(13 years ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
19:15 - Division on Amendment 3 - Ayes: 152 / Noes: 196 - Amendment 3 disagreed.
20:55 - Division on Amendment 16 - Ayes: 59 / Noes: 140 - Amendment 16 disagreed.
Lord Shutt of Greetland
My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Localism Bill, have consented to place their prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Clause 10 : Fire and rescue authorities: charging
Amendment 1
Baroness Eaton
Baroness Eaton
My Lords, I shall speak also to Amendment 2. I have tabled these probing amendments in order to request clarity from my noble friend the Minister. This is an amendment to allow fire and rescue services to charge for calls regarding persistent false fire calls. False fire calls from faulty alarms in non-domestic premises are a significant burden for fire and rescue authorities. Around a third of all fire brigade attendances are to false or faulty alarms. In London alone, there are 30,000 attendances each year as a result of calls from automated fire alarms. Of those, only 3 per cent of the calls were to actual fires and in just 1 per cent to fires was a hose needed to put them out. Clause 10 is intended to allow fire authorities to charge those building owners who persistently generate such calls, thereby giving them an additional power to reduce the number of calls and the associated disruption, cost and increased risk to the public.
However, there is an established consensus from the sector that the current wording of the Bill, which addresses only malfunctioning and “misinstalled” alarms, covers less than one-fifth of the total issue. For example, of the 6,002 recorded calls from these alarms in Lancashire in 2009 and 2010, only 16 per cent were recorded as having been set off by faulty alarm systems.
I understand that organisations from across the sector, including those representing the businesses that install and monitor these alarms, have appealed to the department to look again at this drafting, but without success. For clarity, when I say “the sector”, I am referring to the Local Government Association, of which I am a former chairman, the Chief Fire Officers Association, the London Fire Brigade, the Fire Industry Association, the British Security Industry Association, and fire services across the country. All these bodies and authorities have, I understand, appealed that the current wording does not address the issue and have warned the department that the legislation as it stands could mean much confusion and many arguments over the definitions currently in the Bill, and that clarity will probably only be reached following decisions from the courts.
I do not pretend to be an expert on this issue but I am sure that few of us would say the same about the bodies I have just cited. I would welcome clarity from the Minister on this subject. I beg to move.
Baroness Smith of Basildon
My Lords, I have a great deal of sympathy with the amendment of the noble Baroness, Lady Eaton. I declare an interest as a vice-president of the Local Government Association.
Before this legislation, I had never come across or heard the word “misinstalled”—it is a curious turn of phrase—but clearly if an alarm is misinstalled the idea of it being maintained at relatively regular intervals is of course the responsibility of the business holder in that company. That has to be undertaken. That is why this is a reasonable amendment.
The only question I have on that concerns the evidential burden. If the business owners had taken all reasonable steps to ensure that the alarm system was properly maintained, would any action be taken against the company which had failed to do so or would it be a matter for the business? There is a slight legal quagmire here, and although I am in no haste to make extra work for lawyers, I broadly support the amendment. It is entirely reasonable.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I thank the noble Baroness, Lady Eaton, for tabling this amendment and I hope that she will not be too offended when I say that I am not going to accept it.
The fire and rescue services often raise the issue of the number of mobilisations to faulty fire alarms, perfectly reasonably, at non-domestic properties. We agree that this is a significant issue and we have addressed it in the Bill by proposing that, following local consultation, fire and rescue authorities will be able to recover their costs in cases of persistent false alarms in non-domestic premises where fire alarms have malfunctioned or have been misinstalled—I believe that is the word.
It is certainly true that some fire representatives support the amendment—indeed, the noble Baroness, Lady Eaton, laid out who they were—and want to widen the scope of the clause to cover a wider range of incidents. However, on the other side of the coin, there are others who do not agree with the amendment and are concerned that it is confusing and will lead to additional burdens.
It is vital that we keep charging provisions as straightforward as possible and do not create uncertainty for businesses or fire and rescue authorities which seek to recover their costs. If we were to widen the scope of the clause in this way, it would mean that the fire and rescue authority would have to provide evidence that a business had not properly maintained a piece of equipment. Going down this route could only open up a significant potential for challenge that would benefit neither businesses nor the fire and rescue sector. The Bill already allows for authorities to charge under a wide range of scenarios that can lead to malfunctions and the amendment would not add anything to that.
On that basis, I am not persuaded the amendment helps. It would not achieve its intended purpose in significantly widening the number of scenarios under which an authority could charge. Instead, it could unhelpfully complicate the Bill’s provisions as drafted and leave those extra provisions open to legal challenge. I hope with that explanation the noble Baroness will be willing to withdraw her amendment.
Baroness Eaton
I am grateful for the Minister’s response. The last thing I intended with my amendment was to complicate matters and to create an opportunity for more challenges. I am pleased to withdraw the amendment.
Lord Pannick
“(2) In deciding whether a decision-maker had, or appeared to have had, a closed mind to any extent when making the decision—
(a) the relevant time at which that issue is to be assessed is when the decision of the relevant authority was formally taken;(b) an earlier statement or conduct by the decision-maker that amounts to predisposition is irrelevant; and(c) an earlier statement or conduct by the decision-maker that amounts to predetermination shall be taken into account and given such weight as is appropriate in the circumstances of the case.”
Lord Pannick
My Lords, Clause 25 is directed at the concern that local councillors must be able to express views on controversial local issues such as, for example, whether to give planning permission for a bail hostel without being accused of bias when the issue comes up for a vote at the council meeting. There are two main objections to the drafting of Clause 25 which the amendment seeks to rectify. The courts have adopted a sensible approach in this context and a local councillor can express strong views on an issue prior to the council meeting as long as he maintains an open mind in the sense that he is willing to listen to the competing arguments and the advice of officials at the council meeting before casting his vote. The courts have explained that the common law allows strong predisposition and the holding of strong prior opinions; it prohibits only predetermination, the closing of the mind and the unwillingness to listen to the debate before casting a vote. It is extremely unclear whether this distinction between predisposition and unlawful predetermination is being maintained by Clause 25 or whether it is, in some respects, being amended. It is so unclear that it will inevitably lead to protracted and expensive litigation, a process that will undermine rather than advance the Government’s objective. That is the first objection.
The second objection to Clause 25 which the amendment seeks to rectify is that it appears—I say “appears” because the clause is very difficult to interpret—to provide that as long as the local councillor says or does nothing at the council meeting to indicate a closed mind it is legally irrelevant what he or she may have said or done before the meeting to demonstrate a closed mind—that is, predetermination. For example, if at the council meeting the councillor says nothing during the debate but votes against the bail hostel, under Clause 25 there could be no legal complaint of predetermination. That would be so even though, on the way into the council meeting, he announces to the television news cameras outside that he is not interested in what is going to be said at the debate. That would be a substantial change in the law and one very much to be regretted.
The two concerns that I have outlined are exacerbated because Clause 25 will apply not only to controversial political decisions in local government but to all functions, including, for example, employment and contracting decisions. In those other areas, in particular, it is of great importance that local councillors have an open mind; that they hear the arguments at the council meeting and listen to the advice of officials before they make up their mind.
I have received a letter from Mr Clive Lewis QC, who is the chairman of the Constitutional and Administrative Law Bar Association, a copy of which I sent to the Minister, expressing concerns very similar to those I have set out. I have also been informed by the Association of Council Secretaries and Solicitors that it, too, is very concerned that Clause 25 as currently drafted will lead to uncertainty and run the risk that serious cases of alleged bias could not be challenged in the courts.
I am very grateful to the Minister’s officials for taking time to seek to explain to me the reasoning behind Clause 25 at a meeting last month. However, my concerns remain. This amendment would set out—I hope clearly—the principles stated by the courts so that local councillors and their advisers would be in no doubt that the prior expression of strong opinions is not prohibited by law. Even at this late stage of consideration of the Bill I hope the Minister will think again on this subject. I beg to move.
Lord Hart of Chilton
My Lords, my name is associated with this amendment and I support it for the following reasons. I believe it is common ground that councillors should not be prevented from or penalised for speaking their minds on the hustings. I do not accept the anecdotal evidence that if councillors speak out on an issue then they are banned from voting at a committee. If they are being given that advice then it is bad advice and it should be clarified. You do not need a statutory provision to do that.
A predisposition has always been permitted but not a predetermination. I think it is also common ground that decision-makers must approach their task with an open mind. They must listen and consider all the arguments and then reach a conclusion. It is self-evident, for example, that a Secretary of State who as a local MP has crusaded passionately against wind farms saying there are no arguments in their favour cannot decide an appeal against the refusal of a wind farm planning application. He must—and I am sure he would—recuse himself.
In the present case, in a much less exalted position but important nonetheless, a councillor who declares himself opposed to an application and states he is determined to vote it down ought not to pursue such a course up to and including the planning meeting. However, the Bill appears to provide a loophole for this by affording an opportunity for a councillor to state wholesale opposition right up to the door of the planning meeting and then to remain silent at the meeting itself nevertheless casting his vote. In such a case the provisions of the clause mean that clear evidence of bias, which that is, is impermissible evidence. That cannot be right. At worst this clause could, I fear, become a bigot’s charter, which cannot be in the public interest.
The amendment offers a solution. It confirms the present position of predisposition but provides a potential sanction for predetermination if the circumstances permit. I emphasise that this does not prevent the crusader councillor from crusading. He can attend usbthe council meeting to represent his views but he must not, if his mind is made up before the meeting, participate in the voting on the decision itself. That must be left to those who come with an open mind to listen to all the arguments before finally coming to a decision. That is the law and it is in the public interest that it be upheld.
The current wording of the Bill does not do so. It could well be used as shield or a licence for bias and is bad policy because the clause applies not just to planning but to all functions of authorities, some even more sensitive, where greater restraint on strong expressions of view is called for. Cases of bias are extremely difficult to get on their feet. This clause makes it almost impossible because those who are biased will now remain silent during the committee’s deliberations.
Baroness Eaton
My Lords, first, I must declare my role as an elected councillor. Councillors have long walked a difficult line; trying to engage in an open and rigorous debate with their communities ahead of key local decisions, without falling foul of the complex common law principles of predetermination. The Government’s proposals in the Localism Bill offer welcome clarity by removing any presumption that a councillor has made a decision with a closed mind simply because they had previously explicitly offered a view, or inferred a view through their actions, about a decision they would subsequently make.
It is essential that councillors have the freedom to express their thoughts and views on an issue to the communities they represent. This is an important part of the dialogue between local people and their local democratically elected representatives, helping councillors to gauge levels of support for or against a view and to encourage communities to come forward with further evidence to inform decisions that matter to them. This is surely a key part of the big society we are striving to create.
This amendment would reintroduce confusion over where predisposition ends and predetermination begins when prior indications of a view have been made. Therefore it would continue to make it difficult for councillors to have those absolutely full and frank debates with local people on the merits of any decision.
There are a number of safeguards in place to uphold good decision-making in local government, from overview and scrutiny functions through to opportunities judicially to review irrational decisions. At the same time, this Bill is strengthening the requirements around registering and declaring interests to deter biased decision-making, and the local electorate will ultimately retain the power at the ballot box not to re-elect any councillor. I therefore cannot support this amendment.
Lord Sewel
My Lords, during my period in your Lordships’ House, which now goes back far too many years, I hope I have been the personification of reasonableness, rationalism and light. Unfortunately, on the debit side, I have to confess that I was a local government leader before I came here.
Missing from this debate so far is the fact that local government in the United Kingdom is significantly influenced by party groups and party group meetings. Something may be discussed in committee. Before the council meeting the various party groups meet and reach a collective decision. That decision is then whipped at the council meeting. That is the reality of day-to-day local government in the United Kingdom. I would like to know from both the noble Lord, Lord Pannick, when he sums up, and the Minister the extent to which both the clause as it is now and the amendment strike at that practice.
Baroness Hamwee
My Lords, the noble Lord, in my eyes at any rate, puts himself further on the debit side by describing his previous career as being on the debit side. Many of us regard our time in local government as a very great plus.
Lord Sewel
Perhaps the noble Baroness will recognise a joke and an irony when she sees them.
Baroness Hamwee
Unfortunately when irony appears in Hansard it appears to be totally serious.
I realise I am being bold tangling with the expertise that has been brought to bear both by the two noble Lords who have spoken and have their names to the amendment and the authorities they have cited. I do not see in the clause the problem they describe—the possible extension from predetermination to predisposition. The word “etc” in the clause heading I can see might be a little confusing and possibly in Clause 25(1)(a):
“an allegation of bias or predetermination, or otherwise”.
But I regard the “otherwise” as meaning “or not”, not as a different attitude.
I start by not being able to follow the noble Lords down that route. Are the important words not the ones that we debated at a previous stage, in Clause 25(2), “just because”? That subsection is not exclusive. It does not describe the only circumstances that might amount to predetermination but approaches from the other side. It says that if a decision-maker demonstrates or has done these two things—or has done the first thing and the matter is relevant to the decision—that does not of itself mean that he has predetermined; nor does it mean that he has not. That approach is much more effective than the one provided in the amendment, which seems to spell out all the circumstances that would amount to predetermination. I am sure that noble Lords have great imaginations, but I doubt whether any of us could imagine all the circumstances that need to be covered. I am afraid that I cannot support the amendment.
Lord Snape
My Lords, I am reluctant to intervene in the debate but do so having listened to the arguments for the amendment put forward so ably by my noble friend Lord Hart. Like my noble friend Lord Sewel the noble Baroness, Lady Hamwee, I had the honour—I will not do irony, either—to serve on a local authority before being elected to the other place. Not being a lawyer, I would like the Minister to tell me what predetermination actually means. Like my noble friend Lord Sewel, I confess that the Labour group on the local authority of which I was a member, eventually becoming leader, met before council meetings and decided the group view on various issues. Is that predetermination, or not? If it is, is it caught by the provisions of the Bill?
I take the view that both Houses of Parliament interfere far too much in local authority matters. I well understand the view that where planning matters are concerned the letter of the law should be laid down and followed. The previous Labour Government created a standards authority for local government, which quickly became bogged down. If you traded insults in a council chamber, a complaint was made to that body and all sorts of trivia were discussed at that level. I do not wish to tie the hands of local authority members more than successive governments have done over the years, but I am concerned about both the clause and my noble friend’s amendment.
My noble friend is not just a lawyer—he advises lawyers, as well. He is doubly damned in my eyes, I have to tell him. But he did not define predetermination in speaking to the amendment. Like my noble friend Lord Sewel, I think that the Minister really ought to do so. I end as I began: tying the hands of local authority members is something that both Houses of Parliament have done over the years, in my view quite unnecessarily.
Baroness Gardner of Parkes
The noble Lord, Lord Pannick, always moves his amendments superbly, and I am fascinated by them, although I heard it elsewhere than in the Chamber this evening, and I apologise for that. But I think that he does not look at this matter from the point of view of people being elected. Ever so many people are elected simply because they have always had some pet subject that was very much of local interest, and that is what got them elected. Any of those people, under this amendment, will find themselves being accused or blamed for the fact that they fought in that way. I am thinking of the Member of the House of Commons, who was elected on the single issue about the hospital in Worcestershire, and elected not once but twice on that issue. Would we have all condemned him if he had shown a particular interest in the hospital in Worcestershire? It is unrealistic to believe that people could be completely opposed to something that they had fought for for years.
The other side of that is that anyone sitting on any planning committee should do so with an open mind. If they do not have one, they have no right to sit on that committee and they should declare it as such. That should deal with the matter, rather than this amendment.
Lord Greaves
I declare an interest, since it is Third Reading, or redeclare an interest as a member of Pendle Borough Council, which has a local planning authority on whose planning committee I sit.
I smiled when the noble Lord, Lord Sewel, got into a little bit of trouble for trying to use his native Bradfordian flat irony in your Lordships' House, which is something that I also get into trouble about for the same reasons. I sometimes think that we should run a campaign so that we have a means of telling Hansard to insert a smiley at appropriate places, but I suspect that that is a campaign that I will not win in my lifetime.
I regret the fact that I did not get involved more in this issue in Clause 25, as it now is, earlier in the passage of the Bill. It is not completely satisfactory as it stands, but I think that the amendment from the noble Lord, Lord Pannick, would make things worse. I shall explain why in a minute. I do so not from his position as an eminent lawyer who knows about things like predetermination, predisposition and perhaps predestination as well, I do not know—or perhaps not. I come from the point of view of how these things are now looked at in local government. What people have not really been talking about is that within local government there is a general belief at the moment that there are two types of issue. There are those that people say are in some way quasi-judicial, or involve things like appointments and disciplinary hearings, as well as planning and licensing, whereby the approach of councillors has to be less predisposed than on other matters. When I got back on the council eight years ago, I spent the whole election campaign speaking about the number of empty, boarded-up houses in my ward. I thought that the position had deteriorated appallingly in the six years I had not been a councillor. The electors actually agreed with me, for once. I have spent a lot of the eight years since then working hard on the council to do something about that problem. I am totally biased on this matter; I think that it is an appalling problem, and I campaign on the council and outside the council to try to solve it and make no bones whatever about that. But if a planning application came up in relation to one of those houses, I would step back and regard it and treat it as a planning application. That is quite well known within local government, although perhaps not as well known in some councils as it should be—but it is the case. Therefore, there is a problem here in that both the Bill and the amendment are broad-brush and do not make that distinction between different types of issue, which are certainly well understood within local government.
I have problems with the words predisposition and predetermination. It may be that in the courts of this land they are well understood, but I do not believe that most councillors would understand those words if you put them to them. The word that is more used in local authority government in relation to that kind of problem is fettering. Councillors are told that they must not fetter their discretion when it comes to things like licensing and planning applications. That is the word that is used—but fettering includes both predisposition and predetermination. The attempt to pull back from the straitjacket that councillors are in at the moment is well done.
I do not think that the position is well understood, as the noble Lord, Lord Pannick, said on Report and said again today, but one problem is that different councils apply different rules. In some cases, when planning applications are submitted—that is probably what we are talking about most here—councillors are banned absolutely from speaking to anybody, including residents, applicants, objectors or the local press. Some councils are absolutely draconian in doing this: one is not allowed to talk to anybody unless one is in the presence of a planning officer. That is totally unrealistic on many councils that do not have lots of spare planning officers to wander around with councillors who are talking to people on their patch.
All this did not originally come from the courts. I particularly noticed it because I was not a councillor for six years and during that time, between 14 and eight years ago, the whole regime changed. It came from decisions of the Local Government Ombudsman, where there were complaints that councillors had made up their mind on planning applications before the applications were dealt with. It also came from references to the standards authorities, particularly the Standards Board for England. That is where this whole regime within local government has come from.
The noble Baroness, Lady Gardner of Parkes, made the point that councillors are different because they are elected. Therefore, the regime that has to apply to councillors as opposed to other public officials and people serving on tribunals and so on is different because they are elected. Very often they have fought election campaigns and taken part in local campaigning. We have examples from around the country. A market town provides one classic example. A particular political party had campaigned vigorously against the redevelopment of a town centre that involved a big supermarket as the core of that redevelopment. All its councillors—the party had swept the board—were banned from taking part in the part in the decisions once they were elected because it was said they had fettered their discretion because they were part of a party which had won elections on that basis. Clearly there is a huge conflict here between local democracy and fair decision-making. Electors cannot be expected to understand that.
