Levelling-up and Regeneration Bill (Third sitting)
Thursday 23rd June 2022
(1 year, 10 months ago)
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The Chair
We will now take evidence from Victoria Hills, chief executive of the Royal Town Planning Institute; Tony Mulhall, associate director of the Land Professional Group and the Royal Institute of Chartered Surveyors; and David Jackson, head of planning at Savills. Before I call the first Member to ask a question, I remind Members that questions should be limited to matters within the scope of the Bill, and that we must stick to timings in the programme motion that the Committee has agreed. For this session, we have until 12.15 pm. Could I ask the witnesses to introduce themselves for the record, please, starting with Victoria Hills?
Victoria Hills: Good morning. I am the chief executive of the Royal Town Planning Institute.
David Jackson: Good morning. I am David Jackson, head of planning at Savills. I also lead our sustainability and environment service, which is called Savills Earth.
Tony Mulhall: Good morning. Tony Mulhall is my name. I am a chartered surveyor and town planner, and I am a senior specialist at RICS, with a particular focus on land matters.
Matthew Pennycook (Greenwich and Woolwich) (Lab)
Q
Victoria Hills: We think the intention to streamline local plans and take some of the bureaucracy out of them is something to be welcomed. We support that. At the moment, it is not clear to what extent the policies are going to be nationalised or not. We know the intention is there, but if you take an average local plan, we do not know—because we have not seen the detail yet—whether, for example, 10%, 50% or 80% of local policies will be effectively nationalised in this way.
In addition to the streamlining—as I say, we are not against the streamlining; if there is an opportunity to streamline, we support that—one of the areas of interest to us is the extent to which the community and, indeed, both Houses of Parliament will be involved in any consultation on these policies, which are very important policies. If they are to be pulled out of the local plans and put into a national framework, we think it is really important that an element of consultation and engagement, both with the community and across both Houses, is included in that. That is not in the Bill as currently drafted, and we think it is important.
I cannot answer the question exactly, because we have not seen the detail as to what proportion of local policies are going to be nationalised. If it were to be a significant proportion, we would be making the case even more for local consultation, engagement, and involvement of both Houses.
David Jackson: I entirely support what Victoria has said. There are some significant prizes to be won if we can streamline the process: speeding up decision making, adding certainty for investors and communities alike, and, through that process, building the prosperity and the flourishing communities that the Levelling-up and Regeneration Bill anticipates. But it is in the nature of the planning system and the complex legislative framework that it sits within that there are also downside risks. Victoria has identified those in terms of perhaps less room for discussion and negotiation. I would also put in there the risk of reduced flexibility—we might come on to that under another topic.
The other downside risk I would identify is the inevitable disruption as we go through the transition from the old system to the new system. Indeed, we will see some examples of that, so I think there are some downside risks. Again, I agree with Victoria that we have not seen the detail yet to be specific about the nature of those downside risks in their totality.
Tony Mulhall: I would like to add to that. We take soundings from our members around the country quite regularly. The sense I get is that members would like to see settled national policy and standards incorporated into these national development management policies, so that the same issues do not keep arising and being reconsidered. It is administratively efficient to do it this way, but it is also in line with the levelling-up agenda, where agreed standards and policies should apply to all areas. Many of the issues that are arising to do with climate change apply across the country. It also avoids the criticism that high planning and development standards can only be had in high-value locations.
In that regard, I refer back to a piece of work that we did called “Placemaking and value”, where we looked at exemplar places in the south-east of England. The criticism that we got about that was that a lot of people in the north of England said, “That would not be possible here because we do not have those land values.” It is very important that when we set national development management policies, we recognise what it is we are doing. We are ensuring that the standards apply to all areas and that all areas get the benefit of these standards.
Matthew Pennycook
Q
Victoria Hills: I think that any further delay to where we are currently—reminding ourselves that this process of the White Paper initially started back in 2020—is something to be avoided, because it creates uncertainty not only for those preparing local plans, but for those who want to bring forward proposals. We would urge that any changes, including the NPPF, come forward quickly—as soon as possible—to get shot of that uncertainty. It is really important. We have seen the slowdown of local plans already. You will be aware that only somewhere in the region of 60% of local authorities have an up-to-date local plan. There are some really important aspects in the NPPF that we think need to be improved, not least adding in the climate change legal requirement and putting a greater emphasis on that. We would like to see that expedited, and I think that any further delay is not going to be helpful.
Matthew Pennycook
Q
David Jackson: Very briefly, I think that is absolutely right. The Government are now referring to this as a prospectus of changes, multi-level—[Inaudible.] I think in those circumstances, we risk delay. Each component is a crucial part of the overall system. I referred earlier to the complex legislative framework within which planning sits, and it all comes together as a unified process. Any missing component or uncertainty risks being a drag anchor, if I can use that phrase, on the whole system, so we want to see these issues addressed as urgently as possible. Again, we are seeing local planning authorities withdrawing their local plans because of this uncertainty. Given the costs of preparing them, authorities do not particularly want to have to do the process twice. Equally, given the costs that our clients are putting into the local planning process and their commitment to it, any delay is hugely unhelpful.
Tony Mulhall: I would like to add to that. I am particularly watching this in relation to the infrastructure levy, the implementation of which seems to be quite a long way down the line. The delivery of effective infrastructure is such a critical part of the system, so it would be useful to have a clear picture of the timeframe for implementation, given that there is quite a lengthy testing period associated with that as well.
Matthew Pennycook
Q
It strikes me that the levy is not that dissimilar to the current set-up of the community infrastructure levy. Do you think that is fair? If not, what advantage, if any, do you think the levy will provide over the current system? How do you see it operating in practice on complex brownfield sites? Given the ability to vary rates—in the sense that the Government are proposing a new metric for end-use value, not a new flat rate—what will that do for levelling up? Will local authorities in areas with low land value not just set low levy rates that do not afford much public gain?
Tony Mulhall: Yes, that is a concern we have expressed all along. For the last three or four years, we have expressed the view that a concept of land value capture as a way of funding your infrastructure is not adequate in itself. There are lots of areas where there will not be value to be captured, and we would like to see where the funding is for essential pieces of infrastructure.
One of the interesting aspects of the Bill is that the Secretary of State can intervene if they feel that the levy was set too high and will impact on viability. I think something like that should be directly connected to the alternative infrastructure source for that particular area. The funding for the infrastructure needs to be pointed out by the Secretary of State if they decide to reduce the levy. Quite a lot of small areas of the construction and design of the levy really need to be resolved fully. I know there is a consultation coming, but those details will be very important.
One of the main objectives is to capture additional land value, but also to avoid the contentious area of viability being contested at so many different stages in the process. We are very happy to help the Department to devise a system that will be easy to apply. Being easy to apply means that the metrics being used are easily discoverable and not contentious. That is a fundamental part of an efficiently operating taxation system, which is how this is described. What we are dealing with here is not an assessment of viability for planning purposes; these are valuations for taxation purposes.
You asked about two other issues—one was complex brownfield sites. It is quite understandable that the Government would look for a measure to deal with this subject, and I think something like the section 106 agreements will be the natural fall-back position here. Officials often say that it is amazing how derided these measures are until you try to remove them, but there is a logical reason for using a section 106 agreement on complex sites because the developer is in the best position to phase and programme the necessary infrastructure. The question then will be how this is to be set off against the liabilities that would have accrued under the infrastructure levy. Varying the rate is an important aspect as well, and I think it should be retained.
This is quite a complex proposal, and it sounds as if it is intended to be rolled out in phases, to make sure that lessons are learned in operation, as they had to be for the CIL measures. The real question is: will this be the replacement of one complex system by another complex system that we will have to learn and run simultaneously, because there will be a transition period? There is quite a lot to be resolved with regard to the infrastructure levy and we are quite happy to contribute to resolving it, to make it work better.
Matthew Pennycook
Q
The Chair
David, could I ask you to face the microphone please? The sound quality in your last answer was not good, and if you face the microphone, Members may be able to hear your evidence better. Thank you.
David Jackson: I beg your pardon. I think what Tony has said is correct. There is uncertainty around this new system. Fundamentally, it is one tax being replaced by another form of tax. The benefit of the new system is that it is charged on development value. That is a clearer metric than the rather complex viability assessments that led the CIL process, which was front-loaded in that respect and did not take account of changing market conditions, whether up or down. Clearly, there is a benefit in that simplification of the process based on value.
It is welcome that there is flexibility or variability in the system to take account of different circumstances. Complex brownfield sites are clearly very different from greenfield sites, as the question rightly identifies. The most important thing is that new development, new growth and new investment is facilitated rather than obstructed by the system, because none of those good things can come unless development and growth is facilitated. That is beneficial, whether it is by way of taxation, the CIL, the new infrastructure levy or, indeed, the investment that is brought forward through section 106. We started off with some uncertainty around the future of section 106, and one of the most welcome aspects of the legislation is that section 106 is being retained. It gives both developers and the community certainty about when that new infrastructure—whether it be social, physical or other infrastructure—is to be provided.
One area where there is less certainty, so far as we can see at the moment, is where the infrastructure levy is going to be spent. Previously, under the CIL system, we had regulation 123, which set out local authority priorities for investment and how money should be spent. The emphasis in discussions to date has been on affordable housing, but is this investment going to be directed towards other locally set measures? I think there needs to be transparency in relation to that.
Finally, I agree with Tony’s point about the need for road testing. This is complex new regulation. It needs to be road tested by way of pilot schemes before we invite local authorities across the country to invest resources into this complex process.
The Chair
We are now 20 minutes into this evidence session. In the interests of time, I will call the Minister. If there is any time left at the end, I will come back to you, Mr Pennycook.
The Minister for Housing (Stuart Andrew)
Q
Victoria Hills: I represent 27,000 members. Practically, and on a strategic level, we welcomed the Bill, because we welcome the recognition that, rather than having a planning Bill, planning is integral to levelling up and regeneration. That is why we warmly welcomed the Bill: it has elevated the status of planning from being some regulatory thing over there to being fundamentally essential to delivering levelling up. Indeed, we say it is the lead domino; if you get the planning system right, you have the framework and the foundations to deliver regeneration.
That is our starting point. Within that, we have to have a broader conversation—perhaps not today—about how we ensure that local authorities in particular are resourced for the changes. We look forward to the forthcoming consultation on the fees to help to fund some of the additional work. Practically, it will mean that our members are going to be extremely busy—first, with responding to all the consultations, and secondly, moving forward with implementing the new system. There is an urgent need to address the resourcing, as I have highlighted, because local authorities are somewhat struggling at the moment anyway to deliver business as usual.
Some of this will be a bit business as unusual. We have heard that the CIL is potentially a major change. Changing local plans and updating them will take time and resources. It will be a busy period for the members I represent. That said, although we welcome the recognition that planning is integral to levelling up, we do need to have an open and honest conversation with you about how we now move forward quickly to resource local authorities to enable the changes. I hope that answers the question.
David Jackson: Likewise, given the high profile that has been given to the levelling-up agenda, it is very welcome that planning is so closely associated with such an important part of the Government’s programme. We very much welcome that.
For the people I represent, it is difficult to define exactly what the changes will mean, because they are multifaceted. For people I work directly with, there is a lot to get through and understand about the changes, but we are planning professionals and that is what we direct ourselves towards. That is part of our responsibility. For our clients, there is an expectation of a transition period, and that is a process to be navigated through. We are there to help them through that process. I repeat what I said earlier about the importance of trying to get through that phase as quickly as possible so that we can move on to obtaining the key objectives of building prosperity and creating flourishing communities.
On flourishing communities, in the work that we do as planning professionals we become very much associated with and embedded in communities for the period of a project. It is really important that that process of local engagement and projects being opened to the public scrutiny that leads to improvement—[Inaudible.]
The Chair
David, you are looking away from the microphone again and we missed what you said.
David Jackson: Sorry. Public scrutiny is necessary to improve projects and win public trust.
Tony Mulhall: Chartered surveyors provide their services largely at the level of strategic land preparation and development delivery, so they are acutely aware of the increasing risk associated with development projects proceeding. Planning comes with certain risks—in other words, getting a project through the planning system—so it is very important that we have a system that works well in process terms.
From a development point of view, planning is one of the factors. We have huge pressure on costs at the moment. I have here a document that I have just received from the Building Cost Information Service that says that the materials cost index has continued to grow, with annual growth in excess of 20%, and figures say that the cost of complying with the building regulations is around 6%. Those are cumulative risks, and the planning system is just one of those. It is a very important one, and getting it right is very important, but in a development context the danger is that investors will defer making decisions on taking projects forward until they have greater certainty about the regulatory environment they are heading into and that that regulatory environment can be priced, in a sense—what is it going to cost to get through the regulatory environment?
We need to take account of that, and not just in relation to large house builders. They are capitalised very well, but a lot of small and medium-sized enterprises find it extremely difficult to engage with the planning system at a level they can afford. That impacts on borrowing: you cannot engage a lender if you have what I would describe as planning risk associated with your side. These are the realities that our members face in advising their clients.
Stuart Andrew
Q
Victoria Hills: We welcome all those aspects, and particularly the investment in digital transformation and a bit more structure around what that looks like for local authorities so that they can make the investments in digital that are required. We also absolutely welcome neighbourhood planning, and also, potentially, street votes and all that comes with that.
Something equally important that we are strongly advocating for is that virtual planning committees can continue in the way they did during the pandemic. We are seeking an amendment to the Bill for that purpose, because we think it provided an additional aspect to the ways in which communities could be genuinely engaged, particularly for those people who cannot get to committee meetings in the evenings because of their own commitments.
We welcome all the aspects that have been included in the Bill to broaden engagement. Our top two omissions are the one that I started with—involving the community in the national policies—and enabling them to join in via a virtual committee.
Tony Mulhall: This is a really important point. Our experience, and what we get reported back, is that the community does not tend to engage with the plan-making process—people need to get a development on the corner of their street before they become exercised—so it is very important for us to understand what is a meaningful way to get feedback from the community about what it is that they do not like and what is top of their list of what they want.
I am not sure that the plans that we put through have the legitimacy we might expect from real engagement with people, because I think they do not fully understand what the plan is saying. We have seen the kind of developments in neighbourhood planning that were really good but probably did not get to the people who need to participate to improve their local communities. There is an interesting measure in the Bill to facilitate that. I would say that we really need to rethink what meaningful participation in plan making is about, because people are coming away from the production of a plan without much knowledge of what is going to turn up in their neighbourhood.
David Jackson: I agree with that point. What we need is engagement at all levels of the plan-making process, from the SDS—spatial development strategy, the new strategic level of plan making—all the way through. It is down to the profession to go out and do that. That is where the parallel development of the levelling-up agenda, putting planning alongside that as the key delivery mechanism, has some advantages, because it demonstrates exactly the role that planning has in facilitating the benefits that we want to see for those communities. My slight concern is in what I might call the hyper-local, because that allows people to focus just on their immediate areas, but as I say, what we want is a focus across the plan-making portfolio, so that people have that aspiration.
One example of the risk of the hyper-local is footnote 54 in the NPPF, which requires onshore wind turbines to be supported by the local community that is most affected. While onshore wind has overall high levels of public support, a massive drop-off in the delivery of onshore wind has been the result of that particular control. It does not take us away from the need to engage with communities at the local level to win their support, but it does create difficulties—challenges—in that hyper-local environment.
Stuart Andrew
Q
David Jackson: On replacing CIL with the infrastructure levy, the simplification of the infrastructure levy based on value is certainly advantageous. In our experience, we were very engaged in the preparation of CIL on behalf of the Home Builders Federation. We engaged with many local authorities on that basis, and it was indeed a very complex process, looking at viability and trying to project that over a period of time and for a range of development scenarios. That simplification is welcome.
I take a slightly different view on section 106. It goes without saying that where section 106 is engaged, we are dealing in large part with complex, difficult, challenging projects. We have to ensure that local communities have trust in the process and that it will deliver the outcomes they expect to see. Inevitably, there is an element of commercial negotiation, because viability can often be engaged where we have multiple demands on investment in a local community, so it is right that we go through that complex process. I think CIL helps in terms of taking—[Inaudible.] The complexity of section 106 is merely a reflection of the complexity of the projects we are dealing with and the wish on both sides—both the community and the developer—to ensure that the infrastructure that is required to make the project work is actually delivered.
Victoria Hills: We have been very clear that anything that comes in needs to not overcomplicate an already quite complicated system. As proposed, the infrastructure levies will all go through PINS—the Planning Inspectorate —which we think will add more delay and cost to the system. We are advocating for the new infrastructure levies to get directly agreed by local authorities with the Secretary of State or the Department, to take out some of what I think you are alluding to—the horse trading, the negotiation and all the rest of it. Then, there is one discussion between the directly elected authority and the Department, and that gets agreed. You can take months and significant cost out of the whole system by not running it through PINS.
Another important point, which I could not make earlier, is that it is really important to understand how, in simplifying the system, the new infrastructure levy will sit alongside other statutory requirements—not least biodiversity net gain and affordable housing—and how, in simplifying it, it will balance out those quite complex aspects. The requirement for affordable housing has always been the case, but biodiversity net gain was not a thing before.
At the moment, until we see the detail, we are not convinced that it will all be simplified. There are some important complexities to take on board.
Rachael Maskell (York Central) (Lab/Co-op)
Q
Victoria Hills: We have always been very clear that the way to deliver great places and great communities is through a robust local plan and framework where the local authority has the opportunity to set out their priorities, which could include some of the aspects you referred to. The elevation of the importance of the local plan in all this is welcome. The detail, which we do not yet have, is on to what extent local authorities will be able to carry on delivering priorities through policy, and to what extent they will get pulled out into the national framework.
We support the principle of the local plan being elevated. We recognise that it is the only way you can move ahead with delivering on agendas including net zero, affordable housing and well-designed, healthy homes. If you are going to have policies against second homes, that may well be something to prioritise in your local plan, or in national guidance—the detail is yet to be seen on that.
Whether or not it meets the housing numbers is still an area for debate. The Government are on the record saying that is very much the plan in action. We will be advocating for local authorities to be well resourced, without delay to the national framework, to enable them to get on with the business of producing local plans as quickly as possible, in order to provide certainty for local communities and the development sector, so that it can get on and start planning and then building. It really just relates to the earlier theme of resourcing.
However, there also needs to be no further delay. There is an urgent need to deliver more homes, as we know. The housing waiting list continues to rise, and more and more people are still desperate to have a place of their own. The need continues to grow, so it is important that we move forward quickly on any regulatory reform and that we move forward with a resourcing package—which surely must include bringing up the planning fees as well, to help to move those things forward as quickly as possible.
Tony Mulhall: I totally agree with Victoria’s point about the importance of having up-to-date local plans, and the important aspect in the Bill of being able to combine local authorities so that they better match their functional urban region or their socioeconomic hinterland. That is important because we are spending a lot of time and money squeezing the carbon out of our buildings, but there will not be much point in doing that if we have to drive miles to get to our jobs and schools. It is critical that we have a proper planning system linked with the standards of quality construction that will achieve climate change.
On the point as to whether the measures in the Bill will deliver the target of 300,000 houses per annum, the feedback that I get from our members is “No.”
Rachael Maskell
Q
Tony Mulhall: There are many other factors besides planning that have an impact on the delivery of housing. The market has typically provided a certain level of housing delivery. It has fallen to housing associations and Government to supply what is actually needed. There is a big danger here—we raised this during Sir Oliver Letwin’s review—that if you allow house prices to increase to a certain level, there is nobody who is in favour of them falling. Everybody is invested in them staying at that level. If we continue to have a shortage of supply, which is resulting in price rises, then that is what is pulling up land values. It is the price of the house that is pulling up the value of the land, not the value of the land pushing up the house price.
