House of Lords
Shipping: International Maritime Law
(11 years, 9 months ago)
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Lord James of Blackheath
To ask Her Majesty’s Government whether they will issue any guidance to ex-Navy personnel or independent commercial organisations offering security and escort convoy services to shipping off the coast of Somalia regarding their rules of engagement and their compliance with international maritime law.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)
My Lords, the Department for Transport issued interim guidance on the use of private maritime security companies in December 2011. This was updated in June 2012 and is periodically reviewed to ensure its relevance. The Government are working with industry to establish a national accreditation system for this industry; both stress the importance of compliance with international maritime law, including the principle of self-defence, which provides the only condition under which these privately contracted civilian guards may use force.
Lord James of Blackheath
My Lords, I thank the Minister for that response, but I am a little disappointed not to hear that it is possible for us to ban altogether this independent commercial activity. It is seriously prejudicial to the interests of, perhaps, formerly redundant members of our services who find deliverance from their predicament by joining, given the extreme hazard that they will represent under international law, both to themselves and to this country’s reputation.
Baroness Warsi
My Lords, there are, of course, many members of the Armed Forces who take part in private security companies, including private maritime security companies: 90% of private maritime security companies are based in London. We have led the international community in providing the guidance and rules under which such companies can operate. My noble friend will be aware that these companies operated long before we issued the guidance; clearly, they now operate within a system for which there is guidance.
Lord West of Spithead
My Lords, I declare an interest that I am involved with a maritime security company. I am glad to say that I do it not because I am desperate for things to do, but because I feel that it is an important thing to do. I am delighted to speak because, 710 years ago today, the first admiral was commissioned in our country. That is rather nice. However, I would point out to the Minister that we must really focus on, and produce, some clearer guidance. There is no doubt that a large number of companies are now doing things which are beyond the law, since it is quite difficult for them to meet the requirements that are meant to be met. For example, the whole issue of floating armouries is a very real problem. Could I ask the Minister to push this issue much faster, because there will be an occasion—as the noble Lord said—where people will be getting into serious difficulties as a result of unintentionally breaking our laws and international law?
Baroness Warsi
The noble Lord speaks to this matter with great experience, both in relation to his previous role and in terms of his current role. He will be aware that these companies were operating before we issued guidance; it was really a reaction and response to the fact that they were predominantly operating out of the United Kingdom that the guidance was issued. The guidance is quite detailed in terms of the plans that they must set out and being responsive to the necessary organisations that monitor this in the particular area that they are in. The noble Lord will be aware, too, that international law will apply in international waters. The law of the particular flagged ship will apply to that particular vessel. For the companies that operate in that specific area around Somalia and the Indian Ocean, there are specific rules on which we have led in the drafting.
Lord Chidgey
My Lords, with new companies employing in the order of 2,700 armed guards to meet the surge in demand, costing the international shipping community over $1 billion a year, does my noble friend agree with the analysis that the current downturn in piracy is temporary and that it will in time re-emerge from the Somali clans unless irreversible progress is achieved in stability, security and the rule of law? In that regard, what progress has been made since last year’s Somalia conference in London?
Baroness Warsi
I can inform my noble friend that I have just come from a meeting. The president of Somalia is in the United Kingdom, having discussions about progress that has been made since the Somalia conference. My noble friend will be aware, too, that a follow-up conference has been planned for later on this year. I have the statistics somewhere in this great brief, but I can inform noble Lords that numbers of successful piracy attempts in that region have gone down dramatically. My noble friend is right that, ultimately, we need to keep working to keep those numbers down rather than providing security.
Lord Boyce
Could the Minister tell the House whether she feels that an increase in armed guards on board merchant vessels transiting that area has significantly improved security and, as a result, we see far less hostage taking so that lives are saved?
Baroness Warsi
I can inform the noble and gallant Lord that no vessel has been successfully pirated when it has had security on board.
Lord Anderson of Swansea
Could the Minister answer the specific question raised by my noble friend in respect of floating armouries, which is approved by the Security Association for the Maritime Industry? By having these arms on board ships outside territorial waters, they will avoid the need to go into port, with the obvious legal and bureaucratic problems that might arise. When will the Government come to a decision in respect of floating armouries?
Baroness Warsi
The noble Lord refers to the issue of floating armouries. Noble Lords may not all be aware that these are, effectively, vessels that sit outside of immediate country waters with a view to providing a place where armed items can be transferred and reused. We are currently consulting across Whitehall as to the best way in which to operate. The noble Lord will be aware that Sri Lanka has a specific example, whereby a ship which is used as a floating armoury lies just outside their territory. I am sure that he and other noble Lords will agree that to have such a vessel also increases concerns about what may happen if it is taken over.
Lord Naseby
Is not the reality that the NATO navies cannot cope on their own? The reduction now has come about because of a combined effort from the navies of NATO plus the private sector. Therefore, are the Government not right in the way in which they have approached this, working with the private sector and the merchant marines? It is not the first time that that has happened—and godspeed to those who work together to ensure that this scourge on that part of the world is brought to an end.
Baroness Warsi
My noble friend makes an important point. I add that it is also important that we work in the region to make sure that these pirates are captured, properly prosecuted and subsequently sentenced. That would send out a strong method that there is not a culture of impunity in this matter.
Lord Elystan-Morgan
On that note, my Lords, will the Minister tell the House whether the combined effect of the Merchant Shipping and Maritime Security Act 1997 and the United Nations Convention on the Law of the Sea of 1982, which is incorporated in statute, means that piracy in any sea in the whole world can be brought before the courts of this land and such persons prosecuted? Will she say whether there is any intention, in respect of the pirating of any British-registered vessel, for any such case to be brought into the courts of the United Kingdom?
Baroness Warsi
The noble Lord is right; universal jurisdiction applies in these matters and, in fact, these matters can be tried anywhere in the world. However, we firmly believe, as of course the region also believes, that it is right that those people are captured, prosecuted, tried, convicted and detained in the region in which they are found.
Housing: Rural Areas
Lord Knight of Weymouth
To ask Her Majesty’s Government how many affordable homes have been built in rural areas since 2010; and how many more are expected to be built in rural areas in the next two years.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, from April 2010 to September 2012, 7,519 affordable homes were built in rural communities of fewer than 3,000 people through the Homes and Communities Agency’s Affordable Homes Programme. We expect rural delivery in the next two years to account for nearly 10% of anticipated completions of the programme outside London.
Lord Knight of Weymouth
My Lords, I thank the Minister for her reply. Her figures do not compare well to the estimated rural housing need of at least 11,000 additional units per year. Housing affordability remains an urgent problem for the rural working poor, and this problem is getting worse, not better. Will the noble Baroness please tell us what the Government will do to protect the rural low-paid against the combined effect of housing benefit changes such as the bedroom tax, underfunded councils in rural areas cutting council tax benefit, and, if the Government go ahead and abolish the Agricultural Wages Board, farm workers in tied houses losing their protection on rents?
Baroness Hanham
My Lords, the question was about rural housing, but it seems to have spread a little wider than that. We recognise that affordable housing in the countryside is a problem. We are very clear that rural areas and the people in them require affordable housing, and that affordable housing should take into account welfare benefits as well as the other aspects raised.
Baroness Maddock
My Lords, is my noble friend aware that Northumberland, notwithstanding budgetary difficulties, has announced this week £20 million worth of building and £20 million worth of land for houses over the next three years? Is she further aware that it has taken the opportunity to use new powers, with the reorganisation of council benefit, to not allow any discount on second homes and empty homes?
Baroness Hanham
My Lords, I am delighted to hear what the noble Baroness has to say because we sometimes hear that nothing is happening in the north, while it is clear that it is, because we have had other examples in this House over the past few weeks. That, therefore, is extremely good news, and I am glad that Northumberland is making use of legislation, as it can, to best effect.
Lord Campbell-Savours
What is happening over affordable housing on the green belt?
Baroness Hanham
My Lords, we have made it clear, in the National Planning Policy Framework, that the green belt is virtually sacrosanct, but we recognise that occasionally green belt land needs to be used for affordable housing, although that will need to be replaced. Some green belt land, as the noble Lord knows, is not absolutely brilliant land, so where you can use that rather than going into real open space, it should be used. However, we need affordable housing, and we recognise that.
The Lord Bishop of Bath and Wells
My Lords, the dearth of affordable social housing in rural communities impacts upon the mental, physical and spiritual health of such communities. Will the Minister agree that all new housing projects in rural areas should be mandated to include affordable housing?
Baroness Hanham
My Lords, we know that most affordable housing projects in rural areas tend to be small. Basically, they happen when the land or housing is protected for rural people. The projects may be small or larger, but they can be built under a number of systems; we know that there is shared ownership, social rent, affordable rent and intermediate rent, so there should be a reasonable spread across the country.
Baroness Gardner of Parkes
What is the position regarding amenities such as a centre to help disabled people or handicapped children, which could be built in conjunction and is very necessary for some communities? The noble Baroness mentioned that communities will be able to put housing on green-belt land. Could that same permission be given for such adjuncts, which are an important part of any housing scheme?
Baroness Hanham
My Lords, that would be for local decision, if the local authority believed that that was an appropriate use of land. Indeed, such amenities could be included in the neighbourhood plan. The more of those we can get up and running, the better. These sorts of facilities which are vital, as the noble Baroness said, can be included in those plans. I readily accept that communities need and want these essential facilities.
Lord Whitty
My Lords, the Minister was a bit dismissive of the broadening of the Question put by my noble friend Lord Knight. However, does she not realise that in rural areas particularly, affordability is a question of income as well as of the availability of housing? This is particularly true in areas such as the south-west, where the ratio between house prices and incomes is at its worst. Therefore, will she address holistically the problem of affordable housing in areas such as the south-west by having a coherent regional housing policy which allows people to live in the villages in which they were born?
Baroness Hanham
My Lords, as I have said, it is important that people in rural areas are able to stay in rural areas. I hope that the Government’s policies will ensure that that happens.
Nuclear Research and Development
Viscount Hanworth
To ask Her Majesty’s Government what steps they are taking to foster nuclear research and development in the United Kingdom.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma)
My Lords, over the past year, the Government have been working with industry, academia and other key stakeholders on a programme to help maintain, co-ordinate and further develop the UK’s nuclear research and development capabilities. We will publish details and outcomes from this work alongside a wider nuclear industrial sector strategy in the near future. Alongside this work, we are also engaged in positive discussions with international partners about joining an international research reactor programme. We have made a number of investments through the Skills Funding Agency and the UK Commission for Employment and Skills in support of the nuclear skills agenda.
Viscount Hanworth
I thank the Minister for that Answer. She will have observed how closely the nuclear research agenda of the European Union is aligned with the interests of France’s nuclear industry. Does she not agree that it would be timely and appropriate to establish a British directorate of nuclear research to guide and co-ordinate our research efforts? Does she not also recognise the virtue of providing guaranteed long-term funding for research directly to our own National Nuclear Laboratory?
Baroness Verma
My Lords, the noble Viscount raises a number of key points. The UK is working very positively with its international partners and its partners in the EU. Alongside what I have already mentioned to the noble Viscount is our forthcoming strategy, which we are working on and will incorporate a number of streams, one of which will be a comprehensive landscape review of all our R&D activities. I am sure that when the noble Viscount sees that, he will be reassured that the UK is one of the leading hubs of nuclear research and development.
Lord Jenkin of Roding
Will my noble friend accept my congratulations to the Secretary of State on his appointment of Dr Paul Howarth to the national nuclear council, because that seems to me an admirable demonstration of the importance which the Government attach to nuclear research? Dr Howarth is, of course, the managing director of the National Nuclear Laboratory. I take this opportunity to wish him well.
Baroness Verma
I will, of course, pass on my noble friend’s congratulations to the Secretary of State and to all at the National Nuclear Laboratory.
Lord Hunt of Chesterton
My Lords, would the Minister like to comment on how Her Majesty’s Government are supporting collaborative research with Japan? The UK is already working on research with Japan, following Fukushima. The Japanese have the largest computing facilities in the world and it is particularly important to maintain our collaboration with Japan.
Baroness Verma
The noble Lord is absolutely right. He will be aware that our own Dr Mike Weightman was very involved in the work going on after Fukushima. We remain closely involved with Japan’s nuclear work. I think that we meet about twice a year bilaterally, but we are always talking with Japan in international forums.
Lord Patel
My Lords, is the Minister aware that the UK currently ranks 15th out of 16 in its spend on nuclear fission research, spending one-tenth of what Belgium does and half of what Finland spends? What should the UK spend?
Baroness Verma
My Lords, the noble Lord would draw me into providing a figure but I am not prepared to do so at this stage. However, we take our research and development very seriously and we are investing an awful lot of money in research and development, but it is also about the quality of research, not just the quantity of money being spent.
Lord Avebury
When do the Government expect to see the report from the Nuclear Decommissioning Authority on the disposal of the stocks of 100 tonnes of plutonium? Are the Government moving away from their formerly preferred solution of using this plutonium to create MOX fuel, bearing in mind that there are no customers on the horizon for that form of nuclear energy?
Baroness Verma
My Lords, I am aware of my noble friend’s interest in other forms of disposal of civil plutonium. I can reassure him that, while we still prefer MOX, we are considering proposals from GE Hitachi and Candu to determine whether their approaches need further consideration as credible alternatives for managing the UK stockpile of plutonium.
Lord Foulkes of Cumnock
On a wider matter, with the refusal by Cumbria council to agree to the underground disposal of nuclear waste and the withdrawal of Centrica from the new nuclear programme, is the Government’s nuclear energy programme not in some disarray?
Baroness Verma
My Lords, the two issues are completely separate. Centrica’s withdrawal has nothing to do with confidence in nuclear; its priorities are currently different. Cumbria County Council’s decision is, of course, disappointing but we welcome the very positive votes from the borough councillors of Copeland and Allerdale, which show that there are places that are willing to go on to the next phase. It is not an indicator that nuclear is dead: it is an indicator that much more thought needs to be put into the process of how we go forward.
The Lord Bishop of Hereford
My Lords, is the Minister aware of the All-Party Parliamentary Group on Thorium Energy’s meeting, only about 10 days ago, with academics, people from industry and national nuclear laboratories? Encouragement was given at the meeting to using thorium for mixed fuels with uranium, which has the long term potential to allow nuclear waste to be used as an asset and a fuel and not just a liability.
Baroness Verma
My Lords, the right reverend Prelate is right to raise the work done on thorium. We maintain an interest in the global potential of thorium and have, for the longer term, commissioned a wider analysis of nuclear fuel cycle scenarios which are open to the UK, among which is the reactor design fuelled by molten thorium salts. However, previous studies show that there are still significant risks to resources to develop thorium fuel to commercial deployment. In these difficult economic times, we need to concentrate on potential technologies that compete for the same investment but may have a sounder outcome than thorium currently does.
Baroness Smith of Basildon
My Lords, I listened carefully to the Minister’s answers to the previous two questions and I think she may have missed the point made by my noble friend Lord Foulkes. Centrica has withdrawn from the UK nuclear programme—the third company to do so, as E.ON and RWE have also pulled out. It is all very well for the noble Baroness to say, on the issue of thorium, that we should deal with more immediate problems, but if three companies have pulled out of the UK’s nuclear programme, what is the Government’s plan B to ensure we keep the lights on?
Baroness Verma
My Lords, the noble Baroness perhaps missed the first part of my response, in which I stated that the two questions posed by the noble Lord, Lord Foulkes, were two separate issues. Coming back to Centrica’s withdrawal, it has not withdrawn because it has no confidence in new nuclear but because of its own commercial priorities. However, significant progress is being made, and the noble Baroness will be aware that, in the last quarter of last year alone, the sale of Horizon to Hitachi and the granting of the first nuclear site in 25 years at Hinckley Point C happened. I would not be as pessimistic as the noble Baroness is being about nuclear, which is of course part of our low-carbon energy mix but not the only part.
EU: Legislation
(11 years, 9 months ago)
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Lord Dykes
To ask Her Majesty’s Government what derogations and opt-outs from European Union legislation they are seeking in negotiations with European Union partners.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)
My Lords, the Government always seek outcomes that are in the national interest when negotiating with other European Union member states. We work with a range of countries and our priorities include protecting the integrity of the single market and allowing fair competition for all members of the EU.
Lord Dykes
I thank the noble Baroness for that Answer. The Government are rightly very keen indeed on the single market, which is not just a free trade area but much more. The strong apparatus of support and protection that the single market affords to all member states means, effectively, that you have to stay in the EU as well. Is it not therefore important for the Government to avoid needless opt-outs of a chauvinistic or nationalistic nature?
Baroness Warsi
My Lords, I am always impressed with the ever-increasing appetite for discussing Europe in this House. Many of these matters were raised in the debate that took place on Thursday of last week. Nobody in this House would argue that every time the United Kingdom goes to the European Union we should not always act in our national interest and make sure that we are continually putting a case forward that means that the European Union is improved but, within that, we also get a good deal.
Lord Harris of Haringey
My Lords, there has been much speculation about the Government wanting to withdraw from arrangements such as the European arrest warrant and other collaboration on criminal justice matters. What representations have been received by policing bodies about the wisdom of such a course of action and what representations have been received from victims’ organisations which may not get justice for the victims they represent?
Baroness Warsi
I am not aware of what specific representation has been received in relation to that matter, but I will make sure that I write to the noble Lord and give him a full answer.
Lord Kakkar
My Lords, I declare my interests as professor of surgery at UCL and a member of the General Medical Council. Despite assurances given at the time of its introduction that the imposition of the working-time regulation on junior doctors’ rotas would improve patient safety, we learnt last week from the president of the Royal College of Surgeons that the regulation has actually undermined the training of future generations of hospital consultants. Recently at least two coroners’ verdicts have cited the regulation as part of their narratives. What progress have Her Majesty’s Government made in the negotiations on this issue that were started in early 2011 by the then Health Secretary and the Business Secretary?
Baroness Warsi
It is exactly because of specific issues such as this that we believe improvements can be made and that we can negotiate with Europe on a way forward that is in our best interests and works clearly in terms of, for example, our hospitals—the example given by the noble Lord. It is for that reason that the Prime Minister has laid out that certainly in the next Conservative manifesto there will be a clear provision for us to go to Europe, to negotiate and to get that better deal.
Lord Forsyth of Drumlean
My Lords, further to the Question of my noble friend Lord Dykes, would it not be better if, instead of having a list of things that we want to opt out of, we start with a list of things that we want to opt into?
Baroness Warsi
We should simply start with a single premise that we should work on what is in our national interest—whether that is opting in or opting out—but we must start that process, make sure that we fight hard for what is right for this country and make sure that, after having negotiated that outcome, we go to the people of this country and ask them to buy into it.
Lord Triesman
My Lords, there is an enthusiasm for this issue in the House and I share it. During the debate last week the Minister and several other noble Lords said that they did not believe that these uncertainties would have any impact on inward investment. Last week—I repeat the declaration of interest I made at that time—I saw for the first time in a “due diligence” questionnaire from a potential inward investor questions about mitigating risk as a result of this whole episode. Can the Minister, whether on behalf of the Prime Minister or in her own right, say just what the red lines and issues are so that inward investors at this stage know what they are dealing with and which kind of country they are coming to?
Baroness Warsi
This is a very important relationship within the European Union. It is not the kind of thing that can be negotiated overnight. It is right, therefore, that the balance of competences review, which will take place between now and the end of 2014, starts to lay out and consult on those areas on which negotiations can be had. It is right that, if the Conservative Party were to win the next election, we would implement what we will put in our manifesto. We will go to Europe, negotiate and, thereafter, put that matter to the public of this country.
I understand what the noble Lord says about creating uncertainty. However, I am sure he will agree with me that the Europe debate is far and wide in this country. The concept that the British people are happy with the relationship that we have right now with the European Union is false. Therefore, any inward investor knows that this is a debate that is to be had in this country and, more than that, it is important that the people of this country buy into that relationship.
Lord Pearson of Rannoch
My Lords, has the time not come for Her Majesty’s Government to suggest to our European partners that we should all take back full national and monetary independence, that we should all help each other as appropriate and that Brussels should be closed down? If the Minister does not agree with me—I suppose that there is a chance that she may not—can she tell your Lordships what the European Union is now for? What useful things does it do which could not be done better and more cheaply by collaborating democratic governments?
Baroness Warsi
I congratulate the noble Lord on being consistent and predictable. I am sure that he will get the answer that I always give him. There are great benefits of our membership of the European Union, both in terms of jobs in relation to inward investment and, of course, the strong collective voice which the European Union provides us in relation to free trade agreements, sanctions and international action.
Public Bodies (Abolition of the Disability Living Allowance Advisory Board) Order 2013
(11 years, 9 months ago)
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Baroness Stowell of Beeston
That the draft order laid before the House on 15 October 2012 be approved.
Relevant documents: 12th and 15th Reports from the Secondary Legislation Scrutiny Committee, 8th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 29 January
Legislative Reform (Hallmarking) Order 2013
Viscount Younger of Leckie
That the draft order laid before the House on 26 November 2012 be approved.
Relevant document: 10th Report from the Delegated Powers and Regulatory Reform Committee, considered in Grand Committee on 29 January
Mental Health (Discrimination) (No. 2) Bill
Lord Stevenson of Coddenham
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated the wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Growth and Infrastructure Bill
Lord Ahmad of Wimbledon
“(3) If the original consent, or a section 33 consent that replaces it, is varied or replaced, section 31 does not apply to the development to which the consent as varied, or the replacement consent, relates (and so development consent is not required for that development).”
Lord Ahmad of Wimbledon
My Lords, I am afraid that this is a somewhat technical amendment, but I will do my best to explain what is intended in concise and accessible language. Clause 20 is about enabling projects that were authorised under the various major infrastructure consent regimes that preceded the Planning Act 2008 to go ahead without also requiring authorisation under the Planning Act in the form of a development consent order. It deals with cases where a developer’s plans for a project have changed and they need to have the original consent varied or replaced to take account of that change. We want to make it absolutely clear that in such a case, the variation or replacement of the original consent—for example, planning permission under the Town and Country Planning Act 1990—is all that is needed. The developer will not need to start again from scratch and apply for a development consent order under the Planning Act 2008 if they already have a validly varied or replaced consent under the relevant pre-Planning Act regime.
The reason for making the amendment is that new Section 237A, which Clause 20 would insert into the Planning Act, would still potentially leave projects authorised under pre-Planning Act legislation having to apply in some cases for a development consent order under the Planning Act. For example, the new section would not remove the need for a development consent order in a situation where a project had been built and it was necessary to make changes to the conditions of its original planning permission relating to operational matters. This seems wrong. As an additional benefit, the amendment also simplifies the drafting of new Section 237A of the Planning Act. I beg to move.
Lord Adonis
My Lords, the Minister’s explanation of the amendment was entirely persuasive, and we are content.
Lord Berkeley
“(4A) In section 150(1) (removal of consent requirements), for the words “consented to the inclusion of the provision” substitute “been consulted by the applicant about the inclusion of the provision”.”
Lord Berkeley
My Lords, I shall speak also to Amendments 75ZA and 75ZAA in this group. I shall not speak to Amendment 75, which probably should not be there because it has been superseded. As an introduction to these amendments, I will say that Amendments 72 and 75ZAA have the support of the British Property Federation, the Confederation of British Industry, the National Infrastructure Planning Association and the Royal Town Planning Institute—so noble Lords will see where I am coming from. I am grateful to the Minister for the meeting we had a week or two ago to discuss all these amendments. It was extremely helpful. I hope that we have made progress and will continue to do so.
All the amendments that I am speaking to are attempts to learn from the experience of the Planning Act 2008 and to take account of how the process has changed with the introduction of the changes made by this Government. I hope that many of the suggestions will be useful in trying to streamline and simplify the regime in order to reduce the delay, cost, uncertainty and risk in delivering some of these big projects. After all these years, and having tried hard to simplify things—both Governments of the past 10 years have tried to do that—there is still a long way to go. Steven Norris, the chairman of the National Infrastructure Planning Association, recently wrote in the Times:
“A modern economy needs a planning system that doesn’t smother democracy, but makes reasoned decisions in a reasonable timescale”.
Lord Jenkin of Roding
My Lords, I will start by putting all this in context for the House. We are addressing the need for national infrastructure. This is now widely accepted. It is not sufficient to talk about it and to produce lists of things that could be done. One has got to get ahead with it. Much of the Bill—and I welcome this—is clearly directed to that end; to try to remove some of the barriers, speed up the timetables, reduce the bureaucracy that has been involved, and in every way help those who are contemplating substantial infrastructure investment to achieve their objectives, of course while protecting important environmental and other interests. The CBI wrote in response to these questions that:
“Infrastructure investment is critical for boosting the economic performance of the UK and it is important that the right conditions are set to encourage the private sector to bring forward projects to boost growth. Infrastructure UK has identified a pipeline of more than 550 projects requiring more than £330 billion of investment by 2015 and beyond, with over 85% of this coming from private sector sources. At the same time significant investment is needed in other forms of commercial and residential property to boost business productivity and ensure an adequate supply of housing”.
I quote those figures to demonstrate just how enormous is the task that faces this country in trying to catch up with what under successive Governments has been a neglect of infrastructure investment in keeping our essential infrastructure up to date.
Lord Snape
I support the amendments so ably spoken to by my noble friend Lord Berkeley and supported by the noble Lord, Lord Jenkin. When the previous Government introduced what they said was a national planning agreement in 2008, many of us said, “About time, too”. The problem with major projects in this country is the length of time that they take. Any way of shortening that time taken, without withdrawing people’s democratic right to make proper objections, is to be welcomed. When the 2008 Act was passed, one of my perhaps more cynical colleagues said, “It’ll never happen”. Once you try to shorten the procedures, you immediately deprive the legal profession, to name but one group, of the opportunity—how does one put this as kindly as possible?—to spin out the process for as long as possible. It was said to me at the time that that profession would ensure that.
We have only to look at the inordinate time that all major projects in this country take. In my time as a transport spokesperson in the other place, I spent some time attending the Terminal 5 inquiry. The amount of time wasted, where lawyer after lawyer and group after group restated virtually the same matters day after day, month after month and, in the case of that project, year after year, was, to say the least, expensive and inordinate. Anything that can be done within the democratic process to shorten that period is to be welcomed.
The noble Lord, Lord Jenkin, mentioned housing problems. I am sure that both sides of your Lordships’ House agree that it is very difficult to build anywhere in this country. All parties accept that there is a housing shortage, but circumventing that shortage is difficult under existing planning law.
On Amendment 75ZA, my noble friend Lord Berkeley spoke of the necessity of ensuring that construction materials for major projects are able to be transported using water and rail. Those of us who served four or five years ago on the Crossrail Bill were anxious to see proposals of this kind enacted for that project. We were anxious to see as much of the material for that enormous project taken in and out by rail and water. My noble friend mentioned various other projects; he did not mention Crossrail during his speech on the amendment. I am sure that he would agree with me that that is an area where the scope for restricting the number of heavy goods vehicles, particularly coming in and out of London, would be covered if the amendment was adopted.
I do not wish to sound any sort of controversial note in concluding my comments in support of the amendments, but I am always struck by how quickly former Secretaries of State are converted to the idea that perhaps a little urgency should be injected into these matters once they have left office. That is not a criticism of the noble Lord, Lord Jenkin, who served as Secretary of State for the Environment, if my memory serves me right, for some years, but I suspect that it was that experience that leads him so enthusiastically to support the amendments standing in his name and that of my noble friend Lord Berkeley. I shall join him in that enthusiasm and refrain from any comment about wishing that he had behaved in the way envisaged in the amendments when he had had the opportunity to do so during his own distinguished career.
I hope that the Minister will look kindly on these amendments and agree with me and the other two speakers who were in favour of them that they have a great deal to commend them.
Lord Adonis
My Lords, I begin by echoing the tribute made by the noble Lord, Lord Jenkin, to Sir Michael Pitt, who is doing an excellent job of public service as chief executive of the Planning Inspectorate—and did so in his previous work at the Infrastructure Planning Commission. However, in the present economic downturn where businesses are under so much pressure, the Planning Inspectorate, like other parts of the public service, should seek to keep its costs and charges down to an absolute minimum. That is the first important issue raised in the amendments in the name of my noble friend Lord Berkeley and the noble Lord, Lord Jenkin.
The key issue in the first amendment in this group is to do with the basis on which PINS calculates fees for the processing of development consent order applications. The fees are set out in the Infrastructure Planning (Fees) Regulations 2010, which provides that PINS may charge for each day on which the examining authority examines the application in the period beginning with the start date and ending with the completion date of the examination. This provision has given rise to uncertainty as to whether PINS is entitled to charge a fee only for the actual days worked on the development consent order by the examining authority or for each day of the examination period, irrespective of the days on which the examining authority may have worked on the application.
PINS has adopted the second of these interpretations, which is hardly surprising because that gives it a larger income and of course it is under great pressure from the Government to maximise its private income so that it is less dependent on the department. However, it seems that any reasonable interpretation of the fees that should be paid by promoters would lead one to conclude that they should pay only for the actual days worked on the development consent order by the examining authority. This is not a minor matter. I talked about the issue with the National Infrastructure Planning Association, which told me that for larger projects fees run into hundreds of thousands of pounds and that even for smaller projects, were the interpretation that fees would be payable only for actual days worked by the examining authority rather than the entire examining authority period, savings to developers of £20,000 or £30,000 might not be uncommon.
My understanding is that the Government are sympathetic to the case that has been made in respect of fees. When the Bill was before the Commons, the Planning Minister said:
“Although I would not want to fetter the Planning Inspectorate’s already constrained ability to charge fees for the valuable work that it does, I nevertheless take on board the concern about how such fees are charged. I have already had conversations with the Planning Inspectorate about how exactly it measures time and whether that time measurement relates to work done rather than just the clock ticking, and I will be sure to keep on the case.”—[Official Report, Commons, Growth and Infrastructure Bill Committee, 4/12/12; col. 437.]
How far has the planning Minister been on the case since the matter was raised in the Commons? Can the Minister here today give any further comfort to developers that the fees charged to them by the Planning Inspectorate will be done on what appears to be a defensible basis, namely the days actually spent by planning inspectors in working on the DCO applications rather than, as I say, the entire period that they are before the examining authority?
The second issue raised by my noble friend is about consents that cannot be disapplied by a development consent order without the consent of the relevant body. My noble friend cited Sir Michael Pitt who said recently that 40% of the required consents were outside the development consent order regime, even though—as the noble Lord, Lord Jenkin, said—the Planning Act regime was intended to be a unified authorisation process and therefore a one-stop shop for the construction of major infrastructure. The issue here is whether to do as my noble friend and the noble Lord, Lord Jenkin, wish—that is, remove the requirement to obtain the consent of bodies such as the Environment Agency and Natural England in respect of their permissions and replace that simply with a right for them to be consulted—would lose essential safeguards for essential interests. I look forward to hearing what the Minister has to say about that issue because it seems to be the fundamental point at stake. My understanding is that a new consent service is being set up by the Planning Inspectorate which should help in this respect and that recently reissued guidance to promoters about development consent orders sets out a stronger onus on consenting bodies to consider including consents in the development consent order regime. I look forward to hearing from the Minister whether he thinks that is likely to be effective in meeting the concerns raised by my noble friend and the noble Lord, Lord Jenkin.
