Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
Before the Minister moves that the first statutory instrument be considered, I remind noble Lords that in the case of each statutory instrument, the Motion before the Committee is that the Committee do consider the statutory instrument in question. The Motions to approve the statutory instruments will subsequently be moved in the Chamber in the usual way. As usual, if there is a Division in the Chamber while the Committee is sitting, the Committee will adjourn from the sound of the Division Bell and resume 10 minutes thereafter.
Financial Services and Markets Act 2000 (Exemption) (Amendment No. 2) Order 2011
(13 years ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Eatwell
With the leave of the Committee, I wonder whether I might make a statement before the Minister rises and request that he withdraw this order on the following grounds. First, much of the relevant material of this order is still under consultation by the Financial Services Authority. The consultation concludes on 31 October and today is 17 October. Secondly, I draw the Minister’s attention to the report of the Merits of Statutory Instruments Committee, which, on 13 October, wrote to the Treasury with a reminder of the need to make summaries of consultation responses available at the time an instrument is laid and to ensure that the summary for this draft instrument is available before the debate in this House.
Thirdly, a lot of the scrutiny of this order is dependent on the Opposition and other noble Lords having access to the results of the consultation so that they can properly and fully scrutinise the consequences of the order. The results of the consultation are not available and it is therefore not possible for noble Lords to effectively scrutinise this legislation. If we proceed, it would be the sort of action that brings Parliament into disrepute.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, there is perhaps some confusion about what we are doing here today and what else needs to be done in connection with this order from the Joint Committee on Statutory Instruments.
Let me start by explaining the situation we are in, because it is complicated. The previous Government in March 2010 made a decision—a joint decision of Treasury Ministers and Ministers of the Department of Enterprise, Trade and Investment in Northern Ireland—that credit unions in Northern Ireland should no longer be exempt from regulation under the Financial Services and Markets Act 2000 and that responsibility for their regulation should transfer from the Department of Enterprise, Trade and Investment to the Financial Services Authority. That decision was taken by the previous Government and we are considering the order today. As the Deputy Chairman reminded us, the formal business is moved on the Floor of the House. We are considering the statutory instrument that puts into place a decision by the previous Government.
The running consultation is about consequential provisions relating to the details of the transfer, the transitional arrangements, grandfathering, temporary powers for the FSA, how information will transfer between the department and the FSA, and consequential issues to do with money laundering and terrorist financing. Those will all be dealt with—to the extent they need to be—in the appropriate way through instruments or regulation. Therefore, what is being consulted at the moment is nothing that should detain us from putting in place a decision by the previous Government with which this Government completely agree. In our view, it is about time that we got on with the enabling instrument and there is no reason not to allow the consultation on the “how” of the transfer to carry on in the normal way.
The Treasury is publishing today responses to the original policy proposals in principle. However, the decision was originally taken and announced in a joint document by the UK Government and the Northern Ireland department in March 2010. I think we should turn to the substance of the order.
Lord Knight of Weymouth
I am grateful to the Minister for giving way, but given my noble friend Lord Eatwell’s comments and the confusion that the Minister alleges my noble friend had, would it not have been easier to wait? Is there any reason why the Minister wants to move this Motion now, given that it would have been easier to consider the two orders together for the sake of clarity?
Lord Sassoon
I am not alleging any confusion other than that this is a complicated series of manoeuvres that has to be gone through to effect the transfer. It is quite right that we should consult on the how. It is for this Committee to decide the simple and important issue of principle as to whether the people of Northern Ireland, 50 per cent of whose population have their money invested in credit unions, are given the proper and full protection which FSA regulation would give them. Of course it is important that the how of the transfer is properly considered, which is what the current consultation is all about, but it might be sensible if we considered the arguments—which I think are extremely clear cut; there is nothing between the previous Government and the present Government on this—that we need to get on and give those in Northern Ireland, a very significant number of people, the protection afforded to those who put deposits in banks in the whole of the United Kingdom and currently put deposits in credit unions in Great Britain.
Lord Eatwell
Perhaps, if the Minister would allow me, we can clarify this matter. In the consultation document on the FSA website, the first question is:
“Do you agree with the proposed legislative measures outlined in chapter 3?”.
The order before us today is included in Chapter 3. Does the Minister know the answer to that question from the people of Northern Ireland?
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
My Lords, I believe that the Minister has not yet finished the speech he wishes to make in order to put the Motion. We must first put the Motion before it can be discussed, so we must wait until he is ready to say that he wishes to put it.
Lord Sassoon
My Lords, credit unions operate throughout the United Kingdom, providing savings and loans services, mostly in their local communities. Although the credit union sector in Great Britain is relatively small, it makes a large contribution to the financial inclusion agenda by operating in areas of poverty where local communities often lack access to affordable credit. In contrast, the credit union sector in Northern Ireland is extremely significant within the financial services landscape. Approximately 50 per cent of the adult population of Northern Ireland are members of their local credit union.
That is why, quite properly, the previous Government decided that that situation needed to be looked at and resolved. It was the belief of the previous Government, confirmed by the present Government, that credit unions in Northern Ireland should be brought under the Financial Services and Markets Act. That is for three main reasons.
The first is for reasons of financial stability. Given the significance of credit unions in Northern Ireland, the collapse of the sector would have a devastating impact on entire communities’ access to financial services and credit facilities.
Secondly, the order will ensure that the deposits of each Northern Ireland credit union member will be protected by the Financial Services Compensation Scheme, the FSCS. This will guarantee each deposit up to the £85,000 limit, in line with credit union members in Great Britain. The current legislation exempts these credit unions from this guarantee. As a result, there is a distortion in the level of consumer protection provided for credit unions across the United Kingdom. Removing the current exemption from the Financial Services and Markets Act will address this distortion and prevent members from relying on untested depositor protection schemes run by the various trade bodies across Northern Ireland and the Republic of Ireland. Those credit unions that are unaffiliated with one of those trade bodies currently have no depositor protection. That is wrong. Northern Irish credit union depositors should be put on the same footing as those elsewhere in the United Kingdom; and as with bank depositors.
Thirdly, by removing the exemption from the Financial Services and Markets Act, the members of each Northern Ireland credit union will have recourse to the Financial Ombudsman Service if they encounter any dispute with their credit union. Again, this is an aspect of consumer protection not currently afforded to members in Northern Ireland and is another positive aspect of the proposed legislative changes.
Lord Sassoon
That the Grand Committee do report to the House that it has considered the Financial Services and Markets Act 2000 (Exemption) (Amendment No. 2) Order 2011.
Relevant document: 28th Report from the Joint Committee on Statutory Instruments
Lord Eatwell
My Lords, I put a question to the noble Lord, which he has not answered, regarding the response of the people of Northern Ireland to the question about whether they agree with the order. On this side of the Committee we are entirely supportive of the objectives of the order. That is not the point that I am raising. My point is that the Merits Committee wrote to the Treasury on 13 October, reminding it to ensure that the summary of this draft instrument was available before the debate in the House. I have not been able to find a summary of the consultation on this draft instrument. Without the reactions of the people of Northern Ireland, who are closely and greatly involved in credit unions, as the Minister pointed out, it is very difficult to offer the order proper scrutiny. Therefore, I cannot continue, other than to say that it would be appropriate for the Treasury to ensure that relevant consultation material is published, as the Merits Committee requires, prior to consideration of draft legislation by the Committee.
Lord Newby
My Lords, there seems to be a muddle over the consultation. The Explanatory Memorandum said that the summary of responses to the March 2010 consultation will be published shortly. I think the Minister said that it was published today. I do not know when the March 2010 consultation formally finished, but it was presumably quite a long time ago. It is indeed unsatisfactory that we do not have the results of that consultation.
However, I think it is appropriate to look at what the order says. It is an extraordinarily short order, and it says nothing, as the Minister said, about the detail of how this change will be effected. All it says is that the change will be effected and that Northern Irish credit unions will be brought under the ambit of the FSA. I do not know, but I would be surprised if there was a single, solitary soul in Northern Ireland who would oppose that change, particularly if they look at what has been happening south of the border in recent weeks. Only a couple of weeks ago, the Irish Finance Minister was called upon to inject €1 billion into the credit union sector south of the border, because many of those credit unions—and we are talking about a sector that is as predominant as it is north of the border—found themselves, as a result of rising unemployment and declining income, in some difficulties. Of the 407 credit unions in the Republic of Ireland, some 79 are now in need of this injection of capital. It seems likely not only that that will need to happen but that there will have to be some consolidation in the sector and smaller credit unions will need to merge.
My question to the Minister is, in a completely different sense to that of the noble Lord, Lord Eatwell, why it has taken the Government so long to bring this legislation forward, given that the majority of the population of Northern Ireland would be affected if their credit union got into difficulty. Even if we approve this order in due course, it does not come into effect until 31 March next year. My question to the Minister was going to be, and remains, whether he has any evidence that the travails that afflict the Republic of Ireland credit union sector are spreading north. Does he envisage that any individual credit unions north of the border will get into difficulties over the coming weeks and months? In the absence of any covering FSA jurisdiction, what would the Government’s response be were they to find themselves in the same position of the Government south of the border, where a significant number—in their case about 15 per cent of credit unions—required short-term capital support?
Lord Myners
My Lords, I broadly welcome the intention of this order, but I find myself wanting to ask the Minister why it has taken such a long time to bring it forward when it was self-evident that it was necessary and had been agreed by the previous Government and endorsed by the coalition parties when previously discussed. It seems lamentable that the Government have allowed the situation to go on for as long as it has without taking any necessary action.
When it comes to this particular order, we do not have sight of the evidence that we were assured would be available to us in informing our discussion and agreement. What harm would be done if the Government withdrew the order and brought it back after we have had an opportunity to consider the evidence that is so clearly necessary to inform our decision on this matter? It simply cannot be acceptable that the evidence has been published only this morning. As far as I am aware, no effort has been made to make it available to those who are likely to attend this session and discuss this matter. That is an inexcusable failure by the Minister and the Treasury, for which the Minister owes us a full and proper account. The right approach would be to withdraw this order until we have had adequate opportunity to discuss the evidence.
In the mean time, I support the question that the noble Lord, Lord Newby, asked. Can the Minister give us clarity, given that the Government have been so slow in bringing this matter forward, as to the position of people with accounts and business relationships with Northern Ireland credit unions that have experienced difficulty? Do the Government stand behind them until such time as the Financial Services Compensation Scheme becomes an eligible right of those with relationships with credit unions? Will the Minister also assure us that to the best of the knowledge of the Treasury and the FSA credit unions are not currently offering products in Northern Ireland to which they are not entitled by virtue of their authorities? The Minister at the end of his speech listed some of the products that credit unions would be able to offer once this order was implemented, but which they are not currently able to.
Finally—I ask this having dealt with these matters myself—can the Minister tell us whether any further action is intended with respect of the failure of the Presbyterian Mutual Society, and in particular the directors?
Lord Sassoon
My Lords, notwithstanding the welcome rare appearance of the noble Lord, Lord Myners, as a former Treasury Minister in this Committee, it is a bit rich of the Opposition to talk about delay in this order. The Northern Ireland credit unions were left out of FSA regulation from the time that the Financial Services and Markets Act was enacted in 2000 until the previous Government left office 18 months ago. So for members of the Opposition to talk about the delay of this Government in not getting the order through earlier while on the other hand asking for evidence of a decision that they had taken before the election—seemingly without waiting for the evidence that they are now asking for—is indeed a bit rich. If noble Lords on the other side really want to persist with this line, this order will not get through, as it has to in the next few days and weeks, in order to give the people of Northern Ireland proper protection of their money in mutuals from the proposed transfer date to FSA regulation of March 2012.
What does the noble Lord, Lord Eatwell, who has come along with all kinds of clever procedural tricks this afternoon, have to say to the people of Northern Ireland if he is to deprive them yet further of proper protection under the Financial Services Compensation scheme? We need to get this order through if the people of Northern Ireland are to be protected from March of next year.
Lord Eatwell
My Lords, to refer to the fact that the Government have apparently published only this morning the evidence of the consultation and the raising of the objection of not having had access to it as a clever procedural trick is an abuse of language.
The point we are making is that the Government should take seriously the consultation with the people of Northern Ireland and make the results of the consultation available to the Opposition so that they can properly scrutinise and assess the impacts of the change. That is all that I asked for. I also pointed out that on 13 October the Merits Committee wrote to the Treasury requesting that the material be published, and it was not published until this morning.
As my noble friends and I have made clear, we are entirely supportive of this legislation. We want to get it through as soon as possible, but we want proper due process. This is an abuse of due process. I think it would be best if we let the Minister proceed with his Motion, because he is not interested in actually debating the issues.
Lord Myners
I would always defer to the advice and conclusion of my noble friend Lord Eatwell, but the petulant language used by the Minister is a sign of how rattled he is by this subject. I invite the Minister to clarify. He has said that if this order is not approved today it would deny the people of Northern Ireland certainty and protection in due course, with effect from the end of March next year. Can the Minister confirm that delaying the approval of this order for another week so that the necessary information can be reviewed by Parliament would mean that that certainty could not be delivered and that this is, therefore, the last chance for us to discuss it? In the absence of a clear answer I think that the should withdraw this order and re-present it to the Committee in a week or so.
Lord Sassoon
My Lords, the situation is that we need to have the process complete, as I said, within the next days and weeks. There are a number of orders that need to be laid. In particular, four orders will need to be laid containing the transitional and consequential provisions, because those follow the negative procedure and they can only be made and laid after this affirmative order. So there must be a sequencing here, which we are starting today. All the information that has been requested will be available for the consequential technical provisions, which formed the main substance of the consultation. If we do not get on and lay today’s order, with the four that follow, in the time that is available, there is a very serious risk that transfer to FSA control will be delayed by approximately six months. It could be longer, as the FSA would need to restart the clock on its transfer process.
I am sorry if noble Lords do not like my language, but for those who are looking at this from Northern Ireland and who thought that the previous Government had made a clear decision, I quote from paragraph 1.1 of the March 2010 document, which says:
“Following the decision that credit unions in Northern Ireland should no longer be exempt from regulation under the Financial Services and Markets Act”.
We are today discussing the order which, if formally made, will enact that decision, made by the previous Government last year. The four enabling orders, for which the evidence must, of course, be considered, will be put through by the appropriate negative procedure. However, they cannot be laid until after this affirmative order has gone through. I hope that that explains matters.
In response to the question from my noble friend Lord Newby and the noble Lord, Lord Myners, I accept that there has been delay in this process, although not the 10-year delay of the previous Administration. There has been some delay because this is a matter not just for Her Majesty’s Treasury, but also for the Northern Ireland department. There have also been elections in Northern Ireland. I would have preferred things to have been tidied up a little earlier, but I really do not think that this should prevent us making the critical decision which Northern Ireland is waiting for.
On the responses to the decision in principle, it is, indeed, supported by the Northern Irish public. The published responses are positive. I apologise if the document arrived rather late, but nobody approached us and asked to see it until five minutes before we started. Responses were, on the whole, in favour of the transfer. The concerns expressed, such as they were, were over the nature of the transfer, which is precisely why an FSA consultation is taking place, relating to the four subsequent orders which will come forward and be considered in due course.
The other substantive issues which have been raised in this short debate are important. My noble friend Lord Newby asked about the difficulties in the Republic of Ireland, the consequences of their spreading north and so on. Clearly, the credit union sector in Northern Ireland has been affected by the financial crisis but not to the same extent as institutions in the Republic of Ireland. There remains a divide in the business operations from those institutions over the border as credit union membership is usually limited to a local geographical common bond. There is some crossover with the Republic in the membership of trade bodies and their respective depositor protection schemes, which is another reason that supports getting on with this. However, it is something that we need to get on with as fast as we can anyway.
In answer not only to that question but the related question of the noble Lord, Lord Myners, until we get this new arrangement in place, credit union deposits will remain the responsibility of the devolved Administration, as they have been since the settlement with Northern Ireland some 15 years ago. That could have been cleared up by the Financial Services and Markets Act 2000 but it was not. This reinforces why it is right to get on with this, since the whole Committee seems to agree on the principle.
The noble Lord, Lord Myners, also asked for an assurance that credit unions are not offering products that they are not entitled to offer. That remains the responsibility of the Northern Irish department until 31 March 2012 and I cannot speak for the department. After that date, credit unions will fall within FSA regulation in the normal way. The noble Lord also referred to the Presbyterian Mutual Society, which was a sorry saga. The present Government stepped in and helped with the clearing up of it. However, the Presbyterian Mutual Society is not a credit union under the terms of the order and is therefore not directly relevant to this afternoon’s discussion. However, it points out in a different way the importance of seeing that Northern Ireland gets a fair deal across the whole spectrum of financial services.
In summary, these measures are positive for credit unions and their current and future members. The transfer is important for the long-term security of and confidence in a very important financial services sector for Northern Ireland. While there are some upfront costs, they are relatively modest in relation to what we are putting in place. This is positive not only for consumers of financial services in Northern Ireland but should enable the credit unions themselves to develop their business in a positive way by offering further products.
I can only apologise to the Committee for the fact that we did not have the responses out earlier. I believed that they were not a matter of significance in relation to the basic decision, in principle, that was taken in March 2010. If we had received requests for them earlier, we would of course have seen what we could do to have a discussion and go through what was available. However, I was not aware until shortly before the start of this Committee that there were such concerns. I appreciate that the noble Lord, Lord Eatwell, tried to get hold of my office but was not able to get through this morning. I say again that the evidence relates in particular to the four negative orders which necessarily follow and could never be laid at the same time as this order. I hope that this Committee will give its support to something which all speakers have said they approve of in principle.
Lord Myners
My Lords, it is an extraordinary protocol whereby the evidence will be given only if we ask for it, otherwise it will not be volunteered, which is what the Minister appears to be saying. However, I shall support the order on the basis of the assurances that the Minister has given that the evidence is strongly in support of it. I shall support the order also on the basis that the Minister has assured us that failure to approve it would therefore slow the four consequential negative orders and could lead to the FSA delaying by up to six months taking on the responsibilities contemplated by this order. If the Minister’s assurances on that point are not as clear as I interpret them, I would continue to be of the view that the right and proper process is for Parliament to have examined the evidence before reaching a decision. However, I believe that the Minister has given us a very clear indication that it is absolutely critical that the order be approved in the next few days or weeks—I hope that by “weeks” he does not mean several weeks, but a week or two at the maximum.
Medicines Act 1968 (Pharmacy) Order 2011
(13 years ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Medicines Act 1968 (Pharmacy) Order, being debated today, will remove the restriction placed upon pharmacists registered in Britain by virtue of a pharmacy qualification awarded by a relevant European state that prevents them being in charge of a newly established pharmacy. This refers to any pharmacy that has been registered for less than three years and is commonly known as “the three-year rule”.
The relevant European states referred to are Iceland, Norway, Liechtenstein, Switzerland and the European Union (EU) member states. It is not relevant to pharmacists who qualified in the United Kingdom.
I should first give the Grand Committee some background. All pharmacists practising in Britain must be registered by the General Pharmaceutical Council, as must all pharmacy premises. Some pharmacists are registered to practise in Britain under arrangements for the mutual recognition of pharmacist qualifications awarded by EU member states or other relevant European states.
EU Directive 85/433—now 2005/36/EC—includes provision for member states to place restrictions on the recognition of the qualifications of such pharmacists in the case of pharmacy premises registered for a period of less than three years. In Britain, the restriction applies to the pharmacist in charge of such pharmacies, known as the “responsible pharmacist”. In other words, while all pharmacists registered in Britain under the mutual recognition arrangements may work in any British pharmacy, however long it has been registered, such pharmacists cannot hold the position of responsible pharmacist in a pharmacy that has been registered for less than three years. The current restrictions on visiting pharmacists owning pharmacy businesses or acting as superintendents are not affected by this order.
The derogation in the directive was originally put in place in the mid-1980s for economic reasons, following concerns by UK MEPs. They believed that, given the UK’s comparatively open arrangements in relation to pharmacy ownership, there was a risk that the mutual recognition arrangements would put existing UK pharmacies at a disadvantage. Since then, however, much has changed both in terms of pharmacy arrangements in other EU member states and the evolution of domestic policy in Britain.
We have conducted a full public consultation on removing the restriction, both for established pharmacists—those fully registered with the General Pharmaceutical Council in part 1 of the register—and for visiting pharmacists—those temporarily practising in the UK and registered in part 4 of the register. However, the restriction has not affected any visiting pharmacists as, to date, none has been registered.
The response to the public consultation has been very much in favour of removing the restriction. The proposal has support from the General Pharmaceutical Council, the pharmacy regulator, the Royal Pharmaceutical Society, the professional body for pharmacists, as well as all the main pharmacy representative organisations, including the Pharmaceutical Services Negotiating Committee, Community Pharmacy Scotland, the Company Chemists Association and the devolved Administrations.
The proposal will encourage flexibility, efficiency and continuity of care within pharmacy. It will end the situation where a responsible pharmacist, registered here by virtue of the mutual recognition arrangements, can no longer continue in that role if their pharmacy relocates, even if it only moves next door, and therefore becomes a newly registered pharmacy. Removing this restriction will mean that patients can enjoy greater continuity of care in such circumstances; that all registered pharmacists will be placed on a level footing in terms of their employment prospects; and that employers will have a deeper pool of potential employees to draw upon and less bureaucracy to deal with when filling vacancies.
I should now explain the revision of the draft Explanatory Memorandum laid before your Lordships today and the change required to the final version of the Explanatory Note on the order. In undertaking preparatory work for this debate on the draft order, officials in the Department of Health realised that, contrary to previous understanding, “visiting pharmacists”, a sub-category of registrants from relevant European states who do not go through the full registration procedure, are covered by the removal of restrictions that the draft order would achieve. It will not, therefore, require a separate legal instrument to remove the restriction upon their acting as “responsible pharmacist” at new pharmacies. Up to this point, it had been thought that a separate legislative instrument would be required to achieve this. The confusion appears to have arisen in the understanding of the differences between the restrictions applying to those who either may own, or carry on, a pharmacy business or act as superintendent, on the one hand, and the provisions relating to the responsible pharmacist on the other. A superintendent manages a pharmacy on behalf of a company. A responsible pharmacist is in charge of a pharmacy at a given time, and takes on responsibility for the effective management of pharmacy law and practice within a single branch at a particular time. If the draft order is approved, it will still not be possible for a visiting pharmacist to carry on—that is, to own a new pharmacy—or act as a superintendent in relation to a new pharmacy.
However, a visiting pharmacist, and any other pharmacist registered by virtue of the mutual recognition arrangements, would, upon the coming into force of the order, be entitled to be the responsible pharmacist in charge of a newly registered pharmacy in Britain. It is the similarity between the different concepts of control that appears to have led to the confusion. The intention has always been to remove the restriction on responsible pharmacists for all those registered to practise in Great Britain under the EU mutual recognition arrangements, whether visiting or not. The consultation reflected this and the order as currently drafted would achieve this.
Because of the misunderstanding, the earlier version of the accompanying draft Explanatory Memorandum, and the Explanatory Note on the order itself, suggested that the order did not remove the restriction in relation to visiting pharmacists. In fact, the substantive provisions of the order achieve the intention and a further instrument is not, therefore, required. However, the text in the Explanatory Note that refers to the register was incorrect, and the reference to part 1 of the register will not appear in the final version. I apologise for any confusion caused by this late change. I commend this order to the Committee.
Lord Collins of Highbury
As the noble Earl stated, a lot has changed since the derogation in the directive was put in place. Much has changed in pharmacy arrangements in other EU member states and in the evolution of domestic policy. The reasons, as the Minister stated, were commercial.
In England, for example, there has been a welcome change over the past few years making it easier for people to get to a chemist, given that there are new pharmacies with longer opening hours. Clearly, such market restrictions are not appropriate today, and their removal will assist by increasing the pool of available pharmacists and ensure improved continuity of service delivery. I note that the change has also been welcomed by the key representative bodies of pharmacies.
I of course recognise that the restriction affects a relatively small number of pharmacies—just over 10 per cent, and just over 5 per cent of all pharmacists registered to practise in Great Britain. I also understand and accept the reasons for the change in the Explanatory Memorandum. However, these changes in the legislation raise broader issues relating to the competencies of the pharmacist and the person’s ability to manage a pharmacy. For example, the report on the consultation noted that concerns were expressed by respondents on competency in English. The Department of Health in its response stated that in the UK a check on the language knowledge of a pharmacist from outside the UK who is seeking work within the NHS is applied by the prospective employer, but that there is no check made at the point of registration.
This leads to three specific questions to the Minister. First, are there plans to introduce a standardised competency test to ensure that any pharmacists from the countries mentioned in the order who are in charge of a new pharmacy have all the required skills and competences? Secondly, are there plans to ensure that those in charge of a pharmacy will have a sufficiently high standard of English to avoid all risk of a patient misunderstanding any advice given? Thirdly, how can an employer determine whether the pharmacist in question is qualified in their own country and has no pending fitness-to-practise cases to answer?
Lord Clement-Jones
My Lords, I declare an interest as chairman of the council of the School of Pharmacy of the University of London. I thank the noble Earl, Lord Howe, for a crystal clear explanation. I suppose, perforce, it had to be crystal clear to clear up some confusion arising from the Explanatory Memorandum. This is precisely the kind of uncontroversial deregulation that is important in the context. From both professional and consumer perspectives one could say that it is a perfectly formed small regulation. It affects a limited number of people who could not be responsible pharmacists in certain circumstances, but will now be able to be so where there are no significant safety implications from deregulating in the way that this order does.
I want to raise the issue of reciprocity. The noble Earl mentioned that the reason for deregulation is that circumstances have changed. The noble Lord, Lord Collins, also referred to that. I am sure that in broad terms that is the case, but I should be extremely grateful to hear what the noble Earl believes the level of that deregulation would be. I remember doing a study of several EU countries, looking into what was permissible in pharmacy ownership and the level of regulation. That was about five years ago, when the level of regulation was extremely high—not just pharmacy regulation but the kind of licensing required to run a retail outlet, and so on. We have some extremely well run chains in this country, which would like to expand their offer in the EU more broadly. They have been largely frustrated from doing so by some of the regulation that applies. Therefore, reciprocity in these circumstances is extremely important. I am interested to hear just what the Minister believes to be the level of significant deregulation that has taken place.
Earl Howe
My Lords, I am grateful to both noble Lords for their support for the order. The noble Lord, Lord Collins, asked me three questions. The first was about whether there are any plans to introduce a standardised competency test to make sure that pharmacists from the various countries mentioned have all the required skills to do their job. Under directive 2005/36/EC on the recognition of professional qualifications, which I mentioned, a pharmacist who holds a recognised qualification issued by one member state is entitled to recognition of that qualification in another member state, and would therefore be entitled to registration with a competent authority, such as the General Pharmaceutical Council.
However, employers of pharmacists should ensure that anybody they employ has the skills required to undertake the specific post. The General Pharmaceutical Council’s standards of conduct, ethics and performance, among other things, require the pharmacist to recognise the limits of their professional competence and practise in only those areas in which they are competent. Their continued registration is subject to adherence to the council’s requirement for continuing professional development—CPD—and standards of conduct, ethics and performance.
Secondly, the noble Lord asked whether there are plans to make sure that those in charge of a pharmacy have a high enough standard of English. The UK Government’s response to the European Commission’s consultation on the review of the directive on the recognition of professional qualifications clearly sets out the view that in the healthcare professions the ability to communicate with patients and service users is vital.
Freedom of Information (Designation as Public Authorities) Order 2011
(13 years ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Freedom of Information (Designation as Public Authorities) Order 2011.
Relevant document: 28th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the purpose of this draft order is to bring the Association of Chief Police Officers, or ACPO, the Financial Ombudsman Service, or FOS, and the Universities and Colleges Admissions Service, or UCAS, within the scope of the Freedom of Information Act. The effect of the order is to apply the Freedom of Information Act to those functions of each body which appear to the Secretary of State to be of a public nature. That amounts to all the functions of ACPO and FOS and the applications and admissions functions of UCAS.
This Government are committed to ensuring greater openness and transparency in order to enable the public to hold to account those who deliver the services affecting their day-to-day lives. The coalition agreement set out this intention, stating that the Government would,
“extend the scope of the Freedom of Information Act to provide greater transparency”.
This order is part of our work to meet this commitment.
The Freedom of Information Act gives any person the legal right to request access to recorded information held by a public authority. It applies to more than 100,000 public authorities, including central government, schools, the NHS, local authorities and some publicly owned companies.
This order designates three additional bodies as public authorities for the purposes of the Freedom of Information Act, using the powers contained in Section 5 of the Act. Section 5 enables the Secretary of State to designate a person as a public authority either if they appear to the Secretary of State to exercise functions of a public nature or if they provide, under contract made with a public authority, any service whose provision is a function of that authority. The order covers bodies falling within the first limb: bodies which appear to exercise functions of a public nature.
Where a body is designated as a public authority under this limb, it is also necessary, under Section 7(5) of the Act, for the order to specify each of the body’s functions which appear to the Secretary of State to be of a public nature. Only those functions specified in the order will be subject to the Act. So an order under Section 5 can bring all or just some of a body’s functions within the scope of the Freedom of Information Act. Therefore, to understand how the order extends the Freedom of Information Act, it is important to look not just at which bodies the order designates but at which of their functions the order specifies.
With that background in mind, I turn to the detail of the order before us today. The order designates both ACPO and the Financial Ombudsman Service for all of their functions, and UCAS for its main functions, as public authorities for the purposes of the FOI Act. Before making the order, all three bodies were consulted and their functions analysed to determine which of them appeared to be of a public nature.
I turn first to ACPO, which provides leadership for the police force, aims to improve policing, acts as a voice for the force and provides the strategic police response in times of national need. By way of background, it is worth noting that the individual chief police officers who comprise ACPO are already subject to the Freedom of Information Act.
The draft order lists each of ACPO’s functions. These functions are derived from ACPO’s objects as listed in its memorandum and articles of association. Each function makes a fundamental contribution to the policing of the state, both individually and collectively. On this basis, the Secretary of State has concluded that all of ACPO’s functions appear to be functions of a public nature and this order will bring them all within the scope of the Freedom of Information Act.
The Financial Ombudsman Service administers an ombudsman scheme in the financial services sector under which certain disputes can be resolved quickly and informally by an independent person. The Financial Ombudsman Service’s functions are set out in statute. It provides an alternative, impartial dispute resolution process to the courts. There is a strong public interest and benefit in the provision of impartial, non-profit-making regulation of financial services. As all of the Financial Ombudsman Service’s functions are directed towards the provision of this service, this order will bring them all within the scope of the Freedom of Information Act.
UCAS’s main function is to provide and maintain a central application and admissions services for higher education and certain further education establishments. It also provides other, more commercially based functions, such as the provision of marketing services. The majority of bodies for which UCAS provides and maintains a central applications and admissions service are already subject to freedom of information legislation. There is clearly a strong public interest and benefit in the provision of an efficient and fair means of applying for entry to such bodies. Indeed, if these services were not provided by UCAS, it would fall to those educational bodies that are already subject to the Freedom of Information Act to provide them instead. This provides a clear basis for concluding that the applications and admissions function appears to be public in nature. However, UCAS’s other commercial functions can be seen as distinct from the central applications services that it provides and are not considered to be functions of a public nature. This order therefore includes only UCAS within the scope of the FOI Act for the purposes of providing a central applications and admissions service to bodies already subject to Freedom of Information legislation.
As I have outlined, the Secretary of State concluded that the three bodies subject to the order appear to varying degrees to exercise functions of a public nature. As a result, it is appropriate that these bodies be subject to the same scrutiny as other public authorities, so that they become more open, transparent and accountable. This order will achieve that aim for three bodies, but this is just the start. The Government are currently consulting more than 200 further bodies about their inclusion in future orders, alongside pursing primary legislation to extend the scope of the Freedom of Information Act to more publicly owned companies.
I hope noble Lords will agree with me that this order is an important step towards greater transparency, and I commend it to the Committee.
Lord Dixon-Smith
My Lords, I wonder if the Minister would just answer a simple question. I used to have some relationship with the police service. It is not at all unusual for police services from time to time to get caught up in security matters. It follows from that equally that the subject occasionally occurs in ACPO matters. The Minister said that all activities would be subject to the Freedom of Information Act. How will we resolve that particular dilemma if ACPO finds itself discussing security concerns?
Lord McAvoy
My Lords, the Minister mentioned the discussion that took place within the coalition Government that brought these particular organisations forward. He also mentioned that there was an intention further to widen the scope of the Freedom of Information Act. Under one of those headings, could he tell us why there is an official at Her Majesty’s Revenue and Customs who claims that he cannot give information as to why he signed off a particular deal, which resulted in a big financial company being excused millions of pounds in disputed tax? He has pleaded confidentiality and I understand that he is appearing before the Public Accounts Committee in the other place to answer for that. The Minister knows that I do not like springing things on him, but will he answer two questions? First, why was it not brought forward or was it considered? Secondly, will he, in future, look into the scope of the so-called confidentiality clauses quoted by this officer to justify not giving the full details of why he allowed the appeal from that financial company?
Lord Maclennan of Rogart
The order before us is welcome, in general terms. As the extension of the operation of the Freedom of Information Act to the three bodies concerned was first raised as long ago as 2007, there has been plenty of time for grave, or even limited, concerns to be raised about the matter. There are, consequently, only some quite small matters that spring to my mind as being worthy of inquiry. These arise not so much from the propositions themselves as from the impact assessment, which was published in June of this year, and the very helpful Explanatory Memorandum.
This memorandum describes ACPO as being a professional body, not a staff association. I find that concept a little hard to come to terms with because there seem to be occasions when ACPO does, to some extent, consider matters that are peculiar to the police and may not have a direct public impact. I am thinking, for example, of whether it would be desirable for their reactions to a proposed restructuring of the police to be identified as the views of individuals participating in a debate on the subject. It is clear that the views of ACPO as a whole on such a restructuring should be engaged, but it cannot be entirely desirable for the way that debate took place to be made public. I know that individual members of ACPO are already subject to inquiry under the Freedom of Information Act, so perhaps I am splitting hairs. However, there must be matters that it is appropriate for professional associations not to disclose because they apply to them and not necessarily to the public.
The more important issue arises from the indication that the Government are continuing the process of scrutiny of the consequences of the Freedom of Information Act, although this may be just a failure of understanding on my part. The Explanatory Memorandum that we have been given indicates that that is an ongoing process, but that the results might be known by the end of this month. That is referred to in paragraph 12, “Monitoring & review”. It states that any changes to be made to the FOI Act as a whole will be contained in a memorandum to be submitted to the Justice Committee later this calendar year. How extensive and deep will the inquiry be? Are all the departments and all the many bodies covered being asked to make a submission? That must create a very considerable body of work.
That should be viewed in conjunction with what was stated in the impact assessment of the policy review; namely, that there will be no arrangements in place that will allow a systematic collection of monitoring information for future policy review. To invite all the bodies covered by FOI to make submissions once as a kind of big research exercise is perfectly sensible and reasonable, and was envisaged when the Act was brought forward. However, if we are to maintain proper parliamentary oversight of the effectiveness of this scrutiny, this openness and the purposes of the Act, it would make sense if problems that arose in the administration of the Act were noted and tabulated so that it was relatively easy for the bodies, where there is a conflict, to produce that information without going into the difficult process of historical digging, which would take far longer and require more public funding. I rather question the wisdom of not having a systematic collection of monitoring information for future policy reviews if that is the case.
Apart from that relatively minor matter, I endorse the intentions of the Government and am glad that these provisions have been brought forward.
Lord Bach
My Lords, I thank the Minister for introducing the order so clearly and other noble Lords who have asked questions of some importance, particularly the final question, which the noble Lord, Lord Maclennan, majored on, which was around the Government’s plans for reviewing the Freedom of Information Act.
I know that the Minister is giving what they nowadays describe as a keynote address this Thursday at the Westminster Legal Policy Forum on the very topical subject of:
“The future of Freedom of Information—challenges for expansion”.
I, alas, cannot be present because of duties in the House. If this sounds like an advertisement to go and hear the noble Lord, that is exactly what it is. However, I hope that he may be able to say something both this afternoon, in response to his noble friend Lord Maclennan, and on Thursday, because I know that he has particular duties in ministerial terms as far as this Act is concerned. I hope that he can perhaps unveil slightly today what he may say to his other audience on Thursday.
We support the order. The Freedom of Information Act was one of the substantial achievements of the previous Government. It will be long-standing and of substantial value to our freedoms. It does not always seem that way if you are sitting in a ministerial chair or even in a senior civil servant’s chair. It can be awkward, difficult and seem sometimes almost impossible, but that is precisely why it is in existence. So we support both the Act and this minor order—minor not for the three bodies involved but in the great scheme of things. It was in March 2010, as paragraph 8.4 of the Explanatory Memorandum tells us, that the decision to bring these bodies within the Act under Section 5 was made and communicated to each body. We are delighted to see the order before the Committee today.
My only question to the Minister is one that I mentioned to him briefly earlier. We read in paragraph 8.4 that two of the bodies “welcomed publicly” the fact that an order such as this one was to be made, bringing them within the scope of the Act. It does not say anything about the response of the third body, UCAS. Can the Minister help the Committee with how UCAS responded?
As I said at the start of my few remarks, we support what the Government are doing on this occasion.
Lord Martin of Springburn
My Lords, first, I apologise for being slightly late. I was listening to the debate on the Floor of the House and noticed that this subject had come up. I thought that I would come up and listen to the Minister.
I can well understand that we are talking about the chief police officers of England, Wales and Northern Ireland. Of course, we have a devolved Parliament for Scotland, and there are several police forces in Scotland. Will the Minister consult the Scottish Parliament to see that freedom of information will be available in this respect for police authorities north of the border?
The Minister has said that he, on behalf of his party, welcomes freedom of information. It did not stop those who were in an executive position complaining about freedom of information after it was pushed through Parliament. Many officials and Cabinet Ministers sleepwalked through that particular incident. I make no complaint about the legislation; I simply ask the Minister a question. Many journalists use freedom of information so that they can get what is best described as an angle for their particular story. When they ask the question and there follows a period of, let us say, 27 days—although I may be contradicted on that—I have known it to be the case with matters of the House that they have complained bitterly that the freedom of information was given to them and to the general public. They have complained bitterly that it spoiled their story that everybody else should get the information. Freedom of information is about everybody getting that information. They are on record as complaining; they are using it as a device to get a scoop, or whatever they call it.
I feel strongly that once the information is issued to the applicant for that freedom of information, it should be put in the public domain immediately afterwards. In other words, if the information is given to the applicant at 2 pm on a given day, by one minute past two everyone should be able to get that information. I know that some people say that the identity of an applicant should not matter and that you should not know who they are. However, it is a bit rich if an application is made by someone sitting in garret in Toronto, asking for information, which takes a considerable amount of public funding. We should at least know whether a taxpayer of this country is making that application. Can the Minister mention that? It is not fair that someone who has nothing else to do with their time in another country can make an application and no one has to say where they come from. That is very important.
Lord McNally
My Lords, I am very grateful for all the contributions, which have been extremely helpful in putting this order in perspective.
Let me deal first with the point raised by the noble Lord, Lord Dixon-Smith. If it was thought that a matter discussed by ACPO was should properly be protected for reasons of national security, the Act contains the capacity to claim exemptions for that information. That can, of course, be challenged through the Information Commissioner, The noble Lord is right to say that ACPO could sometimes discuss security matters but the Act makes provisions for the protection of national security in those circumstances.
The noble Lord, Lord McAvoy, raised a specific case in relation to Her Majesty’s Revenue and Customs. I cannot comment on individual cases. HMRC can protect commercial confidentiality in its dealings. I will be as interested as the noble Lord is to discover what the Public Accounts Committee finds out but it is a matter for that committee, rather than for us.
My noble friend Lord Maclennan, pointed out that the matter of those three bodies was first raised in 2007 and 2009. I am surprised not to see the noble Lord, Lord Wills, here, who turns up at these debates like Banquo’s ghost to point out that he was about to do X or Y on freedom of information, or that the noble Lord, Lord Bach, was. I acknowledge that this is part of a process started under the previous Administration. Indeed, I consider the Freedom of Information Act to be one of their great successes. The noble Lord, Lord Bach, is quite right: the fact that Ministers and public officials are sometimes discomfited by the Act has always been proof positive that it was a good piece of legislation.
My noble friend Lord Maclennan, asked how ACPO can have free and open discussions before ACPO policy is decided. We understand that bodies need a space in which to work out their policy but, as I recall, that was the great argument about Cabinet discussions as well. There is always a tension between having the right to know what has gone on in an organisation and protecting free discussion before a collective decision is made. ACPO welcomed its inclusion, and I am quite sure that it will manage to work out how to operate under the Act.
I understand the concern of my noble friend Lord Maclennan that we seem to be engaging in a one-off exercise, but that is not true; we will continue to monitor the working of the Act. I am very pleased that we have moved more quickly than we needed to post-legislative scrutiny; that is entirely healthy. The document to which the noble Lord referred is being prepared by my department as part of the process of post-legislative scrutiny. It will be an assessment of the working of the Act, which will provide a basic working document to the Justice Committee to allow it to start its work of post-legislative scrutiny.
That process will go in parallel with the exercise being carried out by my right honourable friend Francis Maude on the right to data, in which we will also try to push the boundaries of the citizen’s right to know about information. I understand where my noble friend is coming from in asking where all this fits. We are perhaps not moving in straight order on this, but we are getting the job done. By the end of this process many more organisations will be covered by freedom of information. We will have a lot more information proactively coming from government through the right to data process. As a result, we will have much more open government, with all the benefits that come from it.
I turn to points raised by the noble Lord, Lord Martin, a number of which I thoroughly agree with. There have been journalists who have turned freedom of information into a kind of cottage industry. I again hope that the transparency agenda will make this less necessary, and that people will get the information that they want. I take his point about immediate publication. In pushing forward the agenda we press organisations to publish immediately or as soon as possible. In certain circumstances there may be a reason to consult and delay, but in the main I agree with what the noble Lord, Lord Martin, said. This is not information for an individual journalist; this is public information, and should be made public as quickly as possible.
I was interested in his points about the Republic of Ireland. I was on the pre-legislative committee that looked at freedom of information. The noble Lord, Lord Bach, is nodding; he will recall that one of the most enthusiastic pieces of evidence we received about freedom of information was from the Irish freedom of information director.
Lord McNally
Was it the Minister who came before us? The interesting thing about that was that the Irish have had post-legislative scrutiny of their own legislation and have brought in a number of restrictions, such as the one that the noble Lord, Lord Martin, referred to. They have brought in charges for some aspects of freedom of information.
The critics of freedom of information say that it puts unfair burdens and great costs on departments, as referred to before by the noble Lord, Lord Martin. I hope that the Justice Committee will take a good look at how the Act is working, take evidence from its critics and supporters, and then take us forward as we have indicated.
On the question that the noble Lord, Lord Martin, raised about ACPO Scotland, freedom of information is a devolved matter, and the inclusion of ACPO Scotland is a matter for the Scottish Government. I hope I have covered the issues raised—
Lord McNally
I do apologise. The noble Lord, Lord Bach, raised that and I found the answer, which is twofold. Of the three, it was UCAS which raised some concerns when discussions began. Its concerns were the costs it would face in complying with the FOI Act, how it would protect sensitive information, and other costs outlined in the impact assessment. During consultation it was satisfied that the FOI Act exemptions could protect this information, and since those consultations it has been happy to see itself included within the ambit of the Act. I apologise that I got carried away with the questions asked by the noble Lord, Lord Martin. Does he have another?
Lord Martin of Springburn
If the Minister is getting carried away, I will perhaps push my luck. I noted that the Minister stated in his reply that he would encourage these organisations to put the information out to the applicant and the general public almost simultaneously. Encourage is not quite the word I was looking for. There should be a commitment to do this. For example, if an applicant asked a police authority for a piece of information then it could, by all means, give that information out at 2 pm on a specific day, but by 2.01 pm the rest of the world should know about it.
Lord McNally
So far as I understand at the moment, what we can do is urge best practice by the wide range of bodies that deal with a very wide range of requests. I recently went to Northampton to congratulate the local authority on setting standards for devolving freedom of information which we thought were best practice. It is very difficult to have a single diktat for such a wide range of bodies, but the Justice Committee, when it does its post-legislative scrutiny, can perhaps look at this, and consider whether the Act should be given more teeth to have a one-size-fits-all approach.
There would be counterarguments that small bodies have more difficulty in managing freedom of information. However, the point that the noble Lord, Lord Martin, is pressing is very valid. Except in matters of national security, or if there are specific matters that argue against immediate publication, freedom of information is not in the ownership of the requester but in the ownership of the public at large. Freedom of information is the right to know of the public at large. I also take the point—if it is not already doing so I urge the Justice Committee to look at this—that it seems a bit rum for someone to be in favour of freedom of information but want anonymity when asking for it. I would be very interested to see what is considered best practice here. I would have thought there was considerable argument to say that if somebody asks for freedom of information they should not be worried that somebody else knows they have asked for it. That is another matter which will be given thorough consideration. In the mean time, I commend this order.
European Union (Definition of Treaties) (Second Agreement amending the Cotonou Agreement) Order 2011
(13 years ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Northover
That the Grand Committee do report to the House that it has considered the European Union (Definition of Treaties) (Second Agreement amending the Cotonou Agreement) Order 2011.
Relevant document: 28th Report from the Joint Committee on Statutory Instruments.
Baroness Northover
My Lords, despite significant progress in recent years, considerable challenges remain in the efforts to eradicate global poverty. The European Union—which represents the world’s largest provider of official development assistance, the largest single market and the main trading partner for most developing countries—can potentially make a huge contribution.
The Cotonou agreement is the guiding framework for the EU’s engagement with some 79 African, Caribbean and Pacific—ACP—states. Signed in 2000, it has evolved to reflect the changing relationships between the EU and ACP countries, while retaining its overall objective of poverty eradication, sustainable development and the integration of ACP states into the world economy. Cotonou provides the framework for programming the European Development Fund and channelling money to some of the poorest countries in the world—importantly including countries where UK bilateral programmes are not present and where DfID does not have a presence on the ground.
The Government’s review of multilateral aid judged the EDF to be among the most effective, flexible and poverty-focused of all our multilateral aid instruments. It is closely aligned to UK priorities and provides significant assistance to Commonwealth countries and several of the UK’s overseas territories.
Negotiations on the second revision to the Cotonou agreement were completed in June 2010 in Burkina Faso. All parties have signed the agreement and the changes are being implemented under transitional arrangements until ratification procedures are complete. The revisions aim to improve the implementation of the agreement and to ensure that it reflects changes in the international environment. The revisions fall into three categories—political, trade and development—and I shall highlight several of the important changes.
On political relations, the revised text provides for greater coherence between regional initiatives, such as the Africa-EU strategy and Cotonou. The role of ACP Parliaments and non-state actors has gained enhanced recognition and the African Union is confirmed as a key interlocutor in peace and stability matters. The importance of tackling changing security threats, ranging from piracy to exogenous shocks, is stressed. The provisions concerning political dialogue have been updated with new language on non-discrimination and the inclusion of regional and continental integration, and global and sectoral policies impacting development objectives among the issues that can be discussed. Improved exchange of information between the ACP secretariat and the EU in Article 96 processes, concerned with remedying breaches of Cotonou’s essential elements, are now envisaged.
There are important new references to key global challenges such as climate change, HIV/AIDS, and recognition of the 2008 food crisis through stronger provisions on food security and agriculture. The key role played by fisheries and aquaculture in ACP countries is included, reflecting a desire to enhance coherence between fisheries policies and development.
Cotonou’s trade provisions have been updated to reflect the introduction of economic partnership agreements supporting deeper trade relations between the ACP and the EU, and bringing these into line with the rules of the World Trade Organisation. Language on regional co-operation and integration has been strengthened in recognition of the increased regional differentiation among ACP states.
Changes aimed at improving the programming and implementation of EDF assistance have been included with, for example, the creation of a role for ACP national Parliaments and the introduction of increased flexibility in responding to unforeseen needs and crises.
Her Majesty’s Government fully support all these changes. We firmly believe that they will help to enhance and strengthen the long-standing partnership between the EU and ACP states. I commend the order to the Committee.
Lord Chidgey
My Lords, there is no doubt that the Cotonou agreement is a valuable instrument, aimed at preserving the relevance and character of the partnership between the ACP and EU states. As the Minister has mentioned, the order adapts the agreement to reflect the major changes in international and ACP-EU relationships by further clarifying the political dimension and creating space for a more productive political dialogue and clearer, more effective action. Here, I refer particularly to Article 8.7. The revision seeks to strengthen economic co-operation, regional integration and trade. Particularly important is the move towards extending humanitarian and emergency assistance, and providing new thinking on aid programming and management. This assistance and support is vitally important to many ACP states.