Regarding the amendment moved by the noble Lord, Lord Pannick, I would say that there is a lot of talk of bail hostels. As long as a bail hostel is small and is confined to an existing house, I do not think it needs planning permission. It is not a good example in that sense, but I understand the point made by the noble Lord. We have all had to deal with a very difficult application where a lot of residents have been strongly opposed to it, yet it has actually been right. That is when councillors have to gird their loins and do what is right. They do not always do it, but that is democracy.
The amendment of the noble Lord is an admirable attempt to clarify the position. Subsection (2)(c) of the amendment states that,
“an earlier statement or conduct by the decision-maker that amounts to predetermination shall be taken into account and given such weight as is appropriate in the circumstances of the case”,
I do not believe that even local authority lawyers will understand that sufficiently to give clear advice to their councillors, and councillors certainly will not understand it because they will not understand what amounts to predetermination. The words,
“given such weight as is appropriate in the circumstances of the case”,
are a recipe for a lot of lawyers to earn a lot of money when matters come to court to determine what they mean in the circumstances of a particular case. I do not believe it is a useful check on what one does in a particular circumstance that happens locally. Therefore, I do not think the amendment of the noble Lord provides clarity. In a practical sense, at a local level, it will make matters a lot worse, with no clarity.
The problem is that council lawyers are well known for being top of the league of people who err on the side of caution on pretty well everything. If the House were to pass this, it would result in no change to the present position, in which it is the councillors who are totally fettered from doing the job that people elect them to do.
The noble Lord, Lord Hart of Chilton, said that if councillors are given the advice that they cannot say or do anything or take part in any discussions before it goes to a planning committee, it is bad advice. All I can say is that if it is bad advice, it is universal bad advice. Given the choice of two not wholly satisfactory wordings, I very much prefer that of the Government.
Lord True
My Lords, if I might intervene, slightly more briefly, because I agree with so much that has been said by the noble Lord. I did not have the opportunity to take part in the debates on these clauses, although I have taken part in a lot of the proceedings on the Bill. I strongly agree with the objections that have been raised to the amendment. Perhaps it is not surprising, declaring again my interests as a local councillor and leader of a local authority, that it tends to be that some of us with experience of local government find ourselves ranged against the exacting purity of those who practise at the Bar.
Some may feel this is a function of the imperfection of local councillors. Imperfect, of course, we are. The point was made by the noble Lord, Lord Sewel, and others, that councillors are biased. They are elected to be biased. My electors would be extremely surprised if I were not, as the noble Lord, Lord Greaves, said, seeking to implement the policies on which I was elected. That reality has to be understood and respected.
The current situation is having a chilling effect on a lot that goes on in local government, a point referred to by the noble Lords, Lord Sewel and Lord Greaves, and others. Councillors are nervous about expressing opinions on a whole range of matters where there is no question of predetermination or predisposition and so forth. It is having a bad effect on local democracy because local councillors are representative—they are not very highly-paid volunteers to try and put the public’s will into effect. They try their best.
I fear there is a growing inhibition on being able to speak out and speak frankly on questions. As the noble Lord, Lord Greaves, said, there is a clearly understood distinction between issues of planning and other issues. The trouble with the amendment of the noble Lord, Lord Pannick—the noble Lord, Lord Greaves, began to say this in reading out the first part of it and my concern was reinforced by the remarks of the noble Lord, Lord Hart of Chilton—is that subsection (2)(c), in stating that an earlier statement or conduct shall be,
“given such weight as is appropriate in the circumstances of the case”,
refers to a decision as defined in the clause, which is any decision of the council. We are not just talking about planning applications; we are talking about committee meetings, sub-committee meetings, functions of the authority’s executive and council meetings. The noble Lord, Lord Hart, conjured up in my mind the spectre of lawyers standing outside the council meeting saying, “You cannot go in and cast your vote because you said this on that a few weeks ago”. It may sound humorous but that kind of thing could well happen. People are trawling the opinions of local councillors, seeing who is biased and seeing whether they can get people struck off. It is rather like one of those American films where they try to strike off members of the jury to make sure that the right result is achieved in a murder trial.
I am worried about the link between subsection (2)(c) of the amendment and its application to every possible decision that might be taken by a councillor. We do need severe protection of the law on planning, but in other areas please let councillors be biased; please let them respond to the wishes of their electors; please let them be like MPs and Members of your Lordships’ House—people who are entitled to strong opinions. Let us not proceed with the chilling effect of this process of litigation and quasi-litigation that has actually occurred or may be threatened. I support the Government’s attempt to set things right and to improve things. It may not be perfect, but I certainly prefer it to the amendment. I hope that your Lordships will not support the amendment.
Lord McKenzie of Luton
My Lords, we have added our names to this amendment, for reasons which I will try to explain. As I understand the Government's position, this provision is meant not to change the current position—they may confirm or deny this—but to clarify it, as the noble Lord, Lord Greaves, said. The problem in seeking to clarify it, for some of us at least, is that they have unbalanced it and made it difficult. The noble Baroness, Lady Hamwee, advanced the point that, as drafted, the “just because” was the get-out but I contend that if you have to ignore anything that the decision-maker has previously done with a view to a matter, directly or indirectly, there is not much else that that decision-maker could have done which could then be the subject of a challenge on predetermination.
Baroness Hamwee
My Lords, I was not intending to describe it as a get-out but to say that “just because” could also be read as “only because”. Although those are not words that one would normally find in legislation, they are very helpful and descriptive in this context.
Lord McKenzie of Luton
I take that point but, even if it is “only because”, what else might a decision-maker do that you have to take account of if you can ignore all of the things that are described in this provision? That seems to be the fundamental problem.
My noble friend Lord Snape asked: what is predetermination? As I understand it, predetermination is having a closed mind at the point when you make a decision. Is that not important, because if people are coming to local councils seeking decisions which they expect to be rationally made—whether on planning, licensing or anything else—are they not entitled to have a case that is properly made and not fettered by somebody ignoring all of that process at the point when the decision is made? That seems to be the key difference between predetermination and predisposition.
The noble Baroness, Lady Gardner of Parkes, said that people will always have their pet subjects, and there is absolutely nothing wrong with that. Predisposition means having a view that, other things being equal, this is what you support and this is what you do not, and it does not preclude you from having, for example, manifesto commitments. That is reflective of the current position. The problem with the clause, for some of us at least, is that it unbalances that decision. It may give clearer protections or guidance to councillors in respect of what they can and cannot do but it does not address the other side of that equation: the circumstances where somebody has a closed mind and would seek to exercise judgment on something when they should not. That seems very important to me.
Things are not helped by the demise of the Standards Board for England, which set out guidance on all of this, but I understand that there is also legal precedent and case law around all of this. My noble friend Lord Sewel raised the point about collective decisions. There is nothing wrong with a party group sitting around and having discussion on an issue. The key is that when you come to the point of making that decision—whether it is in the council chamber, the committee chamber or elsewhere—the mind is at least ajar. I think that was the terminology that was used.
The noble Baroness, Lady Eaton, said that councillors have long walked this difficult line, and she is absolutely right. I agree and, in our view, the line does not need to be changed. Yet the terms of this clause are potentially changing it and that is the problem we are seeking to address by this provision. Our position is as follows: we support the proposition that those who have a closed mind on an issue should not participate in decision-making and could invalidate it if they did. We understand that this is also the Government's position, from debates on previous stages of the Bill where we have had amendments around this. It may be particularly relevant to planning and to other decisions as well.
We differentiate predetermination from predisposition and understand that the Government also do that. Having clarity on the scope and protections that this gives to councillors is to be encouraged but issues of a closed mind or otherwise are properly to be assessed when formal decisions are to be taken. We understand that this is also the Government’s position. The problem is that, in framing the scope and protections for local councillors, there must not be opportunities for those with closed minds to have their actions and utterances ignored in evaluating whether they had already predetermined the matter when making decisions. These are matters of probity.
If it is right that we agree on those propositions about the difference between predisposition and predetermination—determined at the point when the decision is made—we should be focused on how we achieve the legal construct that deals with that. That is the real matter before us and the matter in this amendment. In this regard, we consider that the amendment moved by the noble Lord, Lord Pannick, which is also in the name of my noble friend Lord Hart, achieves those objectives. However, we are very clear that the clause as it stands makes things worse and muddies the waters on principles and issues that I think we are not apart on.
Earl Attlee
My Lords, I am grateful to the noble Lords who have skilfully proposed this amendment, as it has given me the opportunity to research the issue for myself—with an open mind—and to provide further elucidation to the House. I hope that I can prevail upon the noble Lord, Lord Pannick, with his open mind.
I think that there is general agreement on the mischief that Clause 25 seeks to address: that councillors and candidates are receiving overly cautious advice from a variety of sources. All noble Lords accept the need to engage with the electorate, and I agree entirely with the comment by the noble Lord, Lord Pannick, about the courts. The courts do not have a problem at all; it is the advice being given that is the mischief.
I will give an example to show how far this culture has spread, not from local government but rather from advice issued by Friends of the Earth about the planning process. One would imagine that that organisation would be keen for the public to engage with councillors, not just to put their views to the councillor but to seek the councillor’s view. Yet the advice states that,
“councillors on the planning committee are not allowed to express their view until the decision is made”.
When advice from expert campaigning groups such as Friends of the Earth is risk-averse, it is clearly time to act. My noble friend Lord Greaves also told us about different councils having different rules and the problems that that causes.
In the light of the debate during previous stages, most noble Lords clearly have no difficulty with the difference between predisposition and predetermination but it may be helpful if I remind the House what predetermination is. Predetermination, which can be actual or apparent, is where a councillor’s mind is closed to the merits of any arguments which differ from their own about an issue on which they are making a decision, such as an application for planning permission. The councillor makes a decision on the issues without taking them all into account.
I am obliged to the noble Lord, Lord Hart, for the time he has taken to explain carefully the problem to me in private. He described a situation where a bigoted person states publically, and with the protection of Clause 25, that he is strongly against some development. He is then on the committee that determines the application but says nothing, then votes against the development. The noble Lord, Lord Pannick, said much the same. The noble Lord, Lord Hart, is right that nothing can be done, but the same would apply if the councillor was covertly bigoted—that is, if he said nothing at any point but still voted against and always intended to, no matter what argument was put forward. Perhaps he is racist and would never ever support an accommodation unit for asylum seekers. My own view, for what it is worth, is that in reality very few councillors operate with a closed mind.
Lord Pannick
I am very grateful to noble Lords who have spoken in this fascinating debate and to the Minister for his detailed response. I shall respond briefly, attempting to avoid any indication of exacting purity that may offend the noble Lord, Lord True, or indeed any other form of reprehensible purity on this matter.
The Minister indicated that there is nothing wrong with the common law rules, and I respectfully agree with him. The problem, the Minister said, is the erroneous advice that is being given to local councillors up and down the land. The problem with that analysis is that, if the advice is the erroneous advice, we should deal with that advice. Let us not amend the common law in a way that changes the current position—and changes it by excluding from relevance the legal material that can demonstrate that there is unlawful predetermination.
Earl Attlee
May I explain the advantage of Clause 25 and the way that it is drafted? If I was a councillor and engaging, as a layman, with officials who were giving me advice, I would be able to produce the words in Clause 25 and say, “It says here that I can express a view”, and there would be very little that officials could do to counteract that.
Lord Pannick
I understand the point and am grateful to the Minister. However, the clause introduces clarity by amending the common law, which the Minister is concerned to maintain. The clause does not maintain the existing common law rules, which the Minister considers entirely adequate. The clause excludes from consideration anything that is said or done prior to the council meeting at which the issue is to be discussed, however extreme the previous statement may be. I entirely accept that what the councillor said prior to the council meeting may not be determinative of whether there is unlawful predetermination, but it must be relevant. That is the objection to Clause 25: it purports, in the Minister’s words, to restate the common law, which the Minister regards as entirely appropriate and unexceptionable. What it actually does is amend the existing common law in a way that will prevent real cases of predetermination being brought and succeeding.
Real concern was expressed in this debate that it is absolutely vital that local councillors should be able to express their views on matters powerfully and strongly if they wish. The noble Baroness, Lady Eaton, and the noble Lords, Lord True and Lord Greaves, made this point. I entirely agree with them that that is the common law position. The cases make it absolutely clear that local councillors deciding any matter are not impartial in the sense required of a judge; they have political allegiances, their politics involve policies and they are entitled to express their views—of course they are. The case of Lewis v Redcar and Cleveland Borough Council in 2009, covered from page 83 of Volume 1 of the Weekly Law Reports, is the leading Court of Appeal judgment. It says that any local councillor who expresses his views powerfully and strongly on any view is not guilty of unlawful predetermination so long as he is prepared to keep an open mind when he goes to the council meeting.
The noble Lord, Lord Sewel, and the noble Lord, Lord Snape, asked for reassurance in relation to the role of party groups and party whips in local government. That, too, has been considered by the courts. In the same case of Lewis v Redcar and Cleveland Borough Council, the Court of Appeal approved an earlier judgment in 1985 by the noble and learned Lord, Lord Woolf—then Mr Justice Woolf—where he said:
“I would have thought that it was almost inevitable, now that party politics play so large a part in local government, that the majority group on a council would decide on the party line in respect of the proposal. If this was to be regarded as disqualifying the district council from dealing with the planning application, then if that disqualification is to be avoided, the members of the planning committee at any rate will have to adopt standards of conduct which I suspect will be almost impossible to achieve in practice”.
Lord Greaves
I apologise for intervening, but I wonder whether the noble Lord is aware that there is a very widespread view within local government, which in my view is widespread in its application, that on things that are thought to be quasi-judicial like licensing and planning applications there is no party whipping. There may be discussions, but no party whip is applied.
Lord Pannick
I understand that, of course; I am responding to the point made that if our amendment were to be carried, this would in some way affect the existence of that whipping that does take place in local government—those elements of party control that are effective. Let me just complete the citation from Mr Justice Woolf: he concluded that there is no objection to any of this so long as, when the councillors come to the council meetings, they have an open mind in the sense that they are prepared to listen to the competing arguments.
The noble Lord, Lord Greaves, was rightly concerned that we should do nothing that should enable lawyers to make lots of money out of all this. That is a very laudable objective. My concern is that Clause 25 is so unclear that it will inevitably provoke litigation, and it will do so because the Minister says that it is not changing the common law but merely expressing it, whereas its terms manifestly do change the common law.
Lord True
On the question of litigation, will the noble Lord answer the point that my noble friend Lord Greaves and I made? If we are concerned about litigation, surely the construction of his proposed new subsection (2)(c),
“as is appropriate in the circumstances of the case”,
which may, as construed with the rest of the section, apply to any decision of any form made by a councillor, is pretty ripe for litigation. Therefore, I do not think his argument that the Government may cause more litigation stands up. Let him answer on this one.
Lord Pannick
My answer to the noble Lord is that paragraph (c) is simply designed to maintain—as the Government say they wish to maintain—the existing common law principle, which is that the judge will indeed look at all the circumstances of the case and decide whether there has been unlawful predetermination. I am not seeking to change the common law position; I am seeking to maintain it. The Minister has the same objective; he does not have the objective—as I understood him—of changing the substance of the common law. The objection to Clause 25 is that, on its wording, that is precisely what it will do, or there is a real risk it will do that. That is why it needs further consideration.
In the hope that the result in your Lordships’ House is neither predetermined—
Lord Sewel
Could the noble Lord explain how his amendment would affect, for example, the situation where, a councillor at a committee meeting having argued very strongly on one side but the party group having met and decided collectively on a different position, the councillor then says, when approached immediately before the council meeting, “I am changing my vote”, and, when asked why, says, “That was the decision of the group and I accept it” and then goes into the council meeting and votes in accordance with the decision of the group? How would the amendment address that issue?
Lord Pannick
The amendment would address that issue by dealing with the question in the same way as the common law deals with it at the moment. No judge is going to accept that there is unlawful predetermination simply because a local councillor has followed the whip that is imposed by his own party or his own group. This happens day after day in local government, and there are no cases that can be pointed to in which the courts have said that that is unlawful predetermination. It is not unlawful predetermination because the local councillor has listened to the matters addressed in the local council meeting.
We are dealing with a phantom problem that is created by erroneous advice being given, or is said to be given, to local councillors up and down the land. We are dealing with it in Clause 25 in a way which is going to make the problem far, far worse; and it is for that reason that I wish to test the opinion of the House.
Baroness Hanham
“(1A) In discharging its duty under subsection (1), a relevant authority must, in particular, adopt a code dealing with the conduct that is expected of members and co-opted members of the authority when they are acting in that capacity.
(1B) A relevant authority that is a parish council—
(a) may comply with subsection (1A) by adopting the code adopted under that subsection by its principal authority, where relevant on the basis that references in that code to its principal authority’s register are to its register, and(b) may for that purpose assume that its principal authority has complied with section 28(1) and (1A).”
Baroness Hanham
My Lords, I should also like to speak to Amendments 5 to 9, 11 to 13, 68, 74 and 75. We had an extensive discussion on Report on the provisions dealing with local authority standards. It was obvious from the strength of feeling exhibited that noble Lords considered this matter to be important and worthy of careful consideration.
There was much common ground in that debate. Everyone in this Chamber agreed about the importance of maintaining the highest standards of conduct in local authorities. There was also broad agreement that the Standards Board regime has become a vehicle for vexatious, petty and politically motivated complaints, with more than half the allegations of misconduct being rejected when assessed.
At the same time, concerns were voiced that the provisions that we had set out to deal with local authority standards after the abolition of Standards Board regime were too localist and not up to the task of ensuring the high standards of conduct that we expect of local authority members. We undertook on Report to take those concerns away and see whether we could strengthen the provisions to address the concerns. Over the past few weeks, we have reflected carefully on that debate and had extensive and useful discussions with noble Lords on their concerns.
As a result of that, I am bringing back a package of amendments to modify the standards provisions in the Bill. All authorities will be required to have a code of conduct. Amendment 4 would put that in place, and local authorities must, as part of their duty to promote and maintain high standards of conduct, have a code of conduct. This requirement applies to parish councils as well as to principal authorities. That code of conduct must be in accordance with the Nolan principles of public life. Amendment 5 states that a code of conduct adopted by a local authority should be consistent with the seven Nolan principles: selflessness, integrity, objectivity, accountability, openness, honesty and leadership.
The code of conduct will, in addition, have to include the requirement for members to register and disclose interests. Amendment 5 provides that the code of conduct must include the requirement for members to register and disclose their pecuniary and non-pecuniary interests. Noble Lords will recall that under Clause 34 a member will be committing a crime if, without reasonable excuse, they fail to declare or register a pecuniary interest or if they knowingly or recklessly provide false or misleading information about that pecuniary interest.
Lord Bichard
My Lords, in speaking to this group of amendments, I draw attention to my own Amendment 10. I rise mainly to pay tribute to and thank the Minister for the constructive and very helpful way in which she has entered into discussions following the amendment that I tabled on Report, together with the noble Lords, Lord Tope, Lord Newton and Lord Filkin. Unfortunately, the noble Lords, Lord Filkin and Lord Newton, for very good reasons, cannot be here tonight, but they both specifically asked me whether they could be included in the thanks for the constructive approach that has been taken.