The third key issue raised by these amendments relates to the pre-application programme management system and the oversight by PINS. The proposition is that the PINS examining inspectors should perform a programme management or case oversight role, probably holding public hearings with the key parties to check on progress made and the next steps.
I know that PINS already does good work at the pre-application stage to help promoters. However, I simply report to the House that the CBI, the Royal Town Planning Institute and the National Infrastructure Planning Association all report that the support given by PINS is not sufficient at the pre-application stage. They cite a whole string of cases, with which I will not take the time of the House now, which appear to substantiate that point. Providing a greater degree of oversight by PINS could help to ensure greater success for the DCO regime.
I look forward to hearing the Minister’s response to the concerns raised by the CBI and others in this respect because, if this is a blockage, it is completely within the control of the Government, since, of course, the Planning Inspectorate is a government agency.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lord, Lord Berkeley, and my noble friend Lord Jenkin of Roding for tabling these amendments. In his introduction, the noble Lord, Lord Berkeley, apologised for the amount of detail as regards these amendments. I join him in that apology: I apologise in advance for the length of my response. However, unlike the noble Lord, Lord Berkeley, who had the benefit of riding tandem, while I have benefited greatly from riding tandem on this Bill with the noble Baroness, on this occasion I seek the Committee’s indulgence because my response to these amendments is very much a solo cycle. I also join my noble friend Lord Jenkin and the noble Lord, Lord Adonis, in paying tribute to the work of Sir Michael Pitt in this respect.
As has been said, the amendments address a number of important issues in relation to reform of the major infrastructure planning regime. The importance of this was well expressed by my noble friend Lord Jenkin of Roding. For the purposes of the Committee, I will address each amendment in turn. I recognise the intentions behind Amendment 72, which addresses the “one stop” element for major infrastructures. This amendment would mean that the Planning Inspectorate was likely to be required to deal with a much wider range of issues than it current deals with—issues which require detailed technical or specialist knowledge or relate to sensitive issues such as nuclear safety.
At present this expertise is held by a small number of departments and government agencies. It perhaps would be wasteful to replicate this wide range of expertise within the Planning Inspectorate, particularly on issues as sensitive and highly technical as, for example, nuclear safety. In addition, many of these consents require ongoing compliance activities and periodic review based on the results of the compliance work, and it would be undesirable to separate the permitting and compliance activities into different organisations.
That said, the Government certainly are sensitive to concerns about the challenge for developers, as was raised by the noble Lord, Lord Berkeley, of effectively co-ordinating various application processes for a range of consents across a range of departments and government agencies, and are taking forward a range of actions to address this concern. Clause 21 and parts of Clause 22 remove the need for the five separate certificates or consents currently required and allow them to be dealt with under the single development consent order, a change which has been widely and strongly welcomed.
I am pleased to report that we have also recently consulted on proposals to establish new arrangements to improve co-ordination and communication between the Planning Inspectorate, applicants and consenting bodies. The proposals are intended to make the consents process more efficient, while retaining the technical and legal expertise in consenting bodies such as the Environment Agency and Natural England.
We think that this approach provides developers with the additional support and service that they are looking for without, most importantly, watering down the protections which currently exist. While we recognise the appetite from some developers for the Government to let all consents be dealt with by the Planning Inspectorate alone, other bodies have highlighted the important role that bodies such as the Environment Agency and Natural England play in ensuring that adequate environmental protections are delivered.
My noble friend Lord Jenkin also highlighted the recently updated guidance on pre-application. I welcome his positive comments in this regard, which, of course, make it clear that non-planning consents can be included within the development consent and that the bodies normally responsible for granting these consents should make every effort to facilitate this. They should only object to the inclusion of such a non-planning consent with good reason and after careful consideration of reasonable alternatives.
I turn to Amendment 75ZAA, which addresses four distinct and important issues in relation to the operation of the nationally significant infrastructure regime. I will seek to address each of the four issues raised in turn and hope that my comments will provide noble Lords with some reassurance.
I turn first to the issue of fees—this was raised by several noble Lords, including the noble Lord, Lord Adonis—addressed by proposed new subsection (1) of Amendment 75ZAA. This amendment would restrict the ability of the Secretary of State to set appropriate fees for applications for nationally significant infrastructure projects. The Planning Inspectorate’s fees are currently set out in regulations, which include provision for day-rate charges that depend on the make-up of the examining authority. There is a smaller charge for cases where a single inspector is the examining authority and larger charges for panels of inspectors. These fees are intended to cover the work of the Planning Inspectorate, which supports the examination, including staff working in case management, case administration, environmental services, legal services and other relevant costs of the inspectorate, including those incurred during the recommendation stage, for which no separate fee is charged. This amendment would narrow the ability of the Secretary of State to set appropriate fees to reflect the costs of the application. This would, in effect, mean that the taxpayer would have to further subsidise the service that the Planning Inspectorate provides for nationally significant infrastructure projects. I strongly support the “user pays” principle in relation to major infrastructure fees and see it as entirely appropriate that developers of nationally significant infrastructure pay a reasonable fee for their planning applications. I would not want to curtail the ability to charge reasonable fees.
However, the noble Lord, Lord Adonis, pointed to the comments of my honourable friend the Planning Minister in the other place—specifically on the issue of fees. The Government recognise that some developers are questioning the current wording of the infrastructure fees regulations. The noble Lord asked whether the Planning Minister was on the case; knowing the Planning Minister as I do, I know that he is definitely on the case, has opened the case, and has investigated it fully. I can therefore update the noble Lord with the news that the Government intend to bring forward a statutory instrument later in the spring to make this position absolutely clear and remove any possible doubt.
Lord Adonis
It is not entirely clear to me what “this position” meant in what the noble Lord just said. What does it mean? Is it that the charges will now only be in respect of actual days devoted to the examination of the cases?
Lord Ahmad of Wimbledon
As I mentioned earlier, we have already said that there are specific fees which are charged for specific projects, so if a single inspectorate is being asked to look at that, that will be clear in the fee structure. Similarly, if there is a bigger application where a range of inspectors are involved, that will also be transparent. I also highlighted the issue of the day rate, which I mentioned earlier in my speech. In effect, all we are doing is highlighting the issue of transparency, which was mentioned earlier. The statutory instrument will address that point: it will outline the Government’s policy clearly. Again, I refer the noble Lord to what I said earlier about day rates also being charged as part of this policy.
Lord Berkeley
I am grateful to the Minister for giving way, but I seek further clarification on that. Will this statutory instrument clarify whether an inspector can charge two separate applicants for a day rate on the same day? Obviously, it is right that the applicants should pay the cost, but it would be wrong if two were paying the same costs on the same day for the same inspector. Let us hope that the statutory instrument would cover that as well, because I think that would be equitable.
Lord Ahmad of Wimbledon
I am sure that the noble Lord understands that I myself have yet to see the statutory instrument. I am sure that it will provide the clarity that he has requested. As it is published, it will be apparent to noble Lords, and I will take up the specific point that he has raised with my honourable friend.
The second part of Amendment 75ZAA addresses national policy statements. While I am afraid I will not be able to accept this amendment, I share noble Lords’ view that they are an important element of the nationally significant infrastructure regime. They provide the policy and decision-making frameworks for nationally significant infrastructure, giving certainty to developers by making clear the Government’s policy on different forms of infrastructure, helping to speed up the examination phase and guiding the decision-maker on the approach that should be taken on the main issues. Therefore, they remain central to the Government’s planning reforms, because they provide clarity of policy and predictability, as noble Lords have mentioned, for those wishing to invest in new infrastructure.
I assure noble Lords that there is no question of the Government moving away from their commitment to national policy statements as the bedrock of the nationally significant infrastructure regime. Thus far, the Government have designated the national policy statements on energy, ports, and waste water. We hope to designate the hazardous waste national policy statement in spring 2013.
As the noble Lord, Lord Berkeley, pointed out, the Department for Transport has currently put on hold the roads and rail national policy statement to concentrate on other priorities, specifically the roads strategy, which will be published later in spring, and to support the work of the independent airports commission, chaired by Sir Howard Davies. The Department for Communities and Local Government continues to work closely with colleagues in the Department for Transport to work towards roads and rail and aviation national policy statements in future.
I have been asked for a definition of “imminent”. I regret to say that my definition may not tie in with the noble Lord’s, and I hope that it is not envisaged in the way that he expressed. Nevertheless, I hope that I have underlined that the issue of national policy statements has been raised centrally. I am sure that our colleagues across government will follow the debate with keen interest.
The Government are also currently considering consultation responses on the question of whether to put in place a national policy statement or statements for proposed new business and commercial categories of development, and this is a subject we will come to later in the debate.
Therefore, I am afraid that I cannot accept this amendment, which would impose an obligation to publish all national policy statements by 31 March 2015 and to lay before Parliament, on or before 31 March 2014, a report explaining to Parliament what has been done and what will in future be done to comply with that requirement. The reasons are quite simple. I am sure that it is appreciated that much of this work taken forward cuts across the work of several departments, such as the Department for Transport on the transport strategy and the Davies commission on aviation, which is due to report in summer 2015. The aviation commission’s terms of reference make it clear that:
“As part of its final report in summer 2015, it should also provide materials, based on this detailed analysis, which will support the Government in preparing a national policy statement to accelerate the resolution of any future planning applications for major airports infrastructure”.
I understand the concerns raised about the potential impact of there not being a national policy statement in the meantime, but it is clear that the nationally significant infrastructure regime can operate effectively and quickly without the need for a national policy statement, as we have seen, for example, with the decision on the Ipswich rail chord.
I turn to the issues raised around pre-application oversight by the Planning Inspectorate—
Lord Berkeley
I am grateful to the Minister. I thought that he might welcome a short rest during his very long speech, which is very interesting; he apologised for it, but it is no longer than our introductory speeches. Before we leave this subject of national policy statements, I also have an interest in the fracking debate. The noble Lord, Lord Jenkin, asked whether there would be a national policy statement on fracking. Dare we ask when this might come, if it does?
Lord Ahmad of Wimbledon
I also asked that question. First, I thank the noble Lord for allowing me a gulp of water to clear the throat somewhat. There are no current plans for an NPS on fracking. That is because it is very much at its early stages of development, it is not clear how or when it will happen, and some of the issues around commercial viability are unclear. However, again, the points that the noble Lord has made and those made by the noble Lord, Lord Jenkin, have been noted.
Lord Jenkin of Roding
I recognise the problems that Ministers face on this, but they must realise that while DECC has restarted the exploration programme, attention is now totally focused on what may follow if the industry decides that commercial exploitation will become necessary. I beg Ministers to recognise that it is not too soon to start to think quite seriously as to what would go into that national planning statement. They will want to consult widely in advance, but it is not too soon to start now.
Lord Ahmad of Wimbledon
As ever, of course, I note with interest the comments made by my noble friend. These activities continue to be treated as kinds of oil and gas exploration, but he makes his point, as ever, based on his own experience of this field. I am sure that the points have been noted, and that we shall, as we look at other issues in this regard, return to this subject in the future.
I will now turn, with the permission of the Committee, to pre-application oversight by the Planning Inspectorate. Amendment 75ZA provides for the Planning Inspectorate to take on a more active oversight role during the pre-application phase of the nationally significant infrastructure planning regime. The Planning Inspectorate already offers a pre-application service to developers and other interested bodies during the pre-application phase of a nationally significant infrastructure project application. This can include regular meetings with developers and other interested bodies to discuss the project; advice on specific questions and clarifications about policy and process; and support in understanding the pre-application consultation requirements.
As I have already said, the Government have consulted on our approach to expanding and improving the idea of the one-stop shop for major infrastructure, including proposals to streamline the current list of statutory consultees set out in regulations, to reduce consultation burdens and to make the pre-application phase of the infrastructure planning route more effective and efficient, which, as several noble Lords have highlighted, is the desire of many developers. This includes a proposal to establish new arrangements to improve co-ordination and communication between the Planning Inspectorate, applicants and other consenting bodies to make the overall consents process more efficient. The Government are now considering a range of views expressed as part of that consultation exercise.
In addition, my department has conducted a light-touch review of guidance for the major infrastructure planning regime earlier this year. Revised guidance published in January this year has been well received by developers, and we are confident that it will make it clear that consultation should be proportionate to the type and scale of the project being proposed. It should give developers the confidence and certainty they need during the pre-application phase.
I will now turn to waivers within the pre-application procedure. Subsection (4) raises similar issues and proposes to allow developers the option of obtaining a “waiver” of certain procedures in the major infrastructure regime, subject to the discretion of the Secretary of State. I appreciate that the noble Lord has brought forward a more tightly drawn amendment in Amendment 75ZAA than the original proposition in Amendment 75. However, the amendment continues to capture a wide range of Planning Act 2008 requirements and would provide developers with an opportunity to seek waivers against many of the key elements of the major infrastructure planning process. This would potentially undermine the certainty and transparency of the regime. It is also not clear exactly what parts of the nationally significant infrastructure regime developers would want to see a waiver used for. As was indicated by my noble friend, while we remain in listening mode, thus far we have seen only limited evidence of a problem in this area.
As I have already highlighted, the Government are pressing ahead with a number of important changes to reduce bureaucracy and ensure that the major infrastructure regime is as efficient as possible, including work on the one-stop shop and the revised guidance on pre-application to make the major infrastructure process more user friendly. I therefore argue that this amendment is unnecessary.
The final amendment in this group relates to the use of rail and water transport for the movement of construction goods. I share the noble Lords’ commitment to ensuring that all sustainable modes of transport are maximized in major infrastructure developments and to encouraging better and more efficient transport of our goods and services, including construction materials, on transport services such as rail and shipping. Indeed, the noble Lord, Lord Snape, also referred to this issue.
The Government are clear that sustainable transport is a crucial part of our vision for sustainable, long-term economic growth. Nationally significant infrastructure projects will almost always be subject to the requirements of the environmental impact assessment directive, which requires developers to prepare an environmental statement. One of the things that is expected in an environmental statement is a transport assessment setting out how the transport impacts of a development will be managed and any environmental impacts mitigated. The noble Lords’ amendment would therefore potentially duplicate requirements already in place.
In addition, decisions on nationally significant infrastructure projects must be taken in accordance with national policy statements, where they exist. Other policy statements, such as the national planning policy framework or other government policy guidance, would be likely to be important and relevant considerations that the Secretary of State would also need to take into account in relation to a decision on a nationally significant infrastructure project, so the Government’s commitment to sustainable transport policies is already very clearly built into the framework for decision-making on nationally significant infrastructure projects.
The ports national policy statement, for example, sets out that applicants should carry out a transport assessment as part of their environmental statement and that,
“rail and coastal or inland shipping should be encouraged over road transport, where cost-effective”.
The national planning policy framework also makes clear:
“Encouragement should be given to solutions which support reductions in greenhouse gas emissions and reduce congestion”,
and is clear that plans and decisions should ensure that developments’,
“use of sustainable transport modes can be maximised”,
including for the efficient delivery of goods and supplies.
The Government’s policy guidance on strategic rail freight interchanges also sets out the benefits of transporting goods by rail, including reducing road congestion, reducing carbon emissions and supporting growth and creating employment. I argue, therefore, that this amendment is unnecessary and that the framework of national policy statements, the national planning policy framework and other government policy guidance make clear that the expectation is on developers to identify the most sustainable form of transport available.
A wide range of issues have been covered but I hope that with that rather detailed response I have at least given sufficient assurances for the noble Lord to deem it appropriate to withdraw his amendment.
Lord Adonis
My Lords, I am very grateful to the noble Lord for the marathon that he has run with such fortitude. I hope that I may return to the fees charged by PINS. Having reflected on what the noble Lord said, I think that he made a dramatic statement which did not contain a great policy shift. I understood the Minister to say that the order which will be prepared later this year will be transparent about the number of inspectors—I stress, the number of inspectors—who are engaged in examining a DCO application. I understand that there is not much difficulty in finding this out and that developers are well aware of the number of inspectors in respect of their application. The issue is not the number of inspectors, it is the number of days on which they are engaged on the application, which they are able to charge for. That is a distinctly different point. If the order simply requires transparency on the number of inspectors, there will be no effective change from the status quo. The essential issue is whether developers and applicants are being charged excessively for the work being undertaken by the inspectorate.
Lord Ahmad of Wimbledon
I thank the noble Lord again for his question. The content of the statutory instrument is currently being looked at, and I do not want to pre-empt the detail of it. I refer the noble Lord back to my earlier point: Planning Inspectorate fees are currently set out in regulations which include provision for day-rate charges which depend on the make up of the examining authority—that was the point I was making—but there is something within them specific to day rates. Current practice and policy are not expected to change. There have been concerns about clarity and transparency, and they will be addressed by the statutory instrument.
Lord Adonis
The longer the noble Lord speaks, the more opaque it becomes as to what the actual change will be, if, indeed there will be any change whatever in the statutory instrument he refers to. If it simply re-expresses the status quo, what is the purpose of producing it in the first place? Will there be a change of practice on the part of the Planning Inspectorate? The noble Lord’s briefing may not enable him to answer that question now, but perhaps he could write to noble Lords after Committee.
Lord Ahmad of Wimbledon
I can assure the noble Lord that there is a statutory instrument due in this respect. I take his point about greater clarity, but my understanding is that the current policy position is not expected to change. The current fees regulations include day-rate charges.
Lord Adonis
Will the noble Lord write to us, between Committee and Report, so that noble Lords properly understand what is being proposed and have the opportunity to work out whether we need to return to this matter on Report? Given the feeling in the Committee, we may well return to this matter unless there is some movement.
Lord Berkeley
My Lords, I thank all noble Lords who have spoken in this very long debate. Perhaps we should, in future, reflect whether amendments should be cut into bite-sized pieces to make it easier.
I am particularly grateful to my noble friend Lord Snape who reminded me about Crossrail which I had, of course, forgotten. The Minister was right that there was lots of regulation about environmentally friendly transport on that particular issue. However, I do not see why something the size of the Thames Tideway tunnel, which claims to be complying with all the latest regulations, can be using road transport for all the spoil when there is a river there. We can explore that in the future. With so many different issues having been discussed and responded to, I will need to read the Minister’s response, for which I am very grateful, very carefully. I beg leave to withdraw the amendment.
The Earl of Lytton
“( ) In section 58 (certifying compliance with section 56), subsections (3) to (7) are repealed.”
The Earl of Lytton
My Lords, I tabled this probing amendment following discussions with the Compulsory Purchase Association. It sits as a singleton and does not relate to the amendments I moved previously in connection with compulsory purchase. I hope I can be brief and that it will be recognised as an attempt to free up the processes and will have general support as it actually removes something from the statute book rather than adding something.
The background to the amendment relates to the certification process when the infrastructure planning commission has accepted an application for an order granting development. Noble Lords will doubtless know of the procedure. Section 56 of the Planning Act 2008 provides that notice is to be given to persons of a particular category and in the form prescribed. Section 58 then deals with compliance with that general provision and, in particular, states at subsection (3):
“A person commits an offence if the person issues a certificate which … purports to be a certificate under subsection (2), and … contains a statement which the person knows to be false or misleading in a material particular”.
It relates to “knowingly” doing something that is offensive. Subsection (4) states:
“A person commits an offence if the person recklessly issues a certificate which … purports to be certificate under subsection (2), and … contains a statement which is false or misleading in a material particular”.
I have bit of a philosophical battle regarding the difference between the use of “knowingly” and “recklessly” in other matters. I should mention that “recklessly” is always a materially reduced standard of proof; however, the practicalities of this in relation to nationally significant infrastructure projects are, of their very nature, complex and involve large numbers of interested persons. All such projects are listed in the 2008 Act, many of them under various headings. The very idea of attaching a criminal offence to something of that degree of complexity borders on the absurd.
My amendment seeks to remove subsections (3) to (7), which contain the provisions for this sanction. The Committee may feel that that is going a little too far and I am quite happy to hear from the Minister that that might be the case. However, while an infrastructure provider on a large and complex scheme, which perhaps covers a substantial geographical area and a lot of different interests, may be expected, not unreasonably, to use its best endeavours to notify to all interested parties, having a criminal sanction is going a step too far. The Compulsory Purchase Association certainly feels that the provision is an impediment and stands in the way of getting these things done in a timely manner, while everyone carries out their due diligence in order to try to make sure that there is nothing lurking there which, unbeknown to them, could give rise to this criminal sanction.
My argument pivots on the term “recklessly”, which indicates that the circumstances in which there might be some element of risk are known but that someone somewhere thinks that you have not done enough to take account of those risks. The standards of proof are not as robust in terms of a convicting authority as they would be otherwise. The amendment removes risk and possible abuse in the setting in place of various bear traps, tripwires and anything else that people might want. The amendment will shorten timescales and remove a sanction that ultimately is unnecessary. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Earl, Lord Lytton, who has made a number of important points about the operation of the major infrastructure planning regime. Of course I share his concerns to ensure that unnecessary bureaucracy and, indeed, all such administrative burdens are removed wherever possible from the planning system.
Sections 56 and 57 of the Planning Act provide that an applicant for development must notify certain persons of an application for development consent, such as local authorities, environmental bodies or people with interests in land. This is a crucial part of the pre-examination phase of a nationally significant infrastructure project as it ensures that those bodies and individuals with an interest in the project are made aware of and are able to engage in the development consent order process. This is, of course, crucial for an effective, transparent and efficient examination process.
Section 58, to which this amendment pertains, provides that the applicant must certify that he has complied with these requirements. The noble Earl raised several concerns and, indeed, if an applicant issues a certificate containing false or misleading information, he may be guilty of an offence and liable for a fine. The Government consider that this position is appropriate given the nature of a nationally significant infrastructure project, being on such a scale and having considerable effects, both positive and negative, on not only the local area and local people but also on national and international infrastructure networks. It is vital that applicants comply with the notification and consultation requirements placed upon them so that interested people, organisations and authorities can exercise their right to be involved in the examination of the project. Since the onus is on the applicant to ensure that parties are informed that an application has been accepted, it is right that the Government have some sanctions at their disposal if it fails to comply.
However, the Government remain committed to listening to and addressing any future concerns raised about unnecessary bureaucracy or, indeed, barriers to growth. The Government are happy to discuss any further evidence of this particular provision which is cause for concern. Based on those assurances, I hope that the noble Earl will see fit to withdraw his amendment.
The Earl of Lytton
My Lords, I thank the Minister very much for his reply. It is a little bit of a disappointment. I simply make the point that, given the provisions for publicity that are also embedded in the 2008 Act, it is scarcely appropriate to have on top of that a criminal sanction. However, he very kindly offers the opportunity to discuss it. In fact, the Compulsory Purchase Association and I already have an appointment with to discuss matters with the department. Although it forms a separate matter from that particular body, I think it is entirely appropriate to leave it to that. While I may return to this at some later stage in the Bill, I beg leave to withdraw the amendment.
Banking Reform
(11 years, 9 months ago)
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Lord Newby
My Lords, the Government have today laid before the House the Financial Services (Banking Reform) Bill, and their response to the report of the Parliamentary Commission on Banking Standards that was published on 21 December last year, following the commission’s pre-legislative scrutiny of the Bill. I thank and pay tribute to the members of both the Independent Commission on Banking and the Parliamentary Commission on Banking Standards. The two commissions, whose membership comprises some of the most distinguished policymakers and formidable intellects in the world, have between them shaped a set of reforms to British banking that will lead the world and set an example to other countries in the seriousness, radicalism and meticulousness of the changes that are proposed. The Bill that is published today reflects their painstaking work, and the Government have accepted almost all their recommendations.
The reforms address what the Chancellor has called the British dilemma: how Britain can be a leading global financial centre, with more than its share of international trade in financial services, while at the same time not exposing the ordinary working people of this country to the catastrophic risks of banks failing. These reforms were, and are, necessary. The previous regime was tested and failed. UK taxpayers had to bail out the banks with £65 billion of the hard-earned money of ordinary working people, while those who had taken a one-way bet with their money slunk away, losing nothing more than their job—and sometimes not even that.
The anger that the country feels about what happened must be channelled into change, to reset Britain’s banking system. The objective of the Bill proposed by Vickers and endorsed by the commission is that any failure of any bank in future should not impose a cost on the taxpayer, and not interrupt for a second vital banking services. That is a high ambition, but one that is appropriate for a country with a reputation for financial stability and confidence that has for centuries been one of Britain’s chief assets in the world.
As is well known, the Bill will erect a ring-fence around the core operations of banks headquartered and regulated in the UK. Within that ring-fence, banks must be completely insulated from activities such as using depositors’ funds to speculate for the banks’ own benefit in capital markets. In the event of failure, depositors will be given preference in liquidation. As a result of the commission’s recommendations, the Government are making a number of further changes to the Bill. First, in the honourable Member for Chichester’s acute phrase, which will permanently enter the lexicon of banking, the ring-fence will be electrified. The regulator will be given the power to order the full separation of any bank that attempts to undermine the ring-fence. The directors of the banks will be personally responsible for ensuring that their banks comply with the ring-fencing rules, and the Prudential Regulation Authority will conduct an annual review of the operation and adequacy of the ring-fence rules.
Secondly, there are explicit provisions in the Bill for the principal aspects of ring-fencing, including that there should be separate boards of directors, remuneration arrangements and human resource management, for ring-fenced banks. Thirdly, the Bill gives us an opportunity to make an historic change in the competitive environment of UK banking. Competition is essential to ensure that customers benefit from innovation, extracting customer service and efficiency from their banks. That has not always been the experience of customers in the past. As well as bringing in a seven-day automatic account-switching service from September this year, the Government will take steps to tackle the cosy arrangement whereby the biggest banks determine how payment systems will be run. Why should it be necessary in 2013 for a cheque to take six days to clear, with banks and not customers scooping up the interest on balances during this delay? Why should a new bank have to beg an incumbent bank for permission to use the payments system? We will require access arrangements to payments systems that are fair, reasonable and transparent. The commission has, rightly, emphasised the importance of competition. I am grateful to it for propelling this drive further, as I am to my honourable friend the Member for South Northamptonshire, for whom greater competition in banking has been a personal crusade.
The fourth change is that more parliamentary scrutiny will be built into the secondary legislation that implements this high-level Bill. Drafts of the principal statutory instruments to be made will be available to the House before Second Reading. The Government accept the recommendation of the Delegated Powers and Regulatory Reform Committee on the type of scrutiny each should receive.
These are historic reforms, but they are appropriate for our country, and for an industry in which, directly and indirectly, 2 million people work. It is our biggest export earner and contributes £1 in every £8 of our tax revenue. We should take the steps necessary to restore confidence in and to an industry in which it has fallen so far. There is much scrutiny of the Bill before us, both here and in the other place. I look forward very much to our discussions in the weeks and months ahead.
Lord Davies of Oldham
My Lords, I am grateful to the noble Lord for repeating the response to the Urgent Question but I am appalled that this issue is being tackled as an Urgent Question. It means that this House has merely 10 minutes to consider the matter. Surely on this issue—the most significant piece of legislation that will go before the two Houses relating to an industry that has been at the centre of the greatest crisis in many years—there should have been a Statement in the other place. Why was it a junior Treasury Minister who made the Statement and not the Chancellor?
This is indicative that the Government would like to water things down. They have done that from the beginning. When the Vickers commission reported, the Government’s first reaction was to set about watering down its recommendations, by allowing, for instance, the reduction of the advised leverage ratio. When the Joint Committee of the two Houses proposed to electrify the ring-fence, the Government’s first reaction was to refuse to commit to it. As we see today, they have significant reservations about it. They have produced only a partial climbdown.
Does the Minister agree with the noble Baroness, Lady Kramer, who is in her place? I apologise if am pre-empting what she might say but I will have no other opportunity in this debate. She is the economics spokesperson for the Minister’s party. She believes that attempting to limit the procedure to individual banks will effectively tie up the sanction in years of complex litigation. That is why we endorse her viewpoint; it is ours, too, that this should be legislation. The back-stop power should apply to all banks.
Is it not vital that the Government make up their mind shortly and include a reserve power in this Bill for full separation of retail and investment banking, in case ring-fencing does not work,? That is what the Opposition have asked for. I believe that is what the noble Baroness, Lady Kramer, is asking for. It is certainly what the parliamentary commission indicated in its report and I fail to see why the Government are not more responsive in an area that they must know causes the greatest anxiety to the British people. The Government must look closely at this, and be determined, clear and effective, and not wishy-washy.
Lord Newby
My Lords, I smile with amusement when the noble Lord accuses the Government of not taking this issue seriously. When his party was in his power, and we and I suggested to it and him that they do exactly that, we were told that it was irrelevant to the problems that we were facing and that we should definitely not do it. I will certainly not take any lessons from him about the importance of this issue.
As for whether the legislation should include reserve powers to implement full separation across the sector, this was put to the Governor of the Bank of England, who said that he did not want such reserve powers. More importantly, general reserve powers would give huge power outwith Parliament to tear up the provisions of the Bill as we envisage it, and fundamentally change some of the ways that we see it working. The Government think that if you got to the point where that was a possibility, or you wanted those powers, the appropriate way to do it would be to come back to Parliament, rather than leaving it to the regulator to exercise what would be very sweeping powers indeed.
Baroness Kramer
My Lords, I will not repeat the question on reserve powers. I have a feeling that this House will take it on if the Government do not.
May I ask a question about the competition aspects of the Chancellor’s speech? His comments were welcome but to be able to change from one bank to another when all those banks are essentially alike is not real choice. Will the Government look seriously at splitting up some of the major banks, especially those in which we have ownership? I have not read the Statement but can he comment on whether Chancellor or the legislation will allow the FPC to set the level of the leverage back-stop so that it could be higher than the rather modest levels proposed under Basel III?
Lord Newby
On the second point, the Government’s view is that, as a general rule, we support the level proposed by Basel III and do not want the UK to be out of line with what is happening elsewhere in the global banking community. As my noble friend knows, the Government and I completely share her views about the importance of competition. As a first step, it is very important that we see rapid progress when it comes to those branches that, for example, RBS is supposed to be divesting itself of but which so far have not been divested. That is one step towards the greater competition that she seeks.
Lord Martin of Springburn
Many of these big banks took over our friendly societies, which were excellent self-help groups and were able to ensure that young couples got a mortgage. In fact, the friendly- society legislation governed the trade union movement at one time. Will the Government look at the restoration of the friendly societies, which were gobbled up by these banks? There are far too many young couples out there who have to rent property when, like the rest of us, they would rather be in an owner-occupier situation.