Equally important are the provisions that point to the interdependence between development, poverty reduction and peace and security. We should acknowledge that, increasingly, security threats—both man-made and from natural disasters—must be addressed in a co-ordinated manner, engaging not only the European Union but other regional organisations, including the African Union. With the AU acknowledged, as it is in the order, as a key interlocutor in matters related to peace and security, we can expect increased consistency and convergence of the Cotonou agreement with the strategic Africa-EU partnership. We should look forward to that.
The need for regional co-operation and integration has been recognised in amendments set out in the revised agreement to Articles 11, 23, 23a, 28, 29 and 30. Regional co-operation and integration are key to combating the threats of climate change and food security, and to promoting advancement and sustainability in agriculture and fisheries. I am glad to see that the Government welcome that.
The ACP states face major challenges if they are to meet the millennium development goals, and deal with food security, HIV/AIDS and sustainable agriculture and fisheries. The importance of each of these areas for effective development, growth and poverty reduction is underlined in these amendments, together with the joint approaches over which to co-operate.
The proposed revisions also recognise the impact of the fragility of and lack of security in some states, and the negative effect of that on development. A comprehensive approach, which combines diplomacy, security and development co-operation, encompassing political, developmental, human rights and security dimensions, is enshrined in this second revision of the Cotonou agreement, which can only be welcomed. Therefore, we welcome the revision and the attention that it gives to political dialogue in Article 8 and to climate change, human rights, gender, migration, discrimination and the resolution of violent conflicts. We particularly welcome the emphasis on good governance.
However, the order raises several comments and questions that I should like to put to the Minister. Article 8 refers to dialogue on issues such as “discrimination of any kind”. I understand that this formula was intended to embrace sexual orientation. How will this be pursued? Article 8 rightly emphasises the need for civil society organisations and national Parliaments to be associated with the dialogue. What efforts are being made to bolster the capacity of civil society organisations so that they can make a significant contribution?
The new Article 32a recognises climate change as a serious global and environmental challenge. How will co-operation in that area be taken forward? Are any further initiatives planned?
Article 33 recognises the importance of domestic revenue management and international tax co-operation. Maximising domestic revenue plays an important role in ensuring financial stability and reducing dependence on aid. What steps is DfID taking to support these efforts?
Article 34 refers to the need for ACP countries to participate actively in international trade negotiations. How can we best encourage the ACP countries to push for a successful conclusion to the Doha round?
Finally, Article 36 includes reference to the economic partnership agreements being negotiated between the EU and ACP countries. How will the Government assess their progress and the possible benefits?
Lord Teverson
My Lords, I should like to raise a couple of issues that have arisen from this. First, fishing has been mentioned a couple of times. One of the worst things to be inflicted on the developing world, particularly littoral states, has been the taking out of their fish stocks through EU agreements. Although this has improved over the years, given the complete lack of coastal protection for these nations and the voracious appetite of certain European fleets for those stocks, I wonder whether the Government will make sure through this agreement that the attempt to improve the situation continues.
Secondly, on aid, I am sure that the Minister will be well aware that there is a major aid effectiveness conference taking place in Busan, in Korea, next month. Are the Government encouraging parliamentarians to be present at the conference? There is a lot to be learnt not only by governments but by parliamentarians. Does she have any expectation for outcomes from that conference?
Lastly, it always seemed to me that the Cotonou agreement and its predecessors were made on a very imperialist-based system in terms of how the EU looks at the rest of the world. There is a division between those nation states who were the French and British empires and those who are not. I would like to think that at some point we can end that discrimination and look at the rest of the world in terms of its needs rather than in its imperial past. Do the Government share that view?
Lord Triesman
My Lords, I thank the Minister for introducing the order. I should say at the outset that we support it. The changes and the coherence to be added are welcome; trade arrangements will improve; all of that is positive territory.
The Cotonou agreement as a whole has proved, as it was always intended to, an essential framework, fostering development, co-operation, economic and trade integration and security of political institutions in the ACP countries. It makes complete sense for the EU to have embarked on this course, not only because of our long-term economic and political interests in the ACP countries but also because it reflects the colonial past, the legacy of that past and the obligations that we plainly face in dealing with it.
It is encouraging that when the predecessors of the EU in the European Coal and Steel Community forged those institutions in 1951, many of them were still colonial powers in the very countries in which these arrangements are now in place as a result of the Cotonou agreement. That is positive in many ways.
The continued mutual obligations plainly mean that we continue to have a shared EU-ACP interest in co-operation. In many respects, this has matured from simple co-operation into interdependency. Those interdependencies are created for pragmatic, economic and moral considerations. It is encouraging to be able to talk about the work of the EU in such a positive way; we do not always seem to do that in our House; so I am a little encouraged to have had the opportunity to look at that without people snarling about it.
The renewal of Cotonou comes at a critical juncture. Last year, the World Bank estimated that 64 million people had been pushed into extreme poverty by the financial crisis. Of course, most of those were in countries in the developing world. Noble Lords have already mentioned the impact of climate change and famine, which have had an amplified effect because of the financial challenges in the international community, especially in those countries where we are still slipping backwards on the millennium development goals. Those tasks demand a multifaceted response, and that is what the Cotonou agreement and the changes and revisions now help us to produce.
There is a good deal of independent research in Australian universities and universities across Europe that demonstrates that it is the interpenetration of democracy and institution-building with economic progress which gives economic progress the greatest prospect of success. Much of that research also shows that in those countries where you do not have those institutional and democratic opportunities, economic development is tried to the greatest extent.
It is not a perfect agreement. The point has already been made that, even with the new language on non-discriminatory practices, one area has still not been resolved in any way that I think we would regard as satisfactory in Europe. The democratic, economic and civil rights that have been extended in so many ways seem still to exclude those who are in same-sex relationships. That is a great pity. I know that people in the EU have attempted to see these issues raised in the European Parliament and elsewhere but have not perhaps made the progress with the countries on the other side of the agreement that they would have wished for. I just hope that we will not say, “Well, we are where we are”, but take every opportunity that we have in all the revisions that still lie ahead over the 20 years that the agreement will be in place to see whether greater progress can be made.
The Cotonou agreement has carried forward the EU’s 1992 human rights and democratisation policy. We supported it at that time; we have supported it on all occasions since, from its inauguration through its revisions; and we support it today.
Baroness Northover
My Lords, I thank noble Lords for the all points that have been raised and for the general welcome for this move forward. The noble Lord, Lord Teverson, is quite right that the agreement came about as a result of countries moving into the EU wanting to make sure that what had been part of their former empire was not disadvantaged. So it is a historic agreement looking after those countries and does not necessarily make best sense as we move forward. Looking at the current revisions to the Cotonou agreement, one is struck by the fact that it is moving towards looking at the regional dimension that may be more relevant for some ACP countries in the future. In the mean time, it is extremely important that those countries have access to the EU markets, which has benefited them enormously.
A number of points have been raised in the debate, and I welcome the Committee’s continued interest in the EU’s relationship with ACP countries and the Cotonou agreement. Europe is playing a major role in supporting developing countries, particularly in Africa, to meet the many challenges that they face. The second amendment to the Cotonou agreement is an important development in this regard.
Europe is not only a significant provider of development assistance but also an important global actor. The impact on poor countries of its policies in areas such as trade and the environment can be significant. We will continue to work with the Commission and other EU member states to call for further improvements in the effectiveness, results focus and transparency of EU aid, including the EDF.
The noble Lord, Lord Chidgey, is absolutely right that regional co-operation will be extremely important. It is excellent to see the emphasis being put on the African Union and its further development. He noted the fragility of some of these states; others are less fragile. Therefore, we agree that the emphasis on good governance is extremely important.
The noble Lords, Lord Chidgey and Lord Triesman, asked about discrimination. As we know, discrimination over sexual preferences remains a serious problem in many African states—there have been various pointers towards that recently. In effect, noble Lords are asking why we do not insist on the inclusion of a clause on non-discrimination. Article 8 clearly gives the EU a mandate to raise issues of discrimination of any kind in ACP countries, and the ability to have a dialogue to make progress on all issues of discrimination. It is a very important factor. The Cotonou revision gives the EU that mandate, but we realise that that is not, perhaps, as far as some might wish to go. However, this is a collective agreement, and at least it has that mandate in it. I expect we will find that that is taken further forward in the future.
My noble friend Lord Chidgey mentioned climate change, and its significance. We welcome the stronger statement on the global challenge of climate change in the agreement. The references give the EDF a clearer mandate to spend on these priorities. It is clearly recognised now that the mitigation of climate change—ensuring that we are not making things even worse, because it hits the poorest hardest and first—is extremely important to factor in when we look at development policy. The agreement acknowledges that that has to be integrated with development strategies.
My noble friend Lord Chidgey also emphasised the importance of civil society organisations, as well as governance. The EU certainly attaches great importance to the role of civil society organisations, and provides significant support to help them engage effectively on issues such as governance, democracy and human rights, across the ACP.
Looking at taxation, the importance of domestic revenue management is rightly something people are very concerned about. Many DfID country offices work with partner governments to strengthen tax policy and tax administration. That is certainly seen as important. For example, TradeMark East Africa, funded by DfID, has helped the newly established Burundi Revenue Authority to increase the country’s tax income by 30 per cent—which I am sure would be welcome in this country—from the first quarter of 2010 to the same period in 2011.
Then there is the question about Busan and whether parliamentarians will be present at the conference on aid effectiveness. I know that my noble friend Lord Chidgey is attending.
Lord Teverson
My noble friend Lord Chidgey is actually going to Busan as a parliamentarian, and I was delighted to hear that.
Baroness Northover
I know that he is going, and am extremely pleased. There will be other parliamentarians present, and I understand that the Secretary of State for International Development will be there.
Lord Chidgey
Could the Minister clarify an issue regarding Busan? I am delighted that noble Lords are all pleased that I am going to the farthest part of the world.
One of the problems we have faced in attempts to improve aid effectiveness by better scrutiny and better involvement and engagement of parliamentarians in the process of holding their Executives to account, is that while the parliamentarians from the recipient countries are getting quite a lot of help from the OECD, to get as many of them as possible to attend Busan, there is very little support for parliamentarians from the donor countries. I suggest to the Minister—and she may agree—that scrutiny and aid effectiveness is a two-way thing. Not just the recipients but also the donor countries should have a say in how well taxpayers’ money is being used to provide aid to developing countries.
Baroness Northover
My noble friend Lord Chidgey knows that very well from his experience serving on various boards of AWEPA, which tries to link European parliamentarians with those in Africa. From my own experience it does a very good job. I am glad that my noble friend is going, though not because he will therefore be unable to put questions to me.
I hope that I have covered most issues. I believe my noble friend Lord Teverson wanted some answers on fisheries. Article 23 and new Article 23a recognise the importance of fisheries and agriculture, as I mentioned in my introduction to ACP countries. Depletion of stock is clearly a key issue, and we are hoping that some of these issues will be addressed, presumably at the Busan meeting on aid effectiveness. No, I am told that that is not right. I am afraid that I cannot quite make out what it is that came from the sky, but I should like to write, if necessary, to the noble Lord to clarify where Cotonou stands on this.
I hope that I have covered most issues that noble Lords have raised—and if I have not I will write to them. I conclude by assuring noble Lords that the Government believe that Europe has a significant role to play in the international community’s efforts to eradicate global poverty. The updated Cotonou agreement continues to provide a valuable framework for the EU’s relations with ACP states.
Public Services Reform (Scotland) Act 2010 (Consequential Modifications of Enactments) Order 2011
(13 years ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Wallace of Tankerness
That the Grand Committee do report to the House that it has considered the Public Services Reform (Scotland) Act 2010 (Consequential Modifications of Enactments) Order 2011.
Relevant document: 28th Report from the Joint Committee on Statutory Instruments.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the draft order was laid before the House on 14 July 2011. Perhaps I may provide a brief explanation of what the order seeks to achieve.
The order is made under Section 104 of the Scotland Act 1998—with which Members of the Grand Committee have become familiar—and allows for necessary or expedient changes to UK legislation in consequence of an Act of the Scottish Parliament. This order is made in consequence of the Public Services Reform (Scotland) Act 2010—which I shall refer to as the 2010 Act—and secondary legislation made under it.
The Merits Committee of your Lordships’ House reviewed this order and has not noted it as being of special interest. The 2010 Act made provision for the reduction and simplification of public bodies in Scotland. The overarching purpose of the Act was to simplify and streamline the public bodies landscape in Scotland with the aim of delivering improved public services and better outcomes for the people of Scotland.
The 2010 Act dissolved the Deer Commission for Scotland and transferred its functions to Scottish Natural Heritage. It also dissolved the Scottish Arts Council, transferring its functions, and those of Scottish Screen, to a new public body called Creative Scotland. The Act dissolved the Scottish Commission for the Regulation of Care. Its functions in care service scrutiny, the functions of the Social Work Inspection Agency, and the child protection functions of Her Majesty’s Inspectorate of Education in Scotland were transferred to a new public body called Social Care and Social Work Improvement Scotland.
The functions of the Scottish Commission for the Regulation of Care concerning independent health care scrutiny and NHS scrutiny functions that were previously exercised by the special health board, Quality Improvement Scotland, were transferred to a new public body called Healthcare Improvement Scotland.
The 2010 Act also made provision to dissolve the water customer consultation panels and abolish the position of convener of those panels. This order will ensure that United Kingdom legislation is updated to reflect the changes made in the 2010 Act. It will ensure that United Kingdom legislation can continue to operate when it interacts with the new devolved legislation and makes provision, as necessary, in relative enactments for the newly established bodies and procedures. For example, the order ensures that the Health and Social Care Act 2008 is updated to ensure that obligations on care home providers to comply with certain provisions of the Human Rights Act 1998 continue to apply where the care home is in Scotland. The order also ensures that the Representation of the People (Scotland) Regulations 2001 are updated so that a care home manager who is providing care to a resident in respect of that resident’s disability can continue to attest to and sign that resident’s application to vote by proxy.
The modifications made to existing legislation by the order are of a technical nature. However, by the very fact that they are United Kingdom pieces of legislation, it is not within the competence of the Scottish Parliament to amend them. The modifications are required to ensure that existing legislation continues to operate effectively, by recognising the modifications that have been made to various pieces of legislation by the 2010 Act and subordinate legislation made under it. The order demonstrates this Government’s commitment to working with the Scottish Government to make the devolution settlement work. I hope the Grand Committee will agree that this order is a sensible use of the powers in the Scotland Act and that the practical result is to be welcomed. I commend the order to the Committee.
Lord Maclennan of Rogart
My Lords, this order appears to be uncontroversial and is before this Committee only because it is required to have an affirmative resolution. The only question I wish to ask is whether in the case of orders of this kind, which are not designed to amend the legislation, save—as my noble friend, the Minister, has said—to reflect, in a technical sense, the consequences of legislation by the Scottish Parliament, it might make sense, for reasons of expedition, to amend the Scotland Act to enable the measures to be incorporated in negative resolutions rather than affirmative resolutions. The Minister clearly explained that there is no issue of policy at stake here other than the maintenance of the status quo. As the Joint Committee on Statutory Instruments has not raised any matter about drafting or anything else, there is every reason to believe that this is an acceptable instrument. We now frequently see consequential legislation brought forward for extensive debates and this does not seem to be strictly necessary, bearing in mind the pressures on the United Kingdom Parliament.
Lord McAvoy
My Lords, I thank the noble and learned Lord, Lord Wallace, for his clear exposition of what is in the order. This will save some time. I will start by disagreeing totally with the noble Lord, Lord Maclennan of Rogart, about helping Governments to be expeditious in getting legislation through. There is always somebody paranoid, suspicious and hostile to government—probably me—and I like to see things coming in front of me. I also thank the office staff of the noble and learned Lord, Lord Wallace, for offering assistance and guidance, as usual. This is extremely helpful for those such as me who are still adjusting to this place. The noble Lord, Lord Maclennan of Rogart, also says that the measure is uncontroversial. I take the view that very little is uncontroversial in Scottish politics at the moment that cannot be made controversial by the behaviour of the First Minister, Alex Salmond.
On the extension of the Scottish Executive over those bodies included in the order, I wonder whether they will be exhorted by the leader of the Civil Service in Scotland to go to watch “Braveheart” so that the Scottish public can see how Scotland lived under English occupation 700 or 800 years ago. That is the sort of nonsense we are getting in Scotland at the moment, so I do not accept that there is anything uncontroversial in Scotland. Everything will be seized on as we lead up at some point to a Scottish independence referendum.
Lord Maclennan of Rogart
For the avoidance of doubt, I would not say that there was nothing uncontroversial in the Scottish legislation of 2010. What I see as uncontroversial is the response of the United Kingdom Government, which is that this is a devolved matter and not a matter over which we have control. Nothing that has been done has, as I see it, required the United Kingdom Government to do more than preserve those things that have not been affected by the Scottish legislation.
Lord McAvoy
My response to that would be: not yet, because you never know what will happen. I am not called Thomas for nothing. What raises my suspicion is reading the words Representation of the People Act—although I know that this order is about care homes and such things.
The serious question I have for the noble and learned Lord, Lord Wallace of Tankerness, in agreeing to these bodies understandably and logically coming under the remit of the Scottish Executive, is: are any of them in any way involved with elections or referendums? I know that this might seem wild, but you never know. In the order is a whole host of regulations, so I want to clarify just to make sure. Are any of them involved in the staffing of stations, administration or anything to do with the practical running of referendums? I should like to know to be sure that that is not the case.
In addition, the memorandum states:
“Part 1 makes provision for the purpose of simplifying public bodies”,
but ends up by stating,
“and provision in relation to the regulation of officers of court”.
Again, would any of those officers of the court be involved in ruling on disputes about referendums or voting in any way?
I have no intention of repeating the explanation of the order by the noble and learned Lord, Lord Wallace of Tankerness, which was absolutely fine. I am very grateful to the noble Lord, Lord Maclennan of Rogart, for getting involved. Those are my only serious questions. I know that folk may dismiss them as scaremongering or fantasising, but in Scotland at the moment we need to keep a very firm check on everything that comes through.
The Duke of Montrose
My Lords, can my noble friend clarify a couple of points? I listened to him but did not catch the fact that a couple of Welsh measures have wandered into the Bill. It is very interesting to see them in there. Can he reassure us that the Welsh paragraphs are an exact translation of the previous ones, because my Welsh is not up to understanding them? How many times has this Parliament passed measures in Welsh?
Lord Wallace of Tankerness
My Lords, I thank my noble friends Lord Maclennan of Rogart and the Duke of Montrose, and the noble Lord, Lord McAvoy, for their contributions to this debate. Although technical, the points they raised are important. Perhaps I may say to my noble friend Lord Maclennan that a similar thought crossed my mind as to the necessity for this. The truth of the matter is that it is specified by the Scotland Act that some orders under it can be approved by way of negative procedure, but when dealing with amendments to primary legislation, Parliament in its wisdom in 1998 thought that that should be done by affirmative order. Indeed, it would be invidious to decide which ones were or were not controversial. On the previous order we considered there was agreement on all sides that it nevertheless related to changing the powers of officers of the UK Border Agency and HMRC with regard to periods of detention, which is a substantive matter. It might be invidious to try to make judgments as to which orders are controversial and which are not when they all come under the same Section 104.
On the points made by the noble Lord, Lord McAvoy, it is perfectly proper that he should be aware and alert—as he said, he was not called Thomas for nothing. I can assure him that as far as I am aware, and as far as we could trace, no body involved in this order would be involved in elections or referendums. One could perhaps use one’s imagination as to how Creative Scotland could be creative. However, strictly speaking, no body would have responsibility for the running of a referendum or election—subject to the example I gave in respect of care home managers. However, the important point is that the order updates the situation that already existed. The noble Lord’s other point was about court officers. I am advised that under the order, none of them would have a role to play in election work.
My noble friend the Duke of Montrose raised a question about Welsh measures. I am assured that it is an exact translation—although I have to say that I have to take it on assurance because I do not speak Welsh. It is probably a Measure of the Welsh National Assembly that is referred to here. Regarding some of the reciprocal arrangements between Scotland, Wales, England and Northern Ireland, what has been done in Scotland has implications in Wales. If the Welsh legislation is in Welsh, the amendment to it has to be in Welsh also. That is the explanation. As I said, I take that on trust because, regrettably, although I speak in this House for the Wales Office, I do not have Welsh.
I hope that with those explanations the order will commend itself to the Committee.
Incidental Flooding and Coastal Erosion (England) Order 2011
(13 years ago)
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Lord Taylor of Holbeach
That the Grand Committee do report to the House that it has considered the Incidental Flooding and Coastal Erosion (England) Order 2011.
Relevant document: 28th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach)
My Lords, Sections 38 and 39 of the Flood and Water Management Act 2010 allow the Environment Agency, local authorities and internal drainage boards to carry out works to manage flooding; coastal erosion or water levels for the benefit of nature conservation, including the conservation of the landscape); and the preservation of cultural heritage or peoples’ enjoyment of the environment or cultural heritage.
These powers were required because the definition of flood and coastal erosion risk management in Part 1 of the Act empowers authorities only to undertake measures to reduce the harmful effects of flooding or erosion; whereas some of the work that is required for environmental and recreational purposes involves the management of flooding, water levels and erosion to gain the beneficial effects of those processes.
Sections 38(8) and 39(12), commenced on 18 January this year, require the Minister to make an order applying the provisions of compensation, powers of entry and compulsory purchase in the Water Resources Act 1991 to Sections 38 and 39 of the Flood and Water Management Act, with or without modifications.
The purpose of the order is twofold: first, to protect the rights of occupiers and property owners who could be affected; and, secondly, to ensure that authorities have the necessary ancillary provisions. The order works by applying relevant provisions in the Water Resources Act 1991 with appropriate textual modifications to Sections 38 and 39 of the Flood and Water Management Act. However, it is important to understand that the provisions of the Water Resources Act are not amended by this order. I will now outline how each of the provisions will work and why they are necessary.
First, the order applies the compensation provisions in the Water Resources Act so that if any loss is suffered as a result of the use of powers under Sections 38 or 39, the relevant authority would be liable fully to compensate the injured party. This is necessary to protect the interests of landowners and occupiers. Before any work was undertaken, all necessary permissions and consents, such as planning permission, would need to be secured. Compensation would then be paid for any loss caused in the course of carrying out the work. Sums would be calculated on a case-by-case basis. If the person affected was not satisfied with the compensation offered, they could appeal to the Upper Tribunal.
Secondly, powers of entry are necessary to provide safeguards for landowners and occupier as well as for the authority, when an operator needs to undertake work on a third party’s land. The local authority or Environment Agency would write to the landowner or occupier notifying him of its intention to enter land. The notification would explain the nature and timing of the works and the entitlement to compensation in the event that any loss is suffered. The order requires a minimum notice period of seven days before entering agricultural land. This is a modification of how provisions in the Water Resources Act apply to Sections 38 and 39 of the Flood and Water Management Act. It makes the minimum notice period for agricultural land the same as that required for residential premises.
Compulsory purchase powers are needed so that an authority can, when necessary, obtain proprietary interests in land in order to protect its investment and ensure that works can be maintained. Powers of compulsory purchase can be exercised only with the express authority of the Minister. In all cases, the authority or agency would try to purchase by agreement before seeking ministerial authority to exercise its powers. The Environment Agency’s powers of compulsory purchase are limited in this order to purchases necessary for the purpose of enabling the United Kingdom to comply with its obligations under specified European directives—the water framework directive, the habitats directive or the wild birds directive.
Landowners and occupiers have rights under the Acquisition of Land Act 1981 to oppose the compulsory purchase. This includes provision for a public local inquiry, which may decide whether or not to allow the purchase or modify any particulars. If a landowner is still not satisfied, he may challenge the decision in the High Court.
I commend the draft regulations to the Grand Committee.
Lord Teverson
My Lords, I congratulate the Minister on his appointment. I know that that has been done on the Floor of the House by the various Benches, but I wanted to add my personal congratulations. It was an excellent appointment. I am sure that the good work that the noble Lord, Lord Taylor, has done will continue.
The Explanatory Memorandum refers to the Pitt review. Given that this is a short session, it would be useful to hear just of couple of headlines on how the Government view the Pitt review and whether they foresee any primary legislation coming forward in that area in due course.
The order makes a lot of sense, because it is clear that certain flooding is good for the environment. If flooding was prevented, there would be environmental and ecological degradation. Given that Sections 38 and 39 of the Flood and Water Management Act 2010 can be implemented only in relation to the powers of compensation, access and compulsory purchase, is the Minister satisfied that the right balance has been struck between there being a heavy responsibility on the authorities to undertake this work and the power of the landowner?
Lord Knight of Weymouth
My Lords, I thank the noble Lord, Lord Taylor of Holbeach, for the clarity with which he set out the order. That was most helpful given that it is very difficult to get any clarity from reading it. That is why we have an Explanatory Memorandum—I thank the Minister’s officials for the clarity with which that has been set out. I also congratulate the Government on listening to the concerns expressed by the National Farmers Union and the Country Landowners Association in bringing forward the order, which I certainly support.
Like the noble Lord, Lord Teverson, I was interested in paragraph 7.6, on consolidation, in the Explanatory Memorandum. I would be interested in any news on when that consolidation of the Act might happen in response to the Pitt review.
I tried to work out the taxpayer liability from the impact assessment. I understand that a notional 100 hectares is being discussed in the Explanatory Memorandum because it is difficult to predict how much land will be affected by erosion. Am I right in calculating that 100 hectares—the equivalent of one square kilometre—would generate a cost of £2,000 per annum, or have I misread the way the sums work? With that question, I am very happy for the order to go forward.
Lord Taylor of Holbeach
I thank noble Lords for their comments. I thank in particular the noble Lord, Lord Teverson, for his pleasant greetings. He asked how the legislation related to the Pitt review. He and I were both around when the Act on which the statutory instrument is based went through this House. He will know that it was a foreshortened Bill; the water provisions were relatively limited within it. The Government, however, have made it quite clear that there will be a water White Paper shortly—it is likely to be published within the next six months. We will bring forward a Bill, probably within this Parliament, to legislate in the whole area of water and water management. It is important not just for issues raised by Pitt but also for the consumer interest in water.
The noble Lord, Lord Knight, asked me about the cost of the provision. I can assure him that his estimate of £2,500 per annum is about right. He also asked whether the whole business of consolidation might be considered. The Government are still committed to this, but he will know how difficult it is to get legislative time. However, this is something the Government will seek to do, if at all possible, within this Parliament.
The noble Lord, Lord Teverson, asked me if the balance was about right. He would expect me to say, and I do, that I think the balance is about right. This is a question of a balance of differing interests, and the statutory instrument has got it about right. It does contain the necessary provisions to protect the interests of those who would be affected, and the minimum required to allow local authorities, internal drainage boards and the Environment Agency to use, where appropriate, the powers provided by Sections 38 and 39 of the Water Management Act.
I hope that I have managed to cover all the points raised. I am particularly happy to present this order. I beg to move.
Electricity and Gas (Internal Markets) Regulations 2011
Lord Dixon-Smith
My Lords, I am grateful to the Minister for his explanation, which means that I now understand a very small part of these regulations a bit better than I did. I found it infinitely depressing when I went to the Printed Paper Office and suddenly found myself presented with 197 pages of regulation and 184 pages of Explanatory Notes. If anybody in this Room is familiar with the content of all of them, I would be very surprised. I do not doubt that there are plenty of people who know how to reference every little last word, but do not think that it is possible for anybody to put their hand on their heart and say that they are familiar with it all.
I am really interested only in part 9. I will admit that I had representations made to me by one of the electricity companies, which was concerned about it for two or three reasons. First, although some might argue that the previous arrangements were a bit cosy, the licensees have to work very closely with Ofgem in forming any regulation. The result is that on the whole there is a great degree of agreement between the two when the regulations come out. Of course, the right to appeal to the Competition Commission is always there in the background.
Part 9 introduces this new body, the European Agency for the Cooperation of Energy Regulators. I really wonder how that was written into the European treaty. I assume that it must be a treaty matter; otherwise, how do we come to have a European body that can tell national Governments what to do? However, the Northern Irish can apparently get away with it, because they are only a devolved authority, but they have the power to say that this provision does not apply to them, as I understand it. The Minister may be able to explain that.
What concerns me is that we still have the appeals process to the Competition Commission, which is fine—but what is the relationship between the commission and ACER? If there is an appeal, which is upheld and is against what might be described as a binding decision of the new regulatory body, what happens? Do we have a power over it? I find a bit of confusion in the first paragraph, where it says why DECC is proposing these regulations, stating:
“The Third Package requires Member States to ensure that national regulatory authorities are able to take autonomous decisions”—
that is fine—
“and implement any binding decisions”.
Okay, but binding decisions are certainly not autonomous. Then we have an appeal mechanism, which can set the whole lot aside. I would be very grateful if the Minister could explain to me rather better how that relationship will actually work in practice. At the moment it looks a bit like a recipe for finishing up in the divorce courts.
Lord Berkeley
My Lords, I apologise to the Committee for not getting here at the start of these proceedings. It is a terrible thing to say, but I went to the wrong room and got lost.
My interest in this issue stems from talking to many ports and airports around the country. I recall having correspondence with Ministers a few years ago on one issue in particular. Ports and airports which already had a network might have tendered out the supply of electricity to get the best deal for their various tenants, but if one tenant decided to go to another supplier then, in order to comply with the directive and the Citiworks judgment, the port could not stop them. This may be fair enough but the port might then be saddled with the very high cost of upgrading its internal electricity network to grid standards. I know that Ministers at the time—I think it was before the election—understood the problem, but it has not gone away. It seems that there is something of a rush about getting this through, which I cannot believe is happening in any other member state. Can the noble Lord tell me whether any other member states are implementing these regulations at the same speed as we are?
The costs of doing this, whether capital cost or anything else, and the pricing methodology for assessing the charges, worry me and this needs further discussion. It is good that, at the seminar on 9 May, Ofgem announced a helpful concession to allow a higher capital cost figure to be taken into account in assessing the charges. However, these additional costs cannot be taken into account in the case of the input of the opt-out on existing bulk purchase contracts, where the local network provider has committed to a minimum threshold. This seems rather unfair. If a port has put in a network and negotiated a bulk electricity deal, then half its tenants decide to go somewhere else—which they can do—it is left holding the baby with quite a big loss. One port told me that if all this went ahead and it was forced to implement it, it could lose in the region of £10 million a year. That seems a very high figure. There is clearly no way to stop this and it is probably right that tenants should be able to choose to buy power where they want. However, the cost of such a change should be borne by the tenant who wants to make the change, rather than by the landlord losing out.
Ports and the port businesses are also being hit by the carbon reduction commitment, which, as we know, is a tax on energy used by businesses. CRC is currently payable in respect of all business electricity users on port estates, even when they are below the minimum usage threshold for paying it. This may encourage more tenants to opt for third-party suppliers, which also puts more pressure on the port. Could the Minister see whether these effects can be mitigated, either through further discussion with Ofgem or further meetings with airports and port operators, to try to redress some of the adverse effects that are perceived at the moment?
Lord Whitty
My Lords, I broadly support the second package and the transposition of it. However, it leaves a few loose ends, and I want to raise three points, one of which relates very much to what my noble friend Lord Berkeley just mentioned: inclusion in the need to provide access for consumers and businesses those who are licensed for local networks.
I am in a dilemma here—no doubt, so are the Government—in that if you are locked into a local network and there is no alternative supplier, choice does not apply. On the other hand, if you open it up to choice, as the noble Lord explained in relation to ports, the economics of the local network change. There is a real problem here. I ask whether that would apply, for example, to a relatively small CHP system on an industrial estate where all the other units on the estate had agreed to sign up and the economics had been worked out on that basis; or indeed a residential district heating system—I am very much in favour of both such developments of localised and decentralised energy. Opening that up to competition or to the secondary user's choice of supplier makes the economics much more difficult. That is a dilemma. Two principles clash here: one of encouraging decentralised energy and the other of consumer choice. Simply including them under the same obligation as the big network suppliers does not resolve that. I am no closer than the regulations—or, probably, the department—to supplying a solution, but it is not supplied by the regulations.
My second point relates to the reference to consumer protection and Consumer Focus. I declare my past allegiance as former chair of Consumer Focus and—although this applies more to my third point—as currently undertaking some work for the Consumer Council for Northern Ireland. The requirement for Consumer Focus in part 2 to provide a consumer checklist is an extension to what is provided in the Consumers, Estate Agents and Redress Act 2007. It is a more prescriptive requirement on Consumer Focus—the National Consumer Council, in legal terms—than exists under that Act. Even in its current form, one could say that it is an incursion on its independence. The organisation already supplies significant guidance and information available to consumers. However, on balance, I do not object to the current setup.
As the Minister will be aware, under the Public Bodies Bill it is intended to move the role of Consumer Focus on energy either to a third-sector organisation, Citizens Advice or—another proposition currently in play—to Which?, which is, for these purposes, a private sector non-profit-making organisation. Is not the requirement for it to do the job in a certain way an even greater imposition on an independent organisation than it is on a quango? Is the Minister clear that such a requirement would survive a transfer of those functions to organisations that have not been in this game before and that have their own charitable and, in the case of Which?, slightly different structure of obligations and priorities?
Clearly, it is a bit of a problem to get the current powers of what was Energywatch and then Consumer Focus into a completely non-governmental organisation in the first place, but the more prescriptive that that becomes the more difficult it is to ensure that the provision in these regulations survives such a transfer.
My final point relates to Northern Ireland, to which the noble Lord, Lord Dixon-Smith, already referred. He seems to think that this lets Northern Ireland and the separate system of regulation off the hook. I am sure that in Northern Ireland he would be relatively happy for that to be the case, but my understanding is that there is concern about this over there because Northern Ireland organisations are not party to the ACER set-up. There can be only one regulator there, and the energy market there is very different to ours. The gas side is on an all-Ireland basis or is pretty much moving towards that. The Irish regulator would be there but not the Northern Ireland regulator. There are different structures of competition and supply. The regulations are not necessarily appropriate to a very different sort of market with a different sort of fuel supply. I should like the situation on Northern Ireland to be clarified—if not today, then at some point in the near future—because there seems to be a bit of a lacuna in the set-up.
Lord Teverson
My Lords, I should like to raise a couple of points—again, primarily on the consumer side, which I suppose is appropriate, given that it is a topical subject in government. I hope that the Official Opposition Front Bench do not take half an hour on the various provisions relating to competition and energy. However, that is entirely up to them.
The only issue that I wanted to raise was that a lot of this relates to competition and openness of markets. I want to understand where the Government are in terms of their recent announcements and the particular Ofgem proposal that 20 per cent of energy production be auctioned, which would at least start to open up the market.
The niche area that interested me is the one that the noble Lord, Lord Whitty, mentioned at some length—the energy consumer checklist. On page 19 of the annexe to the Explanatory Memorandum it is stated that the European legislation,
“Requires Member States to ensure consumers are provided with the Energy Consumer Checklist and that it is made publicly available”.
I understand how that started to work from reading the third column on that page. However, I draw the Minister’s attention to the fact that I tried to find out from a European Commission website and the DECC website what the energy consumer checklist was—particularly as the proposal is to have it printed on all bills. There nothing definitive whatever on the European Commission’s website. It was completely vague and the Commission had obviously decided that this was a good idea, had delegated and had then done not a lot else. On the DECC website there was a copy of a letter from the Directorate-General Energy and Transport to Kim Darroch, the UK’s permanent representative. Some 78 questions were listed on all the things that consumers ought to be able to ask about. My understanding from this—I am sure that the noble Lord, Lord Whitty, already knows the answers, but forgive me if I pursue the issue—is that the National Consumer Council boils those down and makes them work. I am interested in how we make that obligation relate in a useful way to consumers, so that they can actually make real decisions. That is obviously tied up with all the issues around the swapping of accounts and everything else that has been high on the agenda in recent times. However, I should like to understand how the energy consumer checklist will be effective.
Perhaps the Minister can give us an insight into how other European member states are approaching this. I am particularly interested in the auctioning activity and whether the Government feel that other EU member states are starting to move out of the ice age and into global warming in terms of making sure that some of this deregulation and more market competition in terms of unbundling, or whatever, actually happens as regards those other European markets where, historically, we have been well ahead of the rest of the pack.
Baroness Smith of Basildon
My Lords, I agree—perhaps unusually—with the noble Lord, Lord Dixon-Smith. When I first picked up the package of papers I saw that it was, as he said, nearly 200 pages on the order itself, and the Explanatory Memorandum. If we look further to the impact assessment and the implementation and consultation, it is quite a hefty range of documents, and I am not sure that this Committee could do justice to those documents if we stayed here until tomorrow.
It is long, detailed and fairly complex. I am grateful to the Minister for trying to bring some order to it in the comments he made, and I think there is much in here with which we are quite happy. There are some errors and disappointments, and the noble Lord, Lord Berkeley, expressed some concerns, as has the noble Lord, Lord Whitty. I was struck by one comment he made when he said that on licensing the Government felt able to go further than was in the directives, which I understand and am not unhappy about.
However, it seems to me that the area in which the Government might have wanted to go further is consumer protection and the issue around switching and information for customers. I cannot see why, or how, switching can be effective for the consumer or the customer unless they have the information and are able to understand it and make use of it. The noble Lord will recall the noble Baroness, Lady Oppenheim-Barnes, who spoke for many of us last week when her frustrations boiled over into anger as she spoke of her experience in trying to switch energy companies.
Certainly, what is here today can make it easier. But, again, at the summit today at Downing Street, Chris Huhne made a comment about making switching easier. If we are going to put so much emphasis on the ability of the consumer to save money by switching energy companies, there is far more we need to do than what is in singular. Therefore, I welcome it, as far it it goes.
I have some questions that might help me assuage my disappointment and help me understand some of the issues. I am sure the noble Lord shares my disappointment at the response to the consultation from the energy industry. I would have liked it to be a bit more positive.
We have heard comments from the energy industry that it wants to help people reduce their bills, but its response to the consultation was a bit disappointing. On the issue of switching within three weeks—which is exactly the right thing to do in that area—while their IT companies were saying it could be done, the companies themselves were expressing concern and were, I think it is fair to say, less than enthusiastic.
I would like to ask the noble Lord a few questions on consumer protection, as I am not entirely clear about the effects of implementation. Is the three-week period from the end of the cooling-off period for the customer, or from when the customer first signs the documentation required to say that they want to switch? We have had two conflicting responses on that, so it would be helpful if the noble Lord could clarify that.
Also, I noted in the consultation document that the energy companies raised concerns about making it a legal right for customers to expect their supplier to be changed within three weeks. What was the outcome of that? I have been through the Explanatory Memorandum and the order itself. I may be missing something, but if an energy company fails to meet the 21 days for switching the customer, what action can the customer or the regulator take? What are the practical implications of it?
If the only action open to the consumer is to take action against the supplier then the company will have nothing to fear. I am also unsure as to how the customer will know which is at fault: the company they are switching to or the one they are switching from. Could the Minister outline the consequences of a company failing to meet the 21 days, particularly if it is a regular failure, rather than an occasional mistake?
The ability to switch depends on having the time, the capacity, ability and information to do so. The Select Committee in the other place has drawn attention to this issue. I have seen the new regulations and I take the point made by the noble Lord, Lord Teverson, about the checklist. What will be in it and will it be in a format that is clear, understandable and concise? A list of 58 questions and answers will not be satisfactory for any consumer. The Explanatory Memorandum states that the information will be put on the internet. If consumers have to go to the internet and wade through 58 questions and answers, it might be a week or so before they decide that they want to switch. Are the Government satisfied that the information available to the consumer will allow them to make an informed decision about their bills and supplier?
In a recent survey, Which? called the six major energy suppliers 12 times in a week and asked about the cheapest deal for the consumer. In most cases, the energy company got it wrong and failed to offer the cheapest deal. I think that EDF performed best, offering the cheapest deal in five of the 12 calls. One company said that the cheapest tariffs were available only online. Exit fees were not mentioned in a third of all cases. If the energy companies themselves are unable to give to the customer correct and accurate information about the cheapest deal, how can the consumer, who is not an expert, be expected to find them out for themselves?
It would also be helpful if the consumer was advised not to switch on the doorstep. Forty per cent of those who switch as a result of doorstep selling find that they have got not a better deal but something that is worse or no better than they have already. I would like energy companies to offer every customer the best deal available—I have never understood why there are so many different tariffs anyway.
Annex 1 to the Explanatory Memorandum outlines directive 2—the electricity directive. I am not sure why directive 1 is not there. It sets out the articles of the directive and what has to be done to comply with them. Why under Article 3(7), which requires member states to introduce a number of measures to protect vulnerable customers, is Warm Front listed as something that the Government are doing, when that programme is being phased out, indeed abolished? I am unclear why that is still in the transposition notes on action being taken by the Government. It seems unusual to refer to something that is being phased out. I appreciate that, when the consultation was undertaken, there was no intention on the part of the previous Government to get rid of Warm Front, but now that it has gone, I do not understand why it is still in the document. Since that programme is being phased out, do we have to go back to the EU and say what else we are doing?
The document also mentions the Green Deal as helping vulnerable customers. It does not say that it is a very limited measure that does not help those in the private rented sector as Warm Front did. There is a gap, because that help will take some time to come in. Can the Minister explain why that information is being given?
A further issue brings us back to Consumer Focus. Consumer Focus is going; the Government are getting rid of it. The legislation, the Explanatory Memorandum and the accompanying documents refer to the successor body. Which successor body will that be? Will it be Citizens Advice, which was mentioned during the passage of the Public Bodies Bill, or will responsibility come back to the department? I am not clear who will undertake that role and what funding will be available to ensure that it is properly undertaken.
The Minister mentioned networks, access and storage facilities. All those are referred to in the impact assessment as ensuring greater competition and falling bills. Does the Minister understand a slight scepticism being felt about that? Very few customers see their bills coming down; they may see a smaller increase. Can he give us more information on how this will impact on the consumer and assure us that the cost savings will return to the customer and not just mean larger profits for the energy companies?
The final part is on the regulatory framework. There has been a reprieve for Ofgem in the Public Bodies Bill. Is the Minister satisfied that it has the resources to undertake the additional regulatory functions it is taking on? I endorse the comments made by my noble friends, Lord Berkeley and Lord Whitty. The local estate heating system is a bit of a minefield. There are estates in my former constituency where people feel their bills are too high and want the opportunity to switch companies, but this would have the effect of increasing bills for others. This is a dilemma and more work is required.
In relation to the comments made by the noble Lord, Lord Berkeley, the impact assessment does not refer to the impact this would have on airports or ports. It talked instead about the costs to Ofgem. If there are associated costs that are not referred to in the impact assessment, or that I have missed, then there is an issue. We need to find a way of not imposing costs that would make businesses unprofitable and put them in jeopardy, particularly in times of recession. The impact assessment states that further legislation would be required. Does that mean we will have another opportunity to look at this before it is implemented? I hope that the Minister can address some of the points and concerns that have been raised.
Lord Marland
My Lords, it is, as always, a great opportunity to look at the contents of the Bill. I am afraid that I agree with the noble Lord, Lord Dixon-Smith, about its size. Let us not forget that this regulation was agreed by the previous Government in 2009, at a negotiation in Europe. So I share the noble Lord’s complaint: I have inherited this vast document of noble exchanges at a very high level—beyond my pay grade—in Europe. The net result is that we have a broad regulation which we have attempted to modify and improve, taking on board what a number of noble Lords have said. We have largely accepted everything that is here, because it has been imposed upon us by the EU, through previous negotiation. We have taken four issues which we have tried to mitigate and improve on. Those are: loosening the private network owners’ situation—about which the noble Lord, Lord Berkeley, is concerned—small generation interests, gas storage, which we have tried to find a more transparent way of managing, and switching licences. These are four areas which we, as a department, have decided it would not be in the best interests of the consumer to adopt wholeheartedly.
It comes as no surprise that the noble Lord, Lord Dixon-Smith, has heard from one or two of the major energy companies, because they, quite naturally, do not like everything that is going on. We in Government—and I think that we would all in this Room agree about this—want, largely, to protect the consumer, not the provider. It therefore comes as no huge surprise that, in this particular instance, one or two of the companies are disappointed. That does not mean that we do not have to work with these big six, because they are fundamental to delivering supply and we must congratulate them on much of their work.
The noble Lord asked me a specific question in relation to ACER. The point about ACER is that it deals with cross-border issues, whereas Ofgem deals with issues in relation to the UK. ACER has, of course, a broader remit than Ofgem. My noble friend, Lord Teverson, asked about the views of the other European states. I am afraid that is way above my pay grade. Who would be able to navigate the minefield of the views of some of the European states? My concern is what goes on in this country and I know that is his primary concern despite his great knowledge of Europe.
Baroness Smith of Basildon
That is really helpful, but just for clarification could he tell me how that would fall into place and whether it would be the consumer who had to take action to ensure that happened, or whether it would be a matter for the regulator to deal with?
Lord Marland
I guess that it would be both, because the consumer will apply to the regulator, which would be the normal way for the regulator to impose that on the supplier.
I dealt with the question on checklists. Warm Front still exists, of course, and will do so for another year, so it is reasonable to use it. Of course, we brought in a whole load of other measures, which the noble Baroness knows. For the sake of clarity, from December 2011, 4 million of the most vulnerable energy customers in Britain will receive letters to tell them that they are eligible for free or heavily discounted insulation of their loft or cavity walls, which is the Green Deal that we were talking about earlier.
Lord Marland
Yes, they will get the ECO through the Green Deal. A whole amount of measures was issued at the energy summit today, with which I will be very happy to furnish the noble Baroness. As for the issue of PRS and Green Deal, I think that we have debated that quite extensively and I really do not want to go over the old ground. We share a significant problem and concern, and in the end I think that we were all singing off the same hymn sheet in that debate.
Lastly, on the question of whether Ofgem has the right resources, it is important that it has. It has a task to manage this enormous amount of legislation in front of us, and we will watch very carefully to ensure that it is up to the task. The noble Baroness was quite right to raise that issue now, because it is important that customers at all levels are protected. I believe that the legislation goes a long way to doing that. As I said earlier, it is legislation that we have inherited, but there is a lot of good stuff in it. Would we have done everything to the letter of the word? Perhaps not. Are you pleased with everything that we have done to the letter of the word? Perhaps not. But it is legislation, and good legislation with the consumer in mind, and I think that we would all applaud that.
Lord Berkeley
I am very grateful to the noble Lord for the answers that he gave me on ports, airports and the bulk tariffs. My question applies equally to some of the examples from my noble friend Lord Whitty on the bulk suppliers of power to tenants, as we could call them, who opt to go to another supplier. As a result, the bulk supplier may lose the level of discount that he would have got if he had been selling to the whole lot. My impression from the Minister’s answer was: “Well, tough on the bulk supplier”. It could be a not-for-profit organisation; it does not have to be a commercial port. Is my interpretation of that correct and, if so, is there anything that Ofgem could do to mitigate the effect with a little bit more discussion? I would be grateful for his response.
Lord Marland
I am concerned to give the right answer about not-for-profit organisations, so I shall write to the noble Lord on that rather than ask him to whisper more in my ear. I do not know the answer, and it is an important question.
I should clarify one point about the switch to Citizens Advice. The detail is being worked out and no decision has therefore been made, but that is the likely intention of the transfer. With that in mind, I commend the regulations to the Committee.
House of Lords
Equality: World Bank
(13 years ago)
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Baroness Prosser
To ask Her Majesty’s Government what assessment they have made of the World Bank’s World Development Report 2012.
Baroness Northover
The Government welcome the World Development Report 2012 on gender equality and development. The report identifies areas for international action that closely reflect the UK’s development priorities to reduce female mortality, close education gaps, improve women’s economic opportunities, increase women’s voice in society and limit the transmission of poverty across the generations. The Secretary of State for International Development is speaking at the UK launch of the report on 23 November.
Baroness Prosser
I thank the Minister for that helpful reply. Does she agree that while the report’s concentration on gender is very welcome, its implementation plan is weak and insufficient? Does she further agree that the plan should include concrete objectives on gender equality, particularly in areas such as political participation and access to justice?
Baroness Northover
The noble Baroness is absolutely right that this report is extremely welcome, and it is groundbreaking that it has been produced at all. It is notable that the World Bank does not necessarily match rhetoric with reality, and we hope that this will be a step on the way to making those two things dovetail. The noble Baroness is right that we have to make sure that we support the World Bank in making sure that this is carried through much more effectively than may have been the case in the past.