Those are very important things to understand, because once a certain price level is arrived at in the housing market, nobody is in favour of that falling. Every metric that we are relying on extols the increasing value of property. We need to be very careful about what our expectations are with the affordability of housing if we allow there to be a very tight supply, like there is at the moment. The lending industry is not going to welcome a managed reduction in values. Those are really big issues that are outside of the planning Bill, but are crucial to the delivery of housing.
Rachael Maskell
Q
David Jackson: I will just comment quickly on the target of 300,000 and then come to your question. The 300,000 target is correct; we are in the midst of a housing crisis, so it is right to set that as a national ambition. If we look at vacancy rates for residential property across the country, they are typically very low—between 1% and 2%. That ties in well with what the levelling-up agenda is trying to achieve. If we are seeking to create a stronger economy, then the availability of homes near to the jobs that we are creating is an essential component part of that. Tony was talking about creating sustainable relationships between jobs and homes. We have to boost the delivery of homes, but they have to be related to the availability of jobs and the growth in the economy. As Victoria was saying, the fundamental requirement of the local planning process is to get those balances right and to put in any checks that need to be in place to control the downsides of that—be those downsides secondary homes or whatever else.
Rachael Maskell
In view of the time, can I just move quickly over to Ms Hills—[Interruption.]
The Chair
Order. I am afraid that brings us to the end of the allotted time for the Committee to ask questions. May I thank the witnesses on behalf of the Committee for their evidence? We now move on to the next panel.
Examination of Witnesses
Jonathan Owen and Tony Burton CBE gave evidence.
The Chair
We will now hear evidence from Jonathan Owen, chief executive of the National Association of Local Councils, and Tony Burton CBE, convenor of Neighbourhood Planners London. They are both appearing via Zoom. Gentlemen, may I please you ask to introduce yourselves?
Jonathan Owen: Good afternoon. I am Jonathan Owen. I am the chief executive of the National Association of Local Councils, which works closely with 43 county associations to support and promote the interests of 10,000 parish and town councils across England that are keen to help with levelling up and address many of the missions that are set out to support the Bill.
Tony Burton: Hello. I am Tony Burton. I am one of the convenors of Neighbourhood Planners London. We are a volunteer-run network, which supports neighbourhood planners in the capital and raises the profile of neighbourhood planning. I can also bring some personal insight, as a neighbourhood planning examiner.
Stuart Andrew
Q
In the previous evidence session, we heard that people often describe planning as something that happens to them. Do you think that the measures in the Bill will increase community engagement in all aspects of the planning process, particularly the development of local plans and other individual planning applications? Do you think that some of the measures, such as the introduction of the neighbourhood priority statements, will help to increase the number of neighbourhood planning groups that might be spread in areas that have been difficult to reach so far?
Tony Burton: Generally, we think the Bill is helpful for communities who want to have more of a say on planning issues. There are one or two headlines. The most pre-emptive one is that the Bill confirms the statutory role for neighbourhood planning, given the uncertainty since the publication of a White Paper that said relatively little about it and that brought forward some proposals that would have shut out community input, such as those at the planning application stage.
The specific measures around neighbourhood planning, and I appreciate that your question goes wider than that, are relatively limited. The adjustments to the basic conditions and the broad definition that has been provided, which is helpful, will not have a significant impact on take-up. They will help to clarify some elements of process. And neighbourhood planning will be caught up in the same changes as local plans, when it comes to the primacy of the development plan and the centralisation of the development of management policies. Again, they need to play out, but much of that is welcome, because it attaches additional weight to the document, and to the time and effort that volunteers invest.
The neighbourhood priority statements are triggering some interest among the groups we work with, but they are also raising a significant number of questions. In our view, if the aim is to support greater take-up, particularly in urban areas, which I know the Minister is keen to see, then more needs to be done. They need to be seen as something that is additional to and complementary to neighbourhood planning, not a replacement for it.
The legislation is quite weak in the weight that needs to be attached to it by local authorities; the “have regard” requirement is weak. We have a decade of experience in London of boroughs not really taking that much notice even of neighbourhood plans, which are statutory documents, so we would like to see a stronger weight attached.
It needs to be confirmed in the legislation, not just elsewhere, that it is about more than informing local plans. We understand that that is the Government’s intention, but the current drafting of the Bill is quite restrictive. We think that it would be really sensible if the Government supported communities to pilot and to try to make all priority statements before the legislation is finalised, so that we get a real sense of what they could achieve.
The disappointment is that the local planning provisions are not more extensive, to encourage wider community involvement. We are about to publish our “The State of Neighbourhood Planning in London” report this evening, and it shows that progress in engaging communities is still being hampered by obstructive local authorities in many cases. Therefore, we believe that if the Bill is to effectively engage communities in leading development, as opposed to responding to it—doing planning, as opposed to having it done to them—it really needs to strengthen the legal duty on local authorities to support neighbourhood planning. It needs to give neighbourhood forums the same powers as parish and town councils in receiving and spending the neighbourhood element of the community infrastructure levy. At a stroke, that is the single most important thing that the Government could do to encourage local planning in cities. The Bill also needs to set time limits on local authorities making decisions on key stages.
The final point we would make is that the Bill itself will not be enough, and that there will need to be support for communities to engage and involve themselves. We would put particular attention on the role of the neighbourhood planning support programme, which is probably the single most important measure available to accelerate community involvement in planning decisions. It could be significantly improved and increased.
Jonathan Owen: I am sure it will not surprise any of you to hear that probably the No. 1 issue affecting 10,000 parish and town councils and 100,000 councillors is planning. That is top of their agenda, and I think it would be fair to say that we need to look at every way we can to make sure that the public are more effectively engaged with the system. We are pleased with the emphasis on a plan-based system—that is right—and public engagement in that planning is absolutely vital.
The main area of interest for us is neighbourhood planning, and parish and town councils have really been in the driving seat of producing those plans. I think there have been about 3,000 so far, with about 90% done by parish and town councils. They have had amazing referenda, with something like a million people voting in them over the last few years. I think they cover an area of about 10 million people. That is a really good way in which the public can engage with the planning system, but there are thousands and thousands of other communities that are being left behind and that do not have neighbourhood plans by parish and town councils or neighbourhood forums.
Some of the feedback that we had from our 10,000 parish councils was that they were concerned that it will be costly and time consuming, and that the neighbourhood plans will be overlooked and not taken seriously by principal authorities. A lot of the measures in the Bill will help address those issues, which should help with promoting neighbourhood planning.
This must not stop with the Bill. If you are going to reach the other 7,000 or 8,000 communities, we need to make sure that we are promoting neighbourhood planning and its benefits, and that we are investing in helping those communities to do that work. I would encourage you to continue with the grants that are available, and perhaps to make them easier to access. We have had a good start to neighbourhood planning, and I am really pleased that you are committed to continuing with it and making it more effective. We will work with you to try to make that happen.
There are a couple of bits of other feedback around the infrastructure levy. Again, that is to be supported, but there is a risk that because the percentage is the same regardless of whether you have a neighbourhood plan or not, there might be a slight disincentive to produce a neighbourhood plan. As you know, there is a boost to the share of the community infrastructure levy if you have a neighbourhood plan. It would be good if you could consider how best to address that point, so that people are incentivised to have neighbourhood plans and to engage effectively with the public.
On the specific matter of the mini neighbourhood plan, I think that is fine but, again, we need to make sure that doesn’t limit communities’ ambitions to go further and to have neighbourhood plans. We probably need to balance that territory.
I have been amazed by the innovation of many neighbourhood plans and the things they are now trying to address, including climate change, health and wellbeing, such as dementia-friendly aspects, and a vast range of other things. Clearly, we must not lose that innovation. We must use this Bill to drive forward neighbourhood planning and get more people involved with it, and I think that would be a good thing.
Stuart Andrew
Q
Jonathan Owen: I think one thing we have learned over the last couple years is that people are getting more and more used to digital engagement and using such systems, so that probably will be the case. Obviously, you will need to review and monitor it, but I think it is certainly something that is worth developing further.
Many of our parish and town councils are already using digital processes when considering planning applications for principal authorities, so I think that could well make a difference. There might be some capital investment required to ensure that even remote communities in the middle of rural Suffolk, where I live, can access the material online without being excluded.
Tony Burton: Our experience is that digital is part of the answer. In relation to local and neighbourhood plans, we would point to the opportunities it presents around new, complementary forms of community engagement—there are now a variety of tools available to support that—and more effective ways of pooling and analysing the evidence that is required, which is often a minefield of PDFs that do not link to each other or help people to navigate the system or get to the nub of the issues.
There is a potential—this is something we have been pressing for—for the neighbourhood planning support programme to provide bespoke support around this and to offer provision for particular elements, such as centralised tools or databases. Also, we would emphasise more digital mapping. Almost by definition, planning is about maps and places—it is spatial—and yet the ways in which we bring everything together on a map are still rather clunky and not all that effective. The best of what is out there shows what can be done, and the best should be the norm.
I would emphasise that digital is only part of a solution. It is no panacea and nothing is more important than the peer-to-peer, face-to-face support that communities need to support them to be their best when it comes to engaging with these processes.
The Chair
I am afraid that this will have to be the last question from the Ministers before I move to the Opposition spokesman. Minister O’Brien, I believe you have a question.
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Neil O'Brien)
Q
Jonathan Owen: We are really keen to see the detail on some of the other aspects of the neighbourhood governance review. The White Paper held out for us real promise to ensure that the opportunities of devolution and levelling up were really seized, so I hope you will not mind if start off by encouraging you to consider how you can build aspects of that wider review into the Bill. We are particularly keen to see the review conducted within quite a reasonable timescale, to be involved in the process and to make sure that any proposals that come out of it are enacted. We would quite like to see some sort of placeholder clause put in for street votes, to say that the neighbourhood governance review will be completed within a certain time and the agreed proposals enacted. I do not know whether that is possible, but I really do think you might miss an opportunity if you do not engage fully in that review and implement some of its actions.
The key things for us are about making it easier to set up parish and town councils. At the moment, about two thirds of the country has a parish, but only about a third of the population, which means that two thirds of the population are missing out on having the first tier of local government supporting community empowerment and helping them address the big challenges that we face. Many of you will be aware of the research done by Onward. Its social fabric index showed that places with parish councils tended to have a stronger community identity and so forth. I think there are some real opportunities that need to be picked up either as part of the Bill or as part of that wider neighbourhood governance review.
The other big area for us is funding of the sector. At the moment, our councils are not necessarily able to access some funding streams, such as the community ownership fund and other things. It would be good to look at making it possible for them to access that funding. An interesting example of that was how, through the covid pandemic, a lot of our 10,000 councils stepped up really early, as you will be aware, to set up volunteering arrangements and support local communities. Many of them did really great things, but many of them lost out from lost income. You were able to compensate the principal authorities but unable to compensate parish councils that had lost out. To be honest, principal authorities were reluctant to devolve much of the funding they received down to our level.
I think you should consider using the Bill to put in place a mechanism whereby you would be able to fund local councils directly. That could be really helpful to this Government and probably to future Governments when another big problem happens, such as the pandemic, so that you would be able to reach down to communities throughout the country and provide some financial support or lifeline as necessary.
On the street votes, we will be interested to see the detail on that and, again, picking up on my other point on neighbourhood planning, we just need to make sure that that complements and does not replace the wider neighbourhood planning role.
Finally, returning to the last question on digitalisation, the holding of remote meetings has been really useful in the last couple of years. We have seen evidence that lots of members of the public have attended parish and town council meetings because they are able just to attend for the one item that interests them, which is often a planning matter. Enabling councils to meet remotely and have engagement remotely from residents would be really good.
Tony Burton: I think it is a really helpful question to be asking at this stage. There is experience from similar questions that came through on the Localism Act 2011, from which some of the existing community rights measures stemmed. If we look back over those 10 years, we see that some have been successful and some have disappeared, frankly—they might be on the statute book but no one is using the power they provide. The things that worked are those that responded to what people want—there may be lessons here for the provisions you cited and others in the Bill. They were a response to what our communities were asking for, as opposed to us saying, “We’ve got a good idea. Please will you use it.” Some came with support and help, which allowed communities to really understand how to navigate and use the process and talk to others that are maybe slightly further ahead of them in the process. Some in a sense held the ring on some of the bigger questions.
That is why neighbourhood planning is so good. It is such a flexible and strategic tool, as well as being locally specific. You can make it a single policy about a single issue if you want, or you can make it a mini local plan that covers the bases. It is up to the community to drive that process.
I would also encourage you to anticipate where there will be blockages in the application of whatever powers or rights are being established. With neighbourhood planning we have had to retrofit a lot of those, and it has not been that helpful. There have been things such as the timetables for local authorities to make decisions and some of the powers to appeal to the Secretary of State. It is actually worth stress testing these against the worst cases within which they are trying to be applied as well as thinking that we are always going to be operating in a benevolent environment.
Matthew Pennycook
Q
Jonathan Owen: As I said, we are strongly supportive of a plan-led system, and we are concerned that those national development management policies might well take primacy over neighbourhood plans and cause difficulties. We would like to see the Bill amended so that they do not have primacy over those other local deals. I also think there should be consideration to make sure that if those national policies are changed, it does not require an immediate updating of a neighbourhood or local plan. I think there is a risk that we will have waves of new national plans that will then set aside some of the local policies.
Tony Burton: I agree with that. [Inaudible.] There is merit in setting out at a national level those policies that are appropriate to be expressed at a national level: policies that are universally applicable and set the framework within which other things happen. We see completely unnecessary repetition, rewording, obfuscation and a lack of clarity when they are carried forward through development plans and some neighbourhood plans.
The risk is that national policies stray too far into matters that are much better decided at the local or neighbourhood level. There will always be a very strong temptation for Whitehall to overstep the mark, as history shows. We think that there need to be clear measures that prescribe and limit the national development management policies to those things for which they are appropriate and which do not fetter the nuance and local understanding that is brought at local and neighbourhood level.
Matthew Pennycook
Q
Tony Burton: Yes, indeed. We don’t necessarily think that they are sufficient on the NPSs or indeed the national planning policy framework, so it is not just about equivalence. That could all be significantly improved to a much more citizen and community-led insight into how these policies are being drawn up.
Jonathan Owen: As for the first tier of local government, I think that the more engagement and consultation, the better. So yes, I think that is something that should be looked at.
Matthew Pennycook
Q
“in accordance with the development plan and any national development management policies, unless material considerations strongly indicate otherwise.”
Is that language sufficiently clear to be easily understood by councils?
Tony Burton: May I digress briefly? This is a personal question, because over 30 years ago, in a different campaigning role, I was responsible for drafting all the amendments to what became the Planning and Compensation Act 1991, which includes the provisions that clause 83 now seeks to change. At that time, we went through about a dozen variations of how to express on the face of the Bill what we were seeking to achieve. Sir George Young was the Minister responsible and was seeking a plan-led system. We even tried “strongly” at the time and, if my memory serves me right, it was rejected by Parliament’s legal experts. So although the language is clunky—it is legalistic—it has a 30-year track record. The insertion of a single word is a helpful expression of a more plan-led approach. It might be more helpful to go down that route than it would be to develop an entirely different set of wording, which would then trigger a whole new set of case law having to be established. In terms of the pragmatic achievement of what we are trying to do here—to strengthen a plan-led approach—the pragmatic approach, as suggested in the Bill, is reasonable.
Jonathan Owen: I agree with Tony. Adding “strongly” is helpful.
Matthew Pennycook
Q
Tony Burton: Again, it is the same point that we have made throughout. You cannot, on the one hand, have a Bill that has written through it political rhetoric about communities having more insight and influence, being less done to, and strengthening the role in local planning, but on the other hand have critical documents prepared by other parts of the system being drawn up without the benefit of the insight that those communities that will be involved in other ways can bring. Providing those legal safeguards is an essential process, in our view, and that needs to be more than six weeks of a PDF being on a website; it needs to be something that requires positive interaction being secured with those who are going to be interested and engaged in it.
Jonathan Owen: There is some helpful evidence from the neighbourhood planning process. Where communities have been engaged and have inputted effectively to the development of neighbourhood plans, they have understood the reasons for some of the development pressures and other things. Actually, where there are neighbourhood plans, additional housing to that anticipated in the local plan has often been put in place. Engagement and full consultation, as Tony suggested, is sensible.
Greg Smith (Buckingham) (Con)
Q
Jonathan Owen: Well, that is a $60 billion question. That is an issue for parish councillors.
I have a few reflections. First, we need to promote their work more effectively, publicising what they can do and understanding their potential. Parish and town councils can deliver exciting and good things for their communities. They are not just a place to go and sit for a boring meeting; they are about getting out there to help communities. I think that was the experience of the pandemic, actually: a lot of parish councils rolled up their sleeves, as they often do, and made things happen. I remember that my previous chair, Ken Browse from Devon, who was a small parish councillor, used to get his tractor out and dig out the ditches when there was flooding in Devon. It is about trying to use that potential of councillors, rather than getting them borne down, as you say, under a sort of semi-professional thing. That is not what they are there for: they are there to represent their local constituents and do their bit to make their local places much better.
We would like to see some real promotion of parish councils. It is ironic that over the past year they have probably had much more of a national profile because of the Jackie Weaver affair, but I think national Government should be investing significant money in promoting the potential of parish councils and why people should get involved. The National Association of Local Councils has its Make a Change campaign going at the moment, which is trying to encourage more people to get involved and stand for election. We are putting out a lot of material and, I think it would be fair to say, getting a lot of interest. The average age of a parish councillor is something like 61. We would like to see that much reduced, and we would like to see people from different backgrounds getting involved. As with all things, it needs to be marketed and promoted.
The second point I would make is that principal authorities get something like £18 million from Government to support the work of the Local Government Association and build the capacity and competence of councillors. We are really grateful to the LGA, which we are able to work with in some limited areas to access some of that funding, but our sector and our 100,000 councillors need some support from Government too, to make sure they are able to deliver the things that are required in a sensible way. I think that that investment in councillors as local leaders and place shapers, making a difference for their communities, would help tackle burnout.
Tony Burton: If burnout is an issue in town and county councils—which I can well acknowledge—imagine what it is like when you are dealing with an entirely volunteer network. We do not have a National Association of Local Councils; we do not have a parish clerk or a town clerk; we do not have an infrastructure organisation; we do not have an email address; we do not have an office; and we do not have a place to meet. When a neighbourhood forum is set up, it is set up from nothing, and it requires volunteers like us to put forward networks for London. London is unique in having a network that provides a bit of mutual support.
There are two points I would emphasise to make the life of being a civic volunteer something that you really want to do, and where you don’t burn out. One is to remove as many of the obstacles we spend much of our time fighting against as possible. We are not naive—of course life is going to be difficult—but there are pointless, and sometimes gratuitous, obstructions being put in the way of volunteers trying to do the right thing in their area. We have a range of evidence for that in relation to neighbourhood planning in London or from the research we have done. We do not have the time to go into it here, but it is available to the Committee if it wishes to look at it. The second is to put booster rockets under the support programme, which we have touched on already as being the single most important intervention—far more important than the Bill—so that it can be effectively delivered, ensuring that neighbourhood planning is one of the tools available to communities to take back more influence over planning.
Greg Smith
Q
I ask that through the lens of having been a London councillor for 12 years, before moving to the countryside and later having the privilege of being elected to the House of Commons. Thinking through some of the geography, the London borough I sat on was smaller geographically than some of the parishes in my constituency now. While I totally salute the efforts of volunteer networks across the capital, do we think that the geography in some parts of London, particularly inner-London boroughs, lends itself to those boroughs still having that primacy?