Lord Newby
My Lords, the Government share the noble Lord’s support for the mutual sector. It is interesting that, over the past couple of years, the mutual sector has been doing very well: Nationwide and the Co-op have been growing rapidly, which we very much welcome. We also welcome some of the specific decisions that have been taken by banks such as Nationwide, under which people who want a mortgage will get preferential treatment if they have had an account with that mutual for some time before they asked for it. That situation was commonplace a generation ago.
Lord Higgins
My Lords, some aspects of this answer are certainly welcome, not least in respect of speeding up the clearing of cheques and so on. However, can my noble friend be a little clearer on precisely what the situation is? Are the Government coming down in favour of a ring-fenced arrangement, which will be electrified? If so, is it not important that we electrify the loopholes as well as the ring-fence? Can he make it clear, if the system really is effective, how the position of a bank operating under it will be any different from having a split between the two sides of the bank?
Lord Newby
My Lords, on the first question, as to whether we are having full ring-fencing and whether we are electrifying the loopholes, I think, to take the analogy on, that if you have a proper, electrified ring-fence, there are no loopholes. First, the aim of the electrified ring-fence is to set up a very robust system. Secondly, the electrification not only allows the bank that has transgressed to be dealt with but will act as a very severe deterrent to prevent banks transgressing in the first place.
There is a rather long technical answer to his second question, which I am happy to give, but I suspect, given the time, that I will have to do it on another occasion.
Growth and Infrastructure Bill
(11 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Berkeley
“Planning Act 2008: further reform of highways
For section 144(3) of the Planning Act 2008 (provisions of development consent orders for highway projects) substitute—“(3) Subsection (2) does not apply to an order granting development consent which imposes charges in respect of the keeping or use of motor vehicles on roads by the application of Schedule 23 to the Greater London Authority Act 1999 or Part III of the Transport Act 2000, in full or in part and with or without modifications.””
Lord Berkeley
Amendment 75ZAB stands in my name and in the name of the noble Baroness, Lady Valentine. This amendment comes out of a fairly recent discovery about some new roads that have received permissions under development consent orders. If the developer wishes to put a charge or toll on them then, for some reason, it has to be a fixed-toll plaza, with lots of toll booths and the old fashioned things that one sees on motorways in France, on the M6 toll, and the Dartford crossing. It seems rather odd that a developer who seeks planning permission to build a toll road needs to be told as part of getting consent that if he is going to put a toll or a charge on it then it has to be a fixed-toll point. It seems to me that that has very little to do with planning—except for the planning permission of the site—and that the method of tolling should come out of a policy from the Department for Transport. I have had a useful meeting with officials on it.
It makes me recall the debate that we have in your Lordships’ House every now and then when the American embassy refuses to pay the congestion charge because it says it is a tax. One or two other embassies do the same thing. We all get a bit upset about that and the Foreign Office tries to make the embassies pay. It is an argument, but what is a toll, what is a charge and what is a tax? It is basically something you pay for going into a tunnel or across a bridge or up a road.
I have put down the amendment because I strongly believe that the Department for Transport should now have a policy on tolling. I do not mean which roads should be tolled and which ones should not be because that is a separate issue. We have the London congestion charge, we have tolls for the Dartford tunnel and for the Birmingham northern relief road, and we have lorry road-user charging coming in. The lorry road-user charging is going to be time-based rather than distance-based, which is odd. Nobody else in Europe is going time-based but that is probably why we are. Worse still, if these all move forward, you are going to have to have separate equipment in your car or lorry for each area, road, tunnel or bridge that you wish to use because I suspect that more and more of the crossings that now have toll booths will wish to convert to taking money while you are on the move because it is so much easier and cheaper and, of course, it is quicker for the person paying.
Cheapness comes into it. Noble Lords will correct me if I am wrong but the cost of collection of the congestion charge in London is something like 30% of the amount you pay. With some of the modern electronic systems used in other cities and some motorways on the continent, you are getting down to about 5%, which means that the developer keeps more of his money. One hopes that one day the Department for Transport, maybe in its new roads policy which we were told about earlier in the Committee stage, will come up with a policy on tolling. That should include one system for the whole country—one technical system—that you can have in your car. That means a common technology and it would be much better if it was common throughout Europe. Then it would be up to the developers, the Government or whoever to decide what rate should be charged for using whatever facility you need. We want to get away from the idea that if you are getting consent for a particular crossing or something with a development consent order, it has to specify the type of toll booth, which seems to be a rather retrograde step. I look forward to hearing the Minister’s response. I beg to move.
Baroness Valentine
My Lords, Amendment 75ZAB stands in my name and that of the noble Lord, Lord Berkeley. I declare that I am chief executive of London First, a business membership organisation.
The demands on our roads are growing. In major urban centres such as London, there are severe physical limits to building more capacity, and congestion is a serious problem. I believe that road charging will be an important part of that solution as we seek to manage our resources more efficiently. A more sophisticated charging scheme will need to deliver reduced and more certain journey times. As the noble Lord mentioned, London is ahead of the pack: it already has a congestion charging zone, which is now widely accepted, including by all political parties.
This amendment would enable Transport for London to develop intelligent, barrier-free charging systems for new or existing roads or river crossings in response to the growing demand for road space. This is more than an academic point. Transport for London is currently consulting on a new tolled river crossing at Silvertown in east London. There is a real dearth of river crossings on the east side of London, in contrast to the west, and a new crossing here would help relieve the Blackwall tunnel and would support new jobs and growth in east London.
Lord Berkeley
Can the noble Baroness confirm that this should apply—and the amendment does apply—well outside London? There is a plan for a new road or motorway linking Felixstowe to Birmingham—of course, I would rather it was a railway, but that is irrelevant—and there is talk of it being tolled. There are lots of other plans for tolled motorways in the offing, so am I right in thinking it would be a national system?
Lord Snape
My Lords, I support my noble friend and the noble Baroness in this amendment. It is something that I personally feel strongly about. I live near Birmingham in the West Midlands and I use the tolled section of the motorway quite frequently on my journeys north. It is a very convenient way of missing the congestion that can be found around spaghetti junction and the Ray Hall viaduct, the elevated section of the M6—until one reaches the toll booths, where we have this medieval concept of queuing to pay, the sort of thing one did with a horse and cart centuries ago. Invariably, I find myself behind someone who has got in the wrong lane, or someone who does not have the right money or cannot find their credit card, and a lot of the time saved by using the toll road is lost as one queues to get through this barrier. Surely there has to be a better way.
As the noble Baroness, Lady Valentine, said, in this day and age it should surely be possible to have a more modern system of collecting revenue for toll roads. It is 25 years since I first went to Singapore. The authorities there managed to collect congestion charges electronically three decades ago in a way that is apparently beyond us on the Midlands motorway. I ask the Minister to bear that in mind.
Perhaps I may test the patience of the Committee for two or three more minutes while I am on this hobby-horse of the Midlands motorway. At the moment it is comparatively lorry-free because the private owners—I understand that Macquarie, the Australian company, is the main shareholder in the Midlands motorway—deliberately, as a matter of policy, price off heavy goods vehicles. Those heavy goods vehicles then use the existing M6 over the elevated section at the Ray Hall viaduct and past spaghetti junction—a section of the M6 that is regularly and expensively under repair because of those very same heavy goods vehicles which, whatever the very effective road lobby says, do not pay their true track costs and do enormous damage.
Thanks to the generosity of the noble Baroness, Lady Thatcher, when she was Prime Minister in the 1980s, Macquarie was given the concession to run the Midlands motorway in perpetuity, and can charge what it likes. The last thing it wants is a non-stop procession of heavy goods vehicles, because that damages its motorway. It is no accident that the bit of motorway infrastructure regularly under repair anywhere in the country is the left-hand lane, because that is the one used by heavy goods vehicles. It is a nonsensical situation in which the British taxpayer has paid literally hundreds of millions of pounds. I know the Ray Hall viaduct quite well; it was in my former constituency of West Bromwich East. When the former Prime Minister John Major talked about the cones hotline he had the Ray Hall viaduct and the spaghetti junction interchange in mind. Miles of it are regularly coned off because of the damage done by heavy goods vehicles, which use that section of the M6 because they are deliberately priced off the Midlands motorway.
There are two matters here that I hope the noble Earl, Lord Attlee, will address. The first is the nonsensical and medieval concept of stopping to pay a toll, having used a road on which I must confess to breaking the speed limit occasionally myself. I have rarely if ever seen a police vehicle on that privately-owned section of motorway, although having said that I have no doubt I can expect to see one in the very near future. The taxpayer had to pay literally hundreds of millions of pounds because of the pricing policy on that section of toll road, which keeps off heavy goods vehicles. Both of those matters are complete nonsense. No one blames the Minister personally, but can he do anything about it?
Lord Adonis
My Lords, I wish my noble friend Lord Snape well in his quest to abolish all medieval practices in this country. I would simply point out that your Lordships may be the first victims of such a policy, so I hope he does not progress too fast.
Lord Snape
If my noble friend will allow me to say so, at least some of us in this House have occasionally sought election.
Lord Adonis
Of course, in medieval times exit was not a permitted right. The issue here is a very simple and straightforward one, on which I hope the noble Lord can give the Committee comfort. It is as simple as whether it is possible to have a tolling regime without having to have toll booths. The reason the issue has come to the fore is the Silvertown tunnel proposal. TfL, quite rightly, does not want to have toll booths, but the legal position is unclear. TfL tells me the issue is whether the New Roads and Street Works Act 1991 or the Greater London Authority Act is the relevant legal basis for tolling. If it is the one, then there is not a need for booths; if it is the other, then there might be. I think we all agree on what the public policy objective is here; we simply need the Government to give us comfort that it can be achieved.
Earl Attlee
My Lords, I am grateful to the noble Lord, Lord Berkeley, for tabling this amendment and for raising this issue in the House. Of course, it is always a pleasure to listen to noble Lords when they get on their hobby-horses. No doubt the noble Lord, Lord Snape, will be here on Thursday afternoon to discuss the HGV Road User Levy Bill that I will propose to the House.
The noble Lord, Lord Berkeley, makes a persuasive case in favour of amending Section 144(3) of the Planning Act 2008 in order to provide greater flexibility for developers wishing to include road charging provisions within the development consent order and to remove unnecessary additional processes and restrictions from the major infrastructure regime. While I cannot comment on the detail of individual cases, I share his commitment to ensuring the delivery of the crucial infrastructure that this country needs to support vital growth and jobs. I also agree with him that it is important that we take the opportunity to ensure that the provisions of the Planning Act 2008 are fit for purpose and are not inadvertently acting as a barrier to growth. This is therefore an area where I am able to consider further the case for an amendment to Section 144(3) of the Planning Act 2008.
On the noble Lord’s point about charges against diplomatic organisations, he will be aware that this is a long-running issue that we have debated many times. The Government pursue these charges vigorously with the organisations concerned. The noble Lord touched on the charging of road users, and of course on Thursday we will debate the HGV Road User Levy Bill, which partially addresses some of these problems.
I am happy to meet all noble Lords to discuss some of the wider issues relating to charging for roads. However, noble Lords will be well aware of the Government’s policy on wider road-user charging. With those reassurances, I hope that the noble Lord will be willing to withdraw his amendment and perhaps return to it on Report.
Lord Berkeley
I am very grateful to the Minister for what I felt was a positive response. I did not really need much on the poor old Foreign Office’s attempt to get the Americans to pay for parking their cars here, but, on the subject of the amendment, it was good to hear that he understands the problem. I look forward to sitting down with him between now and Report and possibly encouraging the Government to come back with their own amendment, which I am sure will be much better than the one that we have drafted. On that basis, I beg leave to withdraw the amendment.
Lord Greenway
Lord Greenway
My Lords, I shall speak also to Amendments 75B, 77ZA, 77ZB and 77ZC. The amendments are to do with safeguarding port land.
Amendments 75A and 75B to Clause 22 are intended to preserve the possibility of special parliamentary procedure in relation to compulsory acquisition of land of certain types of transport statutory undertakers. Clause 22 relates to Section 128 of the Planning Act 2008, which provides for development consent orders authorising the compulsory acquisition of land of local authorities and statutory undertakers to be subject to special parliamentary procedure. As currently drafted, Clause 22 would repeal the whole of Section 128. The amendments would instead remove the reference to local authorities and the general reference to statutory undertakers in that section and restrict its application to land of harbour and railway undertakers. These are providers of infrastructure for public benefit, and it is important that land required for these purposes should continue to enjoy the additional level of protection which this procedure confers. Since Section 128 is not to be repealed in its entirety, Section 129 of the Planning Act, which relates to the operation of Section 128, will continue to need to apply. Amendment 75A would also remove its repeal.
Amendment 77ZA would delete subsection (4) of Clause 22, which repeals provisions which also relate to Sections 128 and 129 of the Planning Act. The proposal that these provisions remain makes repeal unnecessary.
Amendments 77ZB and 77ZC follow on from the previous amendments. Clause 23 modifies and limits the scope of special parliamentary procedure in relation to compulsory acquisition of land in certain cases where the Bill is not removing the process altogether; that is, in cases where special parliamentary procedure is triggered under what the Bill describes as a “special-acquisition provision”. It is accepted that if special parliamentary procedure is still to apply under Section 128 of the Planning Act in relation to land of transport undertakers, it should be subject to the same limitations. These amendments would include Section 128 in the definition of special-acquisition provision. This means that the modifications to the procedures would apply to any case in which special parliamentary procedure was triggered by Section 128.
These are in the way of probing amendments. I am seeking assurance that the Government realise the importance of safeguarding port land. If the Minister can give me reassurance on this, and says that the amendments are unnecessary and that the Government are content with the status quo, I will be happy with that. I beg to move.
Lord Faulkner of Worcester
My Lords, I start by thanking the Ministers—the noble Baroness, Lady Hanham, and the noble Lord, Lord Ahmad of Wimbledon—for taking the time to see me with their officials last Thursday to talk about the amendments I have tabled to Clause 23 in the next group and also about my objections to the inclusion of Clause 22 in the Bill.
Your Lordships may recall that I spoke about special parliamentary procedure—SPP—at Second Reading. That was based on my experience of serving on the Rookery South Joint Committee. I shall not repeat the arguments that I used then, other than to repeat the point that SPP has been triggered very rarely—only three times since 1990. While the eventual majority decisions of the Rookery South Joint Committee were not ones I supported—both the noble Lord, Lord Geddes, and I felt that the promoters of the resource recovery facility had a case to answer in terms of demonstrating the need for such a large project—I believe that the public interest was served in our deliberating in a Joint Committee. Had this Bill been an Act last year, with Clauses 22 and 23 contained within it, the Rookery South Joint Committee would not have taken place.
Since Second Reading, I have been sent two pieces of briefing on why Clause 22 should be removed from the Bill. The first relates to a battle against road-builders in High Wycombe in 1965. The redoubtable Kate Ashbrook, general-secretary of the Open Spaces Society, has described what happened on her blog, from which I shall quote some extracts:
“Wycombe Rye is a stretch of public open space on the east side of High Wycombe, Bucks, extending alongside the River Wye … The rye is a treasured spot, 68 acres of land vested in Wycombe District Council and its predecessor body … since 1927 … Looking at it now you might think it had always been safe. Not so. In 1962 part of the land was threatened with a compulsory purchase order, to enable the inner-relief road to be built across it”.
That road had been approved following a public inquiry. She goes on:
“There was a further inquiry into the appropriation of 2.4 acres of open space, but on the inspector’s recommendation, the minister”—
of the day—
“confirmed the appropriation order, under the Acquisition of Land (Authorisation Procedure) Act 1946, on 5 February 1965. Fortunately no land was offered in exchange, so the order was subject to special parliamentary procedure … That meant that objectors could petition parliament and present their case to a joint committee of both houses ... Magnificently, the committee ruled that the orders be annulled. The rye has remained intact to this day, saved by legislation which gives parliament the final say on the theft of open space where no suitable alternative is provided”.
However, that protection will disappear if Clause 22 remains in the Bill because,
“instead of such cases being referred to a parliamentary committee, the Secretary of State for Communities and Local Government himself can decide the fate of open space. In future, when compulsory purchase of open space is proposed for development which the government thinks should go ahead quickly, and there is no suitable exchange land or that land is considered to be too expensive, the minister can cast aside SPP and rule that the development proceeds without regard to the open space”.
Powerful arguments in favour of retaining SPP have also come from the Inland Waterways Association, which makes the point that the Canal & River Trust, the body set up following the passage of the Public Bodies Act, holds the waterways it cares for in trust on behalf of the nation in perpetuity. If the CRT is threatened by a compulsory purchase proposal, it has at present the option to go down the SPP route. This, says the Inland Waterways Association, makes the authority threatening compulsory purchase treat the CRT with greater respect and encourages constructive discussion. It claims that if the Bill is passed, the CRT will lose the right to request an SPP. Will the Minister confirm whether it is right in that assertion? If it is, how does he explain the anomaly whereby the National Trust retains the right to call for an SPP on its own land but the Canal & River Trust is denied that? It appears to be the case that the Government are, by their amendment to Clause 22, strengthening the position of the National Trust but at the same time doing nothing to give protection to other bodies with heritage responsibilities. As the Inland Waterways Association puts it, how can the Minister justify the situation where the River Wey Navigation, which is owned by the National Trust and dates back to the 17th century is protected, but the River Lee Navigation, which is five centuries older, is not?
Finally, if Clauses 22 and 23 stay in the Bill, a decision, which was vested in Parliament, will now be taken by the Executive. I caution the Minister to take care in what he wishes for. One advantage from the Government’s point of view about SPP is that it cannot be subject to judicial review and does not apply to decisions taken by the Secretary of State, which can be challenged by JR and will take far longer to resolve than SPP. Certainly, if the Government are threatening open space, they should anticipate the possibility of numerous judicial reviews. I suggest that the Government should now drop Clause 22, take it back for further consideration and perhaps come forward with fresh suggestions on Report.
Lord Jenkin of Roding
My Lords, Amendments 76 and 77 are in the names of the noble Lord, Lord Berkeley, and myself, and this perhaps is the moment when I should make my contribution to the debate. I read the speech made by the noble Lord, Lord Faulkner, at Second Reading and his reference to Rookery South. I approach this issue from a rather different angle. If one looks at the history of that energy-from-waste project in Bedfordshire, the SPP—a post-consent process; planning consent had already been given—simply allows the objectors a further opportunity to object. A lot of people feel strongly about energy-from-waste projects.
The noble Lord says that that gives rise to parliamentary accountability. I have to say that until I had studied the briefs on these two clauses, I had been entirely unaware as a Member of Parliament of the activities of the noble Lord and some of his colleagues—the noble Lord, Lord Geddes, was mentioned. I know that my noble friend Lord Brabazon has been involved in similar SPP processes and has regarded them as very long and drawn out.
This Bill is about encouraging growth and investment in the infrastructure. It really cannot make sense to continue with these, as it were, statutory procedures for delaying decisions and action on applications for which consent has already been given after the normal processes. I have to confess to the noble Lord, Lord Faulkner, that I have not studied closely the condition of the waterways, as he obviously has, or, perhaps I may say to the noble Lord, Lord Greenway, the ports.
These two amendments are concerned about, as am I, the application of the special parliamentary procedure for what is called common land,
“open space, fuel or field garden allotment”.
The Planning Act currently provides that a development consent order which authorises compulsory purchase of open space land or a right over such land will be subject to the SPP unless the Secretary of State has issued a certificate confirming that certain prescribed circumstances will apply. I have already said that this is a post-consent approval stage that certainly has the potential to result in—and in some of the cases, not least that of Rookery South to which the noble Lord, Lord Faulkner, has referred, has actually resulted in—very considerable delays for a project that had already achieved planning consent. The procedure can be very costly for the applicants—and, I dare say, for some of the objectors—and hold back the provision of infrastructure projects that support economic growth.
Lord Adonis
Noble Lords have different views about the precise scope of the special parliamentary procedure, which we have heard expressed in Committee, but it is important that the scope is consistently applied. It is therefore important that the Minister answers the point made by my noble friend Lord Faulkner. Why does Clause 22(5) preserve the application of the SP procedure to proposed compulsory purchase acquisition of National Trust land, which is held inalienably, but not provide equivalent protection for land held in trust for the nation by the Canal & River Trust? Since the land is held for precisely the same purpose in both cases, why should the same legal procedure not apply to both?
Lord Greaves
My Lords, I support the amendments and the stand part debate proposed by the noble Lord, Lord Faulkner, and express some concern about the amendments in the name of the noble Lord, Lord Berkeley.
We are talking about open space. The law relating to open space is quite complex and is nothing like as simple as might be suggested. The problem is that a little bit of this particular Bill intervenes on the law on open space in one or two instances, potentially causing considerable confusion, not least about the definition of “open space”. In Clause 22 is set out the proposal that in some circumstances where it is proposed to develop on and remove open space—it does not refer to commons; the position on commons will remain the same—the special parliamentary procedure will not apply. Those circumstances are when,
“it is strongly in the public interest for the development for which the order grants consent to be capable of being begun sooner than is likely to be possible if the order were to be subject (to any extent) to special parliamentary procedure”.
It is an important bit to read out. The crucial words are,
“it is strongly in the public interest”.
That decision will have to be made by the Secretary of State, which is why what the noble Lord, Lord Faulkner, said about the threat of a relatively large number of delaying judicial reviews is so crucial. What is and is not in the public interest is clearly debatable, and the question of whether the Secretary of State is making a reasonable judgment on what is in the public interest is clearly judicially reviewable. That is the constraint in here which means that it is poor legislation; it is vague and not very clear about what it means. It might mean different things in identical circumstances to different Secretaries of State.
There are other reasons why Clause 22 is undesirable. As the noble Lord said, there have been very few references to or uses of special parliamentary procedure. Once again in this Bill, the Government come forward wanting to do something without providing any clear evidence of why it is necessary. The first thing that the Minister has to try to do is to give us some evidence of why this is necessary in the real world, not of why, in some theoretical future, there might be a problem or two, but evidence that it has been a serious problem in the past. If it has been only in one or two cases, then that does not add up.
The other rather vague and, I believe, judicially reviewable phrase is “long-lived”. These new provisions apply to circumstances in which the removal of the open space is temporary but possibly long-lived. Perhaps the Minister can tell us what “long-lived” means. I suspect that she cannot tell us very precisely because, again, it is a matter of judgment, and it may lead to more delays than even a special parliamentary procedure.
Has the noble Lord, Lord Berkeley, spoken to his amendments? He has not. I thought that perhaps I had been asleep and had missed him when the noble Lord, Lord Adonis, jumped in. I will speak to them, with his permission, and then he can tell me why I am wrong.
Lord Jenkin of Roding
I apologise, but my noble friend may have been asleep at the point when I spoke quite heavily to the amendment.
Lord Greaves
The noble Lord, Lord Jenkin, indeed spoke to the amendments, and his name is on them, so I am justified in speaking to them. I am grateful to the noble Lord.
At the moment, open space is generally defined as any land used for the purposes of public recreation. When it is threatened with compulsory purchase, the developer must provide suitable exchange land. If no land is provided, or if it is thought to be inadequate, then the special parliamentary procedure comes in. It is true that open space is often already designated by local authorities. It includes all the land designated in local plans as open space. However, it surely includes a great deal more than that.
At the moment the protection of Parliament is afforded to all land used for public recreation, formal or informal. For example, the amendments in the name of the noble Lord, Lord Berkeley, would remove this protection from the many thousands of acres of countryside, apart from the commons, which were mapped for access under the Countryside and Rights of Way Act 2000, and which are now clearly designated as access land and, therefore, open space. They would also remove this protection from many hundreds of sites which people enjoy by custom for informal recreation.
Again, the amendments in the name of the noble Lord, Lord Berkeley, produce a new definition of open space, which is that it has to be designated by local authorities in addition to, and over and above, land designated in local plans. I do not know what this means. It would produce considerable new duties on local authorities to make sure that they looked again at all their open space and, inevitably, it would exclude quite a large amount of open space.
There is a suggestion that the Government now only want to protect the most precious spaces and very specially protected land, which the noble Lord referred to in his speech. However, that would be a very substantial restriction on existing definitions of open space. I am sure that, overall, that is not the Government’s wish, but if it were to be their wish, they should come forward and apply that to everything, not just to this particular provision.
The provisions have existed in their present form since the Acquisition of Land (Authorisation Procedure) Act 1946 and were intended to protect land which is valued by people for recreation. I suggest that to introduce some kind of arbitrary distinction, which results from a new kind of designation by local authorities, is not the way forward. It would be vague and confusing, and to put out a new definition of open space just for this purpose would not be desirable at all. It would be a great confusion and would lead also to lots of judicial review. The noble Lord, Lord Jenkin, referred to the normal processes, but the normal processes in relation to open space are different from the normal planning processes. They are part of that but they are different.
Clause 22 already restricts the application of special parliamentary procedure to open space. It is something that I would rather did not happen. Therefore, I support the noble Lord, Lord Faulkner. However, to restrict it even further, as the noble Lord, Lord Berkeley, wants, would be a very substantial step backwards.
Lord Berkeley
My Lords, the noble Lord, Lord Greaves, invited me to speak to my amendment, which was very kind of him. The noble Lord, Lord Jenkin of Roding, gave a very good description of it, which I do not need to repeat, but there are a couple of issues on which we ought to reflect. First, the special parliamentary procedure, which my noble friend Lord Faulkner described at Second Reading and again today, is to my mind a second attempt to oppose planning permission if you fail on the first occasion. Is that worth having and, if so, what exceptions or types of development should be included? There is also the question of the scope of the SPP. I believe that it can be very wide: for example, looking at a complete planning application again; or it could be narrowed to apply to just the particular issue that is under consideration.
I found a very interesting example of this recently on Humberside where the established port operator there, Associated British Ports, got into a bit of debate with a new company, which I think was trying to develop a port complex next door for offshore windmills or something or other. A railway line runs through the middle of the proposed development which the developer was trying to purchase so that he could install level crossings rather than having the cost of a bridge. The detail does not really matter but the issue comes back to the fact that if you are opposed to a proposed development, the SPP gives you a second round of attack, if you like, in putting your case. If you want it to go forward as quickly as possible, you will argue that the consent order process is perfectly valid and, if you do not like the outcome, I suppose that you can go for judicial review.
I also worry when my noble friend Lord Faulkner says that there have been only two or three of these cases in the past goodness knows how long, because once people discover that there is this rather arcane procedure, a lot of people might try to use it. That is not a reason for not having it but it is a reason for considering whether one needs it, the scope it should have and how long it should last. I have tabled my amendment in conjunction with the noble Lord, Lord Jenkin of Roding, to test the waters and probe. We have had a good debate and it will be interesting to hear what the Minister has to say in response.
Lord Ahmad of Wimbledon
My Lords, I am grateful to all noble Lords for the amendments they have tabled, in particular the noble Lords, Lord Greenway, Lord Jenkin and Lord Berkeley, for setting out their proposed amendments to Clause 22. Questions have been raised about the Government’s position in putting forward Clause 22. It may be helpful if I first set out the issues that the Government are trying to address through this clause.
Clause 22 amends the provisions in the Planning Act 2008 which set out when special parliamentary procedure will apply to a development consent order which authorises the acquisition of specially protected land. It also repeals the separate certification process required in certain cases. The Planning Act 2008 brought together a range of different consent regimes for nationally significant infrastructure into a single development consent order. The overall aim of this regime is to provide a more efficient and quicker consenting regime for very large infrastructure projects. Development consent orders can include authorisation for the compulsory acquisition of land, but when certain categories of specially protected land are acquired, special parliamentary procedure can be triggered. The decision by the Secretary of State that such land is to be compulsorily acquired is then transferred to a Joint Committee of Parliament for confirmation. While the special parliamentary procedure is undertaken, the development consent cannot come into effect and work on the infrastructure project cannot start.
The noble Lord, Lord Greaves, talked about the reasoning behind such measures. Delays to infrastructure projects can have a significant knock-on impact in delaying benefits to the local and, indeed, national economy. In the case to which the noble Lord, Lord Faulkner, referred—the Rookery South project in which he was involved—the special parliamentary procedure was triggered for an infrastructure project under the Planning Act. The special parliamentary procedure added more than a year to the consent process. I understand that during this period no work was possible on the project, delaying the creation of up to 300 construction jobs and 80 permanent jobs that would have resulted when the project was up and running.
Lord Faulkner of Worcester
I am grateful to the noble Lord for giving way. Has he any estimate of how long it would have taken if the decision had been taken by the Secretary of State and been subjected to judicial review, which was the alternative to the SPP?
Lord Ahmad of Wimbledon
That would be speculating but I will come to the specific issue of judicial review in a moment and perhaps address the question at that time.
In more general terms, there is also the strong argument that has been made about the threat of delay, for whatever reason, impacting on the confidence of investors and developers. We are, after all, looking at infrastructure which is supporting the economic growth of our country. In total, new infrastructure creates thousands of new jobs and billions of pounds of new investment, as we all know. Consents for such infrastructure must be provided as quickly and efficiently as possible. We cannot afford to lose those jobs and investment because of delays in finalising consents.
The Government are committed to reform of the SPP and want to ensure that in future SPP is used only in cases where there is a genuine need for further scrutiny by Parliament of a particular ministerial decision. We therefore consider that SPP under the Planning Act should be limited to cases where there is a need for further scrutiny, as I have said. As my noble friend Lord Jenkin rightly said, it should be invoked where there is a real need for further scrutiny based on public interest and, indeed, a general need to weigh up competing public interests of allowing infrastructure development and the protection of certain types of specially protected land.
Lord Greaves
Does my noble friend agree that what is set out in the Bill is not a balanced view of the public interest, as he is suggesting, but a one-sided view of it? New subsection (4A)(d) states that,
“it is strongly in the public interest for the development for which the order grants consent to be capable of being begun sooner than is likely to be possible if the order were to be subject (to any extent) to special parliamentary procedure”.
If the new subsection referred to a balance of public interest in having a development as opposed to retaining a public open space, it would achieve what the Minister says that it does. However, that is not the case. It is a very one-sided consideration of the public interest.
Lord Ahmad of Wimbledon
I thank my noble friend for his intervention, but I do not agree with him on this point. We are not seeking to do away with the procedure altogether: we are ensuring that the procedure is still in place and can be invoked where there is a genuine public interest. This is not about sweeping the procedure away, although perhaps, on this occasion, we have different ways of looking at what is in front of us.
Clause 22 would repeal those sections of the Act that require special parliamentary procedure where land belonging to a local authority or land acquired by a statutory undertaker is compulsorily acquired. Repeal of these provisions would bring the Planning Act into line with other, similar consent regimes, such as the Transport and Works Act 1992.
