of the duty to co-operate. It is a duty, but it is not particularly well prescribed, for all the reasons that the noble Lord, Lord Deben, outlined. I just hope that if Essex and Suffolk decide that they are not collaborating at some stage we do not have a very large flood defence on the Essex side of the rivers and a very small one on the Suffolk side, because that could be rather unfortunate for the folks who decided that they did want to collaborate but were rebuffed by the folks who decided that they did not want to do so. The Minister used the word “encouragement” in the duty to co-operate. Some of these very important issues need more than a bit of encouragement, but that may be because I am a top-down, centralist, Stalinist control freak.

I very much welcome the encouragement that the Minister gave us to look at the final version of the national planning policy framework and the guidance. I thought that I might chance my arm and ask for a bit of guidance to be forthcoming on the duty to co-operate, but I thought that in terms of how the Government were speaking the guidance was probably far too much to expect in a localism Bill. I am gratified to hear that not only will there be guidance on the duty to co-operate but that it might be quite explicit. I beg leave to withdraw the amendment.

Amendment 203U withdrawn.

Amendments 203V to 204 not moved.

Clause 99 : Local development schemes

Amendment 204A

Moved by

[Lord McKenzie of Luton]

204A: Clause 99, page 77, line 35, leave out subsection (2) and insert—
“(3) The scheme must contain—
(a) an assessment expressed in numerical terms concerning the present and projected levels of accommodation need and demand in the district of the housing market area within which the local planning authority falls; and(b) the authority’s proposals for addressing such needs and demands.(3A) The proposals referred to in subsection (3) shall include the authority’s plans relating to the provision of housing, including affordable housing, in its district.””

[Lord McKenzie of Luton]

My Lords, in moving Amendment 204A, I shall speak also to Amendment 204G. These amendments focus on housing and housing assessment.

A consequence to the change in planning, especially the demise of regional spatial strategies, means that local authorities will no longer be able to blame development on regional requirements. It is now down to them. This places particular emphasis on assessment of housing need, including, importantly, the needs of the vulnerable and affordable housing requirements. That is why, at the urging of the National Housing Federation among others, we seek to ensure that there is a clear and comprehensive statutory duty on local authorities to maintain an adequate assessment. The federation states that structurally the focus is on the planning system in the medium term at least being plan-led. Again, this is good, although it places a greater burden on housing associations to forward plan development programmes, since proposals may have to be made through the local plan process, given that local plans will be expected to identify the key proposed housing sites so that the plan can demonstrate that it is sustainable. In the short term, it is likely that there will be more appeals, as house builders try to take advantage of the presumption in favour of sustainable development where plans are out of date and a five-year plus land supply cannot be demonstrated.

The appeal process may raise issues about whether affordable housing policies are up to date, and some developers will argue that present policies fail to reflect the affordable rent regime or the changes in grant availability. They will also argue that viability prevents them providing full levels of affordable housing. Housing associations may need to monitor appeals to ensure that affordable housing levels are not squeezed, potentially offering support to local planning authorities to evidence need for affordable housing in the market area. Housing in its broadest sense—accommodation needs—must be robustly assessed in preparing local plans. With 1.7 million households on social housing waiting lists across the country, it is vital that this is laid down in law.

The reforms to the planning system outlined in the Bill offer a new opportunity for local people to play a more active role in shaping development in their area. However, in order for them to do this, it is vital that they have access to the information that they need. This will enable them to make informed decisions and hold their local authority to account. Hence these amendments will put a duty on local councils to outline in detail in their local plan how they will address housing need. To support this, councils will be expected to provide good-quality data on affordable housing need and demand. There are a number of benefits to this approach, such as transparency; by ensuring that local authorities undertake a robust assessment of housing need, residents will have the information that they require to fully understand local planning decisions. Then there will be comparisons; detailed information will allow residents to compare the performance of their local council to that of neighbouring authorities, which will allow local people to develop a better understanding of how their council is performing. In addition, there is accessibility, with complex data put in an accessible format. Local people without a formal planning background will be able to engage in the planning decisions that affect their local area.

These amendments will also put into law a clear requirement on councils to undertake a strategic assessment of housing and accommodation needs and demand in their local areas. While the national planning policy framework promotes this, we firmly believe that the issue is too important to leave to regulations and guidance alone. With millions of people on social housing waiting lists, many with complex care and support requirements, this duty will ensure that councils have the information that they need to appropriately house people in their communities. The information will be invaluable in determining the amount of accommodation required, including affordable housing.

In Committee, the Government said that they would be requiring an absolutely clear, transparent and robust numerical assessment of housing need. However, it was argued that Section 13 of the Planning and Compulsory Purchase Act 2004 already outlined the necessary duty, when that section does not require local authorities to consider future need and demand in their areas. For the sake of future generations, it is vital that councils are required to make and act on these projections. To avoid local plans concentrating narrowly on immediate housing need to the exclusion of future requirements, it is crucial that that duty is put into law. I beg to move.

[Lord Beecham]

My Lords, I congratulate my noble friend on tabling these amendments, which deal with one of the most crucial social issues that affect the country today. Looking round this Chamber, I almost regret to say that most of your Lordships will recall the famous television programme from the 1960s, “Cathy Come Home”, which really drew attention to the acute state of housing need at that time. We are not quite in that position, but we seem to be approaching it, and the lack of house building currently planned would seem to bring the day nearer when we would be back to the future in those terms. So these are very timely and relevant amendments, not least because there are some indications that already there is a willingness on the part of some local authorities to waive or reduce the proportion of affordable homes within developments. But even if that were not correct, we need a further elucidation of what is meant by affordable homes.

Affordability will vary from place to place, but more than that the issue of tenure needs to be addressed. While it may be perfectly reasonable to prescribe a proportion of homes for owner occupation, the demand for rented accommodation is still high. I can speak from the experience of the ward that I represent in Newcastle, where a significant regeneration scheme is under way, with a very modest element of affordable homes within it and, within that, an even more modest allocation of homes to rent. Yet given the socio-economic profile of the area, I suspect that there will be much greater demand for rented accommodation than there is likely to be in the course of this regeneration.

I am sure my noble friend and the Minister will agree that, whether or not these amendments are passed, attention needs to be given to assessing separately, as it were, the need for rented occupation and owner-occupied accommodation. That rented accommodation need not necessarily be in the form of social housing by local authorities or registered social landlords—it could be private rented accommodation but at rents which are affordable to the local community to meet that local demand. I hope that, as this matter goes forward, whether in the statutory form or otherwise, that further refinement of the concept of affordability can be taken into account and reflected in policy.

19:00

[Lord Williamson of Horton]

My Lords, I am sympathetic to this amendment, an amendment directed to the essential issue of having a really reliable assessment based on the best possible numbers about the needs for housing in the various districts—this of course relates to Clause 99, on local development schemes. That is important because it underlies the whole question about the proper provision of affordable housing in these areas, which is a major priority for all of us. The Minister may feel that there is something in this point—that it is pretty self-evident, when you read the text, that you ought to have an assessment in numerical terms concerning the projected levels of accommodation, need, and demand. That seems pretty self-evident.

We know that in addition to the various public dissatisfaction—I do not say that it is justified—about the prejudgment in favour of development, there is also, from time to time, a feeling that some of the information available in local authorities is not actually up to date. For example, last weekend I attended a meeting, when I was informed that the figures for the net immigration into the district, on which were based the forward provisions for housing, were wrong by 400 per cent in relation to the more recent figures because the figures on which they were operating were ancient.

There is some concern about these issues; even though it may seem self-evident that we ought to have the best figures, people are not always satisfied that that is the case. So I am sympathetic to this proposal, and I hope that we can establish bases in the local development schemes which can be relied on—relied on—by people who examine them as having the best basis for the amount of housing needed and the demand for housing, and that they should not be seriously underestimated on the one hand, and on the other hand not seriously overestimated.

[Baroness Whitaker]

In supporting Amendment 204A for all the reasons powerfully set out by the three previous speakers, I should like simply to add that this provision will go some way to taking care of some otherwise very awkward problems: a housing shortage which a small area cannot or will not address on its own; adequate provision for Gypsy and Traveller sites so that brutal confrontations, evictions, further illegal roadside stopping, are avoided, and gradually some inroads are made into the accumulated shortage of legal sites. The words “accommodation needs” reflect exactly the wording in Section 225 of the Housing Act 2004, and will readily be understood to refer to all homeless people, whether itinerant or settled, with the right degree of equality and fairness.

[Lord Boswell of Aynho]

My Lords, I have not spoken previously on the Localism Bill, nor would I claim any particular expertise in the planning system, but I would like to respond to the remarks of the noble Baroness, Lady Whitaker, in the context of this debate, with particular reference to Gypsies and Travellers.

The noble Baroness and I, and indeed my noble friend Lord Avebury, have participated over a number of years in the work of the All-Party Parliamentary Group for Gypsy Roma Travellers, and we have always been conscious of the difficulties that that community faces in adequate site provision, and also the degree of lack of salience—or should I say lack of appetite, perhaps—by local authorities in meeting their existing obligation. I can well understand her fears that these might be projected into the future.

Perhaps I may just comment from my experience over nearly a quarter of a century in another place as a constituency MP. The two planning issues on which I tended to wrestle most assiduously were either at the macro level, major infrastructure projects, or at the micro level, difficulties about Gypsies’ and Travellers’ sites—whether they were organised or not—but more typically, when there was no adequate provision, and they were moved on; although the provision in Northamptonshire tended to improve over the years.

This particular amendment is of course about making an adequate assessment, and that is a proper start. The difficulty, in my experience, is that very few authorities see themselves as having an interest in carrying out this assessment—one or two enlightened ones do, maybe for economic reasons, in order to secure a temporary labour force. Most will do as little as they might. And yet, one could fairly say that the amount of land required to meet all these needs across the nation is quite small, and in local authority areas is even smaller. It would certainly be in the interests of local authorities, who wanted to put some order into this process, to make adequate provision so that people could move to those sites and away from others. We do not want to open the recent wounds about that matter, but I think that a number of authorities are very diffident about doing so.

The reasons for that are perhaps, first, that they may fear that they are shouldering a disproportionate burden; in certain cases they may feel, secondly, that the very fact of assessing provision or having a discussion about it may, as it were, attract or create an additional population whose need has then to be met; and thirdly, they are, to be frank, often facing the hostility of the local settled population, and a very strong political pressure not really to meet their duties.

This has to be balanced; what I have always said locally is that the one thing I do not take is a one-dimensional view of this. There is a need for give and take, sensitivity and a proper discussion on both sides, but it has to start with a proper assessment. There may be a feeling that this is not going to happen.

In addition to this, I should just make the point—and it does look back to the issue of cross-border co-operation—that of course the nature of the travelling population, by definition, is that people move around; not all the time, or in every case, or outside or across local authority boundaries, but it does mean that they have to be looked at with at least a degree of flexibility and sensitivity, given, as the noble Baroness has said, some of the social pressure which is upon many of them, and which is evinced by many frightening social statistics in terms of a perinatal mortality or health outcomes, education, and the rest of it, which we need not go on to tonight.

I am not an ideological opponent of the Localism Bill—I think it is a good approach for the reasons that my noble friend Lord Deben very eloquently brought forward a few minutes ago. But we have to look at meeting the needs, indeed meeting wider statutory responsibilities for equality, which are enshrined in the duties of local authorities, and seeing whether they are adequately discharged.

I hope that encouragement will be sufficient for the local authorities so that they meet their obligations. All I can say is that I very much hope that the Minister can reassure us that she will be able to keep a watch on the situation, and I hope, if it is necessary—though one trusts that it will not be—that she will keep an open mind to any other measures or contingencies that may be required to see that this small but significant and vulnerable section of the population and their housing needs are assessed and met.

[Lord Newton of Braintree]

My Lords, being from Essex, albeit from Braintree and not Basildon, I am a bit hesitant, as my noble friend will probably understand, to follow him down the path of the issue that he has raised. I have to say that it was a brave speech and I have considerable sympathy with the approach that appeared to underlie it.

I want to come in on a different aspect of this, which is emboldened by the speech of the noble Lord from the Cross Benches. My concern in this field is that the more you go for localism and devolve decisions downwards, the more you will risk people saying, “We don’t want this in our back yard. Put it in somebody else’s”. As regards affordable housing, we need to recognise that even in the smallest units, which are not always recognised by villagers in some quite small villages—I live in a fairly large village in Essex—or the most articulate and active people, there is a need to provide houses for the families and young people who are perhaps not so comfortably off but who are essential to the overall life and social structure of the village or the neighbourhood, as it is defined in this Bill.