Tony Burton: I hear what you are saying, and I am sure the populations of those boroughs and parishes are dramatically different. We need only point to the “city of villages” and Ebenezer Howard. The neighbourhoods of London are defined much more tightly than the boroughs, and many London neigh-bourhoods cross borough boundaries. One example is Crystal Palace, which is a very identifiable community, yet it crosses five London boroughs. It has been almost impossible to establish an effective boundary through the neighbourhood planning process, but that does not mean Crystal Palace is not Crystal Palace.
Crystal Palace identifies with itself, as do all the other neighbourhoods in London. We think there is significant scope below the borough level. There is an open question, which goes beyond the scope of the Bill, as to whether London might have too many boroughs, and the way they share services at the moment would suggest they acknowledge that—they share chief executives, legal services and all the rest of it.
London is an example of where there is still a need. There is the question of whether areas are willing to take on those responsibilities, linked to the issues of support, the attitude of professionals and politicians within the boroughs and the question of where this is going. What happens after they produce a neighbourhood plan? We would like to see the evolution anticipated by the Localism Act 2011 of neighbourhood forums evolving into the urban equivalent of a town or parish council, of which we have only one in London at Queen’s Park, which has a particular history. There are opportunities in this Bill to help the process mature and to create more sustainable models that might start with a neighbourhood forum producing a neighbourhood plan before growing into a much more all-encompassing, community-led form of governance.
Jonathan Owen: It would be great if we could make it easier to set up local structures that are equivalent to parish and town councils. I would love to change the name to “community councils,” which would help to dissociate the sector from the connotations of the word “parish” and enable them better to reflect urban communities. Slimming down some of the legislation would make it easier to set that up. We would have community councillors and a community co-ordinator, otherwise known as a clerk. The clerks do a brilliant job, but they are often community co-ordinators. We obviously support the work Tony mentioned.
There has been a degree of uncertainty about neighbourhood planning over the past few years, and some people have been concerned that it is overlooked on appeal. The measures in the Bill might well help with that, and it is important to reboot and refresh the support package.
Finally, it would be good if we could boost the infrastructure levy for areas with neighbourhood plans. We are keen to work with the Government on driving greater numbers of parish and town councils to do neighbourhood plans. We share with our councils the things that have been done in so many places to tackle climate change and to promote health and wellbeing as part of the neighbourhood planning process.
Greg Smith
Q
Jonathan Owen: Tony, do you want to go first?
Tony Burton: There are two issues here. The first is the numbers, and I do not think it can be done by just adding up all the local levels, because the nature of the housing market is such that you need a blend of strategic and local insight. It is about how we make sure the discussions and negotiations that take place mean there is an effective blend.
There are particular opportunities to strengthen the identification of particular needs that would not otherwise be met, whether they be house sizes and types; questions around affordability and rent; or the provision of alternative tenures—community land trusts and others. There is plenty of evidence now that neighbourhood plans are providing a much more refined insight into what is needed in areas, which can then carry appropriate weight through not just planning decisions but housing decisions. That would ensure that whatever the total number, a higher proportion are meeting the needs that are being expressed and are not just being used for investment or other less publicly useful purposes.
Jonathan Owen: It has to be an interplay between the various levels. We need to change the culture around planning to get different tiers talking and engaging with each other. That often does not happen at the moment, and it would be really good to see better engagement between the various tiers coming out of this Bill. The experience of neighbourhood planning is people being engaged and consulted, and having an effective input. They understand the pressures for local housing and the need to meet the needs of their local residents and their young people. I am a glass half full man and it would be great to see better dialogue and interplay between the various tiers to deliver what we all need, which is more local housing.
Tony Burton: Briefly, the evidence is that neighbourhood plans are delivering more housing locally than would otherwise be the case if it was left to local councils.
Rachael Maskell
Q
Tony Burton: We would like to see a Bill that gives more incentives to produce neighbourhood plans and ensures that neighbourhood forums have access to and can make decisions on the spending of the community infrastructure levy. We would like to see a Bill that removes some of the obstacles to neighbourhood plans coming forward where there are obstructive local planning authorities—principal authorities—by strengthening the legal duty on them to support neighbourhood planning and by putting more time limits and appeal mechanisms in place to navigate the process accordingly.
We would like to see the neighbourhood priorities statements being given more weight where they are to be taken forwards, so they cannot just be ignored, and to see them piloted. We would like to see the Bill come forward with a package of support that would scale up what has been learned from the experiences of the last 10 years, and a programme of support, with an emphasis on more funding but also better use of the existing funding, that was designed to enable those communities to come together to produce plans and tap into the expertise that they need at certain key stages. Above all, the support should enable them to learn from each other and build the neighbourhood planning movement, so that that becomes the norm across the country.
Jonathan Owen: I agree very much with what Tony has said. I would offer a couple of additional points. First, recipients must be able to use the infrastructure levy flexibly for a range of uses. Linked to that, I would like to see in the Bill the extension of the general power of competence, which is proposed for the county combined authorities, to parish and town councils too, so that they can use some of that to support a range of things that they might not otherwise be able to support. That should make it easier for local councils to deliver for their communities and to ensure that they are spending money wisely on the right things locally.
The Chair
If there are no further questions from Members, I thank the witnesses for their evidence. The Committee will meet again at 2 pm in this room to hear further evidence on the Bill.
Ordered, That further consideration be now adjourned. —(Miss Dines.)
Levelling-up and Regeneration Bill (Fourth sitting)
Thursday 23rd June 2022
(1 year, 10 months ago)
Public Bill CommitteesRead Full debate Levelling-up and Regeneration Act 2023 View all Levelling-up and Regeneration Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 23 June 2022 - (23 Jun 2022)
The Chair
We are now sitting in public and the proceedings are being broadcast. Members may remove their jackets if they want to because of the temperature in the room. Good afternoon, everyone—I am not filibustering for any particular reason, other than we do not seem to have our guests at the moment. Andy Street, the West Midlands Mayor, will be our first witness.
I should remind Members to limit their questions to something vaguely to do with what the Committee is considering. This is of course the only time the Ministers have fun during the whole of the proceedings, because they get to ask questions and do not have to answer them. Next week, it is their turn to be scrutinised.
With that, someone should press a button and Andy Street should appear—[Interruption.] I tell you what we will do: we will go into private session and talk about the questions. We skipped it this morning, but we now have some time to do that. We will sit in private until somebody tells me the technology is working.
The Chair
We are now in public session. Good afternoon. I can see Andy Street, Mayor of the West Midlands. Welcome to you. For the record, will you say who you are?
Andy Street: With pleasure, Chair. I am Andy Street, Mayor of the West Midlands, as you said.
Alex Norris (Nottingham North) (Lab/Co-op)
Q
I will start with a simple question: with the experience you now have of being Mayor of a huge part of the country, and of the powers you have been exercising, what do you see next for the powers of the West Midlands Mayor?
Andy Street: Thank you for the question. I think there are two ways of answering it. In some of the areas where we have been exercising powers already, we are looking for them to be deepened—so housing, transport and skills. Then, of course, in some policy areas, we have not had any powers and are looking for them, and we might talk about inward investment as an example of that.
The other way of answering the question is to talk about the fiscal deal. At the moment, we have really been applying to Government for funding and then allocating it using all our knowledge—the whole idea that decisions taken next to people are better—but we have not had our own fundraising power. There is a real moment as to whether this next trailblazer devolution deal is going to begin a process of fiscal devolution.
Alex Norris
Q
Andy Street: Yes, you are right—interesting question. The remarkable thing about this area of the country —I think what I am about to say is true, and it is in contrast to every other combined authority—is that we are completely balanced politically: 14 Conservative MPs, 14 Labour MPs, four Labour councils, three Conservative councils and a Tory Mayor. That means that there has to be a model of working across party and consensually.
The way the decision making works is that our board takes the decisions. That is the seven local authorities, obviously balanced. The executive will be responsible for all the preparation of all the policy areas, all the proposals, but it will be that board that formally takes the decisions. One thing that I often talk about and am very proud of is that every single major financial decision that we have taken over the past five years has been taken unanimously by that board, across party. So, actually, an enormous amount of work has to be done to find what we might call regional interest and that consensual point, rather than—dare I say it on this call—the more conventional Westminster approach, the partisan approach.
Alex Norris
Q
Andy Street: To be very honest, you are taking me beyond my level of knowledge with that last clause. I do not see it as a critical part of this Bill. I am quite comfortable with the CPO powers that we have at the moment. We use them infrequently, but when we have needed to use them, they have been powerful. We have also used them almost as a deterrent. I am not sitting here thinking that that is the thing that I must get out of this legislation. That is not a dodge of the question; it is my honest view. But I am not equipped to give you a detailed answer on that bit in your question.
Alex Norris
Q
Andy Street: I think the reason you have had a lot of interest in this is that we are in a different position to the other very large combined authorities. It is interesting why that has come about. You thanked me for my candour earlier on; I will give you my candour again on this. The situation here, unlike in Manchester, London and Leeds, is that the Mayor does not have the police and crime commissioner responsibilities. It was obviously imposed—I shall use that word—on those three areas through their deals. When our deal was struck, it was subject to local agreement. Despite a public consultation that came out overwhelmingly in favour of a merger of the two roles, the board decided that that was not what was going to happen. I regret the fact that that board decision was split on party lines. I said earlier that we always try to find consensus, but this is the one issue where we did not find it. That is, I think, why you have had input, because it remains a contentious issue. My personal view is, as it has always been, that there is enormous advantage to the model of one single accountable person. There is clear evidence that that has worked in other areas, and where we have not yet achieved that, we are slightly weaker for it.
Having said that, we have done two things here. Both the police and crime commissioner and myself, although from different parties, have committed that we will work as effectively as we can together. The second thing is that I have always committed that, so long as the rules were the same, we would not reopen this issue. Of course, the Bill changes the rules, and therefore it will, potentially, give an opportunity for this issue to be reopened. Hence the correspondence you have received.
The Minister for Housing (Stuart Andrew)
Q
Good afternoon, Andy. It is good to see you and thank you for giving up your time.
Andy Street: You, too.
Stuart Andrew
Q
Andy Street: I will give you a straight answer to the question in one moment if I may, Mr Andrew, but let me give a bit of general context. This, I think, is a very good example of where the combined authority has been able to demonstrate the fundamental principle that each can achieve things that individual local authorities working on their own probably would not have done. Of course, the critical point is that we achieve it by working with our local authorities, but we can clearly demonstrate that we have brought additional firepower.
The stats are very clear: we have hit our housing target in this region over the last four or five years, and we had, pre pandemic, doubled the number of homes being built every year in this region. One way that we were able to do that is, of course, working with central Government by deploying the brownfield land funding that the Department for Levelling Up, Housing and Communities had allocated to us in various tranches. We have made the existing system work, and very clearly we probably would not have had a negotiation—for example, Walsall or Wolverhampton separately—with DLUHC had we not existed.
Coming to your question, we are doing this against a good backdrop. We hope we will win further funding in due course to advance this even further, but on the reforms in the paper—it is a general question—essentially I would be supportive of them because they do bring simplicity to the operation. I do think that one of the challenges we constantly face is the time difficulty in drawing these items to a conclusion.
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Neil O’Brien)
Q
Andy Street: The answer to the first question, in one word, is yes. Let me explain why, and this is something that Minister O’Brien and I have talked about for probably a decade, since we were both in previous roles. If you look at the economic history of this country and compare it with other, similar countries, we definitely have a weakness in the out of London areas. There is nothing original there; we know that. Of course, part of the answer is to try to address that in what you might call areas of sufficient scale. I think the thing that the combined authorities have done, as you could argue that the more successful and bigger LEPs did as the precursor to it, is begin to think about economic policy at an appropriate spatial level, or what the books would probably call a natural economic area—a travel-to-work area or whatever. That, I honestly think, has been one of our great successes. Transport policies do not stop at the end of Birmingham when it moves into Solihull, as Gill’s market does not stop at the end of Wolverhampton when it moves into Dudley. We have been able to think about these determinants of economic success across the appropriate geographical area. In our case, that is not yet fully complete, and if you look around the country, you see that other combined authorities are more clearly incomplete in that sense. I would argue that they should be encouraged to expand to fill their natural economic areas.
In terms of the advice, I think there is one simple word: you have to make sure that everybody is up for it. I do not believe this should be imposed. I do not think this should be about unwillingness. I do believe there needs to be a sort of buy-in to the core principle that the very first question is that everybody has got to be prepared to compromise and make this work for it to be a success.
Neil O’Brien
Q
Andy Street: Brilliant. I actually think this is probably one of the single most important parts of this Bill, and I am not sure it has had—what is the word?—the celebration it probably deserves. If you look at the long-term determinants of inequality, the intensity of R&D in an area is absolutely critical. You only have to look at the states of the Union and at an area such as Massachusetts and its leadership in R&D in medtech to see how Boston has become the most successful city in that sector by a country mile.
We have had a lopsided country in terms of public R&D—not just a little lopsided, but hugely lopsided. If you look at the West Midlands, we are very successful at drawing in private R&D, and we are very weak at drawing in public R&D. Our ratio here is four to one. It is definitely the worst in the whole country. It is ironic, isn’t it, because the private sector sees the opportunity and the public sector has not seen it in the same way? So for the Government to commit to tilting that and leveraging in even more private sector cash on the back of that is very important.
What has got to happen to do it? Frankly, we have got to change our approach to some extent. There is a whole piece here about cluster theory. Our public R&D has been incredibly focused in a very small number of research councils and research universities, which are basically around our automotive sector. We need to continue to play to that strength, but then to balance that by looking at the medtech sector, the fintech sector and clean growth. That is where we will be putting our focus in the innovator accelerator, so that it is a catalyst for us to improve our performance in new, adjacent sectors. So that diversification approach is a very important sprat to catch a mackerel—that’s what I call it.
Rachael Maskell (York Central) (Lab/Co-op)
Q
Andy Street: It is a really interesting question. I think the trade-off you are implying comes most acutely in the dispersal of public land and indeed any land where the public sector has to offer a subsidy. So what we have just done recently is launch what we call our “public land charter”. It is looking at some of the principles that will apply to how that is disposed. I am pleased to say that the Cabinet Office was very involved with us, as were some of the big private sector landlords and our local authorities. What we have come down very firmly on is this whole notion of an economic assessment that addresses what we might call the “greater good”—just as you have described, long-term value to the regional economy, not just the short-term transactional value. So we are trying, in terms of the principles by which we will guide the use of the funding we have to make this happen, to address exactly the point that you are drawing out.
Rachael Maskell
Q
Andy Street: I do not know the answer to this. I was honest enough to say earlier that I was not sure, but I am genuinely not on this one, because the huge advantage of the current variable system is that it can be waived where it is going to make a difference. I do worry, if I have understood the proposal correctly, about the absence of that ability. I know that that is not transparent and it does not pass some tests, but I think there is clear evidence that it can be used judiciously, for and against, when there is a marginal development. So my straight answer is that I do worry about that, but I can see, on the other side, the simplicity argument, which, as I said earlier, was valuable. I think that that is what has to be weighed.
Greg Smith (Buckingham) (Con)
Q
Andy Street: Thank you for that question, because this process is pretty bust; it is lovely that the Housing Minister is in the room for this debate. The answer to the question of where is that I have no difficulty with it being assessed by the upper tier planning authority—so, in our case, the met authorities. But I do not think that that is really the problem. The problem is that something systemic is incredibly wrong. We followed up the detail of this using Coventry as the case study, where the system of assessment through the Office for National Statistics has churned a number that is clearly nonsense. It shows that the growth of housing needs in Coventry will be more than 30% over 10 years. In the rest of the West Midlands, the average is about 11%, so you think, “This isn’t right” and you follow the story through. We have had a number of incredibly helpful and very honest conversations with the ONS, which has acknowledged in a letter to me that the number is wrong and is getting more wrong, as the assumptions that it made are not playing out over time. But when the wrongness—if that is not poor English—of the number is revealed, there is nothing in the current system that forces the local authority to review its plan, so there is a huge misstep in the process between that calculation and the actions that are then taken.
I have not raised this issue with the current Housing Minister, but I had lengthy correspondence with the previous Housing Minister. I believe it is an area of huge potential improvement, but the system is clearly broken, and I would be very happy to furnish members of the Committee with all the detail on Coventry, which was such an obvious outlier. Let us be clear that the consequence is that the city council is pursuing a policy that it has to pursue because of the numbers—I do not doubt the council’s internal working—and it is digging up the green belt around Coventry on the basis of spurious calculations.
Greg Smith
Q
Andy Street: I have no difficulty with the ONS, which is clearly the most objective, calculating the numbers—there is no question about that. I have no difficulty with the city council then being guided by that number, but the point in the middle is that there has to be a way that that can be challenged. There has to be a way to know whether it is on target and then it has to be reviewed, and the council has to have an obligation to review its plan if the numbers are wrong. It is not about who does the calculation; it is about the consequences of that calculation and feeding it through the next stages.
Greg Smith
Q
Andy Street: I still do not think that hits the point. The point is: whether it is fixed or a target, if the number can be challenged and proven to be wrong, what is going to happen? I can see where your logic is going—if it is only advisory, a council has more room for manoeuvre—but I think there is something even more fundamental, which is that there has to be a way of testing that number and then making sure that, if it is acknowledged by the ONS not to be accurate, it can be reviewed.
The Chair
We have unfortunately almost run out of time. I was tempted to see whether the Housing Minister wanted to come back and chat to our witness, but he seems to be pointing to the fact that time is up. Or does he want to use the remaining minute?
The Chair
The time is up, I am told. Thank you so much for coming, Mr Street. Your evidence was extremely clear and very helpful to the Committee.
Andy Street: Thank you very much.
Examination of Witnesses
Nicholas Boys Smith, Lizzie Glithero-West and Adrian Dobson gave evidence.
The Chair
Thank you, Nicholas, for waiting so patiently. You are here and alive.
Nicholas Boys Smith: I am certainly alive.
The Chair
We now move on to the fourth panel. I will not list everyone’s names, because I am going to ask them to introduce themselves. I will first ask the witness who is with us in the room to introduce himself.
Nicholas Boys Smith: My name is Nicholas Boys Smith. I am the founding director of the social enterprise Create Streets. I think it is probably also relevant to say that I was previously the co-chair of the Government’s Building Better, Building Beautiful Commission.
The Chair
I ask the lady on the Zoom call to introduce herself.
Lizzie Glithero-West: I am Lizzie Glithero-West, chief executive of the Heritage Alliance, which is the umbrella body for the independent heritage sector, with over 180 organisational members.
The Chair
And the gentleman on screen.
Adrian Dobson: Good afternoon, everybody. My name is Adrian Dobson. I am the executive director of professional services at the Royal Institute of British Architects.
The Chair
For the benefit of the Committee, I am told that we have until 3.10 pm with this panel. Who would like to start? The Housing Minister seems most keen.
Stuart Andrew
Q
Nicholas Boys Smith: I assume that question is for me. Thank you, Minister. That is a very profound question, and I do not mean that in a sycophantic way. The current percentage of British people who trust planners to make their local neighbourhood better is in medium single figures, and for those who trust developers, it is in low single figures—between 4% and 7%. Despite the widely accepted desperate need for new housing, the instinctive assumption of most neighbourhoods, most of the time—sorry, this is a bit of a coda, but we have the lowest houses to households ratio in the western world—is that new development will make places worse. That informs the politics of all large developments and most small ones.
That is new, and it used not to be the case 50, 70, 100 or 200 years ago. It is something that is particularly prevalent in this country. Until we fundamentally fix the instinctive assumption that people have—before they learn more—that new development will worsen your bit of the world, the caught-between-the-horns nature of the politics of housing will never go away. As elected Members of Parliament, you do not need me to tell you that. This is not a criticism of the Bill, but it will not fix that—no one bit of legislation or set of actions can—although some elements of it are relevant.