The Planning Act 2008 already provides extensive opportunities for representations from local people, local authorities and statutory undertakers to be made about the compulsory acquisition of land. There are also comprehensive requirements for pre-application consultation. Examination of an application provides opportunities for parties to make representations as to whether the proposed acquisition of the land should proceed. These include hearings as part of a public examination. Persons whose land is acquired can require such a hearing to take place and, importantly, relevant representations will continue to be taken into account in the recommendations made to the Secretary of State and will inform his subsequent decision. I stress that the requirement, under Section 122 of the Planning Act, for there to be a compelling case in the public interest for the land to be compulsorily acquired, will also remain unchanged. This will be a crucial factor for the Secretary of State when reaching a decision on whether to authorise the compulsory acquisition.
The noble Lord, Lord Greenway, very clearly set out the effect of his amendment. It would mean that transport undertakings would still see the compulsory acquisition of land acquired by them for the purposes of their undertaking being subject to SPP, but the land of other statutory undertakers and local authorities would not be. I understand the noble Lord’s concern about the removal of statutory undertakers’ land from those types of land which can give rise to SPP. It would, however, be wrong to think that such land can be compulsorily acquired without any opportunity for statutory undertakers to present their case against the acquisition before the decision is made. There are ample opportunities to do so. I therefore hope that noble Lords will understand why the Government consider there to be no need for an additional level of scrutiny for such land through special parliamentary procedure.
I move on to the other provisions in Clause 22 and will address the amendments tabled by the noble Lord, Lord Berkeley, and supported by my noble friend Lord Jenkin. These would amend the definition of an open space used for the purposes of considering whether such land would trigger special parliamentary procedure under the Planning Act. Clause 22 also amends the provisions in the Planning Act 2008 which cover the compulsory acquisition of commons, open space land and what are known as “fuel and field garden allotments” or the compulsory acquisition of rights over those types of land. The Government have considered carefully the extent to which SPP should apply when open space is compulsorily acquired or a right over such land is acquired in respect of nationally significant infrastructure projects. At present, the main situation where the Secretary of State can decide that SPP should not apply is when replacement land is given in exchange for the land subject to the compulsory acquisition. However, the Government consider that there could be a very limited number of cases where such exchange land may not be available or, if it were available, would be available only at a prohibitive cost.
Clause 22 therefore proposes extending the circumstances, under the Planning Act 2008, in which the Secretary of State can decide that the compulsory acquisition of open space or rights over such land should not trigger SPP. The proposals would allow the Secretary of State to decide that SPP should not apply where open space is compulsorily acquired and suitable replacement land for the land being acquired is not available or available only at prohibitive cost. This would, however, apply only where it is demonstrated to be strongly in the public interest for the development to start sooner than is likely to be the case if it were subject to SPP. We expect that, in most cases, developers will continue to provide suitable replacement land to avoid the need for SPP. However, there may be limited occasions, such as in heavily urbanised areas, when such land is not available. Given the importance of infrastructure to growth, there may be cases where development should be able to proceed promptly without going through SPP.
I thank the noble Lord, Lord Berkeley, for his general support for government proposals in the Bill on infrastructure. Turning to his amendment, the current definition of open space, used in the Planning Act is,
“any land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground”.
The noble Lord’s amendment would have the effect of amending the definition of open space for the purposes of triggering SPP under the Planning Act. Such a distinction does not reflect the rationale for open space being given special status in terms of compulsory acquisition. The need for additional scrutiny through SPP in cases involving open space derives from the public use of such land and the wider public interest in its continued availability for such use. Whether such land is designated for such purposes is immaterial in this context.
Lord Greaves
My Lords, I have just two points. First, the Minister said that it was important in the national interest to get big infrastructure projects going. Clause 24, which we will discuss shortly, relates to business and commercial developments that may or may not be thought to be infrastructure, but which many people will think are not. This new provision for fewer special parliamentary procedures will apply to that clause also.
Secondly, when we were discussing Clause 1 some time ago, the Government were adamant that it was necessary to have such provisions in the legislation in order to make sure that planning authorities that they thought were not performing got up to speed and organised themselves. The Government said that they hoped that no planning authorities would ever come under these provisions, but they were nevertheless a necessary back-stop. However, if there is to be no back-stop of special parliamentary procedure in these cases, is it not the case that the incentive for developers to provide alternative land or open space when necessary will be less because they can simply apply to the Secretary of State, who can say, “No, you do not need to do so”? They can then do absolutely nothing about it. Surely the fact that there have been so few examples of special parliamentary procedure is because applicants for development consent have done their business and found appropriate alternative open space to replace any that they are using. The current system is working and there is a danger that there will be far less of this happening, simply because the back-stop SPP procedure will not exist.
Lord Greenway
My Lords, there has been a fairly wide-ranging debate on this group of amendments, covering ports, canals, plots of land and so on. As far as I am concerned, I am grateful for what the Minister said about ports—in particular, for his latter remark concerning the letter from the Shipping Minister in another place, which I very much look forward to seeing. I will take on board what the noble Lord said and ruminate on whether to take this matter any further but, in the mean time, I am happy to beg leave to withdraw the amendment.
Baroness Hanham
“(3A) In a case to which this section applies and to which section 131 or 132 also applies, special parliamentary procedure—
(a) may be required by subsection (2) whether or not also required by section 131(3) or 132(2), and(b) may be required by section 131(3) or 132(2) whether or not also required by subsection (2).””
Lord Faulkner of Worcester
My Lords, I shall speak also to Amendments 77ZE and 77ZF. I have also given notice that I wish to oppose the Question that Clause 23 should stand part of the Bill. This is, in a sense, a continuation of our previous debate on Clause 22. Perhaps I may first respond to the Minister’s generous offer to convene a meeting with the Canal & River Trust. I am delighted to accept, as, I am sure, the trust will be; I look forward to the meeting.
I shall not repeat the arguments that I put forward regarding Clause 22 but seek simply to state that what the Government propose in Clause 23 goes further than what the two chairmen—the Chairman of Ways and Means in another place and our Chairman of Committees—recommended in their special report on the Rookery South order, when they considered the promoters’ challenges to the locus standi of the petitioners against the order. In paragraph 28 of their report, the two chairmen concluded:
“We urge the Government to amend either the Statutory Orders (Special Procedure) Act 1945 or the Planning Act 2008—or both—so as to ensure a consistent statutory framework for the consideration of future Development Consent Orders subject to Special Parliamentary Procedure. In drawing up revised provisions, the Government will need to consult with the relevant authorities of the two Houses. In the meantime, no further orders of this type should be laid before Parliament until the statutory framework has been amended to resolve these inconsistencies”.
In its proceedings on Rookery South, the Joint Committee decided at the outset that it wished to hear evidence on the whole of each of the petitioners’ cases. The amendments proposed by Clause 23 would have prevented the Joint Committee from doing so. It is likely in future cases, once Clause 23 is in force, that any attempt to petition on issues that are not related to the acquisition of the special land are likely to be challenged at the preliminary stage before the two chairmen.
Despite that, it remains to be seen whether petitioners will be able to raise issues that are not directly related to the acquisition of the land. It has always been a central tenet of compulsory acquisition law that the applicant for the powers must demonstrate that there is a compelling case in the public interest for the land to be acquired compulsorily—a point made with great force by the noble Lord, Lord Greaves, in the previous debate. Those words are embodied in Section 122(3) of the Planning Act. In order for a petitioner to demonstrate that there is no compelling case in the public interest, he should be able to bring evidence to bear about the benefits of the proposals as a whole, compared with the injury that he will suffer when losing his land.
As I said, Clause 23 goes further than the request made by the two chairmen, who limited their remarks to the 2008 Act. No issue has been raised as regards the compatibility between the Acquisition of Land Act 1981—and other statutes that authorise compulsory acquisition—and the 1945 Act; yet the clause seeks to limit the scope of SPP in the 1981 Act and the other examples in the same way as it does for 2008 Act cases. I should be grateful if the Minister can explain why the Government have decided that this should be the case. My amendments would have the effect of limiting the changes proposed to the SPP procedure so that they apply only to development consent orders under the Planning Act 2008. I beg to move.
Lord Greaves
My Lords, I wish to put on record that I support the amendments of the noble Lord, Lord Faulkner.
Lord Ahmad of Wimbledon
My Lords, I am grateful to the noble Lord, Lord Faulkner, for explaining the reasoning behind his amendments. I have also noted his opposition to the Question that Clause 23 should stand part of the Bill. In my response, it might be helpful if I set out the reasons behind the approach that the Government have taken, how Clause 23 delivers that and take up some of the noble Lord’s questions.
Clause 23 amends the Statutory Orders (Special Procedure) Act 1945. That Act sets out the procedural requirements for any order that is subject to special parliamentary procedure. Clause 23 ensures that where a development consent order under the Planning Act 2008 is subject to SPP, consideration will be limited to the order only in so far as it authorises the compulsory acquisition of special land. This is to reflect the wording and intention of the 2008 Act.
The clause also makes similar provision for certain other compulsory acquisition powers that require an order to be subject to SPP. It applies to any order involving the compulsory acquisition of specially protected land as a result of Sections 17, 18 and 19 of the Acquisition of Land Act 1981. It also applies to the Harbours Act 1964, certain provisions of the New Towns Act 1981 and the Transport and Works Act 1992. The clause will ensure that SPP applies in the way originally intended, where legislation makes clear that an order is to be subject to this procedure to a limited extent.
The need for Clause 23 reflects an inconsistency between the 1945 Act and certain more recent legislation. This was drawn to the Government’s attention by the Chairman of Committees and the Chairman of Ways and Means in their initial joint report on the Rookery South order which, as the noble Lord Faulkner knows well, has been subject to SPP. The Planning Act 2008 provides that a development consent order which authorises the acquisition of special land is to be subject to SPP to the extent that the order authorises acquisition of such land. Consideration of that order should therefore be limited to that part of the consent order authorising the compulsory acquisition of special land.
Lord Faulkner of Worcester
My Lords, I can start with the easy bit, which is to thank the noble Lord, Lord Greaves, for his support. What the Minister has said is incredibly complicated. I will need to read it with great care and, I suspect, take advice from people who are much cleverer in this area than I am. I am grateful for the trouble that he has gone to in explaining the Government’s position and, indeed, the whole approach of the Government on the SPP in Clauses 22 and 23. I think that I am in a minority in your Lordships’ House about the need to preserve the significant elements of the SPP operation. However, for the moment, I am happy to withdraw the amendment if the Committee agrees.
Baroness Hanham
Lord Greaves
“Appropriation or disposal of open space land by local authorities
(1) The Local Government Act 1972 is amended as follows.
(2) For section 122(2)(b), substitute—
“(b) the council has complied with section 127A.”(3) In section 122(2A), for the words after “appropriating the land” substitute “the council has complied with section 127A”.
(4) In section 123(2A), for the words after “disposing of the land” substitute “the council has complied with section 127A”.
(5) In section 126(4)(b), for the words “appropriating the land” substitute “the council has complied with section 127A”.
(6) In section 126(4A), for the words after “appropriating the land” substitute “the council has complied with section 127A”.
(7) After section 127 insert—
“127A Conditions attaching to appropriation or disposal of certain lands
(1) When a local authority proposes to appropriate or dispose of land under this section—
(a) the authority shall give notice of its intention—(i) by advertisement in two consecutive weeks in at least one newspaper circulating in the area in which the land is situated,(ii) on the authority’s website,(iii) by notices in prominent positions on the land,(iv) by serving a copy of the notice on every other local authority and planning authority whose area includes or is adjacent to that area, and(v) by serving a copy of the notice on every voluntary body known to have a concern for the maintenance of the land or adjacent land for the benefit of the public, nature conservation or historic interest;(b) the notice shall indicate the location and boundaries of the land and of any land to be given in exchange and where further information and plans may be inspected or copies obtained;(c) subject to subsection (2), unless the land to be appropriated or disposed of does not exceed 250 square yards (209 square metres) land must be provided in exchange that is not less in area and is equally advantageous to the public, to be vested in the local authority subject to the like rights, trusts and incidents that attach to the land to be appropriated or disposed of;(d) the notice shall provide for a period of not less than 28 days from the date of publication of its first advertisement and display during which objections or representations can be made to the authority; and(e) if the authority decides to amend its proposal, this shall be subject to further notice in accordance with paragraphs (a) to (d).(2) If the local authority considers that land in exchange for that to be appropriated or disposed of under this section is wholly or partly unnecessary, the notice must state this and give the reasons for the statement.
(3) If a proposal under this section remains subject to objection and is not withdrawn after the local authority has considered the representations received, it shall be referred to the Secretary of State for decision.””
Lord Greaves
My Lords, Amendment 77ZH introduces a new clause to provide a new procedure for the appropriation and disposal of open space land by local authorities. This does not apply to common land, for which there is already a different and better system.
The proposed new clause is a slightly modified version of the amendment I moved during the Committee stage of the Localism Bill on 28 June 2011. It amends the present Local Government Act 1972 procedure for the appropriation or disposal of non-common land open space, which dates from amendments made in 1980 to simplify the previous procedure. A local authority has merely to publish its intention in a local newspaper in two consecutive weeks and invite objections for its consideration. This can be done in private—for example, by a cabinet member who is under no obligation to give reasons for, or even publish, the decision. There is no right of appeal by the objectors. The land can then be used, sold or let for other uses free of all existing open space trusts and without regard to the fact that a park or recreation ground may have been gifted to or acquired cheaply—often, perhaps, with major contributions from public appeals—by the council’s predecessor on trust for the perpetual enjoyment of the public.
The trust may have been imposed for a particular open space in a local Act of Parliament which authorised its acquisition, but most of these open spaces are now held under the general trust in Section 10 of the Open Spaces Act 1906. Others were acquired or appropriated under Acts which do not specify a trust. However, high judicial authority has decided that all are held on trust for the benefit of the public and are not simply council property easily available for any of its services or to sell off.
The leading judgment is known as the Brockwell Park case, which noble Lords will remember discussing during proceedings on the Localism Bill. The House of Lords decided Lambeth Overseers v London County Council in 1897. This was summarised by the Lord Chancellor, Lord Halsbury, as follows:
“One sentence was sufficient to dispose of the case—namely, that the public, for whom the County Council were merely custodians or trustees, were not rateable occupiers, and that there was no beneficial occupation of the property whatever”.
In the fuller judgment, Lord Herschell drew a parallel with the then recent Court of Appeal decision in relation to Putney Bridge. In other words, what is applicable to a highway is equally applicable to a park. However, the procedure for extinguishing any type of highway, whether motorway or public footpath, is by no means simple.
In a further judgement, slightly more recently in October 2012, the Court of Appeal held in Barkas v North Yorkshire County Council that land laid out and maintained as a recreation ground under Housing Act powers was,
“appropriated for the purpose of public recreation”,
and therefore local inhabitants indulge in lawful sports and pastimes by right and not as of right, as would be necessary to prove for the creation of a town or village green. This decision confirms that, if land acquired under other Acts for regeneration or major development is allocated for recreational purposes, it becomes equated with land acquired specifically for those purposes.
The present wording in the Local Government Act positively encourages breaking a trust imposed by the Open Spaces Act, never mind one implied by other Acts. If the land had been owned privately subject to a similar trust, it would be deemed to be held for charitable purposes and its use could not be so easily changed. It is surely wrong for a public authority to be encouraged in this manner, often in contradiction to its own planning policies. The proposed new clause is intended to rectify the situation.
During the Committee stage of the Localism Bill, my noble friend Lady Hanham was rather anxious about the provision for land in exchange. However, this was a standard requirement before the Local Government Act was amended in 1980 and remains where Section 19 of the Acquisition of Land Act 1981 applies. This is when compulsory purchase powers are used and in certain other cases such as for the appropriation of commons under the Town and Country Planning Act 1990. It is an important disincentive to choosing open space as a cheap and easy solution for obtaining other development requirements. Where major regeneration is proposed, it is accepted that compulsory powers should be used to obtain the full site required. This may include new or enlarged open space under the CPO.
This is a complicated matter. I am grateful to the Open Spaces Society for its assistance in proposing this amendment and I look forward to the Minister’s reply. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend Lord Greaves for explaining his proposed new clause. He is of course greatly concerned with the protection of open spaces such as commons and what are known as “fuel and field garden allotments”. I am sure that that sentiment resonates with many in the Committee. My noble friend also explained that when a local authority, including a parish or town council, wishes to appropriate this type of land for another purpose or to dispose of it, notification procedures should be beefed up and exchange land should be provided. His main point is that the present arrangements are inadequate and that more protection is required to prevent open space and other similar land from being lost to development.
The system that my noble friend seeks to amend concerns two types of land and two types of transaction. The types of land are commons, including town and village greens, and open space. The transactions are appropriation and disposal. The Committee will not be surprised to hear that the legislation that governs all of this is not confined to the Local Government Act 1972, which this amendment seeks to change. Significant elements are contained within the Town and Country Planning Act 1990. For commons, I think that my noble friend already has most of what he wants. Appropriation of common land larger than 250 square yards requires an order to be made by the local authority and then confirmed by the Secretary of State. Exchange land must also be provided, on pain of special parliamentary procedure—which we have just debated extensively—in the same way as for compulsory purchase orders.
In many cases, disposals also need the consent of the Secretary of State. For open space, the publicity and related arrangements for the consideration of objections are the same for both appropriation and disposal. If local authorities fail to consider objections properly, they run the risk that their decision will be challenged in the courts. Although protection for open space may appear lacking in legislation, this is not the whole story. Open space has had strong protection in the National Planning Policy Framework. Paragraph 74 states that existing open space should not be built on unless an assessment has been made to show that the land is clearly surplus and, moreover, that the loss should be replaced by the equivalent or better provision. It is therefore the Government’s view that the protection of open spaces should be through the planning system and not front-loaded on to the procedures for appropriating or disposing of land. I hope that my noble friend will be minded to withdraw his amendment.
Lord Greaves
My Lords, I might be persuaded to withdraw my amendment when I have said one or two more things. One difficulty we are having in this Committee is that the Government are trying to deal with issues such as open spaces just through the planning system when in practice, as the Minister said, there are different laws that relate to open space, commons and so on. This is precisely the problem that we had when we talked about the registration of town and village greens: trying to align two clearly separate systems. You cannot simply say that the planning system is the way to deal with this.
I am grateful to the Minister for reminding us that the National Planning Policy Framework strongly proposes that, wherever possible, open spaces should not be built on, but that is not the purpose of this amendment. It is about buying and selling open space, not about the planning regime that refers to it. However, I am grateful for what the Minister said. I will carefully look at his response and again take advice. For the moment, I beg leave to withdraw the amendment.
Lord Adonis
Lord Adonis
My Lords, I will speak to the six amendments in this group standing in my name. The question before us is what projects should be considered nationally significant and therefore subject to the Planning Act 2008, as amended in this Bill, and therefore subject to a national rather than a local planning consent regime. The 2008 Act permits this change to projects of national significance in respect of infrastructure. Clause 24 extends this to business and commercial schemes.
The thrust of my amendments is that Parliament should not give the Secretary of State such wide-ranging powers without defining their extent carefully in the Bill. In the Bill, discretion as to what constitutes national significance is left almost entirely to the Secretary of State. The only substantial limitation is that regulations may not encompass projects that include residential dwellings. My amendments are all probing and I look forward to the Minister’s response to the substantial points underlying each.
Amendment 77ZJ would exclude from the new arrangements sites of special environmental or historic importance. Amendment 77AB would exclude developments that involve surface mineral extraction or quarrying. Such applications arouse especially strong local feeling, and to circumvent local planning entirely for such schemes is bound to give rise to acute concern. Amendments 77AA, 77AC and 77BA would remove the Secretary of State’s discretion to define what is meant by business or commercial and to permit the bypassing of a local authority, because Amendment 77ZA and other amendments in my name specify the definition in the Bill.
Amendment 77ZA seeks to define business and commercial projects of national significance, rather than leaving it entirely to the discretion of the Secretary of State. Under my amendments, these projects could be subject to the national process only if they are in specific areas—largely those set out in annexe A of the Government’s consultation on what should constitute nationally significant infrastructure projects in the business and commercial sphere.
That leads me to the Government’s consultation on those projects. The Government will no doubt respond to my amendment by saying that they have consulted both on categories of development and on thresholds within those categories in terms of the number of square metres that might apply in determining whether a commercial or business development application is of national significance. Last week, the Government published their analysis of the responses. However, they have not yet said how they intend to proceed. A key issue for us in this debate is to know what the Government’s response will be to the consultation that they carried out on types of development and thresholds. I will welcome the Minister’s response to the question of what the Government intend to do in respect of the types of development and thresholds set out in annexe A of the consultation. If the Minister is not able to give me a response now, I would be very grateful if he would write to noble Lords before Report. I beg to move.
Lord Berkeley
My Lords, I will speak to Amendment 78 in this group, which is in my name and that of the noble Lord, Lord Jenkin of Roding. It is yet another attempt to change the definition of what type of project could be included in the extent of the Planning Act. It relates to commercial and business developments that require consent under the national significant infrastructure regime.
The issue that I would like to raise is that of mixed-use schemes that have some housing or retail element. They should be able to take advantage of the regime for nationally significant infrastructure projects. Any retail element is excluded from the proposed list of development types set out in annexe A of the recent CLG consultation on extending the Planning Act regime. I imagine that this could always be reversed if the Government were minded to do so, but the Bill prevents any housing element being included in regulations.
I believe there is a large number of potentially significant business and commercial developments that will have some retail and certainly some housing element in them, even if it is only a caretaker. In theory, if there is just one property in a development, it cannot qualify for going down the nationally significant route. It is important for such developments to be able to include some housing element and to go for the nationally significant approach. An awful lot of time and cost could be saved if this were possible. The original prohibition of housing was well intentioned, and clearly big housing projects are not what the nationally significant definition is for, but it is a problem because if there were just one or two houses in a big development, it would be excluded.
That is what this probing amendment seeks to achieve. I hope that the Minister is willing to look at this again. Perhaps we can discuss whether there is some better wording that could be applied on Report.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, this group of amendments seeks to set out in the Bill the types of development and development sites which can and cannot be considered nationally significant under Clause 24. A number of specific amendments have been moved, and I will attempt to address the issues in each.
As noble Lords are aware, the purpose of Clause 24 is to extend the existing powers within the Planning Act to direct sub-threshold forms of energy, waste, transport, water and waste-water schemes into the Planning Act regime, to new forms of business and commercial development. Our intention is not to bring new development into the regime automatically but to provide an alternative planning route where proposed development is of national significance. We have recently consulted on the types of business and commercial developments, and we are now in the process of considering the responses to that consultation.
Amendments 77ZJ and 77AB would rule out proposed schemes using the regime if they were on sites of special environmental or historic importance or if they involved minerals extraction, or quarrying. These amendments would apply equally to the existing types of infrastructure, such as energy, transport and water, as well as to new forms of business and commercial schemes.
An example of the effect of Amendment 77ZJ is that a sub-threshold energy scheme of national significance that might otherwise be considered via the Planning Act route could not be the subject of a direction if part of the site had an environmental designation. We do not consider this to be a sensible approach. If a scheme is of national significance and is directed into the regime, the Secretary of State will have to consider all the issues that are important and relevant, including any impacts on the historic or natural environment, before reaching his decision. To exclude large tracts of land without consideration of the planning merits or otherwise of the proposed development could discourage developers bringing forward much needed infrastructure or economic developments.
I will explain our thinking on minerals a little bit more. As we recognised in the National Planning Policy Framework, minerals are essential to support sustainable economic growth and quality of life. Without minerals, our building industry would grind to a halt. It is essential that there is a sufficient supply of material to provide the infrastructure, buildings, energy and goods that the country needs. We therefore consider that some minerals schemes could be capable of being of national significance, but again we wish to consider the consultation responses before we reach final conclusions about the forms of development.
Amendments 78ZA, 77AA, 77AC and 77BA seek to place the types of commercial and business development in the Bill. I am pleased that the noble Lord, Lord Adonis, broadly agrees with the types of development on which the Government consulted recently in connection with the proposals to extend the infrastructure planning regime to business and commercial projects. Nevertheless, we consider that this amendment is premature. We believe that a broad range of types of development of national significance could benefit from using the infrastructure planning regime and that further public and parliamentary scrutiny on how this new power should be used is appropriate. That is why we are now considering the responses to this consultation and why the accompanying regulations will be subject to the affirmative procedure.
Amendment 78, in the names of the noble Lord, Lord Berkeley, and my noble friend Lord Jenkin, also seeks to remove the exclusion in the Bill on dwellings from being prescribed in regulations. I listened carefully to the remarks made on this point by the noble Lord, Lord Berkeley. The Government have a clear position that planning for housing should remain a core responsibility of local councils. As the Government set out in the National Planning Policy Framework, local councils should be planning to deliver a wide choice of high-quality homes and wider opportunities for home ownership and creating sustainable, inclusive and mixed communities.
Many of the responses to the consultation exercise that we carried out recently supported the exclusion of housing from the infrastructure planning regime. Again, we are considering these responses, but we believe that housing should be and remain a core responsibility of local authorities.
Lord Jenkin of Roding
I did not intervene in the debate, because the noble Lord, Lord Berkeley, made the point. When will the Government publish the full response to the consultation? It has been represented to me that there were quite a lot of objections to the exclusion of housing. Of course one agrees that housing cannot be a main purpose of an application that goes directly to the Planning Inspectorate, but there are a lot of mixed developments now that usefully and importantly will include a housing aspect. It ought to be possible for an applicant to use the new procedure to have his application referred directly to the inspectorate.
Baroness Hanham
My Lords, I think that I made clear in my remarks that we are considering the results of the consultation that has just taken place. At present, the intention is to continue to have housing dealt with by local authorities. We are analysing the responses at the moment. While we already have a summary of the issues, we will publish a full response in due course. The summary of the issues may be helpful to us for the next stage.
I hope that noble Lords will agree the Government have set out a sensible approach that will enable new forms of nationally significant development to benefit from the Planning Act regime, that the noble Lord feels able to withdraw his amendment, and that other noble Lords do not press the amendments in their names, mainly probing as I understand them to be.
Lord Greaves
My Lords, I did not quite catch what the Minister said. Will a published summary of the issues encompass a summary of the Government’s views and their response to the consultation, and did she say we would perhaps have that before Report? Some of us did not put down detailed amendments on Clause 24 because we were waiting for some clearer indication of exactly what it means in detail. If we do not get at least a summary or broad overview of the Government’s views on this before Report, we might be tempted to take up more time on Report by putting new amendments down than the Minister would perhaps prefer.
The other questions I wanted to ask were about minerals. Will Clause 24 make a difference, for example, to the way in which planning permission or development consent is given for things such as quarries in national parks—the quarrying of limestone in the Peak District, for example—which are highly controversial and at the moment are done by the local planning authority, the national park? Are decisions like that going to be moved to the Secretary of State and the infrastructure planning regime?
The other question was specifically about the development of fracking for unconventional gas, which is going ahead slowly in Lancashire. Lots of different consents have to be obtained for that, notably from the Department of Energy and Climate Change, which takes place at a national level. However, the development that has taken place so far and the scale of it means that the planning permission, as I understand it, is the responsibility of the county council; in the case of the fracking that is taking place, or is about to resume, at the moment on an experimental basis in Lancashire, that will be Lancashire County Council.
It seems to me that with something like fracking, there are two crucial sets of decisions to be made. One is the question of whether the drilling, the fracking and the extraction of the gas should be allowed to take place. Then there are all the environmental issues related to that on the surface, such as the screening of developments and whether pipes from the different wellheads, which are quite close to each other, should be underground, overground or whatever, which is a matter of the local landscape and local planning. I would be quite appalled if the decisions over that kind of local planning were taken away from the local planning authority—in this case Lancashire County Council, as it is a minerals development—and put in the hands of a national authority, which I really do not think would have the local understanding or the ability to do the job properly. There are two separate issues there. Would it be possible for them to be separated, because they are dealing with quite different aspects, and for the decisions about whether the drilling and fracking goes ahead—and I should say that it seems to me that this is development which ought, at least on a pilot basis, to proceed as far as a viable commercial scheme—to be taken nationally through the infrastructure planning process but for the local details of the environmental protection and amelioration connected with it, and how that works on the surface, to be left with the local planning authority?
Baroness Hanham
My Lords, I thank noble Lords for those questions. The noble Lord, Lord Jenkin, asked about the summary of responses. We have that summary of responses, and I think it has already gone to the noble Lord, Lord Adonis; if not, it is on its way. We can make sure that Members of the Committee receive a copy and will put it in the Library, so that it will be available for consideration at the next stage.
We are thinking about the responses to the consultation and whether fracking should be included in the infrastructure planning regime or, as the noble Lord said, stay with the local planning authority. At the moment, a request will have to be made to the Secretary of State to use the major planning infrastructure regime, and the Secretary of State will be interested in it only if the whole proposal was going to raise issues of national rather than local significance. Fracking is a developing area and things may change but, as I understand it, that is the situation at the moment. I hope with those explanations that the noble Lord may be willing to withdraw his amendment and that noble Lords will not press the others when the time comes.
Lord Greaves
I will perhaps take up the question of fracking with the Minister outside the Chamber. However, the important thing before Report is not to get the summary of responses—although that would obviously be useful—but to get the Government’s view of the responses and their view of the way forward.
Baroness Hanham
I understood that that was what the noble Lord, Lord Greaves, was getting at. I have committed to giving him the summary of the responses and have been told that the Government’s response will come in due course. That does not sound to me as if it will come before Report, but if it does, I will let noble Lords know that it is coming.
Lord Adonis
My Lords, the noble Lord, Lord Greaves, raises a point of some substance. I have read the summary of responses which the noble Baroness very kindly sent to me a short while ago. It is supremely uninformative. Question 3 asks:
“Do you agree with our assessment of the factors that the Secretary of State would need to take into account when considering whether a project is nationally significant?”.
The summary of responses says:
“A number of respondents thought the assessment factors were broadly right whilst others commented that they were not detailed enough or were not supported at all”.
I could go through them, but it is a profound exercise in waffle and does not really help us very much. To be fair to the Government, in annexe A of their consultation paper, they set out both specific types of development and very specific criteria in terms of the square metreage for the thresholds that would need to be met before these projects are deemed to be of national significance. That is crucial in informing our view as to whether we think this clause should proceed without requiring further limitation, although I think there is quite a strong preference for seeking to put provisions in the Bill. It would be extremely helpful if the noble Baroness were able, before Report, to indicate whether the Government stick by their proposals in annexe A or are minded to amend them in any form. If that does not come before Report, we will of course have no chance to assess the Government’s intended course of action before this Bill becomes law.