We need to recognise that with the disappearance of pressures from above—that is, the spatial strategy—on local authorities to build this, that or the other number of houses, we slightly strengthen the ability of everyone to say, “Yes, we all know that a lot of houses are needed but not here, thank you”. We may need to do something to correct that. The thrust of the point of the noble Lord on the Front Bench opposite, although not the wording particularly, is probably well made, and I hope that it will receive an understanding response.

[Lord Greaves]

My Lords, if I understand it correctly, the purpose of these amendments is to make sure that a proper assessment and evidence base for housing needs is incorporated into the work on the local plan. The noble Lord, Lord McKenzie, spoke about the immediate crisis in housing. Of course, these amendments will not solve the problem in the short term. The problem of why houses are not being built is far more to do with the financial situation, and the lack of availability of finance for building houses and of mortgages for people buying them. It is nothing to do with the planning system per se but the points he is making are very valid in the longer term.

However, the argument comes down to whether this kind of requirement on local planning authorities should be in this Bill in primary legislation or should be provided in guidance. I have no doubt that the Minister will point out that the draft national planning policy framework, with which we all live and sleep at the moment, has a great deal in it about this. For example, on page 30, under the heading “Significantly increasing supply of housing”, paragraph 109 reads:

“To boost the supply of housing, local planning authorities should … use an evidence-base to ensure that their Local Plan meets the full requirements for market and affordable housing in the housing market area, including identifying key sites which are critical to the delivery of the housing strategy over the plan period”.

Paragraph 111 is rather longer, and therefore I will not read it all out, but it requires that,

“local planning authorities should … plan for a mix of housing based on current and future demographic trends”,

which I think was a point made very eloquently by the noble Lord. I suspect that there is not a great deal of difference between what the noble Lord is putting forward and what the Government want to happen, and that it is simply a matter of where the requirement should be and whether it is necessary to be in the Bill.

19:15

Reference has been made to “Cathy Come Home”. I confess that I am old enough to have seen that programme, but I did not see it because we were old-fashioned enough not to have a television at our house at the time, which seems astonishing nowadays when everyone has a television in every room. Televisions themselves are now supposed to be old-fashioned and you are supposed to watch it all on your PC, laptop or strange little devices that can be carried in one’s pockets.

However, the important point made here by the noble Lord, Lord Beecham, was the need for affordable housing. I would say that the phrase “affordable housing” is another phrase which seems to be a bit vague and fluffy in the way in which it is used. There are a number of different sorts of affordable housing. There is affordable housing to buy; affordable housing to rent, which is nowadays called social housing, a phrase which still grates with me; public housing or third sector housing; and affordable housing in the private rented sector. I live in a part of the country which is not only a great deal more hilly than East Anglia but I suspect that we have a lot more—or perhaps we do—poor quality, rented accommodation in the private sector, which is extremely affordable by any standards because the levels of rent are set at the level of housing benefit. Anyone who qualifies for housing benefit can afford that housing.

In any case, that housing by standards across the country is very cheap to buy and to rent. But the quality is not very good. I am old-fashioned enough to think that what is required is not just a lot more rented accommodation, but rented accommodation in the social housing sector, council housing, housing association housing and similar types of housing. I keep being told by coalition Ministers that this coalition will provide much more of such housing than did the previous Government. I still cannot quite work out exactly how it will happen but they believe it will. I wish them the best of luck. The outcomes will be the outcomes, which we will see. If that happens, the coalition will be able to trumpet it as a great success. Frankly, the previous Government in this area was a bit of a flop.

[Baroness Hanham]

My Lords, I thank noble Lords for their contributions. As one would expect, it ended up with a wider discussion on housing. We have had that on earlier parts of the Bill, which does not mean that we do not have to listen again to the important points that were made. Before I start on the amendments, two areas of thought were triggered in my mind. A concern was raised by the noble Lord, Lord Newton, that with localism and local neighbourhood planning, no one would accept having housing in their area and that they keep trying to shovel it off to somewhere else. That will not be possible because the neighbourhood plans will have to conform to the local development plans, which will have a clear indication of, first, the number of properties and housing they expect to be built and, secondly, the general area. The neighbourhood plans will be able perhaps to say, “Well, we would rather not have it there but we could have it there”. There will be no possibility that they will not deliver what the local development framework requires. That should be helpful.

The Government are committed to 150,000 new homes before the next election, which will be a great deal more than we have seen over the past few years. My honourable friend Grant Shapps at the other end is actively pursuing policies to ensure that housing is developed. The new house bonus is meant to contribute to and encourage both the building of new housing and the improvement of properties. It covers affordable rents and encourages other capital expenditure. The pressure to produce more housing will be there from the Government.

We are asked to talk here about the possibility of a mandatory housing assessment, which we have already discussed a couple of times. I have tried to persuade the House, so far without success, that it is unnecessary to put this in the Bill formally. As my noble friend Lord Greaves has just helpfully pointed out and as I was going to say, the draft national planning policy framework has very clear policies on how much housing must be built and what the local authority’s responsibility will be. That has been combined with the guidance on strategic housing market assessments, which already sets out a framework for local authorities to take account of need and demand for both market and affordable housing, and to keep this under review over the plan period.

Local authorities already need to prepare an annual monitoring report covering housing delivery, which they must publish locally and which sets the context for reviews of plan policies. Preparing evidence is part and parcel of the plan-making process that has its own robust requirements for publication and consultation. Making local authorities publish assessments prior to undertaking local plan preparation would add yet another layer of unnecessary bureaucracy. I fully agree that local authorities should understand and plan properly for housing and affordable housing requirements. However, since existing requirements perform the functions intended by these amendments, I cannot support them. They are already being carried out.

An important point was raised by the noble Baroness, Lady Whitaker, and much supported by my noble friend Lord Boswell, on Gypsies and Travellers. I am sure noble Lords are aware that local authorities have a statutory responsibility for assessing Travellers’ needs. Every local authority, when undertaking a review of housing needs for its district, is required to consider the needs of Travellers under Section 8 of the Housing Act 1985. Local authorities are also required to prepare a strategy to demonstrate how they will meet the accommodation requirements of Travellers. All the requirements are there; it is up to the local authorities to make sure that they fulfil them and carry out their obligations under the various aspects of legislation.

With the explanation that these amendments are not needed, and that there are good, robust policies to ensure that there is housing assessment as well as to make sure that affordable housing and other housing will be built, I hope the noble Lord will withdraw his amendment.

[Lord McKenzie of Luton]

My Lords, I am grateful to the Minister for her response, although I do not agree with some of what she said. More than 150,000 new homes a year—

[Baroness Hanham]

Over four years.

[Lord McKenzie of Luton]

I am sorry—over four years. However, even 150,000 a year is less than what the previous Government achieved. If you go back a couple of years, the number of housing starts was the highest for around 20 years. The Government constantly quote a later figure, which was affected by the financial crisis. However, if you look at the data over the period you will see something else.

[Lord Greaves]

I wonder if there is confusion here between housing starts and affordable housing starts.

[Lord McKenzie of Luton]

Indeed, the noble Lord is absolutely right. However, I understand that the mechanism to achieve affordable housing is through 80 per cent of market rents being the primary funding source for it. Therefore, what the Government have done has slashed capital funding for affordable housing by driving an approach that jacks up rents, which for many people will be paid out of the housing benefit budget. It is difficult to see the logic of that approach from the Government’s point of view.

The Minister’s response to the noble Lord, Lord Newton, was to say that local development plans have to be adhered to. I thought that the noble Lord’s point was about what happens in adjoining local authorities and how they can be persuaded to provide affordable or other housing when a neighbouring authority is fully developed or has little room to develop further. As I have mentioned, that is precisely the situation in which we find ourselves in Luton, as do other local authorities. The noble Baroness says that the route is through the NPPF; I think the noble Lord, Lord Greaves, quoted from that. However, as we have debated, it is a question of having regard to that. We want to put something transparent in the Bill. That transparency will help the understanding of local people as well.

[Lord Greaves]

If the NPPF had only to “have regard to”, people might be less concerned about it. Is it not the case that local plans—core strategies—will not be approved by the inspection process unless they conform to the NPPF? They do not just have to have regard to it.

[Lord McKenzie of Luton]

That may be the case up to a point. How that works in practice remains to be tested, particularly given the pressures on the inspectors. We shall come to that point in a moment.

I say to the noble Lord, Lord Greaves, that I am old enough to have watched “Cathy Come Home”. I think I did; it was on a black and white television. It was a defining moment in our country. We are at risk of going back to that. These assessments must also be seen in the context of what is happening to housing benefit. We know that many people will be made homeless and that many will be uprooted from their current communities and forced into new ones. Following the point of the noble Lord, Lord Williamson, about how robust and up to date those assessments are, they would also need to take account of such movements, which could be very significant.

I very much warmed to the comments of my noble friend Lady Whitaker and the noble Lord, Lord Boswell. The Minister’s response was that there is already a statutory responsibility. However, the reality is that to date it has not delivered for Gypsy and Traveller families. It is right that we should focus on that. It was absolutely commendable of the noble Lord and my noble friend to do so in the course of this debate.

My noble friend Lord Beecham, in supporting the amendment, said that we should look not just at social housing or affordable housing—whatever description we apply to it—but at the private rented sector as well. That is absolutely right: we have to look at all areas, particularly the private rented sector. We know that the formation of households over the next decade will increase—certainly at a faster rate than new homes are projected to be provided. That is the source of some challenge.

The noble Lord, Lord Greaves, made the point that it is not just about whether somebody can afford a property but about what they are affording. What is the quality of the home that they are able to access? That is why, like him, I am a great supporter of the social housing sector. I am sure the noble Lord himself remembers council house-building when it took place and Parker Morris standards, with decent garden sizes. That may not be easy for us to return to but it was indicative of a time when we believed that people should be properly and decently housed.

[Baroness Gardner of Parkes]

My Lords, I was very involved in housing when Parker Morris standards were still used—

[Earl Attlee]

Order!

[Baroness Gardner of Parkes]

I am sorry; I just wanted to raise the issue of Parker Morris standards, which I think I can do as the noble Lord is responding to that report.

[Earl Attlee]

My Lords, I regret that no one can speak after the Minister.

[Baroness Gardner of Parkes]

I see. I am sorry.

19:30

[Lord McKenzie of Luton]

I should be very interested to learn what the noble Baroness wanted to say about Parker Morris standards. Perhaps we can speak in the break.

My understanding is that the real difference between us here is whether this matter should be dealt with in guidance, through the NPPF or in the Bill. We believe that it is such a fundamental issue that it should be in the Bill. Indeed, if we are on the same page regarding what we want to achieve, I do not see why the Government cannot accede to having this as an integral part of the legislation. It is a key and fundamental—

[Baroness Gardner of Parkes]

I am told that I am not out of order and that I can therefore ask the noble Lord a question. Is he aware that when the Parker Morris standards were in force, the standard of all the local authority housing, as it was at that time—social housing has widened since then with housing associations —was way above that produced by any commercial developer? I have heard noble Lords in this Chamber say the reverse of that, but that is not the case. Parker Morris was the town clerk of Westminster City Council. His standards were too high and could not continue to be afforded. Is the noble Lord aware of that?

[Lord McKenzie of Luton]

Indeed. I am certainly aware of the challenges that that produced but I hang on to the point that it was a good period for the provision of housing, with people, whatever their means, having the chance to live in decent houses in good neighbourhoods. Indeed, for 20-odd years I had the privilege of representing a patch on Luton council built just after the Second World War to those standards and it was a great place. However, that is a bit of a diversion from the amendments before us, and that is my fault.

As I said, the difference between us is whether this matter should be in the Bill or otherwise. I accept that the Government are not going to be moved on this. We will continue to make the arguments but, for the time being, I beg leave to withdraw the amendment.

Amendment 204A withdrawn.

Amendment 204B

Moved by

[Baroness Smith of Basildon]

204B: After Clause 99, insert the following new Clause—
“Development plan documents: climate change and carbon budgets
(1) Section 19 of the Planning and Compulsory Purchase Act 2004 (preparation of local development documents) is amended as follows.
(2) For subsection (1A) substitute—
“(1A) Development plan documents must include policies designed to ensure the development and use of land in the local planning authority’s area—
(a) achieves reductions of greenhouse gas emissions in line with the carbon budgets set under the Climate Change Act 2008; and(b) meets the national planning policy objectives on assessing the risk of and adapting to climate change in relation to that area.””

[Baroness Smith of Basildon]

My Lords, I am sure that the Minister has noticed that the amendments in this group are the same as the ones that I brought forward previously, but she will be relieved to know that I shall not be repeating that discussion. I have brought them back in order to seek clarification on a couple of points.

When I read through the Hansard for that debate, it seemed that, although the noble Lord the Minister who responded to me on that occasion and I were heading in the same direction, we were on different paths. I think that there was some misunderstanding about the issue at the time.