I shall not waste the time of the House by running over the ground that the Minister has already covered. I think we now have a package that is much better as a result of all our efforts, and this is now a very important part of the infrastructure of local government. As the noble Baroness knows, simply for the sake of clarity and comprehensiveness, I would have liked to have had a specific reference in the Bill to the power to suspend from a committee. However, I am grateful to her for having referred specifically to the powers that already exist, and I think that that, too, will help to clarify the situation. Therefore, all in all, I am very grateful for the help that she has provided. I know that sometimes she has had to act in the face of considerable opposition. I shall go no further than that, but I think that we have reached a place with which I feel content and, again, to save the time of the House, that means that I shall not be moving my Amendment 10.
Lord Tope
My Lords, I follow my noble friend with a small “f”—the noble Lord, Lord Bichard. As he said, we moved a number of amendments at an earlier stage of the Bill and I, too, pay tribute to the Minister for listening so carefully and for taking so seriously the points that we made. The apologies of my noble friend Lord Newton have already been given, but I specifically undertook not only to give his apologies—a hospital appointment prevents his being here—but to pass on his warm thanks to the Minister. Those thanks are perhaps not so much for the extent to which she has moved but for the extent to which she has been able to move those close to her during the proceedings here.
I think that we have moved a very long way from the position that we were in in Committee, when the person replying on the Front Bench said that standards were a matter for local discretion. I am probably one of the greatest localists in your Lordships’ House, but I thought at the time, and feel very strongly now, that if there is one thing that should not be left to local discretion, it is standards in public life. We have got to the point that we have now reached because in the past there has been rather too much discretion over standards in public life.
I am very pleased that we are going to have a mandatory code—or, rather, that it is going to be mandatory to have a code—but I am a little sad that its minimum provisions are not to be the same throughout the country. I think that in reality they will be the same throughout the country, because my expectation is that the great majority of local authorities will simply keep the code that they all already have. My concern relates to what I hope will be a tiny minority of councils that decide not to keep the code that they now have, and it relates more particularly to why they make that decision and in what way they might change it. That leads me to ask the Minister whether there will be any form of monitoring, whether by her department or by the Local Government Association, so that we know what changes are happening throughout the country. There may well be some that are a cause for concern. What we do about them may be another matter, but we should at least know about them.
The noble Lord, Lord Bichard, has already told us that he will not be moving his amendment, but my other concern is that councils now have, and will retain, the power as a sanction, if necessary, either to remove councillors from certain committees or sub-committees or simply not to appoint them. Will that also apply to outside bodies, as all councils appoint councillors as their representatives on outside bodies? Will they now also be able to remove a councillor from an outside body to which the council has appointed him or her?
Many councils, including my own, also have local committees or area committees that are constituted and stated in the council’s constitution to comprise all the councillors elected for that area. Presumably there is a power now to remove them from that area committee. Is that the case, and how does that fit with the constitution of the council, which says that all councillors representing that area have a right to be on that committee?
My other concern is about the form of monitoring—I do not mean imposition, but monitoring—there will be to let us know what is happening under the new regime. I certainly am grateful to the Minister for moving us so far on this, but quite a number of us are still concerned about this issue and feel that we are not there yet—well, we are there but this is not perfection and we may well have to return to the issue in the years to come after a number of high profile cases.
My last point is to welcome the lengths to which Ministers have now moved in the appointment of an independent person and in trying to ensure as far as possible that that person is genuinely independent and open. That independent person now plays an even more important role, in effect being the right of appeal—the only appeal that a councillor has—against what he may well feel is the unfair victimisation by a council with a heavy one-party majority, whatever the party, of someone who is a thorn in the flesh but is not necessarily doing anything improper. Again, it is important that the independent person, as far as it is ever possible, is upheld to be genuinely independent.
I join others in very much paying tribute to the Minister. I know from other sources how hard she has had to work at times to persuade more reluctant colleagues of the necessity to move in this direction. I congratulate her on her persuasive powers and the success that she has achieved. As my colleague, the noble Lord, Lord Bichard, said, we do not have all that we want but we have a lot more than we thought we would get at an earlier stage in the Bill, and I am grateful for that.
Lord Shipley
My Lords, I want to raise a specific issue, but first to declare an interest as a councillor and one-time member of a standards committee. I welcome the amendments because they move us towards a system that is proportionate, will protect the right to free speech, give confidence to the general public, be fair to an individual councillor and should prevent party-political prejudice leading to unjustifiable and unreasonable decisions. The introduction of the independent person—or at least one independent person—seems to me to be a major help in enabling us to abolish the Standards Board for England so that matters can be dealt with locally and we can remove the need for a national referral system.
My one remaining doubt is on how the decisions on allegations will be made. That relates to subsection (3). The Minister said that all local authorities would have to have a form of process for investigating and determining matters relating to breaches of the code of conduct but it is for them to decide what those processes should be. I hope that guidance will be given requiring a local authority to have a formal committee structure to achieve this. Otherwise, it is not clear how that will be delivered. If there is to be a formal committee structure, in my view it should be chaired by an independent person but not necessarily the same one who is the independent person referred to in other subsections. In addition to having an independent chair, there will be independent members, as now, along with sitting councillors. Then the whole council will be able to decide on any suspension from committees that might be recommended.
I believe that because it is extremely important to avoid any perception or possibility of party-political bias in reaching a decision. Standards committees with independent members seems to be a means of preventing what may appear to the general public to be party-political decisions being made. Therefore, pursuing independence at a local level through the independent person and independent members of standards committees is extremely important.
Lord True
My Lords, I am rather more sympathetic to the Government’s attempt to find a formulation than some of the demurrers and I congratulate my noble friend on finding an admirable way through. That is another example of the way in which she has conducted the Bill. If I may help my noble friend Lord Tope, surely the answer to the question of committees or bodies to which councils mandate members is that in the first instance questions of misconduct must come from those bodies themselves, to which the people are mandated. It seems inconceivable that any council would wish to be represented by somebody who had attracted censure. It would certainly be within the power of any council to withdraw a nomination and I would hope that every authority would do that.
My noble friend Lord Shipley raised a point on subsection (3). I rather like that subsection although I agree with my noble friends Lord Shipley and Lord Tope, and the noble Lord, Lord Bichard, that there has to be some sense that there is independence. Often these matters can be dealt with by arbitration and a sensible person who will put two people together. It is clearly sensible, as my noble friend Lord Shipley says, that we may need to get two committees. However, there may be things that can be dealt with more effectively without getting to that process, but giving everybody along the way the sense that they can go to an independent body. I would not want my noble friend to be much more prescriptive, but I agree with the sense of what my noble friend Lord Shipley said. We have found an admirable way through and I congratulate the noble Lord, Lord Bichard, and others who have contributed to it.
Lord Beecham
My Lords, I declare an interest as a member of a council—hence my straying into jargon that we apply in council debates—a member of the standards committee, which meets later this week, and vice president of the Local Government Association. I join other of your Lordships in extending warm congratulations to the Minister who is clearly responsible for, and indeed embodies, an outbreak of sweet reasonableness over this issue that we hope to be pursued by some of her ministerial colleagues when we come to other legislation after this evening’s proceedings.
Like other noble Lords, I believe that there are issues that one might have wished to have taken a little further. A mandatory code would have perhaps been preferable. As the noble Lord, Lord Tope, indicated, in all probability we will end up with something like that. I hope that the Local Government Association, with others, will draft something that will be useful and will be adopted by many local authorities. It is very important that this independent role should be reflected. I agree with the noble Lord, Lord Shipley, that mandatory committees, perhaps with that independent element, would have been preferable. Nevertheless, we have gone a long way forward since the original Bill and our earlier discussions on Second Reading, in Committee and on Report. For that we are clearly indebted to the Minister.
I am not quite so sure about the sanctions that are available and whether they are sufficient to meet some of the more serious cases. A huge range of cases has applied at national and local level. I note that people from all political groups have transgressed, sometimes quite significantly. A prominent Conservative ex-leader of a council was found to have leaked a confidential document related to a land sale and was suspended for 28 days by his council. A Labour deputy group leader was also found to have breached confidentiality in relation to a compulsory purchase order. These are not insignificant issues, and they are not personal issues either. He was suspended for three months by his local authority. A Lib Dem councillor was suspended for six months for bullying and disrespectful behaviour at a training session. One of the worst cases was an independent borough councillor who had undermined and humiliated the council’s press officer systematically in front of other councillors until she began to cry and had to leave the room. That is intolerable behaviour in any circumstances and is certainly not consonant with holding a public office. A suspension for three months took place in that case.
However, I wonder whether suspension from a committee or even removal from outside bodies is necessarily sufficient for the more serious types of case. We clearly cannot pursue this further tonight, but it may be that over time, and bearing in mind that we need to see how this works in practice, we might have to revisit that element. Another place has quite draconian powers of discipline. I am not quite sure that they are quite as draconian in this place, although there are matters currently under consideration of a very grave nature and one hopes that one would not see anything like that again in your Lordships' House. It may be therefore—given that the national framework has been dismantled and that there may still, unfortunately, be a few cases where really serious misconduct occurs—that one must wonder whether the sanctions currently available and reflected in the amendment tabled by the noble Lord, Lord Bichard, are adequate. We have clearly moved on and I am grateful and pleased that we have achieved this. I congratulate the Minister and the noble Lord, Lord Bichard, and thank them for the work they have done on this matter.
Baroness Hanham
My Lords, I thank everybody for the very kind compliments. It is unusual to hear them, so I am basking a little bit. I am also grateful to the noble Lord, Lord Bichard, who fought very hard with the noble Lord, Lord Filkin, to make sure that we took this matter on board. He has been very persistent and was gracious in saying that he will not move his amendment.
We think that these procedures will have a real impact on the conduct of local councillors. While not spelling out how councils should put a scheme in place, it is clear that they have to. They must have some means of dealing with complaints. It seems almost inescapable that if you are going to do that, you are probably going to have to have some sort of committee structure to deal with them. That would be fine if local authorities decide for themselves, but to be fair and independent, they will need to have a balance.
I do not think that anybody has misunderstood. However, I want to make it clear that whatever the system and whether local authorities have independent members in that committee structure, they will still be required to have a further independent member who will act outside the committee system and will have to be referred to.
The noble Lord, Lord Tope, asked about the monitoring of the process. From the Government’s point of view, there will not be any further monitoring. It is possible that the Local Government Association will want to know what is going on, but unless things are very different from what we anticipate, it will be up to local authorities themselves to see their systems through and to make sure that this structure works.
I have been asked questions about representation on outside bodies. I think the answer must be that where the council is appointing somebody to another body, if there is a complaint about the councillor, the council is still responsible for them so it would be able to take action against them.
The other aspect that must be clear is that this has to be a transparent process. Each step must be open to comment and it must be dealt with openly. If there is a complaint that results in a warning or a letter, that must be clear so that local people who have elected these councillors know exactly what has happened or can find out. Some of the sanction will therefore be imposed by the electorate. They will know that somebody has transgressed or offended before they chose to re-elect him. The day-to-day monitoring will be carried out under the transparency of the decision-making process. The noble Lord, Lord Shipley, mentioned the decision on allegations. I hope that I have covered that. If not, I will talk to him subsequently.
I think this system will work. It leaves a big localist element, but it has structure and elements that were not there before. I am grateful to all noble Lords who contributed to this debate.
Baroness Hanham
“(1) A relevant authority must secure that a code adopted by it under section 27(1A) (a “code of conduct”) is, when viewed as a whole, consistent with the following principles—
(a) selflessness;(b) integrity;(c) objectivity;(d) accountability;(e) openness;(f) honesty;(g) leadership.(1A) A relevant authority must secure that its code of conduct includes the provision the authority considers appropriate in respect of the registration in its register, and disclosure, of—
(a) pecuniary interests, and(b) interests other than pecuniary interests.(1B) Sections 29 to 34 do not limit what may be included in a relevant authority’s code of conduct, but nothing in a relevant authority’s code of conduct prejudices the operation of those sections.
(1C) A failure to comply with a relevant authority’s code of conduct is not be dealt with otherwise than in accordance with arrangements made under subsection (3); in particular, a decision is not invalidated just because something that occurred in the process of making the decision involved a failure to comply with the code.”
“(3) A relevant authority other than a parish council must have in place—
(a) arrangements under which allegations can be investigated, and(b) arrangements under which decisions on allegations can be made.(3A) Arrangements put in place under subsection (3)(b) by a relevant authority must include provision for the appointment by the authority of at least one independent person—
(a) whose views are to be sought, and taken into account, by the authority before it makes its decision on an allegation that it has decided to investigate, and(b) whose views may be sought—(i) by the authority in relation to an allegation in circumstances not within paragraph (a),(ii) by a member, or co-opted member, of the authority if that person’s behaviour is the subject of an allegation, and(iii) by a member, or co-opted member, of a parish council if that person’s behaviour is the subject of an allegation and the authority is the parish council’s principal authority.(3B) For the purposes of subsection (3A)—
(a) a person is not independent if the person is—(i) a member, co-opted member or officer of the authority,(ii) a member, co-opted member or officer of a parish council of which the authority is the principal authority, or(iii) a relative, or close friend, of a person within sub-paragraph (i) or (ii);(b) a person may not be appointed under the provision required by subsection (3A) if at any time during the 5 years ending with the appointment the person was—(i) a member, co-opted member or officer of the authority, or(ii) a member, co-opted member or officer of a parish council of which the authority is the principal authority;(c) a person may not be appointed under the provision required by subsection (3A) unless—(i) the vacancy for an independent person has been advertised in such manner as the authority considers is likely to bring it to the attention of the public,(ii) the person has submitted an application to fill the vacancy to the authority, and(iii) the person’s appointment has been approved by a majority of the members of the authority;(d) a person appointed under the provision required by subsection (3A) does not cease to be independent as a result of being paid any amounts by way of allowances or expenses in connection with performing the duties of the appointment.(3C) In subsections (3) and (3A) “allegation”, in relation to a relevant authority, means a written allegation—
(a) that a member or co-opted member of the authority has failed to comply with the authority’s code of conduct, or(b) that a member or co-opted member of a parish council for which the authority is the principal authority has failed to comply with the parish council’s code of conduct.(3D) For the purposes of subsection (3B) a person (“R”) is a relative of another person if R is—
(a) the other person’s spouse or civil partner, (b) living with the other person as husband and wife or as if they were civil partners,(c) a grandparent of the other person,(d) a lineal descendant of a grandparent of the other person,(e) a parent, sibling or child of a person within paragraph (a) or (b),(f) the spouse or civil partner of a person within paragraph (c), (d) or (e), or(g) living with a person within paragraph (c), (d) or (e) as husband and wife or as if they were civil partners.”
Baroness Hanham
Lord Beecham
“(b) members of a designated neighbourhood forum under section 61F of the Town and Country Planning Act 1990”
Lord Beecham
My Lords, this amendment deals with another issue of standards, but of a rather different nature. It relates to the position of members of the neighbourhood forums which the Bill establishes and which, of course, will have the responsibility of initiating, potentially, local plans which will be, it is hoped, a significant part of the planning process. Originally, as your Lordships may recall, the Bill proposed that such forums could be constituted by a mere three individuals. That has been expanded sevenfold and now 21 individuals can constitute themselves into a neighbourhood forum and may be involved in the process thereafter that gives rise to a local plan.
There is effectively no restriction on those who might constitute this forum, and it may well be that in some cases they would have interests. They might be interests as residents or landowners in the area, or they might be as employees of a concern wanting, for example, to open some facility such as a shop. They might be employees or participants in such a business. As matters currently stand, there would no obligation for any of those interests to be disclosed. I would have thought that in the interests of transparency, they ought to be. This would not be a complicated process. Those who apply to be designated as a neighbourhood forum would, in making the application, simply indicate their relevant interests in exactly the same way as councillors, certainly when elected, have to declare their interests. The Bill has dealt very fully with that, so it is not an inordinately complicated process.
Lord True
My Lords, I am sorry to say that I have a lot of sympathy with the spirit behind this amendment, but having wearied the House with my views on neighbourhood forums and not having been able to persuade my Front Bench fully about this question, I think that noble Lords opposite will know that my view is that we should start from the assumption that the neighbourhood forum includes everybody in the neighbourhood area. In those circumstances, if the neighbourhood forum is very large, I do not think that the kind of amendment that the noble Lord, Lord Beecham, has proposed would be practicable. I do not think that we could ask everybody who lives in a village or in a neighbourhood area to publish their interests simply because they wanted to participate in a neighbourhood forum.
If, however, it emerges—and I think we have to wait and see the guidance on the Bill—that my maximalist view of what a neighbourhood forum should be does not prove to be the case, and if the neighbourhood forums turn out to be rather small bodies of perhaps only 21 individuals wielding a great deal of influence in the name of the community, then I would find the arguments of the noble Lord, Lord Beecham, quite persuasive. As we gain experience going forward of what these bodies are actually going to be—whether they are small or big—this will affect the judgment that I would make about this question. I would suggest, however, that this is something that we might leave until we see further guidance on the Bill. I am sure it would be a matter that might be addressed then. If 21 people are going to be very influential in an area, I would like to know where they were coming from, and I am sure local people would, too.
Baroness Hanham
My Lords, Amendment 14 would require local authorities to maintain a register of the interests of members of designated neighbourhood forums. From the outset, I remind Members and my noble friend behind me that 21 is a minimum. You can have as many as you like on a forum—if he wants the whole bloomin’ neighbourhood, he can have the whole lot on it. There is nothing to stop that happening. I would take his view that if you are going to have most of the members of a ward or an area, which might amount to 1,500 or so, this proposal would probably be otiose.
A neighbourhood forum is designated by a local authority for the express purpose of preparing a neighbourhood plan or order for a designated neighbourhood area. The neighbourhood forum will not make decisions on planning applications or on whether a neighbourhood plan or order should come into force, nor will it take on wider duties and responsibilities. Neither is the neighbourhood forum intended to form an equivalent governance function to that of a parish council. The neighbourhood forum is simply a group designated by the local authority to prepare a neighbourhood plan or order.
We have worked hard to ensure that the Bill reflects this position by imposing minimum requirements that community groups must meet in order that they can be designated as a neighbourhood forum. This will enable existing groups to take a leading role in neighbourhood planning. To avoid forums acting inappropriately, the Bill gives local authorities the power to remove the designations of neighbourhood forums in certain circumstances. In addition, requiring their members to register and declare interests would be unnecessary. Since the forum is similar to a planning applicant submitting a planning application to the local authority, it is not making a decision in the public interest.
Furthermore, in practical terms, maintaining a register of the interests of neighbourhood forum members would be extremely difficult for the authority to achieve, given the wide range of individuals who could be members of a neighbourhood forum and the likelihood of frequent change in the forum’s overall membership throughout the process of preparing the plan or order. The Bill requires all neighbourhood forums to include, as I said, at least 21 members who live or work in or are elected members of the neighbourhood area and to have an open approach to their membership.
In addition, of course, there was the requirement that we put into the Bill—I think at Report stage—that there should be consultation before any plan is put to the local authority. I hope that Members will accept this view and not push this amendment today.