Baroness Hanham
My instinct would say that if it is there, then the Government are going to introduce it and are probably not going to amend it. If there is any change to that, I will let the noble Lord and the Committee know.
Lord Adonis
“( ) The Secretary of State must publish his reasons for giving a direction under this section.”
Lord Adonis
My Lords, the amendment standing in my name in this group is very simple. It would require the Secretary of State to publish the reason that a planning decision is to be made centrally, including why the application is regarded as nationally significant. This is a simple case of transparency and accountability. If the Secretary of State is to be granted the wide powers contained in this Bill, it is only right that their use should be open to scrutiny case by case. If the local authority is to have its planning role set aside, it seems only fair to tell it why. Just as planning inspectors have to give reasons for their decisions, it seems entirely consistent and transparent that the Secretary of State should have to give reasons for deeming a development proposal to be of national significance. I beg to move.
Baroness Young of Old Scone
My Lords, I rise to speak to Amendments 77A, 77B and 78A, and to the question of whether Clause 24 should stand part of the Bill, which are down in the Marshalled List in my name and that of the noble Lord, Lord Greaves. I am afraid mine will not be quite as swift and simple as the amendment in the name of the noble Lord, Lord Adonis, because I want to give a pretty full exposition of why Clause 24 should be deleted, or at least amended in a way that would remove the extension of the major infrastructure regime to business and commercial projects.
I am afraid that my subtext will be the same as for previous amendments I have put forward: this is another unnecessary clause in an unnecessary Bill. We still lack evidence of substantial numbers of large-scale projects being delayed under the current system. Using DCLG’s own statistics, local authorities are already determining and approving 87% of relevant, large-scale, major applications that might fall within the categories of Clause 24 within one year, which is the same period as the fast-track timetable that DCLG heralded when the Bill was published. Once again, we urge the Minister to present to the House the evidence for substantial delays or other reasons that would justify Clause 24.
The Minister Nick Boles, when briefing Peers, very kindly indicated that there would be only 10 to 20 applications to the Secretary of State each year under Clause 24. Therefore, one could take the view that it is hardly worth legislating for, especially as this is a centralising proposal that flies in the face of the Government’s commitment to localism. The Secretary of State has call-in powers if necessary. Indeed, if local authorities struggle with some of these larger-scale proposals, the Planning Advisory Service is available to support them. What additional benefits does the Minister believe are provided by the provisions in the clause beyond those already available?
Clause 24 is all the more unsatisfactory because of the point already raised by the noble Lords, Lord Adnois and Lord Greaves, about the consultation on how business and commercial developments will be defined in terms of type and scale. It has only just been completed. I, too, have read the summary of responses and, as the noble Lord, Lord Adonis, said, it was not hugely illuminating. Indeed, all the types of development that the consultation proposed would have major local impacts and need to be dealt with by local government. I add my voice to those who already urge the Minister that we see not only the summary of responses, but the Government’s reply and their intentions in terms of the clause, before Report. I ask the Minister to commit to producing the Government response before Report—otherwise we are being asked to buy a pig in a poke.
Of particular concern is that the proposals under Clause 24 also include the extractive industries: deep-mined coal, large onshore gas, oil and other mining and quarrying above certain thresholds. They would be brought within the major infrastructure planning system without robust guarantees that the considerable environmental impacts of these developments can be addressed through the planning system. They are usually dealt with through specific local, national park or county-level policies and procedures governing mineral planning issues. It is also unsatisfactory to propose that deep-mined coal be included in the proposed fast-track process because this seems at odds with the presumption against new coal that is included in the National Planning Policy Framework. It does not say much for commitment to addressing climate change if we regard these types of energy generation as sufficiently important to bypass the normal planning system.
One could say that there might be safeguards for decisions made under the national infrastructure procedure. National policy statements are the main basis on which nationally significant infrastructure projects on energy, transport, water or waste are decided. These have major advantages in that they are scrutinised by Parliament before being agreed. However, we do not yet know as a result of the consultation process whether Ministers will change their minds about formulating national policy statements for business or commercial schemes. The consultation was on the basis that there would be no national policy statements for these schemes, but I see from the consultation response summary that there has been some pressure to develop further national policy statements in these areas. Can the Minister give the House some clarification on the Government’s position on national policy statements for business and commercial schemes, and could we have that clarification before Report?
Lord Greaves
My Lords, I was going to congratulate the noble Baroness, Lady Young, on her brilliant speech that meant that I did not have to say anything at all, really—until she started challenging me, as her supporter on this amendment, in her last few remarks. I do not think I did capitulate on Clause 1; I think it was on Clause 5 that I came to the view that it was not going to make any difference to anybody in practice. I will review that, but I certainly still feel fairly resolute about Clause 1, which I think is fundamentally wrong in principle no matter how many councils it affects.
As far as shale gas is concerned, my view is there should be a limited-scale commercial pilot, which inevitably would be in the west Lancashire plain, before anything else happens. I think that will take quite a few years to get under way. I certainly would not be in favour of the large-scale development of shale gas in this country until that pilot had taken place and we could assess whether or not some of the worst fears are true. I suspect that some of the worst fears are not true but equally, we must assess the environmental and landscape implications, which are perhaps not quite as important as the more fundamental questions about the effects of the drilling, but are nevertheless very important. That is my view on shale gas. As I said in the previous group, I am in favour of as much of that decision-making as possible remaining at a local, Lancashire level, even though the basic consents for the actual operation would be taken at national level by the Department of Energy and Climate Change, and perhaps others.
I have one or two points to add to what the noble Baroness said. First, if there are 20 or 25 a year, the Government ought to come clean and tell us which commercial and business developments they believe have been stopped or significantly delayed in the past year or two years—or whatever period they choose—thus making this proposal necessary. Again, this would provide us with some hard evidence on the ground of ways in which the present system is preventing commercial and business developments taking place.
Of course, the Government would have to say which of those developments that have been delayed or, particularly, stopped they think ought to go ahead, and then people can judge this by outcomes. We can talk about processes until we are blue in the face but what most people are interested in are the actual outcomes of the planning process. Therefore, my question for the Government is: if this proposed new system had been in place for the past two years, what would have been different? If the answer is, “Not very much”, we are wasting our time here talking about it, quite frankly.
To underline what the noble Baroness, Lady Young, said about the underlying planning policies that will guide the Secretary of State in his decisions, the whole infrastructure planning process, as set out in the 2008 Act, originally through the Infrastructure Planning Commission, was based on a series of national policy statements, which were government policy and were originally intended to guide the Infrastructure Planning Commission in its decisions. Just as local plans are there to guide local planning authorities in their decisions, the national policy statements were there, in different policy areas, to guide the Infrastructure Planning Commission in its work.
Now that the infrastructure planning process is being undertaken by the Secretary of State, the system has a fundamental fault at the heart of it, and I am increasingly of the view that the Government have got themselves into a bit of a mess by giving the powers of the Infrastructure Planning Commission to the Secretary of State. It is the Secretary of State who will make the policies and then make the development control decisions—presumably on the basis of the policies he has determined. There is something fundamentally wrong with that system, not least in that a decision is produced and there is no appeal process other than judicial review.
If there are not to be any of these national policy statements in relation to commercial and business development, where is the underlying planning policy coming from? Is it made up on the hoof by the Secretary of State or does it genuinely come from local plans? If it genuinely comes from local plans, why do we need to nationalise the system? As the noble Baroness eloquently explained, it is clearly not in the National Planning Policy Framework. The framework is very clearly set out as planning guidance from the Secretary of State, as policy, to local planning authorities making the decisions. That is its legal basis. That is what it is, and it replaces what the Government will say was about three feet of planning policy guidance that came in the old PPSs and PPGs. That has all gone; we have now got the National Planning Policy Framework. It is not an adequate basis for making decisions on big, nationally significant projects, whether they are on infrastructure or whether they are these new business and commercial ones that have been made by the Secretary of State.
The Government are in a bit of a mess over this. It is not clear on what basis the Secretary of State is going to make his decisions, which again is an invitation to more judicial review of decisions that are made.
Lord Jenkin of Roding
I am tempted to follow the noble Lord, Lord Greaves, in his interesting excursion into these matters. The Government’s decision—which has of course now been accepted by Parliament—is that the NSIPs should not go to an IPA which is then able to make the decisions itself, because the IPA is not accountable to anybody. To have the IPA—or, as it is now, the inspectorate—simply making recommendations and the Secretary of State then making the decisions seems to me constitutionally very much better. I am not going to take this further.
When we were talking earlier about national policy statements, I stressed to my noble friend Lord Ahmad that I think the Government will quite soon have to think of a national policy statement for shale oil—for unconventional oil—because questions are now being raised in the House. They are being raised widely in the relevant community outside.
I do not know quite which world the noble Lord, Lord Greaves, lives in. I have been the recipient of a number of complaints about the difficulty firms have in making developments which seem to me to be absolutely essential, and indeed are so under the national policy. There was an incident in which I sought help for an electricity substation, for which it was absolutely necessary to bring ashore the product—the electricity— from what was intended to be a large offshore wind farm. I am not sure whether even that has yet been granted. I was the recipient of at least two complaints about the provision of underground gas storage. Again, people have an absurd idea of what these things may be. Those are the kind of big decisions, big applications, which have been seriously held up. I think therefore that it is absolutely right for an applicant to say that the application should be heard under the NSIP procedure.
There is also the different problem raised by Amendment 78B. This has been put to me by the National Grid, which obviously has very considerable experience of dealing with applications which may arouse a good deal of opposition. The case is a very simple one; it is in fact seeking consistency. Under the new proposals for commercial development, only the applicant is entitled to ask the Secretary of State to make a referral to the inspectorate, whereas for all previous applications the application can be made by anyone, in addition, of course, to the promoter. One must ask whether it is right that, concerning the new category of business and commercial project, only the applicant is able to refer. Why does this not apply to all the other bodies? The argument for consistency seems really quite overwhelming.
My noble friend Lord Attlee will remember that I raised exactly the same point when we were discussing the Localism Bill 18 months ago. He stated that,
“it may be that third parties with expertise in particular areas, such as environmental requirements, possess information which they think may elevate a proposed development from one of sub-national significance to one of national significance. It would not be right to prevent such bodies drawing this information to the attention of the Secretary of State”. – [Official Report, 17/10/11; col. 107.]
Well, that is an argument. However, he of course pointed out that that amendment would enable someone to draw key information to the Secretary of State’s attention if it has not already come to light. The Secretary of State can then of course direct that the matter goes direct to the inspectorate under the NSIP procedure. On that occasion I was trying to break new ground, but that is not the case under this Bill. As I said a few moments ago, under this Bill only the promoter can take that step in relation to business and commercial projects, and I am puzzled as to why. My amendment therefore simply seeks to bring all the existing applications into line with the new one for business and commercial projects. I hope that my noble friend will view this as a pretty reasonable request.
Baroness Parminter
My Lords, I support my noble friend’s contention that this clause do not stand part of the Bill. I will not repeat the questions raised by noble Lords, which I feel deserve an answer from my noble friend the Minister. I am sure that we will get answers, because she has shown herself throughout this process to be very open and willing to engage with us.
The one issue I would like to expand on a little further is that of fracking, and bringing that into the fast track process. The Minister rightly said that this is a developing area, and it is therefore important that this House has time to consider all the possible implications. Like the noble Lord, Lord Jenkin, and others, I think it is appropriate for the Government to introduce a national planning policy statement for this. As my noble friend Lord Greaves said, this is an important new area with major implications, particularly in the north-west. Given the scale of fracking and the Government’s commitment to press ahead with it, it would seem illogical not to give the Planning Inspectorate further clarity as it takes this issue forward.
The Minister said that there will be between 10 and 20 cases a year, a point raised by the noble Baroness, Lady Young. She cited evidence given by Friends of the Earth; I choose instead to cite evidence given to the House of Lords inquiry into EU energy policy last month, when Professor Jonathan Stern of the Oxford Institute gave his assessment of the implications of fracking in the United Kingdom. In the committee’s evidence session, Professor Stern stated:
“The US drills 45,000 wells every year of which 80% are fracked... people in Europe just do not understand the scale on which the drilling has taken place. In the future, it may be possible to reduce the scale of that drilling but I think what you can say is, if in any specific country you have drilled 100 wells, you may know something about the resource base. If you are going to produce shale gas on any scale, you probably need to be drilling somewhere between 300 and 500 wells a year, every year”.
I quote those figures because I think it is beholden upon my noble friend to answer—and I am sure she will do her best to do so—why the Government seem to think there will only be 10 to 20 cases emerging through this fast-tracking process if fracking is brought forward. There is a disparity which needs urgent clarification. Yes, it is a developing area, but if the Government are going to proceed with fracking, and take it forward as part of the energy mix in the short to medium term, then not only is there a case for a national policy statement, but there needs to be far greater clarity about the implications—particularly the resource implications—that would accrue for the Planning Inspectorate.
Baroness Hanham
I thank those noble Lords who have taken part in this rather interesting and short debate. I will try to pick up some of the matters raised, either as we go through or subsequently. Perhaps it would be helpful if I explain the Government’s rationale for Clause 24 and the reforms within it. As we have said on many occasions, one of the Government’s top priorities is to get the economy growing by creating the right conditions for growth. This includes ensuring that the planning system is operating in the most efficient and effective way. Clause 24 will support this aim by allowing developers of nationally significant business and commercial development to request to use the streamlined planning regime set out in the Planning Act 2008.
The noble Baroness’s Amendments 77A, 77B and 78A would remove the ability of the Secretary of State to issue a direction for prescribed forms of business and commercial development in response to a request from a developer. I have listened to views expressed that business and commercial planning applications should be determined by the local planning authority, and we have no difficulty with that. The Government agree that that is the right approach in the vast majority of cases. However, there will also be a small number of projects that will be of national economic importance and, in certain circumstances, it will be right that a decision on such proposals is taken at the national level by democratically elected Ministers.
We are not proposing that that should be a mandatory route for developers; it is optional. Developers of major projects will choose to request to use the infrastructure planning regime only if it offers other benefits which the local authority cannot provide, such as statutory timetabling—the noble Baroness asked me what it would be—and the one-stop shop, which will be useful where multiple consents are required.
Any request made to use the infrastructure planning regime will also be subject to the agreement of the Secretary of State, who will have to be satisfied that the proposed project is of national significance. Under Section 35(10) of the Planning Act, the Secretary of State is required to give reasons for his decision when making a direction, and that requirement is carried forward in new Section 35ZA(10) in Clause 24. That is why we cannot accept Amendment 77ZK, which is unnecessary.
My noble friend Lord Jenkin spoke to Amendment 78B, which would limit who can make a request that an application or proposed application for energy, transport, waste, water or waste water projects below the Planning Act thresholds should be directed into the nationally significant infrastructure planning regime. I understand why the amendment has been tabled and am sympathetic to its aims, but perhaps I may explain why we have set out a different approach in the Bill for business and commercial schemes.
The Planning Act sets specific thresholds for energy, transport, water, waste and waste water projects. Any proposal for a development which meets those thresholds must seek planning consent through the nationally significant infrastructure planning regime. Section 35 of the Planning Act allows a request to be made to use the regime for projects which are below the thresholds. We have not sought to limit who can make a Section 35 request for infrastructure projects as we recognise that other parties may hold information which could indicate that the project was one of national significance and should be directed into the regime. However, for business and commercial schemes, the Government have been very clear that for developers of major schemes this is an optional route. Therefore, the limitation on who can make a request is not there. We believe that it should be for a developer or applicant to determine whether the advantages of using the infrastructure planning regime outweigh the usual route of making a planning application to the local planning authority. The Secretary of State will direct a project into the regime only if he considers that it is of national significance.
Concerns have been expressed that if we do not accept the amendment the Secretary of State will be inundated with requests from third parties, or that there will be delay to the application being submitted or to the local authority decision-making process. We think that this is unlikely. We are aware of only a very small number of such requests having been made to date. The impact assessment states that the figure is likely to be between 10 and 20 a year. We will have to see how that works out.
If an application or proposed application is directed into the nationally significant infrastructure regime, this does not mean that local opinions will be ignored. Developers will have to consult local communities, and local authorities will continue to play an important role. The consultation requirements of the Planning Act, as noble Lords will know, are rigorous. Local authorities will also be invited to prepare a local impact report. The Secretary of State must have regard to the report as well as to other matters that are both important and relevant in making his decision on the development consent order application. The local plan, for example, is likely to be both important and relevant, as indeed is the National Planning Policy Framework.
It is essential that sustainable development should go ahead with the minimum of delay. That is why we have brought forward this new power. We also think that it is appropriate to have further public and parliamentary scrutiny on how this new power should be used. That is why we have consulted recently on the types of development and why the regulations that follow and prescribe the types of development will be subject to the affirmative procedure.
Other matters were raised. The noble Baroness, Lady Young, who tabled some of the amendments in this group, has had a letter from my honourable friend Nick Boles which I think addresses most of the questions that she raised, but I understand why she would want those responses on the record.
Baroness Young of Old Scone
All the points that I made earlier were taken in the Minister’s letter. Having read it very carefully, I think that he confirmed that the local plan was just one weight in the scales and not pre-eminent and that the Secretary of State would take a whole range of other things that into account. That means that the local plan has been sidelined. I was therefore unconvinced.
Lord Greaves
If there are letters floating around which are being debated here, I wonder whether we might all have sight of them.
Baroness Hanham
My Lords, the letter in question was to the noble Baroness. If she is happy for it to be made available to the Committee, then, of course, I would be happy, too. I presume that my honourable friend at the other end was expecting at least most of it to be made public because it is a very public response to the questions asked. I do not think that there would be any disagreement with my saying that the local plan and the National Planning Policy Framework are both likely to be important and relevant in these matters. We have issued a consultation paper on extending the regime to business and commercial schemes, seeking views on whether one or more national policy statements should be prepared. These matters are relevant to today’s debate and the answers are the Government’s answers.
I do not think that moving business and commercial applications to the infrastructure regime will be a blow to local authorities. As I have said, we expect only a small number of applications to come forward and for most of them to be dealt with by local authorities.
I was also asked by the noble Baroness, Lady Young, and the noble Lord, Lord Greaves, whether we had any evidence that change is necessary. Over the past four financial years, the proportion of large-scale major applications for commercial and industrial projects taking more than 52 weeks to be decided by local authorities has increased from 8% to 13%, which is quite a significant rise.
We are not proposing to make mandatory this route for developers—it is optional—and there will be a timetabled approach. Developers will have to decide for themselves whether to use the infrastructure regime.
As we set out in our recent consultation document on the new business and commercial category of development, the Government do not consider the case to be strong for one or more national policy statements for this category of development. The consultation closed in January and we are considering the responses to that, including on whether national policy statements should be prepared. I think that we will discuss those later during our consideration of the Bill.
I was asked whether there will be sufficient resources. We are discussing the resource implications with the Planning Inspectorate at the moment.
We also had a question on fracking, which has come up quite a bit through the course of the Bill. It is clearly a developing situation. The information that the noble Baroness, Lady Parminter, gave us was interesting and begins to put a scale on what the ultimate development could be. At present, fracking applications will not be taken out of the hands of local authorities. Any developer will have to consult the local community and local people and the local authority will have the right of determination. A request would have to be made to the Secretary of State to use the infrastructure regime and he would agree to such a request only where the proposal raised issues of national significance. It may be that national significance and fracking will be one and the same but that gives an indication that at present we would expect this to be dealt with locally and local people would have a big say in what was to happen.
I think that covers the questions I was asked. The noble Baroness, Lady Parminter, also asked about fracking and, as I said, gave us very helpful figures from the report. I ask the noble Baroness, Lady Young, whether she would be happy for the letter from my honourable friend Nick Boles to be circulated. If so, I will make it available but if she does not wish that we will no doubt discuss the issues again at a later stage.
Baroness Young of Old Scone
Can the Minister respond to an issue raised by a number of noble Lords on the question of when we might hear the Government’s response to the consultation? It is very important for a variety of reasons that that happens before the Report stage. “In due course” does not seem a terribly firm timescale.
Baroness Hanham
We have a number of consultations coming through to fruition, so I am not able to stand here now and say that the Government’s response will be available by Report. I hope that we will have an indication of what more we can discuss on this. If the response can be made available then I will certainly see that it is but I am not in a position to say that it will be. I note what the noble Baroness said.
Lord Jenkin of Roding
I listened with great care to what my noble friend said on the question of who can make an application to the Secretary of State for an NSIP treatment. I will read very carefully what she said but, having listened, I am still puzzled as to why there is a difference between the existing applications and the new ones for business and commercial. Perhaps I might leave that there. I will read very carefully what she said and decide how we should proceed after that.
Lord Adonis
On the question of proposed types of development and thresholds, on which the noble Baroness, Lady Young, pressed the Minister, I took the Minister to have made a significant statement earlier when she said that if there was to be a notable departure from the proposals set out in annexe A of the consultation document she thought it likely the Government would come forward and tell the House that before we passed this legislation into law. I am sure we will study carefully in Hansard tomorrow what the noble Baroness said but that was quite a significant statement. We look forward to the noble Baroness coming forward and telling noble Lords of the Government’s intentions if they intend to depart from the proposed types of developments and thresholds set out in annexe A.
Unless I missed it, I do not think that the noble Baroness replied to my amendment at all, which would require the Secretary of State to publish the reasons why a planning decision is to be decided centrally, including why the application is regarded as nationally significant. I thought that was a very reasonable and extremely constructive amendment and that she might even be able to accept it.
Lord Greaves
I would like to ask a question that the Minister might want to write to us about in some detail. She mentioned the figure of 13% of, I assume, major applications or perhaps some other kind of big applications that took more than 52 weeks. It would be a help to know whether they were major applications as defined at the moment. That is typical of the very general statistics that the Government give when we ask for evidence. How many of those applications would have gone to be decided at national level under the new system or how many would have been likely to go to that level? How many of the 87% of presumably major applications that were dealt with within 52 weeks would also have gone to national level? If we are expecting only an additional 20 or 25 in the commercial business categories, does that equate to 13% or what does it equate to? Some more detailed figures and statistics on these matters would be extremely helpful. I would also find it extremely helpful to have a list of just five or six applications dealt with in the past year which in future would come to national level, so that I can get my mind round what sort of developments they are and what sort of outcomes there might be.
Baroness Hanham
I hope I did not speed over the amendment or that the noble Lord, Lord Adonis, had not gone to sleep with excitement over it. I said that the Secretary of State is required to give reasons for his decision when making a direction. That requirement is carried forward in Clause 24. That is why I said I was not able to accept his amendment: it is not necessary.
Lord Greaves
Will my noble friend comment on my request for some more detailed statistical information on these matters?
Baroness Hanham
If I can get what my noble friend requires, I will make sure he and the Committee get that before Report.
Baroness Garden of Frognal
My Lords, just before I resume the House, I alert speakers in the debate that, as we now have a speaker in the gap, there are no spare minutes at all. Please would Back-Bench speakers ensure that they sit down as soon as the clock says “5”, and preferably while it still shows “4”, so that the Minister has his allocated time to respond?
Education: Academies and Free Schools
(11 years, 9 months ago)
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Baroness Perry of Southwark
To ask Her Majesty’s Government what is their assessment of the contribution of academies and free schools to educational provision in the United Kingdom.
Baroness Perry of Southwark
My Lords, I welcome this opportunity to address the contribution of academies and free schools to our national education provision. I look forward to the summing up of this short debate by my noble friend the Minister, as this is the first opportunity for him to make a substantial speech in this House. I begin by declaring an interest as the unpaid chair of a commission on academies and free schools for the London Borough of Wandsworth. The commission has met with many potential academy sponsors and free school providers, and I for one have been often inspired by the enthusiasm, expertise and deep commitment of those who seek to change the life chances of young people.
We are witnessing a revolution—the most important revolution in education for many decades. Beginning with the vision in the previous Administration of the noble Lord, Lord Adonis, who I am pleased to see in his place, already more than half the secondary schools in the country have become academies. Most are converter academies by the choice of their governing bodies, and some are sponsored academies where schools failing to raise the performance of their pupils have, with the guidance and help of a sponsor, been made into academies where pupil success has followed. Such schools are often located in the most deprived and difficult areas, with generations of failure behind them. There are now 2,673 academies in England and 80 free schools are already open with more than 100 in the pipeline for this year.
Now primary schools are becoming academies and primary free schools are being established. There is an urgent need for action at this level. The DfE reports that 1,400 primary schools are below the minimum floor standard—800 of these for at least three years. This means that several thousand pupils are leaving the primary phase having failed to achieve even a minimum standard in basic English and maths. The weakest 200 of these schools have already become academies in this academic year and many more will follow. We rejoice to find that, since becoming academies, more than 40 of these primary schools have completely eliminated the gap in attainment between the children of the poorest and richest families.
Free schools, including the excellent university technical colleges, have allowed communities of parents, teachers, local people and a range of approved sponsors to bring their commitment and determination to set up new schools, to raise standards of teaching and to lift aspirations in places where all too often only acceptance of defeat and a lack of ambition had been before. Many bring innovative and exciting new ideas into educational provision, offering different and challenging forms of education which meet the special interests and needs of local children in ways no local authority would be able or likely to offer.
The providers of free schools are diverse. So far, 59 have been groups of teachers, existing schools or other educational organisations. This is indeed a policy endorsement by the professionals in education. Some 45 have come from parent groups; community, religious and local groups; and charities. Again, this is endorsement of the policy by the people who are most concerned and most likely to be the best judges of its success.
Not all academies have been or will be a total success, of course, although the overwhelming majority have achieved more than even their supporters would have dreamed. The British cup-half-empty media have seized on the occasional academy where standards have not been spectacular, although even these have often achieved more than their predecessor, but no one who truly cares about children and young people can fail to celebrate the life-changing opportunities which academies and free schools have already given to tens of thousands of young people who are lucky enough to attend them.
Some basic statistics demonstrate what great gifts have been given to young people by this programme. Overall, pupils in sponsored academies have increased their achievements by five times the national average for maintained schools. Years of failure in some local authority areas have been turned into success. My noble friend Lord Harris, in the wonderful work he has done in creating successful academies, can be proud of his Bermondsey academy, for example, where, with more than two-thirds of pupils receiving free school meals, 62%,—almost twice the national average—have achieved five A* to C grades in their GCSEs. However, statistics can only invite us to reflect on what this means in terms of young people whose lives have been turned around and whose aspirations have been raised beyond anything their predecessors had experienced.
Why do academies and free schools achieve where local authorities had failed? The answer is freedom. Academies are free from local authority control, which has not always been benign. They are free to deliver the curriculum which fits the needs of their pupils, not some centrally determined formula. However, their offering must be “broad and balanced”, and must include English, maths, science and religious education. They are free to set pay and conditions for their staff, enabling them to reward hard work and success, and to attract the best and brightest teachers. They are also free to determine the length of time pupils spend in school daily and termly: their curriculum is not subject to the time restraints which too often prevent local authority schools expanding their offerings to follow the needs and interests of their pupils.
Most importantly, these schools offer professional freedom to the head and teachers. Professional judgment always trumps bureaucratic prescription. Teachers really do know best. For the past 20 years or so we have cramped professionals—not only in education—with regulation, prescription, inspection, targets and league tables. None of this has worked to raise real standards. Indeed, we have been in danger of de-professionalising the best-ever generation of teachers. The system has forced them to teach to the requirements imposed from outside instead of to their own professional judgment. Removing these external constraints has resulted largely in the great success of academies and free schools: the proof is in the results.
Although the evidence is that the longer schools have enjoyed their academy and free school status, the greater their improvement, some have rightly expressed concern about how we can ensure that these standards are maintained in the longer term, especially when many of these schools will be exempt from regular inspection. It is my profound belief that the best form of accountability begins with the accountability of the individual to their own professional standards. I am however greatly reassured by the initiatives which have arisen voluntarily and spontaneously within the academies and free schools themselves. Many have formed “chains”, which are looser perhaps than a strict federation, although enjoying many of the financial and quality benefits of shared central services and shared governance, which others have adopted.
Whether they are a federation or a chain, these associations are proving to be a far better guardian of quality than many of the external official bodies which control community schools. The strong and successful schools in the chain offer support and help to their newer developing partners. This model is now widely adopted and provides excellent advantages for quality control. Again, it is a product of leaving the professionals to determine their own quality assurance. It will be important to ensure, however, that the chains do not become substitute local authorities with power again drifting away from the individual school—that “living cell of the body educational”, as it has been called.
In the Harris group, we see an outstanding model of this way of working. The Harris Federation has set up a complete system of raising teaching quality: first, in initial training, as a group of designated training schools, and then in offering a careful programme of teacher development, which takes the average teacher, through several steps, to excellence. The successful heads in the group are also involved in a leadership development programme for those with leadership potential, to ensure a supply of outstanding heads for the future. I cannot but feel that this is a more trustworthy and sustainable pattern for ensuring quality than an occasional visit from an Ofsted inspector with limited scope for development initiatives.
In 2010, my right honourable friend Michael Gove said:
“Teachers, not politicians, know best how to run schools”.
It has taken courage to put that belief into practice but the thousands of teachers, parents and young people who have benefited from that courage all say “thank you”.
Lord Baker of Dorking
My Lords, I thank the noble Baroness for introducing this debate. I also welcome my noble friend Lord Nash to the Front Bench. Although he has skirmished at Question Time, this is the first debate on which he has had to answer. This is an engagement and not a skirmish. I should like to make one major point. Michael Gove has imposed on the English education system an enormous revolution, which is irreversible, by expanding the academy programme very substantially and by introducing free schools. As far as I can see, it will not be reversed by any Government and will not be taken back under state control in the future.
That, of course, started with the noble Lord, Lord Adonis, who realised that some of the most successful schools, when he was responsible for this matter, were the original city technology colleges, which I established in the 1980s—16 of them. He used them as a model for the academies and persuaded Tony Blair to announce a target of 200. Now there are 600, so they are rolling on at a rapid pace. In fact, when Tony Blair becomes very eloquent about this, he not only speaks warmly of academies but rather implies that he was their creator. I am happy to share the parentage because it shows all-party support.
Why are these colleges so successful? They enflame and engage people at a local level—parents, teachers, local communities and businesses—to improve the basic schools in their community. That is an enormous release of energy, enthusiasm and commitment, which is quite striking across all the country in all communities and in all parties. That is to be immensely welcomed, and the noble Lord, Lord Adonis, is to be congratulated on initiating that.
The university technology colleges, which I have been promoting, are free schools or academies—a rose by any other name—and are proving to be very successful. We have five university technical colleges open at the moment; 12 will open this year; and 14 will open in 2014. We are looking at another 20 or so to be announced by Easter. We need another application round to be announced by December of this year to start some in 2015 after the next election.