During that debate, I listened to the Minister’s response and agreed that I would take note of what he said. However, I also wanted to read his comments to be clear about his reasons for not being able to agree to the amendment, because he certainly agreed to the principle behind them. He agreed with us that responsibility for the policies to tackle climate change relate not to just one government department but cut across departments. If the Government are to achieve their targets, they need to have policies across all areas, including planning, which is very important. Therefore, as I said to the noble Baroness, I am not repeating previous comments but am simply seeking clarification.

First, in the previous debate the Minister said that the amendment was unnecessary because neighbourhood development plans would have to be drafted, and he used the phrase “in general conformity with” the strategic policies of local plans, which would obviously include policies on climate change. I think that he was trying to be helpful. We thought that the Government would accept the amendments that we had brought forward because, if the plans can be “in general conformity with”—the phrase used by the Minister—that can exclude specifics. The reason for tabling this amendment is to see whether the noble Baroness can tighten that up a bit. I think it was agreed that, if neighbourhood development plans had to be in conformity with strategic policies and local plans, that would be a little stronger and give a clear indication and guidance that the Government intend neighbourhood development plans to take into account climate change. At the moment there is a little bit too much wriggle room, which could be damaging for the Government in trying to reach their targets.

Secondly, at that time the Minister was concerned that neighbourhood development plans should achieve reductions in greenhouse gas emissions in line with carbon budgets set under the Climate Change Act 2008. I think he was under the impression that this would mean that every area would have to achieve the same level of reduction. That is clearly impossible and was never intended in the amendment, and I shall therefore be happy if someone can come back with different wording. Both these amendments seek to ensure that all plans, at whatever level, take these issues into account so that they can make a contribution to the targets and the issue is not ignored.

The intention is no more than that, and I hope that the noble Baroness will be able to come back on both those points. Amendment 204B seeks to deal with the question of “in conformity with” and the second amendment, Amendment 206B, tries to make a contribution to the climate change targets but does not insist on equal contributions being made. I fear that, although it is not the Government’s intention, this issue could be ignored. I know from the comments made by the Minister on the previous occasion that that is not the intention but I seek to ensure that it is not the effect.

[Lord Deben]

My Lords, there is an issue here with which I hope the Minister will be very careful. Local authorities need to be reminded all the time, and we have had some difficulty in the past in concentrating the Government’s mind on the place of local authorities in carrying through the nitty-gritty of fighting climate change. Unless we make sure that they understand that they are on the front line and that what they do contributes a huge amount to the totality, we are going to be in difficulty. I do not think that it would matter so much had we not taken quite some time to get that into the whole run of things. This was a big issue in earlier Bills, and I hope that the Minister will understand that there is a real appetite for her to be pretty tough about this and to make sure that local authorities recognise their role.

[Lord Lucas]

My Lords, notwithstanding my noble friend’s strictures, I think that this is a daffy amendment due to its wording. How can development ever achieve a reduction in greenhouse gas emissions? Building a house emits greenhouse gases. The process of development necessarily involves the emission of greenhouse gases, and when you have created something at the end of that process, that continues to emit greenhouse gases, even if it emits far fewer than would have been emitted with a development done some years ago. Proposed new paragraph (b) at the end of the amendment would do great things for East Anglia. You would be allowed to build only off-shore windmills, waiting for the day when the place flooded.

[Lord Judd]

My Lords, my regard for the noble Lord, Lord Deben, and his commitment on climate change is second to no one. He has been one of the leading spokespeople, showing a good deal of courage on the importance of this issue. Because of my respect for him, I can say that I think that what he has just said in this debate illustrates a contradiction between what he said earlier on a previous amendment and his position here. On a previous amendment, he argued very strongly that he believed in a society in which people were not told what to do at a local level. He felt that there had to be co-operation and that one could only suggest what might be the responsibility of a local authority or the points that should be taken into account.

This issue illustrates a tension between national priorities and localism, to which there is no absolute answer. The Government may decide that in the interests of the survival of the British people it is necessary to have certain levels of activity in order to make our contribution on climate change. However, unless there are mechanisms for delivering those targets, they become part of the world of dreaming aspiration, as distinct from real, hard policy. I wish that in the deliberations on the Bill we were all more realistic that it will not be only on climate change but on quite a number of issues that we have to strike a balance between national priority and localism.

[Baroness Young of Old Scone]

My Lords, I underline what the noble Lord has just said, particularly in terms of the requirement to adapt to climate change. Noble Lords may remember that the Climate Change Act contained strong reporting requirements as regards authorities reporting the action they were taking and their readiness to adapt to climate change. However, those requirements were not laid on local authorities. They were laid on a huge range of other authorities, but local authorities were not required so to report because at that stage they had a performance indicator which established their readiness to adapt to climate change. However, that performance indicator has since been swept away along with all the other performance indicators for local authorities. If I am correct, we no longer have any mechanism at all to make local authorities accountable for adapting to climate change and demonstrating that they are so doing. Therefore, I very much welcome this amendment as it would at least give us hope that a requirement was being laid on local authorities to demonstrate that they were adapting to climate change.

[Lord Reay]

My Lords, as this is my first intervention at this stage of the Bill, I declare my interest as a landowner. I object strongly to these amendments. When I sought to introduce an amendment in Committee that related to the costs incurred by local authorities contesting appeals in wind farm development cases, the noble Lord, Lord Whitty, chided me for introducing an inappropriate discussion of energy policy into a planning Bill. I could now say the same about the noble Lord’s friends who are moving this amendment.

As the noble Baroness more or less explained, the intention of these amendments is to impose on local authorities a responsibility for helping the Government to achieve their renewable energy targets. The principal effect in practice would be to make it even harder than it is already to resist the attempts of subsidised developers to cover the countryside with wind farms, for, of course, that is the one technology on which, in practice, the Government are, or were, pinning all their hopes for achieving those targets. I say “were” because at the recent conference of my party there were the first interesting signs that second thoughts are being entertained at last in government circles about their energy policy, owing to its expense, which seems suddenly to have become apparent to the Government. To be sure, so far the changes have been in rhetoric only but I find it hard to see that that will not be followed by action, for the point is that the Government’s deliberate pursuit of a renewable and, therefore, an increasingly expensive, energy policy is coming into ever greater conflict with the Government’s attempts to protect living standards.

In the Financial Times yesterday its energy correspondent produced an estimate that at the current rate by the time of the next election the average household will be spending more than 10 per cent of its income on its energy bills. In other words, they will be officially in fuel poverty. That will be an astonishing and, I suggest, intolerable outcome. Noble Lords will remember that when the previous Government were in power it was their stated policy to abolish fuel poverty, but, of course, that is quite impossible if you are pursuing a renewable energy policy. Under their watch the number of households in fuel poverty doubled in five years to around 5 million. With the present Government pursuing the same policies, this figure has continued to rise until it has now reached 6 million or even on some estimates 7 million. Therefore, it surprises me that in these circumstances noble Lords opposite continue blithely to propose measures that can only have the effect of further adding to fuel costs for the consumer. It did not surprise me, however, that in that same article in the Financial Times the director of consumer policy at uSwitch was quoted as saying:

“I believe there is going to be a U-turn because I believe the government is listening and they’re going to have to face reality”.

The Government, of course, could have done so a long time ago. I can hardly think of a single prominent independent newspaper columnist who has not over the past two years or more—in many cases much longer—succeeded in exposing the crippling expense of our climate change targets and the complete futility of wind farms. I should have thought that that probably covers virtually all the famous names in journalism, at least in the newspapers and magazines that I have read.

The Government therefore cannot say that no one warned them. Yesterday it was the noble Lord, Lord Young of Graffham, who had the opportunity to have his say in the Times. His article was headed:

“This is no time to waste our money on windmills”.

The noble Baroness may laugh but I cannot think of a more unsuitable time to contemplate putting a statutory obligation on local authorities to give yet more priority to the installation of subsidised renewal energy projects. I hope that the Minister will give this amendment short shrift.

19:45

[Baroness Hanham]

My Lords, it has had a slightly longer shrift than I thought it would. I think this amendment was slipped in on the basis that there would be a two-minute discussion on it. I might have known that it would generate a bit more than that. I hope that I can deal with it quite swiftly. In the draft national planning policy framework there is a very clear description of what is expected in terms of the planning responsibility. The Government’s objective is that the planning mechanism should fully support the transition to a low-carbon economy in a changing climate, taking full account of flood risk and coastal change. That requirement is contained in the national planning framework, which is subject to the consultation.

There is already a climate change duty on plan-making. That duty seems sensible and was introduced by the previous Administration. I do not think that we are likely to change that at present. It is not worth rehearsing how the duty works but a local council’s development plan policy documents taken as a whole—that is, their local plan—include policies designed to contribute to mitigating and adapting to climate change. The neighbourhood plans have to fit in with the local development plans, so the neighbourhood plans cannot duck the issue. Therefore, there is a clear line between the local development plans and the national policy framework as one leads into the other—it goes down from the national to the local to the very local and there is a requirement to take it all into account. Local communities when they are preparing plans will be in no doubt about the planning requirement.

We have proposed in the framework that the planning system should aim to secure, consistent with the Government’s published objectives, radical reductions in greenhouse gas emissions. These objectives include the carbon budgets set in law which now cover the period to 2027. The noble Lord, Lord Judd, is correct to say that the emphasis on how you do this will differ in different places. Kensington High Street in my borough is one of the worst areas in this regard but then all the traffic in the world comes past our front door. It is difficult to see how one borough can make the full contribution that is required but it has to contribute to the target. That is clearly understood in the national policy framework. The noble Lord, Lord Reay, has raised wind farms previously and I am sure that he will do so again but at the moment the planning is pretty clear on what is required. I hope that with that explanation the noble Baroness will feel able to withdraw the amendment.

[Baroness Smith of Basildon]

I am grateful to the noble Baroness as I think she has understood what we were seeking to do—to get these issues taken into account. I thought that when the amendments were moved at a previous stage we were on the right track but that we did not quite tie up the loose ends. I am grateful to the noble Baroness for her explanation. Like her, I was surprised that the debate took the direction it did but I should know that at any mention of climate change the noble Lord, Lord Reay, will always talk about renewable energy and wind farms. However, that was not the intention behind the amendment. It was exactly as the Minister described. As I say, I am grateful to her for her helpful explanation. I beg leave to withdraw the amendment.

Amendment 204B withdrawn.

Further consideration on Report adjourned until not before 8.49 pm.

First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011

Wednesday 12th October 2011 Lords Chamber

Motion to Approve

19:50

Moved By

[Lord McNally]

That the draft order laid before the House on 12 July be approved.

Relevant Document: 27th Report from the Joint Committee on Statutory Instruments.

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

My Lords, the draft order prescribes the fee to be paid by a person who appeals to the Immigration and Asylum Chamber of the First-tier Tribunal. The draft order also sets out the situations in which a person will be exempt from paying a fee and where a fee may be deferred, reduced, remitted or refunded. To facilitate the new fees regime, changes will be required to the Asylum and Immigration Tribunal (Procedure) Rules 2005. If the draft order is agreed, changes to those procedure rules will be made in another instrument.

At present, the cost of administering the asylum and immigration appeals system is met chiefly by the UK taxpayer via the Ministry of Justice vote, although a contribution is made from visa application fees charged by the UK Border Agency. In 2010-11 the total cost of the system was about £108 million. In that year the taxpayer paid approximately 87 per cent of that cost, with the contribution from visa fees amounting to £14 million. It is essential that we continue to provide effective access to an independent, cost-effective tribunal for those challenging decisions made by the UK Border Agency. However, 60 per cent of appeals to the tribunal are refused. The Government find it difficult to justify why the UK taxpayer should continue to fund almost the entirety of the cost of failed appeals, many of which are wholly without merit, and believe that where tribunal users can afford to make a contribution they should do so.

We are not the first to consider this. Noble Lords may be aware that a consultation paper in 2009 on immigration and visa applications by the previous Administration asked whether users of the tribunal ought to make a contribution to its costs; respondents agreed that they should. In addition, charging for immigration appeals was one of the ideas submitted in response to the Government’s spending challenge in 2010 and identified as one of the suggestions that would be taken forward by the Prime Minister in August 2010. We consulted on the proposals which form the basis of the order in October 2010 and we have made a number of important changes to them in light of the responses to that consultation. I shall explain what those changes are shortly, but before I do I will set out the types of appeal that will generally attract a fee and the range of exemptions that will apply.

Appeals which will, in principle, attract a fee are family visit visa appeals from people refused a visa to enter the UK on a temporary basis to visit a family member; managed migration or in-country immigration appeals from those already in the UK seeking to extend or change the terms of their stay in the UK; entry clearance officer appeals, which are a large range of different appeal types from individuals overseas who have applied for permission to come to the United Kingdom, either permanently or temporarily, but have had their applications refused because they did not meet the requirements of the Immigration Rules; and asylum appeals from people who have been refused asylum.