Lord Beecham
My Lords, I am grateful for the conditional support of the noble Lord, Lord True, which I occasionally receive. I quite take his point, and I also listened carefully to the Minister. I think that the noble Lord, Lord True, is right, and this may be an issue to be revisited at a later stage. I am not entirely sure that we will in fact have large neighbourhood forums. I think the surveys that have taken place so far indicate that there is not—at the moment, at any rate—a huge appetite for the formation of these things. Therefore, we may be in the position where they tend to be rather small and in that case we will perhaps need to look again. In the circumstances, however, I beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
My Lords, there have been significant changes wrought by this Bill. One of those that we debated in earlier days was the abolition of the duty to promote local democracy, which I thought was somewhat inconsistent with the general localist agenda. That elicited little or no support on the Benches opposite and did not seem to me to be worth while bringing back at this stage. However, in respect of another issue, which was the provision about petitions, it does seem to me that the case for some provision—as opposed to the elimination which Clause 46 of the Bill would have carried through—has been heightened by at least two recent developments.
The first is the changes in the Bill around the issue of democratic engagement. I very much welcome the withdrawal of the proposals for local referendums, which I thought were misconceived, overelaborate and calculated to produce a great deal of mischief and trouble. Nevertheless, they were a form—and in my view a very unsatisfactory form, and I think that has ultimately been accepted by the Government themselves—of promoting public engagement. This still leaves the issue of how one does promote particular forms of public engagement.
In another place a week ago, there was a diverting evening using the petition process which the Government have initiated to debate rather grander matters, I guess, than will normally be the case at the local level. Of course, the Government have proceeded with their electronic petitioning and the right of the other place to debate matters that receive a significant degree of support—a policy which may not have entirely produced the results anticipated last week and which some members of the Government may even have cause to regret. At any rate, the procedure is there.
For some time, in some councils, there has been an approach which has welcomed, and indeed encouraged, the bringing of petitions and discussion of them. Looking back, about three years ago the New Local Government Network, which is not a partisan organisation—it has councils in it that are controlled by all three major parties and indeed some independent members—advocated a proposal for a more defined process for bringing petitions. That proposal was, in almost the last gasp of the previous Government, embodied in legislation which, as the noble Lord, Lord Shutt, pointed out in his typically robust fashion was somewhat overelaborate, to put it mildly, and that certainly was the case. I think the legislation was announced in December 2009 and passed into law shortly after that, and it was certainly much too overprescriptive in the way it laid down how the process should be implemented.
Nevertheless, although a significant number of councils have a process to facilitate the bringing of petitions and their consideration, it is by no means universal. It seems to me important that there should be an obligation on local authorities to foster that kind of engagement with the communities they represent so that matters can be brought to the attention of the council and discussed in whatever form the council decides is appropriate, on the basis of the basic requirement that Amendment 49 would create, of having a scheme under which the petitions might be considered. This would also include another right that was brought into being by the previous Government, the right to call an officer of the council to account, in a properly structured way.
This is not an overbureaucratic process. As I say, many councils have their own procedures now. Mine certainly does; I dare say the councils of the noble Lords, Lord True and Lord Tope, and perhaps even that of the noble Lord, Lord Greaves, will have similar procedures. However, it is not universal, whereas it seems to me that it should be, so that any number of people—the council may lay down a minimum if it chooses—would know that they have the right to have matters raised at the level of the local authority, not just with their individual councillors, although that is always an option, but in a more systematic way.
The amendment also provides for a simple enough procedure for the council to give an account of what happens to those petitions, so they do not just disappear into a black hole. That certainly is the case in my own authority and I suspect in many others, and all there really needs to be, perhaps even just once a year, is a brief summary of what matters have been raised and how they were dealt with, so people can know that their views and concerns have been taken care of. It is not a huge obligation and would contribute to a healthier relationship between a local authority and its members on the one hand and the community on the other. I hope that even at this late stage the Government will have second thoughts. I beg to move.
Lord True
My Lords, that is a nice try by the noble Lord, Lord Beecham, but I am afraid I am going to be conditional in my support again. Petitions are important and he is quite right to say that my own authority considers them: tomorrow night we have a debate on a petition from the public; and there are two running petitions, both with over 2,000 signatures, which I am sure will lead to debates at future council meetings. I agree that it is good practice for local authorities. I do not think the Government are withdrawing from encouraging that but it would be a pity if they were.
I have not had time to study the details of his new clause so for that reason alone I would find it hard to support it. However, I am slightly worried about the concept of public petitions calling an officer to account. All those who have been in positions of authority in local government will know the amount of, frankly, sometimes libellous and hostile comment one gets about officers, and one of the duties of people who are elected is to take responsibility. I do not care for the encouragement of petitions to call officers to account. For that reason, as well as not having studied it, I would be doubtful about the form; the spirit is right but I do not think that it is something we could add to the Bill at this stage.
Lord Tope
My Lords, neither the noble Lord, Lord Beecham, nor the noble Lord, Lord True, were Members of your Lordships’ House when some of us spent many happy hours—hours and hours—dealing with what I think was the first part of what was then the Local Democracy, Economic Development and Construction Bill. We argued for hours about petitions and petition schemes. I recall my noble friend Lord Greaves—who I think I have just managed to shut up for a few moments—actually bringing in some petitions to his council so that we could see that they are rather different from petitions that come to Parliament in their general layout and form.
We had a very listening Minister then who listened and indeed made many amendments to what was proposed, but we were still left with pages of prescription about how councils should collect, receive and deal with petitions. We heard that most councils did not have such a scheme. What actually emerged, and it was a legitimate criticism, was not that most councils did not have a scheme but that most councils had not thought to put it on their website, which of course they should, but that is rather different from saying that councils do not receive or deal with petitions.
I have much sympathy with much of what the noble Lord, Lord Beecham, said in moving his amendment. The crucial difference between us is that I believe he was talking about good practice and I do not believe, especially in a Localism Bill, that it is for your Lordships’ House to be prescribing in legislation what should be disseminated as good practice. I still bear the scars of the Local Democracy, Economic Development and Construction Bill, and that, I am afraid, tempers very considerably the sympathy with which I listen to the noble Lord, Lord Beecham.
Lord Greaves
My Lords, I will just add a few brief things. My noble friend reminds me of one or two things which I had thankfully forgotten about. I was trying to remember how many amendments I actually put to this chapter of that Bill when it came. That is also something I had forgotten about, which is something that happens.
The noble Lord, Lord Beecham, quite rightly said that councils have to welcome and encourage petitions. But what is really important is the seriousness with which they treat them and deal with them when they come. You can set up as many bureaucratic, complex, legalistic schemes as you like, but if people do not treat the petitions seriously it is just going through the motions and wasting time and energy. If people treat petitions seriously you do not need a complex, bureaucratic, top-down—and, I have to say, pretty patronising—piece of legislation like Chapter 2 of Part 1 of the Local Democracy, Economic Development and Construction Act 2009. I note with some wry amusement that the noble Lord, Lord Beecham, is desperately trying to hang on to this classic piece of new Labour nonsense, which frankly has not improved the situation of petitions in any council in the country. Those who take them seriously, take them seriously; those who do not, do not.
This is eight pages of primary legislation telling councils in great detail how to deal with petitions. I, along with my noble friend, pay tribute to the Minister at the time, the noble Baroness, Lady Andrews, who listened to a great deal of what we had said—it was 12 pages of nonsense before we started, and between us we managed to persuade the civil servants and the powers that be in the then Government at least to take some of it out. As I told the noble Baroness at the time, if the Government simply want to tell councils to have a scheme for dealing with petitions that deals with them seriously, they could do so in half a page of legislation, not eight pages. I have been through this and reminded myself of the huge amount of nonsense in it. I will not detain—or should I say entertain—your Lordships’ House with any more of this tonight, but it really does deserve to go.
The one point that I will raise relates to Section 16 of the 2009 Act, which is the requirement to call officers to account. I do not know how often, if ever, this has been used since this part of the Act was commenced. At the time, we had a long debate, and in our view it was totally inappropriate for officers of the council to be hauled up and held to account before the public in this way. The people who should be held to account are the elected councillors: those who run the council and who have been elected by the people to be responsible and accountable to the people. Clearly, they will need support from officers, and if officers are not performing their jobs properly, the elected councillors are the ones who should take a grip of the situation and sort it out. That is a fundamental principle, in our view, but we could not persuade the Government at the time that that was the case. I am delighted that my noble friend Lord Shutt is, I assume, going to resist this amendment.
Lord Shutt of Greetland
My Lords, I thank the noble Lords who have spoken on this matter. Clause 46 of the Bill repeals the duty on principal local authorities in England and Wales to have a petitions scheme and the associated provisions. Amendment 15 would omit this clause, therefore reinstating the duty, and Amendment 49 would then amend the original legislation, which the noble Lord, Lord Greaves, referred to when he mentioned the eight pages. Incidentally, I have a note that there would be still four or five pages left of that, including the requirement to call officers to account. So a lot of it would still be there.
While the intention behind the amendments to ensure that councils treat the receipt of petitions sensibly and appropriately is laudable, I am not persuaded that reinstating this prescriptive and burdensome duty, albeit in a revised form, is either necessary or desirable. The revised duty proposed would remove Section 11 of the Local Democracy, Economic Development and Construction Act 2009, which provides for principal local authorities to have petition schemes, but it is clear that they would continue to need such schemes, given that Amendment 49 includes several references to petition schemes. Even with this change, the revised duty would mean a significant new burden on local authorities. The effect of subsection (6) of the proposed new section is that the statutory petitions schemes would have to go into far more detail than is currently required about how particular categories of petition will be treated.
In addition, the extension of the statutory duty to all categories of petition—including mayoral petitions and council tax petitions—which the amendment creates, will create further additional burdens, as a scheme would then need to provide for different processes for different types of petition. To reinstate the current overly prescriptive duty not with a clean sheet but with a confused mishmash of some retained elements, with some changes and some provisions dropped, is not at all helpful. We trust local authorities to make the best choices for their local areas and to respond to residents’ concerns in a locally appropriate way. However, how that looks should be a matter for local discretion, not central prescription.
We simply do not believe that we need to reinstate this duty in order to force local authorities to have a petitions scheme, any more than we believe that we need to tell local authorities how to respond to petitions from their own residents.
The noble Lord, Lord True, asked whether the Government still support the concept of petitions. Let me make it clear that they absolutely support and encourage the use of petitions but at a local and not at a national level. It seems to me that people want to put up a petition in a post office or whatever. They do not want to have to scratch about wondering what the proper way to organise a petition is for that council. They want to get on with the petition, get the names together and get on with it. That is how it is in democracy and how it is in local areas. In the circumstances, I trust that this amendment will not be pursued.
Lord Beecham
My Lords, I suppose that the noble Lord, Lord Greaves, can be forgiven for a sense of déjà vu since the issue has arisen, but he should have looked at the amendment rather than the Act. The amendment would substantially reduce what I entirely agree was a ridiculously overprescriptive regime for the presentation of petitions. It simply provides for councils to have a scheme to deal with petitions and is not about the detail of how petitions are to be presented, except that they would be acceptable in electronic or written forms. After that, it would be very much a matter of local discretion as to how they would be dealt with. There is no intention in the amendment to prescribe how petitioners should present their case. It is not at all a bureaucratic substitute and is significantly shorter than the three volumes that the noble Lord would have us believe the Act required.
The difficulty is that, by abolishing the provision without any alternative, the Government are sending a signal that petitions do not seem to be important. They are important and it is unfortunate that the Government are sending a signal to the contrary by neglecting this when Parliament is now adopting a procedure, for good or ill, which appears to place considerable value on petitions. However, it is clear that there is insufficient support for me to test the opinion of the House. I regret what has happened and I hope that at some point the issue will be revisited. In the mean time, at the very least I hope that Ministers will use their best endeavours to encourage councils, even if not on a statutory basis, to promote the use of petitions as an important element in local democracy. In the circumstances, I beg leave to withdraw the amendment.
Lord Marlesford
“Litter deposited from motor vehicles
(1) Local authorities may make byelaws about litter deposited from motor vehicles.
(2) Such byelaws may include provisions about—
(a) the application of section 87 of the Environmental Protection Act 1990 (offence of leaving litter) to litter deposited from motor vehicles;(b) the procedures for identifying the person in charge of a motor vehicle; and(c) the information which the registered keeper of a vehicle may be required to provide the local authority.”
Lord Marlesford
My Lords, in moving Amendment 16, I must declare two interests. The first, I hope, is shared by many on all Benches of your Lordships’ House, which is to campaign to do something to reduce the amount of litter that disfigures—indeed, I would say disgraces—our country. The second is to remind noble Lords that back in the 1990s I was for five years chair of the CPRE, which has supported this amendment.
I do not apologise for repeating this amendment 21 days after we last debated it. At that time, the Government’s reply to the debate was, I suppose I could say, sad. My amendment is simple and necessary. We have to do something about litter. I believe in the old political cliché of action and not words. I am not seeking to create a new offence; it has been an offence for 11 years to drop litter from vehicles under Section 87 of the Environmental Protection Act 1990.
The problem is that it is very seldom that anything can be done about it because it applies only to the person dropping the litter and at the moment there is no way of knowing who dropped the litter. My amendment would simply make the keeper of the vehicle responsible, as is already the case for parking and for speeding. It is a simple amendment. To put it mildly, I am afraid that my noble friend Lord Shutt did not welcome it. He read out a brief that did not produce a single decent argument. Perhaps I may remind him of what he said on 10 October. He said that,
“extending the scope of the littering offence … raises issues of fairness and proportionality ... It may not always be a ready solution for the registered keeper to avoid prosecution by identifying who was the actual offender”.—[Official Report, 10/10/11; col. 1370.]
That is what he was asked to say, and he said it. That is his job, I suppose, in one sense. However, the only Whitehall bazooka that he forgot to fire was that the Government, I suppose, feel that they can never risk being taken to the European Court of Human Rights. No doubt his officials said to him, “Yes, Minister, it is always safer to do nothing”, and that is what happened.
Lord Judd
My Lords, I am very glad to support this amendment. It is not just my great regard for the noble Lord, Lord Marlesford, in his commitment to the best heritage in our society and to preserving it that makes me want to support him but the issue itself. Litter is a menace in our society. It is disfiguring our towns and villages and the countryside. If we really care about our inheritance and preserving what is best, it is no good just having exhortations and principles, which are sometimes enunciated in legislation; it is essential to have some muscle in what is being done to combat it. A few egocentric, selfish people can ruin the environment, whether it be the built environment or the rural environment. It is time that this matter was taken in hand.
I sometimes get a little frustrated in my home community. I have the pleasure of being the president of the Friends of the Lake District—which, of course, represents the CPRE in the whole of Cumbria—but I sometimes reflect in my own neighbourhood of the community how people who take tremendous pains and care with their own gardens and their own estates seem to abandon responsibility when they move outside the garden gate. We have to promote a sense of community commitment on this, followed through with legislation consisting not only of words but the means to make it happen.
It is not an accident that nations that are healthy socially and economically have a great deal of civic pride. I sometimes think that it is a good way of measuring the state of psychology of a nation. If a nation is in good heart, there is a much better chance that all these matters will be taken seriously. On the other hand, it is a two-way argument, because if we let things slip people lose interest. They lose their sense of civic pride and their sense of belonging to a community and needing to make sure that our community is strong and prosperous. It all goes together psychologically. From this standpoint, I thoroughly commend the amendment that has been brought back at Third Reading. The noble Lord, Lord Marlesford, was absolutely right to bring it back at this stage.
Lord Reay
I agree with what the noble Lord, Lord Judd, has just said and I strongly support the amendment.
Like my noble friend, I did not think very much of the Minister’s arguments for not accepting my noble friend’s amendment on Report. He argued that we could wait and see how it worked out in London when London boroughs get powers under the latest London Local Authorities Bill to issue the registered keepers of vehicles with civil penalties where enforcement officers witness littering from a vehicle. I thought that argument had some plausibility.
However, London is not the country. Litter thrown from vehicles is a particular scourge of the countryside. People driving through the countryside may feel themselves more likely to be unobserved and so more prone to commit the offence. They may well be right. Creating this new offence may work better in towns than it will in the country—we simply do not know—but I suggest that the logical thing to do would be to allow it to be tried out in different parts of the country. My noble friend’s amendment would enable this to happen by permitting local authorities who are particularly keen to do so to take action.
I hope the Government will accept the amendment. If they do not and do not say that they have now changed their minds and intend to introduce, at the earliest opportunity, a new national offence along the lines of my noble friend’s amendment, I hope my noble friend will press his amendment to a Division and I shall certainly support it.
Lord Deben
I am attracted to the amendment, which has been so ably moved by my noble friend Lord Marlesford. As a campaigning environmentalist I am sometimes concerned that the one issue that unites everyone is not fighting climate change—which, of course, is the biggest issue of all—but litter. If you really want to cause a major row, then raise the issue of litter. The Government have to be careful about appearing not to recognise how, particularly in the countryside, as the noble Lord, Lord Reay, has said, this is an issue of considerable concern.
I find it one of the more depressing things that, in the beautiful part of England where I live, at most weekends the first part of the job is to pick up the various items that have been pushed into the hedge and down the drive of the house in which I live. It is a sad fact but it is one that needs to be taken seriously, and I hope noble Lords will agree that this elegant use of the Bill—to give opportunity for particular local authorities to make a particular choice—would be a sensible step. I am sure the Minister may have some really remarkable argument to show a better way forward, which I look forward to hearing.
In Suffolk we have a very successful campaign, which I have to speak of very carefully because it is headlined by the phrase, “Don’t be a tosser”. It is designed to make people stop throwing things out of car windows. This is a real issue. The local authorities in Suffolk might well like to take the opportunity, were they able to, to help the Government by trialling such a proposal. I hope the Government will take seriously what the noble Lord, Lord Marlesford, has suggested.
Lord Cameron of Dillington
My Lords, I strongly support this amendment, and in doing so I must declare an interest as a farmer. We are plagued by litter from cars down in Somerset where I come from. It does not tend to be what I would call black-bag-type litter, although that is sometimes worse because the bags are thrown out of cars and explode and the litter goes all over the field in a real mess and is very difficult to pick up.
The worst sort of litter that we have is old fridges, old cookers, old beds and old mattresses. They get poured out into little nooks and crannies by the road and then seem to breed. I feel that there is a book in here somewhere, although perhaps not the type of stuff the noble Lord, Lord Dobbs, writes. You get one cooker, and then two. Then they will have a daughter of a fridge and a mattress will arrive. It is a most extraordinary thing and no one seems to have the responsibility for picking it up. I know one or two local farmers who shovel the stuff back on to the road, so then it becomes the responsibility of the Highways Agency, which of course makes it responsible for littering the countryside.
It is obviously very difficult for the local council, because almost every night somewhere around my neighbourhood someone has dumped some particular object or other. Can the council do anything to prosecute the motorist? If you are worried that it might not be the motorist who has dumped it but someone in the car, do not tell me that a motorist is not responsible if his car is stopped and a fridge gets thrown out. A motorist is just as responsible as the person who might be in the back seat. I really endorse this amendment and think it is really very important that we support it.
Lord Berkeley
My Lords, I support the concept of this amendment, but we are in danger of making even more laws when we cannot enforce the ones we have. I find pretty incredible the idea of somebody such as a litter warden—I do not think the police would do it—chasing every car that goes down a country lane to see whether something falls out of the window and then trying to identify who threw it via the keeper. The same could apply in parks or on the roads. Who is going to enforce these laws? I wonder whether either of the noble Lords who have put their name to this amendment could actually tell the House how many convictions there have been for dropping litter, even without this amendment, since the law came into effect. I am afraid that it is probably a solution that is nice to have but will not make much difference. We have to do much more to educate people about not throwing litter or dumping things and helping them, as my noble friend Lord Judd said, to have more pride in the environment in which they live.