Lord Avebury
The report highlights the problem of domestic violence in one short paragraph, but fails to mention the United Nations Secretary-General’s campaign “UNiTE to End Violence against Women”. What are we doing through our embassies and otherwise to promote the goals of that campaign? Will the UK Border Agency review its country of origin information service to ensure that, in considering women’s asylum claims, officials have full and up-to-date information about this appallingly common phenomenon?
Baroness Northover
I thank the noble Lord for flagging this question up to me. In fact, domestic violence runs as something of a theme throughout the main report. It is clearly an issue that needs to be taken extremely seriously. When you look at some of the evidence it contains—for example, that in Cusco there are reports that 50 per cent of women suffer domestic violence—it is an astonishing situation. The UK Border Agency publishes country of origin information reports on the 20 countries that generate the most asylum claims, and all those reports have a section dedicated to covering matters relating to women, including violence against women. The independent advisory group on country information last month commissioned a review focusing on women and girls. I hope that the noble Lord will find that encouraging.
Baroness Scotland of Asthal
My Lords, I declare an interest as the founding patron of the Global Foundation for the Elimination of Domestic Violence. The noble Baroness knows that six out of 10 women in the world are subjected to domestic violence. Will the noble Baroness tell us what, if anything, the Government intend to do on 25 November, the International Day for the Elimination of Violence against Women, to celebrate the things that have been done and, more importantly, to make sure that more is done to reduce domestic violence worldwide?
Baroness Northover
I commend the noble and learned Baroness on what she has done in this regard. Clearly an awful lot more needs to be done. I am speaking at a meeting on that day and I will get the details of that to her. Of course, we have appointed my honourable friend Lynne Featherstone as the UK’s international violence against women and girls champion. She has been trying to ensure that when Ministers go overseas, they routinely raise this in their bilateral meetings. DfID is working on domestic violence in 15 of the countries that it focuses on, and I hope that will extend further as well. The World Bank report mentions ensuring that domestic laws are put in place. One of the things that DfID is working on is trying to make sure that, in the countries in which it is working, the judicial systems and the police take this seriously and act upon information that comes to them.
Baroness Royall of Blaisdon
My Lords, what are the Government doing to ensure that the World Bank will work with UN Women as it translates the 2012 development report into meaningful action for women and girls? Can the noble Baroness assure me that in our emphasis on schooling for girls in developing countries we do not place emphasis only on the provision of schools but on qualified teachers? In many countries that is where the problem is: we help provide the buildings but do not ensure that the qualified teachers are there.
Baroness Northover
This report is extremely interesting in that it makes the economic case for gender equality, which is extremely important. It is therefore a very useful tool for UN Women in its overarching approach to what the UN is doing worldwide. I would expect that UN Women would find this to be a useful tool. It is not just a matter of justice, but of the economic significance of gender inequality in terms of development. The noble Baroness also asked about education. It is absolutely vital not just to get girls into school but to get them through school, and she is certainly right that ensuring the teaching is there is absolutely vital.
Lord Foulkes of Cumnock
My Lords, I commend the work of David Mitchell, the Secretary of State for International Development—
Lord Foulkes of Cumnock
I am sorry, it is Andrew Mitchell—who I know well, of course! He will never forgive me for that—who is doing an excellent job as Secretary of State for International Development, particularly in following on the Labour Government’s initiative to increase expenditure year on year and rejecting the pleas from the right wing of the Conservative Party to reduce expenditure. Will the Minister give an absolute assurance that that policy will continue?
Baroness Northover
I will certainly pass on that message to David—or Andrew—Mitchell and say how much you congratulate him on his personal efforts. Indeed, I pay due credit to the previous Government. We remain extremely committed to international development and will be implementing the 0.7 per cent of GDP target by 2013. That is an absolute commitment.
Sure Start
(13 years ago)
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The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, local authorities are facing challenging financial circumstances, but we believe that they understand the crucial importance of children’s centres for early intervention. Good authorities are restructuring with care, and many are keeping all their children’s centres open. The Government have retained statutory duties requiring local authorities to provide sufficient children’s centres, and my department is monitoring the situation with local authorities.
Lord Dubs
My Lords, does the Minister agree that Sure Start centres have been an effective way of tackling child poverty and improving social mobility? Will the Minister agree that the Government have made repeated promises that Sure Start centres will not be cut, and that it is not acceptable to give such undertakings and then blame local authorities when those projects could easily have been ring-fenced by the Government? Was it not an act of dishonesty by the Government to cut Sure Start centres?
Lord Hill of Oareford
First, I agree with the noble Lord, Lord Dubs, about the important role that children’s centres can play in helping to tackle disadvantage and helping young children to get off to the best possible start. On his second point, we have put money into the early intervention grant to pay for a network of Sure Start children’s centres, but we have a difference of opinion with the party opposite about whether those services are best delivered by local authorities with flexibility about how to spend the money—which is what I think local authorities are keen to have—or whether it is delivered through a ring fence. We took the view that we put the money in and then give local authorities the discretion to make the decisions themselves.
Lord Laming
With that in mind, what steps can the Government take to make sure that the benefits of the remaining Sure Start schemes are directed toward the children and families who are most in need of that kind of help?
Lord Hill of Oareford
My Lords, one of the initiatives that my honourable friend Sarah Teather is taking forward, which addresses the point raised by the noble Lord, Lord Laming, is a series of trials, with payments based more on results, that will look specifically at the kinds of points that the noble Lord raises, particularly at how services are delivered to help families suffering from the greatest disadvantage. We will, however, try to get the focus to shift to the outcomes and the results from those services rather than simply the buildings themselves.
Baroness Walmsley
My Lords, is my noble friend the Minister aware that last week, the All-Party Parliamentary Group on Sure Start had a seminar on Sure Start at which we heard from four different local authorities? We found that Haringey made very severe cuts and closures, whereas Cambridgeshire, Nottinghamshire and Manchester did not make any. Why does he think different local authorities are taking such different approaches, when they are all affected by the same economic constraints?
Lord Hill of Oareford
My noble friend makes an extremely good point. Local authorities are taking different priorities in different parts of the country, and that reflects, in some local authority areas of the sort to which I know my noble friend refers, the weight and significance that they put on the provision of Sure Start children’s centres. All local authorities—and I accept that this applies to everyone—are having to face difficult financial decisions caused by the need for the Government to make savings, caused by the financial situation that we inherited.
Lord Hill of Oareford
Noble Lords opposite can groan, but I fear that it is a consequence. I have been asked questions about the funding of Sure Start children’s centres. We have put the money into the EIG, and we have managed to find more resources to extend the offer to disadvantaged two year-olds and to increase the offer we have made for three and four year-olds. There is also the pupil premium. Those are priorities that the Government are putting money into, but we cannot wish away the economic situation that we inherited.
Lord Hill of Oareford
I do not have that specific answer to hand. Perhaps the noble Baroness will be able to help me, because I know the party opposite has done some work on that. I think the number amounts to 1.5 per cent of all Sure Start children’s centres.
Baroness Hughes of Stretford
My Lords, dozens of Sure Start children’s centres have already closed and many more will do so. Equally importantly, services are really being cut back in the remaining centres. The noble Lord neglected to say that the early intervention grant has been reduced by 22 per cent in real terms. Yet, for a tiny fraction of the cost of the health reorganisation, the Government could have protected children’s centres. Does this not reflect the fact that the Government are out of touch, particularly with women’s concerns, and why so many women now think that the Government are going in the wrong direction?
Lord Hill of Oareford
I do not accept in any respect the point that the noble Baroness makes. From our debates during the passage of the Education Bill—I will not bore the House by repeating them—she will know about the money and funding that the Government have put into a whole range of priorities, including addressing the children in greatest disadvantage and seeking to help mothers and families who are struggling with those problems, as well as a whole series of initiatives and trials. We will continue with those. But to come back to the point made by my noble friend Lady Walmsley, there is a difference in the way certain local authorities have prioritised their spending, which we have to accept.
The Lord Bishop of Leicester
My Lords, in the light of the recent riots and mounting evidence that the first three years are crucial to personal development, do the Government have any concerns about any possible correlation between social unrest and the closures that we have been discussing?
Lord Hill of Oareford
I hope I have made clear in all my answers, particularly to the question asked by the right reverend Prelate, that the Government accept entirely the importance of the services delivered through Sure Start children’s centres. One whole focus of the Government’s work is to seek to increase funding into greater concentration on the early years. That is continuing despite the difficult financial situation that we face. I agree that the more one can do with young children to help them become ready for school and to achieve and to learn, the better they are likely to do later and the less chance there is of them going off the rails when they are older.
The Earl of Listowel
My Lords, there is a huge cost to society from failing to intervene early, particularly a huge public health cost, given that mental disorders mostly begin in childhood. For example, if smokers had had an intervention in childhood and their relationship with their parents had been strengthened, perhaps 40 per cent of them would not be smoking now. It would probably be the same for alcohol and drugs. Failing to intervene is hugely costly. Will the Minister ensure that the Department of Health carries a proper rate in support of this early intervention and will provide funding to Sure Start children’s centres? Further, will it provide adult mental health services to parents in Sure Start children’s centres and that there is full recognition of this? Will the Minister also discuss with his colleagues how children and families can be prioritised in the Health and Social Care Bill so that these often overlooked groups get the early support that they need?
Lord Hill of Oareford
My Lords, I agree very much with the noble Earl about the importance of early intervention, which is the theme of a whole range of measures that the Government are taking across departments. We work closely with the Department of Health. We worked with it on the statement on foundation years, which was published in July, and will continue to do that, bearing the noble Earl’s points in mind.
EU: Food Labelling
(13 years ago)
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Baroness Oppenheim-Barnes
To ask Her Majesty’s Government whether they are supporting the new food nutritional labelling regulations approved by the European Parliament on 6 July; and, if so, why.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, we welcome the new regulation. The UK has led the way in Europe in improving nutritional information for consumers. Access to nutritional information supports consumers in choosing a balanced diet and can help in controlling calorie intake. The regulation meets our main negotiating objectives and will give the UK freedom to maintain and build on existing practice.
Baroness Oppenheim-Barnes
My Lords, I am a little astonished by that response. Is my noble friend aware that I have campaigned for many years in your Lordships’ House for clear, uniform food labelling on pre-packaged goods for easy comparison? The FSA produced such labelling, which I understand was approved by all five Select Committees but was rejected by the EU, which has now produced something futile, pathetic and unenforceable, to put it mildly. Does my noble friend agree that it is time for the proverbial worm to turn and to tell the EU that we do not want its version—we prefer our own?
Earl Howe
My Lords, I am not sure that I would accept the epithets that my noble friend has applied to this regulation. We have led the way in these negotiations. It is true that it has taken some time but we have come away with most, if not all, of our key objectives met. Nutritional information will now be displayed in a consistent manner on the back of all pre-packed foods, which is a major plus. A voluntary approach has been secured for front-of-pack nutrition labelling and for non-pre-packed foods, including those sold by caterers. It will also be made easier for alcohol companies to include energy information on their products on a voluntary basis. This will give people the information they need to make informed choices about what they eat and drink, which is the whole idea.
Baroness Howarth of Breckland
My Lords, is that truly the view of the Foods Standards Agency? I understand that we have different policies being developed in England, Scotland and Wales, but without differences being truly ironed out. I also understand that we have three departments—Defra, the Foods Standards Agency and the Department of Health—working at this in England alone. Does the noble Earl not think that there is room for confusion and a lack of cohesion when we do not have better co-operation?
Earl Howe
I take the noble Baroness’s point. Obviously, the Government would like to see greater consistency in front-of-pack labelling. We know that, if we can achieve it, that is likely to increase consumer understanding and indeed the way that consumers use the information. Now that the regulation is finalised, we have the opportunity to discuss with all stakeholders the way to achieve that. It is advantageous that there is the flexibility available for us to do that.
Baroness Parminter
My Lords, this country has one of the highest rates of obesity in Europe. France is taxing sugary carbonated drinks and Denmark is taxing fatty foods. Regulation is one thing, but can the Minister confirm that the Government are looking seriously at the potential of such fiscal measures to address this ballooning health problem?
Baroness Thornton
My Lords, I congratulate the noble Baroness, Lady Oppenheim-Barnes, on her Question but I have to say that I think her target should not be the EU but actually her own Government. If you put “food labelling” into a search engine, you will get hundreds of different versions of how food can be labelled. It feels like we are going backwards because of the flexibility that the Government have sought through the EU regulations. What part have the Government’s relationships with the corporate sector played in this matter, and, indeed, if food labelling is going to become more confusing, will that not count against the drive to have good and well balanced diets?
Earl Howe
My Lords, as the noble Baroness will know, there are various points of view from various sectors of industry about what constitutes the best and most helpful form of food labelling. As a matter of fact, that has lain at the heart of the difficulty in reaching agreement in Europe, because there are so many divergent views around this. It is quite true that we do have very strongly held views—not least by the Food Standards Agency—about the value of traffic lights. We have equally strong views, held by certain sectors of industry, on the GDA model. As I said earlier in answer to the noble Baroness, Lady Howarth, it would be desirable to have consistency, but we are not there yet. We will continue to work at that objective.
Baroness O'Cathain
My Lords, first, has any research been done on the proportion of the population that actually reads these labels; secondly, are people able to read them; thirdly, do they understand them if they do read them; and, fourthly, what about magnifying glasses?
Earl Howe
One advantageous feature of the regulation, my noble friend will be pleased to hear, is provision on the legibility and font size of labels, which I am sure we all welcome. In 2009, the Food Standards Agency commissioned some research to examine which front-of-pack labelling system performed best, and the main finding was that the strongest performing front-of-pack label is one which combines the use of the words “high”, “medium” and “low”, traffic light colours and the percentage of guideline daily amount, in addition to levels of nutrients. That was the same across all socioeconomic groups.
Commonwealth Heads of Government Meeting
(13 years ago)
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Baroness Jenkin of Kennington
To ask Her Majesty’s Government what they hope to see achieved at the Commonwealth Heads of Government Meeting in Perth.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, we believe that the Commonwealth Heads of Government meeting in Perth, Australia, could and should be a significant moment for the future of the Commonwealth. The modernisation of the Commonwealth, based on Heads of Government agreeing the Eminent Persons Group core recommendations, is our priority. A reinvigorated Commonwealth with increased trade and investment flows is good for all its members and can help uplift prosperity levels for all its 2 billion citizens.
Baroness Jenkin of Kennington
I thank my noble friend for that positive response and I am sure we all wish the Commonwealth Heads of Government a successful conference at the end of the month. My noble friend will be aware that the UK Government have led the way in the polio eradication programme and that earlier this year the Prime Minister announced a doubling of the funding for it, which will lead to an additional 45 million children being vaccinated over the next two years. Can my noble friend confirm that, while he is in Australia, polio eradication will be on the agenda and that he and his colleagues will encourage other Governments, notably the Australians, to be similarly generous in their approach?
Lord Howell of Guildford
I can confirm that that will be on the agenda and that the Australian Government, the hosts for this Heads of Government meeting, have taken a lead in proposing it. It will certainly gain discussion and, I hope, intensive development and improvement at the CHOGM.
Lord Triesman
My Lords, with 100 days to go, the noble Lord said that he thought it would be a vital meeting for the relaunch of the Commonwealth, and with 50 days to go, on 9 September, he said that it would be a “defining moment” for the Commonwealth with “bold and vital decisions”. Can the noble Lord be somewhat more specific today? What are the two most important decisions that could be taken and how confident is he that the preparatory work means that they will see the light of day?
Lord Howell of Guildford
I certainly could be a lot more specific if I had more time because an enormous number of important objectives will be pursued. Among them, as I have already indicated, we are keen that the upholding of the Commonwealth core values of human rights, good governance, the rule of law, democracy and parliamentary development should be pushed very hard indeed, and that new machinery may be needed in the Commonwealth to do that. I do not guarantee that all these things will be accepted exactly as they are proposed by the Eminent Persons Group or the Commonwealth Ministerial Action Group, which is proposing similar ideas, but these matters will be pushed extremely hard and are a very high priority for Her Majesty’s Government.
Lord Chidgey
Does my noble friend agree with the Commonwealth Eminent Persons Group, which I understand shares the view that the current failings of the Commonwealth Secretariat are the result of long-term underinvestment over many years, and that one of the ways forward is to enable it, through better funding, to recruit more capable and perhaps well recognised staff to undertake the functions better? In that context, can my noble friend tell us whether the Government will endorse the report of the Eminent Persons Group and support the range of essential recommendations? He has already mentioned human rights, but there are many other important issues, particularly the publishing of the group’s report.
Lord Howell of Guildford
My noble friend is right. There are 106 recommendations in the EPG report and many more in the Commonwealth Ministerial Action Group report. There are funding implications for the Secretariat and for the machinery of the Commonwealth, and we are looking at those very carefully. We will have to evaluate them and decide what we can do, given the inevitable limits of resources. One also has to remember that a large part of the Commonwealth is both bilateral between Commonwealth countries and, even more important, separate from government. The unique nature of the Commonwealth is its huge latticework of professional, business, scientific, medical and judicial relationships that exist in no other multinational organisation. Those, too, will need to be developed and encouraged.
Lord Hylton
My Lords, does the noble Lord agree that bilateral relations between India and Pakistan have been frozen into almost Cold War attitudes ever since those nations came into being? Would the Perth meeting not be a very good opportunity for getting them to thaw out a little?
Lord Howell of Guildford
One naturally hopes and, indeed, urges that the Commonwealth can provide an envelope in which to resolve tensions of that kind between countries which, although fellow members of the Commonwealth, may have very different agendas—indeed, even hostility to each other—but that issue is obviously between the two countries concerned. Their highest representatives will be at Perth; I hope that they can get together at that and other opportunities to resolve the problems that face those two great nations.
Lord Anderson of Swansea
My Lords, the Perth CHOGM may be make or break for the Commonwealth, which is currently marking time. Two key tests are the strengthening of the Secretariat—are the Government prepared to fund the Secretariat more generously?—and human rights. Will the proposed commissioner be independent of the Commonwealth Governments and not beholden to them as the European High Commissioner for Human Rights is to European Governments?
Lord Howell of Guildford
Yes; these matters are yet to be decided, but the recommendation is that he or she should be independent. I do not agree with the noble Lord that this is make or break; there are huge forces at work which are creating demand for the kind of network which the Commonwealth produces today, both at governmental and non-governmental level, and that will go ahead regardless of what final decisions are taken between Governments. When we are dealing with a global network of this kind, Governments cannot always decide everything by their own writ, so the great forces at work mean that the Commonwealth is a very necessary network for the 21st century. I would even go as far as to say that if it did not exist it would have to be invented. I have already acknowledged that there are funding implications; we will look at these carefully. Not everything is solved by more and more secretariats and central organisation, as we well know from our European Union experience, but funds will certainly be needed to make this whole programme go forward successfully.
Baroness Gardner of Parkes
Will the Minister accept from me first-hand, as I have just come back from Australia, that it is very much looking forward to the meeting, largely because its people all love the Queen very much, and her role as Head of the Commonwealth is particularly important? I did not meet anyone who was so excited about the Minister’s own visit.
Lord Howell of Guildford
My noble friend is absolutely right that the position of Her Majesty at the Head of the Commonwealth is an immensely valuable binding force and, in the dark days of the past when the Commonwealth was grossly undervalued and its potential ignored, it was Her Majesty who kept the lights burning for the Commonwealth. Of course, Australia sees this as a huge opportunity to assert its rising role in the world and its key position in the Indian and Pacific Oceans, which are becoming the centres of great consumer markets of the future and the centres of our future prosperity.
Joint Committee on Human Rights
The Chairman of Committees
That Baroness Berridge be appointed a member of the Joint Committee in place of Baroness Stowell of Beeston, resigned.
Health and Social Care Bill
(13 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Earl Howe
That it be an instruction to the Committee of the Whole House to which the Health and Social Care Bill has been committed that they consider the bill in the following order:
Clauses 1 to 6, Schedule 1, Clauses 7 to 22, Schedule 2, Clauses 23 to 48, Schedule 3, Clauses 49 to 52, Schedules 4 to 6, Clause 53, Schedule 7, Clauses 54 to 58, Schedule 8, Clauses 59 to 73, Schedule 9, Clauses 74 to 99, Schedule 10 , Clauses 100 to 105, Schedule 11, Clauses 106 to 118, Schedule 12, Clauses 119 to 147, Schedule 13, Clauses 148 to 176, Schedule 14, Clauses 177 to 179, Schedule 15, Clauses 180 to 228, Schedule 16, Clause 229, Schedule 17, Clauses 230 to 246, Schedule 18, Clauses 247 to 249, Schedule 19, Clauses 250 to 271, Schedule 20, Clauses 272 to 274, Schedule 21, Clauses 275 to 291, Schedule 22, Clauses 292 to 294, Schedules 23 and 24, Clauses 295 to 303.
Education Bill
(13 years ago)
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Lord Hill of Oareford
That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 4, Schedule 1, Clauses 5 to 11, Schedule 2, Clause 12, Schedule 3, Clause 13, Schedule 4, Clauses 14 to 16, Schedule 5, Clause 17, Schedule 6, Clauses 18 to 21, Schedule 7, Clauses 22 to 24, Schedule 8, Clause 25, Schedule 9, Clauses 26 to 34, Schedule 10, Clauses 35 and 36, Schedule 11, Clauses 37 to 48, Schedule 12, Clauses 49 to 53, Schedule 13, Clauses 54 to 61, Schedule 14, Clauses 62 and 63, Schedule 15, Clauses 64 and 65, Schedule 16, Clause 66, Schedule 17, Clause 67, Schedule 18, Clauses 68 to 79.
Localism Bill
(13 years ago)
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“Revision of local development documents
In section 26 of the Planning and Compulsory Purchase Act 2004 (revision of local development documents), after subsection (7) insert—“(8) Within an interim period after the occurrence of a relevant event, the authority must review every local development document in the light of that event.
(9) If the authority finds that any modifications of the document are required as a consequence of the review they must prepare a revised document containing those modifications.
(10) The following are relevant events—
(a) issuing any consolidated guidance to which a local planning authority must have regard under section 19(2);(b) the coming into effect of the abolition of regional strategies under section 97 of the Localism Act 2011.(11) During this interim period, local development documents adopted under section 23 shall be regarded by the Secretary of State as being in general conformity with consolidated guidance as referred to in section 26(10)(a).
(12) The Secretary of State may by regulations make provision in connection with the exercise by any person of functions under this section.
(13) Regulations made under subsection (11) may, in particular, make provision as to an expedited procedure including—
(a) requirements for giving appropriate notice and publicity to any document made under this section;(b) requirements for the appropriate inspection by the public of any document made under this section;(c) the nature and extent of appropriate consultation with and participation by the public in any document made under this section;(d) the making of appropriate representations about any document made under this section;(e) the appropriate procedures to be adopted for the consideration of any such representations.(14) Regulations made under subsection (11) may, in particular, make provision as to—
(a) the determination of when the interim period in this section may cease, at least three years after the coming into force of this section;(b) the completion of any local development plan documents not adopted under section 23 within the interim period.””
Lord Best
My Lords, we are on the planning parts of the Localism Bill and my amendment addresses the transitional period between the old system and the new. The old planning system had regions, regional spatial strategies and many planning policy statements; the new arrangements have no regions, no regional spatial strategies and, instead of planning policy statements, one national planning policy framework, with its special ingredient of a presumption in favour of development. We have discussed this a great deal over recent days. There was a wonderful speech from the noble Lord, Lord Deben, in the previous session on the Localism Bill, in the debate led by the noble Lord, Lord Rooker, who also made a wonderful speech. My position on that issue is on the side of the Government and not on the side of the National Trust and the CPRE. However, we are not going into that today but will look at the transitional period between the old planning system and the new.
In Committee, I brought forward an amendment to deal with those aspects of the local development frameworks used by local authorities that made reference to regional spatial strategies that are no more. The problem I was addressing with that amendment was that, without the regional spatial strategy to which the local development frameworks referred, the validity of the whole local development framework was called into question. My amendment sought to allow local authorities, even though there was no continuing regional spatial strategy, to continue to operate as if there had been in respect of those pieces of the regional spatial strategy that they had transmitted into their own local development framework.
For example, Woking Council had important policy decisions in its framework that related to sustainability in Woking. However, it did not put them into its own local development framework but referred to the south-east of England plan which covered those points for it. Under the new regime there is no longer a south-east plan, and Woking Council’s own local plan becomes invalid. At that stage in Committee we found ourselves with a need for my amendment because of the gap between the old system and the new, which it was suggested we could remedy by allowing a continuation of the reference to the regional spatial strategy. That amendment received short shrift from the Government at the time and I felt that it had not been fully appreciated when we discussed it. I was going to bring it back last week but it was bounced by an earlier government amendment which, by pre-emption, meant that mine could not be taken.
However, I have now brought forward Amendment 204EA, which looks at the question of the interregnum between the old system and the new system which includes the presumption of development provided projects accord with the necessary sustainability requirements. It has been said that all the existing local development framework plans and all the existing plans in the pipeline will become invalid and have to go back to square one—that they will all require evidence to be heard in public, extensive consultation, the use of an inspector and about a year’s delay before anything can happen, unless we can have in that interregnum a fast-track, speeded-up process to expedite the approval of local development frameworks and local plans.
There is widespread anxiety that if we do not fill this gap there will be a free-for-all, with planners able to lean on the fact that there is a presumption in favour of development and to come out with all kinds of unsuitable developments. I am not saying whether or not I believe that to be true, but there is a widely held view that there will be great difficulty if councils do not have time to settle into the new system and there are not arrangements in place. The procedures for that are set out in my amendment to carry us forward from the old to the new.
Lord Greaves
I have the other amendment in this group, Amendment 204F, which has a very similar purpose. I very much support the amendment of the noble Lord, Lord Best, and what he said in his speech. In our view this is one of the important remaining issues in the planning parts of the Bill. The two amendments are about the pragmatic position of the local planning authorities. Some are faced with old plans under the pre-2004 legislation; some with emerging new plans—local development frameworks—under the 2004 Act; and some with adopted core strategies—new plans—under that Act. All of those are now up in the air as a result of the Government’s wish to do away with a great deal of the previous planning guidance and instructions which local authorities had in regional strategies and in the planning policy statements. Instead those will be replaced by a much shorter document, the national planning policy framework, but that is going to take some time to approve.
The Government originally said that local authorities would have six months in which to adapt their local plans, whatever state they were in, to the new guidance. Frankly, they have not thought through the practical problems that this would have caused. They are now doing so, and that is extremely welcome. I am taking a lot of advice from planning authorities, from the planning world and, indeed, from Members of this House. We understand that it is now their intention to include clear guidance on how to adapt their local plans, and pursue their new local plans, in line with the NPPF. My first question is to ask the Minister if she will confirm that that is the route they are taking. The amendment of the noble Lord, Lord Best, would put a great deal of the detail of how this is to happen on the face of the Bill, and this would be our first choice. Transitional provisions have appeared in quite some detail in previous planning legislation. In our view this would be the best place for it, but for various practical and other reasons, the Government do not want to do that.
My amendment would put a duty on the Secretary of State to issue regulations which would set out the transitional arrangements. It states:
“The Secretary of State may by regulations specify transitional arrangements concerning the timetable and procedures involved in the introduction of changes to local development schemes and the preparation and adoption of local development documents”.
Regulations are stronger than guidance so we would prefer to have it in regulations rather than simply in guidance. Wherever it is, it needs to be clear and well understood. It needs to give local planning authorities the necessary flexibility and time to get it right.
There have been fears that local planning authorities will be left with no defences against any kind of inappropriate development as a result of some of the wording in the draft national planning policy framework, particularly the suggestion that in the absence of a plan the default position on planning applications would be to approve. The noble Lord, Lord Best, said that that might be opportunistic and unplanned development. My description of it might be a bit cruder than that but I am happy to align myself with his more elegant wording there.
The timetable from transition is crucial. Six months is clearly ludicrous. We have heard rumours of 18 months but in practice it needs to be a lot more than that. The noble Lord suggested three years. We would perhaps go along with that. We clearly do not want it to be seven years or more, which is the position now following the 2004 Act, where half or more of the authorities have still not got their new local plans in place. My second question is about the timescale.
Thirdly, do the Government believe that the inspectorate will be able to deal in a practical way with the huge congestion that there will be in all this work of getting the local plans in line with the new planning guidance? How much work will be needed locally and at the inspectorate simply to get a certificate of conformity for approved core strategies? In determining planning applications during the transitional period, what reliance will local planning authorities be able to put in the mean time on approved core strategies under the 2004 Act which have not yet been certificated as compliant with the new NPPF? What reliance can they put on old, pre-2004 local plans which are still being used by many authorities as the basis for planning? As material considerations in planning application decisions, what reliance can be put on emerging core strategies which are perhaps near inspection but not there yet? What will be the relationship between these existing local plans and the emerging NPPF? Finally, what will be the relationship between the adopted NPPF and all these various kinds of uncertificated local plans?
This is absolutely crucial if there is not to be a free-for-all but a smooth transition from the existing, old system to the new one. This is not in any way trying to undermine the new system but rather to make sense of converting from one system to another, which will take a number of years.
Baroness Whitaker
My Lords, I would like to add my support to Amendment 204EA—supported also by the RTPI, which I think is very significant—and particularly subsection (14) of the new clause, which specifies the three-year minimum for transition. I completely understand why the Government have eliminated the regional tier but there remain instances where regional decisions are particularly valuable—I would say irreplaceable—such as matters to do with housing shortages, the issue of Gypsy and Traveller sites, which we discussed at the last Committee meeting, and the lack of planning expertise at a local level which could result in really unattractive developments. If we are not to go backward in all of these areas we need a transitional period as the amendment specifies for local authorities to work out how to co-operate where it is really essential.
Lord Avebury
My Lords, I would like to follow the noble Baroness, Lady Whitaker, in what she said, and to point out that in the case of Gypsies and Travellers we have an additional difficulty in that the NPPF and the equivalent document on planning for Gypsy and Traveller sites are mutually incompatible. The Government say that these difficulties will be ironed out in a new version of the amalgamated documents which will be published at some time in the future. Meanwhile there is a policy vacuum which is being only partially filled by the Secretary of State’s dictum that all previous work on planning for Traveller sites has been torn up and local authorities are free to decide how many pitches for Gypsy and Traveller sites will be provided in their area, if any.
The result of this new-found freedom, according to research by the Irish Traveller Movement in Britain, is that roughly 50 per cent of the needs which emerged from the regional spatial strategies, the Gypsy and Traveller accommodation needs assessments, the public inquiries following those GTANAs and the redistribution between local authorities in the region—to accommodate the fact that some councils had done nothing whatever to meet the needs—have not been met. Perhaps I may just interpolate an aside here. In the new process the local authorities will only have to consider their local needs and will not have to co-operate with neighbouring authorities; and if authorities have steadfastly avoided making provision for Gypsies and Travellers in the past they will be able to demonstrate zero need because there are no Gypsies and Travellers in their particular area.
I see no way in which under the proposed system—and subject to what we do not know yet about the guidance that will be issued by the CLG—there will be any mechanism for adjusting that. I would like to know from my noble friend where we have got to in this process. Are we still in the position where every local authority will make up its mind irrespective of what any of the neighbours are doing? Will there be no contribution to the provision of sites for Gypsies and Travellers where a local authority can demonstrate that it has not had a need in the past because it has been successful in excluding Gypsies and Travellers from its area?
We in the Liberal Democratic Party made a reservation to the abolition of regionalism in our manifesto. We said that the numbers emerging from the regional spatial strategies with regard to Gypsies and Travellers should be preserved and should be the basis on which planning for Gypsies and Travellers would be effected under the new system. If we had done that we would have avoided the process that is currently being undergone all over the country as local authorities start again from scratch to consider their local needs and come up with figures which, as I say, are only 50 per cent of what had been provided where the regional process had been completed, as for example in the east of England. This will result in a severe shortage of sites in the whole country and there will be a proliferation of unauthorised sites, which is the chief source of friction between Gypsies and Travellers and the settled population. I do not know whether that is intentional but it will be the result of following the Government’s present policies.
Lord Howarth of Newport
My Lords, I support the thrust of the amendments tabled by the noble Lords, Lord Best and Lord Greaves. It is not just helpful but necessary to have a transition period in recognition of the fact that not only do very significant numbers—nearly half of local planning authorities—not have local development frameworks, but, because of the abolition of the regional spatial strategies and possibly other factors, even those local planning authorities that do have local plans will find that the local plans that they have had hitherto are now out of date.
We need a transition period probably of three years, certainly not less than two, to provide time for proper consultation to take place. That is extremely important to win back the confidence of the public because it has been shaken on the basis of considerable amounts of misinformation having been provided. If the public had the opportunity to read the draft national planning policy framework, they would gain a lot of reassurance. The fact of the matter is that many people are disturbed and worried about what the new planning regime portends, so consultation will be particularly important. I would not want to see a truncated process of consultation in the interests of hurrying the process along unduly.
Time will also be needed to assist the process of co-operation between local planning authorities that will no longer be brought together under the umbrella of a regional development agency to facilitate that co-operation. We know that there are tensions—indeed, conflicts of interest—and interests that are very difficult to reconcile between different local planning authorities, so time must be allowed for that process to run its course. The inspectorate will need time, which is why I think three years rather than two years would probably be appropriate, as the noble Lord, Lord Tope, suggested in the debate last Thursday.
Will the Minister take this opportunity not only to say what the Government’s view is about a transition period but what supplementary guidance they may be minded to offer? While the Government are entirely entitled to revisit the planning policy statements, those statements are of pretty recent origin and represent a huge amount of work that has been put in by all the relevant expert interests. It would be a shame to discard them altogether. I wonder whether the Government are minded to look at a way in which planning policy statements, appropriately modified and updated to reflect the Government’s current policies, could none the less be made part of the system again so that we do not waste all that good will, expertise and very useful practical guidance that went into the development of those statements.
If the Government allow a three-year transition period, they will not abort the development that is so badly needed if we are again to have growth in this country because, unfortunately, the lack of confidence and available finance mean that there is not a lot of development in the pipeline. Even where the necessary confidence and funding exist, there are large numbers of extant planning permissions, so I do not think that a transition period would in any way obstruct the sustainable development that we all want to see in the interests of creating more jobs and homes and ensuring that our economy is modernised and made more powerful and effective. If the noble Baroness is able to indicate the Government’s thinking in this regard, more particularly whether their thinking is positive, it would be hugely welcome.
Baroness Andrews
My Lords, I spoke briefly on the topic in Committee and I was very glad that it reappeared on the Marshalled List, in the name of the noble Lord, Lord Best, as I thought that pre-emption might possibly mean that we would not have the opportunity to discuss what is a really important element of the Bill. I commend both the amendments. The questions raised by the noble Lord, Lord Greaves, were absolutely pertinent, and I hope that the noble Baroness will be able to answer them in some detail. They go to the heart of what local authorities are trying to do at the moment.
The only thing that I want to say is that we should reflect on what is happening on the ground. These may sound like extremely technical issues, but in fact local authorities, a few of which I have seen in the past week, are wrestling with all manner of different states of maturity in relation to their planning policies: some have completed LDFs, but they do not know what will constitute an up-to-date LDF because of the need to accommodate with the national planning policy framework; some have not completed their LDFs but are quite close to doing so, but they are finding, for example, that their original planning assumptions on housing are being challenged by local people and local developers. Developers are challenging some of the decisions based on the premises that preceded this situation. There is genuine confusion on the ground and a real problem with uncertainty. We all know that the most crucial elements in delivering a proper planning system are certainty and clarity.
The noble Lord was right to raise the issue of planning guidance. When we reflect back on PPS5, one of the reasons why it was such a successful planning statement was that it had a great deal of clear and useful planning guidance, so there is a precedent.
On the transitional period, I know that the Government must have at the back of their minds the fact that almost half of local authorities have not yet completed their LDF in the time available. It was a very difficult challenge that the previous Government imposed on local authorities to take on board for the first time the notion of spatial planning. Too many demands were made on the nature of the conceptualisation and on the nature of the documents, so we cannot easily extrapolate from the time that that took to the time it will take to accommodate the transitional changes. I would ask for a transitional period, but possibly not for as long as two years. I know that clarity and speed are really important and that people need to get on with it and remove the uncertainties.
Finally, we need to bear in mind the fact that all this is happening at a time when local authorities are losing planning staff, conservation staff and some of their most important expertise while being faced with a bank of rolling fog around how to go forward. Anything that the noble Baroness can say to reassure local authorities, and not least noble Lords, will be extremely welcome if it deals with some of these difficult issues on the absence of transitional arrangements.
Lord Cormack
My Lords, I associate myself with the remarks of the noble Baroness, Lady Andrews, who talked about clarity and speed. I think that both the noble Lords, Lord Best and Lord Greaves, have performed a service by tabling these amendments. They are a prescription not for foot-dragging but for orderly progress, and it is essential to have that. Clarity, yes; speed, up to a point; but orderly progress is absolutely essential. There has to be a transitional period. I am sure that my noble friend the Minister will accept that. Whether or not she accepts the amendments, it is incumbent on the Government to explain to us that there will be proper transition and that we are not plunged from one situation into another. The fact that so many authorities do not have plans gives us all cause for concern. There has to be proper time to put those plans together.
The noble Baroness, Lady Andrews, was right to indicate that this is not the easiest of times for local authorities. Many have laid off staff and have not replaced conservation officers and people who did a vital job. In my local authority of South Staffordshire, which had an admirable record on these matters, the absolutely first-class conservation officer took early retirement in the early part of last year and has not been replaced. The local authority is trying to replace the work that he did, but without him it is not easy. For every possible reason, therefore, I ask the Minister to let us have a period of orderly transition and progress, so that if we are trying to create a better situation, we do not confound our own efforts by over-haste. Once again, there is good sense in the motto that I have quoted in this House before: festina lente.
Lord Lucas
My Lords, in former times it was the custom of some generals after a victory to allow a limited period for rape and pillage before good order was restored. The thought has been raised in this House and outside that this is what the Government intend with this Bill. Along with my noble friend Lord Cormack, I find myself worried. I do not understand how this transition is to be managed: how we are to get from a position where there are not valid local plans in a large number of local authorities to the position where there are, without there being a succession of undesirable planning permissions given. The core of this Bill is to allow localities to determine what happens in their areas. It would be most unfortunate if we had a period where an awful lot of bad will was created by the exact opposite happening, just because some superior authority had failed to get the ducks in a row.
The Earl of Lytton
My Lords, I rise briefly first to declare an interest as a practising chartered surveyor and as someone who is involved with planning, although I am not a chartered town planner.
There seems to me to be three particular issues here. One of them, as has already been touched on by the noble Lord, Lord Cormack, is the corpus of knowledge that is currently involved in the planning system. If we uproot that, we will cause delay, doubt, risk and uncertainty. There are economic implications, so we must try to avoid that. We have seen some of the public pronouncements that are based on questions of doubt about what is intended here. A great deal of clarification is needed.
Secondly, the noble Lord, Lord Howarth of Newport, referred to the effect on economic growth. Yes, planning is a huge driver of economic growth in so many ways. While I would not wish to suggest that it is the be-all and end-all of economic growth, it is clearly something that is tangible that the general public can relate to. We must not lose sight of the fact that it is going to be one of the significant factors, if for instance what we are told about the lack of completions on housing is true.
My last point is to do with neighbourhood plans. I must declare another interest here as the president of the National Association of Local Councils, whose member parish and town councils may be those very bodies that are having to draw up a neighbourhood plan. A neighbourhood plan has to be in conformity with the principal authority’s local plan, and if the principal authority’s local plan is not in place, or is in disarray or is out of date, then we have a problem. This has a knock-on effect. I ask the Minister to give the House some reassurance that there is going to be some sort of seamless transition that will take place. I do not wish to add to what has already been said about the timescale over which that is to be done; and there may be different timescales for different bits for all I know, but the transition does have to be, to some degree, seamless. With regard to my first point about the economics of doubt, it is very important that we get this right.
Lord McKenzie of Luton
My Lords, like all noble Lords who have spoken in this debate today, we support the need for transitional provisions that have clarity as to their meaning as well as a reasonable timescale that reflects the capacity both of local planning authorities and of the inspectorate. Like the noble Lord, Lord Greaves, I believe that this is probably the most serious issue left unresolved from Part 5 of the Bill. We hope that we will get a clear message from the Minister today. We added our name to the original amendment of the noble Lord, Lord Best, which bit the dust by being pre-empted, and we support the thrust of the amendments of the noble Lords, Lord Best and Lord Greaves.
It is imperative that we avoid a lacuna, with the prospect of all or most local plans being absent, silent or indeterminate or having policies that are out of date under the current NPPF formulation. Under the presumption in favour of development, this would lead to an emphasis on approving development proposals unless the adverse impacts of development would significantly and demonstrably outweigh the benefits when assessed against the framework policies. I assert that 50-odd pages of framework cannot be an effective substitute for all the local plans and the thousands of pages of guidance that currently exist.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I am very grateful that this matter has been raised again and that the noble Lord, Lord Best, has not been done out of his speaking part. It seems that the central issue is the maintenance of up-to-date local plans. They are absolutely essential to set out communities’ aspirations for the development of their areas. We are clear that the early review of plans will be the way forward to help manage transitions and deal with local issues arising from, ultimately, the revocation of regional strategies and the introduction of the national planning policy framework.
All of this has been about transitional arrangements. First, these need to be thought through very carefully. Secondly, my honourable friend at the other end has committed us to having transitional arrangements in policy and, where necessary, in guidance. Therefore, consideration to this is already being given. However, I am bound to say that this point has also been raised in the consultation on the NPPF, so the request of the noble Lord, Lord McKenzie, that we should come back at Third Reading may not be one on which I can deliver, because consideration may not have been given to what the full-blown transitional arrangements are going to be.
It has been said that not all local authorities have local development plans. In fact 46 per cent do not and they have had more than eight years to produce them. The worry is that if you time limit a transitional period in some way you are back exactly where we started before, that people do not pay the slightest attention. They think that they have got a long time to do it and they do not actually do it. It is absolutely essential that we put pressure on local authorities to get their local development plans completed and to get them up to date.
It may be helpful if I take this opportunity to clarify that the status of local plans will not change when the final national planning policy framework comes into force. Local plans will always be part of the statutory development plan and that is the first port of call for all decisions. As now, decision-makers are able to give weight to emerging plans in planning decisions and that weight will depend on how far these plans have progressed. Therefore, they are capable of being used to help planning decisions wherever they stand at the moment. Nor do our proposals change the situation for authorities who do not have a plan. Such authorities, because they do not have a plan, already have to have regard to all material considerations in their decisions. That will often include national policy. Areas without a local plan are lacking strategic community oversight, and the introduction of the national planning policy framework does not change this position.
As I have said, it is of course open to local councils to decide when they should update their local plans. It is in fact entirely a matter for them, but they are going to be under some pressure if they want to ensure that they have conformity with the national planning policy framework and that they are able to progress their plans in the most up-to-date way.
Transition is going to be helped by councils drawing on evidence that informed the preparation of regional strategies. We understand that that will need to go across. They will need to do that to support their local planning policies, supplemented as needed by up-to-date local evidence. If there are issues that councils regard as being an essential part of the development plan for the purpose of determining planning applications they must undertake an early review and work with local communities as they would be expected to do anyway.
With regard to the national planning policy framework, consultation ended yesterday and, as we said in our debate last week, this has now got to come under consideration. We have listened to the views of local government and we have said that we will put in place transitional arrangements that advantage plan making to reflect the fact that the national planning policy framework is all about putting local communities in control of planning. But the framework is policy, not legislation, as I discussed at some length on Thursday. Any transitional measures will be more appropriately delivered through policy or guidance rather than legislation. I suggested that we may not be able to come back with this at Third Reading, though it is a matter that I will take away. It looks very much as if we will be able to issue guidance within a timescale which we may be able to save.
The draft national planning policy framework offers councils the opportunity to seek a certificate of conformity with national policy, which will help them identify which of their existing local policies are consistent with the national planning policy framework. We actually expect that many elements of local plans will already conform with the direction of that because the policy framework in fact reflects all the guidance and planning policy statements.
I was asked a number of questions and I think that I have answered some of them on the way. The noble Lord, Lord Greaves, asked whether there will be regulations and guidance. There will be guidance through the NPPF, but we will need to find out when that will happen.
Lord Howarth of Newport
Will the Minister say a word or two more specifically about the status of the planning policy statements during this transition period and perhaps beyond? She will recall that in the debate last Thursday, the noble Lord, Lord Hart of Chilton, an experienced member of the planning bar, made the point, as did other noble Lords, including me, that the higher the level of generalisation in the national planning policy framework short document, the greater the risk of litigation. He thought that where there was litigation, the courts would take into account the planning policy statements, even if the Government have removed their formal status as policy documents, in default of other clear guidance. Therefore, de facto, the planning policy statements are going to have a status. They are still going to be a force on this scene. Would it not therefore be preferable for the Government to recognise that and embrace them in some appropriate form, given that the high level and major planning policy document will be the national planning policy framework?
Baroness Hanham
They are already going to be able to take into account the emerging NPPF as a policy statement. I should like to go back to the question of whether the PPS and PPG are going form part of it. I suspect that this is all part of the consultation about how much background is going to be needed and how those planning policy statements are going to be included. I will come back to that by Third Reading because I do not have the direct answer at present.
The noble Lords, Lord Greaves and Lord Best, asked about the timescale. I have already said that I do not think we will be putting in a firm timescale. We expect the changes to take place as soon as possible, and we hope that local councils will get a move on with them. I think I said that the transition is going to be helped by drawing on evidence that informed the preparation of the regional strategy, and part of that will be the PPS and PPG. The NPPF will supersede the PPS and PPG, but they stay in place unless and until the Government revoke them.
The noble Baroness, Lady Whitaker, and the noble Lord, Lord Avebury, asked me about Gypsies. As both of them will know, the draft PPS on that has just been issued for consultation, but local authorities are already required to provide Gypsy sites and, under the duty to co-operate, they are required to work across boundaries to ensure that they have sufficient provision for them.
Lord Avebury
Is the noble Baroness aware that, according to the research conducted by the Irish Traveller Movement in Britain, the revised plans of local authorities following their liberation from the previous regional planning process are to provide 50 per cent of the number of pitches that had been calculated as necessary under the regional planning system? Does she intend to make any comment on that? Will she answer my question about how the Government are dealing with the mismatch which I pointed out between the NPPF and the separate document on planning for Traveller sites? Will that be accommodated by the publication of one single document that will incorporate the NPPF and the Traveller sites, or will there be a revision of the document on Traveller sites that will be compatible with the revised NPPF?
Baroness Hanham
My Lords, I will have to write to the noble Lord on that. I do not know whether these are going to be consolidated. I do know, and have said before, that there is a requirement on local authorities to provide sites and for them to work co-operatively with other local authorities to see that they have sufficient sites for their needs. The noble Lord says there will be 50 per cent less. I will need to come back on that.
I hope that I have more or less dealt with all the questions I have been asked. I sense that I will not totally satisfy noble Lords on the transitional period. I hope there will be an acceptance that a laid-down transitional period has not proved very helpful in the past, and it may not be helpful in the future, but that we are committed to guidance of some sort.
Lord McKenzie of Luton
Before the noble Baroness sits down, I may have missed it and she may have covered it, but we could now have a situation where a local planning authority has a core strategy in place consistent with the existing regional spatial strategy, and that regional spatial strategy, for a period, is not going to be revoked because of the environmental assessment. If in the interim the NPPF is introduced with its presumption in favour of sustainable development, those two will not be identical. Which is going to prevail in the interim in those circumstances?
Baroness Hanham
My Lords, while the regional strategies are there and before they have been revoked, the plan will have to have regard to them. They will also have to have regard to the emerging NPPF in determining a planning application. Unless they conflict wildly, that should work very well. There is going to be a short period only before the regional strategies are revoked. I do not think there will be any inconsistency. Local authorities are going to want to keep only part of the regional strategies in their local development plan and they ought to be able to work in conjunction with the NPPF for the short space of time, if that is necessary.
With the explanations I have given, I hope that the noble Lord, Lord Best, will feel able to withdraw his amendment. I am afraid I said that the NPPF consultation ended yesterday; in the interests of accuracy, it ends today.
Lord Greaves
Before my noble friend the Minister sits down, would she consider the possibility that not giving any indication at all to local planning authorities of the time they have got to get themselves sorted out—I completely share her view that they need to get on with the job—might prolong the process rather than speed it up? In that context, I do not think she answered the question of what the Government are going to do to assist the Planning Inspectorate to cope with what everybody thinks is going to be a very substantial increase in its workload in the short run.
Baroness Hanham
Discussions are going on with the Planning Inspectorate at the moment to see what is required to make the examination process quicker. Under the new way of working, local authorities will be able to have single areas examined one at a time instead of the whole policy having to be dealt with. It is well understood that the Planning Inspectorate will be put under pressure and we hope and expect that that will be able to be worked around.