As for the actual fee levels, where an appellant indicates that they want an oral hearing, the fee will be £140. Where an appellant indicates that they do not require an oral hearing and an appeal can be decided on the basis of the papers alone, the appellant will be required to pay £80. The order includes provision for a wide array of remissions and exemptions. Appeals brought against decisions where action is initiated by the state should, in our view, be exempt from paying the fee. These will include appeals such as deportation, deprivation of citizenship or revocation of indefinite leave to remain. We will also not charge for appeals where the appellant is in the detained fast-track process. Anyone in receipt of legal aid or asylum support will also be exempt.

Some of your Lordships may be surprised that we are seeking to charge for asylum appeals at all. If so, I can reassure them that most of those refused asylum will benefit from exemptions under the order. Where they do not, the hearing of their appeals will go ahead anyway, whether or not a fee is received. Where such an appellant remains liable to pay a fee it is hoped that it will be paid in due course, and it will remain open to the Lord Chancellor to seek to enforce payment through the usual civil enforcement procedures should it not be paid. However, every appeal from a failed asylum seeker, whether rich or poor, will be heard whether or not the fee is paid. There is thus no question of disadvantaging asylum seekers by the implementation of these proposals. There is also a power for the Lord Chancellor to reduce or remit fees if someone does not fall into any of the proposed exemption categories and can demonstrate that there are exceptional circumstances why they cannot, or ought not, pay the fee. Overall, I am confident that the introduction of the fees should not prevent access to justice.

Your Lordships will also be aware that the Legal Aid, Sentencing and Punishment of Offenders Bill, currently being considered in the other place, includes proposals to make changes to the availability of legal aid for those making appeals to the tribunal and others. We made clear in our consultation paper on fees and in the response to that consultation, and I do so now again, that it is our intention to bring forward in due course a revised remissions and exemptions scheme in respect of liability to pay fees in the tribunal to take account of the proposed changes to legal aid. The exemptions and remissions set out in the instrument before your Lordships tonight, therefore, in so far as they provide for the remission of fees by reference to the receipt of legal aid, are intended to apply only under the current legal aid arrangements and will not apply under any future legal aid regime, in respect of which we will bring forward alternative proposals for the remission and exemption of fees in due course.

As I have indicated, the Government carefully considered the views expressed by those who responded to the consultation, including the Administrative Justice and Tribunals Council. This has led to a number of significant changes to the draft order and the proposed changes to the procedure rules. Foremost of these is the power for the tribunal to make an award of costs against the UK Border Agency to successful appellants up to the amount of any fee paid. This will allow an appellant to recoup their appeal fee where a clear mistake has been made by the UK Border Agency. It is also envisaged that the prospect of costs being awarded where mistakes are made will encourage the UK Border Agency to improve the quality of its initial decision-making to minimise such a financial penalty. That power will be included in the procedure rules rather than the order before the House today.

The other main change to the proposals originally consulted on is the retraction of plans to charge a fee in the Upper Tribunal. We accept that further appraisal of that option is required and the Government do not plan to introduce fees for onward appeals to the Upper Tribunal at this time.

This Government are fully committed to ensuring that all tribunals remain accessible and provide a high-quality service for their users. Whether appellants are bringing appeals from within the UK or from overseas, the introduction of fees does not affect that commitment. The draft order and the consequent changes to the procedure rules seek to redress what the Government consider to be an imbalance in the way that the tribunal is funded. They make provision to require users of the tribunal to make a contribution towards the cost of the service they are using, and to reduce the financial burden on the UK taxpayer without restricting access to justice. I commend the draft order to the House and I beg to move.

20:00

[Lord Thomas of Gresford]

My Lords, my noble friend said in introducing this order that many of the appeals are “wholly without merit”. The question is, which? That is what the tribunal exists to determine. It is impossible to start off on the basis that an awful lot of these appeals are without merit. My noble friend said that this bright idea came forward as a response to the spending challenge that was put out by the coalition Government when they came into power. It is a terrible idea when it is examined. The Explanatory Memorandum makes that quite clear.

The first point that has to be made is that it is one thing to fund the civil courts of this country by fees where a person brings an action—that is, he takes a decision to start a case by the issue of a writ or a summons—but, as the Explanatory Memorandum makes clear, this is the first instance of fees being imposed in tribunals where there has been action by the state against the individual. This is not an individual who started things up himself, as happens in High Court or county court proceedings; this is where the state has taken some action against which the individual wishes to appeal. The power to impose fees in tribunals has previously been exercised only in the areas of gambling and land.

We move from gambling and land to an extremely sensitive area of policy, immigration and asylum. Why? Paragraph 3.1 of the Explanatory Memorandum says that,

“the Government considers that it is not reasonable for the state to continue to fund the remaining cost of the appeals system. The Government believes that it is appropriate that users of the Tribunal contribute towards the cost of their appeal where they can afford to do so”.

However, as I say, this is not a situation where the appellant in one of these tribunals has initiated things; it is a case where he is appealing against an action that the state has taken.

It is not surprising, as paragraph 8.2 of the memorandum reveals, that:

“Respondents to the consultation were generally opposed to the introduction of fees”.

Indeed, when it came to the suggestion of imposing fees for the Upper Tribunals, they were,

“unanimous in their view that appellants should not pay”.

The Government have indeed responded to that.

One looks at the impact assessment to see how viable this scheme is. It really is very interesting. Under “Key assumptions” it says:

“It is unknown how prospective appellants will respond to fee-charging. A number of assumptions have therefore been made to produce illustrative estimates”—

it is a guess, in other words. It goes on to say:

“The Home Office is implementing significant changes to the UK’s immigration regime in 2011, which may affect the volume of appeals in future years and thus the costs and benefits of this proposal”.

The Government’s own proposals for changing the immigration regime will have an unknown impact. One would have thought that where there are changes to the regime, appeals will follow as people who are subject to orders made by the state test the boundaries of those changes as they have been made. It then says:

“The future success rate of appeals is unknown in which a cost award is made against UKBA”.

We are still in the realms of complete ignorance as to the effects of these proposals.

Paragraph 2.19 of the impact assessment, which refers to the principal groups impacted by the final proposal, says, under “Appellants”:

“Fees for Family Visit Visas were introduced in 2000 and subsequently reduced and then abolished in 2002. Research published by the Home Office in 2003 did not find conclusive evidence that these fees were a significant deterrent to legitimate FVV appeals. However, it is accepted that some individuals may currently choose to appeal because it is free but would not do so if a fee is payable”.

That assertion does not follow from the research that was done in 2003.

Paragraph 3.4 in the “Economic rationale” section says:

“The absence of fees means that the service is ‘over-consumed’”—

in other words, too many people appeal. It goes on to say that the users,

“are not exposed to any of the costs that the Tribunal incurs as a result of the appeal. A possible indicator of this ‘over-consumption’ is the failure rate of appeals, which represented a majority in each of the four main appeal types … disposed of in recent years”—

because there is a failure rate of appeals representing the majority, that shows that too many people apply. I go back to my original point that if many of the appeals are wholly without merit, the purpose of the tribunal is to determine which do have merit and which do not. You have to have a system that can come to that conclusion.

Paragraph 4.2, under “Cost Benefit Analysis”, says:

“We have no information on the scale of”,

fees for appeals that,

“will be paid by people living outside of the UK”.

Paragraph 4.3 says:

“We cannot predict how appellants will respond to the introduction of fee-charging”.

It goes on to say:

“For those appellants who will pay the fee, we assume that some of these appellants will decide not to appeal, but we cannot predict the size of this effect”.

Paragraph 4.6 points out that,

“there are no rules precluding individuals from submitting a new visa application rather than appealing an existing one”,

and it is cheaper to put in a new application under these rules than to appeal an adverse decision that has already been made. This means that instead of appealing, you pay a lesser fee and start an application all over again. That seems to me to be absolute nonsense.

When we look at ongoing costs, paragraph 4.27 says:

“These costs are likely to involve dealing with an increased volume of customer enquiries … and with the operation of a contract to collect, bank and administer the fee”.

There is a cost of administration there because you have to decide who is exempt and who is not. Someone has to make a decision: that is a person who is employed and paid a salary. Having done that, you then have all the business of collecting the fees. Paragraph 4.28 says:

“We expect that around three-quarters of asylum appellants would be exempt from paying fees, so debt recovery would never arise in any of these cases”—

that is regarded as a saving. In addition it says in paragraph 4.31 that,

“it has been agreed that HMCTS would pay any judge-ordered cost award to successful appellants and then recoup this sum of money monthly in arrears from UKBA. … However, it has not been possible to estimate these financial impacts at this time”.

Then, in paragraph 4.32, it says:

“UKBA would incur extra costs if some FVV appellants decide to re-apply for a visa instead of appealing because the visa fee would be less than the paper and oral appeal fee”.

Then, in paragraph 4.37, we see what the fee is to go towards. It is not going towards fixed costs, the buildings, but to variable costs, the fee paid judiciary. It says:

“In the short term only the variable cost element can be saved when the volume of appeals decreases, compared to the status quo. The Tribunal’s operating cost savings are based on”—

various estimates. I will not go into the detail of it. The point is that the whole purpose of these fees is to reduce applications and then some savings will be made in judge time.

I support my Government, of course, but I find it extraordinary that this tribunal order should have been brought forward in the way that it has. I think I have said all that I need to say on the topic.

[Lord Newton of Braintree]

My Lords, perhaps I may intervene briefly with a few things that will not surprise my noble friend on the Front Bench at all. The first is that, having made a speech in support of the Government in a rather different atmosphere in the House earlier on, I now wish to revert to type. The second is that I was around in 2009 when there was consultation on some earlier proposals. I think that I may even have spoken against them. I certainly did not like them then and I do not like these now. The third is that I pricked up my ears when he mentioned the body that I used to chair, the Administrative Justice and Tribunals Council, which, not to my surprise, has expressed some reservations about these issues. I have got them somewhere but, having been preoccupied on other matters, I have not studied them as carefully as I should. The last thing, as I have already indicated, is that I am not very happy with them, particularly in respect of the family matters to which he referred and asylum seekers.

That said, and bearing in mind that it would be rash of me to call a vote against these proposals, which I would not want to do, I acknowledge that significant efforts seem to have been made to meet some of the concerns expressed, in terms of exemptions, the removal of the Upper Tier from these proposals, and the statement that appeals will be heard, presumably even if the money is not found up front. However, that does give rise to the question of the expense of collection after the event which was implied, or indeed explicit, in my noble friend’s speech just now.

I draw some comfort from all that, and also from the fact—which I probably have in common with the noble Lord on the opposition Front Bench—that there was an indication that some of these matters will be stirred up again by the legal aid Bill, on which I plan to stir up a bit of trouble myself if I get the opportunity. So I shall rest at this moment and wait for future occasions before pressing the matter any further.

[Lord Avebury]

My Lords, I look forward to hearing from the noble Lord, Lord Newton, on the legal aid Bill. Stirring up trouble on that front will be music to my ears. My noble friend has demonstrated just now that imposing fees on appellants in the immigration and asylum appellate system is neither fair nor sensible. As we all know, the Government have to make economies in every area of their work, but the right way to proceed in this area would have been to reduce the need for appeals and hence the cost of the system, which has spiralled because of defects in the UKBA's own procedures.

First, the UKBA should conform to the law by changing its practice immediately when it has been found to be illegal. For an example of a case where it failed to do so, see the reaction to the decision of the European Court of Justice in Metock, a case which involved the rights of non-EU spouses of EU citizens.

Secondly, the UKBA should address those sectors of its decision-making which are manifestly not fit for purpose. My noble friend will have seen the report Unsustainable by Asylum Aid, showing that the UKBA consistently makes the wrong decisions on claims for asylum by women. There is a particular problem with cases where the applicant has suffered gender-based persecution. We dealt with this at Questions just now. This may satisfy the requirements of the refugee convention because the victims are members of a particular social group, an aspect of the law of which, astonishingly, many case owners appear to be ignorant.

20:15

Thirdly, there are huge problems with the asylum screening unit, to which attention has been drawn by the Immigration Law Practitioners’ Association and the Law Society. Telephone lines are permanently engaged, imposing delays which may jeopardise the credibility of the applicant through no fault of her own and extra costs are imposed on the lawyers which are not recoverable.

The UKBA should not apply to pursue cases after it has lost at the First-Tier Tribunal when its arguments are not sustainable in law. It should review all cases where an appeal has been lodged with this consideration in mind. Imposing fees on appellants adds to the inequality of arms in the system, where in all cases individuals are appealing against government decisions, as my noble friend has pointed out.

Where the UKBA decides to revoke the decision that it has made before the appeal has been heard, presumably on the basis that it cannot justify the refusal, it would be manifestly unfair not to refund the fee that has been paid, and in any case the administrative costs in these cases must be even less than in the cases that are determined on paper alone.