Lord Jenkin of Roding
My Lords, I, too, support the amendment, but I have only one question to ask my noble friend who is going to reply. When he replied on 10 October, at col. 1370, it was perfectly clear that he had been briefed about the London Local Authorities Bill currently before Parliament. I had made the point that it was awaiting some technical changes to be approved by the Government. The Ministry of Justice and no doubt the DCLG will also have been involved. Can my noble friend tell me anything more about that? How long are we going to have to wait before that Bill can be made to work? That is what we are waiting for, and at the moment it is in the hands of the Government. Can she tell me anything about that?
Lord Beecham
My Lords, I shall not detain the House for long. This is in my view a model amendment. It does not require local authorities to take action but creates a power for them to do so, which is absolutely right in the circumstances. It is for them to make a judgment about whether in particular circumstances it is likely that they can secure convictions in an urban area—to respond to my noble friend Lord Berkeley. It would be easier to do so than in a rural area, obviously, because there would be witnesses and people who would take note. Frankly, I suspect that the situation is worse in urban areas even than in the rural areas about which we have heard.
The noble Lord is to be congratulated on his amendment. This is not a party issue. However, if the noble Lord were minded to divide the House I would certainly go through the Lobby with him.
Baroness Hanham
My Lords, I thank the noble Lord, Lord Marlesford, for moving this amendment. We have had some discussion about it and have had two serious debates in this House. I am afraid that there are serious problems with the amendment. One of them was mentioned by the noble Lord, Lord Berkeley. The fact is that it is extremely difficult when most enforcement law is not carried out anyway and you are just adding to it. As the noble Lord, Lord Marlesford, himself said, there are already powers regarding littering offences under Section 87 of the Environmental Protection Act. What happens is that they are not enforced; there are not enough enforcement officers, or they are not around at the right time to ensure that littering does not take place. There are already penalty charge notices that can be given by enforcement officers, particularly in the towns, but all over the country, to enable enforcement on litter dropping. So I do not believe that the amendment is necessary.
What we need is proper education and proper campaigns. As the noble Lord, Lord Deben, said, his authority is not sitting around waiting for a by-law—it has got itself up and going and is running a campaign with a quite attractive title. I have to say that it strikes one as something that might have had the noble Lord behind it. So we do not really need this.
There is a further difficulty. Local authorities can make by-laws only for themselves. If one authority has a by-law and another does not, where is the fridge going to be dropped? It will be dropped within the one that does not have a by-law. Furthermore, local authorities cannot deal with motorways or main roads outside their control. Those are in the power of the Highways Agency, which has not been included in the amendment.
I know that the noble Lord, Lord Marlesford, is going to be very upset with me, because we have had a discussion that will make him upset with me, but I want to go back to the position that we do have the London Local Authorities Bill, which has powers in it. I appreciate that it is largely urban, but London local authorities stretch out beyond the urban to the suburbs and even, may I say it, border on greenbelt and places that could be tempted to be rural. What we want to do is to see what happens as a result of that Bill. The Bill is a private Bill, as everyone knows, and is before Parliament now. It has completed its Lords stages and is at an advanced stage in the House of Commons. The expectation is that if there are no more challenges to it, it will proceed on its way. When that is implemented, we will be able to see what can be done. The Bill will allow a local authority to issue a civil penalty to registered keepers whereas the amendment of the noble Lord would make it a criminal offence. This would make it a civil offence with a penalty charge notice of £100, and that would be to the registered keeper.
There has been some discussion about whether the registered keeper is the person who ought to be responsible for this. Under the amendment of the noble Lord, the registered keeper would have to be asked who was in the car—very similar to a charge within a court of an offence asking for a statutory declaration. If we can move it into the civil area, I think that would be a worthwhile approach. The Bill will also enable local boroughs to issue civil penalties. We hope that is going to receive Royal Assent later this year. We want to see whether that can be a good route out.
In the mean time, I am going to use those terrible words about getting people to understand what they are doing. The Government are already supporting Keep Britain Tidy in developing the Love Where You Live campaign—that is nearly as good as the tosser. We are also supporting other campaigns in order to make people realise what they are doing. I do not underestimate in any way the problem of litter. I appreciate that it is an absolute eyesore. I think fridges may be outside the scope of litter, but I appreciate that is also part of a wider problem.
I cannot accept the amendment. I know the noble Lord will be upset with me about that, but there are still too many problems associated with it to make it one that we can put into legislation at this stage. I hope the noble Lord will feel able to withdraw it after my explanation.
Lord Marlesford
My Lords, I am most grateful to my noble friend for her comments. I am most grateful for the support that I got from all sides of the House. I would like to answer the noble Lord, Lord Berkeley, straight away. First, I am not creating a new offence as such. All I am trying to do is to make the 1990 Act, which has failed for the reasons we have discussed, work better. How many prosecutions there have been or how many there will be is completely unknowable. I suppose we could know how many there have been, but the point is that at the moment the thing cannot be enforced. In my book, unenforceable law is bad law. You should not have laws which put obligations and requirements which cannot be, and therefore are not, enforced. That is the way to bring the law into contempt.
Lord Berkeley
I am grateful to the noble Lord for giving way. The Act applies to more offences than throwing things out of motor cars, so have there been any convictions for other litter offences without this problem of motor cars?
Lord Marlesford
I am talking about the problem, not of motor cars but of motor vehicles—a little wider than motor cars but not as wide as the noble Lord seeks to draw me. I am not concerned with other things that the Act does. I am sure there are lots of bits of the Environmental Protection Act 1990 which work extremely well. What I cannot accept is the suggestion of my noble friend that it is not necessary. It is necessary for us to do something about litter. This is one thing we could do. It is a simple thing. It is an enabling power. It is a power which gives local authorities the opportunity, as my noble friend Lord Jenkin explained, to do what is being done in London. Therefore, it is wholly appropriate to the Bill. All too often one has found that the Government talk one thing and either do nothing or do something quite different. I would like to feel that this House will give a signal that it basically believes that something should be done and that something can be done. I beg leave to test the opinion of the House.
Lord Shutt of Greetland
Lord Shutt of Greetland
My Lords, this is a group of several amendments. They are government, minor, technical and consequential amendments to the Bill that are necessary to correct some minor errors, provide clarity of expression in places and ensure that clauses operate as intended. I beg to move.
Lord McKenzie of Luton
My Lords, I am grateful to the noble Lord for his explanation of all of these amendments. It was rather hard-going trying to work through them all, as they came through fairly late in the day. However, we are happy to accept them on the basis that, as he said, they are minor, technical and consequential, and on the basis of an assurance I hope he will give us that they do not change policy, processes or, in particular, the protections for local authorities that were achieved by the sterling work of the Front Bench opposite—particularly by the noble Earl, Lord Attlee, who has been dealing with EU fines. I would just like to ask the noble Lord where things stand on the draft policy statement. I am not clear whether that has become a finalised policy statement and what its status is. Subject to that, I am happy to support these amendments.
Lord Shutt of Greetland
My Lords, I believe that work on the policy statement is still going on, but I am happy to confirm that these amendments are exactly as I have indicated.
Lord Shutt of Greetland
“(4) Any provision of a certificate under subsection (2) which has the effect of excluding the whole or part of any periodic payment mentioned in subsection (3)(a)(iii) (including any such payment which has fallen due from the United Kingdom since the earlier certificate was given) may be varied by a further certificate under subsection (2).”
Lord Shutt of Greetland
Lord Shutt of Greetland
Lord Shutt of Greetland
“(ii) any periodic payments not included in that total amount (including both payments that have fallen due since the date specified under section 54(7)(b) and future periodic payments)”
Lord Shutt of Greetland
“(i) have caused or contributed to the infraction of EU law concerned; or(ii) have caused or contributed, or will continue to cause or contribute, to the continuation of that infraction;”
Lord Shutt of Greetland
“(4) Any provision of a certificate under subsection (1) which has the effect of excluding the whole or part of any periodic payment mentioned in subsection (3)(a)(iii) (including any such payment which has fallen due from the United Kingdom since the earlier certificate was given) may be varied by a further certificate under subsection (2).”
Lord Shutt of Greetland
Lord Shutt of Greetland
Lord Shutt of Greetland
“(ii) any periodic payments not included in that total amount (including both payments that have fallen due since the date specified under section 64(7)(b) and future periodic payments)”
Lord Shutt of Greetland
“(i) have caused or contributed to the infraction of EU law concerned; or(ii) have caused or contributed, or will continue to cause or contribute, to the continuation of that infraction;”
Lord Shutt of Greetland
“(8) Sub-paragraph (6) of paragraph 4 of Schedule 8 to the Local Government Finance Act 1988 (contributions regulations for a financial year to be in force by preceding 1 January) does not apply to regulations under that paragraph in their application to the financial year beginning in 2012 so far as they make provision related to the operation of section 47 of that Act as amended by this Act.”
Lord Greaves
“Sustainable development: duty to publish guidance
(1) The Secretary of State must—
(a) publish guidance on the meaning and application of “sustainable development”, and(b) take such steps as he considers necessary to bring such guidance to the attention of relevant bodies.(2) For the purposes of this section “relevant body” shall in particular include—
(a) a local planning authority,(b) a county council in England that is not a local planning authority,(c) the Secretary of State when carrying out functions relating to applications for development consent,(d) a qualifying body as defined in section 61E(6) of the Town and Country Planning Act 1990, and(e) a body or other person that is prescribed or of a prescribed description.”
Lord Greaves
My Lords, we move back fairly quickly to discuss Part 5 of the Bill on planning. My amendment is grouped with a Labour amendment, Amendment 51. This is my fourth attempt to put a reference to a definition of sustainable development in the Bill. We have the end of this Bill in sight in your Lordships’ House, and I should like to take this opportunity, specifically in relation to sustainable development and the other planning provisions in the Bill, to thank the Ministers in this House; Greg Clark, the Minister in the Commons in charge of the Bill; and the team of civil servants responsible for the Bill for what seems to have been an enormous number of discussions and careful consideration that they have given to the points I and my colleagues have raised in relation to planning.
As for this issue, I believe that there was a willingness to consider it seriously. However, it has again fallen prey to the legal advice that Ministers have received—like their predecessors in the previous Government—that the Bill is not the place to provide for sustainable development. I regret this but, nevertheless, we are where we are.
The amendment sets out what we understand—from discussions with the Government and from government statements in all our debates on sustainable development and the national planning policy framework in recent weeks—the Government are going to do. We believe and sincerely hope that they are going to set out a better and fuller definition of sustainable development within the NPPF. It is worth going back to what the draft NPPF says. Paragraph 9, headed, “Delivering sustainable development”, states:
“The purpose of the planning system is to contribute to the achievement of sustainable development. Sustainable development means development that meets the needs of the present without compromising the ability of future generations to meet their own needs”—
the 1987 basic Brundtland definition. The draft NPPF continues:
“It is central to the economic, environmental and social success of the country and is the core principle underpinning planning. Simply stated, the principle recognises the importance of ensuring that all people should be able to satisfy their basic needs and enjoy a better quality of life, both now and in the future”.
That, as we have all recognised, is okay so far as it goes, but it does not go far enough.
In particular, it does not recognise that the definition and strategy for sustainable development moved on significantly in the 2005 sustainable development strategy, Securing the Future, which the present Government have assured us on a number of occasions is still valid, that they are not in any way revoking it, and that they still stand by the strategy. The 2005 strategy contains a number of basic definitions of sustainable development and the Labour amendment in this group sets them out. While I should not, technically, speak to that amendment until it has been spoken to by the Labour Party, I feel some proprietorial right to do so, given that it is, as far as I can see, word for word, identical to the amendment that I moved on Report. I am flattered by the fact that the Labour Party has tabled that amendment again, and I regard it as being a compliment on my parliamentary drafting. Perhaps I should make it clear that I regard that as requiring an ironic comment. Never mind— perhaps it requires what I might call a “Sewel smiley”. If we can have Sewel Motions, perhaps we can have Sewel smileys. However, it is interesting that, yet again, the Labour Party seems to be one step behind what we are doing on this Bill.
My amendment on Report was to an extent probing, but its essence, and the essence of what has been put forward across the House—both in the debates on the Bill and on the national planning policy framework—is the three pillars of economic, social and environmental considerations; the need for balance between them; and the importance within the planning system of achieving that balance.
I was interested to read and watch on the television what Greg Clark said when the House of Commons debated the NPPF on 20 October. He stated:
“There has been some suggestion that the proposals represent a fundamental change in what the system is about, but they do not. They will, quite rightly, balance the environmental, the social and the economic, and there is no change in that regard”.—[Official Report, Commons, 20/10/11; col. 1082.]
At col. 1084 he said:
“It was necessary to update the 1999 strategy in 2005. Six years on,”—
that is, in 2011—
“there are some respects in which thinking on sustainability has progressed. For example, there is the idea that the separate pillars of the economy, the environment and the social aspects of sustainability can be traded off, one against the other. Some people argue—and I think there is some merit in doing so—that that is a rather defensive position and that one should be looking for positive improvements to the environment, not simply to trade-off. That is very much the thinking in the Government’s natural environment White Paper, which talked of a net gain for nature”.—[Official Report, Commons, 20/10/11; cols. 1084-85.]
I regard that as extremely helpful and encouraging. I know that the Minister will have some difficulty in saying too much, or indeed anything at all, about what the Government may be intending or wishing to put in the NPPF at some point in the future after they have considered the consultation on it. The consultation has closed. There have been 14,000 responses, which are more than a few, and I understand that for the best possible reasons the Minister cannot pre-empt the government response.
Lord McKenzie of Luton
My Lords, as the noble Lord, Lord Greaves, has spotted, we have an amendment in this group which may be familiar to him. Frankly, particularly following the debate last week, we were concerned that something was not going to get on to the agenda for tonight, so we reached for a handy amendment and this one came within our view. We tabled it to make sure that we had a last opportunity to address issues concerning sustainable development.
I am comforted by what the noble Lord, Lord Greaves, has just said if it is his understanding that the Government’s intent is consistent with the contents of his amendment. We accept that definitions are not going to be included in the Bill but I hope that at least we shall be able to get very strong assurances that there will be full definitions in the NPPF. However, again I accept that the state of the consultation and what now has to happen will mean that the noble Baroness cannot be as fulsome as she would perhaps wish to be.
Notwithstanding that, I should like to hear from the Government more precisely where they stand on sustainable development. We have had assertions in the past that Brundtland and the 2005 strategy still hold sway, yet some of the wording in the draft NPPF document seems to countermand and undermine that. Therefore, when the noble Baroness responds, can she tell us whether it was the Government’s intent to change the balance of that 2005 Brundtland sustainable development approach or whether it was just due to inconsistencies and lack of clarity in the wording? If the consultation took the Government in a direction of supporting more growth at the expense of other pillars of the approach, is that something that they would resist? Where is their core on this? Is it Brundtland in 2005 and is the issue making sure that that is comprehensively dealt with in a consistent and coherent manner in the NPPF, or is it open for change? If it is open for change, what is the Government’s view on what the direction of that change should be? It will be interesting to hear what the Minister can say on that.
Lord Best
My Lords, perhaps it would be valuable to noble Lords to hear the views of the Local Government Association. I declare my interest as its president. The LGA believes that sustainable development can only be defined locally. Indeed, sustainable development makes sense only at a local level, as set out in the definition of sustainable development at the beginning of the national planning policy framework. There must be a balance between economic, environmental and social issues and locally elected councillors must have the flexibility to make the necessary trade-offs locally. In relation to guidance from central Government, the LGA maintains that the NPPF should make clear that it will be for the local plan to set out what sustainable development means for the local area and for the development that it will require.
Lord Howarth of Newport
My Lords, the noble Lord, Lord Best, and the LGA are surely right that sustainable development must be interpreted locally and in the end you can only determine what it means in relation to local circumstances. However, I agree with both noble Lords who have spoken in the debate that it is important that the Government should fill out their definition, or at least their understanding of what is intended by sustainable development. The Brundtland definition is so high level that it leaves too much scope for varying interpretation. In the absence of specificity and rather fuller detail in the way in which the Government have set forth this policy, there is space for all sorts of anxieties to grow. Those anxieties have been intensified by what the Chancellor of the Exchequer said in his Budget speech when he referred to the planning system as being a “chronic obstacle to growth”. That is a profoundly misplaced analysis. Whether or not the planning system has played some part in obstructing growth over the years, what matters now is that a lot of people in this country are anxious about the Government’s intention. While they may possibly acquit CLG of desiring to concrete over the countryside and so forth, they have anxieties about the Treasury’s reading of the situation and intentions. I think that they feel the Treasury would be too ready to see the protections that the planning system has historically given to our countryside to prevent inappropriate development being swept aside. The more desperate we become to achieve economic growth the more reckless they fear the Government may be over those protections.
The Government would do themselves a good turn and would allay a great deal of anxiety that I am sure in reality is needless if they would undertake to clarify and amplify their intentions in committing themselves to promoting sustainable development. Like other noble Lords I do not think that it is appropriate to attempt a full definition on the face of primary legislation because, as we have noted, the understanding of sustainable development has itself developed over the years and will surely continue to do so. It seems that the right place for that is guidance, whether in an expanded section of the NPPF or perhaps in greater detail in fuller supplementary guidance that I continue to hope the Government will issue to support the NPPF because, admirable as I believe most of its tendencies to be, it is too high level and leaves too much scope for ambiguity and doubt.
There is not only anxiety but the danger of legal conflict and uncertainty among all concerned. I think that it would be very helpful if the noble Baroness were able to say that the Government have made up their mind firmly that they will provide a fuller explanation and definition of what they intend by sustainable development.
Baroness Hanham
My Lords, in the previous debate I promised to go away and think about what should be done and whether sustainable development should find itself in legislation or in the national planning policy framework. It has been clear throughout the passage of the Bill that this matter has demanded careful consideration. It has been raised over and over again. We discussed this very thoroughly on Report, and I think we established that there was a good degree of agreement between us about the outcome that we are trying to achieve. I said then that there should be no doubt about the Government’s commitment to securing sustainable development through planning and to meeting environmental, social and economic needs in a balanced way. Those are the three legs of the stool that reference the planning side. It has been apparent from the debates we have had on the Bill and in the House that we need to be clear and to go further in setting out how our commitment can be achieved.
Having agreed to go away and come back with our view on whether the Bill could be amended to effect this aim or whether it could be part of the consultation on the draft national planning policy framework, it is appropriate to say more on that. I appreciate that the amendment put forward by the noble Lord, Lord Greaves, and his colleagues is designed helpfully to probe our intentions on this, and I accept that the noble Lord, Lord McKenzie, was trying to do the same thing. I hope I can provide reassurance.
We now have the benefit of the consultation responses and the draft NPPF. As noble Lords have said, there are 14,000 replies, and many of them are going to address this specific issue. We also have the evidence given to the environmental audit committee, so there is quite a lot of external thought coming on this. Of the responses that we have been able to look at so far, many have made a cogent case for defining sustainable development in more detail in the NPPF. Noble Lords have also voiced strong views about what should be included. Clearly, we need to tailor our definition in the light of all the views we have received. This is something that we intend to do as we revise the document. The explanation will not be a legal requirement in the Bill but will address the policy issues in the policy framework.