I have said all that I can say about a transitional period. The transitional arrangements will come about as a result of the consultation on the NPPF. The noble Lord thinks that a set period might be a good idea. However, as I said, with the experience of the previous set period, which does not seem to have put any pressure on local authorities, we would need to consider very carefully whether there is any value in having that.
Lord Best
My Lords, we have clearly come a long way since the Committee stage of the Bill and I am very grateful to Members of the House from all sides, who were extremely supportive of these measures to cover this transitional period.
The noble Lord, Lord Greaves, was right in expecting that the best we could hope for was not something in the Bill, but some firm guidance. I fully appreciate that the consultation period finishes only today. Therefore mulling over what others have said and taking it into account may take a little time. However, it would be very helpful before we get to Third Reading if the Minister were able to share her thoughts and put a bit more flesh on the bones of how these transitional arrangements may work. In particular, as the noble Lord, Lord Greaves, has said, perhaps she could give us a little more specificity—if I have got that right—and be a little more definite on the timescales that local authorities will be expected to adopt—indeed, timescales that are reasonable in the circumstances and allow sensible things to happen.
I must acknowledge a very helpful meeting with Greg Clark down the other end. I am expecting the outcome of this to be positive and helpful, even if it comes in the form of guidance and is not in the Bill. Perhaps I may reserve the right to bring this back at Third Reading if by that stage we find that very little progress—I do not think that that will happen—has been made. At this stage, I beg leave to withdraw the amendment.
Earl Attlee
(a) for “providing infrastructure to support” substitute “supporting”, and(b) after “land” insert “in a way that does not make development of the area economically unviable”.(2A) In the Table in section 205(3) (which describes the provisions of the Part) for “Section 216” substitute “Sections 216 to 216B”.
(2B) In section 211(4) (particular provision that may be included in regulations about setting rates, or other criteria, by reference to which the amount of levy chargeable is to be determined) after paragraph (a) insert—
“(aa) to have regard, to the extent and in the manner specified by the regulations, to actual and expected costs of anything other than infrastructure that is concerned with addressing demands that development places on an area (whether by reference to lists prepared by virtue of section 216(5)(a) or otherwise);(ab) to have regard, to the extent and in the manner specified by the regulations, to other actual and expected sources of funding for anything other than infrastructure that is concerned with addressing demands that development places on an area;”.”
Earl Attlee
My Lords, in speaking to Amendment 204GA, I shall also speak to government Amendments 204GB to 204GD, 204HA to 204HB, 204JA to 204JC, and refer to Amendments 204H and 204J.
We set out our commitment to consider whether the existing restrictions on the use of the CIL—community infrastructure levy—receipts are drawn in precisely the right way to best support and enable new development and growth. We have considered this alongside our changes at Clause 103, through which we will place control over a meaningful proportion of levy receipts with the neighbourhoods and communities that accept new development and growth. We are consulting on our proposals to use the powers to require local authorities to pass on a proportion of levy receipts raised from development in an area where there is a parish or community council for that area.
Where no parish or community council exists, we will use existing guidance to require local authorities to apply an equivalent amount to addressing the demands of hosting new development in the area and to engage with the community in determining how that proportion of the funds will be spent.
Amendments 204HB and 204JC extend the permitted uses of this proportion of the funds to allow it to be used to support development by providing infrastructure or addressing any other demands that development places on the area. First, any body to which funds are passed under new Section 216A will benefit from these wider spending powers. Secondly, where a charging authority does not have to pass funds under Section 216A, we will have the power to specify that they can use a proportion of the CIL funds in this way. It is our intention to specify the same proportion for this purpose as we will for Section 216A, providing a consistent approach in both parished and unparished areas. The remainder of the funds will be retained by the local authority and must be used to support development of the wider area by funding the provision, improvement, replacement, operation or maintenance of infrastructure.
Our amendments will allow receipts raised from new development to be applied to the range of costs that it creates. They strike the right balance between enabling funds to be directed to the localised demands that development places on the areas that host it and the cumulative burdens that development creates across the local authority and wider area. The levy is to support new development. While the provision of infrastructure is essential to physically unlock new development, it is not the only matter that needs to be addressed to make development acceptable and sustainable to the communities that are asked to host it.
At the neighbourhood level, the impacts of development are more localised, direct and diverse. The impacts will, for the most part, be concerned with local infrastructure, but communities often identify other unfunded pressures on local services as the reason why new development is not acceptable. If communities are to accept and welcome growth, they must be satisfied that they will not suffer as a result of doing so. By placing a meaningful proportion of the contribution that new development makes under the control of the community that hosts it, and by giving that community the flexibility to spend those funds on the matters that it identifies need to be addressed, we will ensure that communities share in the benefits of growth rather than suffer as a result of it. When residents see and understand that development is making a fair contribution towards meeting the demands that it places on their communities, they will be more likely to accept and, indeed, welcome it.
Our amendments will enable the levy to support new development more effectively. The levy will mean that more development can go ahead by providing a valuable contribution towards delivering the infrastructure needed to unlock and enable it, and by ensuring that communities have reasons to say yes to growth. In making our changes we have taken the opportunity to make economic viability an explicit component of the purpose of the instrument. This will mean that local authorities must ensure that charges are reasonable and do not prejudice the delivery of their local plans, including matters such as affordable housing.
My noble friend Lord Jenkin has tabled Amendments 204H and 204J, which are concerned with restricting spending of the levy to matters publicly identified by the local authority that charges it. It may be helpful to the House if I use his amendments as a peg to provide further reassurance. I fully understand my noble friend’s concern to ensure that use of the levy should be transparent; indeed, it must be if developers and communities are to see and understand how the contributions are being used to support development and manage its impacts. That is why we are strengthening, through the levy and the town and country planning regulations, the requirement for local authorities to report openly and regularly on levy income and expenditure.
Our experience from the front runners scheme, which is supporting more than 33 local authorities to implement the levy, is that local authorities are in any case choosing to publish a list of their spending intentions. This demonstrates that a flexible approach to infrastructure lists is working and that a more prescriptive approach is not needed at this time. The legislation already allows for regulations to require them to do so, should we wish to in the future.
I appreciate my noble friend’s concerns, but I hope that he will be reassured by the steps that we are taking to improve transparency and accountability of levy income and expenditure, agrees that our changes are the right means to achieve that, and will be willing not to pursue his amendments. I beg to move.
Lord Jenkin of Roding
My Lords, I am most grateful to my noble friend for the care with which he has set out these quite significant changes to the whole process of charging and applying the community infrastructure levy—or CIL, as he called it. We have moved a long way from the original intention of the CIL. In the Planning Act 2008, Section 205 states:
“In making the regulations the Secretary of State shall aim to ensure that the overall purpose of CIL is to ensure that costs incurred in providing infrastructure to support the development of an area can be funded … by owners or developers of land”.
It was perfectly clear to those of us who debated those provisions during the passage of the Planning Act 2008 what the previous Government were looking at. For instance, if you build a large housing estate, that is going to involve the building of roads. It may well involve the provision of a new school, and a number of other capital infrastructure measures that are necessary to support the community that will be enlarged by the main application when it is allowed and when it takes place.
It is quite clear from what my noble friend has said that we are moving a long way from that. It has caused a good deal of concern among those who are anxious to champion the promotion of more infrastructure. The British Property Federation, referring to what he called a “raft of new amendments”, has said:
“The upgrading of the country’s infrastructure is vital for our future economic success and the contribution from CIL will be a critical part of that at a time when public funding is heavily constrained”.
The letter that I had from my noble friend Lady Hanham, dated 7 October—just a few days ago—makes it perfectly clear that, under the new arrangements proposed, the CIL is not limited to providing infrastructure. Having set out the proposals, she writes:
“We have concluded that spending at the local authority level must continue to be directed to the provision of infrastructure”.
I will press a little further on that in a moment. She continues:
“However, at the neighbourhood and community level the demands and concerns amongst local people that new development creates are more diverse, direct and localised”.
She then refers to the amendments which my noble friend has just spoken to. She goes on:
“We believe this change is vital if we are to genuinely change attitudes to new development and secure sustainable growth”.
Changing attitudes is quite a long way from building capital infrastructure. It has changed the nature of what the CIL was originally introduced to achieve.
It may be that, in the new planning regime, it will be desirable to provide means whereby local communities can feel that they are getting some benefit. This may not take the form of schools or roads but may be some other form of benefit that will compensate them for the impact of the development to which they might otherwise have been opposed. I have always quoted the example of the French electricity system; if you want to build a new power station, in order to reconcile the local population to having to put up with that—after all it involves substantial interference in their normal lives, not only during the building but during the operation—they get electricity at a cheaper rate. That seems to me to be a very sensible thing to do. I am therefore not opposed to the idea that we need to provide something that will secure the consent, as my noble friend was saying, of the local community to the development that is being imposed upon them and to which they might have been quite vigorously opposed.
However, one point that I want to emphasise is still unclear, and I would welcome it if my noble friend could clarify this when he winds up. If councils in spending the CIL are confined to providing infrastructure, which is what I understood him to say and what my noble friend Lady Hanham said in her letter, spending at the local authority level must continue to be directed to the provision of infrastructure. That is fine, but then we are faced with the proposition that a “meaningful proportion” of the proceeds of the CIL, which is charged on the developer, can be devolved to the local parish or community, which, as I understand it, is free to spend it on anything it thinks would improve the condition of the community. What is a “meaningful proportion”? As I understand it, a local authority will be perfectly free to say, “We don’t think any more roads are necessary or that we need to build a new school, or anything like that, and therefore 100 per cent of the CIL for this particular development is going to be devolved to the local parish or community to spend as it wishes”.
I made the point previously in Committee that the CIL must not simply be used as a way of filling the gaps in local authority spending. It is not intended for that. It is intended to balance the provision of a planning application for a new structure of some sort with the infrastructure that is necessary for it. I have of course accepted that that must include the operation, maintenance and upkeep of the infrastructure, a matter that we discussed at length in Committee, but is there no limit to what the devolved body, parish, community or whatever it is can spend of the “meaningful proportion” that is delegated to it?
There is a good deal of concern about this among various bodies. The County Surveyors’ Society, which I understand is now called ADEPT, the British Chambers of Commerce, the British Property Federation, the Chartered Institution of Highways and Transportation and the local government tactical advisers group have all expressed the concern that this seems to be slipping away to the point at which it is simply providing inducements—I will not use the word “bribes”—to persuade a local community that it would be to its advantage to cease to oppose a planning application. I hope that my noble friend will be able to give me some reassurance that it is not intended to go as far as that, but there will have to be some specific measures.
I come to my two amendments, on which my noble friend has given his views. Amendment 204H would make a minor change to replace “may” with “must”, and would compel planning authorities to outline the infrastructure that they actually intend to support through CIL. If local authorities are going to have to confine their spending of CIL to infrastructure, I see no reason why they should not be instructed by the Act to outline the infrastructure they intend to support. Amendment 204J is also intended to link the evidence base used to justify an area’s CIL charging schedule to the levy’s actual expenditure. As I think my noble friend recognised, these are both intended to add to the transparency of the application of what CIL is: a tax on development. So far as local authorities are concerned, I see no reason why both these amendments should not be applied to them.
That leaves the “meaningful proportion” that is to be spent by other people. At the moment I feel that it is wide open for them to decide more or less what they would like to spend it on. I cannot believe that that is a wise way to spend the proceeds of what is in fact a tax. I hope that my noble friend can reassure me on this, but I have to tell him that there is a good deal of apprehension out there. He has told me that he has come under a lot of pressure from local authority and other community interests, which are saying that this sort of thing is necessary in order to reconcile people to new development in their area. But there must be some sort of limit on it, and I am not sure that the government amendments moved by my noble friend and the explanation set out in my noble friend’s letter of 7 October give that reassurance. I hope that my noble friend will be able to allay my anxieties.
Lord Shipley
My Lords, I agree with my noble friend Lord Jenkin on the need to be clearer on the gain to neighbourhoods and parishes from the community infrastructure levy. Whether that is done in the Bill, through guidance or by other means, it will be extremely important that local people in neighbourhood areas where development is taking place understand what the community gain might be as a consequence of that development.
My point is a parallel issue which relates to the duty to co-operate. It is implicit in the Bill that there is a duty to co-operate between councils on the community infrastructure levy. However, I am not certain that it is sufficiently explicit and in urban areas where there are boundaries between different local authorities, a development that could take place wholly in one council area might well impact upon the infrastructure and the well-being of one or more neighbouring council areas. To what extent should we make it explicit that there should be a duty to co-operate between local authorities on the community infrastructure levy where a development is taking place very close to a boundary? That will need to be clear, certainly by Third Reading, otherwise there could be a great deal of strain between local authorities over what a duty to co-operate over sustainable development actually means and how it is delivered on the ground.
Lord McKenzie of Luton
My Lords, we share some of the concerns expressed by the noble Lord, Lord Jenkin, and have some sympathy with his amendments. When we discussed this issue at Committee I thought we had established that, as previously structured, CIL gave quite a lot of scope for supporting local communities beyond what one might think of as the very strict interpretation of infrastructure, but this seems to be taking us a step further. The letter that I had from the noble Baroness was, I think, generally circulated and says:
“We are proposing amendments that would allow local authorities and parish and community councils to use this proportion of the funds to support development by providing infrastructure or addressing any other matter necessary to address the demands that new development places on the local area”.
This is potentially a very wide extension of what it was anticipated that CIL would be used for.
The noble Lord, Lord Shipley, raises a different point about what happens with adjoining authorities and how that fits together with the duty to co-operate. We also need to consider how this sort of formulation fits together with Clause 130, which we are going to discuss in due course. The noble Lord, Lord Jenkin, said that he would not go so far as to call this a bribe, but it is potentially a substantial inducement to an area to accept development and we need to reflect on that as well. Having expressed concerns about the possible dilution of funding for infrastructure, which is needed up and down our country, I pose the question that we raised when we covered it in Committee—my apologies to the Minister if he covered it—about the prospect of CIL being used for affordable housing. I am not sure where that discussion has gone, but there have been some real questions asked about the extension of CIL which takes it beyond its original intent. The new intent is not necessarily bad, as the noble Lord, Lord Jenkin, said, but we need to reflect on what it means for the funding that is available for infrastructure in an area.
Earl Attlee
My Lords, I thank all noble Lords who have contributed to this short debate. Responding first to my noble friend Lord Jenkin, yes, we have moved a long way with the community infrastructure levy. My noble friend talked about Section 205 and the restrictions on the application of CIL. He is accurate in terms of history but he will recognise the need to develop good policies as time goes on. He kindly organised a meeting between me, him and the Institution of Civil Engineers, which I found useful.
My noble friend referred to local needs and to changing attitudes. We need to change attitudes because, quite often, the knee-jerk reaction can often be “no”, and that is not helpful for development. Local authorities are best placed to determine the infrastructure need in terms of logistics and so on, but local communities are best placed to determine their much more local needs.
My noble friend asked what a meaningful proportion of CIL is. We are consulting on the matter and have invited views on the question. We have not taken a view on this and will carefully consider the representations made during the consultation period before determining the proportion of funds that should be directed to neighbourhoods that host new development. However, we are clear that the level must be sufficient to give neighbourhoods a meaningful contribution to meeting the impacts of development in their area. This needs to be balanced with the central purpose of the levy, which is to ensure that some or all of the costs of supporting new development are met by the developers.
My noble friend also asked whether there was any limit on how a meaningful proportion must be used. Our changes allow for a proportion of CIL receipts to support development of parish and neighbourhood areas by providing either infrastructure or anything else that is concerned with meeting the demands that the development places on the area. However, the spending must support development of the area. It may not be used to fill gaps in local authority resources. I am happy to give that reassurance.
We are making this change because new development creates local demands that are concerned with matters other than infrastructure. For instance, the provision of new dwellings will increase the population of an area and new or extended office premises will increase the number of people working in an area. Increased numbers of residents or people coming into an area to work will create demands on services in the area, including transport, training, education, health, social and other services, community assets and utilities.
My noble friend Lord Shipley asked about cross-boundary needs in urban areas. It is a good question but I shall have to write to him before Third Reading.
The noble Lord, Lord McKenzie, asked about affordable housing. When setting a CIL charge a local authority must have regard to the viability of development in its area. In considering this viability, the local authority must take into account requirements normally provided for through Section 106—for instance, affordable housing—that will arise from the development. My noble friend will recall that we have tightened up on the use of Section 106.
The statutory framework for CIL provides for protection for affordable housing. This was, no doubt, in the minds of the previous Administration when they implemented the levy. However, we acknowledge that the guidance does not set this out as clearly and robustly as it could. We will revisit the guidance to make it clear that the imposition of a levy must not harm the delivery of affordable housing or other local policies set out in the local plan. I have asked my officials to work with the National Housing Federation to develop appropriate changes and we will reflect on the outcome in updated guidance from the Secretary of State. We are consulting on whether to allow CIL receipts to be used to fund affordable housing. We have asked for views on whether this approach could support local delivery of affordable housing by improving outcomes and offering better value for money. We will determine whether to make the change once we have received and considered the responses.
Inspiration has arrived to answer the question of my noble friend Lord Shipley, who asked to what extent authorities should be required to co-operate in using CIL receipts. This legislation allows authorities to pool resources to deliver infrastructure that supports their areas. We have the power to make statutory guidance about the duty to co-operate, and this could cover matters such as CIL.
The noble Lord, Lord McKenzie of Luton, asked about how CIL money could be used to perhaps bribe communities—
Lord McKenzie of Luton
I do not believe I said that. I was referring to how it was not described by the noble Lord, Lord Jenkin, to touch upon the fact that if these are inducements for communities to accept development, we need to reflect on the issues we are going to discuss in relation to Clause 130. I was not arguing in favour of bribing communities.
Earl Attlee
My Lords, I am struggling to read my inspiration here. However, I intend to make a substantive speech in our debate on Clause 130, which I think the House will find very helpful.
Earl Attlee
My Lords, I will consider any input that is brought to me or other Ministers.
Earl Attlee
“(za) in subsection (1) (levy to be used to fund infrastructure, or pay compensation under section 219)—(i) for “section” substitute “sections 216A(1), 216B(2) and”, and(ii) for “funding infrastructure” substitute “supporting development by funding the provision, improvement, replacement, operation or maintenance of infrastructure”,(zb) in subsection (2) (meaning of “infrastructure” in subsection (1)) for “subsection (1)” substitute “this section (except subsection (3)) and sections 216A(2) and 216B(2)”,(zc) in subsection (4)(a) (power to specify facilities that are to be, or not to be, funded) for “that are to be, or not to” substitute “whose provision, improvement or replacement may or is to be, or may not”,”
“(ab) things within section 216A(2)(b) that may or are to be, or may not be, funded by CIL passed to a person in discharge of a duty under section 216A(1),(ac) things within section 216B(2)(b) that may or are to be, or may not be, funded by CIL to which provision under section 216B(2) relates,”,(aa) in subsection (4)(b) (power to specify criteria for determining areas in relation to which infrastructure may be funded) for “in relation to which infrastructure may be funded” substitute “that may benefit from funding”, (ab) in subsection (5)(a) (power to require authorities to list projects that are to be, or may be, funded) for “projects that are” substitute “what is”,(ac) in subsection (5)(c) (power to make provision about funding projects not on list) for “projects” substitute “anything”,”
Earl Attlee
(c) in subsection (6)(c) (regulations may permit funding of administrative expenses in connection with infrastructure) after “infrastructure” insert “or anything within section 216A(2)(b) or 216B(2)(b)”, and(d) in subsection (6)(e) (regulations may make provision for the use of funding where the projects to be funded no longer require funding)—(i) for “the projects” substitute “anything”, and(ii) for “require” substitute “requires”.”
Earl Attlee
(a) the provision, improvement, replacement, operation or maintenance of infrastructure, or(b) anything else that is concerned with addressing demands that development places on an area.”
The Chairman of Committees (Lord Brabazon of Tara)
My Lords, I should point out that if this amendment is agreed to, I cannot call Amendment 204J.
Earl Attlee
“216B Use of CIL in an area to which section 216A(1) duty does not relate
(1) Subsection (2) applies where—
(a) there is an area to which a particular duty under section 216A(1) relates, and(b) there is also an area to which that duty does not relate (“the uncovered area”). (2) CIL regulations may provide that the charging authority that charges CIL received in respect of development of land in the uncovered area may apply the CIL, or cause it to be applied, to—
(a) support development by funding the provision, improvement, replacement, operation or maintenance of infrastructure, or(b) support development of the uncovered area, or of any part of that area, by funding anything else that is concerned with addressing demands that development places on an area.(3) Provision under subsection (2) may relate to the whole, or part only, of the uncovered area.
(4) Provision under subsection (2) may relate—
(a) to all CIL (if any) received in respect of the area to which the provision relates, or(b) such part of that CIL as is specified in, or determined under or in accordance with, CIL regulations.””
“( ) Where a local authority has a scheme or process of neighbourhood engagement and localised planning that promotes and enables the involvement of the residents and businesses of its area, within their local neighbourhoods, and that process has been agreed by the Secretary of State to—
(a) meet the objectives set out in section 61F, 5(a)(i) and (ii) of the Town and Country Planning Act 1990 as amended by Schedule 9 to this Act, and(b) constitute a sufficient process of local engagement to enable the making of neighbourhood development orders and neighbourhood plans on the basis of informed involvement and consent,that local authority may make such orders or plans on behalf of local residents without the establishment of neighbourhood forums or the holding of a referendum.”
Lord True
My Lords, in moving this amendment I should remind the House that I lead a London borough council, and one that under successive administrations has been and is a localist council. We are actually slightly unusual in having a regional plan that is going to stay in place, and also an adopted core strategy. We are now very actively involved with local communities in trying to create what we call “village plans”, but for the sake of this argument I will call “neighbourhood plans”. I do not think we need to be told by a government Bill how to go about this. I hope that does not sound too vainglorious.
I am a strong supporter of giving people the opportunity, and where opportunity is not given the right and the power, to directly influence decisions affecting their lives. Nothing in the amendment before the House detracts from that. My noble friend has been an absolutely admirable listener on this Bill. The Government have made major changes, on shadow mayors, EU fines, referendums, the right to challenge and on assets of community value. I do not ask for sweeping change on neighbourhood planning. I support the Government’s wish to have local involvement in the planning system. Most other council leaders also support that and many already practise it. In many of our views, planning led from the bottom up is essential. My amendment does nothing to stop the Government’s objective there.
I also recognise the Government’s wish to have back-stop—as I think it should be—regulation to enable local public engagement with planning where that is not happening. That may be necessary where communities are systematically excluded from having a voice in planning. Of course they should have a voice, and that inspiration behind the Bill is right. My amendment does nothing to stop that. The amendment proposes a system that allows the Secretary of State to permit local variety and discretion—that is, more localism and, I would argue, more trust in the best-performing local authorities.
On neighbourhood planning so far in the Bill, the Government have set down one model in the rather compendious schedules. Surely councils that are engaged in local neighbourhood planning can be approved, indeed encouraged, to go on doing so in their own way. My amendment also seeks to allow that, if other local authorities have a scheme for neighbourhood planning to do the job in ways that do not coincide in every dot and comma with what is in these labyrinthine schedules, they can be given the go-ahead and frankly be spared the constant potential challenge to react to a parallel national regulatory model at the same time. We have to go on from where we are now and from where we started. With a more permissive approach, we might even learn something from the differing approaches of differing councils and communities, with different sizes and places, run by people often with different views. A more permissive approach goes with the spirit of the Bill and in no way against it.
If there is in place a solid, reputable process in which hundreds, perhaps thousands, of local people have become engaged, why in principle should that local authority and those local communities be caught up with having to consider or fend off demands to set up a neighbourhood forum from what may be groups of as few as 21 people? As we argued in Committee, these may sometimes even be malcontents who have lost out in community debates, perhaps people who even court rejection by the council as a device to gain publicity. That is not necessary in the ideal world. I fear we may confuse the means of how to do this with the ends, on which I sense there is wide agreement in the House.
I set out in Committee a number of detailed aspects in the Bill’s area planning procedures that I do not understand. In particular, I do not understand why, under new Section 61G(2) that Schedule 9 to the Bill will insert into the 1990 Act, a local authority can designate neighbourhood areas only where a would-be forum asks for one. Why on earth can a council, informed by its knowledge of local events and the surveys it has done with local people, not go ahead and designate its own neighbourhood areas? I do not see why urban neighbourhood planning has to be done through forums that, by definition, are made up of the few rather than the many in any given area. I have argued in various places that the default position should be that everyone in an area is part of a neighbourhood planning process. The best body for facilitating that is the elected authority, of whatever size or nature, if it operates well.
I have not tabled again the amendments that I tabled in Committee that dealt with a number of those issues. I hope that my noble friend the Minister may even now be able to reflect on them and clarify some of those detailed points as we move towards Third Reading. They are embraced within the case for allowing different approaches made in the amendment.
Lord Greaves
My Lords, I enthusiastically support the amendment moved by the noble Lord, Lord True. I do not want to repeat everything he said about the common sense of building on existing successful systems and structures rather than trying either to set up a separate parallel structure, as the noble Lord suggested may well happen, or alternatively closing down something that exists or trying to transform it into a template imposed from on high.
I have been involved in the idea of getting people in communities to take a much greater involvement in local affairs generally, and in planning specifically, for about 40 years now. Forty years ago, when some of us started to talk like this, we met total opposition, and indeed hostility, from almost everybody else in British politics outside the Liberal Party at that time. Opinion has so changed that we have won the argument over those years. The last Labour Government talked about double devolution—central government devolving powers, and perhaps even resources, to local authorities and the local authorities devolving them to “communities”. It never actually happened very much but there was a lot of talk about it.
In the present Government we have had the idea of the big society coming from the Conservatives and, separately really but perhaps as part of that—I have never really been quite sure—the idea of neighbourhood planning, which is a very strong part of this Bill. Always, mechanisms are difficult because there are always the questions: “What is a community?” and “Who are the big society?”. Many of us have argued for a long time that, on a democratic basis, the default position is: “The many, not the few”, as the noble Lord, Lord True, said. A neighbourhood is a clearly definable entity, unlike a community which is much more difficult to define as you may have several communities in a neighbourhood. In a neighbourhood you start off from the basis that everybody who lives there is a member of that neighbourhood and you build it from the bottom upwards. Of course, some do not want to take part in it but that is up to them.
As regards who in the neighbourhood area takes part, lots of councils of pretty well all dispositions have been working hard on this idea in their patches. In a truly localist way, they are approaching the matter in different ways that are appropriate to their area, the ideas of the people who live in that area and, indeed, the people on the local authority, so the systems that exist in many parts of the country are different. There are obviously similarities but, basically, each area has built its own system according to its own circumstances: the noble Lord waxes lyrical about Richmond; my noble friend Lord Tope could wax equally lyrical about Sutton; and I could go on for ever about attempts to do all this in Pendle, some of which have been very successful. Many others could make similar remarks, but the systems are all different.
However, the real problem arises when central government comes along and, in order to do something which is very worth while, imposes a national template on very different systems. Where there is nothing at all, that is a good way to tackle this matter as at least you get people going. However, where measures exist on the ground, it is counterproductive and, indeed, ridiculous to force people to spend a lot of time either closing something down in order to start something else up or, indeed, trying to adjust and adapt to the new rules and regulations coming from on high. Therefore, I very much support this amendment. If nothing else, I hope that the Government will be rather more flexible in carrying out this measure than seems to be the case at the moment.
Lord Newton of Braintree
My Lords, I had hoped to be here the other night when I thought that we would reach my noble friend’s amendment. I was sorry that I was not able to be present, but then the amendment was not reached. We have now reached it and I am per contra glad to be here to add my support for what my noble friend has proposed. However, I am very conscious that the word on the street is that everybody wants to see the back of this wretched Bill today, even though it is less wretched than it was before my noble friend started amending it, and I do not want to delay the House. Indeed, I may shortly put myself beyond temptation in order to avoid doing so later.
Meanwhile, the House is already aware that I think this Bill is misnamed. Certainly, as it started, it was not a Localism Bill but a centralism Bill because “localism” meant what the Secretary of State said that it meant, not what local authorities decided that it meant. This debate is essentially on that very point.
I do not pretend to wish to defend the detail of the amendment, any more than my noble friend did. However, its fundamental thrust is that, where satisfactory local arrangements to achieve the Government’s objective exist, the Government should not stamp on them and insist that they are replaced with a template—I repeat the word used by the noble Lord, Lord Greaves—imposed from the centre. I cannot see any sense in that. It is the opposite of localism and common sense, and the Government need to look at it again.
Lord Lucas
My Lords, I entirely support my noble friend’s amendment for two principal reasons. One is that local authorities can game the system anyway—all they do is get their councillors to get a group of 20 members round locally and kick off the process that is in the Bill. That will be an expensive and tiresome way of doing it and will result in councils being divided up on ward boundaries, which is not perhaps the right way of doing it because wards have been created for equality of size and electoral convenience rather than to encompass natural communities.
My other reason for supporting the amendment is that it is the best hope—despite all the other hopes that I shall express later in respect of my amendments—of getting the Bill to work in cities. As it stands, the Bill has very little to offer a city community. What a city wants, by and large, is the local application of the policies of its council rather than a hand in planning, where in a built-out environment there is very little to offer. Co-operation and working with the council to establish the area that is a neighbourhood will be a great deal easier if that comes from the council rather than a community that does not exist and has no momentum or reason to create itself. The whole process of creating neighbourhoods will happen much better in cities when guided by councils. If we consider not just relatively easy parts, such as Lavender Hill, but areas where communities are at loggerheads, how the system set out in the Bill will work when it will merely become a vehicle for neighbourhood power struggles rather than anything really creative, is beyond me. The department needs to get a grip on the question of cities, particularly inner-cities, and how we are to bring the benefits of the Bill to them.
My noble friend’s amendment seems to address this most constructively, and I hope that the department, even at this stage, will start to pay some attention to that. We all had a wake-up in our holidays and reappeared here when we suddenly discovered that communities in cities were not as strong as we might have liked to hope. This is the “Department for Communities” and it ought to be doing something, but it is not, I am sad to say.
Lord McKenzie of Luton
My Lords, I got more supportive of the amendment the longer the debate went on. I was almost there when the noble Lord, Lord True, had finished his introduction. Let me say, first, that a world in which the noble Lord, Lord Newton, is beyond temptation is not something that I wish to contemplate.
We accept entirely the thrust of the proposition of the noble Lord, Lord True. If you have robust engagement with communities that works and delivers, why tear that up and replace it with something else? However, there is a conundrum. What will the process be by which we say that not only is the existing process sufficient but we have to withdraw from parish councils the other opportunities that are provided in the Bill in respect of the creation of neighbourhood forums? One might read the proposition in the noble Lord’s amendment to say that that has to be decided between local authorities and the Secretary of State. Of course, that would leave out the voices of the community.
I agree with what the amendment is trying to achieve, but—perhaps the noble Lord has simply truncated his presentation and has thought this through—how you decide whether what is working locally is sufficient such that you will not apply those other provisions in the Bill is a question that needs to be answered. One could not disagree with the proposition that, if you have good engagement at the moment in a variety of different circumstances across the country—particularly important is the issue of urban communities, as the noble Lord, Lord Lucas, said—that should be preserved. How you do it and how you switch off the other mechanisms is key.
Baroness Hanham
My Lords, once again we have had an interesting debate on this part of the Bill and I am grateful to those who have taken part. I am also grateful to the noble Lord, Lord McKenzie, for putting his finger on one of the conundrums. One would have to decide how you work out how a local authority is doing it better than anyone else. That is perhaps something that will have to be decided anyway in the course of the process that has been laid out.
This amendment would allow a local authority to make a neighbourhood plan or order without a referendum being held or a neighbourhood forum being established. The basis on which this decision would be made is whether the local authority has an adequate process of neighbourhood engagement—I am not quite sure that that is how my noble friend put it, but I think that that is what it means—to enable the formation of neighbourhood plans. It is, as he suggested, a permissive approach. Whether this process is adequate will be determined, as the noble Lord, Lord McKenzie, has said, by the Secretary of State—which is not a terribly localist aspiration.
The effect of the amendment would be to give a very significant degree of power to the Secretary of State. I wonder whether that is entirely what is wanted. The Secretary of State would be allowed to control the neighbourhood planning process and bypass the referendum stage, because he would have to agree whether a local council is well advanced in what it was doing. I fully appreciate, however, the noble Lord’s concerns about the delay in holding a referendum on a neighbourhood plan or the way that it can be demonstrably shown that the local planning authority and the community at large are content for the neighbourhood plan or order to come into force.
Lord True
My Lords, of course I am extremely grateful for what my noble friend has said. As I have said in my opening remarks, she has been an outstanding listener on this Bill and the whole House recognises that and is very grateful. Of course, I accept her assurance as being absolutely something that one can rely on.
I do not wish to trouble the scorers any longer: On this Bill I have troubled them almost as much as my noble friend Lord Newton of Braintree. I am grateful for the support of all noble Lords who spoke. There is a principle of concern here. The answer in brief to the noble Lord, Lord McKenzie, who asked how we would get out of this problem, is “What a pity we got into it”. Localism was going along very happily in many parts of the country until the Government came along, plonked down a Bill and said: “This is how you do localism, boys and girls”. I drafted my amendment to try to give content and relief to the Secretary of State, who seemed to want to designate a system to allow him at least to take a view on whether what was going on was satisfactory.
I would rather have an alternative to a back-stop power. I have always thought that a problem in many sections of the Bill is that a back-stop piece of legislation that should have guaranteed certain rights has become potentially all-embracing. I am not trying to push the Secretary of State into anything: it is a way of trying to find a solution. The Secretary of State has already come into the question.
Without further ado, I again thank my noble friend for what she said, thank other noble Lords who spoke and express the hope that we can find a solution to what other noble Lords have agreed is a real conundrum. I beg leave to withdraw the amendment.
Lord Greaves
“Community governance review in area of a neighbourhood forum
In the Local Government and Public Involvement in Health Act 2007, after section 80 insert—“80A Community governance request by a neighbourhood forum
(1) This section applies to a neighbourhood area where a neighbourhood forum makes a request for a parish council to be created.
(2) A request may be made to create a new parish council for—
(a) the area of the neighbourhood area, or(b) the area of the neighbourhood area together with the area of an adjacent parish council.(3) A request under subsection (2)(a) must be made jointly by the neighbourhood forum and the parish council.
(4) Following a request under this section the principal council must commence a community governance review relating to the area of the request within three months of receipt of the request.
(5) A community governance review under this section shall have a presumption that a new parish will be created.
(6) The provisions of this apply only insofar as they do not prevent action being taken on the request made under this section.
(7) In this section “neighbourhood area” and “neighbourhood forum” have the meanings given by section 61F of the Town and Country Planning Act 1990.””
Lord Greaves
My Lords, it has been drawn to my attention that there is a typo in my proposed new Section 80A(3). It refers to subsection (2)(a) instead of (2)(b). The misprint will be obvious to anybody reading it. I am sure that it was my fingers that got it wrong and not the Public Bill Office.
The amendment tackles the problem of the democratic deficit and creates the opportunity for more democratic legitimacy in unparished areas where neighbourhood areas and neighbourhood forums may be set up. It does this by amending the Town and Country Planning Act 1990, covered by Schedule 9 to this Bill, which then affects the sections of the Local Government and Public Involvement in Health Act 2007 that cover community governance reviews. It is slightly complicated, but I think that what is set out is clear.
I remind noble Lords that in parished areas, the body that will be responsible for neighbourhood planning—for the creation of a neighbourhood plan or of neighbourhood development orders—is the parish council. In unparished areas, the local planning authority can, on request, designate a neighbourhood area; and no fewer than 21 people in that area can be designated as a neighbourhood forum. Clearly in that situation there is a democratic deficit in the formation and accountability of the neighbourhood forum compared with parished areas where there is an elected local authority—the parish council—responsible for carrying out the work.
This is a modest proposal. It does not force anything on anybody. It seeks to give a neighbourhood forum—where it exists and is recognised by the local planning authority for the purposes of neighbourhood planning, and where it believes that it would be advantageous to convert into an elected parish council—an easier and quicker means of doing that than exists at the moment. The Government recognise the problem. After the summer the Minister wrote a number of letters to various Members of the House setting out the views of the Government on this. I want to quote from the letter to my noble friend Lord Shipley, because when I was digging this out I could not find the letter to me, which I think includes the same stuff. My noble friend Lord Shipley apologises for not being present at this debate on a topic which he has raised repeatedly. He has had to go to another gathering in order to make a speech.
The Minister wrote to my noble friend as follows:
“In these neighbourhood areas, we have sought to recognise the democratic legitimacy of parish councils by ensuring that, within an area that includes any part of a parished area, only the parish council has a mandate to undertake a neighbourhood plan. We would therefore encourage communities to use the opportunity of preparing a neighbourhood plan to consider whether they wanted to apply to become a parish, town or community council—with the extra powers and responsibilities that brings”.
Community councils, of course, are parish councils in Wales. The letter continues:
“However, we do not want to force communities to become parish or community councils before they undertake neighbourhood planning—hence our neighbourhood forum provisions”.
The problem with the way that the Government want to go ahead on this is that where a neighbourhood forum and a neighbourhood wish to consider setting up a parish council, the process under a community governance review—under the Local Government and Public Involvement in Health Act 2007—is fairly cumbersome. More to the point, the principal local authority—the district or unitary council responsible for the community governance review—can put a stop to it if it wants to do so. In the best of all worlds, it will not be carrying out local community governance reviews very frequently. It may say, “Well, we have just done one and we are not going to do another for five years”, or something like that, or it may, as has happened with a number of local authorities, simply be hostile to the idea.
This amendment puts forward a means by which a neighbourhood forum can require a community governance review covering just its area, which has to take place fairly quickly. It also provides for a presumption that, unless there are some very good reasons, it will be approved. That is the purpose of this amendment. What I would really like to come out of this debate today is for the Government to tell us how they intend to tackle this problem, which they have recognised, and how they will make sure that there are more community governance reviews for more parish and town councils, particularly in urban areas where they do not exist at the moment, and where local people, through the neighbourhood forum, actually want them. They should not be compulsory by any means, but there should be a means by which a lot more could be created. I beg to move.
The Earl of Lytton
My Lords, I support the principle behind the amendment of the noble Lord, Lord Greaves. I cannot speak to the wording, even less to the typos I am afraid, but noble Lords will of course know of my interest in parish and town councils. At present a parish council is the only community-based organisation that combines a democratic base, truly local roots and a statutory status. So it has a special cachet from that point of view, and indeed many communities aspire to that status. Crucially it is independent of other local government bodies in having its own power to precept, and that of course gives it a financial independence as well.
The noble Lord, Lord Greaves, has touched on this, and it is certainly no reflection on the borough—which I think has an exemplary record towards communities in its area—of the noble Lord, Lord True, who I see is no longer in his place, but some local authorities have been obstructive to the formation of new parish and town councils, and I do not think that there is any point in overlooking that. That has happened on occasions despite an authentic and well-argued local desire having been put forward.
I would put one caveat in here and that is that the geographical template for new parishes in unparished areas needs to be a reasonably good fit. I am concerned not so much about the precise geography as about the cohesion and the identity which is to some extent reflected, as it must be, in geography. Size is clearly not the main issue because, up and down the country, we have very large and very small parish and town councils. One feature that they benefit from is that they serve the needs of the community and have grown up to reflect that community, whether large or small, over very many years.
I welcome the sentiment behind this amendment, which I see as a way of effectively creating, to some extent, the possibility of a fast-track route to parish and town council creation. It enables neighbourhood forums that wish to to migrate to the statutory basis where they can join and become one of the family of democratic structures that form the first tier of local government. I welcome the principle behind this amendment and I hope that the Minister will be able to give a positive response.
Lord Lucas
My Lords, I have an amendment which covers very much this area—Amendment 210AC—which I do not now have to speak to, I am delighted to say. I agree with everything that has been said. I will add just one rider to it. It seems to me that where a community has got itself together and has gone to the lengths of putting together a neighbourhood plan, dealing with the criticisms of it and then winning a referendum, that should count for something in the arguments with its local authority about whether it should be a parish. At the moment it does not, and I think that it should.
Lord Newton of Braintree
My Lords, I cannot resist the temptation, so clearly I am going to have to go shortly. Meanwhile, I have been tempted. Perhaps I may ask a possibly elementary and perhaps even naïve question. How does all this relate to the fact that, in my understanding, and certainly in my neck of the woods, the concept of parish is basically an ecclesiastical one? Indeed I am slightly surprised to find that the Bishops’ Bench is empty during this debate. Is the parish essentially an ecclesiastical concept? Whether it is or is not, this clearly raises the possibility of parishes being extended in a rather curious way, by a proposition coming from an adjacent district—albeit requiring the consent of the parish council—which creates a parish council that then, by definition, extends into more than one parish. I find this very curious. If we are going down this path, which I do not object to in principle, at the very least we need some different terminology, because it would not be a parish council as normally understood in my kind of area.
My second point—noble Lords will be glad to hear that it is my last one—is that subsection (4) states that there must be a community governance review if there is a request for one, and that if there is a review, there must be a presumption that a new parish will be created. Why? Why cannot a review come to the conclusion that the world is all right as it is and that no change is needed? Whatever the merits of the intended fundamental thrust of this amendment, the amendment needs a lot of looking at.
Lord Brooke of Sutton Mandeville
My Lords, I add the briefest of footnotes to the remarks of my noble friend Lord Newton of Braintree, if only to make the point that Essex and Wiltshire can be different. In fact I am not sure whether or not I am going to illuminate the matter that he has just raised. I live in the ecclesiastical parish of Tisbury and, simultaneously, in the local government parish of Sutton Mandeville, and on the principle of “render unto Caesar”, I took my title from the latter rather than the former. It is possible to live in several parishes at the same time.
Lord Beecham
My Lords, I am pleased to see that the noble Lord, Lord Newton, takes the same attitude to temptation as St Augustine did to chastity. There is another line about temptation that we might want to consider:
“The last temptation is the greatest treason:
To do the right deed for the wrong reason”.
It seems that this amendment is in fact the other way round: it is doing the wrong thing for the right reason, potentially.
I noticed the typing error that the noble Lord, Lord Greaves, referred to in subsection (2)(a), but I think there may be another typographical error, or perhaps an error in drafting. Subsection (5) says:
“A community governance review … shall have a presumption that a new parish will be created”—
and I will come back to that point. Subsection (6) goes on to say:
“The provisions of this apply only insofar as they do not prevent action being taken on the request made under this section”.
It is not clear to me what that means. Does it mean the provisions of the previous subsection, or does it mean the provisions of the whole clause? I am at a loss to understand what that implies.
However, I agree very strongly with the noble Lord, Lord Newton, that there is no case for there to be a presumption that a new parish should be created on the simple fact that a request has been made by a neighbourhood forum that might constitute 21 people, of whom a majority of 11 against 10 would therefore trigger not only the whole process but a presumption as to its outcome. It seems a ridiculous proposition given that we are presumably talking about areas of several hundred people, if not thousands of people, possibly, in an area the size of an urban ward or a significant rural community.
The clause also requires the commencement of a review within three months. That might be all right if there was to be one review, but supposing there was a rash of applications from these neighbourhood forums, is a local authority obliged to commence reviews on all of them in that timescale? It does not seem at all realistic. There certainly should be a method of facilitating a legitimate demand—or a widespread demand, let us not prejudge the issue—for the creation of parish councils or town councils. They have a perfectly proper place in our system of local government and that should be facilitated, but this clause really goes much too far in that direction.
Nor is it the case that, once created, all of these bodies are trouble-free. Your Lordships will be aware, from the debate about the standards boards and the need for codes, that most of the complaints that arose under the existing procedure actually came from parish councils. The noble Lord, Lord Shipley, who is not in his place at the moment, will no doubt have told your Lordships of the case in Newcastle where a council inherited three parishes on local government reorganisation, and one inner-city area opted for a parish council. That particular grouping did not seem to perform very effectively, to the extent that Councillor Shipley’s colleagues in his political group decided that they would go in and in effect take it over, which they did—by perfectly legitimate democratic means, I should say. These places are not without their problems, although they can certainly contribute to an enriched local democracy.
However, there is one other issue in which, again, the drafting is perhaps defective—certainly it raises an issue—and that is subsection (2), which says:
“A request may be made to create a new parish council for … the area of the neighbourhood area together with the area of an adjacent parish council”.
Is it not conceivable that there may be more than one existing parish council? Certainly there are contiguous parish councils in my authority; there will be in other authorities, particularly urban authorities, I suspect. You may well find a community between the two wishing to align with both rather than one, and creating an entirely new structure. For a variety of reasons, I suspect I may find myself—unusually—agreeing with the Minister when she replies and, I hope, says that she may want to take this away and look at it, but that she cannot agree the amendment as it stands. Certainly that would be my position.
The Earl of Lytton
Before the noble Lord sits down, perhaps I may ask him if he would comment on the fact that although it is true that parish and town councils provide a disproportionate amount of the subject matter for standards committees, it is also true that because there is no other body of a sort which has recourse to a committee dealing with standards, there is no other basis to judge whether that statistic is large or small, or whether it is characteristic of dealing with community affairs. What I am trying to get at is that it is perhaps not a specific criticism of parish councils as a construct.
Baroness Hanham
My Lords, I am going to leap in because I think, with the greatest respect, that the noble Earl is out of order. On Report, we normally get the Minister to wind up after the Opposition. But I hear what he says.
The amendment has its faults, and the noble Lord, Lord Greaves, has already recognised that. But having said that, we are not unhappy about the principle of neighbourhood forums investigating opportunities to create town or parish councils for their area, and we accept that that gives greater democratic legitimacy. The noble Lord is also correct that there were a great many standards inquiries on parishes, but we also accept that they have responsibilities, duties, income and powers that would bring benefit to these neighbourhood proposals.
This is why we have already committed, in the Open Public Services White Paper, to look and see how to make it easier for neighbourhood forums and others to have a parish or town council for their area. In doing so we are looking at streamlining the community governance review process, to which the noble Lord, Lord Greaves, referred in rather uncomplimentary terms, but we need to strike the right balance so that neighbourhood forums or communities that want a parish council can get one relatively quickly. The noble Lord, Lord Greaves, was correct that this is not a speedy process at the moment, but if we speed up the process there will have to be safeguards to ensure that parish areas reflect community identity and interests.
The listening phase—which I have written down here, by which I assume consultation is meant—on the Open Public Services White Paper has just finished, and we are looking at cross-government implementation plans being announced in November. Building stronger neighbourhoods, including making it easier for people to set up parish councils, will be a priority for us in those plans.
While I do not want to pre-empt this work that has got to be done, I can reassure the noble Lord, Lord Greaves, that we will consider the issues raised in this amendment in conjunction with that. I hope that, as I said, that process will not be terribly long in coming to conclusions. I hope that with those reassurances, the noble Lord is willing to withdraw his amendment.
Lord Greaves
My Lords, I am grateful to everybody who has taken part. I have to point out to my noble friend Lord Newton of Braintree that there is a fundamental difference between a parochial church council and a civil parish. If he would like to do some historical research he will find that a not very great Liberal Government in the middle of the 1890s—perhaps in 1894, but I would not stick to that—introduced the concept of civil parishes against the hysterical opposition of Conservatives, particularly in your Lordships’ House, who thought that the idea of elected parish councils in the countryside was the nearest thing to communist revolution they could think of. But it was forced through, and it was just about the only good thing which that short-lived Liberal Government managed to do before they lost power.
Having made the party political plug, if I can comment very briefly, the point is —and I am grateful for the support from the noble Earl, Lord Lytton—I accept the nitpicking complaints about the amendment from the noble Lord, Lord Beecham. If he were to investigate the Local Government and Public Involvement in Health Act 2007 he would find out what is in this section which this amendment is referring to. In my opinion, it is all together far too long-winded and bureaucratic in terms of community governance reviews. On standards, it is often little rural parishes which cause the most bother.
However, I am extremely grateful for the Minister’s comments, which are extremely positive. I look forward with enthusiasm and anticipation to the Government’s proposals in November, which some might say is a pleasant change for me, although it is not entirely. I thank her very much for what she has said. On that basis, I beg leave to withdraw the amendment.
Baroness Hanham
“(a) it is established for the express purpose of promoting or improving the social, economic and environmental well-being of an area that consists of or includes the neighbourhood area concerned (whether or not it is also established for the express purpose of promoting the carrying on of trades, professions or other businesses in such an area),”
Baroness Hanham
My Lords, I will move Amendment 205ZA and then sit down for the other amendments to be moved or spoken to. I will respond to them subsequently. Government Amendment 205ZA makes it clear that neighbourhood forums should always have a purpose which seeks to promote the overall economic, social and environmental well-being of the neighbourhood area. We do not want to impose any further unnecessary restrictions on organisations which want to put themselves forward to create neighbourhood forums. It continues to make it clear, however, that a forum may also have an explicit purpose of promoting the development of business in a neighbourhood area should that be appropriate given the local context. I beg to move.