I am concerned by the statement in paragraph 8.4 of the Explanatory Memorandum—which has already been referred to—that,

“the Government decided to withdraw the proposal to charge a further fee for bringing an appeal to the UTIAC for the present”.

I would like to know what change in circumstances might cause them to revive this proposal—which, as has been said, was unanimously opposed by all 27 respondents to the consultation—at some time in the future. As my noble friend said in his comments on the order, this decision not to impose fees for appeal to UTIAC was taken at this time. So obviously the Government have in mind some future change in the circumstances which would dispose them towards charging fees in the Upper Tribunal. I would like to know what those are.

Appellants have already paid a large fee to make an application that has been refused—£900, for example, in the case of an application for indefinite leave to remain—and on top of that they are likely to have to pay for legal representation if the proposed changes in the legal aid system are implemented.

As regards asylum seekers, I do not agree that the exemption from payment of these fees should be limited to those who are in receipt of asylum support. Many are not eligible for that support because they are staying with friends and therefore do not agree to be dispersed. Any asylum seeker who meets the financial and merits criteria for legal aid ought to be exempt, as should also victims of domestic violence, unaccompanied children and anyone who has a case under the ECHR, the refugee convention, any provision of EU law to which the UK is a party and the European Convention on Action against Trafficking in Human Beings.

The impact analysis estimates that three-quarters of asylum applicants would be exempt already, as my noble friend has pointed out, under the government proposals, and of the remaining 25 per cent, another quarter have successful appeals and are awarded costs. The table in paragraph 4.30 of the analysis shows that in any of the four scenarios examined, the amount of money recovered less the cost of pursuing the asylum seeker for payment is not significant compared with the undermining of the spirit of our obligations under the refugee convention. I would like to ask my noble friend whether the Government have consulted the UNHCR about this aspect of the proposal, and, if so, what was their response. My noble friend pointed out that similar tribunals do not impose fees on appellants. Since the majority of immigration and asylum appellants are from minority ethnic groups, imposing fees for this part of the justice system only risks creating unlawful race discrimination. If, contrary to these arguments, fees are imposed, they should be paid by the UKBA if the appeal is successful. This would promote equality of arms and should discourage the UK Border Agency from making unwarrantable refusals of applications.

This is not the first order that we have had on an immigration issue where the cost-benefit analysis—as my noble friend pointed out in detail—is based on pure guesswork. Two arbitrarily chosen scenarios as to the behavioural response to fee charging have been picked as the basis for the calculations: that a £100 fee would lead to a decrease in appeal volumes of 10 per cent and 5 per cent respectively. It is also assumed, without any reasoning, that 25 per cent of family visit visa appeals would switch to new applications costing £76, compared with £140 for an appeal determined at an oral hearing. It appears that no assumption has been made about the number of people who would have gone for an oral hearing but instead decide to accept a paper determination because it is cheaper. The chances of success on appeal are higher with an oral hearing, but no estimate is given of the number of appellants who will switch to a paper hearing and thereby lose an appeal that they would have won had they gone for an oral hearing.

“Justice” is not a word that comes into the Explanatory Memorandum or the impact analysis; the objective is to save money, irrespective of whether the outcomes conform with the merit of the applications.

[Lord Bach]

My Lords, I start by thanking the Minister for explaining the order in his opening remarks so clearly and succinctly. I also thank the other speakers in the debate. It could be argued that between them they pretty well demolished the entire point of the order. Of course, when we were in government, we too thought of this—but we did not implement it. It now falls to the Minister to justify why we should take the steps that he intends us to take.

Clearly, this is an important and controversial order. Many points that I wanted to make have been very well made already by the three Back-Bench speakers. It is an important moment not least because—as the noble Lord, Lord Thomas of Gresford, said, and as paragraph 4.1 of the Explanatory Memorandum states—this is the first instance of fees being imposed in an action by the state against an individual.

Secondly, perhaps a little less importantly—this point was made by the noble Lord, Lord Avebury—it would also be on top of the fee already paid for making the application that is being appealed against. This point was very well made by the Immigration Law Practitioners’ Association in its briefing to noble Lords.

The first application for leave to remain in the United Kingdom—the noble Lord, Lord Avebury, used this example—costs £900 per person. If it is made at the UKBA, the cost will be £1,250 per person. The fee is not for the appeal but for the original application. It costs £70 to apply for a visitor's visa from abroad. An application for a student visa costs £220, and there are other costs as well. The fee is not refunded if the application is refused. I suppose that some unmeritorious appeals might not be heard as a consequence of the order but I wonder, particularly after the analysis of the impact assessment made by noble Lords, how much the Government really expect to save from the order before us.

I pay tribute to the Government because they have conceded on more points following the consultation. This point was made by the noble Lord, Lord Newton of Braintree. They have made genuine concessions, particularly in the exemptions under Article 5 of the order in the areas of under-18s, children in need, asylum support, people in detention, appeals and decisions to remove. That is a more generous list than before the consultation began. However, the House would like to ask—noble Lords already have, in so many words—whether the exemptions are wide enough. In particular, Article 5(2) states:

“No fee is payable where, at the time the fee would otherwise become payable, the appellant is, under the 1999 Act”,

in receipt of legal aid. How can this provision be squared with the proposed withdrawal of legal aid for many areas? To put it mildly, there is an irony in its appearance in the order that we are being asked to pass tonight when the legal aid Bill is well on its way to this House.

Article 5(3) in a number of cases will become an irrelevance. Asylum cases will generally stay in scope, but much immigration law will be removed from scope if the Government get their way. I hope the noble Lord will not object if I repeat a question that was asked by my honourable friend Mr Andrew Slaughter MP, who spoke from the opposition Front Bench when the order was debated in another place on 14 September last. He asked why, if legal aid becomes no longer a criteria simply because it does not exist, an exemption should not be made for those on low incomes or specified benefits who would have been eligible for legal aid if it had still existed.

The Minister drew back the curtain a little on this when he said that the Government would come forward to make allowance for legal aid going out of scope. However, I would like him in his reply to tell us a little more about what the Government plan. Surely the criteria should remain the same whether legal aid exists or not. The Minister in another place did not answer that question in his summing up. I hope that the noble Lord will tonight.

Nor did the Minister in another place answer when he was asked to clarify figures from 2009-10 for success rates when public funding was available in these cases, and for when it was not. The noble Lord, Lord Avebury, told us about the difference between oral and paper hearings. These questions are about when legal aid was available. I ask whether the following figures are correct. As far as concerns migration, there was a 52 per cent success rate on appeal without legal aid but a 60 per cent success rate with legal aid. On asylum cases, there was a 25 per cent success rate on appeal without legal aid and a 37 per cent success rate with legal aid. For entry clearance cases, there was a 36 per cent success rate without legal aid and a 65 per cent success rate with legal aid. Lastly, for family visits, there was a 44 per cent success rate without representation under legal aid and 53 per cent success with legal aid. The Minister in another place was not able to confirm whether the figures were correct. It may be that the Minister tonight cannot answer the question, either. If he cannot, I would be very grateful if he would write a letter with the answers to the questions, which will appear in Hansard, and send a copy both to me and to other noble Lords who spoke in the debate. Those figures seem to imply, and in fact go further than that to prove, that representation is of enormous benefit to appellants. This is hardly a surprising conclusion but it is of course a very important one in the arguments about legal aid that we will no doubt enjoy in a few weeks.

20:30

That leads me to worry whether the joint effect of first, charging a fee for an appeal, which this order does, and secondly, removing legal aid, may—or undoubtedly will—lead to some meritorious cases not getting as far as the appeal. Of course that is an unintended consequence—the Government do not intend that to happen—but we suspect it might happen. Can the Minister assure us that it will not happen if this order is passed and legal aid is then simply abolished in a few months?

Perhaps I may make three last points, because I do not want to repeat those made so tellingly by other noble Lords. First, we are grateful that the Government have come to the view that there should be no additional fee for the Upper Tribunal, but the noble Lord, Lord Avebury, asked the right question: is this a definite view for the long term, or is it just for the time being? I would like the Minister to explain the Government’s present position on that.

Secondly, successful appellants may, at the discretion of the tribunal, get the cost of their fee returned. The Government have given ground on that and they should be congratulated on doing so. But the tribunal only has the power to give the costs back on a successful appeal, and that does not seem to us to be quite enough. Should there not be a presumption that a successful appellant will get the fee costs back at the end of their case? Of course that presumption can be rebutted if there are various aspects of the case that the judge feels mean the appellant should not get the costs back, but to say that it is just at the discretion of the court is not really any help at all. Why can it not be a presumption that may be rebutted?

Lastly, this is new territory and I think the Government are wary of the effects it may have; the impact assessment seems to say so. Would it not be sensible to review carefully the workings of this order in the next few months, and certainly over no more than a year? What plans do the Government have to review how it works and to inform Parliament of the conclusions?

As I think the Minister will be able tell—and I have been in his position a number of times—there is not much enthusiasm for this order in the House tonight. We are not going to vote against it. But I think it is clear from what I have said, and abundantly clear from what other noble Lords have said, that those interested in these matters are pretty unhappy about this course of events and it would have been better if the Government had not started down this road.

[Lord McNally]

My Lords, I am grateful for the contributions to this debate. They do not entirely surprise me. What the Government are trying to do is difficult, and it is always easier to spend taxpayers’ money. I understand what colleagues are saying, but I think that they are putting slightly too much burden on their fears and on warnings. We are talking about asking people to pay 25 per cent of the charge for a process which—as has been acknowledged—will have already carried a fee of some £900. This is not a case of the state casually dropping on innocent citizens and prosecuting them. This is about people who are applying to enter our country, who are paying a fee for a process and where, at a second stage of that process—the tribunal level—we are suggesting a very modest fee.

I fully accept that we are going to have a much more fundamental debate when the Legal Aid, Sentencing and Punishment of Offenders Bill reaches us, and I will be very happy to take on that debate. We are suggesting that there are certain areas of legal aid, which have been covered, where my right honourable friend the Lord Chancellor and I believe that it is not the business of the taxpayer to finance the legal profession to participate in these activities. Indeed, at the tribunal level we believe that the emphasis should be put on a much less legalistic approach, but that may be a debate for another day.

I do not think that this is a horrendous charge. It will benefit the taxpayer because we expect the savings and receipts to benefit the budget by £16 million to £20 million a year. Again, this must be seen in the context of dealing with almost 200,000 appeals. Whether the charges will have an impact on a falling-off of appeals will have to be seen, but I suspect that it will; it certainly may have a small deterrent effect on non-meritorious appeals. But if one looks at how my right honourable friend the Lord Chancellor has gone out of his way to create as broad as possible a range of exemptions and inclusions—the noble Lord, Lord Bach, was good enough to acknowledge that—I do not think that this is the harsh and unfeeling policy that has been suggested.

The noble Lord, Lord Avebury, asked whether we had consulted the UNHCR. Yes, we did, as part of the full consultation. Perhaps not surprisingly the commission did express concerns about the charging of refugees and others, but there was no suggestion that in so doing we were breaking any of our international obligations. I am sure that we will have a debate on other matters because we are looking to reduce the amount of money that the taxpayer contributes to a range of legal activities, and in this case we are asking those who apply to enter our country—it has been conceded that they will have already paid a considerable fee up front—if they have to appeal against a decision, to pay a modest fee in response. I do not think that that is the kind of horrible policy suggested by my noble friend Lord Thomas of Gresford. It is one of those necessary activities we are undertaking partly to reset the system that we inherited and partly to ask those who make use of the system to make a modest contribution.

Future changes will be affected in part by the decisions of the Bill before the House, and I have already explained how that will make a further impact on tribunal work. The noble Lord, Lord Bach, asked about the discrepancies in the success rate of appeals supported by legal aid versus those that are not. I understand that the figures are not published by the Ministry of Justice, but we will investigate them and write to the noble Lord. On our plans for future fee levels, the Government have committed themselves to regular reviews, the first of which will take place in 2012. I think that I have covered most of the questions that were raised by noble Lords, but if I have not, I will certainly write in clarification.

We are not looking at this as a draconian hurdle that makes it impossible for people to appeal; quite the contrary. How we have set up the structure and the exemptions we give show that our principal aim is to retain the concept of access to justice. People wishing to challenge a decision of the UK Border Agency will continue to have access to an independent tribunal which is part of a justice system that is respected throughout the world. However, the system costs money and the Government believe that taxpayers should not have to shoulder the entire burden. A proportion of the costs is already raised from visa fees, but we are reluctant to increase these further for fear of discouraging applications from essential workers, students and others, most of whom will never make use of the appeal system. In order to ensure that no one is denied access to justice, we are putting in place a system of exemptions and remissions, and setting the fees at very modest levels. We have also undertaken to keep the impact of introducing fees under review, and to consult on and bring forward revised exemptions and remissions proposals to replace the pegging of remissions to legal aid, should its availability be reduced.