These colleges are popular because they deal with children aged from 14 to 18. This is another revolution in English education. The rest of the world is moving slowly to a transfer age of 14, which I have just recorded in a book that was published last week. I draw it to your Lordships’ attention, and it should be available in the Library. In this book, I argue that the right age of transfer is 14, not 11, that the national curriculum, of which I was one of the authors, should stop at 14 and that at that point there should be four types of colleges: university technical colleges; liberal arts colleges, a vastly expanded grammar school sector for the academic, which would probably be non-selective; then something my noble friend Lord Moynihan would welcome, a series of at least 30 or 40 creative arts, performing arts and sports colleges throughout the United Kingdom; and then there should be career colleges, which come out of the FE movement, covering the other subjects. All this is releasing energy at the right point. This revolution would really be very significant for the English education system.
The other revolution that is going on at the moment is the extension of the school leaving age to 17 this year and to 18 in 2015. This will have a profound effect on the English education system. Education will be a continuum from five to 18. It is irreversible. It is going to happen, and whenever it has happened in the past, when the school leaving age was moved from 10 in 1880, to 12 in 1890, and to 14 in 1921, there was a huge increase in the number of new schools and reorganisation of schools. There is a unique opportunity in this large continuum to look at the shape of education. The instruments to do that are essentially academies and free schools.
As I said before, I am very glad that the Labour Party now supports this movement. It is very effective. One of the university technical colleges completed two years last summer, so we had 16 and 18 year-old students leaving. A totally comprehensive selection went in, with 20% special educational needs. In that school, there were no NEETs last summer: every student either got a job or an apprenticeship or went on to college or university. There are not many schools with that particular mix that can say that in our country. We know, therefore, that we have a successful formula, and I hope that that formula can be extended on a much wider scale. I applaud this great change that is now sweeping through the English education system, and I will now finish.
Lord Storey
My Lords, I thank the noble Baroness, Lady Perry, for securing this important debate.
“Our vision is for a highly educated society in which opportunity is more equal for children and young people no matter what their background or family circumstances”.
So proclaims the vision statement in the foyer of the Department for Education, and who could disagree with that? The sad fact is, however, that over the years, social mobility has hardly shifted.
To address the issue of low performance and poor pupil aspiration, particularly in the most deprived communities, the previous Government set up academies. These schools were given extra resources, extra responsibilities and extra freedoms. The coalition Government have accelerated that programme and, in so doing, dramatically increased the number of academies and changed the educational landscape. As a result, we now see a radical change in the English education system: more than half of secondary schools and a growing number of primary schools have become academies, free schools, university technical colleges, studio schools and, of course, local authority schools. In May 2010, there were 203 academies, and by November 2012, there were 2,456 academies. The scale and speed of change has been rapid and raises a number of questions and issues.
First, you can have all the different types of schools in the world, with all the best resources, but in the end, it is the quality of the school leadership and the quality of the teachers and their teaching that make the difference. A child cannot repeat a year if they have had a poor teacher; the pupil or student is the one who suffers. They cannot repeat that year or the study of that subject. That is why I was so pleased to read that the Academies Commission report, published in January this year, highlighted this point. It said, in referring to academies, that there needs to be,
“a forensic focus on teaching and its impact on pupils’ learning so that the gap between the vision for academies and practice in the classrooms is reduced and the words ‘academisation’ and ‘improvement’ become inextricably and demonstrably linked”.
The English education system has undergone continual change in the post-war period, with each incoming Government and Secretary of State wanting to leave their mark. If we have learnt anything about that 30-year change, it is that improvement is likely to be accelerated and sustained if there is broad ownership at local and classroom level. We need to consider carefully the management of schools: with freedom comes responsibility. The Secretary of State cannot and should not micromanage academies from the centre. In a successful academy system, we will see schools supporting and learning from each other. They will operate as a community of schools, each independent, but working best if connected to the rest of the system.
What of local authorities and their involvement in local schooling? As we have seen academies extend and more powers given to local schools, we have seen local authorities reduced considerably in their capacity and involvement. In the Education Bill, they were given a duty of care but, working with them, we need to consider carefully their role in a very different landscape.
I have drawn extensively on the work of the commission. I was delighted to see it raise the need for the establishment of an independent royal college of teachers. The college, pump-primed by the Department for Education, but completely independent of it, could help make the link between research and the classroom more explicit.
Academies are not the panacea for raising performance and pupils’ life chances. The Academies Commission report said that the evidence considered did not suggest that improvement across all academies has been strong enough to transform the life chances of children from the poorest families. There have been some stunning successes among individual sponsored academies and academy chains that have raised expectations of what can be achieved in the most deprived communities. However, it has to be about more: it has to be about the highest quality of teaching, with teachers who are well trained, highly motivated and—dare I say it—well rewarded. It has to be about inspections carried out in a fair and rigorous manner by qualified inspectors with classroom experience. It has to be about self-improvement: schools working together to develop their understanding and expertise and supporting each other. It has to be about all schools having equality of resources and equality of freedoms.
Lord Sutherland of Houndwood
My Lords, I welcome the debate introduced so well by my noble friend Lady Perry. I also welcome the Minister to his first short debate; we are quite civilised people here, and we look forward to hearing what he has to say. I understand that the Minister has form in this area of academies, having been involved in the very successful sponsorship of Pimlico Academy, which is one of the early ones helping to set the benchmark.
I will restrict my remarks largely to academies, rather than free schools. I want to emphasise now that I agree with what has been said already in the debate about the ways in which academies and other new forces in education are enriching the educational provision in this country, which is well needed and very important. Two consequences of academy status have been especially welcome. One is the very important freedom, referred to by my noble friend Lady Perry, to exercise professional judgment. It is marvellous that this is happening, and I hope that head teachers will not be too dirigiste, operating from the top of their own little pyramid, but will make sure that the freedom passes down to classroom level.
The second consequence is a promise by the Secretary of State that the reduction in bureaucracy which would follow would be to the benefit of academies. I agree with this: they have been a positive source, even if I now have a couple of questions to raise. One element of the way in which bureaucracy is being removed is the reduction in the requirement for outstanding academies to have an inspection every five years. I can see the point and the value of this, but they are exempt from that. Although it is sometimes an irksome discipline, I have to say that excellence and outstanding qualities in 2013 might not still be there in 2018. It is important that we have one way in which to moderate that, at least. I understand that Ofsted anticipated that that would be an issue and has now put in place for exempt schools the possibility of an exercise in which it will inspect, in paper form, at least what is happening in the school—a risk assessment, as it is called, will be carried out. It will be paper-based, it will achieve a lot and will help reassure parents and governors. That is good, but I suggest that one or two features of an outstanding school may not be able to be covered in a risk-based assessment of this kind. The first, for example, is the overall judgment about the effectiveness of a school; I am not sure how that can be done on the basis of a paper exercise. Yet it is highlighted in the Ofsted statement of intent as one of the most important judgments to be made. It is rather important that this can be done one way or another.
Secondly, I am not sure how a risk-based assessment that is effectively paper-based will deal with the spiritual, moral, social and cultural activities of a school. These are immensely important to a school’s character, and it is difficult to see that they could be accounted for in this type of assessment.
Thirdly—and this point follows on from the previous point and was of considerable interest to a number of noble Lords here this evening in previous debates on previous legislation—to be blunt, it will be difficult to reassure the wider community on the basis of a paper exercise that in one or other of the faith-based schools there has not been a straying from the boundaries of education into indoctrination. A few years ago, this would not, apparently, have been a real problem, but it is now. Some of our young people are suffering significant indoctrination—obviously in one faith, but in others too. One check on this in a faith-based academy, which may well do excellent work on the curriculum, pupil behaviour and all the other things, is whether there is a move towards indoctrination. It could take place, and it is essential that we are reassured that it would be picked up. There are other elements of the way in which Ofsted operates that might do this, but any reassurances that can be given would be very welcome.
The Lord Bishop of Bath and Wells
I, too, thank my mentor, the noble Baroness, Lady Perry, for this debate. I offer my remarks particularly, but not exclusively, in relation to church schools. There are 140 primary and 97 secondary Church of England academies. Although that makes the Church of England the largest provider of academies, it still represents only 3% of our primary and 53% of our secondary schools. Within my own diocese, some 70% of secondary schools as a whole have moved to academy status, and that is quite remarkable. In respect of academies, two of our schools—one Church of England, one ecumenical—were indeed ground breakers. In the early days of academies, lack of understanding by the Department for Education of church school ownership and trusteeship led to too much problem solving on the hoof once the legislation had been passed.
Our concern is that, with so much attention and energy being devoted to this ideology about school structures, the risk is that we divert our attention from the needs of the vast majority of children in our schools, especially in the primary phase. We need to frame our debate as being about the effectiveness of schools and the ways in which to achieve greater levels of collaboration and effective partnerships that result in more good and outstanding schools, irrespective of their status as academies or maintained schools. For example, in Southwark diocese, 88% and, in Liverpool diocese, 85% of Church of England schools are rated as good or outstanding by Ofsted, with only a handful of those schools being academies. So the need to ensure that we learn the lessons of what makes for effective provision without limiting the debate to academies and free schools continues to matter a great deal.
In April, the work of the multi-academy trusts comes on stream. We welcome the Department for Education’s listening mode and are grateful for the sponsor capacity grant. However, it is regrettable that the grant is not really sufficient to fund adequately sponsored conversion. I hope that the Government take a look at that. Also, for many schools, anxiety has been increased as documentation is frequently changed at short notice, adding significantly and unnecessarily to work loads. As the local authorities gradually disappear and the academies and free schools have an increasing influence, if they are to succeed and if we are to achieve and ensure the quality that we are looking for, as the Government and all of us wish, it remains important that the department talks at a national and diocesan level with church schools and that both plan ahead and resource more effectively.
The Church of England approach in dioceses across the country is to recognise the need for real structural collaborations to bring about transformation in standards, resulting in effectiveness of schools. For many, this now includes setting up multi-academy trusts, but in doing so we must continue to find a way for schools of all categories to join the same MAT so that the expertise and capacities in our good and outstanding schools can be used for the benefit of weaker schools. I hope that Ministers continue to work with Church of England officials to enable that to happen.
Free schools often offer a good way in which to introduce new providers into the system and bring fresh ideas to the needs of the community, but there is a need to ensure that limited resources are focused on the need to provide much-needed pupil places in areas of population growth where there is a real lack of capacity rather than diverting resources to establish new schools in areas where there is no pressure for extra places.
I draw to the Minister’s attention the fact that there remains a continuing lack of engagement with BME communities in the free schools programme, particularly those that have been acutely disadvantaged in education, such as the African, Caribbean and Pakistani communities. Some such communities are attempting to seize the pre-school programmes as an opportunity to improve educational outcomes for BME and other pupils, but they face barriers to success. Other such communities remain largely unaware of the programme, and it is important that the Department for Education gives attention to the engagement of such underrepresented communities. Many free schools being established with the aim of improving education in deprived urban areas are enrolling people from disadvantaged backgrounds at much lower rates than other local schools. Barriers linked to financial expertise, financial resources and social capital all have implications in relation to this.
Lord Lucas
My Lords, we have had a superb 25 years in British education, and the party opposite should get its full share of the credit for that. There has been a certain amount of “two steps forward, one step back”. They had their diplomas; we have our English baccalaureate certificate. I hope we get a step back on that, anyway. But generally the picture has been one of progress, and I remain immensely optimistic about the next 25 years. I am very grateful to my noble friend Lord Baker and the noble Lord, Lord Adonis, who have been the foundations for that—and that my right honourable friend Michael Gove has chosen to continue it.
I am sure that we all remember what it was like before that and how difficult it was to get schools to change. Some local authorities—Hackney springs to mind—actively opposed school improvement, and many others were ineffective. We all remember how difficult it was to get individual schools to pay attention to what parents wanted; there simply was no mechanism. I had the pleasure of speaking at something organised by the British Council in Berlin earlier this year, and it was astonishing to be taken back to an era when schools did not indulge in self-improvement. Teachers were not observed, and there was no mechanism for individual teachers to improve. So much is better now than it was.
I look at the creation of academies as the key to the next 25 years. Michael Wilshaw was a great head of Ofsted, and is at last being recognised by schools as their friend and as someone who has shared their experiences and understands what they are going through. When he finds a school that has failed, he is now not lost for what to do; he has a whole host of places he can turn to. He has a whole collection of groups and associations, of academies and their sponsors, who stand ready and experienced to help schools improve. He has individual academies that will take on failing neighbours and make them better, and that is a proven way of improving schools. One of the great discoveries of the past 25 years is that we can make schools better; we do not have to tolerate underperformance. Through the academy movement, Ofsted has been provided with the means of continuing that process of spreading good practice—of picking up the schools that are not doing well enough.
There are a number of things to which we need to pay attention, to make sure that we get as far and as fast as we should. We need to deal with failing academies. Inevitably, not all academies will do well; sadly, the one closest to me has been a complete disaster. I would have loved to have sent my daughter there but I cannot face it. It is still in the hands of the sponsor who started it, and they are still doing badly by it. That is not tolerable. I know that there are problems with the original agreements with academies, but we simply must put that right. They must be as subject to Ofsted—probably rather more subject to Ofsted, and its ability to bring in new sponsors—as schools that are not already academies.
Secondly, there is the matter of telling parents what is going on in schools. I entirely agree with the noble Lord, Lord Sutherland: we need to look at how Ofsted can become better at that. My answer to that is to get someone who has been a good headmaster to look in on the school once a year and to write to parents. Good headmasters know within half a day what is going on in a school at the sort of level the noble Lord, Lord Sutherland, was talking about. That can be a friendly and understanding process, which will give parents so much more than they will ever get from a line in a league table.
We need to make sure that all this innovation that is happening because of freedom is properly evaluated so that we can share the benefits of it. We need, I hope, to get some really good curriculum changes, but I simply have my fingers crossed for them.
Lord Moynihan
My Lords, in speaking this evening I declare an interest as a patron of the Haberdashers’ Educational Foundation, and as a member of the Court of Assistants of the Haberdashers’ Company. The company has a deep and abiding relationship with education. To its academies it has brought educational experience, a strong and relevant brand, a long-term passion for education, a commitment to excellence and an apolitical approach, as evidenced by my fellow patron of the foundation, the noble Lord, Lord Adonis.
Its work is particularly important to me since it transformed Malory School, in my former constituency of Lewisham East, into an academy. Malory, now Knights Academy, went from being one of the worst failing schools in the country to the popular and successful academy it is today. It is, therefore, welcome that the aim of the academies programme was to challenge underachievement in the country’s poorest-performing schools. It was a development which had its roots in the earlier CTC programme, which was announced as long ago as 1986. While I was MP for the area, Hatcham College became a CTC after a long battle with Lewisham Council in 1991. Most of the original 15 CTCs have now converted to academy status.
The original purpose of the academies programme was to help struggling urban schools, as I have just mentioned. As noble Lords will recall, philanthropic sponsors promised £2 million and academies were given wide, necessary and welcome discretion over various aspects of the curriculum, admissions, teachers’ pay and conditions, independence from their local authority and, if necessary, multimillion-pound new buildings or refurbishments.
The Haberdashers’ Company first became involved in 2002. Hatcham College had for some time been seeking a partnership role with a local school, and at the same time Lewisham was looking for a sponsor to take over Malory School, whose GCSE results in 2004 were, as I have noted, the worst in the country. Conversion to an academy secured Malory government funding for a complete rebuild of the school.
Since 2007 both Hatcham, with its music specialism, and Knights, a specialist sports academy, have flourished. As my noble friend Lord Baker of Dorking has alluded, sport is so important as a catalyst, capable of transforming many disenfranchised children into focused and successful young people. Hatcham College, due to its success as a CTC, was always oversubscribed, and remains one of the most successful academies in the country, with outstanding exam results at both GCSE and A-level, and with many students obtaining places at Russell group universities. In contrast, Malory School in the old days had a falling roll but, within one year of Knights Academy opening, the school was oversubscribed and in 2010 achieved an overall pass rate for all students, including in maths and English, of 40% at GCSE. I am delighted to say that many students now achieve places at university, as well as some significant sporting successes, both locally and nationally.
The Haberdashers’ Federation was innovative in being the first academies federation. The model, which has since been adopted elsewhere, was of an overarching single governing body made up of Haberdashers and Haberdasher nominees, parents, teachers and the local authority.
The success of Hatcham, Knights and the federation model pioneered by the governing body and SMT meant that the company was encouraged by the Department for Education to sponsor more academies. The company’s strategic vision, formulated by its education committee and endorsed by the court of assistants, was to provide “excellence in governance”. That meant that if the company was to be persuaded to open other academies, it would do so only if there were a Haberdashers’ school in the same area so that the skills of both the governing body and the SMT of the Haberdashers’ school could be brought to bear. If I could leave one key message with your Lordships this evening, it would be that excellence in governance is very important to the success of the academy and the pre-school programme.
The key differential between council-run schools and academies and free schools is that the latter can concentrate solely on the education of their pupils and operate responsively and quickly to ensure that the best education possible is made available to them. Therefore, important as independence in direction, the benefits of academy design, direct funding, reporting to central government, curriculum design and admissions are, independence in terms of governance and the freedom that comes with that is also critical.
Lord Bilimoria
My Lords, today is serendipitous. I am proud to be a liveryman of the Drapers’ Company, and today I was privileged to visit the Drapers’ Academy, in Harold Hill in the London Borough of Havering. The academy is sponsored by the Drapers’ Company and Queen Mary, University of London, itself an institution founded by the Drapers. The academy was formally opened by Her Majesty the Queen, who herself is a Draper, in October last year. I thank and congratulate the noble Baroness, Lady Perry, for initiating this important debate, and on her excellent speech.
I met today with the principal and staff and addressed some of the senior students. I was asked to inspire the students, but I came away inspired, and not only by the amazing transformation of what was a failing comprehensive school—a school that was the last choice of people in the local community, in an area where, at the bus stop outside the school, you saw children with other school uniforms going far afield. Now, thanks to a brand new building, new leadership and, most importantly, a new attitude, this school has been transformed. There are now many more applicants than there are places each year.
This has been achieved over two years, even before the amazing new building with state-of-the-art facilities was opened. It has been achieved because the academies system has unleashed the potential that is tied up in our state school system. The noble Lord, Lord Moynihan, spoke about governance. The board of governors at the Drapers’ Academy is chaired by the former Master of the Drapers, a retired general from the Army, and includes a housemaster from Eton. This is the state sector, the third sector and the private sector coming together to transform the lives of children who were previously written off.
Children in the old school were regularly excluded; today there are no exclusions. Today, even the most difficult children are given their own area within the school and their own specialised tuition and care. No child is given up on. In 2012, even before the new building, 62% of its students achieved GCSE grades A* to C, including in English and maths. Just two years since opening, it is one of the fastest-improving schools in England and it places an emphasis on science and maths.
I met such impressive young teachers, including teachers from Teach First, who genuinely enjoyed being at the academy. I witnessed a school with a bright environment and a buzz—healthy food, and healthy, happy children. They have a principal with an open mind—we spoke about leadership—who wants to take things forward with a plan for a primary school and a boarding house, and a plan to bring in a house system to engender healthy competition. I was told that in the old school, the failing comprehensive, none of the children wanted to go to university. When I asked the children I was giving my talk to how many of them wanted to go to university, virtually every hand went up.
Will the Minister confirm that the Government will press ahead, with urgency, in converting all our comprehensive schools into academies or free schools? The academies are a Labour Government initiative. I give full credit to the noble Lord, Lord Adonis, this Government and my old debating sparring partner, Michael Gove, in building on this initiative. This is not joined-up government, it is joined-up Governments. If only we could convert every school in Britain into an academy or free school, with leadership of the right ethos, inculcating discipline, where children are not excluded but included, where the environment inspires children to aspire and where failure is transformed into an overnight success.
To conclude, my visit to the Drapers’ Academy has given me more faith than ever before in our children being able to aspire to a “British dream” and keeping this country at the top table of the world for decades to come.
Baroness Jones of Whitchurch
My Lords, I thank the noble Baroness, Lady Perry, for facilitating this debate this evening and very much welcome the noble Lord, Lord Nash, to his new role. As he will know, his predecessor developed a reputation for listening and engaging and I very much hope that the noble Lord intends to build on that style. I look forward to debating with him in many months to come.
As has been well demonstrated by this debate, we share a common passion to drive up education standards. As we have heard, the previous Government played their part in this. They were restless in pursuit of innovation to ensure that every child received a stretching and enriching education. We took radical steps to tackle failing schools and narrow the attainment gap between rich and poor pupils. Our policies were firmly rooted in evidence-based initiatives rather than ideology; or, as it was said at the time, what matters is what works.
Sponsored academies were part of our reform agenda. They were set up to address persistently underperforming schools in areas of high deprivation, requiring a sponsor to assist with school improvement. They were, and are, a success story. I add my congratulations and acknowledgement to my noble friend Lord Adonis, who is sitting next to me and who has received much praise in this debate. He was very much an architect of that model, as we have heard.
Regrettably, this Government have taken the concept and redefined it to focus too much on school autonomy as a prize in itself. In doing so, it has lost some of the unique transformative power that characterised the early experience. The latest government research has shown that sponsored academies, building on the original concept of introducing new school leadership, continue to outperform other models. However, they are a small percentage of the whole and are now massively outnumbered by the so-called converter academies: that is, schools already judged outstanding or good by Ofsted which have chosen to become academies since 2010. This rush to convert all schools to academies highlights some of the essential differences between us and this Government. For example, we do not believe that there is just one model of success.
When I first took over as shadow Minister, I visited a number of schools involved in the London Challenge initiative introduced by the previous Government. Some were academies, some were maintained schools. All are now highly performing schools with strong and innovative school leaders. Indeed, Pimlico Academy, with which the Minister has been long connected, was a beneficiary of the scheme. The key success factor was the intervention and collaboration between schools, put in place to improve the quality of teaching. As a result of this initiative, London’s schools went from being among the worst to being among the best performing in the country. The success of such an approach is confirmed by a growing weight of national and international research which identifies that collaboration is the key to reform. However, meanwhile, the recent report from the Academies Commission showed that many of the converter academies which had been required to support a struggling school nearby in order to gain academy status have now broken that promise with no comeback. The same report identifies a growing trend towards complex admissions procedures which dissuade the less determined parents. As a result, it too often remains the case that poor children are served by a poor education. The research shows that children from a socially deprived background remain disproportionately more likely to attend a school that is classed as underperforming by Ofsted.
Therefore, we have concerns about the focus of the Government’s current academy programme. We are worried about the lack of emphasis on the power of partnership and collaboration. We fear that the early focus on underperforming schools in areas of high social and economic deprivation is being lost. We see a teaching profession demoralised and criticised when teachers are the key to improving teaching quality and we see parents struggling to navigate complex admissions policies. Therefore, I hope that the Minister is able to reassure the House that a more measured approach, addressing these issues and genuinely informed by existing evidence, will be adopted in the academy strategy of the future.
The Parliamentary Under-Secretary of State for Schools (Lord Nash)
My Lords, I would like to thank all those who have contributed to this important debate. In particular, I am extremely grateful to my noble friend Lady Perry for raising this issue. Few know more about driving educational standards than my noble friend, a former teacher and Chief Inspector of Schools.
This is my maiden speech. I understand that it is customary for new Members of your Lordships’ House to make their maiden speech before conducting any business here. I have in fact already answered three Questions from the Dispatch Box. Indeed, at the beginning of the first Question, I was so nervous that I managed to thank the noble Earl, Lord Listowel, for welcoming me to the House before he had actually had a chance to do so. I hope that I am not going to earn a reputation in this House for doing things in the wrong order. I would like to thank all noble Lords and the staff here for being so welcoming and kind over the past couple of weeks.
Until about eight years ago, my life was focused on business—specifically the venture capital industry—but then I started to get interested in the care of children and young people, and in education. My wife, Caroline, and I set up a charity to support young people. We support a number of after-school clubs, supplementary schools and organisations like that, but it seemed all to come back to schooling. We decided to look at the academy programme and I was introduced to the noble Lord, Lord Adonis, a truly great man. He appointed us to sponsor Pimlico Academy and, at that point, our lives changed completely.
The school was, by any definition, failing. It had been in special measures, had very poor behaviour—there was one famous fight outside the school involving 400 pupils—poor results, very low morale among the staff and students, low aspirations, very little for the pupils to do after hours, a building that was falling down, leaked and was infested with mice, and eight days of strikes in the year before we took over, over things any two Members of this House would have sorted out over a cup of tea. Thanks to our excellent team, led by our inspirational principal Jerry Collins, the school has completely turned around, students are happy, well behaved, engaged in school life, their heads are up and their aspirations are high. Teaching is much improved, the results are much improved, and we have only permanently excluded two pupils since we started over four years ago.
Although the academy achieved an “outstanding” Ofsted rating two years after it opened, we still have a long way to go if the school is to become the truly great school that we intend it to be. To help achieve this, my wife, Caroline, has led a project to develop a new key stage 3 curriculum which is now being taught in Year 7 and a new primary curriculum to go into our primary schools. This is a more content-rich and coherent curriculum which we believe will give our students the knowledge, skills, understanding and cultural literacy they need to be successful.
Our fundamental belief, which I believe is also the fundamental belief of this Government, is that our children and young people are capable of far more than we have hitherto asked of them. If you had seen, as I have, 11 year-olds in a charter school in the Bronx in New York, on an estate every bit as challenging as any here in London, seriously engaged in a lesson on the great philosophers, you could not doubt that. Nothing I have been involved in, in my business life, comes close to the experience of sponsoring an academy and I will be eternally grateful to the noble Lord, Lord Adonis, and to another wonderful man, the late Sir Simon Milton, for giving us the opportunity.
I was delighted when I was asked to be a non-executive director of the Department for Education. When we arrived as non-executives in 2010 there was no doubt that the senior civil servants thought we were people to be managed rather than engaged with, but over time we have worked increasingly well together and are now all working closely as a team. So when, rather surprisingly, my right honourable friend asked me to do this job, it was something that I just had to do because it seemed like a natural progression.
A society where 40% of our young people do not even get the basic qualifications, where we have 1 million NEETS, where it takes two years and seven months from entering care for a child to be adopted and a year longer for a black child, where many of our children who leave care rebound quickly into the criminal justice system, where children with SEN are sometimes misdiagnosed or not diagnosed at all and where their parents have to fight every step of the way to get the provision they need, where children go missing from care and end up the victims of dreadful sexual exploitation and where gangs of our young people are committing vicious murders on each other in our streets as happened only a week ago to one of our former pupils in Pimlico, such a society struggles to call itself civilised. It is a great honour to be a Member of your Lordships’ House, which I know cares deeply about these issues.
Turning to the subject of the debate tonight, it has been delightful to hear such a consensus in favour of academies and free schools. All my best points have, of course, already been made. I am grateful to the noble Baroness, Lady Jones, for her welcome and assure her that I intend to take a listening approach; I, too, look forward to debating with her on many future occasions. I would also like to thank the previous Government for taking the CTCs initiated by my noble friend Lord Baker and developing them under the leadership of the noble Lord, Lord Adonis, into the academy product, a product that this Government have unashamedly developed in terms of numbers and also across primary academies, free schools, UTCs, special academies and studio schools.
At the risk of repetition, I will give a few statistics. There are now 2,673 academies open in England, of which 618 are sponsored and 2,055 are converters. Over 50% of all secondary schools are academies and there are 505 sponsors. Some 25% of sponsored academies in chains have an “outstanding” Ofsted rating. Sponsored academies are improving their GCSE results five times faster than other schools. The right reverend Prelate the Bishop of Bath and Wells will be pleased to hear that 89 converter academies are now sponsoring other schools. There are 80 free schools open, with a total capacity of 34,000 pupils, and over 100 more are due to open later this year and beyond. Half of the free schools open are in the 30% most deprived communities and over half are in areas of severe basic need. Free schools are in great demand: 75 per cent of the schools which opened in September 2011 were oversubscribed for entry last year. However, I note the comments made by the right reverend Prelate about the need for more free schools in BAME communities.
My noble friend Lord Baker spoke somewhat passionately about UTCs. Five of these are now open and 26 more are planned. There are 17 studio schools open with 16 more planned, and 63 special academies open with 50 more planned. We have opened the first alternative-provision free school, and the first specialist maths school is due to open in 2014. I would like to reassure the noble Lord, Lord Bilimoria, that we intend to continue with the pace of reform. The Government understand, as several noble Lords have acknowledged, that parents know what is best for their children. They must have choices and if there are not the schools that they want in the area they must be free to create more.
I am delighted to hear what my noble friend Lady Perry said about professional judgment always trumping bureaucratic prescription, and what my noble friend Lord Storey and the noble Lord, Lord Sutherland, said about the importance of freedom for teachers. This Government believe that teachers, head teachers and governors, not politicians and bureaucrats, should decide how schools are run and should have the freedom to make a difference to the lives of their pupils. The best ideas in schools come from schools themselves. I have noticed that the best schools often have the same characteristics: a broad and balanced curriculum, high aspiration, a longer school day, plenty of extracurricular and sporting activities, and good engagement with the local business community. We are keen for all schools to emulate what the best schools do. The evidence from abroad shows that strong autonomy for teachers, combined with accountability, delivers results. On accountability, I note the concerns of the noble Lord, Lord Sutherland, about the Ofsted inspection regime, and his other concerns, which, I can assure him, the Government take seriously. Regarding what my noble friend Lord Lucas said, I can assure him that we will take a tough approach to academy failure.
Academies are having a dramatic effect on results, particularly where new sponsors have taken on formerly underperforming schools. These sponsors challenge traditional thinking and have no truck with a culture of low expectations. There are plenty of examples of schools that have improved their performance over the past year alone by over 20%. However, there is still much more to do. We have already turned 200 of the worst-performing primary schools into academies supported by a strong sponsor. However, too many children are still suffering from a mediocre education. We therefore want to go further, as my noble friend Lady Perry said, and tackle more underperforming primary schools and pair them up with a high-quality sponsor. My noble friend Lord Moynihan made the vital point about the importance of governors. I can assure him that this is something that we will focus on intensely.
After attempting to answer three Questions not on my specialist subject, it has been a delight to respond to this debate on the contribution of academies and free schools in this country. It has been a most excellent debate and I thank all noble Lords for their contributions.
Growth and Infrastructure Bill
Lord Jenkin of Roding
“(4A) In relation to development in Greater London, the Secretary of State may only give a direction under subsection (1) if an application for planning permission for the development would be an application of potential strategic importance for the purposes of section 2A of the Town and Country Planning Act 1990.”
Lord Jenkin of Roding
My Lords, the amendment seeks to avoid a potential inconsistency in Greater London between the concept of what is of “strategic importance” for the purposes of the Mayor of London’s powers to intervene in the local planning process, and what is of “national significance” for the purposes of the Planning Inspectorate’s role under the new scheme. The potential inconsistency is set to arise in the City of London in particular because the Government’s proposals in the Bill do not reflect the recognition given in the existing system to the special circumstances of the City.