Amendment 205ZB (to Amendment 205ZA)
Lord Brooke of Sutton Mandeville
My Lords, I have Amendments 205ZB and 205ZC in this group, to which I will speak. I immediately welcome the Government’s amendment moved by my noble friend the Minister, which leads this group, and express appreciation for it in response to what was said in Committee. It still does not go quite as far as I wished, as expressed in Amendment 205ZC on the Marshalled List, which I moved in Committee on behalf of the Heritage Alliance. Amendment 205ZB addresses that. I shall not rehearse everything I said on the previous occasion, except to explain why I have put it down again and to repeat the final sentence of my speech in Committee.
On that latter occasion, I said that the amendment’s essence was to make sure that there is a consideration of cultural well-being in addition to the considerations that the Government have placed in this part of the Bill. As to why I have repeated this amendment, last Monday night I said that I understood and concurred with the Government in their emphasis on economic growth in their planning policy, but I retain a concern that we shall not have fully done our job of scrutiny on this Bill unless the Government have made their peace more fully with the heritage lobby.
Since last Monday, I have spoken to the Minister and the noble Baroness, Lady Andrews, to air my concern about this issue. I received their encouragement to bring it back to your Lordships’ House. I recall the treatment, perhaps due to their funding decisions towards the heritage, meted out to DCMS Ministers in the previous Government at the annual dinners of English Heritage. Of course I realise that in such an instance the Government are the Government are the Government. But it is not DCLG Ministers who will carry the can in terms of criticism of the Government’s planning policy within that heritage arena but rather their DCMS colleagues if some planning cruces are left unimproved.
The Government will know better than I how they can resolve this matter but the acceptance of Amendment 205ZB would be a helpful sign that they understood the problem. The Minister may well say that the word “environmental” embraces “cultural”. But environmental is much more of a portmanteau word; the old contradistinction between the Department of the Environment and the Department for Culture, when in 1992 the responsibility for the built environment was separated at the creation of the new department, itself makes the separate culture point. That is reinforced as a cultural emphasis when I say that I have no emotional capital tied up in the words of my first amendment but I hope that the Minister can recognise the significance of the issue. I should add that within the Heritage Alliance, this view is particularly held by the Theatres Trust, which falls into the area of responsibility of DCMS. I beg to move.
Lord Cormack
My Lords, I strongly support the amendment moved by my noble friend Lord Brooke of Sutton Mandeville. I had the pleasure of taking a small deputation to see my noble friend the Minister a couple of weeks ago. It included the chief executive of the National Churches Trust as well as the chief executive of the Heritage Alliance. We discussed a range of issues as we also had a representative from the National Trust present. We had an extremely constructive and amicable meeting, for which I am very grateful to my noble friend. But I do not think that she could fail to have been impressed by the quiet passion expressed by those I took with me on that occasion. A very special concern was expressed by the chief executive of the Theatres Trust. My noble friend has just referred to that.
This is not just a semantic point. There is real substance in his argument and it is not sufficient for any Government or Minister to assert that environmental embraces cultural. Because of the demarcation to which my noble friend referred when he talked about the establishment of the Department of National Heritage, as it originally was, the Government have decided that there is a distinction, but it is not a distinction without a difference. When the Minister replies to this debate, I hope that she will at the very least promise to come back at Third Reading on this issue. I hope that it is not an issue on which we have to divide the House because these matters transcend all party and petty differences. We are concerned about establishing a new system that will be in place, I hope, for a long time. I trust that it will bring real benefit. But it will not bring the real benefit that we all desire unless there is sufficient recognition of the points made so succinctly and admirably by my noble friend. I hope that the Minister will be able to give us at least some comfort when she comes to reply.
Lord Lucas
My Lords, perhaps I may address my amendment in the group before we get too far into the speeches. I am addressing a rather different subject, which is to try to make sure that the wording in the Bill will encompass people who are part of the community because they volunteer in it and not because they work in it. I am thinking particularly of, say, a scout leader who has come into an area to create a new scout group. He may not be from the area but he will be an expert community organiser. In the process of this, he will have become someone who really knows and understands the community, and will be a valuable part of the forum. I very much hope that people like that will be included.
Lord Deben
My Lords, I hesitate to disagree with my noble friends on this subject but I would hope that the Minister will be careful before she automatically goes down the tempting line of adding cultural to the environment. The reason for that is very clear. First, I have to declare an interest: the division between the Department of the Environment and the Department for Culture was a huge mistake. But it was not made on the basis of a difference: it was made on the basis of personalities. It was set up in that way to provide particular jobs for particular people, which is why culture and sport were put together. As it was done by a Prime Minister whom I strongly supported, I do not think that people can complain about my point.
I do not think that the idea that there is an eternal justification for this distinction based on the division in government is acceptable. I understand the reason for it but it has some very dangerous aspects to it. Let me give a simple example. I have fought for a long time to protect the countryside in Suffolk—its environment and its beauty. Part of that is stopping the sea taking it away. One of the things that the previous Government did, which was wholly unacceptable, was to downgrade the nature of the heritage contribution to the environment by making the points that they scored when they came to discuss the issue of coastal defence. Without any discussion with the heritage lobby, they lowered the importance of heritage within the environment.
I cannot consider the environment without considering culture. I believe that “environment” is a word which covers our cultural heritage as much as it does—I am afraid I am going to insult people—woolly animals. One of the problems is that the environment is often talked about as if it is about woolly animals. It is not—it is about the whole ambience in which we live. To exclude culture from the environment, or to suggest that there is a distinction, seems to me to have very serious import. I would hope that a future Government would reunite the environment with culture. That is where it should be. It is much closer to that than, for example, the media, which seem to me to have only a tangential effect on it. Much of the media seems to me neither cultural nor environmental. I do not see that the media should therefore necessarily be in the same box. To be told that the future of legislation should be based on a mistaken decision in the past about divisions between Ministries seems to me to be a fault.
One of the problems the Government have got themselves into—I am sure my noble friend Lord Cormack will agree with this—is that some of the language that has been used in the context of planning has led people to believe that our commitment to our environment, be it the cultural environment or the natural environment, has been less than strong. I think that has subsequently been put right and has been remedied not only by my noble friend but by the Prime Minister and others. However, I beg my noble friend to be very careful about this. I know that the House wishes to move on, but I have stayed—I have not had temptation—for this amendment, because I think we have to stand firm on the statement that the environment is not just about the natural environment but that the urban environment, the cultural environment and the spiritual environment all fit in. If she gives way on this, I would argue that there ought to be amendments about the spiritual environment. We have had this before. If we are going to start dividing the environment up, I would find it unacceptable to leave the spiritual side of life out of the Bill. I am able to accept it because the word “environment” carries that meaning for me just as much as it implies the natural environment and the cultural environment.
I hope that the Government will take this very seriously and that those who lobby my noble friend Lady Hanham are told very clearly that if they have not managed to establish the idea that great poetry, plays, architecture and heritage are part of the environment, then they need to present their case more effectively.
Lord McKenzie of Luton
My Lords, I shall work back through the amendments, starting with Amendment 205A, which is tabled in the name of the noble Lord, Lord Lucas. I doubt whether the wording is actually necessary, as it is probably encompassed by what is already in the Bill, but I do think it is an admirable amendment and its thrust is certainly something we support. With regard to the amendments tabled by the noble Lord, Lord Brooke, I was persuaded by the points that have just been made by the noble Lord, Lord Deben.
I should like to ask the Minister for clarification concerning the Government’s amendment, the thrust of which was to dispel a concern that business neighbourhood forums were going to be focused on business to the exclusion of the environment and other social and economic aspects. I think the wording has now changed, so that it ensures that neighbourhood forums always have a purpose which seeks to promote the overall economic, social and environmental well-being of the neighbourhood area. The original formulation—which is the one used in the amendments of the noble Lord, Lord Brooke—was that it should relate to individuals who want to live in the area. There may not be a great distinction in those formulations, but I should be grateful if the Minister could help us on that. Amendment 205ZA, which deals with concerns about the focus of neighbourhood business forums, is to be welcomed.
Baroness Hanham
My Lords, I thank all noble Lords who have spoken. With regard to Amendment 205ZA, I hope I have made clear that we do not want to impose further restrictions on the purpose of a neighbourhood area, but we do want to make clear that a forum may also have an explicit purpose of promoting the development of business in a neighbourhood area. This picks up that point and makes it clear that it is possible to have business areas as well as neighbourhood areas which are mostly residential. A business area can also include residents and often does. However, there are places such as business parks where there is not a resident to be seen, and therefore it is appropriate that there should be business areas in such cases.
Amendment 205ZB has generated the most emotion. I have some sympathy with my noble friend Lord Deben and what he said about adding “cultural”. We had quite a long debate at the previous stage about the definition of sustainable development. At one stage I recall myself saying that if we were not careful we would have a whole string of additions to sustainable development. The cultural and spiritual aspects were both discussed, and we were in danger of developing a wider and wider concept of the environment.
We still have to decide what we will do about the definition of sustainable development. However, I am not anxious to have extra elements added in to it. This is specifically because the national planning policy framework is very clear about the preservation of historic regions, areas and buildings. These have to be taken into account and looked at by a neighbourhood forum. It cannot simply ignore them and they will probably already have been identified in the local development plan. There are sufficient ways of making sure that culture is protected. The noble Lord, Lord Cormack, is correct that the question of theatres, opera houses and other cultural buildings was also raised. There is enough to protect all of these and make sure that they are taken into account in any question about the development of a neighbourhood plan.
Amendment 205ZC explicitly promotes the purpose of business. Amendment 205A would specify that neighbourhood forums shall be open to employees, owners of businesses premises, and, as was specifically raised by my noble friend Lord Lucas, volunteers. We do not think that this amendment is necessary as the wording in the Bill, which was amended in the Commons, is sufficiently broad to include individuals who work in businesses carried on in the neighbourhood area, who own businesses, or other organisations operating in the area or who otherwise work in the neighbourhood area. That very specifically also includes volunteers. It must be right that an organisation which is helping in an area or providing volunteers for it should have a say. We do not think that the amendment is necessary and I hope my noble friend will take that reassurance.
The word “businesses” in the context of this amendment is used in the broadest of terms. It includes commercial, industrial and professional activities, the public and third sectors as well as the agricultural and fishery sectors, but ensures that membership is open only to those with a local connection. This encompasses practically everybody, but they have to be specifically related to the neighbourhood area. By specifying these categories in the Bill, Amendment 205A would reduce the scope we have provided for in terms of the diverse range of people who can become members of a neighbourhood forum.
I hope that, with those explanations, noble Lords will feel able not to press their amendments.
Lord Brooke of Sutton Mandeville
My Lords, I am not entirely clear whether under our procedure I am allowed to say a word about my amendment to my noble friend’s amendment. However, I would be speaking after the Minister and I am not clear whether I am allowed to or not.
The Deputy Chairman of Committees (Lord Colwyn)
The noble Lord may speak at this point.
Lord Brooke of Sutton Mandeville
In that case, I shall give way to the noble Lord, Lord McKenzie, who I think wants to intervene.
Lord McKenzie of Luton
I am conscious that the Minister has spoken, but can she deal with one point, which may be just a matter of drafting? The existing Bill refers to,
“furthering the social, economic and environmental well-being of individuals living, or wanting to live, in an area”.
The amendment would change that to,
“it is established for the express purpose of promoting or improving the social, economic and environmental well-being of an area”.
The reference to “individuals” has slipped out. This may be a point of drafting rather than one of substance, and I am trying to see what it is if there is one. Can the Minister give us an assurance on that?
Baroness Hanham
I think my inspiration has arrived in this note. We have used the phrase “well-being of an area” because it is already used in the Local Government Act. We want the purpose to relate to the area rather than to the well-being of individuals within the area. It is not a mistake and the word “individuals” has been taken out, but by definition individuals would make up an area. You cannot deal with one without taking account of the other.
Lord Brooke of Sutton Mandeville
My Lords, from what the Minister has just said, I understand the purpose of her amendment and the change in emphasis from the original text to which it gave reference. My noble friend Lord Deben and I have, on one or two occasions both in this House and the other place on matters of some importance, differed in a most agreeable way in the course of respective debates. I can remember defending Westminster Abbey and its Dean and Chapter against him, and I now find him defending the Department of the Environment against me. I am not suggesting for a moment that I am trying to put the tanks on his lawn with my amendment, but I will remind him of something in terms of what he has said about the 1992 division of responsibilities. It is not for me to comment on whether it was done for personnel reasons, not least because I was a totally incidental participant in that process. But I will say that one of the great virtues of the separation made in 1992 is that it removed the need for Chinese walls within the Department of the Environment. Previously the department had been involved both in making listing decisions and in listing building consents. The great advantage of the separation—I can remember it when my noble friend Lord Deben was the Secretary of State for the Environment—was that we did not have one department making all the same decisions. That was extraordinarily useful.
I understand the desire of the House to move on. I am most grateful to my noble friend Lord Cormack for his intervention. I do not know whether we can move the Minister at all between now and Third Reading, but in the mean time, I beg leave to withdraw my amendment.
Lord McKenzie of Luton
“( ) A neighbourhood forum designated under this section is to be taken for the purposes of section 6(3)(b) of the Human Rights Act 1998 and section 149(2) of the Equality Act 2010 to be exercising a function of a public nature when exercising functions under this Act.”
Lord McKenzie of Luton
I hope to be brief in moving this amendment because I think a point here was left outstanding. This brings back an amendment that was introduced by the noble Lord, Lord Greaves, in Committee. In responding to the amendment, I think the noble Baroness confirmed that plans could not be approved under these provisions unless they were compatible with the Human Rights Act, but she said that neighbourhood forums do not exercise a public function and therefore we have the anomaly originally pointed out by the noble Lord, Lord Greaves, that parish councils are subject to the equality duty while neighbourhood forums are not. This remains an issue of concern because the impact assessment for these provisions points out that certain communities are much less likely to engage and therefore be involved in this process than others. I do not think we dealt with the question of whether there is a technical problem in bringing neighbourhood forums within the scope of the equality duty, notwithstanding that they apparently do not exercise public functions. Otherwise, there is an issue about doing all we can to ensure that all communities have a chance to become engaged in these neighbourhood planning opportunities. I beg to move.
Lord Greaves
My Lords, the noble Lord, Lord McKenzie, has quite rightly said that I brought this amendment forward at the Committee stage. I apologise to him because I had intended to add my name to his amendment at this stage, but in the hustle and bustle of the Bill, I failed to do so. The noble Lord has set out the position clearly and I do not have anything to add other than to support his remarks.
Baroness Hanham
My Lords, I am not going to be able to take this any further, so the response I made in Committee is the one I am going to give to the noble Lord again. Neighbourhood forums are not public bodies and therefore by definition they are outside the requirements of the Equality Act. Their purpose is to form themselves in order to make a neighbourhood plan and subsequently, when they have done that, to disband, so they will have a shortish life. By definition they are expected to be widely inclusive in terms of who is on them, and that will be checked by the local authority. The neighbourhood planning proposals cannot be approved unless they are compliant with human rights obligations. Built into this is an expectation of equality both in terms of who should be on the neighbourhood forum and in the way that plans have to be compatible with human rights obligations. It is a requirement, but it is not an absolute legislative requirement because it cannot be one. I hope that, with my explanation, the noble Lord will feel able to withdraw his amendment.
Lord Greaves
My noble friend has just said something I have not heard before, which is that the expectation is that neighbourhood forums will be short-lived. They will be set up for a particular purpose and they will then close down. I wonder if she would like to comment on that because it is something that we would like to take away and think about, particularly in light of the comments made on earlier amendments by the noble Lord, Lord True.
Baroness Hanham
My Lords, I do not think we have ever said anything different. The neighbourhood forums are to come together within a neighbourhood area and their prime purpose is to put forward the neighbourhood plan. They were never expected to be longstanding or permanent organisations and the shortest time, I think, is up to five years. That has been the situation all along and if there is anything different from that—noble Lords have been drawing their breath and sucking their teeth at that response—I will write to the noble Lord.
Lord McKenzie of Luton
My Lords, I thank the noble Baroness for those two answers, effectively. The latter one is rather illuminating. Will the noble Baroness drop me and other noble Lords a line to confirm that notwithstanding that the Equalities Act does not ab initio apply to neighbourhood forums, it cannot be brought within its scope, so that we have that added reassurance of the thrust of that equality duty? Having said that, I beg leave to withdraw the amendment.
Baroness Hanham
My Lords, I will certainly write to the noble Lord, but my response will be in Hansard and I do not anticipate that it will change.
Baroness Hanham
Baroness Hanham
Amendment 205C ensures that a neighbourhood area for which there is a parish council can be modified only with the consent of that council. We have listened to the cogent arguments put forward by the noble Lords, Lord Greaves and Lord Tope, and brought forward this amendment to meet those concerns. I am grateful to the noble Lords for raising this issue. The amendment is entirely consistent with the localist thrust of the Bill and will ensure that changes cannot be imposed on parishes in a top-down manner.
Amendment 206A is intended to make it clear that neighbourhood development plans are flexible and that the policies can apply to all or part of a neighbourhood area. That is to say that they do not need to have policies that apply across the whole neighbourhood area. That had always been our intention, but this amendment addresses concerns raised in Committee that the provisions about flexibility were not clear on this point. This flexibility is important. We want communities to be able to use neighbourhood planning in ways which reflect their aspirations and their vision for the future. We want to make clear, therefore, that there are no unnecessary, top-down restrictions: neighbourhood development plans can be as simple or as ambitious as the community wants to make them. They can include policies covering the whole area, or could have just one or two policies focused on a specific site, such as a high street or valued green space.
Amendment 210B seeks to emphasise the central importance that the Government place on effective consultation in neighbourhood planning. Therefore, rather than leaving consultation requirements to secondary legislation, this amendment would require a qualifying body to submit a consultation statement to the local planning authority prior to independent examination. Amendment 210B also makes it clear that this consultation statement should set out who has been consulted in developing the neighbourhood plan or order and a summary of the key issues raised through that consultation. It responds to concerns raised by several Peers and partner organisations in Committee that the Bill did not contain explicit consultation requirements for neighbourhood planning or the need for evidence to show that the views of others had been listened to and considered in the development of the neighbourhood planning proposals. Further detailed consultation requirements will be set out in secondary legislation. I beg to move.
Lord Jenkin of Roding
My Lords, the noble Baroness, Lady Gardner of Parkes, was here a moment ago. I am not sure why she is not here, but the rest of us can speak to our amendments when we get to them. I do not think that we can move hers.
Earl Attlee
If it might help the House, the noble Lord, Lord Berkeley, can move Amendment 206 without any difficulty.
Amendment 206
Lord Berkeley
“(c) in the case of planning permission for the construction of a basement at an existing property, provision requiring the applicant to undertake full consultation with owners of adjoining properties and with any others who would be adversely affected by the construction.”
Lord Berkeley
I am grateful to the noble Earl. This amendment is in my name as well as that of the noble Baroness, Lady Gardner of Parkes. Let us hope that she comes back to your Lordships’ Chamber before we get to the end of this. I feel that these amendments are very important. I have had several close experiences of party wall failures. I am going to talk not about fracking—that comes in a later amendment—but about people extending their basements in rows of terraced houses and things like that. I have had one experience which persuaded me of the need for changes to the legislation. The amendments put down by the noble Baroness will achieve this.
My experience was to do with a garden wall in London. The people next door wished to build a house against the garden wall and to go down to build a basement. They had to go about five feet down and said that they had to take five feet of the garden in order to achieve this, which, of course, is allowed under party wall legislation. They put up a temporary fence, knocked everything down and dug the hole. Then they went bust and the hole stayed there for two years. By that time I had sold the house to somebody who, luckily, was a professional architect and knew what he was talking about. In the end, he took the neighbours to court but had to get two separate court orders; one before they would construct the basement up to ground level and reinstate the garden and another before they completed the wall up to the requisite height. Five years later the wall is still not finished—if you push the top of it, it moves, which is interesting. Having had to go to court twice and suffered two burglaries as a result, I think it demonstrates that something needs to be done. I certainly support these amendments which the noble Baroness, Lady Gardner of Parkes, has put forward and co-ordinated. I am sure that she will wish to speak after me, but in the mean time I beg to move.
Baroness Gardner of Parkes
I am very grateful to the noble Lord, Lord Berkeley, for starting this debate. I will speak to Amendments 206, 224 and 227. Amendment 206 is the one about consultation. I have a somewhat sceptical view about consultation because when I was building my house, we consulted all the neighbours and they all objected just the same, so it is of limited value. However, Dr Thompson, who has done a lot of work and held public meetings on this issue, quoted me an example of someone who consulted their neighbours and agreed that they would have all the cars washed every day and would have everything swept and cleaned. Apparently the whole basement development went through without a hitch. That person has now moved into the basement and the people next door to her have started to do theirs. Apparently, it is absolutely chaotic and they have not consulted or agreed anything, so consultation might be of value but it is of limited value.
It is far more important to deal with the other items which I am covering in Amendment 224. One is the question of precedent. I should declare an interest in that, when I die, my children, in order to get the best value for my home, will definitely want to be able to say that they could have a basement under it, because in that part of London a hotel has just been built with six storeys underground. Other people are building to a lesser extent, but at least half the people in the streets adjoining my house in London have already either got permission or done their basements. Because you cannot go up, the only way you can continue to live in a place with an expanding family is to go down so there is a definite need and a case for basements. That is why I have included in subsection (1) of Amendment 224 the issue of precedents. If an area is already full of basements, why should you not have the same right?
More importantly, subsection (2) refers to a bond or security. When my husband was alive, he represented St John’s Wood as a councillor and I certainly know of a basement there that was under construction for three years. There was another one in Brompton Square. After three years, the people each went bankrupt and with that, the people in the houses on either side of them were faced with a terrible situation. They could do nothing: their houses could fall into the hole or fill with water, as the basement was filling with water. It is quite alarming. A bond or security could be an answer in this kind of situation. It should be easy to find cover as part of your buildings insurance. Subsection (3) refers to “a qualified structural engineer”. Some of the better London boroughs already impose such conditions. They apply them to any such planning consent and the work has to be both planned and supervised. The three subsections in Amendment 224 are important.
Even more important is Amendment 227, which relates to amendments to the Party Wall etc. Act. I am grateful to the noble Lord who gave me some marvellous papers from the RICS, on its practice standards for UK party wall legislation. They were very interesting. The noble Lord is an expert on the subject. If the party wall legislation were updated to cover these matters, there is already a great deal of provision for security in there, which would also cover the consultation issue. As far as I can see, basements are more or less a big city issue. I do not know whether it is a big issue in big cities outside London, but in London it has certainly become one. It is important that something should be done about it.
Lord Jenkin of Roding
My Lords, I support my noble friend’s amendment, which was moved by the noble Lord, Lord Berkeley.
I say at once that I was extremely grateful to my noble friend Lady Hanham for acceding to my request that I should take a deputation from two of the community bodies interested in this subject. We met my noble friend on 31 August. The community bodies included representatives of some of the householders who have been so appallingly affected by these basement developments—“subterranean developments”, they seem to be called. So impressed was my noble friend by what she heard and read that she instructed her officials—I hope I quote her correctly—“to find a solution”. The delegation therefore left in some considerable hope that something might be done to meet their concerns.
In passing, I asked them whether they had tried to raise this issue in the other place. Their answer was rather revealing: they had tried but they could not find any Member of another place who was prepared to take up the issue. There was no delegation to see a Minister in the other place. It has been left to this House to pursue the issue and to gain the assurance from my noble friend that her department should find a solution.
I have four amendments in this group. The first two were tabled for Committee and have been carried through to Report. One was intended to provide a code of practice and the other to provide some form of recompense for the massive disturbance that householders face. However, I have subsequently received a letter from my noble friend explaining that those amendments were not acceptable. In the letter of 9 August she said:
“With regard to your proposals relating to the Secretary of State issuing guidance, in the spirit of localism, I believe it is best to leave it to local authorities to issue guidance”.
Relying on that, I then tabled Amendment 230 to provide that the local authority shall issue guidance.
However, my noble friend also was not keen on the idea of compensation. She said she believed that,
“the introduction of such a provision would set an unwelcome precedent for this to be adopted more generally”.
I have therefore tabled a second amendment.
The Earl of Lytton
My Lords, I rise to plead guilty as charged I am afraid. I am indeed a professional practitioner in matters of party walls, and I am indeed the chairman of the professional panel set up by the Royal Institution of Chartered Surveyors on boundaries and party wall issues, which was responsible for the recent guidance note to which the noble Baroness, Lady Gardner, and the noble Lord, Lord Jenkin, referred.
I am also a paid-up member and a former national council chairman of something that is known as the Pyramus and Thisbe Club—that delightfully named organisation which is peopled by specialists who have a particular interest in party wall matters. Noble Lords will realise straight away that it is named after Shakespeare’s characters in “A Midsummer Night’s Dream” who whispered, conversed and conducted their courtship through a chink in a party wall. I have to say that most of the things that go on through chinks in party walls are anything other than courtship, as we have already heard. A further charge to add to the sheet is—
Lord Jenkin of Roding
There is, I believe, a committee of surveyors called the Pyramus and Thisbe group which draws its name entirely from what the noble Earl has just referred to.
The Earl of Lytton
Yes, indeed. It is actually called the Pyramus and Thisbe Club, and it has London and regional representation. It expanded quite considerably after the Party Wall etc. Act 1996 became law. Noble Lords—and certainly the noble Baroness, Lady Gardner—will remember that I took that Bill through its stages in this House in a previous parliamentary incarnation. I make no apology for saying that I have always thought that Section 10 of that Act—which is the dispute resolution process—was a model for our time. It is a form of alternative dispute resolution, and I thought it was well worth applying to a much larger range of inter-neighbour issues, as opposed to people having to go through the courts.
Let us leave aside for one minute the point that the noble Lord, Lord Jenkin, mentioned about the state of the housing market and the huge pressures that that brings to bear on scarce urban space, about which I will make a comment later. Many of the things that noble Lords have referred to are, of course, true. Subterranean development can have very significant implications for neighbouring properties both during the course of construction and in the subsequent effects, often several years later. The planning and building regulations regime provides only a partial protection. Sometimes it provides none, and the common law gives rise to actions often only once damage has become apparent, sometimes long after the original developer has gone from the scene.
I turn to the question of whether the Party Wall etc. Act 1996 can be usefully amended. At this juncture I would say that that legislation is, of course, very narrowly framed. It came out of the old London Building Acts, which had broadly similar provisions. That legislation risked being abolished under the terms of the repeal of the London Building Acts with the abolition of the GLC. It was saved from that in no small part by the prompting from the noble Lord, Lord Lucas. I am very grateful to him. From his knowledge and experience at the time, he was one of the mainsprings for making sure that that legislation was preserved. I pay him tribute for that. But widening its scope would have to be considered very carefully. It is a very finely drafted construct. There are many professional and technical understandings that are interwoven right the way through the Act. To amend one particular bit through an amendment to this Localism Bill would, I am afraid, have other consequences that might be less desirable—possibly the law of unforeseen consequences. That said, I would welcome the opportunity to see whether that Act can be amended to deal with this issue.
On security for expenses, we have this issue with the technically challenging nature of very deep excavations. They often create larger risks than those just arising from works for which notice would have to be served under the party wall provisions. So there is an issue about how you extend that scope, and make sure that it remains cohesive. There must be very few surveyors involved in this area of work who have not come across a building site where the contractor or the developer—or sometimes both—have gone bust, possibly leaving a building site with a large hole in the ground, and creating huge ongoing liabilities for adjoining properties. Enabling a default mechanism where this can be addressed is in the public interest. But then comes the question: if you are going to empower something to be done about it, how do you pay for it? This brings into question the matter of an insurance-backed warranty of some sort.
Again, this is a very difficult area. It depends how the provision is constructed, how it is worded, and how it benefits other people, who are not necessarily identified from inception as being beneficiaries of this. Overseas-based developers, non-resident owners and possibly eastern European builders do go to make a bit of a heady mix in the more valuable and economically important parts of our inner cities. Clearly these matters need to be dealt with by technicians who are competent and know what they are doing, know what they are looking at, can identify issues of boundaries and know something about construction. However, there is no generally applicable or enforceable code of practice for this type of development. The noble Lord, Lord Jenkin, referred to Camden. The London Borough of Camden probably has the most competent of all the codes of practice that I have seen.
However, the whole process is permissive at the moment. It is actually dogged by having poor enforcement procedures. It needs to have something better than it has. It operates by a process of consensus. With those who wish to play fast and loose with the system, often the consensus does not exist. That is a criticism of the whole process.
Lord McKenzie of Luton
My Lords, before I speak to our Amendment 226 in this group, I have a few general comments about the contributions of other noble Lords. Some compelling points have been made about the need to address this issue. I suspect, although it may not be the case, that this is largely a London issue because, as the noble Lord, Lord Jenkin, said, it is particularly associated with very high land value. I can honestly say that I have not encountered it in Luton to date, but it may apply to other areas of the country. I see that the noble Baroness, Lady Parminter, has clearly experienced it. We are interested in hearing the Minister’s view on whether the way forward is to deal with a combination of codes of practice, party wall legislation changes, and issues around insurance or bonds.
Our Amendment 226 would amend Amendment 225 from the noble Lord, Lord Jenkin, and my noble friend Lord Berkeley, with its code of practice for subterranean development. It is simply to ensure that the importance of promoting good health and safety and minimising the risk of injury or ill health to workers and the public is part of any addressing of the issue. I was prompted to bring it forward by simply looking at the text of the amendment of the noble Lord, Lord Jenkin, about the code of practice. He talks about “noise and vibration”, and,
“dust, dirt and the risk of an infestation of vermin”—
all things that one can imagine are an integral part of excavation. It is important that we focus on the safety of people working in that environment as well as the convenience of neighbours and the owners of the property itself.
Construction is still a pretty unsafe working environment. It has got a lot better over the last decade, although I do not have the very recent figures on fatalities and fatal accidents. Most concerns arise in small house-building and refurbishment projects, the sorts of projects that one would envisage being involved here. Although I am advised that no special codes or regulations need to be introduced to deal with this—the CDM regulations of 2007 and the guidance around them are sufficient—in considering all these matters we should have uppermost in our minds the safety of people who undertake what can be quite dangerous work. In so far as protecting the public is concerned, I was advised that on one occasion the development was subterranean to such an extent that the skip on the road outside went through the road. Obviously there were risks of injury to the public from that. That is the purpose of my amendment, which I hope is entirely non-contentious.
Lord Lucas
My Lords, I hope that my noble friend will find a way forward in this area. It seems so consonant with what we are doing in the Bill to give those who are polluted some comeback or control over those who pollute. That seems a good principle to push forward on.
Baroness Hanham
My Lords, I must say at the outset that it was only because I became a Minister that I stopped being on the planning committee of my borough, the Royal Borough of Kensington and Chelsea, where we dealt with an enormous number of subterranean developments. My patience ran out when we had one that went down three floors. When I asked why it had to go so far down, they said that the person who owned the house wanted a high diving board.
I am not at all unsympathetic to this particular discussion. After my noble friends Lord Jenkin and Lady Gardner came to see me originally with some representatives from Kensington and Chelsea, and Westminster, I thought carefully about what we would do here. The fact is that this Bill will not solve the problems. There are too many elements to this to help by legislation. There is legislation all over the place that governs this. I was concerned to see what could be done within the legislation that is there at the moment and whether codes of practice, guidance and all the elements could be brought together and given to local authorities to help them. For that reason, I asked my noble friend Lord Jenkin and the people who came to see me to agree to be a small working party to discuss with officials the ideas that they had for amending this, with the officials bringing together what can already be done. Could we, through some discussion and feeling our way, find a solution that did not require primary legislation, or has this been going on for so long that it is well beyond that? We want something quick that guides local authorities in what they can and cannot do.
The local authorities that have to deal with this are becoming quite adroit, but the effect on people who live roundabout is absolutely atrocious. I know of one person who complained that a basement extension was being dug up on either side of his house and opposite it, too. Once basements are developed you cannot see them and they are all gone, but it is during this development process, which can take anything up to two years, when the trouble starts.
I hope that my noble friend Lord Jenkin will not bring back an amendment at Third Reading. We have an awful lot already and the Bill managers are becoming slightly anxious. I feel that we can resolve the problem more quickly than this. There are already endless Acts covering this. I am concerned that those Acts are not properly understood or implemented by local authorities. There are building and environmental regulations. Construction method statements are required. There are party wall implications, construction design and management regulations, the control of pollution Acts and the Party Wall etc. Act. As a result of the meeting that we had prior to this being brought up this time, we are already working with the Basement Information Centre to see about guidance on the construction of basements and how those could be developed to cover the issues we have raised. Defra is looking to prove an updated version of the British Standard so as to give it statutory force under the Control of Pollution Act. The Royal Institution of Chartered Surveyors publishes guidance on the Party Wall etc. Act, as the noble Earl, Lord Lytton, said. I would accept, immediately with gratitude, his help with this. We already have a meeting tomorrow if the noble Lord is free, and we will take it into account.
The party wall issue is clearly another very major area, and the noble Earl, Lord Lytton, has pointed out the difficulties with bringing this into more legislation when there may be ways of making it clearer and more acceptable by guidance. We and the department are going to review the guidance on the Party Wall etc. Act so that it reflects matters better. The Health and Safety Executive is developing guidance for builders, and all the issues which the noble Lord, Lord McKenzie, has raised will come under health and safety; they must do. We do not underestimate the disturbance and distress that poorly executed work on subterranean developments can cause.
I want the small group that we have now, working with our officials, to go through what has been picked up on now, what the legislation is, what guidance is needed and where local authorities need to be given a better helping hand with a code of conduct, and to see whether we can do this without having to go to primary legislation again. I think we can probably do this, and I would like to be given the opportunity to try. I cannot complete this between now and Third Reading, so I am going to have to rely on the noble Lord, Lord Jenkin, perhaps not moving this at Third Reading, but with my commitment to try to see this through. I fully and totally understand the concerns around this. I am not surprised that it has provoked discussion to get it into the Bill. By the time we have had a consultation on legislation, if it is possible to have that, we are going to be way off down the line.
I will personally take a lead in this to see what can be done, what guidance can be provided and what extra clout can be given, one way or another, either through the Party Wall etc. Act or by strengthening the guidance. I would like an opportunity to be able to do that, but having said that I am very grateful to the noble Lords who have spoken. I gather that the noble Lord, Lord Berkeley, had to leave to chair another meeting, but his amendment was very much along the lines of the others moved in this debate.
I hope noble Lords will feel able to withdraw their amendments. I hope to see all those noble Lords reasonably frequently for the next weeks while we try to sort this out. I look forward to seeing the noble Earl, Lord Lytton, as part of that.
Baroness Gardner of Parkes
My Lords, I have listened with interest to the Minister’s reply, and I am sure we would all like to go along with whatever she says because she has clearly thought about it seriously. However, I do not think that it in any way answers the problems that people have.
The noble Lord, Lord Jenkin, talked about unnecessary inconvenience, but that is not the big issue. Every bit of building work is always an extreme inconvenience for everyone else around it. In the street where my house is in London I have gone through eight years of all the office blocks being demolished and replaced with giant blocks of flats. It meant that the whole street was congested and you could not move. It was extremely inconvenient, but I do not expect compensation for that. We have to encourage development and any necessary construction. I am not so concerned about compensation for disturbance, but I am concerned about people who find themselves left with a hole in the ground beside them when the people who have dug it have gone bankrupt. It should be simple to set up some sort of insurance, and I would like to speak to the noble Earl, Lord Lytton, whose views I greatly respect, because he said there might be complications with this. I thought that insurance was a pretty common feature in building. Most builders have insurance. We should discuss that at some further time.
Baroness Hanham
“(4) A local planning authority must make a neighbourhood development plan or order unless—
(a) one or more of the relevant ward members expresses disagreement;(b) the local planning authority receives a petition signed by a minimum of 5% of voters in the areas covered by the plan or order; or(c) the local authority thinks it expedient to hold a referendum.”
Lord Best
My Lords, I will also speak to Amendments 208 to 210. These amendments are about the referenda for approving and adopting the neighbourhood plans. One of the major changes to the Localism Bill has been the extensive change to the requirements for referenda with the removal of Chapter 1 from Part 4, but neighbourhood plans are still subject to referenda.
I understand that if local people are at loggerheads with their local authority but feel very strongly that their particular neighbourhood plans should proceed, it is no doubt necessary before imposing the plan on everybody else to find out what the whole community thinks of it. However, if the local authority accepts the neighbourhood plan, and it is acceptable to the parish council or the town council, there is no real democratic deficit. A number of elected politicians are involved, and where everyone at the local level, the local authority level and the parish level thinks it is a good idea, it does not seem very wise to proceed with a referendum that brings in people who have had very little to do with working through the neighbourhood plan.
The Government are setting up 126 front runners, as they call them, with some funding to see how things work. I have seen one of these and talked to the group that is bringing forward its neighbourhood plan. The group is in the parish of the Cerne valley, north of Dorchester in Dorset, and it is doing great things. I strongly approve of the idea of people in the neighbourhood working out a plan for their area. This is all about a culture change. Instead of everybody being against development, people are thinking through the fact that there has to be some development and deciding where it is best sited. People reject some of the sites the house builders might have liked but bring on stream others and bring together their plan.
There are lots of difficulties, hassle and arguments at the local level, but I say good for them. Finally, at the end of a long and tortuous business, I am sure they will have a neighbourhood plan and it will be agreed with the parish council. If the local authority, the district council in this case, says that that is fine, for goodness sake let us not put this out to a referendum that brings in all kinds of people who have had absolutely nothing to do with the process and have not come to any of the meetings. It is always so much easier for people to say no to something than to say yes. If you want to keep your head below the parapet you do not say you are in favour, you stay at home. The people who get up the petition and want to say no are very glad to put their heads above the parapet and will bring out some votes. I fear that an awful lot of hard work in the Cerne valley, or wherever it may, can be lost when, as I said, all kinds of people who have had little to do with the process turn out for a referendum.
My amendment contains a couple of safeguards. I have to admit that I am having second thoughts about my own safeguards. I am just about to talk against my own amendment at this point. However, fearing that it might be unacceptable not to keep the referendum ingredient in the Bill, I have included two ways in which a referendum would legally be required. One would be a petition is signed by 5 per cent of villagers who say that they want to have a proper referendum in which more than 50 per cent would have to vote in favour of the proposed measure. The amendment suggests that if 5 per cent did that, a referendum would go ahead.
The other safeguard is that if one of the ward councillors—there might be three ward councillors for the parish—was opposed to the idea of the plan being taken forward, a referendum would have to be held. I have talked to people at the local level—I met a number of people in Dorset last Friday—who thought that my amendment was great up to the point where it referred to the 5 per cent petition. I was told that that could comprise 125 people in one of the parishes concerned, who all go to the local shop and sign any petition that is put under their noses. Local people were also not in favour of one recalcitrant councillor who wishes to curry favour—perhaps he is in a different party from the majority in that particular patch—saying that a referendum must be held. They did not think that it was a bright idea for my amendment to include those safeguards.
I should have been emboldened by the comments of the noble Lord, Lord True, who is, indeed, a true believer in localism but who does not see the need for a referendum in circumstances such as I have described. He favours a much more permissive regime involving consultation with local people. I had a very good meeting with Greg Clark during the summer. His view at that point was that if the neighbourhood plan is acceptable to the council and the council agrees to prepare a local development order that embraces the plan—I think the noble Baroness reiterated this today—that can go ahead without the need to go through the rigmarole of a referendum. That is a significant point. In these circumstances it would be enormously helpful if that could be clarified.
The noble Baroness said that she would look again at the amendment in the name of the noble Lord, Lord True. I wonder whether the proposals in my amendment might be wrapped up in his to determine whether there is a way in which we can make it clear to people that once a neighbourhood plan is devised and agreement is reached with a district council, parish council or town council, and everyone is okay with this, a referendum will not be needed. At the moment people’s understanding, fear and anxiety is that a referendum will have to be held in all cases. I am preparing myself for reassurance. I beg to move.
Lord Beecham
My Lords, I do not know about other noble Lords but, having heard the noble Lord speak to his amendments, I find myself more confused than I was when I read them. Therefore, it is an extremely good idea that these matters should be taken away and discussed further and perhaps enlightenment will dawn on me by the time we get to Third Reading. However, I agree with the noble Baroness and the noble Lord, Lord Best, that if we can avoid a plethora of unnecessary referendums, so much the better. In that light, I would be happy for the Minister to consider the matter further and for it to be perhaps slightly reshaped at Third Reading.
Baroness Eaton
My Lords, I declare an interest as a vice-president of the Local Government Association, which has offered its broad support for the neighbourhood planning reforms. Indeed, a lot of the thinking on the reforms has come from the innovative and creative local planning schemes which councils have introduced over many years. I do not know of a single council that does not want a more flexible and consensual planning system—indeed, the most consensual possible—and common sense tells us that this benefits communities. The Government have made great strides forward, shredding down the national planning policy framework and confirming that residents will be firmly at the heart of local developments. However, within these new parameters we need to ensure that the planning system can move as fluidly and quickly as possible. I hope that this amendment, to which I am happy to attach my name, clarifies that in certain cases referendums on planning issues might be locally appropriate, as we have heard. The noble Lord, Lord Best, said that discussions with the Minister have suggested a mechanism whereby, if there is consensus, this process will go straight ahead without a referendum. I think that would be well received.
The Local Government Association has estimated that the cost of holding a local referendum on a planning issue will be in the region of £5,000. This is a very significant figure when you consider the sheer number of referendums that could take place around neighbourhood planning issues. It would not be a case of a one-off cost of £5,000 as many costs would arise for local authorities. When the public sector, particularly local government, is so tightly squeezed, that hardly seems a wise use of public resources and public money. I share the request of the noble Lord, Lord Best, for clarity. We would all be much happier if this process was made much simpler and referendums were rarely used in neighbourhood planning. Certainly, councils across the country would support that. I support the noble Lord, Lord Best.
Lord True
My Lords, I wish to respond to the noble Lord, Lord Best, as he referred to me. It follows from my arguments on my own amendment that I think there are many cases where a referendum is not necessary. Indeed, my amendment suggested that local authorities should be able to proceed without the need for referendums. Therefore, I was interested to hear about the discussions that the noble Lord mentioned. As he knows, I am not axiomatically against all referendums. There is a place for a referendum in some circumstances to empower those who are disempowered or, indeed, to resolve a genuine heated dispute in a community.
However, for the reasons the noble Lord implied, I could not support Amendment 207 because it would give too much potential power to an individual councillor. This may not be the case only as regards councillors from a minority party. In my authority five out of 18 wards are split wards with minority representation. Frankly, there are wards where everybody is nominally of the same party but they cannot stand each other, although that does not apply in my authority, of course. Therefore, there is scope for a lot of potential mischief. The threat of provoking a referendum, which would cost money unless someone does something for someone else behind closed doors, is probably better avoided. In other respects I have a lot of sympathy with the amendment. In the context of the discussions, I encourage the noble Lord to follow the direction in which he has begun to move.
Baroness Hanham
My Lords, we have returned somewhat to the discussion that we had on Amendment 205 at the beginning of the evening. I am happy that noble Lords still remember what was said on that amendment. At the outset I confirm what I said when responding to Amendment 205. Where there is agreement on the neighbourhood plan between the neighbourhood forum and the local council under the local development plan, a referendum does not have to take place. As long as they are all in agreement and are all working to the same end, the local authority can accept that the neighbourhood plan conforms with the local development plan and therefore does not require a referendum.
Lord Best
My Lords, I am very grateful for the support of the noble Baroness, Lady Eaton, and the noble Lord, Lord True. I am grateful, too, to the Minister for her clarification.
The distinction that we have been drawing out in the course of our discussions today is between the local authority saying, “The neighbourhood plan is in conformity with the local plan”, and the local authority saying, “Although the neighbourhood plan makes some embellishments and has some bright ideas that the people within the locality wish to see which may change the local plan, nevertheless the local authority is happy with those changes and will issue a local development order that will embrace that neighbourhood plan”. There is a slight distinction between accepting what the neighbourhood plan says and accepting simply that it is in conformity with the local plan. We have gone a little bit further. The local authority may say, “Okay, you didn’t want to use those sites over there that were in our local plan. We fully understand. We are still going to have the housing or whatever it is that is required in the area. They will be in a slightly different place but that is what you have all negotiated and worked through. You have spent 18 months on this hard work and we are prepared to accept that as a local authority”. We have got to the point where that change to the local authority’s original intentions triggered by the neighbourhood plan will be something that does not require a referendum. The local authority accepts it at the neighbourhood level. It is, of course, approved by the parish council neighbourhood forum.
I think that we are more or less there, but I would like to be part of the further negotiations as the Minister considers these matters in detail between now and Third Reading. With that, I beg leave to withdraw the amendment.
Lord Lucas
“38AA Additional rights of qualifying bodies
(1) A qualifying body may, in the course of the preparation of a neighbourhood development plan, enter into negotiations with landowners and others with a view to them concluding agreements with the local authority that, in the event of the neighbourhood plan being adopted and of specified other events, specified additional contributions will be made to the community by landowners or others.
(2) Qualifying bodies may, in conjunction with neighbourhood development plans, promote referendums on or proposals for parishing in order to present integrated proposals for the development of the community.”
Lord Lucas
There is not much to say in substance about this amendment because my noble friend’s answer to the first part is yes, and to the second part, “Hard luck, we blew that out of the water earlier because we no longer have local referendums”. However, I want to explore the implications behind this amendment because my noble friend was kind enough to write to me during the Recess. There are some interesting aspects of localism and I should like to have a clear understanding of the Government’s position.
My noble friend wrote to me as follows:
“Neighbourhood planning offers an exciting opportunity for local communities—through a parish council or neighbourhood forum—to initiate meaningful negotiations with landowners over how their land may be used in a way which benefits the landowner and the community alike. It is of course of fundamental importance that any agreements reached are transparent, that any developments coming forward are acceptable within the broad ‘basic conditions’ for neighbourhood planning, and that landowners are not ‘held to ransom’ or unreasonably prevented from developing their land in any way which is acceptable in broader planning terms. The parish council or neighbourhood forum will in developing their neighbourhood planning proposals consult with a range of stakeholders, including landowners. They may also talk to the landowner about whether their land is accessible and deliverable and what types of development the landowner may consider accommodating on their land. This is important to ensure that any proposals in a neighbourhood plan or order have the support of those organisations and individuals needed to ensure delivery during the plan period. In the case of a neighbourhood development order they may also discuss what conditions may need to be built into the order, or whether there are any matters that will need to be provided for via a related planning agreement (for example the provision of services or infrastructure), to make development acceptable when considered against the basic conditions for neighbourhood planning. The responsibility for confirming what conditions or planning agreements are necessary to make the proposed development acceptable will sit with the local planning authority and the independent examiner. If a neighbourhood development order gave permission for a modest housing development, but required that to be accompanied by such extensive community benefits that the overall development would be rendered financially unviable, then the landowner would remain at liberty to apply to the local planning authority for planning permission for a less expensive scheme, in the normal way. Planning obligations need to meet strict legal tests if they are to be relevant considerations. These are set out in regulations, case law and guidance. These provide that a planning obligation may only constitute a reason for granting planning permission for the development if the obligation is necessary, directly related to the development and fairly and reasonably related in scale and kind to the development. If a planning obligation does not satisfy these tests it will not be a material consideration. Whatever negotiations and agreements do take place, it is important to note that what land is allocated in a plan or given planning permission in an order should never simply be a matter of which landowner can be persuaded to share the biggest proportion of any land value uplift with the community. It has to be about enabling any developments which the community support and which are acceptable when considered against the basic conditions”.
That is a very fair summary of the position as is. But, of course, this is localism. In a parish, words such as “fair” and, indeed, “sustainability” have altered meanings. The parish might, for instance, choose to talk to all landowners and ask them to put forward proposals for the way in which they might like to see development on their land, and for ways of mitigating any adverse effects on the neighbourhood that they perceive. The parish will then publish all proposals and invite comments from the public, which will be passed on to the landowners. The parish will then invite landowners to submit modified proposals in the light of comments, together with binding commitments to the mitigations that they have themselves—the landowners—proposed. The parish will then publish all proposals and invite the public to rank them. The most popular of the proposals will then go forward as a draft neighbourhood plan.