Finally, in response to the representations made about consultation, the order provides that the tribunal may instruct UKBA to refund the fees of successful appellants, thus ensuring that they do not have to pay to correct the errors of the agency. That in itself will incentivise the agency to improve its initial decision-making—I take the point made by my noble friend Lord Avebury about that—and will reduce the rate of successful appeals to the tribunal. I note what has been said and that we will be returning with vigour to some of these issues when the LASPO Bill comes before the House. But, overall, I believe that this is a carefully measured proposal that will reduce government expenditure at a time when this is vital to our economic well-being, while maintaining access to an important means of challenging the decisions of the Executive in the immigration field. In that spirit, I commend this draft order to the House.

Motion agreed.

20:44

Sitting suspended.

Localism Bill

Wednesday 12th October 2011 Lords Chamber

Report (6th Day) (Continued)

20:49

Clause 100 : Adoption and withdrawal of development plan documents

Amendment 204C

Moved by

[Lord Marlesford]

204C: Clause 100, page 78, line 25, at end insert—
“(ai) that the document has had due regard to protecting and enhancing the quality and character of the countryside”

[Lord Marlesford]

My Lords, my Amendment 204C relates to the central issue of the Bill—the purpose of the planning system. I want, therefore, to put it in an historical and political context. I have always thought that the two great achievements of the post-war Attlee Government were the creation of a national health service in 1947 and the introduction, in 1948, of the planning system to protect the beauty of England. Both of these are hugely sensitive political issues. If a Government get either of them wrong, they will pay a heavy price at the polling booths. It is, perhaps, a coincidence that we have been discussing both these issues here today. The House has already expressed today its confidence in the intention of the Government to adjust its policy on the National Health Service in whatever way is necessary to get the right answer. At the moment, I am afraid I am less confident that the Government are prepared to improve this Bill. Indeed, I was disappointed by the pathetic reply that I received from my noble friend Lord Shutt in relation to my earlier amendment this week, on the need to keep Britain tidy. It is bad enough that officials should give Ministers briefs containing poor arguments, but what is quite unacceptable is that Ministers should parrot those same arguments from the Dispatch Box. I suggest that some Ministers need to take a lesson from the noble Lord, Lord Rooker, on how to tear up the departmental line when standing at the Dispatch Box. Let me say at once that I am sure that comment in no way applies to my noble friend Lady Hanham, for whom I have the highest praise and regard.

The creation of our planning system really goes back to 1928. That was the year that the great architect and conservationist Clough Williams-Ellis produced a polemical book called England and the Octopus, in which, in the words of Jonathan Dimbleby:

“He waged war on the ugliness, selfishness and short-sightedness and the catastrophic consequences of these human frailties on the precious quality of rural England”.

In 1928, the CPRE, of which in 1996 Jonathan Dimbleby was president and I was chairman, was in its infancy; but Clough Williams-Ellis and the other founding fathers such as Patrick Abercrombie used it to create the pressure from which, 20 years later, we got our planning system. That the planning system needs reform, I hope none of us would contest; but the rather ill-informed and ill-prepared zest with which the Government launched this Bill and the draft NPPF provoked and indeed alarmed a large section of the huge community that cherishes the English countryside.

Amendment 204C, which is being promoted by the CPRE, and is also supported by the National Trust and the Heritage Alliance, seeks to ensure that, when they are preparing local development plans, local planning authorities give due consideration to the need to protect and enhance the countryside, in the words of the late Nicholas Ridley—who was a tough Treasury minister and a true Tory—“for its own sake”.

One of the central tenets of the post-war planning system in England is that by guiding appropriate development to sustainable locations in the countryside, the countryside itself should be protected from unnecessary and irreversible damage, and the regeneration of our towns and cities promoted.

This principle is currently upheld by a series of policies contained in national planning policy statements, including policy EC6 in Planning Policy Statement 4: Planning for Sustainable Economic Growth, that the countryside should be protected,

“for the sake of its intrinsic character and beauty”.

Critically, this protection is not just conferred on high-profile designated areas of countryside, such as national parks, areas of outstanding natural beauty and heritage coasts, but on the ordinary countryside which is enjoyed by and which improves the quality of life of rural and urban dwellers all over England. However, the Government's planning reforms, being implemented by both the Localism Bill and the draft NPPF, as currently drafted, stand to remove the existing protection for the wider, ordinary countryside. I should emphasise that undesignated countryside makes up well over half of all countryside in England.

In addition, the NPPF introduces a,

“presumption in favour of sustainable development”,

a material consideration which my right honourable friend the Chancellor, in his 2011 Budget speech, summarised as meaning that,

“the default answer to development is yes.”—[Official Report, Commons, 23/3/11; col. 956.]

Understandably, the Government have been reluctant to define the term “sustainable” but, as my noble friend Lord Deben says, in a sense we all know what we mean by sustainable. It is common sense and it is localism at its most intense.

As Amendment 204D, in the name of the noble Lord, Lord McKenzie of Luton, draws attention to, the draft NPPF also does not contain a presumption that previously developed land should be developed first—the brownfield first policy—and it does not require planning authorities to have policies on housing density.

We should remember two points. First, developers will always go for green land rather than brown, if they have the choice, as it is so much cheaper to build on. Secondly, in general, the lack of housebuilding, particularly now, is probably more due to the economy than to a shortage of land. Housebuilders will not build houses if they cannot sell them.

Taken together, these changes will have serious and potentially devastating implications for the future of the countryside. They will create pressure on undesignated countryside, drastically limit the ability of local authorities to contain urban sprawl, to promote sustainable patterns of development and, therefore, to maintain a distinction between town and country and to plan for a high-quality and sustainable built environment.

It is not at all clear how, in the absence of national policy that promotes the protection and enhancement of the wider countryside, the Government intend to ensure that the countryside is protected from unnecessary and irreversible damage under the terms of its planning reforms. My amendment would create a legal requirement that development plans should not be deemed sound unless they have had due regard to the protection and enhancement of the countryside.

In their natural environment White Paper, published earlier this year, the Government declared their ambition for,

“this to be the first generation to leave the natural environment of England in a better state than it inherited”.

This document, significantly, also recognises the intrinsic value of the natural environment, and explicitly includes the open countryside in its definition of natural environment.

21:00

In May 2008, the present Prime Minister told CPRE:

“The beauty of our landscape, the particular cultures and traditions which rural life sustains, these are national treasures to be cherished and protected for everyone's benefit. It is not enough for politicians just to say that - we need leaders who really understand it and feel it in their bones. I do."

I hope my noble friend can say amen to that. Just last week, the Prime Minister recognised the importance of the countryside, stating in his speech to the Conservative Party conference:

“I love our countryside and there's nothing I would do to put it at risk”.

Also in Manchester, the Communities Secretary, my right honourable friend Eric Pickles, said:

“Our countryside is one of the best things that makes Britain great, and we will protect it”.

These are welcome commitments, but the planning system is the key means we have of protecting the natural environment, and these commitments will amount to nothing if we do not get the detail right. Perhaps in her response the Minister will say that the NPPF, rather than the Bill, is the right place to deal with these concerns, but she will be aware that very many people who care about the countryside, whether they live in urban or rural areas, have looked at the draft of that document and are extremely concerned about its contents. I hope that today she can give me an unequivocal assurance that the planning system will continue to protect the countryside for its own sake. If this is to be done in the NPPF, rather than the Bill, before Third Reading, the Government must provide the House with detailed wording of how this will be done.

Simon Cairns, the highly experienced and entirely non-political director of the Suffolk Preservation Society, of which I am president, sent me an e-mail last week in which he said:

“I am frankly amazed that a Conservative Administration is proposing to remove the national policy presumption against development in the open countryside. This would undermine the very cornerstone of our national planning system”.

There will be an audience, well beyond the Palace of Westminster, for my noble friend's reply today. I pray that she will not disappoint them.

[Lord McKenzie of Luton]

My Lords, we have Amendment 204D in this group, and we have added our name to the amendment moved by the noble Lord, Lord Marlesford. My approach to this will be much more mundane than the rhetoric, commitment and passion that we have just heard from the noble Lord, but we support the thrust of his inquiry. There is no doubt that this combination of the Bill and the NPPF—we struggle to have these two different tracks of change in planning policy—has created great consternation in a constituency which is probably closer to the Minister and her colleagues than to us. There are clear questions that have to be answered.

I agree with the noble Lord, Lord Marlesford, who said when he moved this amendment that the two great achievements of what these Benches call the Attlee Government and view with great affection were the creation of the NHS and the planning system. Was it Mr Silkin who did it in the Commons?

[Lord Beecham]

Lewis Silkin.

[Lord McKenzie of Luton]

I am advised that it was Lewis Silkin. We have some historical perspective on our side as well. I would not say they were the only achievements of the 1948 Government—there was much else—but I agree with that assessment. I never aspired to do what my noble friend Lord Rooker did in tearing up ministerial briefs. It is only somebody with my noble friend’s experience who could get away with doing that.

The noble Lord has focused on a real question about protecting the countryside. The Minister may well pray in aid the draft NPPF, subject still to that final consultation, and say that it is all covered in there. However, the onus is on the noble Baroness tonight to say that it is.

Amendment 204D talks about “previously developed” land. Sometimes the shorthand of “brownfield sites” gets mixed up with that terminology, even by Minister Greg Clark himself in an exchange in the other place. He was questioned and answered:

“I am happy to reassure the hon. Gentleman that that is not the case”—

that is, a planning free-for-all.

“If he takes the specific example of brownfield sites, he will find that paragraph 165 of the framework sets out clearly that land of the least environmental value should be brought forward first. That is another way of saying, brownfield land first”.—[Official Report, Commons, 5/9/11; col 20.]

However put, if that is still the policy, and demonstrably so, then it clearly has our support. The success of that approach is clear: the “brownfield first” policy has been working. Last year, 76 per cent of new dwellings were built on brownfield sites—an increase from 55 per cent in 1989—but we are entitled to inquire how that position is going to be protected in the new world of planning. Will the Government confirm that it is their intention that that should be the approach? We would be pleased to hear it confirmed this evening and the extent to which it is reflected either in the Bill, which I do not think it is, or in the NPPF and its references focusing on it. I am advised that it is estimated that there are already 62,000 hectares of previously developed land ready for building on, of which 10,000 are in the south-east. This is enough to build more than 1.2 million new homes.

The issues for the Minister in replying are clear: she has to reassure us—and as the noble Lord, Lord Marlesford, said, she must also reassure a much wider public—about the Government’s intent. More importantly, how is that intent reflected in the NPPF or the Bill? Without necessarily analysing the timing, manner or wording of the NPPF and the Bill, there is no doubt that it created a furore and a backlash. It is incumbent on the Government tonight and in going forward to clarify their position and reassure those who are concerned about what may happen to the countryside.

I would argue not only for the countryside. I have always lived in an urban area and there are issues about urban spaces as well, but this focus is on the countryside, particularly that part that is not specifically designated as greenfield land. The NPPF focuses on designation and the circumstances in which designation might be reassessed. One of the propositions is that if local development plans are revised or updated, that may be a trigger for reviewing the boundaries of greenfield land. Given that there is not a local development plan in the land that will be up to date when this Bill comes into force, there is a big question mark over that as well.

I am sorry I cannot muster the passion of the noble Lord, Lord Marlesford, in his arguments for the countryside, but I support those arguments and seek reassurance on developing previously developed land first as the policy and commitment of the Government.

[Lord Judd]

My Lords, passion perhaps not, but I know that my noble friend's commitment is outstanding on these issues. I welcome his amendment because while I support all the arguments that he made about brownfield site priority, one other important point which is sometimes overlooked is that if we give priority to brownfield site development we have a chance to improve the character of our urban areas. There is a chance to do imaginative things with housing and the rest in the middle of our urban areas.

I should declare an interest as president of the Friends of the Lake District, which also represents the CPRE in the whole of Cumbria. I am also vice-president of the Campaign for National Parks, but they are not really central, as the noble Lord, Lord Marlesford, explained, to our concerns tonight. The Government have made it pretty clear, which is very reassuring, that they have a commitment which they fully intend to honour to the national parks and the areas of outstanding natural beauty. That is a terrific undertaking from the Government and we look forward to seeing them fulfil it not only in the detail but in the spirit.

The noble Lord, Lord Marlesford, recaptured history very well. I was just entering my teens when the new planning legislation became operative. As the noble Lord, Lord Tope, knows very well, I was born in what was then Surrey on the edge of London and grew up in that area. I remember the concern among my family and many others as we saw many of the rich rural areas of Surrey near London being eroded by road building, ribbon development, new housing and the rest. It was a great sense of relief when this legislation came in. Some beautiful parts of the county of Surrey were preserved very near to London.