We cannot finalise our policy on the NPPF until we have considered all 14,000-plus responses, so I am not going to try to pre-empt that, but important themes are emerging that we want to take into account as we refine our approach. In particular, we know that we need to address the way in which the definition works alongside the presumption in favour of sustainable development, so it is clear that what we want to see through the presumption is that development is sustainable. The planning system should help to secure net benefits for present and future generations, including promoting strong, vibrant and healthy communities together with protecting and enhancing our natural, built and historic environment—we have always had a commitment to that, but I think some of it got skewed during the early part of the consultation process, almost before it had started—in situations in which there could be limits to the environment’s ability to accept further development without irreversible damage. We will carefully consider what noble Lords and noble friends have said about building on and explicitly referencing the principles that underpinned the 2005 UK sustainable development strategy, which is the relevant strategy. We are crystal clear—as the noble Lord, Lord Greaves, pointed out, my honourable friend Greg Clark, who has been managing this Bill, is clear—that sustainable development has the three legs that we have spoken about: environmental, economic and social dimensions. The purpose of the planning system as a whole is to achieve a balanced outcome—I hope that this to some extent addresses the question asked by the noble Lord, Lord Howarth—that actually reflects all three of these points.
Lord McKenzie of Luton
When the draft NPPF was issued for consultation, did the Government seek to change what had hitherto been the balance between the various components of sustainable development at that stage? Was it the Government’s intent to place greater emphasis on economic growth at the expense of the others? I do not assert that that is where the Government may end up, but obviously there was great concern from the wording of the document that that was the intention at that stage. Can the noble Baroness dispel that concern, or is it a real issue?
Baroness Hanham
My Lords, the initial expectation in the NPPF was that there would be a balanced approach to this. There are the three legs that are really relevant to planning: economic, social and environmental. Brundtland, of course, includes science, and we have been given lots of other ideas of what it might include. If I can just leave it at that, we expect this to be a balanced approach to sustainable development and we recognise that there are elements that are more reflective of the planning system. Then we will have to wait and see what comes out of the discussions.
Lord Greaves
My Lords, I am extremely grateful for that reply from my noble friend the Minister, who I think went as far as she could—in fact, I think she pushed the limits a little further than some of her more cautious advisers might have liked. I hope that what she said turns out to be satisfactory in the long run.
I just want to say another couple of quick things about sustainable development. Going back to what Greg Clark said in the House of Commons debate on the NPPF, which I think is extremely important, this is not just about balance. Balance is very important indeed, but really good planning can enhance all the three legs, or pillars, or whatever they may be called, of sustainable development. That is possible with good planning. Clearly individual decisions may be balanced one way or another, but overall there has to be balance and enhancement, particularly of the environment. Again, I hope that the issue of environmental limits that you cannot go beyond will be addressed in the NPPF.
Listening to this debate, I was musing that we have not only had the four debates on sustainable development in this Bill and the two NPPF debates; the debate seems to have gone on over the years. I was thinking back to the Planning and Compulsory Purchase Act 2004, the Planning Act 2008, the Marine and Coastal Access Act 2009 and the Flood and Water Management Act 2010, when there was a willingness of the then Labour Ministers to think about what they could do about putting this into the Bill. In the end, however, they said, “No, it cannot be done, for all the reasons that have been put forward”, and all the legal reasons put forward by their advisers. Having struggled against a Labour Government on four of these Bills and trying to find our way through this one under the coalition Government, we are where we are.
Will the outcomes be satisfactory? Will we look back on these debates and say, “Yes, the NPPF is okay, despite the inauspicious way in which it was launched upon the world and despite a lot of the unfortunate wording within it”? Will that all be sorted? Will we get a document that will work? All I can say is that I hope we will. We have a lot of good intentions from the Government and from Ministers, not least my noble friend the Minister here. We on the Liberal Democrat Benches will certainly be keeping up the pressure, and we simply ask them not to let us down. On that basis, I withdraw the amendment.
Lord McKenzie of Luton
“Local development plans: transitional arrangements
(1) 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.
(2) Subsection (1) applies—
(a) where changes are required by any enactment, and(b) where changes are required following the issue of new or revised guidance by the Secretary of State.”
Lord McKenzie of Luton
My Lords, before the noble Lord, Lord Greaves, becomes flattered again, I should say that this was another handy vehicle to make sure that we got this on the agenda.
Lord Greaves
My Lords, if the Labour Party really needs a new parliamentary draftsman to write its amendments, I might be prepared to offer my services.
Lord McKenzie of Luton
They would be very welcome.
The Bill is about to leave the House when we have no certainty that there will be any transitional provisions, let alone what those provisions might look like. The changes to our planning system, the demise of regional spatial strategies, the introduction of the duty to co-operate, the introduction of neighbourhood planning, together with the NPPF and the proposed presumption in favour of sustainable development, represent a major upheaval to the planning system. The key continuing feature—we support this—is the significance of the local development plan, which, subject to material considerations, should continue to determine which planning applications would be approved. However, we know that many local development plans are not up to date. Even if they were, there seems to be uncertainty as to whether the NPPF in its current form would itself cause all of them to be out of date.
The Minister, in our debate last week, contended not. I am bound to say that I believe that this is not a universal view. Is it accepted that the NPPF will introduce new policy which must be complied with? It is of deep concern that the noble Baroness gave the Government’s position in our debate in the following terms:
“We have not decided yet what, if any, transitional arrangements there should be”—
although the Minister then added—
“but we see that you cannot get rid of the regional spatial strategies and not have something else”.—[Official Report, 27/10/11; col. GC 384.]
Perhaps the noble Baroness can expand on the latter phrase to see whether we can derive any comfort.
As we made clear in last week’s debate, we do not support or encourage local planning authorities to hold back on updating their local plans, but is it not the case that they are dealing with a moving target? There has been a very considerable response to the NPPF consultations, to which the Government have to give due consideration. It may not be until next April when we see the final version of the framework, with the prospect of no further consultation thereon, and probably no parliamentary process. It is acknowledged that the Government would be looking to fast-track a process for updating local plans, and for obtaining certificates of conformity, but this is not, surely, a total solution. Local planning authorities will not know what they have to conform with until they see the final version of the NPPF sometime next year. What assessment have the Government made of the planning inspectorate’s capacity to cope with all of this? Indeed, what assessment have they made of local planning authorities’ capacity to cope with this?
Is it not the case that the presumption in favour of sustainable development is supposed to be the stick that encourages local planning authorities to get local plans up to date, because if they do not, the national policy will be the framework for planning decisions. This carries the implication that if the stick is effective, local authorities will want to avoid the NPPF on its own providing the framework without the local plan—that is, development which an up-to-date local plan would not support could gain approval unless the adverse impacts of development would significantly and demonstrably outweigh the benefits. Does the Minister accept that this could be the consequence of not having local plans up to date?
The Government are asking local planning authorities to ensure that their local plans are up to date when the NPPF, as drafted, includes new policy and the final form is unknown. Will an up-to-date plan not have to reflect the duty to co-operate? The draft NPPF is clear that local planning authorities will be expected to co-operate and to plan for issues with cross-boundary impacts. A demonstration of this will be required when local plans are submitted for examination. Will it be the case, therefore, that any plan which does not involve the duty to co-operate could be challenged as being not up to date?
Lord Best
My Lords, in Committee and on Report, I tabled amendments on transitional arrangements. I agree that it is imperative that local plans are in place as soon as possible but councils must have adequate time and resources to put in place sensible plans that conform to the new NPPF and ensure that local needs are met and local people have a say in the development that affects them. This will require clear transitional arrangements so that citizens, councils and developers have certainty about when and how the presumption of sustainable development will apply. Those areas that have invested a significant amount of time and resources in getting an up-to-date local plan in place prior to the changes should not be required to go through the process again or to face further delays. It is important that any process for registering conformity is light touch and swift.
I have been pleased to hear from the Royal Town Planning Institute that progress is being made in making transitional arrangements. I know that the Local Government Association is also part of the process of working with the Government on this. I feel sure that the Minister will be able to confirm that appropriate arrangements will be put in place quickly and I look forward to hearing her response to the sensible points raised by the noble Lord, Lord McKenzie.
Lord Greaves
My Lords, I congratulate the Labour Party on writing such a brilliant amendment. The interesting thing about transitional arrangements is that when the Bill came to your Lordships’ House, they were not being talked about at all. The view was that in six months it could all be sorted out. The more it has been discussed in this House and with Ministers, the more it has become clear to everyone, including those of us who raised it tentatively at first, that it is an extremely important issue. Getting it right is crucial to the transition from the present system to the new system. The good news is that I believe that the Government, particularly the planning Ministers, now understand that. The bad news is that they have not yet produced a clear plan for that transition and how it will work. I believe that it is being thought about seriously across government.
Whether or not it should be in the NPPF is an interesting question. Originally, we were told that it did not need to be in the Bill because it could be in the policy framework. The more some of us think about it, the more complex it is and the policy framework may not be the best place for it—certainly not for most of it. It is so complex and requires so much detailed and substantive guidance to planning authorities on how to cope with the transition that it probably will need separate guidance. I do not think that this would in any way undermine the Government’s wish to bring the total of planning policy guidance down to around 50 pages, although I think that it will be a bit more than that when it comes out. The point is that, by its very nature, guidance on the transitional process will be temporary; it will come and then it will go. That is another reason why perhaps it should not be in the NPPF but should be separate guidance to local planning authorities in some detail as to how to cope.
Going back to another anecdote, I am reminded of the following phrase, which I learnt from Professor Danny Dorling:
“Anecdote is the singular of data”.
In this case I think it genuinely is.
I am about to read from a Pendle Council press release, not for special pleading but because I believe it is typical of the position that very many local planning authorities are in at the moment. I received the press release on Tuesday, headed “Six week consultation on Pendle’s most important planning document”. It says:
“It’s the final chance for Pendle residents to comment on a document that will influence how Pendle changes in the years to come. A six-week consultation starts on Friday 28th October on the Core Strategy”.
Then it explains what is in the document and what its purpose is. It continues:
“Between now and Monday 12th December you can view a draft version of the Core Strategy”,
at various council outlets and libraries throughout Pendle or, alternatively, on the website. It goes on to say:
“During the six-week consultation, planning officers will be attending a series of drop-in sessions in different parts of Pendle”.
That is what that glossy leaflet was all about. I think there are 10 or 12 of those taking place. It is a big consultation operation and exercise. It then says:
“A display will also be available to view at Nelson's Number One Market Street”—
which is the council’s call-in centre—
“for the full six weeks”.
The councillor who looks after planning issues in Pendle says:
“‘The Core Strategy will set out the overall approach for planning and development in Pendle for the next 15 years, so it's essential that residents make their views known before it's finalised … This is your final chance to help shape the future of Pendle’”.
Then I thought: this is all going ahead. The council quite rightly, I think, decided to continue going ahead with the production of its local plan as quickly as possible despite the presence of the Localism Bill casting a shadow over all these operations. This is really localising and turning into an anecdote some of the broad questions that the noble Lord, Lord McKenzie, asked. Will Pendle Council and lots of other councils around the country have to start again when this Bill comes into effect? To what extent will they have to go back and revisit their evidence base for their local plan? To what extent will they have to go back to the core strategy—which is 200 to 250 pages thick, I would guess—and rewrite it? To what extent will the whole process now be put back by six or 12 months? Will this quite intensive consultation process all have to be done again at this time next year perhaps? Those are the kinds of practical questions that councils all over the country are facing. They need very clear guidance on the transitional period from the Government as quickly as possible.
I think that this is my last speech on this Bill. There may be sighs of relief around the House. I have already thanked the Minister, her colleagues and the civil servants on the Bill team for their great kindness and for the assistance that I and my colleagues have had. I also want to thank people around the House. I thank the noble Lords, Lord McKenzie and Lord Beecham, on the Labour Front Bench for their very sensible and constructive approach to the Bill. I may be doing severe damage to their career prospects within the Labour Party by saying that, but I think it needs to be said. We have worked with them and discussed things with them. We have not always agreed, but the amount of co-operation that there has been around the House on the Bill has been to the advantage of the House and to the advantage of the Government in that when the Bill leaves very shortly now, it will be a very much better Bill than when it came.
Lord Howarth of Newport
My Lords, it is a great strength of the Government’s policy that it commits us to plan-led and sustainable development. It follows from that that it would be extremely unfortunate if there were to be possibly a long interval—a black hole—in which possibly half of planning authorities, maybe even all, did not have a valid plan. During that period there would be real danger of abuse and bad, inappropriate development gaining permission, and perhaps even being built, which would contradict the Government’s proper objectives. Unless the Minister is able this evening to give clear-cut reassurance that there will be firm and legally binding transitional arrangements, I fear there could be consequences that the Government do not want. I also fear that there will be needless public anxiety—or, possibly, even justified public anxiety—and it would be sensible and helpful if the Minister could finally allay our anxieties on this point.
Baroness Hanham
My Lords, I am not going to be able to reassure everyone on everything. When we discussed this in the past, I pointed out the Government’s concern that there had been transitional arrangements on previous occasions which had resulted in only 40 councils having local plans, with some of the remainder being on tap and others having some being prepared. Transitional arrangements are a bit of a worry. In response to a question today, I said to the noble Lord, Lord McKenzie, that this is very much in our minds and I can confirm that that is the situation. We are looking very carefully at transitional arrangements, particularly in respect of the analysis of the NPPF and what that will throw up. We have listened also to the views of the Local Government Association and others and will be taking them into account.
We place an enormous amount of importance on up-to-date local plans and 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 decisions through their local plan. As I have said previously, the framework is policy not legislation and legislative measures are unnecessary as the Secretary of State can deliver transitional arrangements more appropriately through policy or guidance. That clearly will be part of the discussions and talks we are having about how much of that is required.
It would also be helpful if I made it absolutely clear that the status of local plans will not change when the Bill is enacted and the final national planning policy framework comes into force. Local plans will continue to be part of the development plan and the plan will remain the first point of reference for decisions on planning applications and appeals. It is, of course, for local councils to decide when they should update their local plans—it is entirely a matter for them and their communities—but it is important that we help them through the process. We are supporting councils by simplifying the process of preparing plans. This will help provide flexibility so that councils can concentrate on issues that matter to them and their communities.
On the question about the Planning Inspectorate, we are working closely with it to make sure that the examination process can be quicker and that, if necessary, only parts of a local plan need to be reconsidered. It is a flexible arrangement and we are sure that the Planning Inspectorate will be able to help with that appropriately.
As we have discussed before, if there are policies and regional strategies that councils wish to incorporate in local plans they can do so by undertaking a review focusing on those policies. Councils can also continue to draw on evidence that informed the preparation of regional strategies to support local plan policies, supplemented, as needed, by up-to-date local evidence. The availability of an existing body of evidence will also help councils through the local plan review process and, consequently, transition.
The NPPF 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 framework. We expect that many elements of local plans will conform with the direction of national policy. Where issues are indentified, councils should attempt to address these through reviews undertaken as quickly as possible. We will, of course, be considering any representations made on this point in the current consultation.
Lord Greaves
My Lords, I think there is an important point here. Will the certificate of conformity be available to planning authorities that have an approved local plan that is waiting for inspection before it is inspected, or will it be only for local plans that have already been adopted?
Baroness Hanham
My Lords, I thought the noble Lord had had his last word on this Bill, so I am a little bit taken aback. I will get an answer to that question as we go along. The answer is no—only adopted plans will have the certificate of conformity.
I hope that I have made it clear that the transitional arrangements are still under consideration but that there will be transitional arrangements. I have been asked whether there will be guidance from the Secretary of State. It will set out as clearly as possible what the transitional arrangements are and any other procedural issues.
Let me conclude by reiterating—this is not my last word, unfortunately—the importance that this Government place on local plans and the need for effective arrangements, delivered through policy or guidance, to manage transition. I want to offer a firm reassurance that the Government recognise the importance of this, as I said earlier today, and will ensure that this is addressed alongside the revisions that are made to the NPPF itself. We are of course looking very closely at all the suggestions that have been made about transition during the consultation process.
We recognise there are genuine issues to be addressed about the status of local plans during the transitional period. I hope that I have addressed some of these tonight, but we will also be considering them further. With these reassurances I hope that the noble Lord will withdraw the amendment.
Lord McKenzie of Luton
My Lords, I thank the Minister for as clear an indication as she is able to give about transition. I take some comfort from that. Whether it ends up in the NPPF or in guidance is not the most important issue as long as it is there and it is effective.
I thank other noble Lords who have supported and argued in favour of transition, including my noble friend Lord Howarth and the noble Lords, Lord Best and Lord Greaves. I thank the noble Lord, Lord Greaves, for his kind words—this must not get too much like a love-in—which we ought to reciprocate. This has been an interesting experience for those of us who are new to planning legislation. It has been an intriguing position. I used to think that Luton was the centre of the universe, but I understand Pendle now may begin to be a bit of a rival—perhaps we will pay a visit one day to see.
I am happy to withdraw the amendment because I believe the noble Baroness has given us the strongest degree of reassurance I have heard to date on this issue.
Earl Attlee
“Local authority, statutory undertakers’ and National Trust land
(1) The Planning Act 2008 is amended as follows.
(2) In section 128(3) (order authorising compulsory acquisition of local authority or statutory undertakers’ land subject to special parliamentary procedure if representation made by the authority or statutory undertakers and not withdrawn)—
(a) after paragraph (a) (but before the “and” at the end of that paragraph) insert—“(aa) the representation contains an objection to the compulsory acquisition of the land,”, and(b) in paragraph (b) (condition that representation has not been withdrawn) for “representation” substitute “objection”.(3) In section 130(3) (order authorising compulsory acquisition of certain National Trust land subject to special parliamentary procedure if representation made by National Trust and not withdrawn)—
(a) after paragraph (a) (but before the “and” at the end of that paragraph) insert—“(aa) the representation contains an objection to the compulsory acquisition of the land,”, and(b) in paragraph (b) (condition that representation has not been withdrawn) for “representation” substitute “objection”.”
Earl Attlee
My Lords, the need for this amendment emerged following the first decision under the regime a little over a week ago when it became clear that the Planning Act 2008 contains a drafting flaw that could have serious consequences for the regime if not corrected. Under compulsory purchase law, local authorities, statutory undertakers and the National Trust have special protection from proposals to compulsorily acquire their land. Where they object to a compulsory purchase order, and do not withdraw that objection, the order is subject to special parliamentary procedure—an involved, complex and often lengthy process which can add six to nine months to the timetable.
The first decision under the regime has demonstrated that the Planning Act 2008 has inadvertently widened the grounds on which special parliamentary procedure is engaged. Any representation by a relevant body on any aspect of the development consent order not limited to compulsory acquisition can trigger SPP. This means that many more projects will need to go through the SPP than do at present, with implications for growth and jobs. Government Amendment 53, therefore, seeks to correct the drafting of the Planning Act to bring it into line with compulsory purchase law as it operates under the town and country planning system.
Let me be absolutely clear on this for the benefit of the House. We are absolutely not seeking to lessen the important protections for land belonging to those bodies, and indeed this amendment would not prevent the National Trust, for example, from invoking SPP where a development consent order would grant consent for its land to be compulsorily acquired. The amendment seeks only to correct an error in the 2008 Act, thereby ensuring that the compulsory purchase regime is consistent across both the 2008 Act and the major infrastructure planning regimes. I beg to move.
Lord Berkeley
My Lords, I am grateful to the Minister for introducing his amendment and allowing me to speak to my three amendments in this grouping. He has agreed to respond after this, and it is very welcome that we can do it in this way.