I will say one final thing before I shush so other people can come in. This is not just about support for new housing, important though that is. Provably, where we live has very measurable and, in some large degree, quantifiable and predictable consequences for the lives we lead, our personal health, our mental health, how many of our neighbours we know and how much we walk in our daily existence, rather than just jumping in a car to go to the shops. It has very profound consequences, not just for spatial development patterns, but for the depth with which we tread upon the planet.
The Chair
Q
Lizzie Glithero-West: Very briefly, because I am sure that Adrian will have some points on this. From the perspective of heritage and the environment, the Bill and the things around it—I support the point that this is not just about the Bill, but about the policies around it—should support sustainable reuse of buildings. Some of the best new homes are not necessarily new built; they can be renovated. Something that would be on our list for the Government to think about alongside the Bill would be the incentives to encourage reuse rather than demolition and new build.
We welcome the possible introduction of design codes, which would allow for developments that could recognise the local vernacular. Design codes should offer sustainability, safety and quality. There is a big point about the protection of designated heritage assets, as well as non-designated heritage assets, which are not necessarily included in the Bill. Some provisions could be made, either within the Bill or around it, to incentivise repair and saving buildings, and using them as a way to keep the character of a place rather than just resorting to new homes and new buildings.
There are two things that we could look at in particular. The first is removing the permitted development right for demolition, which is a problematic loophole at the moment; it incentivises flattening beautiful buildings that may not be listed. Secondly—I can presumably talk about this in more depth later—we could look at the VAT on the maintenance of current buildings. That is normally 20%, which is completely contrary to the 0% rate for new build and incentivises the wrong solutions for the environment as well as for local communities.
Adrian Dobson: The Building Better, Building Beautiful Commission highlighted the value of good design, presumably in part because communities are more likely to accept well designed buildings. It also highlighted a lack of resource within the planning system, particularly in design expertise. The Bill itself places a lot of emphasis on local design codes. I am sure the Committee will want to talk about that; it is something that excites quite strong opinions both ways. Some people see local design codes as a way of establishing good basic principles, greater certainty around development and the ability to reflect local needs, but some people see them as potentially stifling innovation. That would be one way of addressing the issue.
I think it is important for us to think about design as not just being skin deep, although it is about appearance. Good quality design needs to address issues around sustainability, quality of build and the health and welfare of the people who use the buildings. When we talk about the Bill, there are perhaps some contradictions at the moment. There is possibly a contradiction between emphasis on local design codes, but growth in permitted developments. They seem to contradict each other slightly, and that might be one thing to think about. Also, there is a tension in the Bill between national development management policy and its relative weight against local development plans. Again, that might be part of the area of debate on the issue.
To follow up on something Lizzie said about the sustainability and embodied carbon aspects, we probably ought to be making more presumptions on reuse, retrofitting and alteration of existing building stock, and not just looking to new build as the solution to those issues.
Stuart Andrew
Q
Lizzie Glithero-West: We believe that heritage is at the heart of the levelling-up and place agenda. We are really pleased that heritage is in the Bill and has its own chapter—chapter 3. There is a lot to welcome in the Bill. Given that heritage has not recently had any distinct legislation of its own, as we had hoped to have with the draft Heritage Protection Bill of 2008, nor is it likely to, it is important for us to take any opportunity to address some of the legislative aims of the sector and policy makers. Many of those aims had cross-party support. This Bill is one of those significant opportunities. There is always more to be done around heritage protection, but several elements of the Bill, and some further measures we have sent in a briefing to the Committee—I can unpack that, if it would be helpful—address some of those long-awaited calls from the sector.
We strongly support clause 185, which would make historic environment records statutory. That has been a long-term ask from the sector, and it features in our heritage manifestos. The sector is delighted that this has made it into the Bill, and I congratulate those working on that behind the scenes. We strongly support clause 92, which extends the protection of heritage assets. We suggested a limited number of key additions to the heritage assets list that would ensure that protection was clearer and more comprehensive, and those are outlined in our briefing.
Given the presidency of COP26 last year and the recognition of the climate emergency, we hope to see more action from Government in parallel with the Bill, or possibly within it—for example, the mention of permitted development that I made earlier for demolition —to encourage the use of current building stock over a presumption to new build. We hope that will be picked up in tandem.
Clauses 93 and 94 are also welcomed by the sector. Clause 93 makes stop notices, which have long been available within the wider planning system, applicable to heritage consent regimes. There is strong support from some in the sector for clause 94, which says that urgent works can be required in certain cases where listed buildings are occupied.
I think clause 95 is the one that you are probably referring to. There is general agreement from the sector that there needs to be a better system for the protection of buildings that are being considered for listing. The whole sector recognises that interim protection of heritage during the listing process is important. There are different views in the heritage sector on the proposals in the Bill to address that. Many in the sector welcome the removal of compensation in clause 95 and would go further by asking for a duty on local planning authorities to serve a building preservation notice where they believe criteria for listing can be met.
A significant minority, however, have concerns about the removal of compensation from those wrongly served a BPN, which could result in delays and losses. There is a concern that that would set a precedent for other compensation clauses. The organisations that I mentioned would rather have a system of interim protection akin to that in Wales. It is important for the whole sector that there is clarity on the approach taken in any transition period until the Act is fully effective. There are other bits I would like to mention, but they are not necessarily directly on the heritage angle and are particularly in relation to the replacement of environmental impact assessments and strategic environmental assessments. We can come on to those if the Committee would like to touch on them later.
The Chair
Q
Nicholas Boys Smith: I will make a quick point linking to the wider discussion on levelling up. The danger in the years to come is that as public sector money rightly supports the regeneration and investment in left-behind towns and places, in areas with low land value, that could actually lead to the reduction in quality of the urban realm and thus the reduced liveability of lots of historic but low-value places—the Grimsbys, the Hulls and the Stoke-on-Trents of this world. It is very important that the Bill focuses on the protection of heritage.
I think it will be very important in the years to come to think hard about how we protect, as we do not do quite so well at the moment, late Victorian and early 20th century heritage. At the moment, the ability to list gets much tougher for the late 19th century. This is not something that needs to be done through the Bill; it could be done through secondary legislation or guidance. We should make sure that as lots of money and focus goes on to levelling up places, we do not, as we have too often in the past, erringly do great harm to areas with unlisted and perhaps not very fashionable early 20th century-style places.
The quality of the urban infrastructure and realm of many of our left-behind towns is fantastic. They are often post-industrial towns with much lower levels of listing than the Salisburys and the Winchesters of this world; that is no disrespect to Salisbury or Winchester. There is a quite urgent need to face into that. Doing so would have the added advantage that more of our housing requirement could hopefully come in a more sustainable pattern from these rather under-utilised, under-invested-in and under-lived-in towns in the midlands and the north.
The Chair
Q
Adrian Dobson: I return to capacity and expertise, because the Bill puts more and more pressure on stretched planning departments. We know that they struggle to compete for resources with other frontline services, and yet the care of these heritage assets requires more expertise both within planning departments and among the professionals who carry out the work. To pick up on the last point about the huge volume of pre-1945 housing stock that we have, all of that will have to be improved and have its insulation improved. There are risks that if that is not handled sensitively and with the right expertise, we could damage the very environment we are trying to protect. It is just that issue of how we lever that, whether or not from the private sector, and how we get that sensitivity and expertise from the conservation architects and conservation specialists.
The Chair
I should have said to the witnesses at the beginning that you might be surprised that you are getting questioned by the Minister, but the advantage of these evidence sessions is that we can have a wider debate and get more information, which feeds into the process later on, so Ministers are taking the chance to get your evidence for that purpose. We are now going to go to the shadow Minister.
Alex Norris (Nottingham North) (Lab/Co-op)
Q
Lizzie Glithero-West: We are very pleased to see the list of assets. While this table does cover many of the key asset groups we would expect to see—it has been pointed out that the inclusion of registered battlefields could be a little clearer—it would be good to address a couple of gaps at this stage. To be clear, they are not major gaps, and we really welcome this clause being in the Bill.
One such gap would be around the setting of conservation areas. A number of my members are supportive of the idea of inserting a clause to allow the protection of a small number of nationally important archaeological sites that cannot now be designated because they lack structures. These are things that would have gone into other Bills. It is a very small number of sites, but they are very important. They cannot currently be designated but they could be designated, so there is a great opportunity to address that.
The point about setting is around conservation areas and the impacts of, for instance, tall buildings nearby and so on. Our briefing refers to that not currently being in the Bill. The other thing we would like to probe a bit for parliamentarians is how these designations will interact with other natural environment designations—for example, ancient trees, ancient woodlands, veteran trees and ancient hedgerows. There is such a symbiotic relationship between the natural and historic environment. Often, a few different designations will be in the same area, and it is important that there is clarity around that. It has also been noted that there should be consideration of maritime archaeology—perhaps looking at the Protection of Military Remains Act 1986 in addition to what is already in this list.
One other point I want to make is about the clarification of some of the wording. If the wording has been chosen to align the Bill with the national planning policy framework, it should be noted that the NPPF talks about preserving and enhancing significance, which is subtly but importantly different from preserving and enhancing assets. A related amendment should replicate the intent of the NPPF, which would ensure that the process of undertaking archaeology, which, by its nature, can be destructive but enhance knowledge and significance, is covered by the duty and not inadvertently excluded. The concern from some in the sector is that unless enhancement of significance is properly defined, it could lead to unintended consequences. Those were the main points on my list. I hope that is helpful.
Alex Norris
That is very helpful. Do the other panellists have anything to add?
Nicholas Boys Smith: I will make a point very quickly; I will not comment on those detailed points. This does not actually need to come through primary legislation, but, building on what I was saying earlier, there is an important opportunity and need in the criteria for listing, as set out by the Department for Digital, Culture, Media and Sport and Historic England, to put more focus on issues such as townscape quality, pride in place and local popularity as well as—not instead of—issues of architectural importance.
An architectural historian might say about a building, “Oh, there are 50 of those around the country” or “Well, that is the 15th of those, and there are earlier ones over there.” Actually, if that were a town hall, it would be very significant to the people living in that town. It comes back to the wider debate about levelling up and pride in place. There is an important need to gently weave those things more clearly into the guidance for listing, but as I say, that does not actually have to come through the Bill. I do not get invited to this kind of thing every day of the week, so I have taken the opportunity mention this today.
Adrian Dobson: I do not think I have anything to add on this particular point.
Alex Norris
Q
Lizzie Glithero-West: It is a very short answer from me. Clause 93 is supported by our membership. Private owners of heritage will want to be sure that it is very clear, but the clause is welcome. My only point would be that in any transitional system between Bills, you want to ensure clarity and that there is no confusion.
Adrian Dobson: I have just a general point. One of the challenges for the planning system is that, inevitably, things get concentrated on development management and that can be, initially, at the expense of what you might call proactive planning and also enforcement activity. There is just a concern that the proactive planning and enforcement activity can become the Cinderella element of the planning system if you are not careful.
Rachael Maskell
Q
Lizzie Glithero-West: Excellent—yes, of course. I have mentioned a list, particularly in relation to clause 92. There is always more that we can do. It is not an omission but an opportunity—that was the point about sites without structure and the list that is in our briefing.
What I would like to turn to, which is very much related to this—and which is less an omission and more an area that we think needs scrutiny—is the environmental outcomes reports. We are pleased that the relevant clause recognises that “environmental protection” should include protection of the cultural environment and landscape, as well as the natural environment. The historic environment often forms part of the habitat for nature, and it is vital that that symbiotic relationship is recognised. It is important to archaeology, which I know is your area, too.
However, we have some questions about how the proposed EORs will differ from the current environmental impact assessments. It is good that cultural heritage is included, but we need a bit more information on how they will work, and it is important to ensure that the definition of cultural heritage in the Environment Bill is not used in this legislation. We were not happy with the Environment Act, because it excluded built heritage. If that were translated across to this Bill, that would become problematic for heritage and archaeology.
There are particular concerns about an inadvertent drop in the protection currently offered by EIAs and SEAs—strategic environmental assessments. The sector seeks reassurance that that will not be the case. Those concerns arise, as it is difficult to see the detail. We are concerned that the delivery through regulations might mean that there is not the same opportunity to scrutinise the details as would be the case through primary legislation. We want to ensure that the new EORs have the same scope as the current EIAs, which include protection of cultural heritage and landscape. We want those aspects to be given the same weight as the natural environment.
Also, there is a question about clarity. It would be useful and helpful to have clear confirmation that cultural heritage includes underwater cultural heritage—that is particularly important for archaeology as well—and clarification of what “relevant offshore area” will mean in the context of the Bill.
Rachael, I hope that that is a couple of points in addition to the points about clause 92.
The Chair
Nicholas, do you have anything to add?
Nicholas Boys Smith: Again, I could add something on wider things, but not on that particular point.
The Chair
Adrian?
Adrian Dobson: Interestingly, Lizzie has made the connection between the new, so-called EORs and their impact on the heritage environment, and she has made the point that there is a lot of detail still to be developed. I think you could apply that to the Bill generally, so I just make a plea for the various sectors—the heritage sector and the architectural sector—to continue to be engaged, because there is a whole level of detail that we cannot really comment on today, because the ambitions and powers are there, but quite how they will be evolved and enacted is not so clear.
Greg Smith
Q
Nicholas Boys Smith: Many years ago.
Greg Smith
It was many moons ago, but I thought I should put that on the record for transparency.
We have been looking at what the Bill is seeking to do in terms of protecting heritage and identifying that which makes a place within the planning system. For rural communities, one of the defining characteristics, certainly of every village that I represent, is the farmland and the food production that goes on in that village. It is the farmers who maintain the hedgerows, the beauty of the place, and so on. Therefore, can I explore with you, in the spirit of protections for heritage, place, and identity for a locality, how much, in a rural setting food, production and agriculture should equally be protected or at least considered as part of the planning process? Perhaps we could start with Lizzie.
Lizzie Glithero-West: I am just pondering that for a moment. Your question is on the balance of the production of food versus land being taken out of production—is that the nature of the question?
Greg Smith
Q
Lizzie Glithero-West: I feel I am perhaps leaning into a discussion about the Environment Act, but it is absolutely a part of levelling up. As archaeologists, we do not see a dichotomy between the natural environment and the historic environment. In fact, none of our landscape is purely natural in that sense. Hedgerows and features in the landscape—often scheduled ancient monuments—can provide homes for biodiversity. The two need to be thought about together. It is actually really fundamental in the roll-outs of the Agriculture Act and the Environment Act. Heritage is a pillar at the heart of the 25-year strategy and it is so important that it remains so, hence some of our concerns around the Environment Act.
We absolutely believe in public value for public goods. As some of those public goods would be around the preservation of heritage, which then goes on to support rural communities and biodiversity, it is all part of character of place to be able to use those assets; they are at the heart of place both in the town and in the rural landscape. A lot of the measures we are talking about today contribute to that.
We would like to have seen more in the Environment Act. We were concerned about some of the definitions, and that heritage was removed from some of those protections. The future farming regime and how farmers are paid for public goods will be fundamental to the point you raised—that although those features in the landscape and these places often might not be seen as valuable for food production, they are incredibly important for rural tourism, local communities, biodiversity and heritage.
Greg Smith
Q
Nicholas Boys Smith: Yes. I can come in with passion and, perhaps, too much aplomb. One of the most consistent, heartfelt and distressing pleas that I have heard, that the Building Better, Building Beautiful Commission has heard and that is shown in evidence more widely is that people feel that new housing is done at them, not with them, and that it is of everywhere, not of “here”. That theme emerges in every piece of research I have done or read, even if it is expressed differently.
At one of the very first co-design workshops I ran, a marvellous lady from the West Indies—I forget which island—said that she wanted places with a heart and places that could not just be anywhere. You hear the same thing in the Cotswolds, Buckinghamshire or York. It comes up time and again. We know from neuroscience that people need and want that sense of place—a place that is their home in the world. It is unquestionably the fact that we are not currently providing that. That is something that is particularly heartfelt in your type of community, Mr Smith.
Why is that? There are several reasons. One is that although our policy on design quality and on the nature of developments we create is often quite aspirational and sounds nice, it is not cutting through in reality. If you look at the houses and the types of place we create, they are pretty similar from Cumbria to the Cotswolds—to take two random places beginning with c—or from Berkshire to Buckinghamshire, or wherever. They are very standard typologies, done with very similar highways rules.
We were doing a design code for a housing association that wanted to do houses that fitted in with rural communities. The highways rules and expectations for parking and for splay circles—things that sound technical and boring—meant that they could not. We desperately need to empower people’s preferences—it is right to do this; the NPPF has already made some good moves—for the types of places that they pay a premium to live in, so they must value them. The best way to achieve that is to stop banning the types of village centre that we have essentially banned. That does not quite answer your agriculture question directly, but it does indirectly.
If we are able to stop villages growing carcinogenically, by which I mean you have a village centre and then sprawl being—rude word—into fields around, we could perhaps allow a secondary village centre, which is perhaps more nature-similar and linked, and accept that perhaps some of the houses or flats in the village or town centre have fewer cars and are a little bit tighter together. Lots of the types of traditional village or small town street, you just could not build, although it is getting easier now. Until recently you could not build at all, but thanks to recent changes, it is getting easier.
We need to allow a visualised expression of local character to more axiomatically set local standards and expectations, as defined by local people—not by me or you or the council, although it might have a role. That becomes absolutely essential and it will allow us—again, you can see the premium in the numbers—to develop at slightly higher densities. I call it gentle density, which, again, people will pay a premium for. It does not need to be spewing out into field after field. If we can, we should create a type of walkable, attractive, gentle density, and the focus on design codes linked to the NPPF and the new national model design code in the Bill makes that more possible. It will not solve all the challenges, because they will be existential and go on forever, but it is the best and most credible route.
Greg Smith
Thank you. Adrian, do you have a view on this?
Adrian Dobson: Just to reiterate the point about density. Higher densities can be acceptable. If they are designed in the right way, that is very valuable. The Town and Country Planning Act 1990 has served us quite well in many ways, although criticisms of it could be made. We have some slight concerns about over-centralisation. The concept of local plans and local design codes, where good designers can respond to that local context, is one of the traditional strengths of the UK planning system.
Nicholas Boys Smith: Can I constructively, in a good and friendly fashion, disagree with that point? Is that allowed? I don’t want to be out of order.
The Chair
We encourage you!
Nicholas Boys Smith: It is constructive and friendly, Adrian; it is not meant to be unfriendly. I agree with the principle of what you say, but I think the reality is different. If you do a comparative analysis of the power and strength of our local plans compared with equivalent documents in other countries, our local plans are incredibly weak. They are policy documents that are verbalised and in practice allow you to do almost anything most of the time. Let me paint a picture. In Sweden, in much of America and in parts of France, and in different ways in Holland or Denmark, it is much easier for someone almost to pick a house out of a catalogue provided by a much wider range of providers, rather than being reliant on a small number of house builders who produce far too high a proportion of our homes.
We are living in a—am I under parliamentary privilege? I don’t know. I am not sure whether I am allowed to say “cartel”. We are certainly living under a massively overly concentrated market, because the local plan has not managed to set regulatory clarity. A lack of regulatory clarity, although associated with nationalised development rights, is a major barrier to entry, and it is exactly how it is operated. I agree with what you say in principle, Adrian, but sadly not in practice. I hope that was okay, Mr Bone—sorry.