I know how important that was to me in my upbringing because as an active Boy Scout and keen walker I was always out in those areas, and so were many other people. Of course, these areas of beauty and of rich natural inheritance near to our urban centres are of special importance. It would be unforgivable if we were to let those slip and let further erosion develop.

We must remember something else. This idea about planning and the preservation of the countryside did not just come out of an elitist brain: it was something forged strongly in the context of the Second World War. We were fighting for the survival of Britain and we wanted Britain to be a decent place. We wanted it to be a better place and we could see that the countryside was central to that. If we are not careful we will lose that commitment, of which the noble Lord himself gave good evidence—passionate commitment in the best sense—to quality in our society.

The noble Lord kept stressing the inherent importance of the countryside—its inherent natural beauty being worth preserving in itself. Of course I go along with him 100 per cent on that argument, but it is not just about that. It is about our people. We had had the war and hard economic times before the war and people could see the importance of the countryside to those from urban areas as something to which we should all pay attention. Pressures may be different in character now but they are strong. People are under tremendous stress in urban existence. The economic pressures are increasingly acute, and therefore all those arguments about space and the opportunity to regenerate, to be recreative and to improve one's physique by enjoying and participating in the opportunities of the countryside remain at least as important as they have ever been. That is crucial and I was reassured to hear the noble Lord, Lord Marlesford, saying what he said, because across the House and across the political divide I think there is a great deal of agreement about quality and not just quantity.

For these reasons, as the noble Lord spelled out so well, I hope we can get an absolute undertaking from the Minister tonight that the Government will preserve their commitment to the countryside as something very rich and relevant to the needs of the British people—something beautiful to preserve in itself, but also something that is indispensable in terms of the psychological and physical health of the British people.

I just hope we do not allow the arguments of growth in its economic dimension alone to squeeze out the thought of spiritual growth, spiritual development and a fuller life for the British people. I congratulate the noble Lord most warmly on his amendment. I am glad to be associated with it, and I am very glad indeed that my noble friend has put down his amendment as well.

[Lord Deben]

My Lords, I was for 30 years a Member of Parliament for a country constituency, and for part of that time I had the honour of representing the noble Lord, Lord Marlesford, so I speak with some trepidation after he has put so valuable a contribution to your Lordships' House.

Over those 30 years, I think I have spoken more often and been more concerned with the rural scene than most politicians. Sadly, very few of our constituencies are now rural enough for one to be able to say truthfully that one represents a rural area. It is one of the mistakes, in my view, of the way in which constituencies have been drawn, and of course the changes in your Lordships’ House have meant that rural society is much less well represented than it once was.

I started out with a huge amount of sympathy for the campaigns. I did not like some of the people who were behind them. Some of the newspapers that were proposing them were not newspapers that I normally felt had the better interests of society at heart. But still they were making a great deal of fuss. I did notice, though, that some of the fuss happened before the Government had actually published their document, which suggests a certain predisposition to worry about the Government.

I am not as worried as some because the first thing to recognise is that if we are going to have localism then the local plan becomes absolutely crucial. One of the things that we in Suffolk have felt over the years—I can only speak for my own much loved county—is that we know more about our county than people outside. We wanted a situation in which our local plan could represent the way in which you keep a living, working countryside, and not merely preserve it like with taxidermy. It is one of the things your Lordships might remember, and I am sure many here will understand this. There are problems in our countryside about the livelihood of ordinary people. Increasingly, villages have become middle-aged and middle class. Even in the time during which I have lived where I live—35 years—the whole population make-up has changed. There are several reasons for that, but one is that we have tended to believe that any development, excepting those villages designated by somebody else as key villages, is unacceptable. We have argued that because the country council does not want to run a school bus to a small village, but wants people to be concentrated so they can deal with them more efficiently, these small villages should not be treated properly. Indeed, many are referred to by that offensive phrase “scattered settlement”. I am happy to say that I live in one. I have never heard anybody say, “I live in a scattered settlement”. They tend to say, “I live in a village”, because that is actually where they do live, and that is what they feel it is.

Therefore, we start with huge sympathy for the Government’s view that we should have local plans. Many villages want to have a few homes, because they know that that is the only way in which they can keep their amenities and revise and revitalise the village community. It is the only way in which they can stop the community becoming an entirely one-class society. Therefore change is crucial for the life of our villages; we want a working countryside and not merely a Marie Antoinette kind of rural idyll. So I am concerned sometimes when I read descriptions of the countryside that do not understand the need for it to be workaday, and particularly do not understand that our landscape is as it is because of work. Our landscape in England is almost entirely artificial in the sense that it is created by man’s work. That is not true in the wilder parts of Wales and Scotland and some parts of northern England, but most of us live in that sort of countryside. What we love most about it is very often something that human beings have co-operated on with the Creator to make something particularly special.

Not only do we have to think about keeping the countryside workaday, or sometimes returning it to being able to be workaday, but we also have to remember that there is poverty in the countryside that is very often unnoticed. Poverty comes thatched in the countryside, and so people think that it is a bit twee. But I knew poverty in my constituency. Someone said something about that earlier on—how bad the housing was in some parts of the world, very different from East Anglia. I could take people to village housing in my former constituency where poverty was real and the housing conditions were appalling. We must not hide from ourselves the fact that we need economic development in our countryside if it is to be both real and to meet the needs of the poor and if it is not to allow the countryside to become a mere dormitory for the old and those about to retire.

In that sense, thinking about the need for growth is not inimical to the protection of the countryside. It is part of making sure that our countryside is alive. But I must say to my noble friend that she is not helped by the traditional view of the Treasury. Not to embarrass anybody, I hope I may quote the housing report by Kate Barker, who put forward the totally improper suggestion that the reason why we are short of houses is because we do not have enough land on which there is planning permission. This is absolute nonsense. Housing is entirely driven by the ability to sell the houses that you build. If it is difficult to borrow money to buy a house, builders do not build. What is more, builders are quite clever at making sure that they do not build any more than keeps the price at the sort of price that they want. I have to say that under the previous Government, builders did better than they have done under any previous Administration. The return on capital and the profits of the building companies were clearly extremely well organised. I fear that that is part of the reason why we have such very low numbers. I do not want to argue with the noble Lord, Lord McKenzie, but the fact is that in most years of the previous Government the number of houses built were worse than at any time since the First World War. It was an appalling history. Some years it was 100,000, and we need 300,000 to meet the needs. The fact is that in no year of the previous Government’s administration did we build enough houses to meet the increased need for that year, leave alone get enough to make up for the 5 million that people pretended were not needed. The noble Lord, Lord Prescott, proceeded to suggest that we did not need it. Then, year by year, he, like everybody else, discovered that we did. So we have a very bad background to this, and I understand why the Government are very concerned about it.

I hope that my noble friend will not tell us that you get houses by having more planning. There are many planning permissions that are still not fulfilled, and the reason is that people do not think that they can sell the houses that are on it. So do not think that that is how we are going to get the extra houses that we need.

In this Bill it is quite clear that we have to build on brownfield sites, or at least those which are of least environmental value. The trouble is that there are some bug-filled brownfield sites which it would be a pity to build on. But we will build on those first. That is what the whole mix is supposed to do. Therefore the Minister may well say, “It’s all there”, and I agree with her. You do not need to change either the Bill or indeed the planning proposals to achieve what we want to achieve. But there is a problem in that an awful lot of people out there do think, “You need to change it”. In other words, we have a real problem of perception now, and it is therefore very important that we listen carefully to my noble friend Lord Marlesford. If he thinks that these dangers arise, then he is speaking for a wide range of people, and we have to make sure that people do not get this wrong. I personally have no concerns except the concerns that people out there have, and therefore I hope that my noble friend will be prepared to help in language, so that people really understand that the statements of the Government are carried out as the noble Lord, Lord Judd, said—in practice, clearly, and without peradventure.

The example for me is an earlier one. I used to talk about the planning guidance—PPGs—when I was the Minister responsible, and I was very keen on not building on greenfield sites. I was the first person to enforce the brownfield site concept, because I agree with the noble Lord, Lord Marlesford, that builders like building on flat and green fields.

I notice that the previous Government changed planning guidance to planning statements. We were already moving to the position in which people were being told what they shall do, and I therefore also understand that many people really resent the fact that others outside are telling them. We have to get this balance right. I had hope that we had got it. It is probably true that my noble friend will have to ensure that everybody knows on the face of the Bill, or at least in the planning strategy, that what we have said as a Government is actually there, and no one can object to it.

The reason I say this is very simple. I am afraid that there are a lot of people in this world who put their own profits and interests before national and local interests. They say, “Oh, that bit of land there won’t really matter, because I own it and I can make some money out of it” or “I’m only filling over there. I can do a bit on the edge there”. We need to make sure that they recognise, right from the beginning, that we are not having that.

For me, the real problem with the present situation is that I have no fears at all, when the local plans are in place, because I think localities will make the right decision. There will be a few that do not, but that is the price you pay for real democracy. There will be the odd, but the generality will in fact make the right decisions. My problem is between now and then, and it is at that point that people have a real concern that until you have the local plans in place, the presumption of sustainable development sounds as if it would allow people to do things which they ought not to do.

The Government have to assure us that that will not be the case. I think they can do so, but I hope my noble friend will understand that this is not antagonism towards the Bill, but a response to a national campaign which has a good deal of fault in it, but which has left people concerned, and it is part of the duty of government to meet those concerns.

21:30

[The Lord Bishop of Wakefield]

My Lords, I, too, support the amendment in the name of the noble Lord, Lord Marlesford. I warm very much to what the noble Lord, Lord Deben, has said about the local vision. I am just over half way through Knapton by the noble Baroness, Lady Shepherd, about the village from where she came. It gives a marvellous picture of how that village developed over the 20th century and did not stand still as a preserved, romantic ruin. Equally, we all know Ronald Blythe’s book, Akenfield, which again captured the development of a village and the way in which it continued to develop, albeit that it was fictional.

I think, too, of Timothy Jenkins who has written about the village of Comberton on the edge of Cambridge. He reminds us that villages are not places that have become fossilised but that they are growing communities, which often consist of three or four different communities within the same place, including those who have lived there over the centuries and have inherited the place, those who commute from there and so on.

Having said that, I realise that there are dangers. I am sure that I am not unique in this Chamber in regularly taking Private Eye. Noble Lords will have seen a couple of weeks ago the front cover which said that the Government have concrete plans for the countryside. It is always refreshing when I arrive back in this country by air and look out over England, even if it is at Heathrow—I came back from Tanzania just two weeks ago—and think, “Gosh, isn’t it marvellous that it is so green and there is still so much countryside”. But, standing alongside that, I think of where I was brought up, which was the northern equivalent to where the noble Lord, Lord Judd, was talking about in Surrey. We need to realise that Surrey is a foreign country if you come from north London. I would not want to make any comment about it but there you are. I was brought up on the northern edge of London. It is interesting that in the London Borough of Enfield, as it became, where I was brought up, something like two-fifths of the land area was still countryside. It was, as the noble Lord, Lord Deben, has said, living countryside—farming and so on.

As I go back there more than 30 years later, I now see that it has become part of what I would call the A10 corridor. If you come out of London, until you get well beyond even Hertford, you do not feel that you have got out of the conurbation. That is one of the key issues that would be helped by the amendment in the name of the noble Lord, Lord Marlesford. I think, too, of Newbury where my wife was brought up. I regret the fact that the by-pass on the A34 was built on the western side, which again extends that sense of urbanisation which is happening along the Thames Valley.

When one reads books such as Knapton, Akenfield or the book on Comberton, one reads about villages which still retain some sense of independence as communities. But I am worried about the urban areas which are gradually nibbling their way into the countryside. A crucial issue is what this does to those who are being brought up in cities—city children. It is extraordinary that you can go into a school in a big urban centre and find that when you talk to children about animals or plants, it is like talking in a foreign language. I think of where I am now in west Yorkshire. An interesting thing is that the bishops recently decided that we should try to be more focused. Each of us will take two or three concerns on which we concentrate. One of mine is rural issues. People often say to me, “How extraordinary to be talking about rural issues when you’re the Bishop of Wakefield”. But one of the amazing things about the diocese in which I live is that you have to drive only about a quarter of a mile in an urban area to find yourself in the countryside.

There is the symbiosis of the country and the urban. As the noble Lord, Lord Deben, said, we no longer live in a country idyll. In one sense, everywhere in this country is urbanised. At the same time, if we are to retain that sense of balance that is so important, we need to keep an eye on the way in which urban areas gradually encroach and become bigger conurbations.

Therefore, in supporting the amendment of the noble Lord, Lord Marlesford, my plea is that we make sure that, as we pursue localism, we do so in the context of the wider region and realise that we cannot see a village or an urban area in isolation. Ultimately, urbanisation has affected the whole of our country. If we do not take the two things together, we will find ourselves not being realistic in how we approach planning both locally and regionally.