Greater London provides a useful yardstick for the Government’s proposals because regulations have already laid down in some detail what sort of development might, because of its implications for the regional economy, require a wider look than that taken by the local planning authority alone. It is in the interests of certainty and consistency that this careful demarcation is not undercut by the new proposals, which have a similar aim only with a national rather than a regional scope. Of course I am not suggesting that every development deemed to be of regional importance should be regarded as nationally significant as well but the converse seems to me compelling. I struggle to see how a development could be said to be of national significance when it is not treated as regionally significant.
Let me make it clear at once that the Government’s current proposals generally reflect this view. The consultation indicates a threshold of 40,000 square metres of floor space, above which a development might be considered nationally significant. Of course that comes from annexe A in the consultation document. This considerably exceeds the thresholds laid down for potential strategic importance in most of Greater London—namely 20,000 square metres in central London and 15,000 square metres in outer London. This was provided by the Town and Country Planning (Mayor of London) Order 2008, which was made under the powers introduced by the Greater London Authority Act 2007.
I suggest that this is the right way round. Powers to determine matters on a regional level should, if I can put it this way, kick in before powers to determine matters on a national level are involved. However, in the City of London—as opposed to Greater London as a whole—a higher threshold is provided for when a development might be regarded as of potential strategic importance within Greater London. The threshold in the City is 100,000 square metres of floor space. It may seem strange to some of your Lordships to single out a particular area in this way. It is, however, a recognition of the markedly different planning environment in the City from anywhere else in Greater London and, I might suggest, from anywhere else in the country.
The question of thresholds was discussed at some length in this House when the Bill for the Greater London Authority Act 2007 was considered in Parliament. It came to be accepted, I think on all sides of this House, that it was appropriate to recognise the special circumstances of the City in this way. I have reason to hope that the Minister may be receptive of this argument today. My noble friend Lady Hanham may well remember that she was on the Front Bench for the Opposition at the time of that Bill and she appeared to be very appreciative of the City’s case. I have no doubt that my noble friend Lord Ahmad will be as well.
In terms of commercial development, what is significant in the City is not the same as what is significant elsewhere. The City is an area devoted to business in a manner unlike any other. Noble Lords who take an interest in these things will recall that it has fewer than 7,000 residents on the parliamentary roll, but more than 300,000 people work there. No global commercial centre can sustain itself without a substantial property stock capable of meeting the changing needs of international business. A principal objective of the planning system as it has been operated in the City is to ensure a plentiful supply of office buildings as one might say befits a world-leading business and financial district in the 21st century.
During the discussion about thresholds in 2007, I think that the House recognised that applying the same thresholds to the City as elsewhere would capture a whole raft of projects which, while of potential strategic importance in other London boroughs, were unexceptional so far as the City was concerned. This would have defeated the purpose of the new powers, which was to enable developments of special or unusual importance to receive the wider consideration that they merited, while leaving boroughs to perform tasks within their normal range of responsibility and expertise without undue disruption or uncertainty.
The application of this principle in the City led to the adaptation that I described. To apply the threshold of 40,000 square metres in the City would leave far more projects liable to be treated as nationally significant than would be treated as regionally significant for Greater London. This seems absurd. Of course the situation under this clause is not quite the same as that which exists with respect to the Mayor of London, because the exercise of the Planning Inspectorate’s powers will be triggered only on the application of the developer. However, this point of difference does not justify what seems to be a substantially different approach in respect of the City to the notion of what is of strategic importance.
The Government have been clear that they regard the new process as something to be used as an exceptional course. In the other place on 4 December, my honourable friend Nick Boles described it as a backstop where there were genuine reasons to bypass the normal role of local planning authorities. In my view, this requires thresholds for national significance that recognise the distinct position of the City, in the way that it is currently recognised in determining potential strategic importance at regional level. In that way, we would avoid the topsy-turvy situation where the City was the only part of Greater London where a development could fall within the nationally significant regime without being treated as of potential strategic importance at regional level. As I said, that would be absurd.
It may be that this should be dealt with in regulations rather than in the Bill. However, I hope that my noble friend on the Front Bench will give me some reassurance that the Government will be mindful of the need for a consistent approach. I beg to move.
Lord Ahmad of Wimbledon
My Lords, as ever I am grateful to my noble friend for the thoughtful remarks he made about why London is a special case and why we should have a different planning approach. To put it simply, we agree. That is why we set out in Clause 24 that new Section 35(4) should require the Mayor of London’s consent before business and commercial projects in Greater London can be directed into the nationally significant infrastructure planning regime. Therefore the amendment is not required.
I can reassure my noble friend on his final point about how best this can be taken forward. We will discuss with the mayor how the proposal will work in practice, to ensure that there is no conflict with the mayor’s responsibilities for projects of strategic importance.
My noble friend asked a few questions about the mayor’s role. I reiterate that we recognise that London has its own planning context, with the mayor taking responsibility for strategic planning across London. That is why we built into the legislation the requirement to obtain the mayor’s consent to issue a direction for any business and commercial project in Greater London that wants to use the nationally significant infrastructure regime. We also agree that it is hard to envisage a type of nationally significant scheme that the mayor did not have the ability to consider as being of strategic importance.
My noble friend Lord Jenkin referred also to the City of London—a place I know well—and to how different it is from other parts of London. He said that the threshold should be much higher to bring powers into line with those available to the mayor.
My noble friend alluded to the consultation. We are still considering the responses that we have received on the proposed thresholds; the intention behind them was to provide a gateway and give a clear indication that only schemes of national significance would be directed into the regime. Not every application above the thresholds will be directed into the regime and I come back to the point that the mayor’s consent will be central.
I will explain our position a little further. We do not think that the amendment will work from a technical standpoint, as the schedule to the Town and Country Planning (Mayor of London) Order 2008, which refers to projects of potential strategic importance, goes much wider than the Government have proposed in their consultation paper on extending the infrastructure planning regime and commercial projects. For example, the order includes retail as part of strategic development which may affect the mayor’s strategic policy. The Government have already indicated in the consultation paper on extending the regime to business and commercial projects that they do not propose to include retail development as a prescribed project of potential national significance.
The 2008 order also includes types of transport infrastructure as development of potential strategic importance. Under the 2008 Planning Act certain forms of transport infrastructure that meet specific thresholds must be considered under the nationally significant infrastructure planning regime. Transport projects that fall beneath the thresholds have to make a request to use the regime should they wish to do so.
The amendment would add to the complexity of the legal picture, confronted with issues around London. I come back to the point that I made at the outset. We have built into Clause 24 a simple requirement to obtain the mayor’s consent so that this complexity is not necessary. For its implementation we are working with the mayor’s office and will continue to have discussions with him about how this can best be taken forward. With that explanation, I hope that my noble friend is minded to withdraw his amendment.
Lord Jenkin of Roding
My Lords, I will study my noble friend’s response carefully. I hope that I had made it clear that I was not considering the powers of the Mayor of London in this amendment but simply the question of the thresholds within the City area. My point was that a threshold of 40,000 square metres would be absurd within the City and for other purposes the threshold has been put at 100,000 square metres. Before I withdraw the amendment, can my noble friend confirm that his response takes into account what is seen by the City as an extremely important issue?
Lord Ahmad of Wimbledon
Specifically on the issue of the threshold, different thresholds for projects of strategic importance apply to different parts of London. I can confirm that the threshold includes development that comprises or includes the erection of buildings in the City of London with a total floor space of more than 100,000 square metres.
Lord Jenkin of Roding
I am most grateful. I have no doubt that the discussions will continue. I was really more concerned about the Guildhall than City Hall. My noble friend, who said that he was familiar with the City, will understand that. With that assurance, I am happy to withdraw my amendment.
Lord Adonis
“(6) The Secretary of State must prepare and lay before Parliament a proposal for a national policy statement, setting out national policy in relation to this section.”
Lord Adonis
My Lords, as I said at Second Reading we are far from convinced that this Bill will do much to promote growth, or boost investment in infrastructure. The obstacle to infrastructure investment is not, largely, planning. It is funding, lack of clarity about government policy in key areas and the state of the economy. The National Infrastructure Plan does not meet this point, because it is simply a list of projects and not a blueprint for how they are to be funded, promoted and delivered.
My amendment in this group is simple. It attempts to provide greater policy certainty and impetus to taking projects forward. The Secretary of State should lay before Parliament a national policy statement to provide a framework for infrastructure decision-making, including in areas not addressed by the existing national policy statements, which cover energy, ports and waste water. As has been repeatedly noted in our debates today, there are still no national policy statements for airports, road, rail, water supply or hazardous waste. There is a big gap to be filled here and this amendment seeks to do that. I beg to move.
Lord Greaves
My Lords, I have Amendment 79 in this group. I was going to say how much I support Amendment 79A, which is in the name of the noble Lord, Lord Adonis. I do not think he spoke to it but I am happy to support him on it.
My amendment is similar to one that I moved when we were talking about Clause 1. Schedule 1 to the Town and Country Planning Act 1990, among other things, provides that notification of planning applications is given to all town and parish councils within the area of the authority. This amendment would provide the same duty on the Secretary of State to notify town and parish councils when an application for development consent takes place within their area and when a significant amendment is made to it. It is as simple as that. I hope that the Government will be able to accept the amendment, which places in the Town and Country Planning Act the same duty as already applies to local authorities.
Lord Adonis
The noble Lord, Lord Greaves, quite rightly points out that I did not speak to my second amendment, which I thought was in the next group. The amendment is designed to request that the local plan would have primacy in the event that the Government refuse to publish a national policy statement. Since it is the only plan which applies in that event, it seems to be perfectly reasonable that it should be the one that has primacy.
Baroness Young of Old Scone
My Lords, I stand briefly to support Amendments 78ZB and 79A. I will not re-rehearse the arguments that I made when talking about the previous group of amendments but will simply say that in my experience developers crave certainty. It is not always possible to give certainty, but if a firmer framework is put around the planning process, that would provide more certainty for developers. That is something they would welcome, and both these amendments would enhance that.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I will speak to Amendments 78ZB and 79A first, before then speaking to Amendment 79. The Government cannot agree to Amendments 78ZB and 79A. The first of these amendments would require the Secretary of State to,
“prepare and lay before Parliament … a national policy statement”,
for any development which would be the subject of a direction under Section 35 of the Planning Act. Amendment 79A would then require the Secretary of State to make decisions on development consent orders for business and commercial developments, where there is no national policy statement in place, in accordance with the relevant local plan. I will set out my reasons for not being totally in favour of this.
As we set out in our recent consultation document on the new business and commercial category of development, the Government do not think the case for one or more national policy statements is strong for this category of development. The consultation closed in January and we are considering the responses that we have received, including on the subject of whether or not a national policy statement for business and commercial development should be prepared. I should stress that, unlike nationally significant forms of infrastructure, this clause does not provide for a mandatory planning route. Developers may, as we discussed on previous amendments, make a request to the Secretary of State to use the Planning Act regime or they may continue to submit their planning application to the local council. Although there is a worrying trend of large-scale major applications taking longer to determine, we recognise that many councils do determine important applications quickly and that the majority of business and commercial applications will probably remain with the local council for decision. We expect the numbers of business and commercial applications to be determined via this route to be very small.
Without a national policy statement, the Secretary of State will determine applications having regard to any local impact report, any prescribed matters and any other matters he considers both important and relevant. This could include the local plan and the National Planning Policy Framework, which of course itself places great importance on local plans. In those circumstances, Amendment 79A is clearly unnecessary. The effect of the amendment would be that the local plan potentially overrides other important considerations. For projects of national significance it is important that a wide range of matters are able to be given appropriate weight.
My right honourable friend the Secretary of State for Transport has, for example, issued decisions under the Planning Act regime without a national policy statement in place. In reaching his decision on the application for the north Doncaster rail chord, my right honourable friend agreed with the examining authority that the unitary development plan, the draft core strategy, key policies from the local plan, the National Planning Policy Framework and other policy documents were able to provide the necessary policy context.
Baroness Young of Old Scone
What happens in rail transport is very different from what happens in a heterogeneous collection of commercial and business applications. The whole policy framework, if not explicit in terms of railway planning, has been established for many years and the plans and proposals for most of the railway authorities and operating companies are very visible and transparent. Using a railway example does not test out that issue.
Baroness Hanham
My Lords, I sometimes think it is not a good idea to give examples so I will move on. The reason that I have said the national planning statement is not being looked at with favour for building commercial is simply because the expectation is that it will be of very little use and that there are other documents and evidence that will be good enough to help in this matter.
We support the intention behind Amendment 79 as we also believe in the important role that parish councils can and do play in the planning system but we are not happy to accept it for the following reasons. First and foremost, the Planning Act 2008 already places a requirement on the applicant to inform local authorities, communities and other prescribed bodies, which include relevant parish councils, about the proposed application and to engage them in pre-application consultation. In addition, should an application then be accepted for examination by the Secretary of State, the applicant must inform those bodies that the application has been accepted so they have an opportunity to make representations and register as interested parties for the purpose of the examination. Therefore, we cannot accept the amendment simply because it is not necessary. Parish councils are already defined as a statutory party in the regulations that accompany the primary legislation. This means that parish councils must be consulted about proposed applications for a development consent order and if they wish to make representations, they are able to do so. With those explanations, I hope that the noble Lord will be able to withdraw the amendment.
Lord Greaves
My Lords, I am grateful for the Minister’s comments on my amendment. I am not sure I grasped all the details of the answer but I will read it carefully and if I have any further questions, I will come back. One question I have now relates to the pre-application consultations under the 2008 Act. Does that mean that an application for development consent for business and commercial purposes under the new provisions would not be accepted until those pre-application consultations by the applicants have taken place locally? Will that be the case in future?
Baroness Hanham
My Lords, part of the whole system under the Localism Act in particular was that developers should carry out pre-application consultations on every application. The answer to the noble Lord’s question is yes, we would expect that pre-application consultation to take place with everybody who might be affected by the application. That, of course, might include parish councils.
Lord Greaves
I am not sure that the Minister has actually answered my question. I accept what the Minister has said that it is requested—as it is for ordinary planning applications. But in an ordinary planning application, if the pre-application consultations have not taken place, that is not a reason for refusing to accept and register an application. If I am wrong, I would be delighted to hear from the Minister but I do not think I am wrong. But in the case of an application for development consent that is to be dealt with nationally, is it actually a requirement and would the application not be accepted without it?
Baroness Hanham
My Lords, the answer to the noble Lord’s question is, on both counts, yes. It is part of the regime that there must be pre-application consultation, whether it is going to be done by the local authority or under the major infrastructure plans.
“Community Infrastructure Levy: Greater London
After section 222 of the Planning Act 2008 (regulations and orders: general) insert—“222A Greater London
CIL regulations may include provisions enabling the Mayor of London to ensure that charging authorities in Greater London have proper regard to the need to be consistent with the spatial development strategy prepared and published under Part VIII of the Greater London Authority Act 1999.””
Lord Tope
My Lords, Amendment 81 stands in my name. We now return to the Mayor of London, as distinct from the lord mayor, and to Greater London, as distinct from the City of London. This amendment would enable the Secretary of State to include a requirement in the regulations for the community infrastructure levy—henceforth to be referred to as CIL—that in setting their CIL rates London boroughs should have regard to the policies of the London Plan. This simple addition to the mayor’s current powers to vet proposed CIL demands would give developers greater confidence in the CIL-setting process and that local and cross-London priorities are being effectively aligned. It would also ensure that the strategic priorities set out in the London Plan are the focus of localised spending for the good of the capital as a whole.
The mayor will continue to vet all local CIL charging schedules in London to ensure that they take the mayoral CIL rates into account. However, according to the mayor, many developers have expressed considerable concern about CIL, worried that substantial payments proposed by local planning authorities could make new and important developments unviable. According to the mayor, a handful of local CIL rates proposed by some London boroughs are now emerging that appear to be prohibitively high and could jeopardise London’s key developments coming forward, despite passing the regulatory tests of viability.
Therefore, the mayor strongly believes that it is vital that the risks to the delivery of strategic development objectives in London are minimised. He wants to ensure that he has strategic oversight over CIL payments that are being demanded from developers by boroughs and has the power to require amendments if payments would make an important strategic development potentially economically unviable. I beg to move.
Lord Adonis
Could the noble Lord give some examples of London boroughs with CIL rates he believes to be too high, given that he has used this as an argument for this amendment?
Lord Jenkin of Roding
My Lords, mention of the community infrastructure levy in this amendment gives me an opportunity—of which I have given my noble friends on the Front Bench notice—to raise an issue that was discussed with my noble friend Lady Hanham when she met the representatives of a very interesting small company called Pocket Living Ltd. This company aims to provide housing that is within the reach of people who can currently only afford to rent, and yet are above the level to qualify for social housing. Pocket Living Ltd has recently published a very splendid brochure, Pocket: Powered by the Mayor of London. This concerns the mayor’s housing covenant fund, but the company is very much a thriving one that fills a hugely important gap in housing provision, not just in London but potentially elsewhere as well.
The question is: what is the definition of affordable housing that would qualify for relief from a community infrastructure levy? When we debated Clause 6 we had a new definition of the affordable housing requirement, and I am told this is the first time that the words “affordable housing” have appeared in any statutory definition. The definition as it stands serves the limited purposes of that clause, but it adds to a plethora of overlapping definitions in this area that have grown up over the years for different purposes. Not only are these confusing, they can sometimes be downright contradictory. This is important because, as we have discussed, the need for genuinely affordable housing has never been greater.
I support the Bill’s objective of ensuring that the new housing developments we need are not held back by unreasonable and unviable demands for affordable housing. However, we must do everything we can to ensure that those who want to deliver genuinely affordable housing—of which I gave a brief outline at the beginning of my speech—have every incentive to do so, and are not held back by the unforeseen consequences of statutory definitions that may have been fit for purpose at the time, but in retrospect turned out to be too restrictive. I am afraid this is what has happened in the case of the regulations implementing the CIL. The regulations quite rightly recognise that we should not increase the burden on those with low or modest incomes, who are already struggling to find a home they can afford, by adding what would be a sizeable additional tax. However, the definitions of relief are so tightly drawn that we now find they do not cover some of the new and inventive models of affordable housing that are emerging.
I have mentioned that I was recently approached by a young company that found a very clever way to build smart new flats in central parts of London that young singles and couples can buy outright, even if they are on a modest income. The company wanted to build a small block of flats in Wandsworth for sale at around £200,000 each. The council wanted them, the Mayor of London wanted them, and they had a waiting list of 13,000 would-be buyers who desperately wanted them. However, as noble Lords may know, Wandsworth was one of the first London boroughs to implement the new levy, and when these people did their sums, they worked out that this would add some £10,000 to the cost of each flat. For a young couple on perhaps £30,000 or £40,000 a year, who have already been saving for perhaps seven or eight years for a deposit and have to pay London rents, £10,000 is an awful lot of money. The company reluctantly had to conclude that the scheme was unviable, and the plans were dropped.
These were genuinely affordable homes. They were available only to people who could prove that their salary was below the mayor’s limit for affordable housing. They were for sale at 20% below the open-market value, with a maximum price of £225,000. They could only ever be sold to other buyers who qualified for affordable homes. They would remain affordable homes, however many hands they went through. In fact, they satisfied every condition that my noble friend’s department sets out in the National Planning Policy Framework to qualify for affordable housing. Council planners say that they are affordable houses. The company had built five blocks of them already before the CIL came into effect. The Mayor of London agrees that they are affordable houses. DCLG says that they qualify for the affordable housing enhancement for the new homes bonus—so one part of the department seems to recognise this while the other does not. However, when it comes to the community infrastructure levy, they are treated in exactly the same way as if they were homes for millionaires. That really cannot be right. The only reason for it is that, when the regulations were drawn up in 2008, that type of home did not exist, so it was not included within the narrow definition for affordable housing.
As I have said, I am extremely grateful to my noble friend and my honourable friend Nick Boles who met with me and the representatives of this company. They listened very sympathetically as we put the problem to them. The company came away from that meeting encouraged by Ministers’ recognition of the problem. I know that Ministers have conceded that the CIL regulations are not perfect. One piece of sticking plaster was already applied just a couple of months ago, but I understand that a consultation paper will shortly be issued with some more proposals for change. Can my noble friend give the Committee some assurance that a priority will be to ensure that relief from CIL will be extended to cover all types of genuinely affordable housing, including the kind of housing scheme that was described to my noble friend and her honourable friend, and that the definition will be broad enough that we do not have to come back to it again within four or five years?
I was very struck by the story that this company told, and I think that Ministers were, too. I hope that we may get a sympathetic response to this plea.
Lord Ahmad of Wimbledon
My Lords, I thank noble Lords who have participated in this short debate. I thank also my noble friend Lord Tope for tabling the amendment. I understand his desire to support the mayor in his efforts to secure London’s growth, but I remain to be convinced that the changes being proposed are necessary and I shall highlight why.
The mayor has sufficient powers under the existing legislation to achieve his objectives. He has powers to set a CIL charge in London. He introduced this charge in April 2012 to help fund Crossrail, an objective that the Government fully support.
The existing CIL regulations are clear that the London boroughs must take the mayoral CIL charge into account when setting their own CIL charges. They cannot set a CIL charge which, when combined with the mayoral charge, would make broad areas of development unviable.
We have recently reviewed the statutory guidance for CIL. It is now clearer about the relationship between the levy and the implementation of local plans. The mayor can use the statutory guidance to challenge councils if he feels that their rates could put implementation of the London Plan at risk. Perhaps I may dwell on this point a little further. The issues within the statutory guidance published in December 2012 make it clear that charging schedules should be consistent and support implementation of the London Plan. It is also clear that the ability to deliver viably the sites and scale of development identified in the local plan should not be threatened. I point the noble Lord specifically to paragraphs 32 and 33 of the guidance, which refer to charge-setting in London and confirm:
“The Government expects the Mayor and the Boroughs to work closely in setting and running the Community Infrastructure Levy in London, including through mutual co-operation and the sharing of relevant information”.
We have also encouraged charging authorities to consult for at least six weeks on their draft charging schedule. This also provides an opportunity for the mayor to review and challenge proposed rates if necessary. As I have already said, the challenge can be made, and the correct place for the challenge is at the consultation and examining stages, when the mayor can make representations on all borough CIL charges. An independent public examination stage is also key to CIL. Any representations can be made to an independent examiner, who must determine whether the proposed CIL charge is appropriate. We therefore strongly believe that the impartial role of the examiner is essential, and the mayor’s role should be to engage with the process rather than take on additional powers to direct. My noble friend talked specifically of several London boroughs that have raised concerns and the noble Lord, Lord Adonis, also spoke specifically of where those matters have been raised. I am certainly not aware of which London boroughs have raised those issues but if that information is shared I am sure that can be looked at.
To pick up on a couple of points made by my noble friend Lord Jenkin, he referred to Pocket, which met with my noble friend and my honourable friend Nick Boles. It raised the issue of CIL payments and discount market sale housing. That case is being looked at and the issues raised have struck a note with Ministers. My noble friend Lady Hanham mentioned to me that she was very impressed by the issues raised. On the definition of affordable housing for CIL, the CIL Regulations 2010 give such a definition, which was quite tightly drawn. That said, if there are continuing concerns about the operation of the levy, they will be listened to. I am sure that as the levy comes more into play and practice, both in the mayor’s office and at a borough level, we will continue to look at how best it can be improved. However, turning back to the specific nature of the amendment, with the points I have made I hope that my noble friend Lord Tope will see fit to withdraw his amendment.
Lord Tope
I am very grateful to the Minister for that helpful reply. I do not know what was in the mind of the mayor when he said that. It would probably be very interesting to know what was in the mind of the mayor. I do not know which London boroughs he had in mind. If I had known, I think I still would not have said so because inevitably we would then be discussing the examples and their merits, rather than the principle here. As the Minister knows, this is the last of a number of amendments that I have spoken to in Committee to consider the whole position of London in the context of the Bill. We have had some helpful replies and some less helpful replies to earlier amendments. I am grateful to the Minister for the reply to this particular amendment, which I hope will give some reassurance and save at least some of the mayor’s worries. I beg leave to withdraw it.
“Requirement on Secretary of State to consider climate change when drawing up a national policy statement
(1) After section 5 of the Planning Act 2008 insert—
“5A Climate change
A statement may only be designated under section 5 if the Secretary of State is satisfied that (taken as a whole) the policy in the statement contributes to the mitigation of and adaptation to climate change.”(2) After section 13 of the 2008 Act insert—
“13A Cumulative effects
(1) The Secretary of State shall publish on 6 April each year a report setting out the cumulative effect of development consents granted under this Act on the mitigation of and adaptation to, climate change.
(2) A statement designated under section 5 must contain a statement to the effect that it is the Secretary of State’s view that the requirement of subsection (1) is satisfied.””
Baroness Young of Old Scone
I rise to move Amendment 81A and shall speak also to Amendments 81B and 81C, in my name and that of the noble Lord, Lord Greaves. I hope to grasp the opportunity that the Bill provides to align the local planning regime and the national infrastructure planning regime with the objectives of the Climate Change Act to make sure that planning legislation plays a full part in taking us towards the very specific UK target of an 80% cut in CO2 by 2050 and to foster a climate-change-resilient nation.
I believe that this amendment is not at odds with the title of the Bill, as UNEP has recently described the greening of economies as a “new engine of growth”. This may well be one of the few proposals in the Growth and Infrastructure Bill that is about growth. Spatial planning can be a real contributor towards tackling climate change because it fosters development which reduces carbon emissions. It also can help to improve the resilience to impacts of climate change, such as floods or heat.
Lord Greaves
My Lords, I have added my name to these amendments. I had prepared something to say but it would substantially duplicate what the noble Baroness, Lady Young of Old Scone, has said. Therefore, I will not say it, except to underline her amendments and what she has said. In the past few years, when we have been discussing planning matters, we have been around these arguments several times under both Governments. There has been continued resistance from government to put too much on the face of planning legislation about the need to tackle climate change. I have no doubt that we will get the same resistance today.
I shall ask the Minister some questions. First, do the Government still accept the requirements of the Climate Change Act 2008? Do they apply that to their decisions, not least within the planning sphere? Secondly, is climate change and the need to tackle climate change one of the factors—whether or not it is in planning legislation—that the Secretary of State takes into account and will take into account when making planning decisions, both in the sphere of planning guidance and in making decisions about such things as applications for development control? Thirdly, is climate change something which the Government expect local planning authorities to take account of when they are making their own plans and their decisions on planning applications?
Baroness Hanham
My Lords, I start with the three questions asked by the noble Lord, Lord Greaves. With regard to climate change, Section 10 of the Planning Act 2008 already requires the Secretary of State to,
“have regard to the desirability of … mitigating, and adapting to, climate change”,
when undertaking statutory functions in respect of national policy statements. I think and hope that that concludes that. Planning has an important role in tackling climate change and making the transition to a low-carbon economy. We want to ensure that new development is future-proofed against climate change as decisions are made. As far as I am aware, local authorities would have to take account of climate change where it is relevant under their planning guidance.
I am grateful to the noble Baroness for moving her amendment. As I hope I have indicated, the Government remain committed to tackling climate change. We recognise that it is one of the great challenges facing the nation and the planning system has an important role to play, both in mitigation and adaptation. The planning regime can co-ordinate and galvanise community action on renewable energy and help to deal with the growing risks of flooding from severe weather and sea level rise. Many nationally significant infrastructure projects consented to under the Planning Act 2008, such as those that produce renewable or low-carbon energy, are in themselves major contributors to reducing the impacts of climate change.
I will now respond to the noble Baroness on her amendments to the Planning Act 2008. I hope to demonstrate to her that these changes are not needed, given the requirements that are already in place under that Act to ensure that the mitigation of and adaptation to climate change are properly taken into account both for individual projects and in terms of their cumulative effects.
Amendment 81A would introduce a new clause which would allow designation of a national policy statement under the Planning Act 2008 if the Secretary of State were satisfied that the policy in the statement contributed to the mitigation of, and adaptation to, climate change. It is difficult to see how this adds anything to the existing Section 10 of the Planning Act. As I have already said in reply to the noble Lord, Lord Greaves, this already requires the Secretary of State to have regard to the desirability of mitigating, and adapting to, climate change when undertaking statutory functions.
The amendment then proposes that a report should be produced annually setting out the cumulative effects of development consents. The noble Baroness’s Amendment 81B, would require the Secretary of State to have regard to the latest version of this report when taking decisions on nationally significant infrastructure projects where no relevant national policy statement had been designated. I suggest that such annual reports would add a new legislative requirement with no discernable benefits. It is important to remember that a key factor in taking decisions on nationally significant infrastructure projects is the framework set out in national policy statements. Where these statements are in place, the Secretary of State is generally required to make decisions on development consents in accordance with them. The statements include specific policies on the mitigation of, and adaptation to, climate change. National policy statements are also subject to a sustainability appraisal before they are designated, and this appraisal will include consideration of impacts and benefits in terms of climate change. The appraisal of sustainability is also accompanied by a monitoring strategy, which ensures that a strategic-level assessment of the effects of implementation of national policy statements is properly considered.
In addition, most nationally significant infrastructure projects must be subject to detailed environmental impact assessment, and cumulative impacts must be considered as part of those assessments. I know that a number of noble Lords have expressed concern about those situations where no national policy statement may be in place that relates to a development requiring consent under the Planning Act 2008. But, in such circumstances, the Secretary of State must take account of factors that are both important and relevant when reaching a decision on development consent for a project. Such factors are very likely to include planning policies as set out in the Government’s National Planning Policy Framework. A core planning principle of the framework is for planning to support the transition to a low-carbon future in a changing climate. In short, I would argue that we already have structures in place that meet what the noble Baroness is seeking to achieve through Amendments 81A and 81B.
On Amendment 81C, the National Planning Policy Framework already expects local councils to adopt proactive strategies to mitigate and adapt to climate change, in line with the objectives and provisions of the Climate Change Act 2008. We have set out clear policies in the framework on how local authorities should support the move to a low-carbon future. They should do this by planning new development in locations and ways which reduce greenhouse gas emissions, by actively supporting energy efficiency improvements to existing buildings and by having a positive strategy to promote energy from renewable and low-carbon sources. We have also made it clear that local plans should take account of climate change over the longer term, including factors such as flood risk, coastal change, water supply, and changes to biodiversity and landscape. I am sure that all of this rings pretty hard with the noble Baroness, who has spent quite a lot of time on all these issues. I also recognise the work of the Planning and Climate Change Coalition in producing cross-sector guidance, which has already helped local authorities to deal with the detail of how to take action.