That is as fair as fair can be. There are no obligations on the landowners that they have not proposed themselves. All factors will be taken into consideration in the process of the parish ranking which ones they like best. I am sure that in most parishes the process will result in a large slice of the landowner’s planning gain ending up with the parish community. That is what I hope we are going to see as a result of the Bill. I hope that my noble friend will tell me that she sees no holes in my logic. I beg to move.
Lord McKenzie of Luton
My Lords, I had some reservations when I first read this amendment, but then was reassured when the noble Lord, Lord Lucas, went through the planning obligations provisions and the test that had to be met. He then worried me a bit when he went on to describe it as an auction among landowners in the parish potentially seeking out the highest bidder. I would need to read the record and I would be interested in what the Minister has to say about that. Does that not have the potential to be outwith the strict application of planning obligations and the rules that go with that? I do not assert that it is, but certainly the way in which it was expressed gave me some cause for concern that that might be the path that one was heading down. I would be happy to read the record and be reassured otherwise.
Baroness Hanham
My Lords, Amendment 210A would give new rights for qualifying bodies—neighbourhood forums and parish councils—to negotiate with landowners on infrastructure contributions and to promote proposals for parishing at the same time as they are preparing a neighbourhood plan. We discussed the issue of parishing earlier on.
The first part of Amendment 210A would allow a qualifying body—the neighbourhood forum or the parish—to negotiate with landowners for contributions to be paid to the community. The expectation is that the landowners would subsequently agree the contributions with the local authority through formal agreements—for example, Section 106 agreements. There is nothing to stop local communities talking to landowners about how their land may be used in a way which benefits the landowner and community, but the responsibility for confirming what conditions or agreements are necessary to make the proposed development acceptable must remain with the local planning authority. In determining a planning application, the authority will have regard to the provisions of the development plan, including any neighbourhood plans in force.
The amendment would cause significant confusion about when such contributions would be paid by the landowner, how they would meet the strict legal tests for planning obligations and how any of the community’s negotiations could be secured by legal agreements between the landowner and the local authority. I want to make it clear that whatever negotiations and agreements take place, what land is allocated in a plan should never be simply a case of which landowner is prepared to share the biggest proportion of land value uplift with the community. That was the point that the noble Lord, Lord McKenzie, was making. I accept the broad approach of the noble Lord, Lord Lucas, to this. However, I must reassert that it is the local planning authorities which must determine what obligations are necessary to mitigate development impacts, and that will include financial ones.
The second part of Amendment 210A seeks to empower qualifying bodies to promote referendums or proposals on parishing alongside referendums on neighbourhood planning. In my recent letter to the noble Lord, Lord Lucas, which he has quoted extensively and which I have placed in the House Library, I repeated our commitment in the public services White Paper to consider how to make it easier for local people, including neighbourhood forums, to take advantage of existing legislation which allows for the establishment of parish or community councils. Nothing would legally prevent the joint holding of referendums into a neighbourhood plan and into proposals for creating a new parish council.
With these reassurances—on the commitment from landowners and on parishing—I hope that the noble Lord will be happy to withdraw the amendment.
Lord Lucas
My Lords, I am very grateful for that explanation. Yes, I am getting a clearer idea of where these things will go and the role that the local councils will have to play in moderating these things. As the local councils have to hold the contracts, they clearly have to have a role in deciding what is reasonable. I hope that they will take an activist role in that. I beg leave to withdraw the amendment.
Lord Lucas
“Preservation of local amenities(1) The Town and Country Planning Act 1990 is amended as follows.
(2) In section 59 after subsection (3) insert—
“(4) A provision in a development order has effect subject to the provisions in a neighbourhood development order under the Localism Act 2011, which may over-ride the development order in all or any respects.””
Lord Lucas
My Lords, I will speak at the same time to Amendment 210AB. Amendment 210AC, which is in this group, was admirably covered earlier by an amendment tabled by the noble Lord, Lord Greaves. I will not need to speak to Amendment 232A, which appears later; I am sure that the reply my noble friend will give on these amendments will cover that too.
Since we have done away with local referenda, we need some way of making localism relevant within cities. Planning is not the issue that is really going to get to people in cities. It is much more, as I said earlier, aspects of the way that they are dealt with by local councils within the matters that they have within their gift. I have picked up, in Amendment 210AB, their control over the way roads are used. When an area wants to examine pedestrianisation and alternative uses for parts of the street, to allow children to play or to affect the speed limits—and, talking more of Lavender Hill, the way in which parking regulations are enforced—those aspects are the sort of things that engage the spirit of the community.
A lot that happens under permitted development orders within planning—the way in which the streetscape changes, the way in which change of use is permitted to commercial premises and the developments of shopping streets that result from that—just goes ahead under permitted development and is not within the scope of neighbourhood planning as foreseen in this Bill. Yet those are the things that engage an urban community. If we want to make something of this Bill and the virtues that it will bring in urban communities, we have to look at giving local, neighbourhood communities some power over these things. I prefer the route that my noble friend Lord True proposed. That is a better way of doing things: to have a clear and formal partnership with good local authorities that will allow these things to develop and allow a voice.
In Battersea, which is within Wandsworth—a good Conservative council; it has been that for a long time—one still does not get that sort of bite on the way that things happen locally. I cannot afford to move to Richmond, so I am rather keen that we do something that will bite on my local council and to get to the position where we have within a neighbourhood plan some things to give urban communities a hold on things that they care about. I have picked two examples of the right way to go about it. That way, we have a hope of using the Bill to create vibrant urban communities that will have a real effect on what happens locally, which is mostly an apparition of the power of the local council. I am not addicted to this way of doing it. However, it is very important that we take this chance to try to create strong, geographically based—rather than racially or spiritually based—neighbourhood communities in cities. I beg to move.
Lord McKenzie of Luton
My Lords, this is another interesting series of amendments tabled by the noble Lord. I cannot but agree with the proposition that doing what we can to build and empower strong local communities must be right. I am not sure that the prescription which the noble Lord offers is right in its totality, particularly on road traffic regulations. In my experience, if one wants to engage a community one has a consultation on pedestrianisation, a one-way system or residents’ parking and sees what the response is. If a council sought to impose something like that without proper consultation, we would certainly see the spirit of the community engendered by those events. However, if we gave each neighbourhood particular powers, for example over pedestrianisation, we would face a clear issue of the view taken by adjoining neighbourhoods. We would almost need to reinvent the duty to co-operate at neighbourhood forum level if we went down this path. The basic proposition to use the opportunities that the Bill presents to enliven, empower and engage communities in an urban setting is absolutely right, but I am not sure whether the prescription of the noble Lord is the best way to achieve it.
Baroness Hanham
My Lords, Amendment 210AA would allow neighbourhood development orders to restrict permitted development rights in a neighbourhood area in order to preserve local amenities. Neighbourhood planning has been designed as a new addition to the existing planning system. It is permissive in nature. Therefore, it adds to existing permitted development rights rather than removing rights that already exist. Neighbourhood planning is at the forefront of delivering the Government's reforms and it should not be used to stop or restrict development. Rather, it gives people a real opportunity to shape and influence the places where they live. We need to ensure that the ambitions of people for their neighbourhood are consistent with the needs and ambitions of the residents of the wider area. I listened carefully to the noble Lord, Lord Lucas, when he spoke about cities and the effect on neighbourhood planning there. I have a lot of sympathy with the fact that local communities often do not come together, but part of the neighbourhood planning ought to ensure that groups are coming together to discuss all the issues around planning.
My concern with Amendment 210AB is that it would extend the powers available to communities to control the development and planning of their local areas by amending the Road Traffic Regulation Act 1984. It would expand the local authority’s ability to make traffic regulation orders and by-laws to preserve or improve a local area’s amenities. This is not strictly related to the neighbourhood planning provisions being introduced by the Bill, but does relate to the Government’s wider commitment to extend the powers of local authorities and communities to shape their local areas.
First, I reassure the noble Lord, Lord Lucas, that I support the principle that local authorities and communities should have a greater say in safeguarding local amenities. Similarly, the planning of a neighbourhood should be a holistic process that looks beyond just land-use planning matters to the wider community well-being of an area. A community may use the opportunity of preparing a neighbourhood plan to discuss its priorities for transport in the area. However, there are two key issues with the amendment. First, because neighbourhood plans form part of the statutory development plan for a local area, they can relate only to the development and use of land. Secondly, traffic regulations and by-laws should be a measure of last resort in achieving the goals of sustainable transport that the noble Lord seeks. By-laws create criminal offences intended to prevent specific nuisances. If used inappropriately, they can have a significant adverse effect on the local environment and economy. They should be employed only when all other measures have failed. Therefore, this amendment is unnecessary.
Again, I do not want to undermine the noble Lord’s principle of making sure that local neighbourhoods have the opportunity to discuss the things that affect them. If ever there was anything that affected them, it is traffic, parking and so on. However, this cannot be dealt with under localism in this part of the Bill, which covers neighbourhood planning. As a wider objective, I do not think that anybody would have any disagreement with the idea that local neighbourhoods should be at the forefront of thinking about the wider things that matter to them. It is just not appropriate here. I hope that with those explanations, the noble Lord will withdraw his amendment.
Lord Lucas
My Lords, I am grateful to my noble friend for that explanation. It is clear that I am not going to get anywhere. However, I shall come back to this when we get our next opportunity, because I have been converted by the Government's enthusiasm for localism. I just want to see it in Battersea as well as Hampshire. I shall support my noble friend Lord True, should he choose to reappear in one form or another at Third Reading, and remain silent. I beg leave to withdraw the amendment.
Baroness Hanham
“(3) The power to make regulations under this paragraph must be exercised to secure that—
(a) prescribed requirements as to consultation with and participation by the public must be complied with before a proposal for a neighbourhood development order may be submitted to a local planning authority, and(b) a statement containing the following information in relation to that consultation and participation must accompany the proposal submitted to the authority—(i) details of those consulted,(ii) a summary of the main issues raised, and(iii) any other information of a prescribed description.”
Baroness Hanham
“(ca) the making of the order contributes to the achievement of sustainable development,”
EU Committee: Court of Justice of the European Union
(13 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bowness
To ask Her Majesty's Government what is their response to the report of the European Union Committee on The Workload of the Court of Justice of the European Union (14th Report, HL Paper 128).
Lord Bowness
My Lords, I have pleasure in presenting the report of the European Union Committee, which forms the subject of the Question I put to the Government in this short debate. The committee has received the Government’s formal response and welcomes the opportunity to press them on points raised in the report in the light of recent developments. I am grateful to the Members of the Justice and Institutions Sub-Committee, our Clerk, advisers and witnesses, who gave both oral and written evidence.
We embarked on our inquiry, first, because of the extension of the jurisdiction of the Court of Justice into the area of freedom, justice and security as a result of the Lisbon treaty, and the potential work that that may create. Secondly, there is the potential impact of the expansion of the European Union from 15 to 27 member states, and the Court's published analysis of its workload, which shows an average time of more than 33 months for a competition case before the General Court.
For the record, since all noble Lords participating in the debate are aware of the position, I will make it clear that the Court of Justice of the European Union comprises three courts: the Court of Justice, the General Court and the Civil Service Tribunal. Any reference that I make in this debate to the Court of Justice refers to the first and highest court, not the Court of Justice of the European Union. For the benefit of too many media commentators, none of them has anything to do with the European Court of Human Rights in Strasbourg.
Our evidence was drawn from professional bodies, a former advocate-general, representatives of the Commission and the Attorney-General. Discussions were held in Luxembourg at the Court with the three United Kingdom judges serving within the three courts of the Court of Justice of the European Union and with the president of the General Court.
May I make two general comments which relate to the Court of Justice of the European Union as a whole before turning to the separate courts? First, the Union is based on the rule of law and respect for human rights. The Court of Justice is a vital institution for the proper functioning of the Union. For example, while some question some aspects of European Union policy, without the Court we have nothing to buttress the operation of the single market, which is so much more complicated than a trade deal and is essential for our interests.
Secondly, the amount of money is quite small. Of a 2011 European Union budget of €126,527 million, the cost of the Court is just over a quarter of 1 per cent. It is often assumed that the need for translation is the cause of cost and delay. This was not our conclusion. Of course translation has its cost, but not everything is automatically translated into the 23 official languages. Everything is translated into French, which is the working language of the Court. This is the case for historical reasons and some have suggested that an additional language be added, but to add another would only add cost.
In the Court of Justice, which deals with preliminary references on points of European law referred from national courts, the reference is sent out to all member states in their language for their observations. The judgment in each case is also translated, which is not unreasonable given that the judgment is of universal application to the Union and everyone in all member states should be able to read it in their own language. Contrary again to much popular belief, using other languages is not a luxury, as not everyone everywhere speaks English or, for that matter, French or German. In the case of the General Court and the Civil Service Tribunal, the language regime is much more restricted and may only be the language of the Court and the parties, and only judgments of particular interest are the subject of translation into all official languages.
Turning to the individual courts, we looked first at the Court of Justice, which may be described as the supreme court of the European Union. The majority of its workload relates to preliminary references to which I have already referred. The number of judges is laid down in the treaty—one per member state—and they are assisted by advocates-general, who give the Court a written opinion which is not binding. The number of advocates-general may be increased by unanimity without treaty change and we recommend that this be done to assist the Court in increasing the speed at which cases are dealt with. We believe that the Court of Justice faces a crisis in its workload following the expansion of membership and the expansion of its jurisdiction into freedom, justice and security.
The Court of Justice has had a good record in managing its workload in the past, but in this it was helped by an automatic increase in the number of judges following enlargement but that predated the expansion of jurisdiction and the work now flowing from enlargement. The General Court, however, is where we believe that the problem lies. The General Court deals with almost all the cases brought against the institutions and agencies of the European Union. These are often complex, involving both written and oral evidence. We found that the General Court has significant problems in managing its current and likely future workload.
We proposed a number of solutions. We accepted that there may be a case for better case management but we were of the opinion that that would not solve the essential problem. We also gave consideration to the creation of additional specialist chambers similar to the model of the Civil Service Tribunal, but we rejected this as a long-term solution. The Civil Service Tribunal is a special case dealing with internal European Union staff matters. Its significance is quite different from that of the Court of Justice and the General Court. It has been a success and we found no reason to recommend any changes. But in our opinion it is not the right model to follow for the General Court. We agree with the Luxembourg judges that more specialist tribunals would diminish the character of the Court as a general court combining a mixed expertise. Those judges appointed to the tribunals would have reduced or few opportunities to sit in the General Court and, similarly, the judges of the General Court would have few opportunities to sit in the tribunals.
Additional judges can be appointed to the General Court without treaty change, and this in our opinion is the answer to the problem. Without specifying a particular number, we suggested an increase of a third. The Government in their written response do not seem convinced that the problem is as serious as we believe and certainly do not warm to the idea of more judges other than in a specialist tribunal.
Since we reported, matters have moved on and the committee currently holds under scrutiny three proposals for reform of the Court of Justice of the EU. The first is a proposal from the Court: to create within its number a vice-president; to amend the rules relating to the composition of the grand chamber; to abolish the rule requiring the reading of the judge rapporteur’s report at the oral hearing; and to increase the General Court judges from 27 to 39. There is a second proposal for the revision of the Court of Justice rules of procedure to take account of changes of workload. Thirdly, there is a draft regulation to allow the appointment of temporary judges drawn from the ranks of retired judges to assist the Civil Service Tribunal, which seems to us to be eminently sensible and an economic way of dealing with the short-term problem. We have welcomed all these but the Government seem to lack some enthusiasm, save for the revision of the rules of procedure.
While we have the original response to our report, in the light of recent developments will the Government please give active and urgent consideration to increasing the number of judges in the General Court? If not, what is their alternative solution, bearing in mind that even specialist tribunals, which we do not favour, will cost money? Will the Government also consider the recommendation in our report that, before approving legislation, an assessment of the possible impact of such legislation on the Court of Justice of the European Union should be undertaken?
Lastly, will the Government also take account of the observations of Sir Konrad Schiemann which is referred to in Appendix 4 of the report, in which he said:
“The Court had to interpret legislation which had been designed by politicians whose political priority was the achievement of a formula, if necessary at the expense of a clear formula. Where the original legislation was imprecise, the Court was required to intervene. This was often the case with Directives, but could also be seen in the Treaties themselves”.
As so often when governments look to others to solve the problems, this could be an example of where the Council could assist by remembering that, in many instances, the legislative proposals before them are indeed just that, draft legislation, and should be approved on the basis not just that there is political agreement but that they represent legal certainty.
Lord Boyd of Duncansby
My Lords, I begin by declaring an interest as a solicitor-advocate in practice in Scotland, and from time to time my practice involves cases which may end up in the European courts. I am very pleased to have been a member of the sub-committee which undertook this investigation and I want first of all to pay tribute to our chairman in guiding us through what I believe was a very good report with a deftness of touch, and also to the staff, the clerks and the legal advisers who gave excellent advice.
I want to address the issue of judges and resources in the courts. In a time of austerity, for a lawyer to make a plea for more resources and more judges in a court may sound like special pleading if not perverse. To ask for such resources for European institutions is always asking for trouble. In the popular mind, a European court is one that interferes with British interests, perhaps to the detriment of parliamentary sovereignty. The failure in the popular mind to distinguish clearly between the European Court of Human Rights on the one hand and the Court of Justice of the European Union on the other makes the task even more difficult. Yet it is apparent from our report that the delays in the Court process as a result of the situation that now faces the Court are a significant impediment to economic activity and the achievement of the goals of the European Union.
The committee was particularly concerned about the workload of the General Court, which deals with cases that turn crucially on the assessment of often large amounts of factual material, including competition cases where challenges to the decisions of the Commission, which themselves run into 600 pages, may generate files that contain 20,000 pages or more. Competition cases now represent 10 per cent of the workload of the General Court, and the average turnaround for all cases, including competition cases, is 33 months. As the CBI has said, an average turnaround of 33 months in competition cases is simply unacceptable. It cites the particular example of the ICI case which, exceptionally, took over nine years to be resolved.
The move to have decisions under the EU regulation on the registration, evaluation, authorisation and restriction of chemicals—the so-called REACH regime—from the European Chemicals Agency subject to appeal in the General Court will undoubtedly increase pressure on that court. One estimate suggests that there may be over 2 million applications to the European Chemicals Agency, and there is real concern that the General Court may be overwhelmed as a result.
One way of helping to ease this is by the creation of specialist tribunals taking some of the work—trade marks have been suggested—away from the General Court. As we have already heard, the committee considered that specialist chambers were a more efficient way of proceeding because they would allow judges to be redeployed within the Court structure to cope with peaks and troughs. A specialist tribunal would simply increase the rigidity of the system without gaining any flexibility.
In my submission, we cannot get away from the need to increase the number of judges in the General Court. To that extent, I was pleased to see the response from the Government in the letter of 4 July to the chairman of the European Union Committee. The Minister, Mr Lidington, said that the Government were working actively with other members discussing the size of the judiciary in the General Court. Will the Minister tell us what progress has been made on that issue?
Turning to the Court of Justice, we believe that there are problems ahead. It is true that the present workload is being coped with, but we saw a crisis looming because of the number of new cases that are likely to come forward from the new states following enlargement and the new jurisdiction in freedom, security and justice. It is clear that these pressures are going to be there, and I was disappointed to see in the same response that the Minister is not convinced that the Court of Justice is facing an imminent crisis without any real specification of that. What evidence does the Minister have to counter that of the committee that the Court of Justice is indeed facing a crisis? How imminent it is may be a matter of conjecture, but does he agree with the committee that something needs to be done, and done soon, otherwise we will face further problems?
I believe that this is a good report that will set a benchmark for the future of the Court if the Government act in conjunction with other member states. I will be pleased to hear in general what the Government’s response is to this report.
Lord Dykes
My Lords, I am sure the whole House will be particularly grateful to the noble and learned Lord, Lord Boyd, for asking for certain clarifications, bearing in mind his authority and activity as a representational corporate and commercial lawyer helping clients dealing with these matters, as well as for his general views in the sub-committee of which I am also a member. As he said, we are deeply grateful to the noble Lord, Lord Bowness, for being chairman of the committee and for having launched and taken the initiative on this report. We had an enormous amount of expert advice and guidance from our officials and special advisers, and I warmly thank them for it. That set the tone for us to do what I thought was a very thorough and profound report, which was not too long, as some of these reports are on these occasions.
I hope that when he replies the noble and learned Lord, Lord Wallace of Tankerness, will reassure us on some of the points of confusion about the imminent crisis that may be looming for the ECJ. However, there is a difference of views on that. As we indicated, there is more likely to be agreement in this short debate about crisis in the General Court as a result of its excessive workload and the need for that to be taken care of. Unlike the more supreme, higher level, intellectual work of the Court of Justice, dealing with treaty matters and the support or otherwise of legislation in the European framework, the General Court is the coalface of these judicial proceedings in the European Union.
We know what kind of reception Europe gets in the British press. I hope that the situation will be a little easier now after the hacking scandal. There may be no connection at all, but you never know. There might be a bit of luck in that and most, though not all, of the British press might be more serious about reporting and carrying stories about European institutions. The wicked Commission is attacked far more often than the European Court of Justice because the European Court of Justice is harder to explain to the ordinary reader. I am not criticising the ordinary reader; it is just one of those things with highfaluting, high-level courts. However, it is essential that there should be more explanation because it is embarrassing when people get the Council of Europe mixed up with the European Union.
Despite the workload problems and the excessive time taken to deal with cases, the European Court of Justice does a very good job on behalf of the citizens of this country, who under the Maastricht treaty are also citizens of the whole of the European Union. I wish that British newspapers would sometimes remind us of that important reality. A British citizen is not just a patriotic citizen of our own country; he or she is also able to work, operate, retire and travel in the European Union as well as to use the facilities of the European judicial system mainly under the General Court of the ECJ—not so much the staff court, the European Union Civil Service Tribunal, which is a separate matter—in order to deal with things in a way which is much more just than many people in this country think because of the poison in the press. It is tragic that they should believe that.
I suppose that that happens to a lesser extent in other countries, and perhaps also on a case-by-case basis, but here there is general agreement in the printed press that Europe is a bad thing and that the European institutions, the Commission and the European Parliament are menaces. The Council of Ministers is all right because that is member Governments, but even that comes in for attack if it does not agree with what the British Government are suggesting. This nonsense really ought to stop.
The recommendations in the report are very important. The suggestion of increasing the number of judges by one-third is important. I hope that my noble and learned friend Lord Wallace of Tankerness will respond on that. I think it is very important to bear in mind that although there are no severe problems like this in the European Union Civil Service Tribunal, the sentiments about it expressed in paragraph 54 need to be looked at quite carefully. Coming back to the ECJ itself, and the need to get the workload down, and to increase the number of judges in the General Court, this needs to be done with some urgency.
As for the budget matters that we are considering, being one-quarter of 1 per cent of the total EU budget—and nowadays I think I am right in saying that most years the budget outlays are less than the original appropriations; there is always a gap between them when you take the total EU budget—there is money at the margin available for these matters; they can be easily dealt with within those parameters, and I do not think there should be an excuse. At the hearing, the Attorney-General kept harping on about financial problems and problems of government spending and that we had to be very careful—of course that is a general position that a lot of people accept—but really these are small amounts of money. The idea that a court’s functioning would be impaired and would suffer not just at the margin but quite significantly in its general activities because of a lack of funds is totally unacceptable, particularly in the international context. This is a treaty-based institution, where we have to work with our fellow member states, and I think sometimes they psychologically and in an ineffable way seem to give much more support to these institutions than we do in Britain.
I do not think that applies to the House of Lords. Tonight we have the two Lord Wallaces on the Front Bench: the noble Lord, Lord Wallace of Saltaire, of course dealing with other matters tonight, and the noble and learned Lord, Lord Wallace of Tankerness. I hope I do not misrepresent them when I say that they are both enthusiastic supporters of our membership of the European Union—I am glad to see the noble and learned Lord, Lord Wallace of Tankerness, confirming that—and so we can go onwards and upwards with this excellent report and get some good responses from the Government tonight.
Lord Rowlands
My Lords, I too am grateful to our chairman and to the staff of our committee for helping us to prepare this report. Like a rather large number of Members of this House, I am something of a veteran of European treaties and the institutional changes that have flowed from them: Maastricht, Amsterdam, Nice and Lisbon—I have been through them all. I have sat through and taken part in some of the debates we have had.
If we retrospectively reflected on the experience of treaty change and institutional change, I have a sneaking suspicion that we would find a rather high proportion of either unintended consequences of those changes or that at least the assessment of what impact these changes would make has often been wrong or ill conceived. My noble and learned friend Lord Boyd made a reference to one such glaring example to which we draw attention in our report, in paragraph 52, on the European Chemicals Agency. This was established on an assumption that there would be only 250,000 licences granted. As my noble friend has said, the figure is now likely to be 2 million. As the president of the General Court said in evidence, a proportion of them will be challenged so it is inevitable that the workload of the General Court will increase. Here is a perfect example of the way in which treaty change was made or institutions were established without any effective impact assessment.
This strengthens our case for being, if not pessimistic, realistic about the changes the Lisbon treaty will have on the work of the Court of Justice. The Lisbon treaty created a fundamental change in the architecture, destroying the whole of that third pillar and bringing within the jurisdiction of the Court of Justice the areas of freedom, security and justice. What will flow from that is a very significant increase in the workload of the European Court of Justice. It was flagged up first by our European Union Committee in 2007-08 in what I thought was the most thorough and wonderful scrutiny of the impact of the Lisbon treaty. On page 127, the European Union Committee flagged up that there would be problems with the workload of the Court of Justice as a result of this change and the inclusion of this extra jurisdiction.
We have followed that up and have confirmed those concerns in our report. In paragraphs 42 and 43, we spell out that it is not simply a matter of more cases but that they will be in areas likely to generate much more difficult and important forms of litigation, and that for the first time the Court will be dealing with individuals in custody, and therefore will need speedy justice, a fast-track approach. Indeed, that is presumably partly why in the Lisbon treaty there is a fast-track procedure to deal with it. If one reads further on what this fast-track procedure is, the assumption was that 10 or fewer cases a year would be fast-tracked. Now we suspect that with the changes that have occurred to the jurisdiction there will be a lot more fast-tracked cases. There will be two consequences of that. First, it could displace other, less urgent cases to be dealt with over a longer and longer time. Secondly, in the annexe to our report, on page 67, it says that if there were an increase in fast-track cases,
“the number of cases that the Court could handle … would decrease sharply”—
because of the nature of fast-tracking, there is going to be a very significant potential displacement of other cases. I do not think we are being alarmist in saying to the House and to Ministers that this is going to create a much greater problem than is being recognised at the moment.
When I joined our chairman and two others in going to Luxembourg, I was rather surprised by how rather sanguine many of the Court administrators were about the impact these changes are going to have on the work of the Court of Justice. Sadly, not only did I find them sanguine in Luxembourg, I now find that Ministers here are sanguine. The letter from Mr Lidington says that he is not convinced that the Court is facing an imminent crisis. I do not know what imminent means, but certainly within the next two or three years we are going to see a very significant increase and significant pressure. It is not unjustifiable to present it as a potential crisis, with which Ministers do not appear to be fully engaged.
I hope tonight when the noble and learned Lord replies that we will at least have something more than the replies we have had so far to our reports, and of course to the other suggestions that have been made by the Court itself since our report came out. Reading Ministers’ responses so far, it appears that they are very good at telling us what they do not want to do but not at telling us how they are going to handle the crisis. I think they are in a state of semi-denial that there is a crisis on the horizon and I hope tonight to be enlightened not only on the proposals they have but to be reassured that in fact they appreciate and understand the potential seriousness that the courts face.
Lord Anderson of Swansea
My Lords, I adopt all the calls that have been made for clarity on the part of the Government in response to this report and to the problems of the Court of Justice. I was not a member of the relevant committee at the time of this report so I can praise the work of the committee in producing it, and I can praise the work of the chairman and indeed the clarity of the speech he made today.
It is clear that everyone agrees that European courts, both the Luxembourg courts—the Court of Justice and particularly the General Court—and the Strasbourg court, the European Court of Human Rights, are overloaded. I need not go into the position of the Strasbourg court, but there are 160,000 cases pending and the numbers are increasing annually at a rate of 12.5 per cent. There is of course now a linkage between the Luxembourg court and the Strasbourg court, with the EU becoming a party to the European Convention on Human Rights, and there is therefore a danger of possible further delays.
The Government may be reluctant to call the position of the Court of Justice a crisis, but there is clearly a major problem of delays, as the CBI pointed out, which are relevant to our business, and therefore something has to change. Even if the intellectual property cases were shunted into a separate court, that would still leave a backlog of 1,000 cases before the General Court, where much of the work is of course consideration of fact. That is roughly two years’ work if one sees that perhaps 500 cases are concluded in a year.
What, then, to do? The editorial in the most recent edition of the Common Market Law Review, which again is a tribute to the committee’s work, stated as follows:
“It would seem that by now, all the possible options for reform and their respective pros and cons have been on the table several times … a big leap seems inescapable. It is only a matter of time”.
The Government thus far seem to want to avoid a big leap. Their proposed changes range from: reducing the supply of cases; changes to the rules of procedure—and the Government state that there is little prospect of member states agreeing to a degree of autonomy of the Court in respect of its own procedures; broader, better case management; more new specialist courts; and the appointment of more judges.
Clearly there is a need to look at procedures; the editorial states that essentially the procedures of the court reflect the Court’s role as an administrative court carrying out judicial review in respect of the activities of member states, when increasingly now the emphasis has changed to references from member states for preliminary rulings.
The Government appear to oppose limits on pleadings to cut down more prolix advocates, and the Court’s potential powers to dispense with oral hearings. As one of our colleagues said earlier, we know what the Government are against; we do not know what the Government are for. The Government are surely not just outside observers but should be active participants in these debates.
There must surely be some scope, despite what the committee says, for a reduction in translation. French is of course the working language, for understandable reasons of history, but increasingly the new member states have English as their main working language. Alas, there is clearly a veto possible for the French Government, so we cannot see much change there.
Changes in the structure of the Court have helped in the past. In 2005 the Civil Service Tribunal was established, and the committee calls it a success story. Some 30 years or so ago I was writing the section on the European courts in The Solicitors’ Diary, and it was clear at that time that there was too much able judge power on cases that were relatively trivial, save for the individuals concerned, and that would have gone to employment tribunals in the UK. That was 30 years ago. It took all that time to set up this specialist court, which perhaps does not augur well for changes to come about in a timely fashion.
The case against further specialist tribunals and in favour of an increase in the number of judges is set out persuasively in the letter of the president of the Court to the president of the Council: that there are risks in relation to consistency, the flexibility of judge power, the speed of implementation and so on. The letter states that an increase in the number of judges in the General Court is,
“essential … to reduce within a short time the volume of cases pending before the court and the duration of proceedings”.
If it is true that it could be solved in only a short time, one must ask why the large increase from 27 to 39 should be permanent, and what the prospects are of a reduction in the future if the case load were to warrant it.
There is clearly now a conflict between the views of a number of member states and the president of the Court. This is a matter of judgment in respect of both the costs and the efficient running of the courts. There is probably no prospect now of an outside independent expert being asked to report on the comparative costs, as this would only lead to further delay.
However, I end where a number of colleagues have ended. It is uncertain where Her Majesty’s Government stand, so perhaps the Minister will clarify for us on which side the Government stand. Are the Government leaning towards more specialist tribunals, with all the problems set out by the president, or do they now accept the case for an increase in the number of judges in the General Court?
Lord Bowness
My Lords, I must apologise to the House that in asking my question I failed to draw attention to my declared interests as a practising solicitor, and I thank the noble Lord, Lord Liddle, for allowing me now so to do.
Lord Liddle
My Lords, I join my noble friend Lord Anderson of Swansea in congratulating the committee and its chair on the excellent report before us tonight. It once again shows the value of our European Union Select Committee and the work that it does. The subject of the Court of Justice is—and I come on to this in a moment or two—a subject that arouses great passions in some quarters, but this is a model of a balanced report based on careful study of evidence and entirely non-partisan in its spirit, and I think, as the Opposition do, that the Government would do well to heed its recommendations.
My only regret—and it is a point that I have made about these reports before—is that it was completed at the end of March and we are now debating it in the second half of October. In this case, it so happens that the report and its recommendations remain relevant, topical and timely, but that is not always the case, and we should give these Select Committee reports a high priority in our work.
Obviously there is a real problem about the Court’s growing case load. I looked up how many cases the ECJ had before it or had settled in the year before we joined the European Community in 1970, and the number was 70. In 2010, the figure was 574, which tells you something about the expanded scope of the European Union’s work. I agree with my noble friend Lord Rowlands that some of this is the result of unintended consequences, but at the same time one also has to acknowledge the technical complexity of operating a single market as seen in the REACH chemicals directive or the extension of the scope of European activity into areas such as criminal justice, because our security depends on our interdependence with our neighbours. This will inevitably bring more work into the remit of the Court.
In one respect, the letter that we have received from the Minister for Europe, the right honourable David Lidington, is encouraging. It acknowledges that there is a workload problem, and it is encouraging that the Government are having discussions about this. However, the sentence,
“we are not convinced that the court is facing an imminent crisis”,
suggests to me that the Government are not grappling with this issue with the urgency that they should.
The noble and learned Lord, Lord Boyd of Duncansby, explained how the delays in the Court are very damaging. If you look at the evidence on how long cases such as competition cases take to get resolved—33 months—that is not terribly satisfactory from anyone’s point of view. It is not satisfactory on grounds of efficiency and justice, nor does it happen to be in Britain’s national interest. We need an effective Court, as we need an effective Commission, to police the single market’s rules. Perhaps I may make an obvious point that is worth repeating again and again; there is a huge contradiction in the attitude of Eurosceptics towards the European Union. They say that they joined only a single market and that all they want is a single market, but they refuse to accept that the functioning of the single market depends on effective supranational institutions such as the Commission and the Court: that you cannot have one without the other. I would like the Government—I know that the pro-European half, or section, of the Government is facing me from the Front Bench—to feel that the whole of the Government recognise the truth of that argument: namely, that it is in Britain’s national interest to have an effective ECJ.
There are Members in the other place who have strong views about the ECJ. I was very alarmed to read that Mr George Eustice, in this new group of Eurosceptic Conservative Back-Benchers that was established, started talking about how in reality the European Court of Justice operates as a political court; that it has been out of control for far too long; and that it is time to clip its wings and to make it accountable to Parliament, as though it is normal that courts are accountable to politicians. That is the attitude in important sections of the governing party.
The fundamental reason why these sensible proposals are not being squarely addressed by the Government is because of this politics, which is getting into very dangerous territory. Some Members in the other place have attacked individual British Members. One attacked the British Advocate-General, Eleanor Sharpston, just because she happened to be, in their view, on the wrong side in the metric martyrs case. That kind of populist approach to the European Court is quite unacceptable. We need to see on the part of the Government a willingness to deal with these issues in the kind of objective manner that is in our national interest, as this report recommends. I commend the report to the House.
Lord Wallace of Tankerness
My Lords, first, I join the noble Lords, Lord Liddle and Lord Anderson—the three of us not being members of the committee—in congratulating my noble friend Lord Bowness and the members of his committee on this important work which they have undertaken. I think the first call for evidence was in the summer of 2010 and that the report was published just one week after the president of the Court published his proposals. The fact that it was timely shows the foresight of the committee in identifying what is undoubtedly a very important issue.
I believe that the report’s conclusions and recommendations have been a valuable contribution to the current debate. We have heard those conclusions and recommendations echoed in the contributions this evening, which I will seek to address. It is important that we take this opportunity to discuss these matters. The noble Lord, Lord Anderson, asked what the Government believe in. They believe very much in the effective and uniform interpretation, application and enforcement of European Union law across the Union, which was a point well made by my noble friend Lord Bowness in his opening remarks.
We believe that the Court of Justice has a vital role to play in ensuring that member states and European Union institutions act in accordance with the treaties. It is therefore essential to the functioning of the single market that it ensures that there is a level playing field for United Kingdom businesses operating in other member states, and vital in upholding the rights under European Union law of British citizens living and working in other member states. That point was well made by my noble friend Lord Dykes, who emphasised that the Court has that important role in safeguarding the rights of people who are not only United Kingdom citizens but citizens of the European Union.
Accordingly, the Government share your Lordships’ views that the Court of Justice of the European Union is in need of reform in order to work through its sizeable backlog of cases and to reduce the time taken to process cases in the future. I can confirm that since the publication of the committee’s report, officials have been engaged in discussions with their counterparts in the European Union about reform of the Court, following on a set of six recommendations made by the president of the Court to the Council. Discussion has continued between officials and at ministerial level on a bilateral basis and within the Council. The noble and learned Lord, Lord Boyd of Duncansby, asked about that. I can confirm that there have been meetings. In July, the Minister for Europe raised the issue at the General Affairs Council. As I have indicated, discussions continue at a working level, most recently on Friday of last week. The Government are engaging constructively in these meetings with an open mind. We certainly see merits in a number of the recommendations, to which I will deal with in more detail.
I am sure your Lordships’ House will forgive me for not divulging the details of working group discussions, which by their very nature are confidential, but I can indicate in the broadest terms that officials of the United Kingdom Government have been focusing on negotiating changes to the Court’s structure and its rules of procedure, which would enhance the quality of the Court’s judgments and reduce the turnaround time of cases while emphasising—it is important to emphasise this and to remind ourselves of the need for—cost efficiency. In the current economic climate, it is vital to ensure value for money for our taxpayers, and the proposals that the Court makes must be assessed according to financial and budgetary implications. Indeed, I think that even the summary of the conclusions of the committee’s report acknowledged that there were cost implications.
As the debate has made clear, the most significant reform under discussion is the composition of the General Court and specifically the question of how to expand its capacity. I will perhaps deal with that in more detail later. We know that the committee proposed an increase of one-third to 36 members. The president of the Court has tabled a proposal to add to the number of members of the General Court by 12 judges, which is of course one of the key subjects under discussion within the Council. As has been identified, and as I will elaborate, there are other possible options, such as the creation of a specialist trademark court or specialist chambers within the General Court, for managing trademark cases. Officials are considering how each would improve the efficiency of the court, the political and legal implications that they would have and the financial ramifications.
The noble and learned Lord, Lord Boyd of Duncansby, and the noble Lord, Lord Rowlands, asked whether there was an imminent crisis. Although we recognise the huge challenge with regard to the General Court, the report itself, as well as contributors to the debate this evening, recognises that the Court of Justice has done a remarkable job in managing its case load. It was in that context that we did not accept that there is an imminent crisis with regard to Court of Justice—I think the noble Lord, Lord Rowlands, said “potential crisis”. Clearly this is something that we want to focus on to ensure that it continues to build on the advances that it has made.
The report itself recommended that there should be the appointment of extra Advocates-General. It is not clear what evidence this is based on. Significantly, it is not one of the proposals which the Court itself felt was necessary when the president of the Court put forward its proposals. Other measures have come forward from the president of the Court that we would aim to assist: the possibility of the appointment of a vice-president, and the proposal with regard to how grand chamber might be restructured. We are looking at that seriously. We want to ensure that, in doing so, there is continuity, across the courts, of the jurisprudence of the Court. That particular proposal is somewhat complex.
On the issue that was described in your Lordships’ report as the “green light”, we would not necessarily go as far as that but we think it is of considerable importance, when national courts are framing their reference, that they do so concisely. We would certainly encourage them to put forward any proposal and conclusions that they may have reached in framing that reference, so that when the Court of Justice looks at these preliminary references it is very focused on the particular issues.
My noble friend Lord Bowness made some specific points, reminding us that the Council also legislates. Those points were extremely well made. Certainly the Government are seeking to ensure that there is clarity not only for those who subsequently have to interpret the law in the courts but perhaps most importantly for those who have to implement the law in their businesses and daily lives. That is certainly the objective of the negotiations, but I think it is also fair to say that, in a negotiation involving 27 member states, that objective is not always as easy to achieve as one might hope.
A similar answer applies to the question raised by the noble Lord, Lord Rowlands, and my noble friend Lord Bowness about the legislative implications of certain decisions. Perhaps that should not be a counsel of perfection. It ought to be given attention, but again I suspect that that is easier to say, and to make exhortations for, than it is to deliver in the legislation itself.
Lord Rowlands
Does the noble and learned Lord accept the fact that, as a result of the change in jurisdiction, there is going to be a very considerable increase in fast-tracking procedures within the Court of Justice and that this will have very considerable consequences for the rest of its workload?
Lord Wallace of Tankerness
The noble Lord raised the point about the possibility, post-Lisbon, of fast-tracking and asked whether there was going to be a significant increase. There are issues there which need to be considered. There is not yet any evidence of that coming through, but it is not something to which we are turning a blind eye. According to the Court of Justice’s report on its work in 2010—after the Lisbon Treaty came into force—the use of the urgent preliminary measure in respect of the area of freedom, security and justice was requested in six cases, and granted in five. It is of course relevant to the work of the Court of Justice in its consideration of preliminary references, which is its other main volume of work. It is less relevant in the case of the General Court, which does not do that kind of work. I shall come onto that, as there is agreement across the House that there are quite clearly issues as regards the work of the General Court.
We fully recognise that there are issues that need to be considered in terms of the particular problems which the General Court is facing. Justice delayed is justice denied: it is a phrase which trips off the tongue, but it is one with substance and truth. The position of the General Court is one to which we are giving our attention. The proposal on the table is the one that has come from the President of the Court. It is that there should be an increase in the size of the Court by nine. The House has reasonably asked about our position with regard to the consideration of a specialist trademark court or specialist chambers within the General Court. We see merit in the proposal put forward by the committee of your Lordships’ House of increasing the number and we are considering it against our basic criteria of quality of judgments, their timeliness and cost-effectiveness. That is why we are not ruling it out, but why we also believe that some of the other options ought to be given consideration too.
The noble and learned Lord, Lord Boyd of Duncansby, referred to the letter sent on 4 July by my right honourable friend the Minister for Europe to the noble Lord, Lord Roper. He pointed out that while he recognised the point that judges on a specialist tribunal may not be widely deployable, creating a specialist tribunal would free up judges in the General Court currently working on trademark cases to deal with other types of case. It is important to note that judges currently dealing with trademark cases, which form a substantial part of the General Court’s work, would be freed up for other work. The Commission itself said in its response to the President’s proposals, published at the end of last month, that it has looked at the possibility of specialist chambers within the General Court. It is important that these options are fully explored with regard to what will deliver the best in terms of efficiency, speed and quality of judgment.
However, as I have indicated, we cannot ignore the question of finance. I take the point made by my noble friend Lord Dykes that in the totality of the European Union budget it may appear a small matter, but nevertheless it is the Government’s position that there should be no increase in real terms over the next spending period. We want to examine the costs of the different options. The estimate of the Court itself on an increase of 12 judges is some €13 million. We would want to drill down on that and ask why the cost is more than €1 million per extra judge. We would also wish to look at the fact that the Court has had over the past year an underspend of €5.5 million. It is not unreasonable, in exploring the different options, to bear in mind the costs and to try to ensure that we not only achieve what is best in terms of speed of delivery, but also that there is efficient use of taxpayers’ money—not just that of British taxpayers, but of taxpayers throughout Europe.
As the noble and learned Lord, Lord Boyd, said, we recognise that delay sometimes brings its own costs, and that must be part of the equation, but we feel that considerably more work could be done, not least given the fact that there was a €5.5 million underspend of the Court’s budget last year. Obviously, as the committee itself indicated, it may be possible to find funds by deprioritising other parts of the budget.
I hope I have emphasised the fact that the Government take this issue seriously. We appreciate the constructive proposals that have been put forward. As I have indicated, we are not ruling out the possibility of an increase in judges. At the present time, the proposal on the table is for an extra 12 judges, which has come from the President of the Court. We are giving these matters detailed consideration through working groups and at ministerial level. We are also conscious that the outcome in the end should be to ensure that the Court of Justice, as one of the institutions of the European Union, delivers and serves the wider purposes both of the Union itself and of European citizens. They should be on the receiving end of justice when the call comes for it. I hope that I have reassured your Lordships that we are taking this matter seriously and working diligently to get the right outcome in terms of speed, quality and cost-effectiveness.
Localism Bill
(13 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hanham
“21A(1) Section 333 (regulations and orders) is amended as follows.
(2) In subsection (3) (regulations to be subject to annulment) after “except regulations under section 88” insert “or paragraph 15(5) or 16 of Schedule 4B”.
(3) After that subsection insert—
“(3A) No regulations may be made under paragraph 15(5) or 16 of Schedule 4B unless a draft of the instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament.””
Lord Shutt of Greetland
Lord Shutt of Greetland
This group covers all the government amendments on enforcement. Turning first to Clause 111 on retrospective planning applications, these amendments will, I think, allay the concerns raised by my noble friend Lord Avebury in Committee. He thought that the drafting of what is now Clause 111 was ambiguous in that it might be possible for a local planning authority to negate the purpose of this clause by both declining to determine a retrospective planning application and arguing that an enforcement appeal on ground (a) was also inadmissible. These amendments solve the problem. Amendment 211A specifies that the enforcement notice in question must be “pre-existing”. Amendment 211B defines a “pre-existing enforcement notice” as one that was issued before the application—being the retrospective application—was received by the local planning authority. To paraphrase what my noble friend Lord Taylor of Holbeach said in Committee, our policy is that those people seeking planning permission after the event should have one, but only one, bite at the cherry.
I move on to Clause 115, on powers in relation to unauthorized advertisements. In Committee, the noble Lord, Lord Borrie, supported by my noble friend Lord Black of Brentwood, was concerned that the provision for serving a removal notice for an allegedly illegal advertisement hoarding was not subject to a right of appeal to a local magistrates’ court, but only by means of a judicial review. Since that debate the Government have been convinced by the arguments made. We have therefore come forward with Amendments 213A, 213B, 213C and 214A. Amendment 213A says that removal notices should be subject to a right of appeal. Amendments 213B and 213C are minor drafting amendments for consistency of expression. Amendment 214A contains the right of appeal itself. The format of the right is very similar to those in new Sections 225C and 225H further on in Clause 115, but with some small differences to reflect that this right of appeal applies to notices requiring the removal of advertisement hoardings, rather than fly-posting or graffiti. I therefore hope that these amendments will meet the concerns of the noble Lords, together with their colleagues, the noble Lords, Lord Smith of Finsbury and Lord Rodgers of Quarry Bank. I therefore also urge the noble Lords not to press their Amendments 214 to 223, which have the same purpose as the government amendments, but do not quite work in the way intended. I beg to move.
Lord Borrie
My Lords, all the non-government amendments in this grouping have been proposed by me and colleagues from different parts of the House: the noble Lords, Lord Black of Brentford and Lord Rodgers of Quarry Bank. We were concerned in Committee that advertisers ought to have a right of appeal to magistrates’ courts against orders for removal of structures for the display of ads. They ought to have a right of appeal against orders made by planning authorities. There have in the past been such rights of appeal outside London and we were concerned that fairness suggests that that right should also exist within London and not just through the more expensive procedure of seeking a judicial review in the High Court. The amendments have, of course, been put down again at this stage, but one has learnt over the weeks—and it is now confirmed by the noble Lord, Lord Shutt of Greetland—that the Government have moved considerably on the matter. As it seems that the government amendments are satisfactory from the point of view that I have mentioned, I will at the appropriate moment not press the non-government amendments in this group.
Lord Black of Brentwood
My Lords, I warmly welcome the government amendments. In talking to this group, I declare an interest as a director of the Advertising Standards Board of Finance. I first raised this issue at Second Reading with the health warning that it appeared to be a rather dry and technical issue. So it is, but it has been an important issue to a substantial industry. The outdoor advertising industry in the UK is worth well over £1 billion and accounts for 10 per cent of all display advertising, employing, directly or indirectly, about 15,000 people. It is also a very responsible industry and is fully committed to the codes of advertising practice enforced by the Advertising Standards Authority. Although the noble Lord, Lord Smith, may be able to tell us more, complaints about outdoor advertisements have, as I understand it, dropped by more than 30 per cent in the past year or so. It is absolutely right that we should do what we can to support the industry, and the Government’s amendments—which will give the industry real local power over appeals against enforcement notices—do just that.
I add my thanks to the Minister and her colleagues for listening to the real concerns and for acting. These amendments give real force to the issues that we raised and I warmly welcome them.
Lord Smith of Finsbury
My Lords, I support the noble Lords, Lord Borrie and Lord Black, in welcoming the Government’s amendment and I agree with them about withdrawing our alternative amendments.
As chairman of the Advertising Standards Authority I believe strongly in the enormous value of responsible advertising. The outdoor advertising industry is, overwhelmingly, hugely responsible. The amendment ensures that that responsibility and the freedom to advertise that goes along with it will remain firmly in place, and sensibly so. I welcome the Government’s amendment. I thank them for listening and for producing a highly acceptable formula in their amendment.