I shall just make a very small comment on government Amendment 53. While I welcome the amendment—it is good to see that the Government recognise that some changes have to be made to the Planning Act in this regard—it does nothing for the point that I shall come on to shortly. In a wider sense, the special parliamentary procedure seems to be an additional safeguard in the 21st century, with a rather heavier touch, as I shall come back to several times, than the approach taken in the Harbours Act or the Transport and Works Act orders, which are two of the principal order-making regimes that the Planning Act draws on and replaces.
I turn to the amendments in my name. The House will recall that, both in Committee and on Report, the noble Lord, Lord Jenkin, my noble and learned friend Lord Boyd and I moved, and spoke in support of, a number of quite technical arguments, which we thought were pretty important to the Bill, designed to make a number of changes to the provisions of the Planning Act 2008 dealing with the new regime for considering national infrastructure projects, which are currently operated by the Infrastructure Planning Commission. The Planning Act is a distinct improvement on the many regimes that we had before for the types of infrastructure that it replaces, and I think that it is settling down.
My concern, which I expressed previously and will have to return to shortly tonight, is that this Bill should have gone further and made more changes to the 2008 Act that are either a necessary or logical consequence of the IPC's abolition and the return of decisions to Ministers or are simply required to make the 2008 Act work better. I have been briefed in particular by the National Infrastructure Planning Association, which has people with great experience in this field. I welcome the Government's intention to keep the new regime under review, but it would be helpful to hear from the Minister tonight a little more as to quite what they are going to review and when.
The House will recall that the Minister, Greg Clark MP, said in a Written Ministerial Statement that the Government are,
“listening to industry, representative groups and others using the system … and will be exploring opportunities for improvement to ensure the system has the right mix of certainty, flexibility and efficiency”.—[Official Report, Commons, 10/3/11; col. 73WS.]
That is good. In the impact assessment for the Bill’s provisions on major infrastructure projects, published in January this year, we are told that, in relation to the policy behind the preferred options, which is now reflected in the Bill,
“It will be reviewed 04/2014”.
I would like to hear from the Minister how this review will take place.
Before discussing in more detail the issues focused in these amendments, I want to mention a very recent development that appears to be highly relevant. Apparently,
“The European Union is concerned that the single market is not operating effectively because of a lack of integrated energy, transport and digital infrastructure”—
I certainly support that view—
“and is also not moving to a secure, low-carbon energy future quickly enough”.
On 19 October, only a couple of weeks ago, the European Commission launched two new proposed regulations to address this: the “Connecting Europe Facility”, which is about to spend €50 billion on all three sectors of infrastructure, which is a great deal of money; and a focus on energy infrastructure, for which the Commission will require new authorisation regimes because such projects will have to be subject to a special “permit granting process”. It is a bit complicated, but €9 billion has been earmarked for energy projects.
The Government will have to change regulations or legislation to allow these internationally significant infrastructure projects—which are apparently called ISIPs, as opposed to NSIPs or something—that will sit above, or instead of, the Planning Act regime for nationally significant projects. There are various processes and timetables set out for this and the pre-application consultation requirements are quite prescriptive. I understand that all these are required to be in place by 1 September 2013, which is only nine months after the regulation is due to come into force. It would be interesting to hear from the Minister how the Government intend to do this and make sure that the money being offered from the EU is available.
I am grateful to the Minister for arranging a meeting between his officials and myself and the noble Lord, Lord Jenkin, between Report and now. We had a very useful meeting and I take the opportunity to thank Ministers and officials for the very helpful discussions. We should have had the meeting some time ago, but we did not—as was said at Report. However, I hope that, even so, we can make progress.
Turning to the amendments themselves, I should say that Amendment 87 relates to the Minister’s amendment about development consent orders and the need to have special parliamentary procedures where there are objections. As the Minister said, it could take about nine months extra if one had to go through these procedures. I still wonder why we have to go through these procedures when there should be a single consents regime with a harmonised set of requirements and procedures, which I call a one-stop shop. I compare the complexity and difficulty of this with the transport and works orders and the harbours orders.
On Report, the Minister referred to the Planning Act drawing on long-standing and well-established protections from compulsory purchase orders for certain types of land. He thought that our proposals then would significantly weaken them, but I do not accept his reference to a two-tier system—why it should go further than happens with the TWA and the harbours order. The House will recall that the only project so far to be approved by the IPC, which is Covanta's proposed incinerator in Bedfordshire, will now have to be approved by this House and the other House under SPP. A lot of people may not like these incinerators but that has gone through a process and, again, will be subject to six to nine months’ extra delay. I hope that the Minister can indicate that these issues will be reviewed in the light of experience.
The next amendment in the group, Amendment 88, refers to the regulations made under Section 150, which deal with construction-related consents in England. Again, we discussed this quite thoroughly on Report—so much for having a one-stop shop, as there are still up to 42 other consents required from regulators in England and a further 36 in Wales. I still have not discovered why there are so many extra ones in Wales but it may be that the noble Earl will take the view that it does not matter very much. Again, the point is that it would be very good for those developing new projects to be able to reduce the number of these other consents which they have to get. I wonder whether the Minister would be prepared to give some kind of timetable and a commitment to reviewing this number, and even to produce a report to Parliament every year for the next few years. That could challenge his colleagues in other departments on whether they really can be brought underneath this umbrella of the one-stop shop.
Finally, on Amendment 89, again, we have discussed the creation of criminal offences in some detail but it is still a worry that the types of offences which can be introduced through this process are not sufficient for the types of projects and offences which might be required. Again, that provides a much greater limit than the Transport and Works Act orders do, which is why I wanted to see whether we could include railways and construction in tidal waters. One example which springs to mind is the question of trespass during construction, which could well occur on the high-speed line—assuming that it gets built—or on some of the offshore wind farms, if people can get around there. Trespass is a very difficult thing to stop if you do not have the right regulations, and it would be good to see whether the Minister would be able to extend the existing criminal offences to the two issues in this amendment.
To sum up, we have made progress on these issues in discussions on the Bill but we have certainly not gone as far as I would have liked to see. However, is the Minister prepared to tell us a little more about the issues that I have raised and about three things in particular? First, there is the impact assessment on how the Planning Act 2008 has worked in respect of projects through the IPC and its successor, which I believe is supposed to be there in 2014. Secondly, there is how this connecting Europe facility will work and whether the Government are keen that projects here should get the extra €9 billion that will be available for energy alone. Finally, can I press him to have an earlier review and a progress report to reduce significantly those 42 consents, plus the 36 in Wales?
Lord Jenkin of Roding
My Lords, the noble Lord, Lord Berkeley, spoke to his amendment so comprehensively that I want to add only one point. As my noble friend on the Front Bench indicated, the Government’s own amendment came to light only a week ago. I should like to say a very warm thank you to him and to the officials who recognised so swiftly that there had to be a change to the 2008 Act to prevent quite unnecessary use of the special parliamentary procedure, or SPP.
I endorse what the noble Lord, Lord Berkeley, said: there are still too many examples where such procedures will or could need to be invoked. If anybody makes an objection—for instance, where one is dealing with local authority land—and that objection is sustained, it will have to go through this special parliamentary procedure. While the decisions on major infrastructure projects were being taken by the Infrastructure Planning Commission, a quango, that may have been a necessary parliamentary protection. However, as the noble Lord, Lord Berkeley, has said, under the new procedure, perhaps from April 2012, these decisions will be taken by a Minister accountable to Parliament. This changes the nature of the necessity for these other protective procedures to be built in.
Like the noble Lord, Lord Berkeley, I would very much welcome an indication from my noble friends on the Front Bench that they will look at this again. I understand that, in the short time that we have had to deal with this—it came up only on Report in this House—it has been difficult for Ministers to go as far as we would perhaps like. However, with the review coming up, there seems to be an opportunity to have another look at this so that it gets somewhat nearer the one-stop shop that was originally offered by the Ministers in the previous Government as being the major benefit of the new Infrastructure Planning Commission. It most manifestly is not a one-stop shop at the moment. Maybe it never could be a one-stop shop but it could certainly have fewer than the 42 consents that are necessary for these major projects. I hope my noble friends will be able to give us some reassurance that they are sympathetic to this and will, in the review, look at it very carefully with a view to coming somewhat nearer the original objective that was held out to Parliament when the 2008 Act was introduced.
Lord Boyd of Duncansby
My Lords, I declare an interest as a Scottish solicitor who is registered as a foreign lawyer in England and Wales. I also have an interest in planning. I thank the noble Earl for bringing forward Amendment 53, which deals with a real anomaly. I also support my noble friend on Amendments 87 and 88. Much of what I would say has already been said, but I shall just add a couple of points.
On the special parliamentary procedure, on Report my noble friend Lord McKenzie expressed some reservations about the abolition of what was perhaps seen as a protection. However, the point that my noble friend Lord Berkeley has made is that it is a heavier regime than that which pertained under the Transport and Works Act and the Harbours Act. Therefore, it seems curious that we have made the development consent orders regime more onerous than it was under those two Acts. I do not suppose that my noble friend will press his amendment tonight. However, I hope that the Minister will confirm that the operation of the special parliamentary procedure will be part of the review. Perhaps that will give us an opportunity to look at it and reassure those who are sceptical about removing the protection, giving them some comfort that the protections will still be there in the role of the Secretary of State and his accountability to Parliament.
Amendment 88 would do away with the large number of consenting regimes that are still in place, or at least significantly reduce them. It is not the case that doing away with these consenting regimes somehow removes protections, because protective provisions will be put into the development consent order. That is the crucial thing, and there are plenty of examples, again under transport and works orders, of protective regimes being put into place. I gave an example earlier in the proceedings of this House.
We have to strive to get a one-stop shop. If there is bureaucratic inertia to addressing this issue, then it is up to Ministers to argue the case in government against those who are suggesting that we cannot do anything about that. We need to get a more streamlined process, so that development is not held up simply because we have to go through yet another procedure. I welcome the forthcoming review, and I hope that will give us an opportunity to clear up some of these anomalies that have been left over from previous systems and planning regimes.
Lord McKenzie of Luton
My Lords, I shall be brief. I congratulate my noble friend Lord Berkeley for spotting a difficulty and the Government for responding with their Amendment 53, which seeks to deal with that. My noble friend Lord Berkeley, my noble and learned friend Lord Boyd and the noble Lord, Lord Jenkin, have raised a number of profound and important issues about how the new system is working, the need for a one-stop shop, the connecting Europe facility and how we will take advantage of that, and the special parliamentary procedures, but I am not sure that we are going to solve all those issues tonight. I look forward to what the Minister has to say, but if he is able to confirm that there is a review under way, that seems to be the arena in which these very important issues can be picked up and addressed.
Earl Attlee
My Lords, I am grateful to noble Lords who have spoken to this group of amendments for their contribution to the debate on these important issues. I thought we had an excellent debate on Report, and I am grateful to the noble Lords for their time at the meeting we had a week ago to further discuss these matters. I am happy to adhere to correct procedure, and that is to allow noble Lords to move the amendments before giving a response.
The noble Lord, Lord Berkeley, referred to developments in the EU; this is developing policy and I will have to write to him on that point. Noble Lords have already explained the amendments in this group at some length, but I will briefly summarise. Amendment 87 would remove Sections 128 to 132 of the 2008 Act, which made provisions relating to the compulsory acquisition of special types of land. Amendment 88 seeks to amend Section 150 of the Act, so that it applies only in relation to land in Wales. Amendment 89 would extend the existing provisions of the Localism Bill in relation to the creation of offences in a development consent order so that offences could be created in respect of railways and off-shore development in addition to those already provided for within the Bill. The noble Lord, Lord Berkeley, gave the example of trespass during construction. I have listened carefully to what noble Lords have said and I agree that these matters need further consideration. These are complex issues and we will need to think on them carefully in the light of the new regime’s vanguard cases.
Baroness Hanham
“(1) In section 20B(2) of the Housing Act 1988 (demoted assured shorthold tenancy lasts for one year unless subsection (3) applies) after “subsection (3) applies” insert “, but see section 20BA”.
(2) ”
Baroness Hanham
My Lords, Amendments 54, 55 and 56 are technical amendments that ensure, in line with our original policy intention, that where a fixed-term assured shorthold tenancy is demoted, the tenant can be given another fixed-term tenancy upon successful completion of the demotion period.
Without these amendments, such tenants would automatically become periodic assured “lifetime” tenants on successful completion of the demotion period. That would clearly be unfair—in effect, a reward for behaving anti-socially in the past—and mean that private registered providers would in practice be unlikely to demote fixed-term tenancies, rather than simply seeking to evict for anti-social behaviour. These amendments ensure that private registered providers of social housing who demote fixed term assured tenants are in the same position as local authorities who demote flexible tenants. I beg to move.
Lord Kennedy of Southwark
My Lords, I accept that these government amendments are to correct a drafting error. I am pleased that someone spotted it before the Bill left your Lordships’ House. Well done to whoever did that. It would be regrettable if we had had to waste valuable parliamentary time correcting this error at a later stage if it had passed into law. The substantive amendment clarifies that a fixed-term tenant should get another fixed-term tenancy on successful completion of the demotion period. From these Benches we have no objection whatever to that. Time is getting on and I will leave it there.
Baroness Hanham
““20BA Assured shorthold tenancies following demoted tenancies
(1) Subsection (2) applies if—
(a) section 20B applies to an assured shorthold tenancy of a dwelling-house in England (“the demoted tenancy”),(b) the landlord is a private registered provider of social housing,(c) the demoted tenancy was created by an order under section 6A made after the coming into force of section 162(2) of the Localism Act 2011,(d) the assured tenancy that was terminated by that order was an assured shorthold tenancy that, whether or not it was a fixed term tenancy when terminated by the order, was granted for a term certain of not less than two years,(e) apart from subsection (2), the demoted tenancy would cease to be an assured shorthold tenancy by virtue of section 20B(2) or (4), and(f) the landlord has served a notice within subsection (3) on the tenant before the demoted tenancy ceases to be an assured shorthold tenancy by virtue of section 20B(2) or (4).(2) The demoted tenancy does not cease to be an assured shorthold tenancy by virtue of section 20B(2) or (4), and at the time when it would otherwise cease to be an assured shorthold tenancy by virtue of section 20B(2) to (4)—
(a) it becomes an assured shorthold tenancy which is a fixed term tenancy for a term certain, and(b) section 20B ceases to apply to it.(3) The notice must—
(a) state that, on ceasing to be a demoted assured shorthold tenancy, the tenancy will become an assured shorthold tenancy which is a fixed term tenancy for a term certain of the length specified in the notice,(b) specify a period of at least two years as the length of the term of the tenancy, and(c) set out the other express terms of the tenancy.(4) Where an assured shorthold tenancy becomes a fixed term tenancy by virtue of subsection (2)—
(a) the length of its term is that specified in the notice under subsection (3), and(b) its other express terms are those set out in the notice.”(3) Before section 21 of the Housing Act 1988 insert—”
Baroness Hanham
Baroness Hanham
My Lords, our reforms to the complaints system for social housing are designed to promote the resolution of complaints as far as possible at the most local level, and to encourage a system where ideally the ombudsman is brought in only where local resolution does not prove possible. At Report, amendments were tabled by several noble Lords that would have modified our proposals by introducing a so-called dual-track approach to the process for making complaints to the Housing Ombudsman. As I made clear to the House, the Government’s view is that this would fail to deliver a sufficiently localist approach.
The noble Lords, Lord Greaves and Lord Tope, proposed that a compromise should be considered. They recognised the value of local complaint resolution but were concerned that having gone through the local route tenants must ultimately be able to secure redress where they receive a poor service.
In the light of these most helpful observations, I agreed to take this issue away to see what more could be done to ensure that our provisions were sufficiently flexible.
With Amendment 58, the Government are now proposing a way forward that retains the localist approach but, in specified circumstances, allows the tenant direct access to the ombudsman. We hope that this gives assurance to noble Lords that we have acted upon their concerns through allowing a degree of flexibility into our proposals that will be of further benefit to the tenant.
Under these proposals, tenants will retain the option to go directly to the Housing Ombudsman if eight weeks have elapsed since the end of the landlord’s internal complaints process, or if a local representative explicitly declines to refer the complaint to the ombudsman or agrees that the tenant may approach the ombudsman directly.
The eight-week exception would assist tenants in cases where, for example, the local representative simply did not respond to their complaint. We propose that the time period for this condition would begin at the end of the landlord’s complaints procedure, not when the tenant first approached a local representative. This is so that a clear audit trail exists should the case eventually go to the ombudsman. Starting the clock at this point will make the system straightforward and minimise burdens on tenants.
The second exception is designed to address the concern that a local representative could simply prevent a tenant securing redress by refusing to refer the complaint to the ombudsman, despite the fact that the tenant had attempted to resolve the complaint locally. In most cases, we would expect a local representative to deal with the case or to refer it to the ombudsman, but we recognise that there may be occasions, such as where there is a conflict of interest, where it would be preferable for tenants to have direct access to the ombudsman. For this reason, we wish to provide that a designated person may agree that a complainant can take their complaint to the ombudsman directly.
Amendment 60 tabled by the noble Baroness, Lady Hayter, would alter the first of our proposed exceptions by providing that tenants may access the ombudsman directly after six weeks have elapsed. I shall let her speak to her amendment before responding to it. In the mean time, I beg to move Amendment 57.
Baroness Hayter of Kentish Town
My Lords, I wish to speak to Amendment 60 and, in doing so, I welcome enormously the amendments tabled by the Minister on behalf of the Government. I warmly welcome what she has put forward concerning the preference for having things dealt with, if at all possible, locally and as soon as possible. If it does not do his future career a lot of harm, perhaps I may associate the noble Lord, Lord Newton of Braintree, with the thanks to the Government for moving on this. He cannot be in his place tonight but I am afraid that the two of us are at one in thanking the Government, which I think puts us both in very bad odour.
What the Government have done has been welcomed very widely. I know that the British and Irish Ombudsman Association has supported this final retention of a citizen’s right to direct access. Similarly, the National Housing Federation supports the line which enables MPs and councillors to be involved as the first route at the discretion of the complainant but allows the fallback position. Likewise, the Law Commission prefers a system where the complaints can go either through a local representative or to an ombudsman. I hope that the Government know that tenants are similarly very happy with the new amendments, under which they can either deal directly with their councillor or go to the ombudsman. The organisation Which? similarly prefers the choice of the local route but, if not, then the fallback position if for whatever reason the complainant does not want to involve their MP or councillor. As the Minister said, the reasons for that could well be a conflict of interest: the councillor may be the provider; the MP may already have heard the case in their surgery; or the MP may know the local council official involved. The only other reason that has been mentioned is that there could be a threat to the tenant’s privacy where there are issues that they would perhaps not want to share with an elected official. The only other point when somebody may want to go to the ombudsman, albeit after the delay, would be when an elected representative perhaps would be rarely accustomed to awarding redress and would not have the authority to enforce any award.
The way in which this has been tabled by the Government is to be greatly welcomed. It clarifies the current position of the Housing Ombudsman because the scheme requires complainants to have completed any internal complaints procedure with their own provider before going to the ombudsman. Only in very exceptional circumstances, such as oppression or something like unreasonable delay, would the Housing Ombudsman take a case before it had been through the provider’s in-house procedure. That is also helpful in the wording of the Government’s amendments. All the other organisations similarly take that line.