[Baroness Gardner of Parkes]

My Lords, I have listened to the debate and this is a very interesting amendment. I am speaking now because I can cover one of the later amendments, which I have tabled. It is relevant to this and will save a lot of time when we get to it.

This morning I went to a breakfast meeting in your Lordships’ House, where the point was made that the number of humans breathing now in the world is equal to the number of all the other humans who have ever existed. That is a stunning statement if it is true. It means that, whether we like or not, we must think about providing for more and more people all the time.

Coming from a country where land was unlimited, when I arrived in England some 50 or 60 years ago I could not get over the degree of urbanisation. Driving from one town, you were barely out of it before you got to the next. Having come from Australia, where it might be 100 miles to your nearest neighbour, it was a terrible shock to see this. However, over the years I have grown used to it.

I have tabled my amendment, which we shall come to later, because I think that there is a case for it. In this instance the planning guidance referred to by the noble Lord, Lord Deben, is very interesting. It has been very unclear recently on in-fill sites in the green belt. How do you define an in-fill site? At one time it was considered that an acre or two in the middle of what was technically green belt, but which already had houses all around it, was not a bad place to put a children’s home, a private dwelling or something else. All the infrastructure was there and you would not expand on to further land. In the past 10 years or so we have reached a point where people say that every little bit of such land is sacrosanct. There is a huge difference between the green belt and a tiny in-fill site that has been left somewhere.

My home in Oxfordshire is in a very vibrant village. We have an excellent school system and many people with young families want to move to the area but there is simply nowhere for them to live. The local planning people have looked at things and said that there are three possible sites near or in the village that could be used. None of them is available. The people who own the sites are unwilling to allow any building on them. Some people have bought these pieces of land simply to prevent anyone building on them. This is quite damaging to the community because the village is obviously getting older all the time. I listened to the noble Lord, Lord Judd. The idea of the life that he had, wandering around in open countryside, is lovely. However, it is hard to imagine our being able to go on doing that for ever if population growth continues at its current rate. What do we want to do—preserve it for a few people and prevent a lot of others having a suitable home? We have to look carefully at the pros and cons of all of this.

The amendment is good because it asks only for “due regard” to be paid. I am 100 per cent behind that because due regard and careful selection of how things are done are important. However, we must be aware of the need for more accommodation for people and that everyone should have the right to decent housing and somewhere to live. I should not want to see anything happen that would prevent that.

[Lord Lucas]

My Lords, my noble friend Lady Gardner should discount any figures that she heard at that meeting this morning. The number of people who are dead is of the order of 100 billion, and I think that we are some way short of that in terms of the living.

My noble friend Lord Deben harked back to the days when the urban were a minority in this House. I thought that he made a rather thin case for those days and the retention of the hereditary peerage. He made a much better case for the retention of Secretaries of State in this House, and I hope that we will be able to defeat the Government’s intention to remove them over the course of this Parliament. I entirely agree with what he said and he put it much more nicely than I am going to do.

I am greatly saddened that the National Trust should have chosen story over truth. I do not think that it will do it and its reputation good over the long term. I do not accuse my noble friend Lord Marlesford of any such thing. He and I just have an honest disagreement. However, I shall start with something on which I think we probably do agree: given 1,000 or 2,000 acres of rural Hampshire, neither of us would recreate Basingstoke in it.

I very much share the feeling of my noble friend Lord Deben that the countryside is a living place and that villages and other human habitations grace it. I agree that the way that the Bill sets about making possible the revival of the countryside, breathing into it not a vast mushroom growth but a steady rate of change and development to suit the requirements of the local population, providing a natural means of life and change, is something that we should welcome. Countryside with well designed, well placed houses and other buildings in it is a more beautiful thing than thousands of acres run by barley barons on a rotation, where the most delightful thing you are likely to see is rape every 10 years and where, if you visit it as a botanist, which I do, you see a few gross weeds such as nettles and docks, a few coarse grasses, and a few scrawny annuals and crops. In botanical and any natural terms, farmers have created a desert, much of it in countryside which has no great beauty—nothing on which to rest one’s eye. It would be vastly improved by a few well placed villages and other buildings, and I do not think that we should romanticise about all our countryside being of the quality of the greatest.

Therefore, my concern is that we should not be blown off course by the misleading adventures of the National Trust and others but should concentrate on the purpose of the Bill, which is to give discretion to local communities regarding how they develop. I trust them, as does my noble friend Lord Deben. Because no speech from me would be complete if I were entirely in favour of the Government, I say that I share the concerns of my noble friend Lord Deben about the interregnum. What happens when there is no local plan? I do not think that it is desirable that that should be a space for a free-for-all.

[Baroness Hanham]

My Lords, I am just about to cancel tomorrow’s debate—if it were in my hands, I probably would—because I think that we have had it. We have had extremely thoughtful speeches on very carefully thought through amendments.

I shall start with two things. The first is to support entirely what has been said about the mischief that has been stirred up over the launch of the planning policy framework. An awful lot of the comments arrived before anyone had had an opportunity to see what it was all about, and the matter has gone from there on a steamroller to something that the Government now clearly have to pick up and deal with because there is so much misconception and misperception around that it cannot be left.

21:45

The national planning policy framework is a consultation document. People who have thoughts and anxieties about it must let us know. Over the past weeks both in the other place and here we have given every demonstration that the Government and the department are listening and will make changes where they believe that is right and where there are representations with which they agree. We do not just stand by what is said in print. If we think that there is a case to be made, we are perfectly happy to talk about it and see what can be done. It is important to say this in this context because the national planning policy framework will be the blueprint for the future. Therefore, it must be something to which people by and large sign up. You cannot “do planning” to local people because people get cross, frightened and anxious about what is going to happen next door to them. They have to understand and be able to see how things are going to affect them. When the planning policy framework finally appears we will have to take account of the fact that it is a live document which people will study and that it will be relevant to local plans.

As the noble Lord, Lord Deben, said in his amazing speech—I am almost on the point of giving up on mine—the local development plans and local development frameworks will be the most important aspect of planning as they will enable local people, neighbourhoods and neighbourhood forums to have plans which affect their small areas. This will form a protection as regards future developments. The protection will work in two ways. It will protect neighbourhoods that do not want something in quite the place that the local development plan is suggesting but that are required to do something about the matter. They can say, “We do not want that development here but we could put it over there” and that way they will be happy. We must also understand that, as the noble Lords, Lord Deben and Lord Lucas, have said, people in the countryside are crying out for some form of development which their children can afford. Within the Bill there is the community right to build. This is another aspect whereby local people can identify land and say that they would like a building or some housing built there and can themselves pull together the plans and projects to do that. Those people understand what affects their village and what affects them. The local development plans have plenty of scope to ensure that there is protection against inappropriate development or, if that protection is not needed, to ensure that appropriate development takes place.

A great deal has been said about brownfield sites and derelict land. My right honourable friend Greg Clark has already made clear—in fact, the framework makes it clear—that sites of the lowest amenity and environmental value, which would include previously developed land, should be used as a priority. I do not think that we can say that any more clearly. That clearly covers brownfield land. Brownfield land is land that has been either previously built on or in some cases is contaminated land which has been left and must be decontaminated before it can be used. There is a clear understanding, particularly in urban areas, that brownfield sites should be used first where possible. However, that does not rule out there being other sites where there is a general consensus that development could take place. That is important. We have to be utterly flexible in what we do. We must understand that everybody has different priorities and that people in different parts of the country have different priorities.

My noble friend Lord Marlesford started with an excellent speech, well supported by the noble Lord, Lord Judd, on protection of the countryside. I fully understand that. The amendment, which would add to what the inspectors have to take into account in considering a local plan, would add the requirement to take particular account of the countryside. He will be upset with me, but I am going to resist that slightly, not because I do not agree with it—I do agree with it—but because it is not relevant to the town or the cities. The countryside is not something which an inspector is going to take account of when developing the city centre of Bradford and to put such a requirement in legislation just makes it awkward and a bit tenuous to what we are talking about. However, it is well understood, the Government have understood it. My right honourable friend the Prime Minister and Eric Pickles tried at the conference to redress the damage that was originally done by the articles and the campaign that was fought that said that this was something that we were not interested in and were not protecting at all. Absolute nonsense.

Most people in this country have some connection with the countryside. They know about it. Most people, as they fly in, realise just what a beautiful country it is. We do not want to see—and this Government are no different from Governments before—the countryside despoiled. We also do not want to see the development of the country and villages get frozen in aspic. I do not think that I can make it any clearer, first, that the presumption here is always to make use of derelict or developed land and secondly, that we must always—and these are together, not apart—consider the countryside to be extremely special.

Another area on which there has been a lot of correspondence has been the assertion that we were going to let the bulldozers go in, drive all over the place and knock things down and let towns be built all over the place on the presumption of sustainable development. Let us be clear that the presumption only works and only comes into play where there is not a supporting development plan at the time, or the development plan supports the application. No application on anything that there might be a presumption in favour of can go through without the normal form of planning control. Any application will always go through the planning system. Most of us know about planning committees; we have all sat on them and we all know that local people are vigorous and vociferous when they do not want something developed.

The presumption in favour of development will not stop that process taking place. Where there will be a presumption in favour is where there is no reason for refusing it—nobody objects, nobody is upset, it all seems to be quite sensible and straightforward—then, in order to stop there being too much delay, there will be an expectation that that plan will be accepted. We should not be too frightened of this: there must be an expectation that we can put vital new housing and new business in the right place, to help not only the housing of our people, but also the economic growth we need.

I hope that there are no points I have not addressed. I am extremely grateful for the speeches that have been made on all sides, because they demonstrate a realisation of the position. I strongly urge that in our debate tomorrow we will recall and remember that this is a consultation, it is open to people to make representations about it, and it is absolutely clear that this Government will pay attention to that consultation.

I know how strongly my noble friend feels about this so I say with some hesitation that I will not accept this amendment. I hope, in light of the explanation I have given, and if I can almost develop the passion on this matter that I heard coming from him and the noble Lord, Lord Deben, that he will feel able to withdraw the amendment, and we will look forward to him reiterating that tomorrow. If he does not, I know that what he has said and the way he has said it will be carried forward into the consultation and that the views he has expressed will be very firmly taken on board.

[Lord Marlesford]

My Lords, first, I thank everybody who took part in the debate and I hope and think that it was a useful debate. It is a little awkward in a way that there is a big debate on the same subject tomorrow. Perhaps it would have been better if that had been a bit later but that is the way the cookie crumbles.

There is one lesson that this Government have increasingly to learn. Their Achilles heel is the way in which they have handled legislation. Surely there is one basic rule of politics that everybody here ought to know: in politics, perception is reality. It is all very well for my noble friend to say, as she charmingly did—perhaps with some justification—that there were some overstatements made by the National Trust particularly, and my noble friend Lord Deben made the same point. How much better would it have been if the Government, in the process of preparing their legislation, had consulted with these bodies instead of, not surprisingly, arousing huge apprehension?

I heard my right honourable friend Mr Pickles saying with triumph, “A thousand pages of planning experience drawn up over the last 60 years? Away with it! We will bring it down to 50 pages”. That was bound to make people realise that you probably could not put into 50 pages everything that was needed. It would have been a great deal better if they had sat down with people like the National Trust and CPRE before producing all these drafts. Instead, the Prime Minister had to write a letter to the National Trust, saying, “Please do not get too upset with us, we will talk to you”, and Ministers are now doing so—much better late than never.

I hope for the Government—and perhaps the usual channels on my side will convey this—that this applies not just to this Bill but to a number of others, and in future legislation I hope that they will take a little more trouble to consult and prepare the ground and show more sensitivity. I am pleased to feel, from what the Minister has just said, that the lesson has got home. I would have confidence in her and I do not have any problem in withdrawing my amendment tonight because I am sure that as the NPPF is a draft, as she said, and is susceptible to being changed, and there are discussions going on about it, we will eventually get the right answer.

However, it matters to a lot of people and there are people who will only get an impression and the impression is what matters. The Government have a lot of work to do in the next year or so to put right the impression that has been created so far. I hope that this lesson has been learned and will be applied to other Bills. I thank everybody for what they have said, and I beg leave to withdraw the amendment.

Amendment 204C withdrawn.

Amendment 204D not moved.

Amendment 204E

Moved by

[Baroness Hanham]

204E: Clause 100, page 78, line 38, at end insert—
“(7AA) Subsection (7B) applies where the person appointed to carry out the examination—
(a) does not consider that, in all the circumstances, it would be reasonable to conclude that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, but(b) does consider that, in all the circumstances, it would be reasonable to conclude that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document’s preparation.”

Amendment 204E agreed.

House adjourned at 10 pm.