Lord McKenzie of Luton
My Lords, we obviously support the Government’s amendments on retrospective planning permission, particularly those in relation to unauthorised advertisements. I understand that my noble friend Lord Borrie and his colleagues will not press their amendments. The Government should be congratulated on listening to the arguments from across the House and the discussions that took place outside the Chamber. We have got a good outcome to this issue which we support. We thank the Government for listening.
Lord Shutt of Greetland
My Lords, I am grateful for those four splendid contributions.
Baroness Hanham
“(2) For the purposes of the operation of this section in relation to any particular application for planning permission, a “pre-existing enforcement notice” is an enforcement notice issued before the application was received by the local planning authority.”
“70D Requirement for consultation on retrospective application
A local planning authority must, on receipt of an application for retrospective planning permission, notify and consult on the application those who were notified and consulted on the original application, and must have regard to any responses to the further consultation.”
Baroness Gardner of Parkes
My Lords, I should like to clarify that I am not speaking about what I would call a repeat amendment, where someone is coming back for another planning application; I am speaking purely about cases where someone has built premises in contravention of the planning permission they have been granted.
This has happened to me in both London and the country. I supported the application in the country, only to find that an extra metre and a half had been built on a wall, cutting off totally our view of the village green, which was a very pretty part of the place. When I rang the council to ask why nothing had happened about this, they said, “Oh, we gave him retrospective permission for it”. The same happened in London, where I actually phoned the council during the construction and said that it was not being built according to plan. “Oh of course it is”, they said. Eighteen months later the council came back and said, “You’re quite right, it was not. However, we felt that as people had already moved into it, we should give them retrospective permission”.
This is quite unfair to people who have a right of legitimate comment on the original planning application but have no idea when the council is considering a whitewash for something that should not be. That is the purpose of the amendment. I beg to move.
Lord Beecham
My Lords, I would have thought that this amendment is unnecessary. If an application for retrospective consent is a fresh application, it would, or should, be notified to those occupiers—not necessarily those who objected before, who might be living anywhere. However, surely it should be treated as an application de novo, and therefore the normal processes would apply. So those affected on a retrospective application would receive notice. I should think, unless the Minister disagrees, that the amendment is otiose.
Lord Shutt of Greetland
My Lords, I believe that the noble Lord is right on this. I thank my noble friend Lady Gardner of Parkes for bringing this forward. It is important that we get this absolutely clear. This word retrospective largely means that something happened for which there was no permission. Someone spots it and says, “Look here, you’d better put in a planning application”. That’s the position. In all instances where there is a change, there are requirements in place for local planning authorities to publicise and consult on those applications—that is, the retrospective ones. This is true when a new revised planning application is submitted, and where the holder of a planning permission wishes to delete or vary one or more of the conditions to which their existing planning permission is subject. The Government therefore believe that this amendment is a solution to a problem that does not exist. I hope that my noble friend will feel able to withdraw it.
Baroness Gardner of Parkes
I thank the Minister for that answer. I really find it surprising that I should have been unfortunate in two entirely different locations in this respect. But I accept what he says and beg leave to withdraw the amendment.
“( ) In section 171B (time limits), after subsection (4)(b) insert—
“(c) at any time taking enforcement action in accordance with an enforcement order which has not been complied with by the party that has breached planning control.””
Baroness Gardner of Parkes
My Lords, I am hoping that this one is equally unnecessary. I moved this amendment in Committee—or an amendment very like it—but when the government reply came, the Minister thought that I was asking about the right to take a new enforcement action well after six years, which is apparently the limit. That was not my point. My point concerns situations where enforcement action has been taken. Again, somewhere near me there is a property which is in foreign ownership; enforcement notices have been served; it has gone through the court process—everything—but nothing has happened for about 10 years now. They have absolutely failed to comply and cannot be contacted anywhere. That is really why I tabled the amendment. However, I hope that the Government will tell me that it is not necessary. I beg to move.
Lord Shutt of Greetland
I understand the concerns of my noble friend Lady Gardner of Parkes. Again, however, this amendment is not necessary. Section 171B deals with time limits for taking enforcement action—essentially, serving an enforcement notice. It does not deal with ensuring compliance with that notice. A valid enforcement notice—in other words, one that has not been appealed against, or has been upheld on appeal—remains in force indefinitely unless the local planning authority withdraws it. If the person on whom it has been served does not comply, they can be prosecuted. The maximum penalty is a £20,000 fine in the magistrates’ courts, or an unlimited fine on indictment, and can be subject to a repeat prosecution if they still fail to comply. The penalty is a daily fine until compliance. The local planning authority can also do the works in default and recover its expenses from the landowner. So I believe that there is no need for the amendment, and I trust that my noble friend will feel able to withdraw it.
Baroness Gardner of Parkes
Again I thank the Minister. I am delighted that he has given me that answer. To have it in writing means that I can go back to the local authority and try to persuade it again to pursue the matter. I beg leave to withdraw the amendment.
Baroness Hanham
Baroness Hanham
“225AA Appeal against notice under section 225A
(1) A person on whom a removal notice has been served in accordance with section 225A(3) or (5)(b) may appeal to a magistrates’ court on any of the following grounds—
(a) that the display structure concerned is not used for the display of advertisements in contravention of regulations under section 220;(b) that there has been some informality, defect or error in, or in connection with, the notice;(c) that the period between the date of the notice and the time specified in the notice is not reasonably sufficient for the removal of the display structure;(d) that the notice should have been served on another person.(2) For the purposes of subsection (3), a person is a “permitted appellant” in relation to a removal notice if—
(a) the removal notice has been fixed or exhibited in accordance with section 225A(5)(a);(b) the person is an owner or occupier of the land on which the display structure concerned is situated; and(c) no copy of the removal notice has been served on the person in accordance with section 225A(5)(b).(3) A person who is a permitted appellant in relation to a removal notice may appeal to a magistrates’ court on any of the following grounds—
(a) that the display structure concerned is not used for the display of advertisements in contravention of regulations under section 220;(b) that there has been some informality, defect or error in, or in connection with, the notice;(c) that the period between the date of the notice and the time specified in the notice is not reasonably sufficient for the removal of the display structure. (4) So far as an appeal under this section is based on the ground mentioned in subsection (1)(b) or (3)(b), the court must dismiss the appeal if it is satisfied that the informality, defect or error was not a material one.
(5) If an appeal under subsection (1) is based on the ground mentioned in subsection (1)(d), the appellant must serve a copy of the notice of appeal on each person who the appellant considers is a person on whom the removal notice should have been served in accordance with section 225A(3) or (5)(b).
(6) If—
(a) a removal notice is served on a person in accordance with section 225A(3) or (5)(b), and(b) the local planning authority bring proceedings against the person for the recovery under section 225A(7) of any expenses,it is not open to the person to raise in the proceedings any question which the person could have raised in an appeal under subsection (1).(7) In this section “removal notice” and “display structure” have the same meaning as in section 225A.”
Lord Berkeley
“(3A) After subsection (2)(b) insert—
“(ba) in the case of an application for an order including provision authorising the compulsory acquisition of—(i) statutory undertakers’ land(ii) local authority land,(iii) National Trust land, or(iv) land forming part of a common, open space or fuel or field garden allotment,the effect of the compulsory acquisition of any such land”.”
Lord Berkeley
My Lords, I shall speak to Amendment 223ZA and the other amendments in this group. I first apologise to the House for bringing these amendments forward comparatively late in the day. I will be as quick as I can although the amendments are fairly technical, with some pretty detailed arguments behind them.
The amendments stem from the issue of the change in responsibility for decision-making from the Infrastructure Planning Commission to the Secretary of State and provide that Parliament, in the form of the House of Commons only, approves the national policy statement series that is supposed to underpin the new regime. There have already been some minor changes to improve the process of planning major infrastructure projects and to streamline the whole process. I suspect that now that the Secretary of State will be the final decider—that is a political decision—rather than an official, many of the checks and balances that were in the original Act could possibly be dispensed with or reduced in scope to try and simplify the procedures.
I know that these points have been made to officials quite frequently over the past few months and that the noble Lord, Lord Jenkin of Roding, moved similar amendments in Committee. When the noble Earl, Lord Attlee, responded to the noble Lord on 19 July, he said:
“I would like to consider the points he has raised in more detail and consult him and others between now and Report to see whether anything further can be done”.—[Official Report, 19/7/11; col. 1319.]
I am not aware of any meetings that have taken place since then, which we probably all regret in retrospect. I will try to go through these various issues as quickly as I can and hope that we can all have a meeting with the Minister between now and Third Reading to see whether any of these particular issues can be resolved. The Government could then bring back some amendments at Third Reading.
To go through them quickly, starting in not quite the right order, Amendment 223ZD refers to Section 127 of the Planning Act, which requires a separate consent to be sought from the Secretary of State in some circumstances when it is proposed to acquire statutory undertakers’ land compulsorily. Again, now that the decision has been transferred back to the Secretary of State, this is probably an element of gold-plating. I suggest it would be sufficient if the Secretary of State was required to take into account the views of the undertakers.
Amendment 223ZE refers to Sections 128 to 132 of the Planning Act, concerning the special parliamentary procedures which are available if there are objections from various organisations and authorities which end up having to go through a Joint Committee of Parliament, which could take quite a long time to resolve. The restoration of the Secretary of State’s decision-making power could allow these provisions to be removed and for it to be left to the Secretary of State to decide whether to grant consent for an application that affects these types of special land holders. The SPP seems to be unnecessarily complex and gold plating.
Amendment 223ZF refers to Section 137 of the Planning Act, which requires a separate consent to be sought from a statutory undertaker or the relevant Secretary of State in some circumstances where the undertaker’s apparatus is installed. Again, the same comments could apply to that. Amendment 223ZG refers to Section 138 of the Planning Act. It inserts an additional test and a consent from the relevant Secretary of State where the undertaker’s rights to use land are being extinguished.
All these separate consents, which will often involve other Secretaries of State as well, fly in the face of one of the main purposes of the Planning Act regime, which was to create as far as possible a single consents regime. There are many examples I can quote but it is well known to your Lordships’ House and Ministers. It seems that the Planning Act provisions set out in these texts go much further than the two key order-making procedures that the Act replaces—TWA and harbour orders. Taking them as precedent there is an argument for saying that there is a bit of gold plating in here.
It is interesting that on 13 October we heard the first IPC decision which was to allow Covanta’s proposed energy from waste project in Bedfordshire. It was made within the statutory timescale of nine months. I am sure we are all happy to see the IPC sticking to its timetable. However, 43 of the 96 plots of land to be purchased are owned by statutory utilities or local authorities and they have made representations about the project. The Planning Act requires the project to be subject to the special parliamentary procedure which could add six to nine months to the programme, which for a big project is actually quite serious. There is an opportunity to put this right and to incorporate some of these amendments to simplify the process and accept that because we now have the Secretary of State making all the decisions he can take all these issues into account.
I will now mention one or two other items as briefly as possible. There are a large number of things that we really cannot go through at this time of night but there is one issue that refers to the construction of these big projects. It means that regulations made under Section 150 of the Planning Act still require the promoters to seek myriad other consents and regulators before they can start construction. The Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010 lists 42 separate agencies or authorities from which permissions have to be sought and a further 36 for Wales only, which I find quite interesting. Why is Wales so much more complicated? Again, it would be an enormous help to these projects if there could be just one consent which went through the IPC process.
I could spend a lot more time going through the detail of the technical issues. I hope that it might be possible for those of us who take an interest in this to have a meeting with Ministers before Third Reading to see whether we can encourage the Government to make some changes at that stage. I am sure that the noble Lord, Lord Jenkin of Roding, and perhaps other colleagues, would wish to participate fully in such a meeting. I beg to move.
Lord Jenkin of Roding
The noble Lord, Lord Berkeley, has masterfully reduced what could have been a very long speech into one that lasted less than 10 minutes. There has been some confusion about this whole matter. The group of amendments that I moved in Committee on 19 July contained a large number of separate and discrete subjects. The amendments that I moved were concerned primarily with ensuring a seamless transition from the existing IPC procedure to the NSIP procedure. I will not go into the details now but my noble friend Lord Attlee very kindly said that there should be discussions on this. Those who were advising me on this matter did have discussions with officials in the department. The result was that when we approached Report stage, when I asked them whether they had achieved what they were looking for, they said yes. Therefore, I have not retabled those amendments. However, as the noble Lord, Lord Berkeley, has rightly said, there were other amendments, a lot of which were aimed at the proposition that there should be a one-stop shop.
As I understand it—I am open to correction—for some reason the meeting with officials did not take place until last week. There was a misunderstanding about who was seeking to organise the meeting and make sure that proper discussions could take place. I think that the meeting took place on 13 October, with the result that the large number of amendments in the name of the noble Lord, Lord Berkeley, were tabled only on Friday and appeared with an asterisk in this morning’s revised Marshalled List. I had not realised that they would appear on the Marshalled List. I have made inquiries and I have a great deal of information on this issue but most of them are the same as those we discussed on 19 July in Committee, although there are one or two additional ones to which no doubt attention will be drawn at some stage. Whether it was the fault of my noble friend on the Front Bench or of those who have been advising us, the fact of the matter is that there have not been the discussions that there should have been and that my noble friend offered when he wound up the debate on 19 July. Therefore, we are in a slight difficulty on this. I hope that the request of the noble Lord, Lord Berkeley, that serious meetings should be held before Third Reading so that we can, if necessary, retable the amendments, or some of them, at that stage and have them debated will be taken note of.
Lord Boyd of Duncansby
My Lords, this is the first time that I have spoken on Report, so I repeat my declaration of interest: I am a solicitor in private practice and registered as a foreign lawyer in England and Wales, and some of my practice involves planning. I recollect that in Committee I stood to support amendments in terms very similar to those before the House this evening. I cannot now recollect in whose names the amendments stood, but I was pleased that the Minister, the noble Earl, Lord Attlee, offered to discuss that issue. It may be that I and others took our eyes off the ball, as it were, in following up the matter. I do not want to take the time of the House unnecessarily because both my noble friend Lord Berkeley and the noble Lord, Lord Jenkin, have gone through remarkably succinctly the detail of the amendments in the group.
The central issue is that the development consent order is expected to be an omnibus order that will encompass a range of other consents and will reduce the number of applications that a developer has to make, thereby making the development procedure that much easier.
The amendments address two issues seriously. The first is the range of further consents required beyond the development consent order. My noble friend Lord Berkeley listed the consents that are still needed—another 42 are still required, including 36 in Wales. Of course, there are occasions when you require specialist input that only specialist agencies can give—these are necessary safeguards—but, on the other hand, the policy behind this ought to be to reduce to the minimum the number of other consents that are required. That would be consistent with this Government’s approach to reducing regulation and removing red tape. There are a large number of these further consents that can be effectively removed without reducing the necessary safeguards. At Committee stage, I gave an example of the London Gateway Port Harbour Empowerment Order 2008, which is an order under the Harbours Act which included provisions for the benefit of the Environment Agency, and would be a model for that.
The second strand is the further consents and procedures necessary on top of what the IPC grants in a development consent order—in other words, the further consents from the Secretary of State where, for example, land of statutory undertakers is being compulsorily acquired or the special parliamentary procedure applies. This procedure is not one that is used very often, yet we find, as my noble friend Lord Berkeley said, that the first application to be granted by the IPC requires that further consent.
Some might say that we need to have a proper check and balance. I accept that when the Infrastructure Planning Commission, which the Government told us was an unelected quango, was making its decisions independently of any outside scrutiny, it might then have been appropriate to keep a number of other procedures and safeguards in process—safeguards which were accountable. Now that we have the Secretary of State giving the final decision, you can incorporate within that the necessary safeguards that some noble Lords may wish to see.
There are also, within this group, issues in relation to the discharge of requirements. I do not intend to take up the House’s time on that, but there are important issues in relation to ensuring that the regime that we create works effectively and that the transition from the Infrastructure Planning Commission, which makes the decision at present, to one where the Secretary of State is deciding on the recommendations of the major infrastructure unit of the Planning Inspectorate, is effective too.
I hope that the Minister will look at these issues seriously. They are important and they are designed to reduce the amount of bureaucracy and red tape that there is and make this a streamlined process.
I make one final point. A European Commission study into the consenting regimes for major infrastructure projects throughout the European Union commended the one-stop shop, which at the moment is encompassed within the Infrastructure Planning Commission, but which, when this Bill goes through, will still be there but with the Secretary of State. My understanding is that the European Commission is likely to make regulations to ensure the acceleration of the deployment of priority energy infrastructure projects by concentrating resources, simplifying and enhancing permission procedures and making use of innovative financial instruments. In order to enhance national permitting and granting processes, each member state will be required to create a competent authority—a one-stop shop—responsible for those tasks. Therefore, it looks as though we will get a seal of approval, if that is required, from the European Commission. We can make things better.
I hope that the Minister will take away these matters and look at them seriously.
Lord McKenzie of Luton
My Lords, it is unfortunate that a raft of technical amendments have come forward very late in the day, and seemingly in an environment where the promised engagement in Committee was not fully realised. That is not the best way for us to deal with these hugely important matters. It means that we are stacking up yet another issue to deal with at Third Reading. Whether we get through Third Reading in one day remains to be seen.
I hope that we all agree that, in relation to infrastructure, we want an efficient and effective system of dealing with planning. We have heard arguments about a one-stop shop and the extent to which we are some way from that. We have heard about the issues around the extent to which there should be a parliamentary process now that the Secretary of State is the ultimate decision-maker. I say to my noble and learned friend Lord Boyd and to my noble friend Lord Berkeley that I would need a bit of convincing to step aside from a parliamentary procedure just because the Secretary of State is making the final decision. We have debated the Bill in some detail and the issue of the powers of the Secretary of State has been a running sore in our deliberations, but I remain to be convinced on that.
Certainly I agree with and support the importance of having a one-stop shop on the raft of consents that apparently are still needed. However, the clock is ticking on Third Reading. This is an opportunity to sort out some issues, but we do not have much time in which to do it. It may be, as my noble and learned friend Lord Boyd said, that the EU could overtake us on this matter. We have a couple of weeks before Third Reading and there are very serious issues that have been raised tonight by all three noble Lords. The noble Lord, Lord Jenkin, also raised new points that we had not touched on before about who can make these qualifying requests, as well as issues around pre-application consultation. I hope that the Minister will be able to give us a full response on these issues. Generally, I find that we are in an unsatisfactory position on a hugely important issue for this country.
Earl Attlee
My Lords, I thank all noble Lords who have spoken. On the point about meetings, I cannot understand what has gone wrong. I would never resist meetings, not least because I find them so valuable. It is my responsibility to call a meeting. On the other hand, if it looks as though the meeting is not going to happen, a reminder would be helpful—and I do enjoy the meetings that I have with the noble Lord, Lord Berkeley.
We are very short on time. The amendments in this group seek to change the Planning Act 2008. Although they are technical in nature, they are none the less important, so I shall respond to each in turn. Amendments 223AA and 223AB, in the name of my noble friend Lord Jenkin, seek to limit the circumstances in which a qualifying request for a direction under Section 35 of the Planning Act 2008, as amended by Clause 120 of the Localism Bill, may be made. The amendments would restrict those who can make a qualifying request to the proposed applicant and the authority in question. Amendment 223AB would prevent a qualifying request from being made after an application is made to the relevant authority.
Lord Berkeley
My Lords, I am extremely grateful to the Minister for a very full response on this group of amendments. It is incredibly helpful to have it on the record. I am sure we will be happy with the response on some of the amendments, but it will certainly be necessary to read in detail what the Minister said to see the extent to which it is worth taking the amendments further to try to simplify the objective of a one-stop shop.
Before I withdraw the amendment, I want to put on record that I do not think any of us were trying to blame the Minister for not having a meeting. We are all guilty, or we are all innocent. We did not have it, and we have a lesson to learn from that. I am sure that, if we find something we would like to discuss before Third Reading, the Minister will, as usual, be pleased to see us. I beg leave to withdraw the amendment.
Lord Berkeley
“Directions relating to railway projects
(1) In the Planning Act 2008 after section 35A insert—“35B Directions relating to railway projects
(1) Subsection (2) applies if a project for the construction or alteration of a railway includes—
(a) development which is within section 14(1)(k), and(b) development which is permitted development and which is to be carried out wholly in England.(2) The Secretary of State for Transport may, in response to a qualifying request, direct in the case of any specified development within subsection (1)(b) that—
(a) development consent is not required for the specific development, or(b) development consent for development within subsection (1)(a) may also be granted for the specific development.(3) A direction under subsection (2) can only be made if the Secretary of State for Transport thinks that the making of the direction will promote the efficient and timely development of the rail network.
(4) Subsection (5) applies if—
(a) a project consists of development which is within section 14(1)(k), and (b) the Secretary of State for Transport thinks that the project, taking into account its size, its potential effect on the railway network and all other relevant circumstances, is not of national significance, whether by itself or when considered with any other related project or proposed project in the same field.(5) The Secretary of State for Transport may, in response to a qualifying request, direct the development to be treated for specified purposes or generally as development for which development consent is not required.
(6) If the Secretary of State for Transport decides to give a direction under subsection (2) or (5), the Secretary of State for Transport must give reasons for the decision.
(7) In this section “qualifying request”, in relation to any development, means a written request which is made by the person proposing to carry out the development and which specifies the development, and—
(a) in the case of a request for a direction under subsection (2), explains why the conditions in subsections (1) and (3) are met; and(b) in the case of a request for a direction under subsection (5), explains why the conditions in subsection (4) are met.”(2) In section 15(5) (development for which development consent may be granted) after “associated development” insert “or development in respect of which a direction has been given under section 35B(2)(b)”.”
Lord Berkeley
My Lords, I assure the House that I shall be quicker than the last group of amendments. This is something that has come up quite recently, when we have tried to see how the IPC and the Planning Act 2008 should be applied to railway projects. It appears that there is no minimum size for railway projects to have to go to the IPC under the Planning Act. The example that has been brought to my attention is the electrification of the Great Western main line between Airport Junction, which is near Heathrow, and Cardiff, where Network Rail may have to demolish certain bridges or do other works. It mainly has the permitted development rights for those works but some of them may creep a few yards outside those rights. It has been suggested that any such creep would need permission through the IPC, so the amendment suggests that it would be nice if the Secretary of State were minded to direct that specific and maybe small developments outside the limits of permitted developments could proceed without any other process, on the basis that they were quite small.
It is not just about the electrification of the Great Western main line. The East West Rail project, roughly between Oxford and Milton Keynes, has found two places where the existing railway has never had permission. One little connection between two lines was built in the last war and nobody can find the documentation giving it permission; it may be with the British Rail Property Board but it has not found it. There is another place where the route that got permission went through a farm and the actual railway went round it; clearly the person owning the farm at the time saw somebody all right and there was a gentle deviation, which of course was no problem 150 years ago. Quite rightly, the promoters of this line want to get the legal situation correct before they start building.
There is a problem here which requires some change to the Planning Act, probably to Section 14. Perhaps the Secretary of State might be minded to bring forward regulations to find a way of getting some smaller railway projects permissions in a process outside of the IPC, which is meant for big projects and takes a long time to do. One can debate whether the problems here are with the Transport and Works Act, an ordinary planning application or something else, but I am sure the Minister will understand them. Maybe he has a better solution. I am grateful to him for the meeting that he arranged some time this summer. I cannot remember when it was now but we had a good discussion about this. What we do not want is for our new Secretary of State for Transport to turn round in six months’ time and say that the electrification is held up for a couple of years because they cannot get permission for a couple of yards’ extension to a bridge and that it has to go to the IPC. On that basis, I beg to move.
Lord McKenzie of Luton
My Lords, my noble friend has brought forward what seems to be an entirely reasonable proposition. I look forward to the Minister’s reply. I add only that I do not know whether the same issue arises in relation to projects other than railway projects. Perhaps the Minister can cover that as well.
Earl Attlee
My Lords, first, I thank the noble Lord, Lord Berkeley, for his work in this area. In answer to the noble Lord, Lord McKenzie of Luton, I have really considered this matter only in respect of railways but I think that noble Lords will find my answers satisfactory. The noble Lord and I did indeed have a meeting on this—ironically, I turned up a few minutes late.
Amendment 223A would amend the provisions of the 2008 Act which relate to railway projects. The amendment seeks to introduce two new powers. The first relates to a case where a railway project contains both development for which consent is required under the 2008 Act and development for which permitted development rights exist. In this case, the amendment seeks—on application from the promoter—to permit the Secretary of State for Transport to direct that the permitted development should be dealt with under the Planning Act along with the development for which consent is required under the Act. I confirm that Section 35 of the Act already provides a power of direction capable of achieving this. A new power is not necessary. The second relates to a situation where development consent is required for a railway project under the 2008 Act. In response to a qualifying request, if the Secretary of State for Transport thinks that the project is not of national significance, he may direct that the development should be treated as development for which consent under the Planning Act is not required.
My DCLG officials have discussed this matter with the Department for Transport and Network Rail, and have agreed that a carefully considered threshold would be preferable to such a power, as it would provide greater clarity on what should be considered major infrastructure. We have therefore agreed that secondary legislation should be brought forward under Section 14 of the Planning Act to set a suitable threshold for rail projects, as suggested by the noble Lord, Lord Berkeley. This will be taken forward by the Department for Transport. With this assurance, I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Berkeley
I am extremely grateful to the Minister for that very positive response. Perhaps I could tell my noble friend Lord McKenzie that it applies only to railways because in other major project areas under the Planning Act there is always a minimum threshold. For some reason, one was not done at the time for railways—everybody thought that railways were big ones, and nobody picked it up. I suppose I should ask the Minister when the regulations will be tabled, but I am sure that he recognises the importance of that for certain projects. If it would help in drafting these things I am happy to meet with him, along with people from Network Rail and other infrastructure managers if they are interested. However, that seems to be a very good way forward and I am very grateful to him. On that basis, I beg leave to withdraw the amendment.
Lord Berkeley
“Hydraulic fracturing of underground rock
(1) Within 12 months of this Act being passed, the Secretary of State shall, by order, amend the Planning Act 2008 as follows.
(2) In section 14(1) (nationally significant infrastructure projects: general), at the end insert—
“(q) the hydraulic fracturing of underground rock”.”
Lord Berkeley
My Lords, this is a completely different subject; it is to do with something which is colloquially called fracking. I raised it very briefly in Committee, but we were short of time then and I am grateful to the noble Baroness for the letters that she wrote, dated 5 September. Since that time I have had further thoughts about it. I have had quite an amazing amount of correspondence from people on the basis of a very short entry in Hansard. That is why I have tabled this amendment tonight, because it needs a different solution.
Very briefly, fracking comprises drilling a hole that is probably several kilometres under ground, pumping in water and unspecified chemicals, and sometimes apparently causing an explosion in the hope that gas will come up to the surface. There have been some pretty horrendous stories from the United States, where this is apparently quite common. There, houses have collapsed or settled seriously while water sources, and therefore water supplies, have allegedly been poisoned. In one instance, I believe that gas came out of the water tap, which must have been quite frightening.
I am not saying that that is going to happen here. However, the press release relating to what I believe is the first attempt at fracking in this country, somewhere near Blackpool, by a company called Cuadrilla Resources—the noble Lord, Lord Browne, an ex-chairman of BP, is apparently its chairman—said that it was excited because that could produce 200 trillion cubic feet of gas. I do not know what that means to the ordinary person in the street but it would be something like 30 years of gas. It all sounds very nice, with mouth-watering profits. But what will happen to the people who might be affected not by just the drilling and the things that I have mentioned, but by extra traffic on the roads, construction work and everything like that?
I know that there would be licensing from DECC and others. But if it were to happen around the country, I do not think that one can expect a local planning authority to have the resources to give something that is pretty technical due consideration, especially when it is balanced by potentially exciting numbers of new jobs and extra revenue from rates. It would be unfair to expect local planning authorities to give it the consideration that it deserves. I believe that the right solution is to make another change to Section 14 of the Planning Act to create a new type of project to include hydraulic fracturing of underground rock —it is not called “fracking” in the amendment.
This new type of project would then be subject to the IPC process but, equally importantly, it would have to have a national policy statement in which all these questions that I have been suggesting and more could be investigated, responded to, debated in the House and consulted on. We would all then have confidence that if this process could be done safely with minimum upset to local residents, it could go ahead on a national basis. If not, it will be in trouble. That is the purpose of my amendment. I beg to move.
Lord Jenkin of Roding
My Lords, it is right that the noble Lord, Lord Berkeley, has brought this matter back to the attention of the House. I have attended a number of lectures and presentations about the development of shale gas. As he said, it is perfectly true that there are substantial areas of shale several kilometres or more under the surface of this country, which could be, in appropriate circumstances, a source of gas for this country. However, a good many people have said to me, “But you would never be able to deal with this properly in a country that is as crowded and as fully populated as the United Kingdom”.
It has happened in the United States—indeed, it is happening on a very substantial scale—but there are wide open spaces there. It is apparently likely to happen in Poland where, again, there are substantial areas where it could be done without interfering with the life of the normal population. But in the crowded areas of western Europe and the United Kingdom, there is a widespread view that this is not likely to happen.
I, too, have had correspondence from a farmer in west Lancashire who has written in terms of being extremely anxious about what is happening. Yes, we had the small earthquake outside Blackpool, which is perhaps a foretaste of what may come. But the real concern is the huge amount of surface activity that has to go on at regular intervals. There is a limit to the amount you can drill horizontally before you need to drill another hole down and have all the equipment and plant at the top to deal with it.
There is quite a movement now to say that there should be a moratorium on this until it has been examined a great deal more thoroughly. I do not know enough about it. The noble Lord, Lord Browne of Madingley, clearly regards it as very important: he is the chairman of Cuadrilla, which is the only company that I am aware of that is drilling so far in this country. One needs to treat this very seriously, as it is a serious prospect. If we could find an acceptable process for recovering very large quantities of shale gas, that would replace a lot of the North Sea gas, which appears to be coming towards the end of its life. At the same time, however, if there are enormous disturbances of local populations and communities because of a huge rash of surface activity, this solution would seem to be worse than the problem.
I do not know what the answer is—whether it is a moratorium, or it is simply sufficient to say that it will come under the NISP process. As I said to the lady who wrote to me, it is going to be jolly interesting to learn what the Minister says in answer to this amendment. All I know is that there is a widespread view that it is not going to catch on in this country for the reasons I explained a few moments ago. I look forward hearing my noble friend’s response.
Lord Greaves
My Lords, this issue is closer to me than to other noble Lords, since the Bowland shale, which is the reserve of rock that potentially contains a large amount of methane, if it could be extracted in a sensible and safe way, underlies at a very great depth of some two miles or so a large amount of the Lancashire plain, and extends up towards Pendle Hill, where it is rather nearer the surface. Like other noble Lords, I have taken an interest in this and decided that I ought to find out something about it, as it is clearly extremely controversial. I have been doing just that, and I spent an extremely interesting three hours last Friday afternoon at the site at Banks in Lancashire where the firm Cuadrilla is currently drilling. Its employees showed me around, explained what they were doing and told me a very good tale. I listened and, like all very good tales, will assess it against all the other evidence in this particular case.
I have been deliberately trying not to take a view on the desirability of the extraction of shale gas until I discovered a great deal more about it. My current view is that the people who claim that this will be the answer for decades to the gas problems of this country are overegging their case a little bit, or quite probably a very large amount, but, equally, the people who claim that it would be the kind of environmental disaster in this country that it clearly has been in parts of the USA are also overstating the case. The regulatory regime in this country is very much stricter and more acceptable than the regime in the USA, particularly in some states of the USA. I doubt whether we will get the environmental devastation that has happened in some parts of the USA. I am told by Cuadrilla, although I cannot confirm it, that the famous picture which we have probably all seen on television of the water tap setting on fire was a result not of shale gas but of drilling into coal-seams. Even so, this clearly has to be taken extremely seriously indeed.
The licensing regime at the moment appears to be threefold. First of all, drilling for shale gas comes under ordinary petroleum exploration and development licences. Areas in which shale gas is currently being looked at have licences, issued in 2008 as I understand it, under that regime. It is a licence to explore and develop, but it does not grant planning permission or give the go-ahead even with planning permission. It is the first stage. The areas of this country where these licences have been issued in relation to shale gas include part of south Wales, where a different company, a British one I believe, is involved. I understand that there is also a wish to explore in a part of Somerset that has given rise to concerns in Bath about the spa waters.
The second stage is planning permission, which is what the noble Lord, Lord Berkeley, has been talking about. Planning permission is needed for exploration, and that is what is taking place in Lancashire at the moment. That planning permission was obtained from Lancashire County Council because in two-tier areas, the upper tier authority gives permission for mineral extraction. I have to say that, given the scale of the present exploration, it seems reasonable that the local planning authority, the county council in the case of Lancashire, should be in charge of this, although if it really took off, the points made by the noble Lord make a great deal of sense.
Lord Lucas
My Lords, I was thinking, as that speech went on, what it would have been like if we had been discussing, a couple of hundred years ago, the idea of opening up deep-mine coal in northern England. I think we would have been rather more aware of the dangers and that the dangers would have been rather more real. Houses do fall down coal-mines from time to time; the idea that they could fall down a hole made by fracking gas two miles deep is really not tenable. I am very sad to say this, as an ex-member of both Friends of the Earth and Greenpeace, but there is a typical, current environmentalist film around called “Gasland”, which, as far as I can establish, peddles nothing but lies, including that tap. If you drill a well through coal-seams you get gas out of it. That is not surprising, and methane is not exactly dangerous anyway. We are talking about a technology that, by and large, chucks household chemicals two miles deep. There is a chance of them coming back to the surface, but I am sure we will be careful about what we allow to be stuck down the wells.
I am someone who, although I do not have the pleasure of living in Lancashire, has lived in the Hampshire oilfields. Noble Lords may remember that in the 1980s there was a nice little mini-boom in wells all over mid-Hampshire, which we suffered happily without any great effect. There was a month when the drills were busy and then you were just left with a hut. That is really what happens with shale gas; you have a well every half kilometre or so and you are left with a garden shed that produces gas. It is not exactly an environmental problem, other than the interference when the drilling is going on. I think this is something that we will deal with extremely well within the boundaries of our ordinary and sensible systems for dealing with potential environmental hazards and for planning.
In fact, the Bill will make things better, because one of the problems with such developments in the past has been that they have benefited the oil company, they have benefited the Government and benefited the landowner who is lucky enough to have the well drilled on his patch, but the local community, which has put up with the noise, the transport during the drilling and the continuing risk of something going on with the well, gets nothing. Under the Bill, of course—under neighbourhood planning—the benefit will be shared and that will be a great step forward.
Lord McKenzie of Luton
My Lords, if I understand my noble friend’s proposition, it is that the hydraulic fracturing of underground rock will be brought within the national infrastructure projects regime, the planning regime that deals with major projects. I think that is central to what my noble friend is moving. We have had a wider debate about the potential importance of shale gas, what that might mean and the risks associated with it. It seems to me that we need a broader regime that encompasses all those issues: licensing regimes, as the noble Lord, Lord Greaves, said, not only to deal with exploration, but with exploitation as well. If there is to be no national infrastructure projects approach to this, then planning, presumably, is a matter for local planning authorities and, indeed, neighbourhood planning. That does not seem to me to fit well with something that is potentially of huge national significance, with potentially huge risks and uncertainties attached to it.
The noble Lord, Lord Greaves, said that this issue is worthy of a further debate. Perhaps when we have debated the NPPF to death we might turn our attention to it. I am a novice on this, but it is a fascinating and hugely important issue. I can remember when North Sea oil first opened up. It was a project on which I worked in my former life and I know some of the debate that went on around that. However, if I understand it correctly, my noble friend’s proposition about the environment within which the planning ought to be considered is a straightforward one, and he makes a good case.
Earl Attlee
My Lords, Amendment 223B seeks to require the Secretary of State, by order, within 12 months of Royal Assent, to add hydraulic fracturing of underground rock, commonly known as “fracking”, to the list of nationally significant infrastructure projects in Section 14(1) of the 2008 Act.
The first exploration for shale gas in the UK has begun only recently. Fracturing has so far been used on one shale gas drill site in Lancashire but is currently suspended pending a geomechanical study into seismic activity.
The noble Lord, Lord Berkeley, raised some wider planning issues, but fracking is no more difficult or technical than other mineral extraction methods, and my noble friend Lord Lucas said as much. The noble Lord, Lord Greaves, covered some of the regulatory issues, and I shall not go over that ground again. My noble friend Lord Jenkin referred to a small earthquake. Of course he was actually referring to a seismic event, which is slightly different.
The amendment would require hydraulic fracturing to be added to the types of activity that are considered nationally significant. It is not necessary, however, to use this Bill for that purpose; a secondary power exists to achieve this. I am happy to undertake that this issue will be raised with my colleagues in the Department of Energy and Climate Change and, if it appears appropriate to the purposes of the Bill to add this type of activity to the list of nationally significant infrastructure projects, we will use the secondary power. On that basis, I hope the noble Lord will feel able to withdraw his amendment.
Lord Greaves
My Lords, there has been a great deal of discussion previously about thresholds and nationally significant infrastructure projects. Does the Minister agree that the question of thresholds may also be relevant in this case?
Earl Attlee
My Lords, I am sure my ministerial colleagues in the Department of Energy and Climate Change will take all relevant matters into consideration.
Lord Berkeley
I am grateful to noble Lords who have participated in the debate. It has been a good debate in which a number of different views have been expressed. The noble Lord, Lord Greaves, made a good point about thresholds. As I raised it in a previous amendment in respect of railway projects, I think it is relevant to learn from something that possibly went wrong before.
I am grateful to the Minister for agreeing to speak to his ministerial colleagues and, if appropriate, to bring this matter forward by secondary legislation. I am therefore pleased to withdraw the amendment.
Lord Greaves
“Notification of initiation of development etc
(1) In the Town and Country Planning Act 1990, after section 106C insert—
“106D Notification of initiation of development
(1) A local planning authority may require a person who carries out relevant development to inform the planning authority of the date on which they intend to initiate the development as soon as possible after they make a decision on that date.
(2) A relevant development for the purposes of subsection (1) is one for which permission has been granted or for which a local development order, a neighbourhood development order or a community right to build order has been made.
(3) A local planning authority may apply the requirement in subsection (1) to all planning applications or particular descriptions of applications.
(4) A notice of planning permission or a community right to build order must where appropriate include a statement of the requirements of subsection (1) and section 171 and, where relevant, of section 106E.”
(2) In section 171A of the Town and Country Planning Act 1990 (expressions used in connection with enforcement), after subsection (1)(b) insert—
“(c) initiating development without giving notice in accordance with section 106D,”.”
Lord Greaves
My Lords, the amendment is a slight variation of an amendment that I moved in Committee and concerns the notification of the initiation of development. It is a development of the amendment suggested by the Royal Town Planning Institute which I put forward in Committee, and it has the support of the Town and Country Planning Association.
In Committee, I suggested that when development is initiated the developer should inform the local authority of the date on which it expects to start work in order that the local authority knows what is going on and can make appropriate checks if it wishes to do so.
Lord McKenzie of Luton
My Lords, we are in total agreement with the amendment; indeed we should have added our name to it. I apologise for not having done that. One of the issues that was raised previously was about regulation, and if you have a new regulation then something has got to go. I would urge the Government not only to take on board this proposition but to look and see what might be gained by trying to streamline other notification procedures, particularly in relation to building regulations and notifications in respect of the community infrastructure levy. Why can these not potentially be combined into one notification procedure? So you have got two out, and only one in, on that basis. That notwithstanding, it does seem a very sensible proposition which we support.
Earl Attlee
My Lords, my noble friend’s Amendment 223C is, as he has said, a simpler, more permissive version of the one he tabled in Committee. However, I regret to say that it still does not overcome the Government’s concerns that this would add yet a further element of complexity and box-ticking to the application process for both the applicant and the local planning authorities and yet yield no practical benefit for local planning authorities.
In the March 2011 Plan for Growth, the Government clearly cited the problem of the cumulative additional cost to business of new regulations introduced since 1998. It is essential that reforms continue to reduce costs, delays and bureaucracy in the planning system and support the Government’s collective approach to driving sustainable economic growth. Local planning authorities can, and do, ask for notification of commencement of development when and where they think it necessary. A developer failing to notify the local authority that the works had commenced would not be a good start to the relationship between them.
My noble friend may argue that an administrative scheme has no teeth if the developer does not return the form but the Government’s view is that new Section 106D, to be inserted by the amendment, would have no teeth either. Making the commencement of development without giving notice a breach of planning control implies that enforcement action could be taken. However, the point of enforcement action is to remedy breaches of planning control. Once development has started it will no longer be possible to give prior notice, so the breach could not technically be remedied and enforcement action would be ineffective. If it turns out that the developer has failed to comply with pre-commencement conditions as well as not giving notice, then the local planning authority can take such action as it sees fit, perhaps by serving a breach of condition notice.
The Government’s view is that this amendment will inject additional complexity into the planning process yet provide little practical benefit. I invite my noble friend to withdraw his amendment.
Lord Greaves
I do not know whether the Minister incites me to call a Division but I will not do so at this time of night. I can see my Chief Whip in his place, who might not be very pleased by that and I do not want to fall out with him.
The Minister made some good points. On reflection, the amendment could be further simplified, particularly by the removal of the last four lines. There is a problem. The Minister wants to reduce the amount of bureaucracy on the part of local planning authorities. At the moment, particularly on major developments where there is concern about whether the development has started, the authority sends people round to find out and look on site or ring people up. That takes time and effort.
It is really six of one and half a dozen of the other. On the local planning authority side, this would not make much difference at all. However, I am sorry that the Government will not accept this. They will not accept everything that I put forward in the Bill. I beg leave to withdraw the amendment.
Earl Attlee
“(5) The amendments made by this section do not alter—
(a) whether under subsection (2) of section 70 of the Town and Country Planning Act 1990 regard is to be had to any particular consideration, or(b) the weight to be given to any consideration to which regard is had under that subsection.”
Earl Attlee
My Lords, your Lordships will recall our helpful debate in Committee on this clause, when we dealt with an array of issues. I shall give a brief reminder of the key points before moving on to the amendments now tabled and the issues that I understand still worry some noble Lords.
I start by reiterating the Government’s purpose here. As my noble friend Lady Hamwee noted in Committee, the issue of local finance incentives and planning decisions was made topical by the new homes bonus, or NHB. When we consulted on that scheme, uncertainty was expressed about its relationship with planning. The CPRE was concerned enough to seek a legal opinion, which implied that the scheme might taint the planning decision-making process. The supposition was that the scheme might encourage local planning authorities to take non-material considerations into account when determining planning applications for new homes.
The CPRE is right to keep a keen eye on this issue but in some instances its press releases and briefings have unnecessarily added to the sector’s confusion and alarm. It has raised fears that that NHB will undermine the planning system and result in,
“hugely damaging consequences for local communities and the environment”,
and result in any local decision in which a local finance consideration were taken into account being,
“legally ‘tainted’ and open to question”.
The clause itself, which the Government prepared in an attempt to ensure that local finance consideration would not be taken into account in inappropriate circumstances—in other words, to address the CPRE’s core concern—has been branded as,
“a brazen attempt to legalise cash for sprawl”,
and as a temptation for local planning authorities to,
“fill shrinking coffers by permitting any development, regardless of its environmental impact or the views of local communities”.
All such claims, though doubtless borne of genuine concern, are based on a false premise about the effect of the clause. As such they are rather misleading. To be clear, the clause simply restates the existing legal position, confirming for the avoidance of doubt that, like any other consideration, a matter such as the NHB or CIL must be taken into account if they are material to the planning application under consideration.
Inevitably, the CPRE activity on this issue has not helped the confusion already apparent in the sector, evidenced, for example, by the London Borough of Islington which, in its response to the NHB consultation, said:
“The government should make it clear whether NHB can be taken into account as a material consideration when determining planning applications”.
It was precisely to address this confusion and to give a clear and lasting reminder that local finance considerations should be taken into account only where they are material in the long-understood sense—in line with case law—that Clause 130 was prepared.
It is clearly untenable to allow confusion to linger, particularly within the bodies responsible for making planning decisions. As I said in Committee, this would undermine the planning system’s integrity and affect public confidence. Making the legal position more clear should reduce the risk of local planning authorities being accused of letting financial incentives improperly influence their decisions and so facing legal challenges to their decisions.
In Committee, my noble friend Lady Hamwee asked why the necessary clarification could not be given in guidance. As I indicated at the time, we thought carefully about the option. However, the Government concluded that with confusion on this legal and technical issue so prevalent, the only responsible option was to bring the desperately needed clarity to the fore by using the Localism Bill.
Given the significant accusations the CPRE was asserting, the consequent confusion that local planning authorities were faced with, and the grave risk which that confusion posed to the proper operation of the planning system, we felt it essential to clarify the position and clear up the confusion in law. Using the Localism Bill presented the most immediate and visible way to set the record straight on this important message. As the confusion concerned the legal position it made sense to use legislation to clarify the point and provide councils with reassurance on what they should and should not legitimately do.
It may be helpful if I remind the House of the tests for a material consideration. I know some noble Lords remain uncertain as to the circumstances in which the NHB or the community infrastructure levy might be material to a particular planning decision. Current statute confirms that in determining planning applications regard must be had to the development plan so far as it is material to the application and to any other material considerations. Statute does not define what a material consideration is but clear tests for materiality have been developed through case law.
Baroness Parminter
My Lords, I rise to speak to Amendment 223D. As we know, this clause, which outlines that financial considerations can be material to a planning application, was added in the Commons as an incidental measure for clarification. As the noble Earl, Lord Attlee, indicated, the Government have argued that it is the new homes bonus that has necessitated such clarification. However, by using statute rather than the traditional route of guidance, the Government are undoubtedly creating further uncertainty.
The clause elevates financial considerations above all other legitimate planning considerations, which are not mentioned here or anywhere else in statute. As such, the courts will be used to decide just what Parliament means by putting financial considerations up front as a material condition. While the government amendment goes some way to try to tackle that ambiguity, there still remains a lack of clarity about when such financial considerations could be considered material. Until now, case law has determined whether or not a financial consideration is material. Over time that has been determined as it being necessary to make the development acceptable in planning terms, directly related to the application and fairly and reasonably related in scale to the application. On Report in the Commons the Minister gave an example of materiality which related to a road scheme that accommodates a development—a direct link between the use of the money and making the application acceptable in planning terms. Further, in the Government’s response to the consultation on the new homes bonus in February this year, they stated that the new homes bonus could be lawfully taken into account as a material consideration,
“where there is a direct connection between the intended use of the Bonus and the proposed development”.
My noble friend Lord Attlee gave a useful example of such a direct link. However, this key point about the direct link is not made at all in the clause or the government amendment. This direct linkage is what case law has determined makes a financial consideration material, and it is a fundamental principle—to me at least—that guarantees the probity of planning. The Minister has made much of the CPRE opposing this clause. However, it shows skill on the part of the Government to unite the CPRE, TCPA and RTPI in opposing this clause and government amendment.
Without that clarity it can be read that financial inducements that are irrelevant to the merits of a particular development proposal can be material in determining planning applications. It is just such a lack of clarity that the noble Lord, Lord Jenkin, rightly raised earlier when he talked about the changes around the use of the community infrastructure levy. It is quite clear that guidance will have to be issued to local authorities on how government incentives are intended to influence planning and how this will work in practice. If further clarification is needed on the relationship between financial considerations and considering planning applications, as the Government say it is, then cover that alongside government guidance about the workability of these incentives. That would avoid further legal wrangling over what Parliament intended to say by this clause. I beg to move.
The Deputy Chairman of Committees (Lord Faulkner of Worcester)
The House is debating government Amendment 223CA, with which Amendment 223D is grouped. Therefore the noble Baroness is not able to move that amendment separately.
Baroness Hamwee
My Lords, I think that my noble friend realised that when she started to speak. Some things become automatic as the evening goes on. I support my noble friend, who has made a very powerful case, as she has done on previous occasions.
I thought that I might be able to say tonight that the Lady at the Dispatch Box doth protest too much, but I suppose that Earls can protest too much as well. I find that as this debate goes on, the hole that the Government are digging is getting deeper and deeper. The position is not being improved by further re-emphasis. Can you have further re-emphasis? I think that we have got to that stage now—we are up to about three lots of emphasis. By adding this amendment, which says the same thing again, I become more and more concerned.
I do not want to repeat points that my noble friend Lady Parminter has made. However, the clause must mean something. It must mean something not otherwise provided for. I find it quite puzzling that the Government take the view that they need to use primary legislation to bring the matter, in the words of the noble Earl at the last stage,
“quickly to the attention of concerned parties”.—[Official Report, 20/7/11; col. 1420.]