I am delighted that the wording allows local access or the fall back after eight weeks. It is only that that brings up my very small amendment. I have no difficulties with the idea of some delay after the internal procedure is over for the complainant to take stock and consider whether a complaint to the Housing Ombudsman is still justified, having heard the reasons for being turned down by the in-house procedure. Two months seems a little long, especially as the internal procedure that they would have already gone through could also have been a bit lengthy. My amendment would simply shave a fortnight off those eight weeks. The Government have moved a long way on this amendment and I hope they will go a little bit further. An extra 14 days would make this a particularly good final answer to the original amendment.
Lord Tope
My Lords, as the noble Baroness has just said, the Minister has moved a long way since we last debated this. We all accepted the strong desirability of resolving these matters locally whenever possible, but we realised during or even before that debate that it had an unintended consequence of giving the designated person the right of veto. I do not think that that was what the Government intended and I am pleased that they have recognised that, and that it has been removed. Once again, I thank the Minister for not only listening but for acting. At this late hour at this very late stage of the Bill I do not propose to debate further whether it should be six or eight weeks. I am just glad that we have got to where we have.
Lord Best
Once again the House of Lords consideration of this Bill has led to a really sensible change to the legislation. I congratulate the noble Baroness, Lady Hayter, alongside the noble Lord, Lord Newton—I have supported these amendments all the way—on persuading the Minister who I know has handled this with great distinction. On behalf of all the organisations which have been extremely worried about this and all the people whose complaints will now be better handled, I thank the Minister very much.
Lord Kennedy of Southwark
My Lords, I thank the noble Baroness for moving the amendments. They are a work in progress. I also thank my noble friend Lady Hayter for her amendment which would reduce the period before referral from eight to six weeks. I hope that the Government will accept my noble friend’s proposal.
I never really got to the bottom of why it was such an issue for the Government. Looking back to the debate on Report, it was not only Members from the Labour Benches who expressed such concerns but Members from all sides. I have always thought that the democratic filter would do nothing to improve the process of enabling tenants to resolve their complaints. The Government’s proposals allow a tenant with a complaint direct access to the ombudsman after going through a process or on the refusal of a designated person to send it on.
When the noble Baroness responds to the debate, will she say how the ombudsmen satisfy themselves that either of the two conditions for direct referral have been met? I hope that that will be something very simple, such as the copy of a letter or an e-mail confirming that the complainant has gone through the process and the period of time has elapsed, or the refusal of a designated person, as I do not want to see added burdens on the complainant.
At this point, I would like to add my thanks to the Minister, other noble Lords on all sides of the House and the Bill team as we draw to a close on this Bill. This is the first Bill on which I have contributed to your Lordships’ House’s discussions from the Dispatch Box. It has been an interesting learning curve for me. I hope, in particular, that I have been of assistance to my noble friends Lord McKenzie of Luton and Lord Beecham. I again thank the Minister for bringing these amendments back. They are very welcome.
Baroness Hanham
My Lords, we thought carefully about the time limit and believe that eight weeks strikes the right balance. It allows sufficient time for a complaint to reach the local representative and for the local representative to make representations to the landlord and achieve a successful resolution to the complaint without imposing an unnecessary or onerous delay on the tenant. It might help the House if I unpick this a little further.
First, as the clock starts at the end of the landlord’s process in our proposal, we would expect the tenant to require a little time to forward the complaint to the local representative, and we make allowance for this. Secondly, it is important to recognise that in most cases the local representative will want to review the case materials before going further and will possibly want to discuss them with the tenant. It is key to our aim of getting local representatives more involved in housing complaints that they are given the space and opportunity to do that. If, on the other hand, the local representative concludes that the complaint cannot be resolved locally, they do not need to wait for the eight weeks to elapse. They can at any stage refer the complaint to the ombudsman or agree to the tenant accessing the ombudsman directly. We believe that we should trust local representatives on the ground to make this judgment and to provide effective support and advocacy on behalf of tenants.
I was asked how the ombudsman would know that the tests had been satisfied before the matter was referred to him. I understand that this is a matter for the ombudsman, who plans to consult over the next year on a revised statutory scheme that will set out these matters. I hope that that will enable the noble Baroness not to move her amendment.
Baroness Hanham
“(1A) Sub-paragraph (1) is subject to paragraph 7AA (complaints that need not be made by way of referral).”
“Complaints that need not be made by way of referral by designated person7AA (1) Paragraph 7A(1) does not apply in relation to a complaint against a social landlord made to a housing ombudsman under an approved scheme if the ombudsman is satisfied that—
(a) the social landlord has procedures for considering complaints against the social landlord, (b) the matter that forms the subject of the complaint has been submitted to those procedures,(c) those procedures have been exhausted, and(d) the complaint has been made to the ombudsman after the end of the eight weeks beginning with the day on which those procedures were exhausted.(2) Paragraph 7A(1) does not apply in relation to a complaint against a social landlord made to a housing ombudsman under an approved scheme if—
(a) the ombudsman is satisfied that a designated person—(i) has refused to refer the complaint to a housing ombudsman under an approved scheme, or(ii) has agreed to the complaint being made otherwise than by way of a referral by a designated person, and(b) the refusal, or agreement, is in writing or the ombudsman is satisfied that it has been confirmed in writing.(3) Paragraph 7A(2) (meaning of “designated person”) applies also for the purposes of sub-paragraph (2).”
Earl Attlee
Earl Attlee
My Lords, I shall also speak to Amendments 62 to 67. These amendments are in response to two amendments tabled by my noble friend Lord Jenkin of Roding and the noble Lord, Lord McKenzie of Luton, on Report: Amendments 96 and 103. I know that my noble friend Lord True also has an interest in these matters. Those amendments related to obligations on the mayor to publish his reasons for not accepting comments made at consultation where he proposes to bring forward a mayoral development corporation. I am happy to say that we have looked carefully at the case put forward by the noble Lords for amending the Bill and propose to introduce the following changes.
Amendment 61 requires the mayor to publish his reasons for not accepting comments made by an affected borough where those comments relate to the mayor’s proposals for a mayoral development area. Amendment 62 requires the mayor to publish his reasons for not accepting comments made by an affected borough where those comments relate to an MDC’s proposed planning functions.
Amendments 64 and 65 are minor and technical relating to Clause 203 and put right minor inaccuracies arising from changes to the Bill. Amendment 66 would require the mayor to publish his reasons for not accepting comments made by an affected borough, where those comments relate to an MDC’s proposals for non-domestic rate relief. Amendment 67 defines “affected local authority”.
Together these amendments would put an affected borough on the same footing as the London Assembly with the regard to the duty on the mayor to respond directly to any concerns it may raise. I trust they address my noble friend’s concerns. I beg to move.
Lord Jenkin of Roding
My Lords, of course, I am very grateful indeed to my noble friends for having, at this late stage, agreed these amendments. I cannot do better than quote a note I received only this morning from London Councils. It states that this is a notable change in the Bill and one that borough councils will very much welcome in years to come. I would endorse that very warmly. I thank my noble friends.
Baroness Hanham
“In paragraph (c) “affected local authority” means a person specified by section 196(4)(d), (e), (f) or (g) in relation to the area.”
Baroness Hanham
Baroness Hanham
“In paragraph (c) “affected local authority” means a person specified by section 196(4)(d), (e), (f) or (g) in relation to the area.”
Baroness Hanham
Baroness Hanham
“(2) In paragraphs 6 and 7 “education functions” has the meaning given by section 579(1) of the Education Act 1996.”
Baroness Hanham
“(10A) In paragraph 11A for “7 to” substitute “8 and”.”
Baroness Hanham
“Audit Commission Act 1998 (c. 18)5A In section 49(1)(de) of the Audit Commission Act 1998 (disclosure of information by Commission or auditor etc for purposes of functions of ethical standards officer or Public Services Ombudsman for Wales) omit “an ethical standards officer or”.
Data Protection Act 1998 (c. 29)5B In section 31 of the Data Protection Act 1998 (exemptions from subject information provisions for data processed in connection with certain regulatory functions)—
(a) in subsection (7) omit paragraph (b), and(b) in subsection (8)(b) omit “, or to an ethical standards officer,”.”
Earl Attlee
Earl Attlee
My Lords, I beg to move government Amendment 76 and speak to Amendments 77 to 83.
Your Lordships agreed to government amendments to provide that a council tax referendum could not be triggered solely due to expenditure that had been supported in a local referendum. However, the agreement reached at Report stage to remove local referendums from the Bill means that any link between council tax referendums and local referendums is no longer relevant. These amendments, therefore, remove the references to local referendums from Schedule 5. I beg to move.
Lord Beecham
My Lords, these amendments come in Schedule 5 which deals with referendums, including council tax referendums. I apologise at this late hour for raising an issue which has only just come to light in relation to council tax referendums; that is, a communication from the Electoral Commission— received extremely late in the day, it must be said—raising concerns about the procedures. I had a word with the noble Earl previously under the misapprehension that the noble Baroness would be replying to this amendment. I am not asking for a definitive answer tonight, because I do not know whether the noble Earl has actually seen the communication from the Electoral Commission. However, it was recommending that the proposed arrangements that any council tax referendums should commence from next year—Spring 2012—should not take place and that referendums should not be required to be held until 2013. There has been a principle, apparently accepted for several years now, that regulations including conduct rules should be clear no later than six months in advance of the date of the first poll to which they will apply. It is clearly of the view that that will not be possible in this case, as it has seen only a very small part of the draft secondary legislation which will be required for referendums. It has not seen details specifically for these referendums. There are a number of factors, including the fact that there might be multiple referendums held because of the variety of precepting authorities which would be potentially involved in the issue of such referendums as and when these might be held.
The Electoral Commission’s assessment is that,
“there is a high level of risk that any council tax referendums held in Spring 2012 may not be well run … There is not in our view enough time before then to adequately ensure”—
I notice it is splitting its infinitives—
“that regulations are well drafted and electoral administrators are properly prepared, and campaigners are ready to engage with others”.
Therefore, it is asking for,
“a clear commitment to not hold these referendums until Spring 2013”.
It makes the helpful suggestion that we might table amendments, but of course we are out of time to table amendments. It raises questions about how the Electoral Commission works and I know my noble friend Lord Kennedy has already raised questions about that. However, it makes an additional point that has been touched on in previous discussions on the funding of referendums and whether the rules about donations and campaign spending and so on ought to be brought into play to deal with these referendums.
It is very late. I am not expecting the Minister to give a definitive answer but I would be grateful if he could assure the House that these matters will be considered. Obviously, I expect the Government to take seriously the views of the Electoral Commission. In practice, I suspect that next year there will not be many councils that, given the general state of play, will be proposing council tax levels such as to trigger potential referendums. We cannot be certain, of course, but it is probably unlikely. There is little to be lost and indeed much to be gained, I venture to suggest, by looking closely into these matters and responding positively to the belated recommendations of the commission. An indication that the Government will at least think about that would be very welcome. Subject to that, we will certainly agree the amendments, which are simply a tidying-up process following the welcome decision to abandon local referendums at large.
Earl Attlee
My Lords, the noble Lord, Lord Beecham, does not disappoint me. I have read the letter from the Electoral Commission carefully. All organisations would love to have the maximum possible time to implement changes, and I understand that these are complex changes. However, council tax payers expect to have protection against excessive council tax increases. That is what we are delivering through the Localism Bill. We have a duty to consult the Electoral Commission. We are fulfilling that duty to make sure that the right processes are in place. However, the Chancellor recently announced a council tax freeze in England for 2012-13. We expect most if not all authorities to take up the freeze, in which case there will be no need for referendums next year, as the noble Lord, Lord Beecham, graciously recognised.
The Government intend these provisions to become effective from 2012-13 onwards, subject to the Bill receiving Royal Assent in sufficient time. We will of course reflect on what the Electoral Commission has said as part of our ongoing engagement with it. Noble Lords should also remember that the Secretary of State will set the excessiveness level, which will have to be approved by another place, and if necessary a local authority can be put into a special category if it has any specific problems. With that, I beg to move.
Baroness Hanham
“( ) that the draft order is made by the authority, or”
Lord Best
My Lords, I am very pleased to be moving and speaking to the very last amendments to this Bill, after our many months of discussing it. This gives me the chance to say to the Minister, to the Ministers who have supported her, and indeed to the government Ministers in another place, that this Bill has been enormously improved during its House of Lords stages. Indeed, the key role of this House in scrutinising legislation has been wonderfully illustrated by the progress of the Localism Bill.
I have been given a list of 10 major issues that were originally of considerable concern to the Local Government Association, for example, and on which that body, representing local authorities up and down the land, now feels reassured and to a very large degree satisfied with the legislation as it now appears. The same kind of list could have been devised by a number of external agencies, with the same satisfaction rating at the end of that. It has been a long slog, with meetings all through the Summer Recess, and Ministers have worked incredibly hard. The outcome is a Bill that has been transformed. Both thanks and congratulations are in order, very much including congratulations to the opposition Front Bench, and, if I may say so, to the noble Lord, Lord McKenzie of Luton, in particular, who handled this process with great care, courtesy and skill to very great effect, and to the efforts of external bodies that have made their representations to us so helpfully and so effectively.
Lord Tope
My Lords, perhaps I may take this opportunity to echo the words of the noble Lord, Lord Best, at the beginning of his moving the amendment and echo also the words of my noble friend Lord Greaves in thanking very much the Ministers and the Bill team for the very constructive way in which this Bill’s very lengthy process has been approached. As I understand it, we are now sending something like 100 pages of amendments back to the Commons. What is more notable is that all those amendments have been passed without the need for a vote; in other words, we have truly reached consensus. Of course, like all consensus, it has not achieved everything that each of us would have wished but, without any doubt, we are sending back a very much better Bill than the one we received back in June.
Tribute has also been paid to the opposition Front Bench. I do not know whether the noble Lords, Lord McKenzie and Lord Beecham, had any further hopes for their future careers but, should anyone read the late-night proceedings in Hansard, we have probably now effectively ended their prospects. I pay tribute to them for the constructive way in which they have approached the Bill. It reflects a view with which all of us started; that we were here not to play games or to score points off each other—some of us have known each other quite long enough to know exactly how to score points if we were so minded—but for the genuine interests of better local government and local democracy, which I think we have achieved.
My final thanks are to the Liberal Democrat team on this Bench. Recently, my noble friend Lord Greaves in private referred to my role as being that of team manager. By being the team manager I have been very much more fortunate than much better known team managers in having, certainly, an all-star team but without the all-star egos and tantrums that go with it. I put on record my thanks to my colleagues for the very effective way in which we have approached this Bill, and to the Minister for listening to the good advice that my all-star team has offered and for being so willing so often to take that advice.
Lord McKenzie of Luton
My Lords, this is the last time I shall speak on the Bill. Perhaps I may start by expressing support for the noble Lord, Lord Best, and his inquiries. I hope that he will receive the confirmations that he sought, certainly on the basis of the helpful background note that we received from the Government today, which confirms that proceeding via development plan documents and local development orders would obviate the need for referendums.
I should like to offer my thanks to several people. Certainly, I thank the Bill Minister, the noble Baroness, Lady Hanham, and her team, the noble Earl, Lord Attlee, the noble Lord, Lord Shutt, and the noble Lord, Lord Taylor of Holbeach, who has gone on to other things. I know what hard work it can be working on a Bill and what a tremendous amount of effort has been put in. It has been a listening team, which has boded well for the outcome of the Bill. I thank also the noble Lord, Lord Tope, the manager, and his team, who have had a tremendous input into the Bill.
The noble Lord, Lord Tope, made the point that a substantial number of changes have been made to the Bill. I have not worked on a Bill that has changed quite so much during its passage through your Lordships’ House. That has been due to the power of the contributions around the Chamber. It has not been the Opposition particularly or any particular group. The Government have listened to the voices of experience and common sense. Certainly, the Cross-Benchers have played their full part and I pay tribute to the noble Lord, Lord Best, in particular. I think that we all look up to him on housing matters. I thank my team and I offer big thanks also to the Bill team. Particularly at this stage of the proceedings there are a lot of last-minute amendments in order to try to get everything in shape for the conclusion of the Bill. The team has worked very hard and has always been receptive to inquiries that we have made. This has been a really good exercise in scrutiny of what, frankly, was not a great piece of legislation when it arrived in this place. It goes back to the other place in much better form. I am not quite sure how it will find the time to deal with all the amendments but I wish it well.
Baroness Hanham
My Lords, before we get lost in the fact that we are nearly there, I will answer the noble Lord, Lord Best, briefly, but I hope satisfactorily. I want to make it clear that local authorities can use existing planning mechanisms to take forward planning proposals that a neighbourhood forum or parish council has produced without needing to hold a referendum. The draft neighbourhood plan policies can be taken forward by the local authority as a development plan document which is subject to independent examination but not referendum. Similarly, the permissions in the neighbourhood development order can be taken forward as a local development order which is subject to neither independent examination nor referendum. So both development plan documents and local development orders are required to be subject to appropriate and effective consultation.
However, it is an underpinning principle of this Bill that a parish council or neighbourhood forum should always be able to ask the wider community to decide in a referendum whether a neighbourhood plan or order should come into force. Therefore, neighbourhood development plans and neighbourhood development orders, which are tools that the Localism Bill introduces for planning at a neighbourhood level, will always be subject to a referendum of the neighbourhood. The referendum gives everyone in the community the opportunity to have their say and demonstrate evidence of community support in a manner that cannot be demonstrated through a petition or consultation.
Local authorities that work effectively with their communities in planning at a neighbourhood level will be in a good position to decide whether to take emerging proposals through the development plan or local development order route, but it has to be right that if a local community wants it, it can use the power in the Bill to prepare a neighbourhood development plan or order and ensure that the wider community has the final say in a referendum. The removal of that right would undermine one of the core building blocks of neighbourhood planning as envisaged in the Localism Bill.
With those reassurances and clarifications, I hope that the noble Lord will be willing to withdraw the amendment.
Baroness Hanham
Baroness Hanham
“51A In section 148(1) (HCA may not, during a moratorium, give or enforce directions as to the use or repayment of financial assistance)—
(a) before “the HCA” insert “neither”,(b) after “the HCA” insert “, nor the Greater London Authority, may”,(c) in each of paragraphs (a) and (b) omit “may not”, and(d) for the “and” between those paragraphs substitute “or”.”
Baroness Hanham
“Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I.2010/1158) | In paragraph 47(2) of Schedule 2, the word “7(1),”.” |
“In section 148(1), in each of paragraphs (a) and (b), the words “may not”.” |
“Equality Act 2010 (c.15) | In Schedule 19, the entry for the Office for Tenants and Social Landlords.” |
Baroness Hanham
My Lords, before we finally conclude at the end of all this time, I join very much with the remarks that have been made about the constructive way in which the Bill has been dealt with. It is absolutely remarkable that for all the months we have spent on the Bill it has resulted in seven votes on all the amendments and changes that have been put forward. It has been a great pleasure to lead the team on the Bill. I thank my noble friends Lord Attlee, Lord Taylor and Lord Shutt for the help and support they have given me on the Bill and for the extraordinary detailed and useful work that they have done. I particularly thank—sometimes with gritted teeth—my colleagues behind me, all of whom contributed significantly to the Bill. It would be fair to say that it has been an all-round-the-House contribution. I thank all noble Lords and hope that we will meet again at some stage.