The Chair
Q
Adrian Dobson: Thank you, Chair. I disagree and agree at the same time. I think all the witnesses agree that design is highly important. I have tried to say please let us not think of it as just skin deep. We need to create buildings and public spaces that address sustainability, build quality, safety and welfare, and that are responsive to local need. I would still make the point that it is at that local authority level that you can get the best response to local context. At the micro level—neighbourhood plans and, although we have not talked about them, street plans and so on—we have not had a good record of really making that work in the UK, so it is at that local authority level that we can be most effective.
Really though, the Bill’s ambitions can be met only if we have proper resources. Design expertise in particular is just not there in local authorities. That is not a criticism; it is just a reflection of the facts. In fact, we do a monthly economic survey of our members, and although at the moment the biggest barrier to projects proceeding is probably inflationary costs in construction products, in every survey we do the time it takes to navigate the development control process is always a halt on development.
Finally, we have not really talked about it but the Bill has lots of ambitions on climate change and sustainability, and there is obviously a lot of movement in the right direction generally from Government, but this is another one of those areas where there is not much detail about how that will actually be realised. I just make that point as my third one.
The Chair
Thank you. Lizzie, as I said to Adrian, what would be the one point you would want to make? [Laughter.]
Lizzie Glithero-West: I suppose it would be that this Bill is part of a wider jigsaw of the Government’s levelling-up agenda. Building on “Building better, building beautiful” and other reports, what does the Bill not do that the Government also need to think about in tandem? I have touched on it already, but this Bill is one component of thinking about a fiscal and legal framework to incentivise heritage and reuse at the heart of place.
I touched on them briefly, but there are two key things, one of which could be picked up in the Bill, and I encourage the Committee to be thinking about it. The removal of permitted development for demolition is truly damaging to really valuable recyclable stock. Associated with that we really welcomed in the “Building better, building beautiful” report the strong recommendation that the fiscal regime for repair and maintenance needed looking at. That is a really significant change that the Government could now effect that would incentivise repair. It would also boost productivity, and there is some great research behind that. The Federation of Master Builders and Royal Institution of Chartered Surveyors looked at a temporary five-year cut and estimated a £51 billion economic stimulus from construction and repair around that. Of course, it would also help the Government to meet their net zero targets as well.
In the context of the Bill, I would strongly encourage policy makers to consider those two points.
The Chair
Briefly, Nicholas.
Nicholas Boys Smith: Briefly, did you say? I will make one point, into which I will weave three themes, quickly. [Laughter.]
The Chair
In 90 seconds.
Nicholas Boys Smith: One of my favourite quotes from the “Book of Common Prayer” is that we should be “godly and quietly governed”. That is probably an old-fashioned quote these days, but Mr Kruger may like it. The way we currently run planning is not quiet. We put a disproportionate amount of the process and the political difficulty—and my golly it is difficult—on the development control system or process, and not on politically acceptable local plans. My ultimate plea to Ministers, shadow Ministers and Members on both sides of the House is to work together to try and bring the democracy forward into the plan-making process and to rely less on the hard-to-avoid, personal, difficult and emotional debates that will then happen around individual development decisions.
That is not necessarily politically easy, because the whole process around it and around civic society is to worry about the individual planning applications. We actually have to allow more power and more popular process on the local plan, to express that visually and typographically, and to think about sustainability not just in terms of the energy and use, but the lifestyles that we live and the longevity of buildings. More beautiful buildings get reused and last longer, and their embodied carbon is recycled. I think, “Pull the democracy forward,” is my plea to you all.
The Chair
Thank you all very much. I very much appreciate your evidence. That ends this session, and we will now move on to our fifth panel.
Examination of Witnesses
Dr Richard Benwell, Carolyn McKenzie and Paul Miner gave evidence.
The Chair
Q
Dr Benwell: Good afternoon, and thanks for having me. My name is Richard Benwell, and I am the chief executive of Wildlife and Countryside Link, a coalition of 65 environmental charities.
Paul Miner: Good afternoon, everyone. My name is Paul Miner, and I am the head of policy and planning at CPRE, the countryside charity. I am a chartered town planner.
Carolyn McKenzie: I am Carolyn McKenzie, director of environment at Surrey County Council. I chair the energy and clean growth working group at the Association of Directors of Environment, Economy, Planning and Transport.
The Chair
Thank you. The witnesses can expect questions from Ministers because the object of this Committee is to gather evidence to influence our detailed consideration of the Bill.
Matthew Pennycook (Greenwich and Woolwich) (Lab)
Q
Dr Benwell: It is definitely not a missed opportunity yet, because we are only at the start of the process. I would say it is a huge opportunity to tackle two important environmental problems associated with planning and levelling up.
The first of these is environmental inequality. We think of the levelling-up agenda as being about economic inequality, but we live in a country of really deep environmental inequality. We have probably all heard the statistic that there are 40,000 premature deaths a year from air pollution, but it can vary street by street, let alone town by town. It goes deeper than that, because there is environmental inequality in things like access to natural green space, which has been brought to the fore over the past couple of years when so many people have depended on it. Those inequalities are, again, really deep. People from the lowest socioeconomic backgrounds are nine times less likely to have access to high-quality natural green spaces, which is hugely important for our physical and mental health. People from ethnic minority backgrounds are twice as likely to live in places that are bereft of access to natural green space.
At a wider level, there are deeper environmental inequalities still. Think, for example, of folk living in areas where degraded uplands mean that water flows more quickly over surfaces, flooding homes and businesses. Think of the same in urban areas, where densification and the use of impermeable surfaces is increasing flood risk and other environmental risks. There are huge levelling-up aspects to environmental inequality, which this Bill is an opportunity to fix.
Secondly, the planning system can help us environmentally through its impact on nature. We know that more than 40% of species are in long-term decline, and 15% of species here in Great Britain are at risk of extinction. The last “State of Nature” report made it clear that planning and unsustainable development play a big role in that. The Bill is a chance to make sure that, in future, the planning system is not imbalanced as it so often has been in the past when it focused on things like housing numbers alone. We need to balance that with the need for spatial planning and careful development that contributes to nature’s recovery. At the moment though, those opportunities have not been realised. On the contrary, some provisions in the Bill will do quite the opposite and bring in new environmental risks.
I will quickly address how to grasp those opportunities. It would be excellent if, among the levelling-up missions set in clause 1, you included access to a healthy natural environment. I was really surprised to see that the levelling-up White Paper’s list of capitals included human capital, financial capital, intellectual capital and social capital but not natural capital. Not to list environmental capital as one of those fundamental assets reflects a 1980s philosophy, really. So we should have access to a good-quality natural environment as a levelling-up mission, and a duty on public bodies to help people achieve that with access to natural green space.
On improving the planning system, there are some obvious missed wins there, such as making sure that planning and development decisions are in line with section 1 of the Environment Act 2021 and section 1 of the Climate Change Act 2008, to meet our carbon budgets and halt nature’s decline by 2030. You could go further, with things like implementing the findings of the Glover review to improve the contribution of national parks to restoring nature here in the UK. So there are some really missed opportunities for positive planning.
On the negative side, I do not know whether we will touch on this later, but although the environmental outcome reports proposed in the Bill sound positive in principle for the natural environment, the way they are framed risks undermining some of our most important conservation laws. Those clauses and that part of the Bill need some attention to make sure they do what I think they are intended to do, which is to add a new layer of protection, not to weaken our long-standing, important environmental protections in this country.
Matthew Pennycook
Q
Carolyn McKenzie: The earlier speaker made some really good points; I back up all those points, but I will not reiterate them. At the local level, it is very much about integration across different policies. There is some really good stuff in the Bill, but integration across all the different policies will be key. This is not just about the big infrastructure, such as wind farms or EV charging; it is about making sure that environmental considerations are integrated across all projects in infrastructure and all levelling-up projects, because a pound spent on levelling up can deliver on your outcomes for net zero or biodiversity, and investment in net zero and biodiversity can deliver on your levelling-up ambitions as well.
In addition, although there is a real need for some of the big infrastructure projects, if I take a look at Surrey as a whole and our net zero emissions, the biggest proportion of those emissions, 41%, is down to private sector transport, and 31% to 33% is down to domestic housing. Those local actions—local public transport and active travel to get people out of their cars, and remote working, as well as tackling retrofit—have the potential to not only reduce emissions, but to drive jobs and growth and tackle inequalities, because inequality is hugely linked to the environment: a lot of our poorer communities have the poorest environments. The one thing I will repeat from Richard’s comments is that there is a lack of recognition that a healthy environment for all is really important when it comes to having a healthy economy and a healthy social area as well.
The last point I would like to make is about taking a place-based approach. Funding is often fragmented, competitive, and focused on specific things like EV cars or renewable energy. At the county level, we are very much looking at a place-based approach where we can link things together and look at a community as a whole. If we could link all that funding together and have a pot that delivers on an evidence-based approach that says what is needed in the area and links up all of our ambitions around health, economy, social and environment, that would be a lot easier, and we could make funding deliver more than the separate, individual pots could. Having place-based funding that is based on local evidence of need would be really helpful.
Paul Miner: I should say at the beginning that I am speaking today on behalf of CPRE, the countryside charity, and point out that CPRE is leading the Better Planning Coalition, which includes a wide variety of environmental, social and community organisations that have come together to put forward a shared view on how we can improve the Levelling Up and Regeneration Bill and make it stronger for people and nature more generally. We are working in a number of key areas. Climate change is one of them.
In CPRE’s view, at the moment the planning system has an institutional weakness in dealing with climate change. There is a duty on local authorities in the Planning and Compulsory Purchase Act 2004 for their development plan document—so local plans essentially—to contribute towards the mitigation of and adaptation to climate change. However, that duty is not strong enough. It does not consistently influence local authorities or planning inspectors examining plans or appeals. The Bill merely reiterates this existing and insufficient duty. We have seen, for example, recent planning stats reports for 24 recently adopted local plans that show only one mention of climate change for 24 of boosting housing supply. The priorities of the planning system have become massively skewed and unbalanced.
We want to see in the final version of the Bill some additional clauses that apply the climate change duty both more meaningfully, so that it clearly reiterates the national commitments made in the Climate Change Act 2008, but also applies the climate change duty to national planning policy as well as just local plans. It should also apply to decision making on specific planning applications, as well as just in the making of local plans. We also need to see more detail about what the duty means both in terms of mitigation, achieving Climate Change Act targets on budget and climate budgets, and in terms of adaptation, relating it to relevant statutory risk assessments and compliance. The coalition is coming forward with some further ideas on this, which we are very keen to discuss further with the Committee in due course.
Matthew Pennycook
Q
Dr Benwell: We cannot give a complete view, because so much is proposed to be done in regulations and that itself is a problem. The idea of taking a more outcome-based approach to environmental impact assessments is a good one and there are definitely areas where environmental impact assessment and strategic environmental assessment can be improved. So things like making sure that you get the thresholds right to include all potentially environmentally damaging plans; that could be improved. Things like making scoping decisions mandatory; that could be improved. The problem as we see it with the environmental outcomes proposed in the Bill is that the outcomes set can simply be spliced in in place of existing environmental requirements. We do not know that those will be robust enough.
For example, in the environmental impact assessment process, if anything proposed in a plan or a project is likely to cause significant harm to the environment, there is a duty to avoid, mitigate or compensate for that potential harm. In the new system, if an environmental outcome is set that, for example, talks about a general outcome of improving the abundance of species at the national level, any sort of project that claims to be doing that nationally could ignore local impacts. It could ignore the impacts on particularly important sites and species at the local level. That could be extremely damaging for things like sites of special scientific interest and UNESCO sites, which are afforded their main protection through the planning system and through the EIA and SEA.
I should point out that these clauses will affect not just the EIA and SEA; it is really important to note that the habitats regulations and the habitats regulations assessments are also affected. If you look at clause 127, you will find an extraordinary provision that says that anything done in an environmental outcomes report can be treated as satisfying any existing duties under the habitats regulations assessment process. That process, which is what protects our most internationally important wildlife sites from harm, is even stronger than the EIA and SEA, because under the habitats regulations process, before a site can be affected by a project that causes significant harm on site or by contiguous activities, the developer must prove that mitigation is in place to avoid that significant harm, or that there are imperative overriding public interest reasons to proceed and compensatory measures are in place.
That is a really high legal bar to protect our most important sites and species of international significance. Under the Bill, the Government could put in its place a more parochial and limited environmental outcome, such as saying that the best available technology has been used to reduce water pollution, or that overall national trends will be going in the right direction. That would weaken and undermine the extremely important protection provided by the habitats regulations. You do not often see a clause in a Bill that says that anything in regulations can be treated as satisfying existing legal duties, or indeed that anything in them can amend, replace or repeal any of the most fundamental parts of the habitats regulations that we have come to rely on for decades. The concept is quite good, but the way in which it is being applied brings serious risks of undermining long-standing environmental rules that would potentially create huge uncertainty in the planning system, because developers and conservationists alike have become used to operating under this system.
Paul Miner: I agree with Richard about the environmental dimension of the environmental outcomes reports. It is also worth the Committee considering that under the current system, local authorities have to do a sustainability appraisal, looking not only at environmental factors but at social and economic factors.
To pick up on what Richard and Carolyn pointed out, there is quite an important issue about the effect of the planning system on human health. It seems particularly strange that in a Bill about levelling up we are not using the outcomes reports as a means of embedding the Government’s levelling-up objectives in the planning system. For example, the levelling-up White Paper calls for measures on increasing healthy life expectancy and regenerating town centres, but those will not be assessed at all through the planning system under environmental outcomes reports, whereas they would have been under the current system of sustainability appraisals.
Carolyn McKenzie: I agree that taking an outcome-based approach allows us to be more flexible and achieve more, but it depends on how narrow the outcomes are, which is Richard’s point. It would be really good to ensure that the outcomes in the Bill match the performance targets and indicators that the Department for Environment, Food and Rural Affairs is currently consulting on under the Environment Act 2021. They need to link up so that we have one set of environmental indicators that all sectors and all areas are delivering on.
To pick out one example, there is no mention of natural capital in the Bill, as Richard pointed out. How can we put in an outcome relating to natural capital, which could be really important for health, attracting businesses to areas or carbon sequestration? That is a key element of levelling up, so I urge caution in ensuring that any new outcomes link directly to the Environment Act and the 25-year environment plan.
Matthew Pennycook
Q
Dr Benwell: I should have brought my copy of the Bill. There are actually some very good bits in clause 117. The Government have done quite a good job of writing in the mitigation hierarchy, which is welcome to see. The problem is linked through to clause 127, which allows everything in preceding parts simply to replace existing environmental law. It would be much better if the Government came forward with fully worked-up proposals for how to strengthen the existing system of the EIA and SEA, rather than taking the approach of giving themselves the powers to take out layers of environmental law and put in something different.
You mentioned clause 120, the so-called non-regression clause. It is obviously a good thing to have a commitment not to weaken environmental protection, but I am afraid that the efficacy of such a clause is really in doubt, for a number of reasons. First, it is the Secretary of State in whose opinion environmental law has to be maintained at an equal level. That is a highly subjective opinion left in the hands of Ministers—and, just to emphasise, not a court in the land would challenge that on the basis of ultra vires without it being patently absurd. Courts are really deferential to decision makers, so if a Minister were to say, “Yes, this is equivalent,” that statement would have to be really, really daft for a court to challenge it. So we think that that kind of non-regression provision is unlikely to be robust.
Secondly, the other noteworthy part of the non-regression provision is that it talks about overall levels of protection. That is where we come back to the idea of talking about the environment in aggregate and those big broad trends of species-level data, which is really important—like Carolyn, I think that we should be linking back to the Environment Act targets—but it is not sufficient. We must keep in place the rules that protect the particular, the peculiar and the exciting at the local level that matter to important people, and those local populations of species and habitats that are so important. Otherwise, we get into a runaway offsetting mentality where the assurance that things will be better overall can be taken to obscure a lot of harm to the natural environment at the local level.
So there are some good things in clause 117 and some nice sentiments in clause 120, but overall they do not give the reassurance that would be provided by simply taking time to work up provisions in full and bring them forward in primary legislation rather than giving Ministers the power to swip and swap through regulations.
Paul Miner: I have nothing further to add on this question.
Carolyn McKenzie: I have nothing further to add other than to reiterate the local element. You do get lots of peculiarities in different areas, and they can be lost, so we must make sure that they are not.
Neil O’Brien
Q
Paul Miner: We think that a brownfield-first approach to new housing and commercial building development can have a number of benefits. We have seen constantly over the years that there is enough brownfield land available for over 1 million new homes in any given year, and this supply of brownfield is constantly replenishing as more sites come forward, and it is possible to build at higher densities.
We think there are a number of clauses in the Bill that could help with brownfield regeneration, such as those relating to changing compulsory purchase order powers, as you have mentioned, and the infrastructure levy. Getting local plans in place more quickly will also help to bring brownfield sites forward. So we see a lot of benefits to a brownfield-first approach.
However, the problem we have consistently had over the past 15 years, under both Conservative and Labour Governments, is that it has been easier for large housebuilders to bring forward speculative developments through the planning system, often not contained within local plans, than to be able to get these schemes through at appeal. We think there are a number of measures the Government need to look at.
Some of these may involve legislation but more involve changes to policy to give councils more power to set targets for the amount of housing needed in their area, to make sure that housing targets reflect what is likely to be built in the area, as opposed to what house builders say when they claim to be meeting housing targets that they then do not build, and to identify local needs for affordable homes. In many areas of the country they are crying out for affordable homes, but the kind of housing that is being built is not meeting those identified needs.
We recognise that there is a lot in the Bill that is helping to bring forward the benefits of a brownfield-first approach, in terms of, as you say, embodied carbon, saving precious agricultural land and regenerating communities in of need levelling up. At the same time, we think there is scope to do much more.
Neil O’Brien
Q
Carolyn McKenzie: To build on what Paul has said, I think the circular economy is missing from the Bill. There is not much that is looking at what can be reused, recycled or reclaimed. It is about the new, and sometimes that is not the best way to go. Specifically around things like housing retrofits, it is about repair and regenerate rather than new housing. There is not that look at retrofitting that there should be, bearing in mind that the majority of housing we have is already in existence.
Neil O’Brien
Q
Carolyn McKenzie: The first thing would be to actually have a mission in the Bill that relates to environmental outcomes, as the Bill does not have such a mission in there. Even though there has been some commitment to sustainable and non-competitive funding, if there is no mission then you cannot link that back. When you have funds such as the shared prosperity fund, which will take regard of the environment, if there is no mission you cannot just say, “Well, this is a priority.” So having a mission on the environment would definitely push this along.
There is a need within devolution to be clear about people’s roles. At the minute, everything that is done around climate change is done by local authorities, both at county and district level, because they have been driven to do so by the public through climate emergencies. It is not because we are being asked to do it. That drives action, absolutely, but it drives different types of action—inconsistent action—and the data is different so you cannot compare.
Also, when you get things like covid coming along, or Ukraine, or inflation, the risk of dropping down the agenda is really high, so that sustainable approach to funding is needed, rather than there being small pots of funding and grant-based funding, which can change and is short-run and competitive. That approach is not great for really putting down the foundations and encouraging local authorities to work with partners and to partner up. We are looking at working with the private sector, residents and other public sector bodies to really partner up their funding with our funding, to get more bang for our bucks and to achieve more through things like volunteering to plant trees, which involves health and social, and tackling fuel poverty, which keeps people out of hospital as well as reducing carbon emissions. As I keep saying, that integration is really key.