As local plans are already required by the framework to have climate change policies on mitigation and adaptation that are in line with the objectives and provisions of the Climate Change Act 2008, there is no need for this amendment. The framework achieves this in combination with the existing duty on local authorities: Section 19(1)(a) of the Planning and Compulsory Purchase Act 2004, and the requirement in Section 19(2)(a) to have regard in preparing their plan to national policies and advice contained in guidance issued by the Secretary of State.
Furthermore, the amendment raises the possibility of legal challenge if the local circumstances mean strict application of every provision of the Climate Change Act 2008 is not appropriate. Additionally, any future changes to legislation on climate change can be readily reflected in updates to national planning policy, whereas a requirement in primary legislation, linked directly to the Climate Change Act 2008, could not be updated quickly. If the Act of 2008 were to be updated, this could confuse and hinder the production of up-to-date local plans.
In conclusion, the Government remain committed to tackling climate change. Existing provisions in legislation and policy already achieve what the noble Baroness seeks to do through her amendments. Given these reassurances about how we believe that this is all being dealt with, I hope that the noble Baroness will withdraw her amendments.
Baroness Young of Old Scone
My Lords, I thank the Minister for her extensive response, which I shall have to pore over before I come to any conclusion. I have two issues in the mean time. The requirement of the Secretary of State to have regard to a general set of provisions about climate change is not the same as linking that clearly with the Climate Change Act and the suite of targets that flow from that. Getting that kind of numerical precision of the targets into the Secretary of State’s responsibilities is important. The Minister’s point about the importance of the national policy statements for setting the framework for decisions means that Amendment 81A becomes even more important in terms of making sure that the Secretary of State does have this duty when he draws up national policy statements.
Lord Jenkin of Roding
“Development control
In the Planning and Compulsory Purchase Act 2004, after section 54 insert—“54A Power for local planning authorities to require payment of a fixed monetary penalty for late or non-response to statutory consultations
(1) A local planning authority is required by statute to consult the statutory consultee before deciding whether to grant planning permission and where it appears to the local planning authority that—
(a) the local planning authority has not received representations concerning the application from the consultee within the timeframe specified in the consultation; or(b) the consultee fails to give notice within the timescale specified in the consultation that it does not intend to make representations.(2) The local planning authority may charge a penalty fee if they consider it expedient to do so (within that timeframe).
(3) A local planning authority which proposes to charge a penalty fee must—
(a) issue a document (a “statutory consultee penalty fee schedule”) setting the amount of the penalty charge payable, and other criteria, by reference to which the amount is chargeable in respect of planning applications.(b) be mindful of relevant advice issued by Secretary of State.””
Lord Jenkin of Roding
My Lords, at this time of night I will try to deal with the amendment extremely briefly. As we discussed earlier, the problem with the planning system is that it involves more than one consent. In many planning applications there is an obligation to notify other statutory bodies of the application that has been made. One of the problems that has emerged from that is the time taken by those other bodies to respond. In the mean time, of course, until they have responded, the planning authority cannot get ahead, which is one of the reasons why planning decisions get delayed.
Amendment 81CA sets out a procedure by which in appropriate cases the local authority can charge the consultee for the delay. This, it is hoped, will never have to be used. Of course, if there is agreement with the authority that the consultee cannot reply within the 21 days or whatever is appropriate for that particular consultation, that is different. If they have agreed a different timetable, that is fine. However, in many cases they simply do not reply. A disincentive to delay of that sort, with the prospect of being fined, might in fact encourage the others.
One might ask the question, “Would it actually deliver?” The Killian Pretty review on planning applications, Planning applications: A faster and more responsive system, came to the conclusion that it has the potential considerably to reduce the delays due to consultation. It has been estimated that these delays cost the economy at least £35 million a year. This would therefore be a valuable extra piece of machinery that could encourage the acceleration of the decisions on planning applications.
We are also discussing Amendment 81CB. This is a rather more drastic amendment, which perhaps at this stage should be regarded as a probing amendment. Certain of the consultees, the statutory bodies, have the power to veto applications. Examples have been given—I will not quote them all—of where a highways authority has said, “You cannot possibly do that. We will veto it”, and it does so under a power that has been given by the Secretary of State. This amendment is intended to remove that power of the Secretary of State. It is not right that a highways authority or whoever should have the right to veto an application just like that. I can understand that there may have been a reason for it, but it is one of the reasons why planning applications run into difficulties and why applications then have to be turned down.
These are two ways in which we could achieve the Government’s objective of speeding up the planning system. I hope that my noble friends on the Front Bench may be able to give me an encouraging reply. I beg to move.
Lord Greaves
My Lords, I understand the reasons behind these amendments but I am a little concerned about them. As regards the second amendment, there are very good reasons why a highways authority should be able to say no to a development in some circumstances if it considers that it would be unsafe and that to allow it to go ahead might cost lives or cause people to be injured. There are very good reasons for that power.
Of course, you can speed up the whole planning process very easily by abolishing it and letting people do what they want. The reason why the planning process exists and there are lots of obstructions in it to people doing exactly what they want as quickly as they want is because it is in the interests of society in general that planning should take place and that development should be controlled and organised in a way which is best for society. Nevertheless, it is perfectly proper to argue generally where the balance lies as regards the making of plans and individual applications.
The Environment Agency does not have a power of veto in relation to drainage but a lot of planning authorities will think very carefully indeed before going against the advice of that agency on matters relating to drainage. They will spend a lot of time talking to it to try to find an acceptable way through—a compromise—in a particular case.
I think that a lot of unintended consequences could flow from the first amendment in this group and that it has to be thought about very carefully indeed.
Lord McKenzie of Luton
My Lords, we await the Minister’s response on these amendments. I am bound to say that I have some sympathy with the point made by the noble Lord, Lord Greaves, about the second of the amendments and the need to have specific powers in some circumstances: for example, in the case of a highways authority. Presumably, that authority cannot exercise those powers in an arbitrary way. I should have thought that it had to be subject to a test of reasonableness.
The only point I would make on Amendment 81CA is that it seems to be a clear recognition of the fact that delays on the part of a local planning authority are not always or only the fault just of the local planning authority; it relies on others to play their part. That is why we will come back to Clause 1, which we wish to delete from the Bill.
Baroness Hanham
My Lords, the proposed new clauses in Amendments 81CA and 81CB seek to improve the performance of statutory consultees in the planning system. I am very sympathetic to this objective but I am not sure that these proposed new clauses are the way to achieve it.
It is important to recognise that statutory consultees have an important role in the planning system. The key statutory agencies have valuable expertise on a range of specialist areas such as heritage, highways and nature conservation, and their input helps local authorities ensure that the impacts of new development are comprehensively understood in planning decisions.
Where statutory consultees are consulted on planning applications, they are required by law to reply to the local authority within 21 days. In doing so, they must provide a substantive response, enabling the local authority to proceed with the determination of the application in question. Any extension to the 21-day deadline would need to be agreed with the local authority. Therefore, boundaries are already in place.
Statutory consultees are required to report annually on their performance in meeting these targets. The five main statutory consultees achieve between 96% and 99%. Taking this into account, we do not think that a system of fines could significantly improve performance and would be difficult to devise. However, we are aware of the need to improve the way statutory consultees engage with both local authorities and developers to foster a more positive approach to facilitating development and delivering growth. I am bound to say that the reply within 21 days cannot be just a holding reply; it has to be a full response.
We have also taken action to ensure that statutory consultees are more accountable for the advice that they give and we have changed the award of costs circular so that if an inspector considers that a statutory consultee has acted unreasonably during the determination of a planning application the consultee can become liable for an award of costs. Although I support the intentions behind the amendment, I do not think it is necessary, considering the steps we are taking.
The second amendment would repeal the general power in primary legislation for the Secretary of State to give directions restricting the grant of planning permission by a local planning authority. The Planning Acts give the Secretary of State a wide range of default powers that can be used as a last resort in relation to both plan-making and decision-taking. The powers are there as a fall-back to protect the public interest. The powers set out in Section 74 of the Act are exercised through Article 25 of the Town and Country (Development Management Order) (England) 2010 and that provides that the Secretary of State may give directions restricting the grant of permission by a local authority either indefinitely or during such a period as may be specified.
Planning applications are called in only in exceptional circumstances and the ability to serve holding directions is essential to the smooth functioning of the call-in process. In the case of the power of direction exercised by the Highways Agency, this is exercised during the consultation period, where the agency considers that, were a local authority to approve a planning application, it could result in a dangerous increase in risk to users of motorways and strategic roads. I agree that the Highways Agency should be accountable for the way in which this power is used in order to ensure that it is used for the key purposes of facilitating growth, both in ensuring that proposed developments are not delayed without good reason and in ensuring that approved developments do not result in additional congestion on the strategic road network. If noble Lords agree, I will write with further details on the Department for Transport’s policy on the use of these directions and on any future plans it might have to review them.
I should like to reassure my noble friend and other noble Lords that we are also concerned that any direction is used in as open and transparent a way as possible. The Highways Agency is very keen to work with applicants in developing their schemes and welcomes pre-application discussions. It knows that early engagement with developers is vital to ensure that applications can progress without delay. The agency says that it responds to consultations within the prescribed limit in 99.9% of cases. In 2011-12, 9.4% of responses made by the agency were a holding direction. As already mentioned, the agency has published an improvement plan with actions to improve its performance, especially in reducing the time taken.
I have abbreviated slightly what I wanted to say and I hope that, having done so, my noble friend will feel able to withdraw his amendment.
Lord Jenkin of Roding
I am grateful for the amount of trouble my noble friend has taken in responding to these two amendments. I recognise that the second one was pretty drastic and I described it as a probing amendment, but I am grateful for what she said about the need to improve the performance of the statutory consultees. With that, I am happy to withdraw the amendment.
Lord Shipley
“General duties with respect to water industry
(1) The Water Industry Act 1991 is amended as follows.
(2) In section 2A(1) (guidance on social and environmental matters) after the words “in the guidance” insert “and about how in exercising its powers and duties, the Authority shall take into account aggregate population and housing growth projections relevant to water undertakers and sewerage undertakers”.
(3) After section 2A (general duties with respect to water industry) insert—
“2AA Duty on the Authority (Ofwat) to have regard to local population and housing growth projections in undertaking price reviews
In exercising and performing the powers and duties mentioned in subsection (1) above, the Authority (Ofwat) shall have regard to aggregate population and housing growth projections (which are agreed as part of an adopted local plan, relevant to the individual appointment area or areas of the water and sewerage undertaker).””
Lord Shipley
My Lords, I hope that Amendment 81CC will be seen by the Minister as a constructive one. It is supported by the Local Government Association, of which I am a vice-president but it is also supported by the water industry, specifically its trade body, Water UK. The purpose of the amendment is to place a requirement on Ofwat to have regard to future housing projections and demographic growth in adopted local plans. This would give greater certainty for water companies to invest in the essential infrastructure needed to support growth. The benefit for local communities would be more consistent planning such as investment in new reservoirs, more flexibility between water supply zones and upgrades to outdated existing infrastructure to cope with more extreme weather conditions and the increased incidence of drought and flooding.
Baroness Hanham
My Lords, I thank the noble Lord for moving the amendment, which has crept into our Bill. While the aims behind the amendment are laudable and understandable, we consider that the proposed amendment to Ofwat’s duties is probably unnecessary. It duplicates Ofwat’s existing duties, which is not in keeping with the Government’s principles for economic regulation. Ofwat already has statutory duties requiring it to protect the interests of existing and future customers. It is already required to ensure that water and sewerage companies are able to finance their functions, which include a statutory requirement to provide an adequate water and sewerage service to all premises.
The statutory water resource management planning process requires water companies to set up plans for managing the supply-demand balance over the next 25 years. This must be submitted to the Secretary of State at Defra and must take explicit account of projected population on housing growth. In making price determinations, Ofwat must take account of the published water resources management plans. Furthermore, Ofwat is already under a statutory duty to carry out its functions in a manner best calculated to contribute to the achievement of sustainable development.
The requirement to provide guidance on these matters also duplicates existing provisions. The Government have already published in draft their new statutory guidance to Ofwat—the strategic policy statement. This makes it clear that, in assessing the costs and benefits of supply-demand options, the focus should be on the best overall value in terms of long-term resilience rather than a least cost approach for the short term. This guidance also emphasises the central role of the water industry in enabling the development required to support economic growth and to meet the housing needs of the growing population.
All investment in water and sewerage services is ultimately paid for by the customer through their bills. Since privatisation in 1989, the stable regulatory framework for the water sector has enabled companies to attract more than £108 billion in low-cost investment. This investment is used to upgrade water and sewerage infrastructure, to improve customer service and to improve environmental standards. As the noble Lord has said, between 2010 and 2015, £22 billion will be invested, including ensuring that supplies are available for new and existing customers.
I hope that I have provided the reassurance that the noble Lord seeks in his amendment that there is proper investment and proper consideration of future housing growth, in particular, in the plans of Ofwat and the water bodies.
Lord Shipley
My Lords, I thank the Minister for her reply. I shall read what she says very carefully. I am not sure that I agree that the current system works as well as she indicates—we have ended up with an excess of water in some places and not enough in other places. In the end, we do not seem to be dealing with the leakages, the availability and the flooding that is currently prevalent. I will, however, consult further and think further about the need for an amendment on Report. For the moment, I beg leave to withdraw the amendment.
The Earl of Lytton
“(11) This section shall not come into force until the Secretary of State has—
(a) published detailed up to date comparative estimates of the total numbers of those ratepayers who would be liable to pay more or less as the case may be if this section were or alternatively were not brought into force, and(b) consulted formally with those likely to be affected by the bringing into force of this section, after publishing the information required under paragraph (a).”
The Earl of Lytton
My Lords, this is clearly not the time to go into great detail on a rather technical matter so I will be as brief as I can. I put down this amendment because I was dissatisfied with the explanations given by the department and dismayed somewhat at the claims made by Ministers.
Now, the noble Lords will realise that this amendment follows one moved in another place by the Member for Greenwich and Woolwich, Mr Nick Raynsford. I should probably declare some particular interest here in the sense that I am professionally involved with matters of rating. Of course, in a private capacity, I am both a landlord of commercial premises where rates are paid and, indeed, a commercial ratepayer myself in another capacity. I want to pay special tribute to the work done in connection with this and the whole question of the deferral of the rating revaluation by rating surveyors Gerald Eve. They have certainly been enormously helpful to me.
The fundamental point here is that businesses need to feel that they are being treated fairly in all this. I have mentioned before that, in my opinion, the rating system badly needs some attention. It has great unfairnesses and anomalies. The treatment of exemptions and relief needs looking at. The mounting number of appeals shows that there is a problem. Along with planning and compulsory purchase, this is another administrative system covered by the Bill that is under critical stress.
Frequent revaluations have long been known as necessary. For more than 20 years, we have had five-yearly revaluations. The Lyons report made it clear that where there are major shifts in values, more frequent revaluations might be necessary. If ever there was a seismic shift in property values, the time between 2008—the antecedent year for the 2010 year—and now was surely it.
It is hard to identify the precise reason for the decision to defer the revaluation. There does not appear to have been any consultation or compelling independent assessment, certainly not one that stood the test of hard scrutiny from the likes of surveyors Gerald Eve when they presented their evidence to the Public Bill Committee in another place. There does not appear to be any particular fiscal advantage because revaluations are tax neutral; the basket of values goes up and the non-domestic multiplier goes down, and vice versa. There does not appear to be any particular financial benefit to deferral.
Where was the quoted advantage? It was in the claim that 800,000 businesses would be better off. This simply was not correct. Even on a reworking of the Valuation Office Agency’s figures, one could not arrive at that figure; it just does not make sense. As I said, it was comprehensively demolished by the evidence submitted to the Public Bill Committee by Gerald Eve. The greater certainty claimed for the benefit of these businesses seemed to be the greater certainty of being saddled with, in many cases, an over-high base for the rating assessment.
Whatever the reasons, this has caused a considerable amount of dismay among many bodies associated with businesses, in particular the British Property Federation, the British Council of Shopping Centres and many others. Many of them have taken advice, and have in turn made representations, through rating surveyors. Today, two press releases were put out by a number of these bodies, many of them household names. They all know that the effect, based on the public statistics, will be that retailing in much of London and food superstores generally will gain by the process of deferral. However, almost everybody else will be a loser in all this. Of course, extending the revaluation from five years to seven, even on a one-off basis, will make the process of subsequent adjustment that much more difficult. It is in recognition of that that I tabled the amendment. One has to consider whether it is fair that this situation should be allowed to continue.
I noted in passing a comment that some of the Portas pilot towns in particular, about which we hear so much, are likely to suffer through this. The fact that they need the undivided attention of the likes of Mary Portas means that they have problems. Possibly there is something of a self-fulfilling prophecy here. However, one needs to recognise the message that is being sent to businesses. Perhaps because they do not have votes, they do not matter, and perhaps that is why the information fed back to me suggests that when the industry met Ministers and officials, the tone was entirely dismissive of the industry’s views.
The facts cannot be denied. Accounts abound of commercial ratepayers that are paying more in rates than in rent. Small business rate relief apart—which, of course, is financed by other ratepayers—the incidence of inflexibly high levels of rates stands in interesting comparison to the maligned upward-only commercial rent review. It is one of those areas where one simply cannot make progress, and something must be done about it.
Lord McKenzie of Luton
My Lords, I added my name to this amendment, which, as the noble Earl, Lord Lytton, says, mirrors that moved by my honourable friend Nick Raynsford in another place. Like the noble Earl, I am grateful to those who have briefed us on this matter, particularly Gerald Eve, who has given us some compelling data.
As the noble Earl has explained, the amendment would prevent the postponement of the business rate revaluation scheduled for 2015 until the Government have produced detailed, up-to-date estimates of those likely to pay more and those likely to pay less, depending on whether the revaluation is deferred for two years and, crucially, until there has been a proper consultation with those likely to be affected. Requiring proper analysis and consultation is hardly revolutionary. It is the very least that should be expected if such a significant step as postponing a revaluation is to be taken.
This is a hotchpotch of a Bill, but Clause 25 sits particularly oddly with the rest of its provisions. The lack of prior consultation points to a last-minute decision that by all accounts does not generate unanimity within the ranks of the coalition Government. Our suspicions about this are reinforced by the fact that no mention was made of a possible postponement when we were discussing the Local Government Finance Bill just a few months ago. This is strange, given that we spent some time discussing the VOA and its role in the business rate retention scheme, prompted, as I recall, by the noble Earl, Lord Lytton. Concerns were expressed about its capacity to cope, especially with the backlog of appeals from two prior revaluations, although they were brushed aside by the Minister.
Notwithstanding that, the impact assessment now states that postponement will,
“allow the Valuation Office Agency to focus more resources upon continuing to improve the valuation process and supporting local authorities with the rates retention system”.
In replying, perhaps the Minister will give us a clear update on the capacity of the VOA and the resources available to it, or we might be tempted to revert more directly to this matter when we reach Report.
We should be clear that the purpose of rating revaluations is to achieve fairness in the business rate system by ensuring that rateable values are based on up-to-date rental values. Given that aggregate business rates are kept whole in real terms, revaluation would redistribute resources to those areas and sectors that have fared relatively badly since the last revaluation from those that have fared relatively better. Clearly, the extent to which this fairness is maintained depends on how frequently rateable values are updated. Since 1990, this has been every five years, a period that is seen as the maximum interval between revaluations.
The noble Earl, Lord Lytton, referred to the Michael Lyons report, which suggested that more frequent revaluations are justified, particularly during the economic turbulence and downturn that we have experienced since 2008. If the Government are to change the frequency of revaluations, especially to lengthen it, there is surely an obligation on them to provide a robust rationale for the change from the practice that has been maintained since 1990 free of political interference. This, I suggest, has not been done.
The Government are overwhelmingly basing their case on the VOA estimates of winners and losers should the revaluation proceed—supposedly, 800,000 facing a real-terms tax increase and only some 300,000 facing a fall. However, as the VOA makes clear—and the noble Earl has touched on this point—these are “high level” estimates, not forecasts, they are based on limited rental data, and neither the rental data nor judgments have been subjected to moderation and validation. Moreover, even on the VOA data given, experts have questioned whether the data can be used to justify the figures used by the Government. This has been set out in the briefings we have received, which have specifically drawn attention to the 528,000 hereditaments classified as “other”—not retail, office or industrial—which have been assumed to be the subject of an increase in rates, where some would clearly fall into the category of those that will benefit from a reduction.
The Government’s analysis is at best crude. It does not seek to address the likely level of increases and decreases, and their distribution; nor is there any consideration of what the likely position might be two years hence. The overwhelming suspicion is that this is a political decision taken to avoid a revaluation operating in 2015, at the time of the general election. It is accepted that revaluations bring a degree of turbulence, but transitional relief has hitherto dampened the effects. If the Government are to refute this challenge, they can do what this amendment asks—produce a proper analysis and then consult with those affected.
One clear consequence of postponement will be that those areas and sectors which have done comparatively poorly since 2008 will be denied for an extra two years the reduction in tax they might have expected. Those that have performed comparatively well will have a postponement of the increase in tax. Of course, a reduction in rental values and rateable values will not necessarily generate a reduction in business rates because the tax rate—the multiplier—will rise to keep the aggregate business rates steady. However, if rental values have fallen across England by 14%, those areas and sectors which have done worse than this are the likely losers from the postponement. The issue cannot be seen just in terms of regions or cities, but information provided by the Investment Property Databank highlights that, between March 2008 and September 2012, rentals have fallen in Leeds by 31%, Nottingham by 27%, Bristol by 25%, Sheffield by 21%, Liverpool by 21%, Manchester by 19% and Newcastle by 18%. In terms of the sectors, although retail has held up in some areas, the situation in many high streets is grim. As the noble Earl, Lord Lytton, said, five out of six of the Portas pilot areas have seen rental falls greater than 14%, and news of major retail closures are all too familiar.
For those who are struggling and who had an expectation of some moderation in their business rates, the decision to postpone will prolong the agony. While “no change” may be good news for some, the undermining of a system for political ends is not conducive to building business confidence. This amendment asks for a proper analysis so the Government can justify the decision they are seeking to impose.
Lord Smith of Leigh
My Lords, I rise to speak to the question of whether the clause should stand part of the Bill and will try, at this time of night, to avoid repeating some of the comments made by the noble Earl, Lord Lytton, and my noble friend Lord McKenzie of Luton. The significance of this clause is that it breaks the consensual approach to business rating that has been in place since the Local Government Finance Act 1988. Here we are, on the eve of the revaluation which would have taken place later this year, being asked to delay it. The process of revaluation seems to have been clearly explained in The Council Tax and Non-Domestic Rating (Demand Notices) (England) (Amendment) Regulations, which the Government issued in 2012 and which say:
“All rateable values are reassessed every five years at a general revaluation. The current rating list is based on the 2010 revaluation. Five-yearly revaluations make sure each ratepayer pays their fair contribution and no more, by ensuring that the share of the national rates bill paid by any one ratepayer reflects changes over time in the value of their property relative to others”.
That seems a very clear statement of intent. Now the Government are delaying that process so, despite what they said only earlier last year about a commitment to fair share, that commitment has, presumably, been broken.
Noble Lords mentioned the Government’s case about volatility, but volatility has always occurred whenever we have had a rating revaluation and we can cope with that. The data we have from the Valuation Office Agency are pretty sketchy. I will not repeat the comment about the rather suspicious addition of the 500,000 others who make the balance of the case. Before that the balance was that there were more winners than losers. The various revaluations that we have seen—I got a briefing from Colliers International—show that in all parts of the country rateable values in the retail sector seem to have fallen by at least 19%. For the individual centres they looked at, well over 80% had shown considerable falls, with a third of them over 25%. By contrast, the West End had shown an increase of 26%. These figures come from what Colliers calls its midsummer review, which happened last year. If the Government go ahead with this delay, the retail sector might well refer to this as a midsummer murder.
Both the noble Earl and my noble friend mentioned the Lyons review, which is the most recent authoritative report on local government finance. To further my noble friend’s point, I quote directly from Lyons about more frequent revaluation:
“This would make the tax more responsive to the actual state of the property market and could have economic advantages by reducing the burden of taxation on businesses in economic downturns”.
Goodness me—we are in an economic downturn. Lyons has suggested what should happen, but the Government have taken the opposite conclusion to this evidence. We need to understand why this has happened.
Both noble Lords mentioned the Portas review so I will not go into that again. One briefing I read also said that a further unintended consequence of the review could be its impact on property prices over the next couple of years. In areas of decline, this will put further downward pressure on prices so that property values fall much further than they might have if the review had taken place. In areas where property prices have risen, the effect may be the opposite—property prices would rise to soak up the impact of the lack of change. By the time we get to the proposed revaluation two years hence, the amount of turbulence will be significantly higher than it would have been if we had gone ahead with it now. Therefore, it is going to take a Government some degree of courage in 2015 to go ahead with that review if we are going to implement it. As noble Lords have said, this is a really important step. The Government need to give us a lot more information, if they have it, about how they can justify doing this, or we will need to come back to this on Report.
Baroness Hanham
My Lords, I am rather surprised by the amendment and the tone with which it has been introduced by noble Lords. The reasons for introducing the postponements were quite clear; we are in the middle of one of the most difficult economic situations we have ever had and businesses are suffering from that as well. Therefore, what we can do to help is not to make major changes at this time. I remind noble Lords that the Michael Lyons review was carried out under the previous Government, who decided not to implement any of it, so I do not think we need Michael Lyons quoted to us at the moment.
As noble Lords have said, Clause 25 postpones the 2015 revaluation of business rates. The clause amends some of the most important parts of the business rates legislation so it may be useful if I say a bit about those provisions first.
Lord McKenzie of Luton
My Lords, would the noble Baroness perhaps explain to us what stability this decision gives to businesses which have really been struggling? For these businesses, rental values and rateable values are sure to decline in any revaluation that took place when it should. What stability is there for those businesses that were looking forward to some relief from a reduction in business rates? Is it not traditionally the case that there is a period of transitional relief for businesses that might suffer or be subject to an increase, in order to spread and dampen it?
Baroness Hanham
My Lords, we believe that stability will be provided by not having a revaluation at the present time. The economic situation is such to make a sureness and security about whatever position people are in very valuable. This is what is required at the moment to ensure that businesses know where they are. We appreciate that businesses are actually going through a very tough time; we have seen that on the high streets and we know that it is happening. So for businesses to have one problem fewer would be valuable.
Lord McKenzie of Luton
Given that what seems to be at the heart of this is a dispute over the interpretation of the VOA figures, would the Minister be prepared to set up a meeting which noble Lords could attend together with the VOA and those who have put to us a different analysis of the VOA’s data?
Baroness Hanham
My Lords, I am not sure that a combative meeting, which I think that that would be, would be very valuable. Perhaps I may think about that and see whether it would be helpful; I am not certain that it would be.
The measure is designed to give businesses security, to enable them to know where they are and to help them through what is a very difficult time.
I was asked also about the capacity of the Valuation Office Agency. We believe that it does not make any difference; it is up to it. It will have to do the same estimates again in a couple of years.
We have discussed the impact of appeals on several previous occasions. I have already told noble Lords that headroom is created in the local government financial settlement to ensure that rating appeals are taken into account and that local authorities do not lose out as a result. I hope that, with those explanations, noble Lords will decide not to press their amendments.
The Earl of Lytton
My Lords, I thank the Minister for giving such a detailed reply at this time of night. I thank the noble Lords, Lord McKenzie of Luton and Lord Smith of Leigh, for their contributions and for filling in a lot of the detail that it was not possible to give in my introduction.
My meeting with the Minister’s officials was entirely satisfactory, save for the fact that it did not give me the answer that I thought I should have derived from it—but that is par for the course; one accepts that. I understand that the particular meeting to which I referred took place last Wednesday. The Minister—it was not the noble Baroness but one of her colleagues from another place—who had originally been destined to be there for half an hour or so, was there for two minutes and 40 seconds. Just one of the representative bodies got a question in and was more or less told, “Well, it’s a done deal and that’s it”. That seemed to be the end of the conversation, which was not really satisfactory for people coming along and explaining the situation from a business standpoint.
It does not give businesses any comfort to know that the report by Sir Michael Lyons is to be left on the scrapheap because it was commissioned by a previous Government who did not implement it. These things are done with much fine intellect and great skill is applied to them, and they should be taken at face value. I say from these Benches that if businesses are just going to be subjected to the idea of the thing being of no consequence because it is politically inconvenient or political point-scoring, that does not do anything for growth or infrastructure. It does not do anything for businesses or business confidence because all this politicking switches businesses off; they do not operate on that basis.
The Valuation Office Agency’s data were fine in their own terms, but it was how they were interpreted thereafter and the claims made for them that were not substantiated. It would have been better if they had never been prayed in aid at all. The Gerald Eve analysis of the figures—produced by the Valuation Office Agency, not by Gerald Eve; it was a reworking of the Valuation Office Agency’s own figures—has to this day not been challenged or countermanded in any sense. The political overlay is a matter of dismay to many businesses.
The cost of occupation is directly related to jobs. If we are all in this together, and somebody in the Treasury or wherever in the Government is saying, “Well, we’re not going to have this thing, because, in fact, we don’t want any sort of wobbles on the transition to the Local Government Finance Act arrangements and the business rates retention scheme and all that sort of thing”, that is fine, but it would be just as well if that were said outright and then we would all know where we were.
There does not appear to be any other reason for that. With the greatest respect to what the noble Baroness said, I do not believe that the figures add up in the way that she said. I do not believe that there are 800,000 gainers. I do not see that in the figures there. It is an allocation of a large proportion of “don’t knows”, and that is not the same thing at all. Obviously the noble Baroness is entirely dependent in these things on the information that is provided by her department but there is a great deal of concern about the information, what it means and what is being claimed of it. Different interpretations are being attached to things that should have a straightforward meaning to everybody. This is a problem that we need to address.
Lord Smith of Leigh
If I might just comment on the Minister’s reply, I thank the Minister for that long reply at the end of what has been a very long day for her—I am sure she is looking forward to the conclusion of today’s debate—but I thought that reply was somewhat disappointing. As the noble Earl said, the Valuation Office report was interesting in part but the other section, if you look at the detail, seemed to say that there were no data on which it could really base that finding. The incredible thing was that all 500,000 of these others were placed as potential gainers from non-implementing. Not a single one was regarded as a loser. The credibility of that is open to suggestion.
If Ministers want a confrontational meeting, a meeting with the Valuation Office to really understand the basis of those figures might be helpful for your Lordships. If the Minister would agree to arrange that, it might be helpful. As I said, the quotation from the regulations from last year talked about the fair contribution based upon property values. The Minister is saying that to avoid turbulence we are actually going away from that principle. Lots of people would have gained by a revaluation, mainly in the retail sector but in other sectors, too. In a sense, they have the certainty that they will pay rateable values but higher than they should. But with that, I will not move that Clause 25 should not stand part.