I really do not believe that concerned parties need primary legislation to have this and the answer to it brought to their attention. The noble Earl told the House he thought that it would always be helpful, but it is not the practice, for legal advice to be shared. I asked innocently—it was not intended to be disingenuous, but probably sounded it—if we could have sight of the legal advice. I do not want this to sound ungrateful, but what we heard from the legal advice was not helpful, having got to this stage. We did not hear argument; we heard assertion. I am sure that it was not unsupported, but what was shared with the House was simply assertion.
Finally, the noble Earl talked of this certainly doing no harm. My fear is that it will do harm because it must be interpreted as meaning something that has not been the case hitherto. I support my noble friend.
Lord Howarth of Newport
My Lords, it is ironic that the Government's attempt to clarify the purport of the existing law has led to large-scale confusion and anxiety. While I was enormously relieved to hear what the noble Earl said, and absolutely accept that that is the appropriate interpretation of the provision, none the less, since he also said that the addition of this clause and the amendment that we are debating to the new clause that the Government brought in at a late stage in Commons proceedings does not do anything to change the law, would it not be better to withdraw the clause and issue guidance to clarify, for anyone who may be in doubt, what the existing law means? That would be helpful. Of course, those who attempt to construe the law and the Government's intentions will take careful account of what the noble Earl said on the record this evening. However, it would be better to remove the clause, clarify the law as it is and allow everybody to settle down and get on with the work that they need to do.
Lord Jenkin of Roding
My Lords, the Minister deserves complete support. When we debated this in Committee, I made the point that the clause did not change the law at all. My noble friend made this clear and stated that there had been confusion, which the amendment was designed to remove. The noble Baroness, Lady Parminter, spoke eloquently. Her noble friend Lord Greaves suggested that perhaps, in order to remove doubt, it might be helpful if the Government could clarify the extent of the clause and explain that it did not put financial considerations above all others, but that it was entirely for the planning authority to determine what weight should be given to them. That has been done. I find myself very unsympathetic to the argument advanced by my noble friend Lady Hamwee that by going on and trying to make this clear, my noble friend is digging himself deeper into a hole. That is very unfair. He recognised the concerns that were expressed in Committee and moved an amendment that puts the matter beyond doubt. He deserves complete support.
Baroness Hamwee
Perhaps I may clarify that I am not suggesting that the hole is of the noble Earl's making.
Lord Greaves
My Lords, that reminds me of a song about digging a hole, but perhaps we should not go into it. In Committee, I attempted to search for a compromise on this and to help the Government to clarify what they were saying. I spend a lot of time trying to do that on Bills. The Government should be congratulated on and thanked for the huge amount of time and effort that was put in by Ministers and their civil servants in the Bill team, and by their ministerial colleagues in the House of Commons, to try to sort out a bit of a mess—perhaps more than a bit of a mess—that has resulted from what some of us would say was the rather hasty addition of this clause at the end of the procedures in the House of Commons. They made a huge effort, and I have no doubt that the amendment moved by the noble Earl is an improvement. It helps a bit. My noble friend says that it takes him further into a hole, but I am not sure that that is the case; it probably keeps his head above water. However, it is our clear view after reflection throughout the summer that far and away the best thing to do would be to remove the clause altogether. That is why I support the amendment eloquently spoken to by my noble friend Lady Parminter.
I want to make a couple of points—and one point in slight jest, which I will make now. My noble friend Lord Attlee said that one argument for accepting that this clause should remain is that it does no harm. I must say that I am so used to Governments telling us that amendments that we put forward may not do any harm but are not necessary that I think the boot is on the other foot now. Every time I move an amendment, while the noble Lord is taking the clause for the Government I will look forward to reminding him that my amendment does no harm and therefore should be passed with acclamation.
I would like to make two serious points. There is a very clear difference between CIL and Section 106, for example, which are themselves tied to an application and cannot be untied in any way, and the new homes bonus, which is not tied to a particular application and can be tied, as I think my noble Friend, Lord Attlee, said, only by a clear decision, a resolution presumably, of the council that will receive the new homes bonus. That is the real difference. The noble Earl said quite clearly that it can be taken into account only if it is tied to the application by the receiving council.
I have been thinking about this. In a possible case study, which may happen more often than people might imagine, a big development may result in a lot of new homes bonus and a significant amount of money coming to that council. The use of that money might be politically controversial and contested within the council. In advance of that money coming, the council, the executive, the cabinet, or whoever it is that makes decisions about its allocation, might corporately pass a resolution that makes it quite clear that when it comes, and if planning permission is given, the money will be tied to a project linked to that development. However, it is controversial and the opposition on the council does not agree to it and campaigns against it. Then there are some elections and the opposition wins them, and this large amount of money is taken out of that project and put somewhere else. Once a planning decision is made and issued, that is it; it cannot be revisited by the council. However, decisions about how to allocate money can be revisited whenever the council wants to revisit them. What happens if the development is clearly given on the basis, say, of flood damage or a new swimming pool in the middle of the estate that is linked to that development, and planning permission is passed and the council later changes its decision about how to use that money? They might have a huge budget crisis. Perish the thought that any council has a huge budget crisis nowadays, but if does have a huge budget crisis, the council may find that it simply has to put this money into the general fund in order to keep its head above water. It is quite clear that that could happen. What is the legal position? I do not believe that anybody can do anything about it, except that that planning permission will have been given on false pretences.
Lord Best
My Lords, I think the government amendment does something helpful. Councillors on planning committees have to face the accusation, if they are not careful, that they are selling planning consents, that they are just doing it for the money. There is ambivalence as to whether they can take on board the fact that it is surely important to consider that the local community may benefit financially from what happens if the development goes ahead.
The Minister has clarified the circumstances in which it is entirely legitimate for the planning committee to say, “Yes, we have taken on board the fact that there are financial gains for the locality as a result of this. It is not the only thing we take into account. It has no greater weight than the other material considerations. The fact that local people are going to benefit from this”—as the noble Earl made so clear—“can be taken into account, but don’t let anybody accuse us, the planning committee, of just doing it for the money. We’re doing something that is legitimate”, as this clause makes clear. I think it can be quite helpful.
Lord McKenzie of Luton
My Lords, I speak in support of Amendment 223D to leave out Clause 130 and in support of the noble Baronesses, Lady Parminter and Lady Hamwee, my noble friend Lord Howarth and the noble Lord, Lord Greaves. To argue that these amendments are unnecessary and that this clause is necessary because it addresses the issue of confusion seems to be turning the matter on its head. We know there is confusion because the clause exists. The noble Baroness, Lady Parminter, said that it takes something to get the CPRE, the TCPA and the RTPI in the same position and all very concerned about this. They do not arrive at spurious conclusions. They have impressed on us and all noble Lords their real concerns about the impact of these provisions.
The noble Lord, Lord Best, said that the provision helps councillors understand what they can and cannot do. The Government’s basic proposition in this is that the clause does not change the law. If the clause does not change the law, why have it? The proposition that noble Lords, particularly the noble Lord, Lord Greaves, referred to—that it does no harm—is an extremely spurious basis on which to legislate, particularly in such an important area. I accept that the Minister made some effort to differentiate situations where material considerations—local financial considerations—can legitimately be taken into account from those where they cannot, but that analysis does not depend upon the clause and the amendments before us but upon the law as it currently is. Are we not much better off leaving the law as it currently is rather than introducing something that does not, with great respect, clarify matters but adds to the confusion?
The very existence of the clause, amended or not, has caused great controversy. What changes the existing position? How does the new homes bonus or CIL change, from the Government’s point of view, and to what extent can it be taken into account as a material consideration? As I understand it from the Minister, nothing changes. All it does is describe the law as it is. If that description is the cause of confusion and uncertainty, surely we are better off without it. It seems a very straightforward proposition. It seems to me that the onus should be on those seeking to introduce and sustain the clause as amended to explain why. To say that it does no harm is a totally inadequate justification for a provision that is causing great consternation among many people involved in planning, who are experts and who have been in the field for a very long time. I urge the Government to reconsider this matter. If the only justification for the clause is that it will help to deal with uncertainty, I hope the Minister will accept just from the discussion tonight that in many quarters it clearly does not and that we are better off without it.
Earl Attlee
My Lords, I feel slightly disappointed that I have not managed to convince all noble Lords of my position. However, I do not feel in the slightest that I am in a hole. I am entirely comfortable with Clause 130 and the Government’s position. It was mentioned that this was introduced as an incidental matter in the House of Commons. Your Lordships are quite used to matters being sneaked into a Bill in the other place and then coming to your Lordships' House for detailed scrutiny, which is exactly what we are here for.
The noble Lord, Lord Howarth, discussed my assertion that the Bill does not change the law, but my contention is that the clause is essential. On my point that it does no harm, the harm has been done by opinions that have muddied the waters in the past with regard to the NHB, and therefore it was necessary to introduce Clause 130. My noble friend Lord Greaves raised the issue that we need to be sure that the money will be tied to a project. In his expert case study, he described a situation in which the political landscape could change. The CIL-charging authority will need to be sure that it will spend the money in the way anticipated at the planning decision stage. If not, and things change, it may be challenged on the grounds of legitimate expectation. The local planning authority and the CIL authority will need to be sure that the money will be spent in the way anticipated.
I gave the House a very detailed exposition of my position and we have had an excellent, thorough and useful debate on this clause. I must thank my noble friend Lord Greaves in particular for highlighting the scope for the clause to be made clearer on the point of weight. In light of what I have said, the House can be confident that the clause poses no threat to the fair and proper operation of the planning system. I hope your Lordships are now happy, if a little reluctant, to support Clause 130 and the important elucidation it brings to the question of when local finance considerations can be taken into account in planning decisions. With the further refinements made by the Government’s amendments, it is not clear to me that there is any problem left to solve. I hope, therefore, that my noble friend Lady Parminter will feel able to withdraw her amendment at the appropriate point and support the Government’s amendment.
“Development on green belt land
The appropriate planning authority may grant planning permission for development involving infilling on green belt land (within the meaning given by Planning Policy Guidance 2: green belts) if on that land sufficient infrastructure and services exist as to make the development reasonable.”
Baroness Gardner of Parkes
My Lords, I discussed this amendment to a certain extent at an earlier stage. Therefore, I do not feel I need to say very much, especially so late at night.
The reason for tabling it is that there are little pockets of between two and five acres in between lots of other houses and buildings. I know of some that are described as green belt and are so listed and yet there is a conference centre next to them and huge buildings around them. To my mind, those are infill sites. I do not know the government ruling as to what exactly comprises an infill site, but it seems to me that if you have a small patch of land, whatever its classification, it is not really green belt if it is just a little bit in the middle of places. Yet it might already have all the infrastructure of transport, electricity and the things that are needed for development, and could provide a valuable space for either a children’s home or housing or something of that type. It is for that reason that I move this amendment.
Lord McKenzie of Luton
My Lords, the issue of green belt is one of those matters which has caused great consternation. Obviously, we will have to await the final version of the NPPF. Of course, it is not for me to defend the NPPF in its current form, but as currently drafted it seems to address what the noble Baroness is in part seeking. The NPPF states that:
“A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are: limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; or limited infilling or the partial or complete redevelopment of previously developed sites”.
That is envisaged within the NPPF as I understand it.
In terms of the infrastructure, it is not always right that the services and infrastructure exist before, rather than being provided as a consequence or as part of, the development. I understood that it might be implicit in the noble Baroness’s amendment that it needed to be there before, rather than arising as an alternative. Therefore, I struggle to support the amendment in its current form. But the issues around development in the green belt are very important. We need to track what is going to happen and what the final version of the NPPF will be.
Earl Attlee
My Lords, my noble friend’s amendment seeks to allow infilling on green belt land if,
“sufficient infrastructure and services exist as to make the development reasonable”.
This test is not related to green belt policy, which is about preserving openness, preventing the unrestricted sprawl of built-up areas and preventing the merger of towns. You could well have land with sufficient infrastructure, but allowing development on it would put at risk the key principles of the green belt policy. In any case, the law already requires determinations under the Planning Acts to be made in accordance with the development plan,
“unless material considerations indicate otherwise”.
Infrastructure is one of the material considerations routinely taken into account by decision-makers in planning cases.
As observed by the noble Lord, Lord McKenzie, the draft national planning policy framework contains the Government’s proposed policies on planning, including the green belt. It includes exceptions, set out in a similar way as current green belt policy, for certain categories of development. For example, it allows for the re-use of buildings, and the extension or replacement of dwellings. It also provides for the infilling or redevelopment of previously developed sites. I believe that these policies provide the flexibility to achieve the outcomes which my noble friend is seeking.
Given that current national policy has delivered a strong level of protection, I do not think it appropriate to make changes to green belt policy through legislative means. If changes are required to green belt policy, they should be carefully considered as part of the ongoing consultation and, if appropriate, taken forward through the framework. I hope that my noble friend will feel able to withdraw her amendment.
Baroness Gardner of Parkes
My Lords, it seems to me that the policy has always existed about being able to use infill sites. The real debate is: what is an infill? I remember the case of Little Paddock in Pinner from when I was on the Greater London Council. There were huge rows which went on for a period of a year or so about whether it was an infill. I do not know how it was eventually decided other than that eventually someone was allowed to build on it. Whereas in other cases I have met, people have been told, “Oh, well this has been a little smallholding, so if you put a barn on it, and you make it possible to live in the barn, you’ll be able progressively to convert it”, in the way that the Minister has just said, saying that you can rebuild and change things slightly. That seemed to be such a false way of allowing it, to have a creeping development into this infill site.
As I said, I have known some that were described as not being infills being definitely described as green belt even though there were huge conference centres adjoining them. It is a question of this definition of infill, which I hope can be clarified in due course. Meanwhile, I beg leave to withdraw the amendment.
“Town and village green legislation
(1) Regulations may make provision relating to powers for registration authorities to decline to accept proposals under section 15 of the Commons Act 2006.
(2) The regulations may in particular make provision—
(a) dealing with any case of proposals submitted under section 15 of the Commons Act 2006 where in the view of the registration authority insufficient evidence has been submitted or there is strong evidence that the application could not meet the criteria for registration; and(b) dealing with costs incurred by the registration authority in amending or dismissing the application in cases of frivolous or vexatious proposals.(3) Regulations may make provision relating to powers for registration authorities to reject proposals accepted under section 15 of the Commons Act 2006.
(4) The regulations may in particular make provision—
(a) dealing with any case of proposals accepted under section 15 of the Commons Act 2006 and which are subsequently deemed in the view of the registration authority to be frivolous or vexatious;(b) as to the award of costs to relevant parties and as to the parties by whom the costs are to be made.(5) In subsection (4), an application is “frivolous or vexatious” if it discloses no reasonable grounds for the application or is otherwise an abuse of process.
(6) Section 15(4) of the Commons Act 2006 does not apply in relation to any land where there is an extant planning permission in respect of the whole or any part of the land for the life of the permission.”
Lord Best
My Lords, I shall be brief as we had an interesting debate on this issue in Committee. Amendment 232 relates to vexatious town and village green applications. There is a widespread view that, under the Commons Act 2006, the measure allowing areas that had been used for sporting, leisure and recreational use to be declared village greens and never to be built on, a status that would last in perpetuity, was being abused and being used as a pretext for stalling and blocking developments that in other terms would have succeeded. It is a very cheap way to stop anything happening. It costs those who do it very little. I quoted the example of the 50 acre site for which I was responsible on the edge of York, which was held up for a considerable period of time because someone was deemed to have walked their dog on the site for 20 years. I think that the dog was changed somewhere along the way. Even if the application fails, this can inflict a great deal of damage, delay matters and cause a lot of expense.
As I understand it, the Government are seized of all this, for which I am very pleased, and consultation is under way to see what might be done. The problem is that this consultation exercise concludes that action should be taken to prevent vexatious applications of this kind. As my amendment suggests, local authorities should have the power to turn down applications that they deem to be frivolous or vexatious, but that the Government will come to that conclusion at the end of a consultation period after the Bill has completed its passage through Parliament. There will be no opportunity until the next legislation comes along—in I do not know how many years—to set this one straight.
I ask the noble Earl on the Front Bench to let us know what the Government are expected to be able to do through regulations or other methods so that we do not find ourselves in the bind that without any legislative amendment nothing can happen, even though all are agreed that it should. I beg to move.
Lord Greaves
My Lords, because of the time of night, I shall make a couple of statements rather than explain them. This is not the right Bill or the time to do this. It probably does not require any amendment to Section 15 of the Commons Act. It can be dealt with in two ways: first, local authorities can pull their fingers out and not be unnecessarily legalistic and bureaucratic, which in my experience they have been; and, secondly, by tweaking secondary legislation. It is not necessary to do it here. The problem can be solved in a much more efficient way in secondary legislation through Defra.
Lord McKenzie of Luton
My Lords, I support the noble Lord, Lord Best, in what he seeks. The noble Lord, Lord Greaves, says that this is not the right Bill. It may be that it is not appropriate to put something in primary legislation but, surely, it is absolutely pertinent that we discuss it in the context of the Bill before us. It cannot be outwith the thrust of this Bill, given the whole range of stuff that is encompassed in it. I think that the noble Lord is simply seeking clarification of what the Government intend, what they propose to do, and when and how they propose to do it. If it is in secondary legislation, that is fine, but clarity is needed.
Earl Attlee
My Lords, I am grateful to the noble Lord, Lord Best, for moving his amendment again as the matter has moved on a little. Amendment 232 would provide regulation-making powers to allow commons registration authorities to decline new greens applications if there was insufficient evidence that they could meet the necessary criteria, or if they were frivolous or vexatious, and to award costs. It would also prevent applications for the registration of land on which use for sports and pastimes ceased before 6 April 2007 if the land was subject to planning permission.
The Government share the concerns lying behind the amendment about the way in which the new greens registration system is being used in some cases to hinder legitimate development. I said in Committee on 14 July that the Government hoped to make an announcement on town and village greens shortly. On 25 July, we published a consultation document proposing reforms to the new town and village greens registration system. Coincidentally, that consultation closes this evening.
The noble Lord, Lord Best, asked what can be done through regulation. Through regulation, we can consider streamlining the process for registering greens and setting the fees. The consultation includes a proposal to rule out applications for land which is subject to a planning application or planning permission. This would address the purpose of subsection (5) of the amendment. It also includes a proposal to rule out applications for land which has been identified for development or protected by the local green spaces designation in a local or neighbourhood plan. There is also a proposal to introduce fees for applications.
Commons registration authorities already have the power to reject new town and village green applications that are incomplete or lack the requisite evidence for registration. However, a specific power to deal expeditiously with such matters will provide an increased level of confidence to authorities. For that reason, we have proposed to streamline the sifting process. My noble friend Lady Byford and the noble Lord know that we are still consulting on our proposed reforms, though the deadline fast approaches—in fact, it is tonight. I am sure that they will appreciate how those who have responded to the consultation would feel if we were to legislate now in the manner suggested, without, it would seem, hearing their views on the options we have set out.
I have made it clear that the Government share the concerns of my noble friend and the noble Lord. As the Minister for the Natural Environment and Fisheries said in his introduction to the Government’s consultation, we plan to announce our conclusions early in the new year. We will want to work with my noble friend, the noble Lord, Lord Best, and with others with an interest in taking these conclusions forward. In the mean time, I would prefer not to second-guess what those conclusions will be without having first carefully digested the response to the consultation.
Lord Best
My Lords, I think there is some helpful material within that. There are still 58 minutes in which people can give their responses to the consultation document. I am grateful for that response. We will be able to look at it at our leisure. I beg leave to withdraw the amendment.
“Determination of appeals
(1) Section 79 (determination of appeals) of the Town and Country Planning Act 1990 is amended as follows.
(2) In subsection (1), at the beginning insert “Subject to subsection (1A),”.
(3) After subsection (1) insert—
“(1A) The Secretary of State may only overturn a local planning decision if—
(a) the Secretary of State has reason to believe the decision is unlawful;(b) the Secretary of State has reason to believe that due process was not followed; or(c) the proposed development does not contravene materially the local development plan.””
Lord Reay
My Lords, this is a simplified version of an amendment which I moved in Committee. The idea behind it is to remove the right of the Secretary of State to overturn local planning decisions where these have been taken in accordance with the local development plan. Under the amendment, the Secretary of State would be able to overturn a local planning decision on appeal only where the decision had been to refuse permission for a development which was compatible with the local plan, or where the local authority had acted unlawfully, or where due process had not been followed. Where the local authority had refused permission for a development that contravened the local plan, the Secretary of State could not find in the developer’s favour on appeal.
The aim is to redress the balance in the planning process to a small degree, so that developers do not have an entirely unfettered right of appeal. This has led to powerful developers—or, in the case of wind farm applications, to developers with the intoxicating whiff of enormous subsidies in their nostrils—wearing down local authorities and local resistance by systematically appealing every decision that goes against them. By linking the rights of developers and the powers of the Secretary of State to the local plan, the amendment goes some way down the road that the Minister in another place once said he wished to follow, of making the local plan sovereign. The amendment would reduce the scope for developers to ram through unpopular proposals against the wishes of the local community as expressed in local plans. It has the support of the CPRE, which had a large part to play in its drafting.
I also strongly support Amendment 232ZB, tabled by my noble friend Lady Parminter, which would introduce a community right of appeal. This was the policy of both the Lib Dems and the Conservative Party before the last election. Since then, they seem to have invented the doctrine that it is the planning system that is responsible for the failure of the economy to grow faster than it has, and that nothing new must be introduced which could possibly provide a further obstacle to development. I do not think that my noble friend’s amendment is any different from the one she moved in Committee. She has been careful to circumscribe the circumstances in which an appeal can be made so that not any Tom, Dick or Harry can appeal whenever he likes.
I agree with the terms in which my noble friend has cast her amendment, with one exception. I am not convinced that whether an appeal can go ahead should depend on the position taken by the planning officer. In my noble friend’s amendment, the planning officer has to have recommended refusal of planning permission before any appeal against a local authority’s decision on the part of the local community can go forward. This seems to be too restrictive. But, even as it is, I would prefer the Bill to contain this amendment.
There is not much localism in the Bill now. Nothing would do more to restore meaning to the Bill than to reinstate into coalition policy a community right of appeal. Without it, the planning appeals system will remain most unfairly balanced in favour of developers. I hope that my noble friend the Minister will be sympathetic to these amendments, both of which advance the cause of localism. I beg to move.
Baroness Parminter
I rise to speak briefly to Amendment 232ZB in this group. A limited third-party right of appeal would provide stronger safeguards against planning applications which cut across local and neighbourhood plans. Such applications risk compromising the plan-led system and undermining public enthusiasm for taking a stronger role in plan making. As my noble friend Lord Reay mentioned, the Minister in another place has made statements about the importance of enshrining the primacy of the local plan. Granting a limited third-party community right of appeal, which was triggered where a decision to grant planning permission was not in line with the adopted local plan, would be a powerful support to that approach. It could also help to ensure that local councils put sufficient weight on policies in a democratically agreed plan and, crucially, strengthen mandatory pre-application discussions for major developments introduced by this Bill.
Lord True
My Lords, I was not able to be present for this discussion in Committee. I would like to associate myself very strongly with the remarks made by both my noble friends because they are good localist arguments. Having campaigned in all integrity on the basis of the promises that were put forward by my party in respect of a community right of appeal, like many colleagues in the Liberal Democrat party I remain in a state of puzzlement as to why this worthy and desirable policy, very sensibly circumscribed in the amendment spoken to by my noble friend, has disappeared. It is something that some of us will want to return to on a future occasion, and I hope sincerely that the leadership of my party and that of my fellow party in the coalition will think again on this matter.
Lord Beecham
Heaven forfend that I should trespass on the griefs of the coalition about unfulfilled promises. It is already late enough and one could go on for many hours about unfulfilled promises, but I shall resist the temptation.
We cannot support either of these amendments. There is a balance to be struck between what is purely local and where there are other considerations which might well be of significance in regard to major areas of public policy, including that to which the noble Lord, Lord Reay, refers and about which he is exercised—it is right that he should be, if those are his views. There is a legitimate role for the Secretary of State to determine, at any rate, some appeals beyond those which the amendment would refer.
The amendment in the name of the noble Baroness, Lady Parminter, in addition to the general principle, also creates difficulties. A community right of appeal is an arguable proposition. Whether a community right of appeal could be said to be legitimately exercised by,
“a ward councillor for the area; … any parish council covering or adjoining the area of land to which an application relates; or … any overview and scrutiny committee for the area”,
as proposed in new subsection (2B) that Amendment 232ZB would insert into Section 78 of the 1990 Act, is indeed arguable. I cannot see that those matters are a very persuasive definition of a community right of appeal, even assuming one was in favour of a community right of appeal, which, on balance, I am certainly not—whatever the coalition parties thought they were going to implement.
In these circumstances I offer once again an unusual degree of support to the Minister if he declines to support these amendments.
Lord Shutt of Greetland
My Lords, I thank noble Lords who have spoken. I should like, first, to respond to Amendment 232ZB in the name of the noble Baroness, Lady Parminter, because it helps to set the scene. The amendment intends to give a new right of appeal for local councillors. Before going into detail it would be useful to start by setting out what we are seeking to achieve in the reforms and how communities can shape the area in which they live. The purpose of our planning reforms is to put the local plan at the heart of the system. In fact, the draft national planning policy framework explicitly says so. It is the plan where councils and communities weigh up and integrate different goals and long-term needs so that it sets the framework within which individual planning applications are assessed and decisions taken. We want planning decisions to be taken by local communities, not more appeals undertaken by unelected inspectors in Bristol.
Everything that we are currently undertaking in the Bill—removing unelected regional structures and the top-down targets which constrained local councils, stopping inspectors arbitrarily rewriting plans without a council’s consent and removing unnecessary central government monitoring regimes and interfering in local timetables—gives control, choice and responsibility for local planning back to councils and communities. Other reforms which introduce neighbourhood planning and ensure appropriate consultation with local people before proposals are submitted have also been to that end, so that local people will, in future, have a real say. They will encourage developers to work with the local community to develop proposals all can support, rather than setting them against each other.
Given this, I have considerable sympathy with the noble Baroness’s intentions here. She desires, as I do, to ensure that local communities and the plans agreed between them and their councils should remain at the heart of planning decisions and she is concerned that, in some cases, that does not always happen because of the way the system works. I do not think that her amendment is a solution here. We consider that this would risk adding unnecessary uncertainty and delay at this crucial time of recovery and growth. Applicants will have invested considerable time, money and effort in preparing their proposals and should expect a council’s decision to be a corporate one. However, I recognise that there are issues that we need to address.
First, I understand that local councils have often felt pressure to approve applications which have not been consistent with the plan. One reason is that officers may advise elected members that if they do not approve development, even where it is outside the plan, they may lose at appeal and have to pay costs. Therefore I can reassure the House that we will revise the costs award circular which governs this process so that where a council refuses a development proposal on the grounds that it is contrary to an up-to-date development plan and there is no issue of conflict with national planning policy, there should be no grounds for an award of costs against the council in question.
Secondly, in some cases applications are made and approved which fall outside the development plan. This is an important flexibility in the system. However, we must also be clear that if an application is outside the terms of the plan it should be approved only if locally elected representatives have considered the views of the local community and concluded that such a departure would be acceptable in planning terms. For this reason, we will consult on requiring departure applications to have compulsory pre-application consultation with the local community so that elected members are fully aware of local views before they decide an application. This will mean that local councils will have a clear understanding of local views when they deal with key applications, should have no fear of costs being awarded against them when they have followed the right procedures and will be able to decide cases in the long-term interests of local communities. These changes to the system will strengthen its resilience and ensure that our reforms achieve their objective of putting the local plan and the views of the local community at the heart of the system.
I pay tribute to the noble Baroness, Lady Parminter, for raising these issues so vigorously. By doing so, she has done a service to the House. Given our proposals to strengthen community influence and the involvement in planning as a whole, which I have outlined, I hope she will agree that our measures are strong and effective ways to ensure that community views are heard in the process, especially where a development might depart from an up-to-date plan, and that she will not press her amendment.
Turning to Amendment 232ZA, as the noble Lord, Lord Reay, said in Committee, planning is a matter of getting the balance right. I agree. We are committed to a system of fewer appeals and want development proposals to be determined locally. However, in the few cases where appeals are made, the Secretary of State, as decision-maker, must be entitled to take other material considerations into account, as can councils, on finely balanced matters of judgment—for example, where a local policy is out of date because it does not reflect the changing circumstances of the local area or more recent national policy. In such instances the law allows councils to consider other material considerations in making the right decisions for their communities. They should not be restricted and neither should the Secretary of State’s decision be fettered. Amendment 232ZA would therefore be unduly restrictive in this regard.
However, I understand the intention behind the noble Lord’s amendment. We shall take the measures that I outlined earlier so that councils and communities feel confident, if challenged at appeal, in defending planning decisions made in accordance with an up-to-date plan and where there is no conflict with national policy. I reassure the noble Lord that judicial review proceedings can already be brought if a decision was unlawful or due process was not followed. I hope therefore that he will be willing to withdraw the amendment.
Lord Reay
I thank my noble friend Lord True for his support for my amendment. I agree with him that we have not seen the end of this matter. I was sorry not to have the support of noble Lords opposite. For once they have revealed themselves in their centralist colours.
The Minister entered fully into the arguments on the amendment and I am grateful for that. He said that the Government want to limit appeals—they do not want everything decided in Bristol—but, of course, the effect of my amendment would be to reduce appeals. I appreciate that he repeated what was said at an earlier stage about costs awards and I appreciate what he had to say about the consultation that would need to take place with local communities. In those circumstances, I am happy to withdraw the amendment.
Lord McKenzie of Luton
“Report on Part 5
(1) The Secretary of State must—
(a) establish an independent review of the planning provisions introduced by Part 5;(b) publish a report on this review, including any recommendations for change; and(c) lay a copy of the report before both Houses of Parliament within 3 years of section 97 coming into force.(2) The report required under subsection (2) must, in particular—
(a) have regard to and report on the effectiveness of the provisions in producing sustainable development outcomes;(b) report on the extent to which planning permission has been granted in respect of brownfield land;(c) report on the extent to which open spaces and the green belt have been protected;(d) report on the extent to which affordable and sustainable housing targets have been achieved;(e) provide statistical information about the number of planning applications that were approved, approved but not actioned, or appealed before and after the commencement of that Part.”
Lord McKenzie of Luton
My Lords, I beg to move Amendment 232AA. This calls for an independent review of the provisions of Part 5 of this Act; it calls for a report of this review, and it requires a copy of the report to be presented to both Houses of Parliament.
In particular, it requires the report to cover the effectiveness of sustainable development outcomes; the extent to which brownfield land has been developed; the extent to which green belt has been protected; whether affordable housing targets have been achieved; and data about planning approvals and rejections, et cetera. In short, it requires taking stock of how the new planning landscape is working in practice. It will no doubt be argued that there is going to be post-legislative scrutiny of this legislation in any event, but we consider the ramifications of this part of the Localism Bill to be of particular significance and that it should have this special focus. It requires this report within three years of entry into force, but this timescale is not sacrosanct for us.
If Ministers have confidence in their case, this should not present a difficulty. There can be no doubt that in recent months, since the publication of this Bill, and particularly since the publication of the draft NPPF, the profile of planning—and the purpose of planning—has been raised in our country and our communities. One would not normally expect to see headlines in the Telegraph dominated by planning matters; and we have in a way been startled spectators in unpleasant exchanges between the Planning Minister and no less a body than the National Trust.
Whatever the Government intended to be the outcome of these proposed changes to our planning system, there is no doubt that the way they have gone about it has caused chaos and added huge uncertainty in the planning system, of itself creating paralysis and holding back growth, the very thing they were supposedly designed to stimulate. The fears are that the Government were redefining the purpose of the planning system and refocusing on economic growth to the detriment of the broader requirements of sustainable development. There were plenty of signals to this effect: the presumption in favour of sustainable development; the denial hitherto of transitional provisions; the very wording of the NPPF, which contains no recognisable definition of sustainable development; the scrapping of “brownfield first”; and the inevitable uncertainty created by cramming 1,000 pages of regulation and guidance into 50, even accounting for the removal of overlaps and duplication. Alongside this was the introduction of the neighbourhood planning regime, to be supported by local planning authorities at a time of stretched resources; the duty to co-operate as a substitute for regional and sub-regional spatial strategies; and the operation of the new homes bonus as the supposed driver of new dwellings. Uncertainty abounds. We need a process for Parliament to be able to take stock of where this is all taking us. I beg to move.
Lord Lucas
I hope we see annual reports. This is such an exciting, interesting and unexplored area that we are going into that we really need to know what is going on rather earlier than three years. However, I would measure things in a much happier vein than the list of grizzles in proposed subsection (2) in this amendment. It is going to make a great change and advance to people’s lives—and I would like to see that documented—as much as create possible pitfalls.
Baroness Hanham
My Lords, at this time of night I am going to resist the temptation thrown at me by the Labour Lord opposite to discuss further the sustainable development in the NPPF—great sighs of relief opposite. I will therefore confine myself to the proposal that there should be a report on progress.
We agree that there should be a transparent system for monitoring and reporting. As with decentralising decision-making over housing and planning matters to councils and local communities, we expect them to report progress on all aspects of planning and to make this available to local communities to whom they are accountable. The Planning and Compulsory Purchase Act 2004 already places a duty on councils to undertake a survey of matters affecting the development of their area, including—I promise I will not go back to sustainable development again—its physical, economic, social and environmental characteristics.
The council is already required to produce an annual monitoring report of local planning activity. Our proposals in the Bill and local planning regulations, on which we have recently consulted, will streamline the process for preparing these reports, reducing the burden on councils and strengthening public accountability. Local planning regulations will also require councils to report progress in relation to neighbourhood development plans and demonstrate how they have worked with others under the duty to co-operate.
My department will support councils in this process by continuing to produce official statistics that can contribute to the evidence base used by councils to develop their plans. With these reassurances, I hope the noble Lord will withdraw the amendment.
Lord McKenzie of Luton
My Lords, I am grateful to the noble Baroness for that response but it did not deal with the central point. I accept that there are a range of reporting requirements for local authorities over a range of aspects, but the purpose of this amendment was to say that we have a new system here. A great deal of uncertainty surrounds it. It is right that both Houses of Parliament should be able to take stock of how it has worked out overall. If I understood him, the noble Lord, Lord Lucas, was in favour of more frequent reporting than three years. Three years does not seem an unreasonable timeframe. It would be a pity if we could not take the whole of Part 5 and have some report back on how it has all worked out as a package at a macro level. This is not the time of night to pursue this in greater depth, but I ask the Government to reconsider this issue. In the mean time, I beg leave to withdraw the amendment.
Earl Attlee
Earl Attlee
My Lords, I beg to move Amendment 232AB and will speak to Amendments 232AC to 232AR. I have a short speech and a very short speech. The sense of the House is rather for the latter. Amendments 232AB to 232AR amend Clause 218, which reforms the planning assumptions for compulsory purchase compensation. Amendments in this group extend the application of Clause 218 to Wales as well as England following a legislative consent Motion before the National Assembly. The other amendments, particularly Amendments 232AE and 232AR, make technical drafting changes so that the provisions work as intended. I beg to move.
Lord Boyd of Duncansby
My Lords, briefly, Clause 218 was put in without any debate in Committee. I simply thank the Government for having looked at the issue, bringing forward Clause 218 and then engaging with the Compulsory Purchase Association to discuss the amendments that are now being moved by the Government. I very much welcome this. Part 8 is an important part of the new Bill. I thank noble Lords for their time.
Lord McKenzie of Luton
I am grateful that noble Lords have heard the reassurance and thanks of my noble and learned friend Lord Boyd directly. We have relied on him for advice on the appropriateness of this and are happy to support the amendments.
Earl Attlee
“14 Taking account of actual or prospective planning permission”
(b) that, in the case of any development that is appropriate alternative development to which subsection (4)(b)(ii) applies and subsection (4)(b)(i) does not apply, it is certain at the relevant valuation date that planning permission for that development will be granted at the later time at which at that date it could reasonably have been expected to be granted.”
“17 Certificates of appropriate alternative development”
“18 ”
(a) in the opening words—(i) the words “and appeals under section eighteen of this Act”, and(ii) the word “respectively”, (b) paragraph (b) (manner of and time for giving notice of appeal), and(c) paragraph (d) (which refers to provisions of section 17 not re-enacted in the section 17 substituted by this Act).(10A) Omit section 21 (proceedings for challenging validity of decision on appeal under section 18).
(11) In section 22 (interpretation of Part 3)—
(a) in subsection (1) (meaning of “the parties directly concerned”) for “authority by whom it is proposing to be acquired” substitute “acquiring authority”, and(b) in subsection (2) (interpretation of sections 17 and 18) for “and eighteen” substitute “to nineteen”.(12) In each of paragraph 11 of Schedule 27 to the Local Government, Planning and Land Act 1980 and paragraph 8 of Schedule 9 to the Housing Act 1988 (modifications of section 17(2) of the 1961 Act)—
(a) for “authority proposing to acquire it” substitute “acquiring authority”,(b) for “in respect thereof,” substitute “in respect of the interest”, and(c) for “sale thereof” substitute “sale of the interest”.(13) The amendments made in the Land Compensation Act 1961 by this section apply to the Crown to the extent set out in section 33 of that Act (Act applies in relation to acquisition by government department, including any Minister of the Crown, that is an authority possessing compulsory purchase powers as it applies to other authorities possessing those powers).”
Lord Shutt of Greetland
Lord Shutt of Greetland
My Lords, this not-quite-final group consists of minor technical and consequential amendments to Part 9 and the schedules to the Bill that have not been picked up in earlier groups. I beg to move.
Lord McKenzie of Luton
My Lords, I thought that we were going to have a short speech from the Minister. The first few amendments here are to do with transfer schemes and tax issues arising from the core cities amendments that we discussed earlier, so I am happy to support them, and indeed the rest of the amendments in this group.
Earl Attlee
““appropriate authority” means—
(a) the Treasury,
(b) any other Minister of the Crown with the consent of the Treasury, or
(c) the Mayor of London with the consent of the Treasury,
“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975,”
Baroness Hanham
Lord Shutt of Greetland
Lord Shutt of Greetland
This is a minor technical amendments dealing with commencement orders. I beg to move.
Baroness Hanham
“(za) an order under section 5(2) that—(i) amends any Act or provision of an Act, and(ii) is not made (in reliance on section 7(4)) in accordance with sections 15 to 19 of the Legislative and Regulatory Reform Act 2006 as applied by section 7(3);”
“(ba) an order under section 8(2);”
“(bb) an order under section (Designation of public authorities);”
Baroness Hanham
“(fa) regulations under section 105;”
Lord McKenzie of Luton
“(ba) an order under section (Power to transfer local public functions to permitted authorities) (but see section (Orders under section (Power to transfer local public functions to permitted authorities): procedure),”
Baroness Hanham
“(ba) an order or regulations under Schedule 24,”
Baroness Hanham
“(aa) an order under section (Designation of Welsh public authorities),”
“(13A) Subsection (13) does not apply to an order under section 226.”
“(13B) If a draft of a statutory instrument containing an order under section (Designation of public authorities) would, apart from this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not such an instrument.”
““Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975.”
Baroness Hanham
Baroness Hanham
“Part 2AOther authorities
Reference | Extent of repeal |
|---|---|
Transport Act 1968 (c. 73) | In section 10(1)(xxviii), the words “so far as not required for the purposes of their business”. |
Local Government Act 2003 (c. 26) | In section 93(7)(b), the “and” at the end.” |
Baroness Hanham
“Section 33(4), (6) and (7). | |
Section 34(5) and (6). | |
Section 38(4), (6) and (7). | |
Section 40(4), (6) and (7).” |
“Parliamentary Commissioner Act 1967 (c. 13) | In Schedule 2, the entry for the Standards Board for England. |
House of Commons Disqualification Act 1975 (c. 24) | In Schedule 1, in Part 2, the entry for the Standards Board for England. |
Northern Ireland Assembly Disqualification Act 1975 (c. 25) | In Schedule 1, in Part 2, the entry for the Standards Board for England.” |
“Local Government Act 1972 (c. 70) | In section 85(3A), the words “66A,” and “, 78A”. |
In section 86(1)(b), the words “66A, 78A or”. | |
In section 87(1)(ee), the words “66A, 78A or”.” |
“(da) subsection (5),” |
“, and | |
(g) subsections (8) to (10). | |
Audit Commission Act 1998 (c. 18) | In section 49(1)(de), the words “an ethical standards officer or”. |
Data Protection Act 1998 (c. 29) | In section 31— |
(a) in subsection (7), paragraph (b) (but not the word “or” at the end of that paragraph), and | |
(b) in subsection (8)(b), the words “, or to an ethical standards officer,”.” |
“Greater London Authority Act 1999 (c. 29) | In section 6(5), the words “66A,” and “, 78A”. |
In section 13(2), the words “66A,” and “, 78A”.” |
“Freedom of Information Act 2000 (c. 36) | In Schedule 1, in Part 6, the entry for the Standards Board for England.” |
“Section 201(4)(b) and (c).” |
“In section 113(3)(a), the words “52F(4), 52H(2), 52Q(2), 52S(2), 52X(6),”. | |
Local Government Act 1999 (c. 27) | In Schedule 1, paragraph 9(b).” |
“In section 43— | |
(a) in subsection (2)(a), the words from “, other than” to “1988 Act”, | |
(b) in subsection (3)(a), sub-paragraph (iii) and the word “or” immediately preceding that sub-paragraph (but not the word “and” at the end of that sub-paragraph), and | |
(c) subsection (5). | |
In section 44— | |
(a) subsection (3), and | |
(b) in subsection (4), the words “or subsection (3) above”.” |
“Town and Country Planning Act 1990 (c. 8) | In Schedule 1— |
(a) paragraph 7(2)(a), (3), (5)(a), (9) and (11), and | |
(b) in paragraph 7(10), paragraph (b) and the “or” immediately preceding it.” |
“Section 70(5).” |
“Localism Act 2011 | In Schedule 8, paragraphs 13(1), 17A and 17B.” |
“In section 264(5)(b), the words “or a local development order”. | |
Planning and Compulsory Purchase Act 2004 (c. 5) | In section 38(2), the word “and” at the end of paragraph (a). |
Section 40(2)(b) to (k).” |
“Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941) | In Schedule 1, paragraph 157.” |
“Section 70.” |
“Local Democracy, Economic Development and Construction Act 2009 (c. 20) | Section 35(2)(q). |
In Schedule 5, paragraph 6.” |
“In section 20— | |
(a) in the opening words, the words “and appeals under section eighteen of this Act” and the word “respectively”, and | |
(b) paragraphs (b) and (d). | |
Section 21. | |
Local Government, Planning and Land Act 1980 (c. 65) | Section 121(1). |
In section 121(2)— | |
(a) the words “Section 17 of the Land Compensation Act 1961 and”, and | |
(b) the word “each”. | |
In Schedule 24, Part 1. | |
In Schedule 33— | |
(a) in paragraph 5(1), the words “2(2), 15(5) and”, and | |
(b) paragraph 5(2) and (3).” |
“Planning and Compensation Act 1991 (c. 34) | Sections 64 and 65. |
In Schedule 6, paragraph 1(1)(a). | |
In Schedule 15— | |
(a) in paragraph 15(1), the words “section 14(1) of” and the words after “1961”, and | |
(b) paragraphs 15(2) and 16(a). | |
Tribunals and Inquiries Act 1992 (c. 53) | In Schedule 3, paragraph 1. |
Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 (S.I. 2009/1307) | In Schedule 1, paragraph 42.” |
Baroness Hanham
Lord Jenkin of Roding
“Post-legislative impact assessment
(1) The Secretary of State must produce and lay before Parliament an assessment of additional expenditure incurred by relevant authorities as a direct consequence of this Act within two years of the Act’s commencement.
(2) This assessment will be known as the Localism Act post-legislative impact assessment.
(3) A relevant authority must supply the Secretary of State with such financial information as the Secretary of State may specify for the purposes of enabling the Secretary of State to exercise functions under this section.
(4) In producing the Localism Act post-legislative impact assessment, the Secretary of State must have regard to—
(a) any relevant guidance issued in relation to new financial burdens placed on local authorities;(b) any relevant pre-commencement regulatory impact assessment; and(c) information submitted by relevant authorities as the Secretary of State may require.(5) In this section “relevant authorities” means—
(a) county councils in England;(b) district councils in England;(c) London borough councils;(d) the Common Council of the City of London in its capacity as a local authority;(e) the Greater London Authority;(f) the Council of the Isles of Scilly.”
Lord Jenkin of Roding
My Lords, my estimate as to when we would reach the end of Report took me up to midnight, so I reckon that I have 25 minutes in which to speak. Like my noble friend Lord Attlee, I have two speeches. One was a very short speech which said, “I think this is a good idea”. The other one was a rather longer speech which said, “I think that this is a very good idea”. The Explanatory Notes to the Localism Bill estimated at paragraph 491 that the charge to local authorities would amount to £21 million per annum. I have seen an estimate of the net value of all the changes in the Bill as having a range of between £20 billion and £35 billion. There have been changes and many amendments to the Bill. However, local authorities are worried that they will still have to meet expenses substantially in excess of the Government’s estimate of £21 million. The purpose of this measure, which is not, of course, a full post-legislative assessment—I have no doubt that the Government will want to do that anyway—is to place a very firm date on when there should be an estimate of the actual costs that will be incurred by local authorities.
I have here a three-page speech but I will not read it out. However, it seems to me that given that so much of this Bill has affected the way that local authorities are to carry out their duties, it is only fair for the Government to be prepared to have that estimate examined so that there can be a proper assessment of what local authorities have to pay and what will otherwise fall on council tax payers. I will read no more of my speech but I think this is a very just proposal which is supported by the local authorities. I beg to move.
Lord Beecham
My Lords, it is fitting that the noble Lord, Lord Jenkin, should effectively conclude Report stage after his many distinguished contributions to the Bill’s proceedings thus far and, indeed, his previous very substantial record in government. I have a couple of questions. I entirely endorse the thrust of the noble Lord’s amendment. I hope that it will be acceptable to the Government. This is more a matter of process. We are not entirely clear how the new system of post-legislative scrutiny will work and what pieces of legislation will be included in it. I hope that this will be one of them. I do not know whether the Minister can indicate whether that is so but in any case it is understood from the impact analysis that the Government intend to draw up the finer details of the review methodology in the months ahead, as they put it. Since the relevant document was written some time ago, that will presumably be done through a soon to be formed Localism Bill review steering group. Has such a group been formed or will it be formed? Who will be involved in it if it has not already been set up? When is it likely to report? How will it work? These are the crucial procedural questions. The noble Lord, Lord Jenkin, rightly refers to the financial aspect and we entirely endorse the view that as this will effectively be a new burden on local government, it will presumably be within the new burdens doctrine. It will be good to have an assurance on the record that any additional costs of that kind will be met by central government.
Lord Shutt of Greetland
My Lords, Amendment 249 would mean that the department has to produce a post-legislative impact assessment setting out the additional expenditure incurred by relevant authorities as a direct consequence of this Bill. An established process is already in place for post-legislative scrutiny of Acts. As set out in Cabinet Office guidance, departments are required to submit a memorandum to their departmental select committees three to five years after Royal Assent of an Act. This memorandum sets out a preliminary assessment on how the Act has worked out in practice, relative to objectives and benchmarks identified during the passage of the Bill.
In addition, each of the individual impact assessments for the specific policies in the Bill is accompanied by a post-implementation review plan. The amendment to insert a further requirement to produce a post-legislative impact assessment is therefore unnecessary. Inevitably, putting the provisions of this Bill into practice will mean local authorities taking on some new responsibilities. However, the Government are committed to ensuring that any additional burdens on councils are funded in accordance with the new burdens doctrine. The impact of the Bill has been assessed in the usual way, and the necessary funding will be made available.
I regret that I am not cited on the localism group referred to by the noble Lord, Lord Beecham. Obviously, I shall have to drop him a line on that point. I hope that my noble friend Lord Jenkin will feel able to withdraw his amendment.
Lord Jenkin of Roding
My Lords, I am very grateful for the kind remarks made by the noble Lord, Lord Beecham. I am not wholly reassured because this is such a very special and particular post-legislative assessment that it will be necessarily picked up in that form by the full PIR. However, my noble friend has made the Government’s case on this. I have argued that local authorities generally want to know early the total extra burden, but I am happy to withdraw the amendment.
Baroness Hanham
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Baroness Hanham
(6) Any amendment or repeal made by this Act in the Transport Act 1968, and the repeal of section 121(1) of the Local Government, Planning and Land Act 1980, extend to England and Wales only.”
Baroness Hanham
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Baroness Hanham