Again, when we look at things to spend money on, we really need to look at what is needed at the local level. There are lots of things that will be consistent that people need to spend money on, but there will be lots of differences and nuances at the local level that will make it better spent. I reiterate again that 41% of Surrey’s emissions—we are not unusual among other authorities—are down to the private car. With little or no funding for public transport, it is a really difficult target to hit to get people out of the car. You can get people to change to electric vehicles, but that has an equalities aspect to it: not everybody drives and not everybody can afford it. Public transport and good safe routes for walking and cycling are really crucial, as is the housing side, again.
Neil O’Brien
Q
Paul Miner: Yes, we have done plenty of work on that, which we can send to the Committee. In particular, we produced a report a few years ago on public transport-oriented development, which showed that you could get much higher densities in urban areas that were already served by an intensive public transport network. In turn, that mutually reinforced and made sustainable public transport improvements within that area. There is certainly more on that that we could send to the Committee, which we would be very happy to do.
In addition to Carolyn’s point, I also want to say something very quickly on the rural aspect as well. Cornwall in particular is a possible trailblazer on rural devolution, in terms of what it has been able to do to integrate its transport network—that is in trains, ticketing and single points of information. It has also done some great work in terms of setting housing policies and on retrofitting rural housing stock. It does seem to be an exciting model that others could look at.
The Chair
Richard, we have not forgotten you; we will ask you to comment in a second.
Carolyn McKenzie: The key point on that is that there are so many different actors and so many different funds in respect of devolution. It is about looking at how we co-ordinate that. I am proposing to my authority to look at taking a lead climate change authority approach, similar to the lead local flood authority approach, so that we can actually co-ordinate, get the data down, look at what is relevant for the local level and deliver on that. We can then use that data to influence the funding that we bring in or to influence Government funding pots, so it is appropriate. That co-ordination element among all the different sectors is really key. At the minute, it is not there around environment. There are lots of different people and lots of different areas to come from.
The Chair
Richard, you have been very patient.
Dr Benwell: Thank you, Chair. I have been expansive on other questions, so it is no problem.
I will make two points very quickly. First, it would be great if we could always preface “brownfield” with “low-biodiversity value”. My friends at Buglife would send a plague of spiders my way if I did not point out that sometimes brownfield can be really important for nature. That has a really important link through to localism, because it is often local communities—our brilliant heritage of amateur ecologists—who know about these things. It is really important for the planning system to keep being able to investigate and interrogate what is on individual sites.
It was welcome, in this version of the Levelling-up and Regeneration Bill, to see the move away from the previous proposals in the planning White Paper, which would have taken a broadbrush zoning approach, taking away some of the granularity of local information. It is really important that we keep doing those site-based surveys and that, as we move to digitisation, for example, we do not do everything from a laptop computer and assume that there is nothing important there.
Quickly, on another aspect of devolution, on the environmental outcome reports, it is noteworthy that the outcomes can be set for the devolved nations as well, after consultation. I do not know anything about devolution politics, but it would be great if it can be clear that whatever is set by Westminster is a base, not a cap. If other countries wanted to move further and set bolder outcomes, it would be unfortunate if a new power that enables those things to be set from Westminster prevented Wales, Northern Ireland or Scotland from being able to go further if they wanted to.
Rachael Maskell
Q
Dr Benwell: It would be wonderful if climate and nature were at the forefront of the Bill. A modern planning system ought to have environmental recovery embedded in its very purpose. Some of the things in the Environment Act 2021 moved us forward in thinking about compensating for environmental harm, and indeed things like biodiversity gain set a precedent, but actually some of those big sectors have a role not just in offsetting the harm that they do, but in contributing to improvement.
I know that there is some suspicion about purpose clauses in Bills, and that those are not something we do in UK law, but what you could do is to set a requirement that plans and individual decisions are compatible with nature’s recovery under section 1 of the Environment Act and with climate change mitigation under section 1 of the Climate Change Act 2008.
More locally, you could take a real step forward by bringing into statute some of the things that the Government have already promised. For example, we have this excellent commitment to protect 30% of land and sea for nature. Would it not be great if the Bill were to bring that into statutory form by setting an aspiration, or a requirement on Ministers, to ensure that all sites of significant importance for nature are properly designated by 2030; and to bring in some of the exciting new proposals for things like a wild belt, a new planning designation not just to protect what we already have for nature, but to provide areas where nature could recover?
On your question about the growing environmental risks that come from climate change and nature degradation, that comes back to the question of natural capital. Really, we ought to be thinking about levelling up not just geographically, but temporally: we ought to be thinking about the concerns of future generations. This is about making sure that geography does not define destiny. If you are more likely to be flooded, less likely to breathe clean air, or going to be in a place where you cannot access clean rivers or access a positive natural environment, there ought to be something of the past; that the length, quality and happiness of your life are defined by the physical environment around you. Surely that gap, having natural capital and a healthy natural environment as one of the missions that came in the White Paper, should be filled by a clear duty in the Bill—to set that as one of the missions, when they are formally set in statute.
My final point is that with some of the questions about, for example, flood risk mitigation versus housing development and space for agricultural land, there are inevitably trade-offs. It is really difficult. We know that if we are to meet net zero, a third of that effort has to be delivered by nature-based solutions—so, finding space for land to sequester more carbon through better agricultural soils, and through more trees and wetlands.
If we are going to do that at the same time as ensuring that we have space for business and development, and space to grow enough food, we have to improve how we do spatial planning and we have to make those trade-offs explicit, and a planning system that is still weighted towards housing numbers over those other considerations is one that will never make those choices properly. A spatially explicit planning system that has nature’s recovery and climate change mitigation at its heart is one that would make a real boon of this Bill.
The Chair
I am afraid that we are going to be caught by the clock, because I now have another Member who wants to come in. Paul and Carolyn might want to come in too. We could have gone on with this session for ages. Quickly.
Rachael Maskell
Q
Dr Benwell: It is hugely important, and we need to make sure that those existing green spaces are not just little patches of grass that are full of litter and dog mess. They need to be thriving natural abundant places that people can go and enjoy and find solace in nature. You are absolutely right; we need a system that can identify those spaces that really matter to local communities, whether they be notionally brownfield or not. We have seen an 11% loss in urban green space over the past 15 years. Were that trend to continue, you would find more people left bereft of nature. You would find productivity falling and ill health growing, so these things are hugely important. Things like—
Sarah Atherton (Wrexham) (Con)
Q
Dr Benwell: This situation that we have got to, where I think 70 local authorities are facing moratoria on development because of nutrient loading, is a real problem, but it is a problem because in some ways the system is working. We have allowed ourselves to reach a threshold where our rivers are facing ecological destruction because we failed to halt diffuse pollution from agriculture and to halt run-off from urban areas. We need to find a way through it, absolutely, and there are a couple of ways to do that.
In the short term, we should make sure that developers have options to mitigate and compensate for any additional load that they would put on those water bodies—that is absolutely crucial. We have seen some brilliant examples around Poole harbour, where developers have been allowed to invest in treatment wetlands or to work with farmers to reduce artificial inputs of fertiliser—nitrate and phosphate—to reduce that load on the system so that you can go forward and provide that infrastructure and development that you need, but not in such a way that we leave our rivers and streams ecologically dead.
In the long term, we need to move to a more systematic approach, where we take these problems into account in advance and we permit plans and projects only when they are within a nutrient budget in the system. It is about having a catchment-level nutrient budgeting plan that says, “This is what is currently in the system and what it is adding to our waters; this is what we can bring forward; and this is what we have to take out of the system.” Other countries have done that really successfully, and it has enabled development to take place in a way that does not take them over those critical environmental thresholds.
So we should not knee-jerk and get rid of the rules that are in place, because they are serving a vital ecological function, but we should help developers to do their bit by taking away aspects of the problem. In the long term, we need to use things such as environmental land management to help pay farmers to shift towards more agroecological systems. We need to help developers to come forward with permeable membranes and reduce the load on the sewerage system so that they are not contributing to the problem.
The Chair
Paul, did you want to add anything—in 60 seconds?
Paul Miner: Just to go back to Rachael’s initial question, one area of the Bill that gives us real cause for concern, in terms of local authorities’ ability to adapt to climate change, is the proposal on national development management policies. We think that, as the clauses are currently drafted, it will make it more difficult for local councils to have what is known as Merton rule-style policies, requiring a higher amount of renewable energy generation in new developments compared with the national building regulations. Similarly, on biodiversity net gain, the national policy is to ensure 10%, but some local authorities want to go beyond that. They would not do so if we had a national development management policy that told them to keep to what is nationally mandated.
We therefore think that clause 83 needs to be changed so that it just says that local authorities should be able to decide applications in line with both local and national policies, but not always have to give supremacy to national policies. We hope the Committee will look further at that in due course. We know that, for many members of the Committee, it is a major cause of concern, which they have raised already.
The Chair
I am really sorry to our witnesses. We could have gone on for much longer, but time has beaten us. We must move on now to our sixth panel. I very much thank the witnesses for their evidence.
Examination of Witness
Dr Hugh Ellis gave evidence.
The Chair
As there is only one gentleman on this panel, it is easy for me to ask him to introduce himself.
Dr Ellis: Good afternoon. My name is Dr Hugh Ellis and I am director of policy at the Town and Country Planning Association.
The Chair
For your benefit, Sir, the purpose of this Committee is to gather evidence to help us when we consider the Bill as we go through it line by line next week. One advantage of this Committee is that the Minister gets to ask questions. That is the only fun that he will have in this Committee, so I think we will start with him.
Stuart Andrew
Q
Dr Ellis, thank you very much for your time this afternoon. Could you perhaps tell us what your organisation and its members think about many of the reforming aspects of the planning system that are contained in the Bill?
Dr Ellis: I think they regard it, and we regard it, as a mixed picture. We welcome the issues on hope value and on development corporations, and strengthening the development plan is certainly welcome. But then there are a series of issues on which we need some serious reassurance. There are just three. First, how can we drive delivery and does the Bill do enough on that. Secondly, democracy and public trust are absolutely critical to everyone because, as we have already heard, there is a lack of public trust in the system. Finally, there are the really positive measures that could be taken on climate change.
Briefly, I will throw one more in. When we write legislation on planning and when planners think about the future, we often have a tendency to think about it through our lens. I think it would have been great to see more creative, local community solutions in the Bill, particularly on the cost of living. The planning system has enormous potential to be a solution for things such as local food growing and local flood defence. It would have been great to see some concrete measures enabling that kind of activity from the bottom up.
Stuart Andrew
Q
Dr Ellis: The primacy of the local plan is really important. We are very worried about the relationship with national development policies and whether that masks a centralising tendency. Local and neighbourhood plans are so important in giving certainty to communities. As is often the case, we are making some changes to the process of planning reform—that is nothing new—but the fundamental issue is about resources. Most people who talk to us about planning and the delivery of local plans would say, “Well, if we had more resources we could deliver them more quickly, and if we had more certainty we could also do that.” So we should not get too hung up about changing the law.
We have divided the local plan into several pieces now through this Bill: we have said there is a local plan, then a supplementary plan, and then a strategic plan, and two of those are voluntary and one is not. In that sense, we have created that framework. The answer is that it all depends: it depends on resources and on how much power the Secretary of State wants to take to the centre on the content of local plans. We have an honest concern that if you want to rebuild public trust, you need to handle those powers with extreme caution.
Stuart Andrew
Q
Dr Ellis: I think we do. We are obviously desperate to preserve the rights to be heard. That is an important point. We are losing some rights to be heard and communities really need them. The TCPA fought for them from the 1960s onwards so that people had a right to be in the inquiry of a plan. Our planning system is very asymmetrical; the development sector is very dominant in that process.
A lot of people are sceptical about the idea of neighbourhood planning. I admit my own scepticism about it, because plans are often happening in places with more social and economic capital than others and we absolutely have to address that, but they are proving powerful—I speak as an ex-parish councillor, so I have served my time on this. Whether the statements get us over the line in creating something simple and meaningful is the challenge we want to see explored through this Bill’s progress. Will those statements actually have weight? Yes, you have to have regard to them, but what exactly will that mean in detail? Local and parish councils are denigrated, but they do have a powerful and meaningful role in the planning process.
Stuart Andrew
Q
Dr Ellis: There are two sides to that reaction. First, what is not to like about digitisation? There are some very archaic practices in the planning process and it would be great if we could catch up and have the resources to digitise. That will make information more accessible. It is also really important that we are able to integrate environmental data, because there are competing datasets out there. One of the most important recommendations is that we sort of need a national laboratory for that spatial data, as that would simplify the process no end.
But digital data goes so far. There is an issue about digital exclusion that worries us for communities. We can have as much digital information as we like, but we also need access to the arenas where decisions are made, so there is a twin relationship between understanding what is going on and being able to do something about it. That is where rights to be heard, which we are so exercised about in the planning process, are so important.
Matthew Pennycook
Q
Dr Ellis: There are two issues. One is about rights to be heard. We have decided now in the Bill to call several documents “development plan documents,” which has a specific legal meaning and a specific legal way. So the strategic plan, the supplementary plan and the local plan are now all development plan documents. If a development plan document is being prepared, it has legal weight in planning, and the quick answer is there therefore must be a right to be heard. On the strategic plans, the Bill currently says that it positively excludes the right to be heard at an examination. That seems to us wholly wrong and unnecessary. If people want to, we should give them the opportunity turn up at an inquiry and test the evidence.
To be clear, even if the criteria are set nationally, green belt allocations will probably be set in those strategic plans. In other words, the issues that people really care about have to be debated in an arena where there is a right to be heard. That would be an easy modification to make, and I so hope that Ministers will seriously give it consideration.
The other issue is centralisation. That worries us even more, because nationally described development management policy has a new legal status. There has been some debate about that, and we are absolutely convinced that it does have a new and special legal status as national policy described in law. The clauses elevate that policy so that where there is a dispute, it is resolved in favour of the national policy.
There are no limitations on what the Secretary of State can include in that national development management policy; nor is there a robust process of parliamentary scrutiny, which there is for national policy statements in major infrastructure. That has to change. If the Government are determined to have such a policy, parliamentary scrutiny and public participation in setting it are crucial.
Matthew Pennycook
Q
Dr Ellis: Simply, there will not be any. The duty to co-operate was a problematic measure—a stop-gap measure—inserted after the abolition of regional planning. You would expect me to say this, and it may not be popular, but regional planning in this country was critically important to our future. I understand and have to accept that there was insufficient public support for it. Again, it simply did not have the right kind of governance, but it was important.
Put simply, for the reasons you have heard, which I will not repeat, it is absolutely essential that we have bigger-than-local decision making. That enables communities to make decisions; it does not trump them. If you want to preserve the east coast from a sea level rise of 1.5 metres by the beginning of the next century, which is predicted by the Environment Agency, you cannot expect 33 district councils between the Humber and the Thames to do that on their own, so it is very important that we get that right.
Removing the duty to co-operate and replacing it with a policy imperative just makes a situation even worse. Devolution could help, but of course, that is an ad hoc process; we do not yet know who wants to do devolution. I am sat in Derbyshire, and I have no idea whether Derbyshire wants to be a combined authority or not. It is vital that we have that strategic tier.
Matthew Pennycook
Q
Dr Ellis: Development corporations are really welcome, but it is worth remembering that when you have effective planning, which links planning to delivery—that is what a development corporation does; you can really drive change—the most important thing is that their governance needs to be modernised so that they are genuinely accountable and participative. The purpose of a development corporation is to draw on what Oliver Letwin recognised in his review: the critical role of the public sector as master developer in de-risking development.
Much of the challenge in why we are not delivering the homes that we consent in the planning process is because the private sector has limited incentive to deliver beyond certain levels, based on absorption rates. Development corporations can do that. It is worth reflecting on the fact that, within 20 years of the war, we consented 33 new towns, which housed 2.8 million people and paid for themselves. That record is largely forgotten but still very powerful.
The answer is that the challenge in giving the powers solely to local authorities is that they work only when Government stand behind them. I think it is the Government’s role in housing that we need to draw out. They need to be more muscular in supporting local authorities. The experience from the locally led development corporation in north Essex illustrates that point.
Matthew Pennycook
Q
Dr Ellis: I think there is a huge opportunity to do that. It is essential that the Bill contains a purpose for planning if you want to recreate public trust by making it clear in statute what the system is for. It is interesting that there are currently four outcome duties in law on planning, but there is nothing in the Bill equivalent to what we see in Bills on social care or in national parks, where there is a clear sense of what planning is meant for.
If you want this new journey—we all do—to benefit the future of England, you need to need to set down that purpose around sustainable development. That is an inclusive goal; we are already internationally signed up to it, and for me, it is the only development goal that is credible for the future of this nation. Underneath that, I would quickly say that it is heartbreaking to see the potential that planning has to deal with climate change mitigation and adaptation and the dysfunction that we are currently presented with.
I have just seen an inspector remove a net zero policy from an area action plan for a new development in West Oxfordshire. That tells you that Government policy urgently needs to be reviewed. The whole sector has been calling for an urgent ministerial statement to clarify how net zero is delivered. We really cannot wait for the NPPF review at the end of 2024 for that; it must happen now. On adaptation, the issue is even more serious, in terms of having to begin to think about shifting population off the east coast, the challenges of surface water flooding, the endless flooding in Calder valley and how plans need to grasp the allocation of land for natural flood defence.
I know that I cannot go on, but all I can see is huge potential. We need to bind the planning and climate Bills together. The climate Bill must have specific requirements on the sixth carbon budget, and stronger requirements on adaptation, specifically around water and flooding.
Neil O’Brien
Q
As we negotiate devolution deals with areas such as Derbyshire, where we are in talks at present, how do we best bring together the new instruments and new combined authorities to achieve everything we potentially can through spatial planning to drive the kind of join-up you have been arguing for in this session?
Dr Ellis: That is a complex question, but time is short. The single biggest issue is with trust and public consent—whether the people of Derbyshire understand the benefits of the combined authority. I am tempted to say, at the moment, that they do not. People have talked in the past about double devolution, and I think that is still important. You have two problems going on; you have the fantastic opportunity that devolution presents to empower local authorities and collections of local authorities, but then you have an important issue about the citizen and trust within communities, and how they relate to that.
In thinking about the devolution agenda, it is important to show regard and care to things such as parish and town councils—that lower tier—and what powers they might get. Otherwise, all that happens is that you shift the trust problem down a notch. The opportunity is there when resources and powers are provided for places to begin to set a new course that tells a story about that place. That is desperately needed in this country.
My only fear is that we need coverage across most of England—we do need that—and the ad hoc nature of this is giving different powers to different areas. The status of the strategic plan in Liverpool, legally, is different to the one in Manchester, which is different again to the London plan. That might be fine, but it also creates levels of legal uncertainty. There is a tension between those things, but I would continually emphasise the point on community trust and what communities can do, as well as what local authorities can do.
The Chair
Thank you, Mr Ellis, for your clear and concise evidence. We very much appreciate it. We must now move on to our seventh session of the day.
Examination of Witnesses
Gavin Smart and Kate Henderson gave evidence.
The Chair
I have in front of me a gentleman and a lady. Would the lady like to introduce herself for the record?
Kate Henderson: I am Kate Henderson, chief executive of the National Housing Federation. We are the voice of housing associations in England.
Gavin Smart: My name is Gavin Smart. I am the chief executive of the Chartered Institute of Housing, which is the professional body for people working in housing in the UK.
The Chair
Thank you. We are going to take questions from members of the Committee, starting with the shadow Minister.
Matthew Pennycook
Q
Gavin Smart: The levy is certainly similar to CIL, but I believe it is managed in a way that CIL is not. I share some of your concerns about the impact of the levy on lower-value sites. One of our concerns is that we are currently struggling to deliver the housing that we need, particularly affordable housing and social rented housing. Whether a levy on a lower-value site will be able to deliver the resources needed to support the delivery of new homes for social rent is a significant concern.
The other issue that I would raise with respect to the levy is that we are very aware of the role that, historically, section 106 planning gain has played in the delivery of affordable housing and social rented housing. About half of affordable housing is delivered in that way. Although there are commitments from the Government that affordable housing delivery will be maintained, we are anxious to understand the detail of that, because section 106 has been such an important part of the delivery mechanism.
Kate Henderson: Thank you for the opportunity to speak to the Committee today. We really support the Government’s ambition to address regional inequalities in our towns and cities’ economies through levelling up. It is also very good to see housing and planning as part of the Bill, but we share have concerns around the impact of planning reforms on the ability to deliver much-needed affordable housing.
When it comes to the infrastructure levy, we are really looking at four areas where we would like to have a bit more detail and some assurances. The first is the issue of protections for the delivery of affordable housing. The second is around the importance of on-site delivery of affordable housing. The third is around the risk to viability, and the fourth is that we would like to see an exemption from the levy for sites that are 100% affordable.
The Chair
We are going to carry on, but we are having a slight problem with your sound and picture, Kate. If it breaks down, we might turn the video off and just have your audio, but we will see.
Matthew Pennycook
Q
“to ensure affordable housing levels will be maintained, with current levels as a minimum.”
Correct me if I am wrong, but I assume that you were referring to proposed new section 204G of the Planning Act 2008, which is discussed in schedule 11. I wanted to probe why you think the language in that clause, or anything else the Government have said in relation to the Bill, is anywhere near robust enough to guarantee the maintenance of current affordable housing levels. I read the language, which is
“must have regard…to the desirability of ensuring”
as quite weak in terms of ensuring that we see that affordable supply of housing come forward.
Kate Henderson: My starting point is that we really welcome the Government’s commitment to ensuring that as much affordable housing will be delivered. As Gavin Smart mentioned, at the moment section 106 planning obligations deliver around 50% of all affordable housing in England. It is vital that what replaces it delivers, ideally more, but at least as much. We are pleased that there is that reference in schedule 11, in proposed new section 204G, around having a mechanism to ensure that affordable housing levels will be maintained at current levels, but what we would like is a greater commitment and assurances from the Committee and ideally in the legislation about what we mean by current levels of affordable housing delivery.
There is a risk that in some areas minimum affordable housing requirements, which should be based on objectively assessed need, are actually being delivered by what is coming through the planning system now, and that is not enough in some areas and we do not want that under-delivery to be baked in. We would really like clarity from Ministers that, to protect affordable housing delivery, current levels will be based on current targets for affordable housing, which should be based on objectively assessed need.
Matthew Pennycook
Q
Kate Henderson: I think the Bill suggests that section 106 agreements will be retained for larger sites. I do not think we have necessarily determined the size of those sites yet and potentially that will come through in secondary legislation.
What we are learning from section 106 is that there are some really important considerations. We have been having positive conversations with the Government about this, particularly around the delivery of on-site affordable housing. The Government are bringing forward a new infrastructure levy. That levy has got to ensure that we get inclusive, mixed communities—that we get the integration of different housing types and different tenures, and that they are built to good, high standards. We know that mixed communities are far more successful than exclusively, for example, poor ones. We want to have the affordable housing integrated in.
That is one of the really important lessons from section 106—when it works well, you get an integration of your housing all on site and you get other good on-site infrastructure delivered at the right time as well. That helps with public acceptance of development, particularly at scale.
I think we would want to see in the design of the new levy that early engagement with housing associations is there absolutely at the outset and that on-site delivery is considered the default position when it comes to significant sites. We would really like to ensure that local authority use of contributions for purposes other than affordable housing would have to come after the agreed level of delivery of affordable housing on site.
Gavin Smart: I strongly agree with Kate, particularly around needing to be sure that we are not baking in low levels of performance on the delivery of affordable housing. We need to be sure that the expectation of the continuation of delivery of affordable housing is at a sensible level, supported by some sort of assessment of need. Like Kate and anybody involved in the delivery of affordable and social housing, we are acutely aware that the key benefit of section 106 has been the delivery of on-site in-kind provision that delivers the mixed communities that we all know work. It actually helps a scheme’s viability, because it means that developers know a proportion of the scheme they are developing will be sold immediately on completion to a landlord who will immediately fill it with tenants. That helps with speed of completion at the site.
The most important point is that levies do many things, but what they do not do is give you actual physical buildings; they give you an amount of money. If you are struggling to find a site to deploy that money, they do not perform in the same way as section 106 reforms. So we have concerns about the levy and that is why we welcome the fact that, although what we mean by larger sites is not yet defined, the Government are signalling that they want to retain section 106 for larger sites. That is important. I think it will help delivery and help to build mixed communities.
Matthew Pennycook
Q
Gavin Smart: First of all, there is more flexibility in setting the levy than we previously expected. That is welcome because we want local authorities to be able to respond to the facts on the ground. However, like many public policy problems this is a matter of trade-offs. You do not want such complexity in the system that we are down to negotiating levies on individual sites, so it is about getting the balance right.
More important, something that I think is a bugbear of every attempt at planning reform is that, although we all believe that no planning system is perfect so it is always worth looking at how you can improve it, the other issue with planning policies is whether they are properly resourced enough to enable the local authorities that are operating them from London. Certainly, we have a concern that it might prove challenging for local authorities to be able to manage the complexity of negotiating a large number of different levies in different places. We know that elsewhere in the planning system local authorities can be outgunned by the development industry in terms of capacity. That remains a concern, because we think that overall capacity in local authority planning is stretched.
Kate Henderson: We think the test and learn approach is really to be welcomed. Alongside that, obviously we would want to see a transitional approach. Test and learn is particularly important when we are looking at viability and the delivery of much-needed affordable housing. It is really important, given that development and land values vary greatly from site to site and place to place, that we get the levy set at the right level to ensure viability, to ensure delivery, and to ensure we are creating great communities that include much-needed affordable housing. We have advocated a test and learn approach and it is really positive that the Government are looking at that. We would want to be a part of that approach to make sure we are able to get affordable housing, and that we have the good working relationships between local authorities, developers and housing associations on-site working with the community—
The Chair
We are having slight problems with the sound. We will just give it a second. Do you want to carry on?
Kate Henderson: I was just saying that we are very, very keen that, as test and learn is rolled out, housing associations, working with councils and developers, are part of that programme, so we ensure we set the levies at a level that enables the delivery of great places with high-quality affordable housing on site in mixed communities. Doing that in a phased way to make sure it is working, while retaining parts of the old system as this is transitioned out, sounds like a sensible, pragmatic way forward.
Stuart Andrew
Q
Kate Henderson: Taking the second part first, transparency on land ownership is hugely welcome, as are the clauses in part 7 on compulsory purchase. I know this is not the same thing, but they are interlinked. Being able to access land at the right price to capture that land value is a really important mechanism for ensuring that we are able to deliver affordable housing. The best section 106 agreements do that because they understand the infrastructure need in a local area and those policies are in the local plan, so that when you go in for your planning application it is all costed in. I think the main principle of the infrastructure levy is that the cost of the levy is costed in so it can be factored into the price, which factors into what you are willing to pay for the land.
Land transparency is welcome, as is part 7 on compulsory purchase, regeneration and the enhanced role of Homes England, not just as a housing agency but as an agency involved in regeneration and place making.
Gavin Smart: I support much of what Kate says. I do not want to repeat her, but I have a couple of observations. Some of this is about the creation of a new planning system and some of it is about the resourcing of local authorities. Some of what characterises good section 106 negotiations is the ability to negotiate effectively. It is quite hard to design either a section 106 or a levy system in which developers may not come back, either legitimately or less legitimately, to argue that the situation has changed and needs to be looked at again. We have to accept that as a fact of life in these negotiations. It is not done until it is done.
I agree with Kate that land transparency is very helpful. Considering whether compensation needs to be paid in quite the same way as it has until now, and addressing hope value, is a very sensible proposition that we would support.
Rachael Maskell
Q
Gavin Smart: I do not know about adding measures to the Bill, but it is about the quality of local plans and the quality of local decision making. Going back to Kate’s point, it is about making sure we are operating on an objective assessment of need. We need to be sure that in our plans we are delivering the housing that is required for the whole community, rather than simply housing that can make the best return. In that sense, the planning system is something of an intervention to prevent what one might describe as a kind of market failure, which is that the housing market will not deliver the housing we need without being provided with a degree of direction. It is as much about what happens in implementation as what is actually in the Bill and the quality and strength of local plan-making behaviour.
Kate Henderson: There are already tools in the planning toolbox that enable local authorities to deliver different types of development that are right for their area. One example is rural exemption sites. I know your constituency is in York, so you are not necessarily rural, but our rural areas often have high land values and pressing affordability issues. The rural exemption policy enables affordable housing to be developed in perpetuity. A local landowner might be more likely to put forward a piece of land for affordable housing if they know it is going to stay in the community, for the community, so there are policies such as those that can be used. I agree with Gavin: it is really important that the local authority has a good evidence base of what is actually needed, so that when it is making decisions on schemes coming forward, there is an opportunity to argue for the social mix that it wants to see, including affordable housing.
I also think there is a role for different actors in the housing market: who is actually coming forward with proposals? What is the role of Homes England in terms of its land assembly role and its partnership role with local authorities, and how do we get HE more in the mix in its place-making role, as well?
Rachael Maskell
Q
Kate Henderson: That is a great point: the point about how we define current levels is vitally important. The commitment to deliver and protect housing delivery at current levels should reflect objectively assessed housing need for affordable housing, so having that in the Bill would be hugely welcome, ensuring that we enshrine that protection for the delivery of affordable housing.
On the practicalities of viability, this is not about legislation; there is a really important resource point. Local authorities need to have the skills around the table that put them on an equal footing with the private sector when they come in and negotiate on viability, which has been a real challenge for overstretched, under-resourced local authorities in some parts of the country. They have not been able to have an equal footing in those negotiations on viability. That is not about the legislation piece, but about how we upskill and empower local government to make sure they are getting the best possible deal for the community.
Gavin Smart: Without wishing to repeat myself, I support what Kate said. When working up an objective assessment, need is a very important place to start from, because it gives robustness to local planning. I have made the point about local authority capacity already, but Kate is right that they need to be able to compete on an equal footing with the developers they are negotiating with. That is where the really hard discussions about scheme viability take place, and you want local authorities to be approaching that with the same skillset, the same ability and the same resource, because if they are not, it is not an even playing field. Many developers are very socially responsible, but those who choose not to be can use the viability assessment process to drive affordable housing out of new housing schemes, which is not something that we would want to see.
The Chair
Q
Kate Henderson: The thing that would be fantastic would be to have real protection for affordable housing delivery on the face of the Bill, defining what current levels are. If I am allowed, rather than saying something that they should not do, I am going to ask for a second, which would be exemption from the levy for 100% affordable housing schemes.
The Chair
Thanks. Gavin?
Gavin Smart: I am going to copy Kate: it would be invaluable if we very specifically defined the affordable housing levels that we expected to see. At the moment, we do not have a definition of what we mean by affordable housing, so it would be extremely helpful to have that in the Bill. I would back Kate on exempting affordable housing from the levy, because that would enable us to deliver more of it. That would be useful, because we are running well short of the levels of social and affordable housing that we currently need. In fact, we are losing homes at a rate.
The Chair
Thank you very much. You have been excellent witnesses. We will move on to our eighth panel, who will appear not on screen but in front of us.
Examination of Witnesses
Will Tanner and Alex Morton gave evidence.
The Chair
Gentlemen, thank you so much for coming today. We should be able to hear you, and you will not freeze mid-frame, which is welcome. For the record, could you state your name and who you represent?
Alex Morton: I am Alex Morton, the head of policy at the Centre for Policy Studies think-tank. Slightly related to this, a few years ago I worked in No. 10 doing housing and planning issues.
Will Tanner: My name is Will Tanner. I am the director of Onward, another centre-right think-tank, which was established four years ago, in 2018. Similarly to my fellow witness, I was in the No. 10 policy unit until 2017.
Neil O'Brien
Q
Alex and Will, thank you for joining us in person. The Bill takes forward the devolution agenda by making it easier and quicker to set up new combined authorities, particularly in two-tier areas. It also contains a number of powers to speed up and improve regeneration, from the infrastructure levy to compulsory purchase order powers, high street rental auctions, street votes, heritage protections and land market transparency. How can we use both the devolution agenda and these new tools best to drive urban regeneration and more brownfield development—the kind of development that a lot of people want to see? How can we build on what we are doing in the Bill and make the powers that we are creating work most effectively? I will pick first on Will and then go to Alex.
Will Tanner: First, thank you for having me. It is a very important question, and the Bill goes some way towards answering it. The Bill tries—if I may infer Ministers’ intentions from it—to establish a much greater level of strategic authority in the planning system to bring together different elements that are important for regeneration and economic development in local areas. That includes building some of the institutional framework in the form of both more and stronger mayoral combined authorities or equivalents in counties and giving them clearer incentives to intervene and bring land together with other forms of intervention—I point to the infrastructure levy in particular in that regard, not just at mayoral level but below—as well as creating much greater transparency in information to allow the system to work more effectively and generate more community buy-in. That is both at a national level through the levelling-up mission framework that the Bill sets out, setting a clear direction on where the levelling-up agenda is due to go, and more information for consumers of the planning system through the digital planning framework and, indeed, through greater powers to require information on behalf of local authorities such as owners of high street shops and other parties locally.
Alex Morton: I am a little more sceptical on parts of the devolution agenda. It has worked very well in some places, such as Manchester, but less so in others. London has probably one of the biggest housing backlogs, and obviously it has had a Mayor for a very long time.
For me, the most interesting and best thing about the Bill is the focus or push around trying to make local plans more delivery-oriented, moving towards a system of local plans as delivery mechanisms and not huge, long lists of policies by moving some of that policy up to a national level. It would be good to discuss that further. I think that is the right aim, but there are some difficulties in how that is planned to be done. The shift away from a five-year land supply is also welcome.
Listening to people earlier, what often came up is planning issues x, y and z. Really, planning is just to deliver enough land, so that enough homes are built, we meet housing delivery targets and we do not have a housing crisis. Almost everyone else has a strong interest in planning doing mixed communities, planning doing sustainability, planning doing an ageing society and planning doing obesity. Planning is not really meant to do all those things; it is not some kind of titan that can hold the world on its shoulders. The whole point of planning is that there are sufficient land released to a different mix of developers who will build enough homes so that we do not have a housing crisis. If the Minister is inclined to put in place some kind of definition of what planning is, I would say that planning is designed to make sure that we build sufficient homes of sufficient quality in the right places—full stop. If the planning system could just focus on doing that, we might have less of a housing crisis, with everyone shoehorning everything else under the sun—important and noble though those other things are—into the planning system.
Neil O'Brien
Q
Alex Morton: I think street votes are a very good idea. They are a way to try and encourage communities. They are not a solution to everything—I think we have to be honest about what street votes are. Street votes are in areas where there is high demand in housing and you have relatively low density—particularly Metroland, for example, in London—where you might be able to persuade people to replace a certain amount of terraced housing with four or five-storey terrace streetscapes, which would be quite attractive. That could be a good way in lots of high-demand areas, without building on green belts and green fields, to get a recycling of space. That used to happen. For most of our city’s history, that densification process was natural. You had a single landowner usually—sometimes aristocratic, sometimes merchants, sometimes commercial holdings—who would buy blocks, demolish them and build them up. You have to do that now in a way that is consensual and fit for the 21st century.
Street votes are a way to try to get people together and say, “Look, we can all, on our street, agree that we can build up another few storeys. We will all benefit from this. This will mean that we do not have to build on greenfield sites on the edge of London.” I do not think we should be too optimistic about it in the next, say, five years solving the south-east’s housing crisis. However, it has to be something that the Government moves at great speed on, to try and put pilots in place to get this going, so that if it can work—I think it should—we can then roll it out on a wider scale. That said, I do not think, sadly, that it will alleviate the pressure on green fields in the next five or 10 years, but it is a thing we need to do now if we are to stop building on more and more of our land surface.
Neil O'Brien
Q
Will Tanner: I thoroughly welcome the commitment to maintain the neighbourhood share within the new consolidated infrastructure levy. As you say, the infrastructure levy is compulsory rather than optional and it will apply everywhere, so it represents an opportunity to share a considerable amount of revenue directly with communities where the right governance exists. Parish and town councils only cover about 37% of the English population at current levels—about a third of local authorities are fully parished—so only a relatively small number of places will be able to take advantage of this at first. The inclusion of the neighbourhood share will create a very strong incentive for local areas to put in place strong, hyperlocal governance to control local decision making and some local services within a general power of competence that exists for parish and town councils.
We know from our research that there are strong benefits from that. If you look at rates of volunteering, rates of group membership or rates of local philanthropy, all those things are higher in areas where parish and town councils exist. So I am very supportive of the Government’s efforts to try and create a stronger incentive for places to put in that local governance and to benefit from the gain from development. I would also suggest that it should create a stronger incentive for places to become more welcoming of development as a whole and therefore embrace new housing.
Neil O'Brien
Q
Will Tanner: As the Minister will know, Onward’s first ever paper looked at this issue in some detail. As the Committee will know, at the stroke of a planner’s pen, the value of a piece of land can go up 100-fold. There is an opportunity for the UK to do much more to capture the gains from development in a way that other countries, such as the Netherlands, do more systematically. The Bill goes some way towards doing that through the simplification and clarification of when local authorities can use CPO powers, which will hopefully make CPO more widespread.
I think the greatest opportunity lies in the clarification of what constitutes fair market value. That is a relatively contested area of policy; there are lots of different views from different areas. I thoroughly welcome the proposed Law Commission review into this area of legislation more generally, because I think legislation has spread over a number of years. However, there is an opportunity for the UK to more systematically capture those gains for development, and allow local authorities to buy and assemble land—especially with regard to ransom strips and small plots that hold up development—to capture those gains for public benefit. So I am supportive in principle but keen to see a bit more detail.
Alex Morton: I support the idea of streamlining CPO. I would be quite nervous, as a small “c” conservative and a small “l” liberal, about the measure to have a direction from the Secretary of State setting out the value of land. As Will has just suggested, there is a potential area in terms of ransom strips or other areas. If that was narrowly defined in legislation, so that, for example, on brownfield sites where there is multiple land ownership, there may, in exceptional circumstances, be a direction by the Secretary of State, that would be quite different from the current powers, which look like they could be abused by a future Government that was not sympathetic to property rights.
There is a case, with some ransom strip owners and some landowners who hold out and are unreasonable, for there to be some kind of change to get those people. But that is a big shift in property rights, which should probably be set out in primary legislation and very tightly circumscribed to small areas of brownfield land where there are multiple landowners, or be more tightly defined than the current situation, which I think could be abused—probably not under this Government, but under a future, more radical Government that did not support property rights.
Darren Henry (Broxtowe) (Con)
Q
Will Tanner: I support the measures in the Bill to extend the mayoral devolved model to county areas. Up until now, the mayoral model has, as you know, been largely ascribed to urban areas. I think that is a missed opportunity for historic counties in England. I particularly welcome the removal of the requirement for constituent authorities to consent to combined county authorities, so that counties cannot be held to ransom by districts within their area. I also recognise that the Bill goes some way to introducing stronger accountability for those combined county authorities.
However, in our recent paper, “Give Back Control”, we argued for a significant extension of the mayoral model. I see the provisions in the Bill as a starting point to extend the breadth of coverage of mayoral combined authorities, but I think there is a further step to deepen the powers and responsibilities of those authorities, both in cities and county areas. I would argue that that should be done in a number of ways. First, by giving much greater financial control to Mayors through a single mayoral settlement, rather than a panoply of different funding pots. That is not necessarily something for legislation, but it is a matter for Government, and the Treasury in particular. There should be the extension of further powers—this would be a matter for legislation—over local transport, local energy systems and other matters to give Mayors more ability to join up local services on behalf of their constituents.
Alongside that, we should have strengthened mayoral scrutiny panels, on which MPs as well as local councillors could sit, to join up the scrutiny of Mayors around the country—or indeed governors, as they may be called—so that they are held to account for those additional powers. I think Mayors have been successful to date, but there is much more they can do. Looking at international models, the mayoral model in this country has quite a long way to go to replicate the success of other countries.
Darren Henry
Q
Will Tanner: I would point to the United States as a good example of where you have much greater levels of local and regional state-led control. The UK is almost uniquely centralised as a country, compared to other countries in the OECD. Just 5% of taxation is raised locally in this country, which is a third of the rate in France and a sixth of the rate in Germany. Just a quarter of that revenue raised is spent locally, compared to about 75% in Canada, for example. This country has a very long way to go on devolution, despite some of the advances made under this Government and indeed previous Governments.
Alex Morton: I would argue that devolution, or any kind of power structure, tends to work best when there is clear accountability. One of the problems that is beginning to emerge in this country is that you have Mayors, local enterprise partnerships, parish and town councils, district councils, county councils and combined authorities—and on top of that, you have PCCs. The problem comes when people do not know who is responsible for what, and I think that is increasingly becoming a problem for lots of local voters. They cannot see how this quite works.
I am sympathetic to some of the arguments that Will and others are putting forward around trying to get more powers lined up, but I think the thing that is pushing back increasingly is that it is harder for me as a voter, getting on with my daily life, to know exactly who is responsible for what if something is broken. Is it my parish, my district or the Mayor? Then there are unaccountable bits such as LEPs. I spoke to a businessman who said, “I was thinking of investing in the north-east, and my people gave me a whole long list of people I should meet—elected officials—but they couldn’t quite tell me who did what, because it wasn’t very clear. For me, as someone who is thinking about making an investment in the north-east, I would rather have one or two people who have very clearly defined responsibilities for those purposes.”
Part of this is the depressing politics of, “It’s always easier to add an extra layer of politicians than it is to remove another one.” There is sometimes an argument to get rid of some powers and move them up, but it is often the case that what happens is that some powers get shifted up and that layer has to be left in place. Then you end up with a very confused accountability line for voters, businesses, the Highways Agency—the list goes on and on. Everyone who has to interact with them is not sure who they should be talking to, on what and why.
The Chair
I am going to call Greg Smith, but I will put the witnesses on notice that, at the end, I will give you the opportunity to change the course of history by telling the Committee what it should be doing.
Greg Smith
Q
As we are looking at a Bill that essentially enables greater house building in our neighbourhood planning, can you offer a view on whether factors such as stamp duty, particularly at the punitively high rate that George Osborne imposed as Chancellor on the top end of the market, have had a disproportionate effect on movement within the housing stock we already have in this country? If people are not moving up to the very top tier of housing—the very large family homes and so on—there is a domino effect all the way down to the bottom of the market for people who are trying to get into starter homes and one or two-bedroom flats. Do you know of any assessment, either by your own think-tanks or across the think-tank world, that could answer that question? Just how big, in reality, is the gap between supply and demand? What other factors within the state’s control could we look at to take those barriers away?
Alex Morton: We are doing a paper called “The case for house building”, which may not be to your taste; it will argue that, unfortunately, supply is an unavoidable part of any solution. It is frustrating that many other factors, such as interest rates, immigration and stamp duty, are contributing to the housing crisis, but the unavoidable reality is that supply affects price—there is no market in which supply does not have an impact on price. Throughout most of human history, the average cost of a house has been close to the build cost. If you really want to be technical, it is the capitalised future stream of rental income—house prices sometimes get out of line because there are asset price bubbles—but if you work out the rental stream of the average property over 30 years, it should be close to the build cost. Anything above that is fundamentally caused by an imbalance between supply and demand.
Ian Mulheirn has very eloquently made the case that we should not focus only on supply. I totally agree, but I think there is sometimes a desire to wish away the problem. Having said that, I empathise quite a lot with politicians, because it is annoying that other issues are contributing. I would argue that immigration is probably the quickest and shortest lever you could pull; I am thinking of the Chesham and Amersham by-election, for example, in which a party that strongly supports more immigration and more refugees was somehow arguing that there could be no building in any kind of southern constituency.
However, that does not get us away from the fact that for a long time we have not built enough houses for the people who are already here. We can see that in levels of homelessness and overcrowding, particularly for people at the bottom of the market who are really suffering and cannot have families. It is just unconscionable not to do something about that. So yes, cut stamp duty; yes, reduce immigration; but unfortunately there is just a big backlog. We will have a report out soon on this.
Greg Smith
Q
Alex Morton: We have done a couple of papers on this. There is a clear link between the number of transactions and the speed at which house builders can build out, as I think you have been hearing from other witnesses. The number of people who are prepared to buy new build is relatively constant; Help to Buy has shifted that, but absent Help to Buy, it is a relatively constant number. If transactions increase, so will the number of houses built. I can send you our paper “Stamping Down”, in which we talked about how reducing stamp duty would boost transaction levels. For me, part of the problem is that even if we get housing up to 300,000 for some years, we should be doing that along with other measures—we might then be able to start taking our foot off the pedal in about 10 years’ time. The backlog is so large that we should do all these things. Worrying too much about the exact mix is almost dancing on the head of a pin. We need to reduce demand and increase supply now, and then in five or 10 years, having done those things, we can review where we have got to.
Will Tanner: I agree with quite a lot of what Alex has just said; I think it is about both supply and demand. I take a lot of Ian Mulheirn’s arguments, particularly about the role of interest rates, but I agree with Alex that we have not built enough homes for a very, very long time. We did a report called “Stamping out a bad tax”—another variation on the word “stamp”—that looked at abolishing stamp duty because, as a transaction tax, it has distorted effects within the market, in exactly the way you describe. There are ways of paying for that through second-home taxes and taxes on enveloped dwellings and the like. It is possible to do that in a fiscally neutral way, but it would be wrong for me to suggest that that will solve the housing crisis in one fell swoop. Ultimately, we need to do a number of different things. Over the last 10 years or so it has been easier for politicians to do demand-side changes to the housing market than to do supply-side changes, and that has led to some of the backlog that Alex talks of.
I would argue that some of the things in this Bill, particularly around compulsory purchase, land assembly, spatial planning and the role of development corporations, potentially unlock considerable amounts of supply. That is why this Bill is an important addition to the housing and planning system—it potentially fixes some of the roadblocks to supply over a number of years.
The Chair
Q
Alex Morton: I think we have covered most things that I had down. The one element that we have not touched on is the goal of streamlining planning and local plans. Perhaps more should be being pushed down than up. By that I mean I would that rather local plans were a series of site allocation policies and strategic policies around transport, and then local people should have a greater say on what happens on those sites, whether through neighbourhood plans or the neighbourhood priority statements that the Government are already trying to do. There is an argument that if development is happening in your community, and you can shape how it looks and what infrastructure and other benefits come with it, you are more likely to be in favour of it, or at least not hostile.
Therefore, rather than trying to have a system that says, “Let’s strip out all the local plan policies”—which I think is absolutely necessary, and the Government are absolutely right to proceed, because local plans take far too long and are out of touch by the time they are finished—you could create processes around how we get on sites, particularly larger sites, where they have been allocated, and how we engage with the community as part of that local planning process, so that, at the end of it, you have a local plan with a list of sites and some overlapping strategic policies, and then local people get to choose things like design or what benefits come with it. That would be a good way to square the circle around streamlining, without running to this argument that you are centralising and taking powers away. I don’t think the Government is trying to do that; I think they are genuinely trying to fix the housing crisis, but I understand why MPs are saying that, and I think that could be an alternative way, as the Bill develops, to get there.
Will Tanner: The area where I think the Committee could make a real difference is around the levelling-up missions and the overarching framework around the Bill. I am not sure the Minister will necessarily thank me for saying this, but I think the reporting requirements and the architecture around the levelling-up missions could be strengthened considerably in two primary ways.
First, we have seen through the Office for Budget Responsibility and the Climate Change Committee the importance and strength of an independent body to hold the Government to account for delivering against its own targets, and I think the levelling-up missions would benefit from that level of scrutiny and accountability. At the moment there is a bit of a risk of the Government setting out its own interpretation of progress rather than us having an independent view. Bluntly, the Government should welcome that as a way of ensuring that the whole of Government is driving towards the same end. There is a bit of a risk at the moment that the Department for Levelling Up becomes the sole vehicle for driving levelling-up policy.
In a second but similar way, I think there is a missed opportunity in terms of not aligning that reporting framework against a Treasury set of fiscal events. Ultimately, levelling up is so interdependent with tax and spend policy that if the Treasury is reporting at different times, particularly around changing tax measures or making large public spending decisions through the spending review, there is the risk that levelling up falls through the cracks of the way the Government makes major decisions, rather than being completely aligned as a whole of Government mission, as I understand both the Prime Minister and the entirety of Government believe it to be. That would be my systemic change.
The Chair
Thank you for your excellent evidence today.
Ordered, That further consideration be now adjourned. —(Miss Dines.)
5.9 pm
Adjourned till Tuesday 28 June at twenty-five minutes past Nine o’clock.
Written Evidence Reported to the House
LRB01 Community Rights Action
LRB02 West Midlands Police and Crime Commissioner
LRB03 Historic Houses
Online Safety Bill (Fifteenth sitting)
Thursday 23rd June 2022
(1 year, 10 months ago)
Public Bill CommitteesRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 23 June 2022 - (23 Jun 2022)
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Chair
Good morning, ladies and gentlemen. Please ensure your phones are switched to silent.
Clause 168
Publication by OFCOM
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
It is a pleasure to serve under your chairmanship, Sir Roger. Clause 168 is a very short and straightforward clause. Ofcom will be required to publish a variety of documents under the Online Safety Bill. The clause simply requires that this be done in a way that is appropriate and likely to bring it to the attention of any audience who are going to be affected by it. Ofcom is already familiar with this type of statutory obligation through existing legislation, such as the Digital Economy Act 2017, which places similar obligations on Ofcom. Ofcom is well versed in publishing documents in a way that is publicly accessible. Clause 168 puts the obligation on to a clear statutory footing.
Barbara Keeley (Worsley and Eccles South) (Lab)
As the Minister said, clause 168 rightly sets out that the raw material the Bill requires of Ofcom is published in a way that will bring it to the attention of any audience likely to be affected by it. It will be important that all the guidance is published in a way that is easily available and accessible, including for people who are not neurotypical, or experience digital exclusion. I think we would all agree, after the work we have done on the Bill, that the subjects are complex and the landscape is difficult to understand. I hope Ofcom will make its documents as accessible as possible.
Question put and agreed to.
Clause 168 accordingly ordered to stand part of the Bill.
Clause 169
Service of notices
Question proposed, That the clause stand part of the Bill.
Chris Philp
Clause 169 sets out the process for the service of any notice under the Bill, including notices to deal with child sexual exploitation and abuse or terrorism content, information notices, enforcement notices, penalty notices and public statement notices to providers of regulated services both within and outside the United Kingdom. The clause sets out that Ofcom may give a notice to a person by handing it to them, leaving it at the person’s last known address, sending it by post to that address or sending it by email to the person’s email address. It provides clarity regarding who Ofcom must give notice to in respect of different structures. For example, notice may be given to an officer of a body corporate.
Barbara Keeley
As the Minister said, clause 169 sets out the process of issuing notices or decisions by Ofcom. It mostly includes provisions about how Ofcom is to contact the company, which seem reasonable. The Opposition do not oppose clause 169.
Question put and agreed to.
Clause 169 accordingly ordered to stand part of the Bill.
Clause 170
Repeal of Part 4B of the Communications Act
Question proposed, That the clause stand part of the Bill.
Chris Philp
Clause 170 repeals the video-sharing platform regime. While the VSP and online safety regimes have similar objectives, the new framework in the Bill will be broader and will apply to a wider range of online platforms. It is for this reason that we will repeal the VSP regime and transition those entities regulated as VSPs across to the online safety regime, which is broader and more effective in its provisions. The clause simply sets out the intention to repeal the VSP.
Clause 171 repeals part 3 of the Digital Economy Act 2017. As we have discussed previously, the Online Safety Bill now captures all online sites that display pornography, including commercial pornography sites, social media sites, video sharing platforms, forums and search engines. It will provide much greater protection to children than the Digital Economy Act. The Digital Economy Act was criticised for not covering social media platforms, which this Bill does cover. By removing that section from the Digital Economy Act, we are laying the path to regulate properly and more comprehensively.
Finally, in this group, clause 172 amends section 1B of the Protection of Children Act 1978 and creates a defence to the offence of making an indecent photograph of a child for Ofcom, its staff and those assisting Ofcom in exercising its online safety duties. Clearly, we do not want to criminalise Ofcom staff while they are discharging their duties under the Bill that we are imposing on them, so it is reasonable to set out that such a defence exists. I hope that provides clarity to the Committee on the three clauses.
Barbara Keeley
The provisions in clauses 170 to 172, as the Minister has said, repeal or amend existing laws for the purposes of the Bill. As Labour supports the need to legislate on the issue of online safety, we will not oppose the clauses. However, I want to note that the entire process, up until the final abandonment of part 3 of the Digital Economy Act under clause 171 appears shambolic. It has been five years now since that part of the Act could have been implemented, which means five years during which children could have been better protected from the harms of pornographic content.
When the Government eventually admitted that part 3 was being ditched, the Minister at the time, the hon. Member for Boston and Skegness (Matt Warman), said that the Government would seek to take action on pornography more quickly than on other parts of the online harms regime. Stakeholders and charities have expressed concerns that we could now see a delay to the implementation of the duties on pornographic content providers, which is similar to the postponement and eventual abandonment of part 3 of the Digital Economy Act. I appreciate that the Minister gave some reassurance of his
“desire to get this done as quickly as possible”—[Official Report, Online Safety Bill Committee, 9 June 2022; c. 308.]
in our debate on clauses 31 to 33, but would it not be better to set out timeframes in the Bill?
Under clause 193, it appears that the only clauses in part 5 to be enacted once the Bill receives Royal Assent will be the definitions—clause 66 and clause 67(4)—and not the duties. That is because Ofcom is expected to issue a call for evidence, after which draft proposals for consultation are published, which then need to be agreed by the Secretary of State and laid before Parliament. There are opportunities there for delays and objections at any stage and, typically, enforcement will be implemented only in a staged fashion, from monitoring to supervision. The consultations and safeguarding processes are necessary to make the guidance robust; we understand that. However, children cannot wait another three years for protections, having been promised protection under part 3 of the Digital Economy Act five years ago, which, as I have said, was never implemented.
The provisions on pornography in part 5 of the Bill require no secondary legislation so they should be implemented as quickly as possible to minimise the amount of time children continue to be exposed to harmful content. It would be irresponsible to wait any longer than absolutely necessary, given the harms already caused by this drawn-out process.
Kirsty Blackman (Aberdeen North) (SNP)
Thank you, Sir Roger, for chairing this meeting this morning. I want to agree with the Opposition’s points about the timing issue. If an Act will repeal another one, it needs to make sure that there is no gap in the middle and, if the repeal takes place on one day, that the Bill’s provisions that relate to that are in force and working on the same day, rather than leaving a potential set-up time gap.
On clause 170 and repealing the part of the Communications Act 2003 on video-sharing platform services, some concerns have been raised that the requirements in the Online Safety Bill do not exactly mirror the same provisions in the video-sharing platform rules. I am not saying necessarily or categorically that the Online Safety Bill is less strong than the video-sharing platform rules currently in place. However, if the legislation on video-sharing platform services is repealed, the Online Safety Act, as it will be, will become the main way of regulating video-sharing platforms and there will be a degradation in the protections provided on those platforms and an increase in some of the issues and concerns we have seen raised. Will the Minister keep that under review and consider how that could be improved? We do not want to see this getting worse simply because one regime has been switched for another that, as the Minister said, is broader and has stronger protections. Will he keep under review whether that turns out to be the case when the Act has bedded in, when Ofcom has the ability to take action and properly regulate—particularly, in this case, video-sharing platforms?
Chris Philp
I agree with the hon. Member for Worsley and Eccles South, that we want to see these provisions brought into force as quickly as possible, for the reasons that she set out. We are actively thinking about ways of ensuring that these provisions are brought into force as fast as possible. It is something that we have been actively discussing with Ofcom, and that, I hope, will be reflected in the road map that it intends to publish before the summer. That will of course remain an area of close working between the Department for Digital, Culture, Media and Sport and Ofcom, ensuring that these provisions come into force as quickly as possible. Of course, the illegal duties will be brought into force more quickly. That includes the CSEA offences set out in schedule 6.
The hon. Member for Aberdeen North raised questions in relation to the repeal of part 3 of the Digital Economy Act. Although that is on the statute book, it was never commenced. When it is repealed, we will not be removing from force something that is applied at the moment, because the statutory instrument to commence it was never laid. So the point she raised about whether the Bill would come into force the day after the Digital Economy Act is repealed does not apply; but the point she raised about bringing this legislation into force quickly is reasonable and right, and we will work on that.
The hon. Lady asked about the differences in scope between the video-sharing platform and the online safety regime. As I said, the online safety regime does have an increased scope compared with the VSP regime, but I think it is reasonable to keep an eye on that as she suggested, and keep it under review. There is of course a formal review mechanism in clause 149, but I think that more informally, it is reasonable that as the transition is made we keep an eye on it, as a Government and as parliamentarians, to ensure that nothing gets missed out.
I would add that, separately from the Bill, the online advertising programme is taking a holistic look at online advertising in general, and that will also be looking at matters that may also touch on the VSPs and what they regulate.
Question put and agreed to.
Clause 170 accordingly ordered to stand part of the Bill.
Clauses 171 and 172 ordered to stand part of the Bill.
Clause 173
Powers to amend section 36
Question proposed, That the clause stand part of the Bill.
Chris Philp
The clause gives the Secretary of State the power to amend the list of fraudulent offences in section 36 in relation to the duties in relation to fraudulent advertising. These are the new duties that were introduced following feedback from Parliament, the Joint Committee, Martin Lewis and many other people. That is to ensure that we can keep the list of fraudulent offences up to date. The power to make those changes is subject to some constraints, as we would expect. The clause lists the criteria that any new offences must meet before the Secretary of State can include them in the section 36 list, which relates to the prevalence of the paid-for advertisements that amount to the new offence on category 1 services and the risk and severity of harm that that content poses to individuals in the UK.
The clause further limits the Secretary of State’s power to include new fraud offences, listing types of offence that may not be added. Offences from the Consumer Protection from Unfair Trading Regulations would be one instance. As I mentioned, the power to update section 36 is necessary to ensure that the legislation is future-proofed against new legislation and changes in criminal behaviour. Hon. Members have often said that it is important to ensure that the Bill is future-proof, and here is an example of exactly that future-proofing.
Alex Davies-Jones (Pontypridd) (Lab)
Good morning, Sir Roger. As the Minister has outlined, clause 173 gives the Secretary of State the power to amend the list of fraud offences in what will be section 36 in relation to the duties about fraudulent advertising. Although we recognise that this power is subject to some constraints, Labour has concerns about what we consider to be an unnecessary power given to the Secretary of State to amend duties about fraudulent advertising on category 1 services.
We welcome the provisions outlined in clause 173(2), which lists the criteria that any new offences must meet before the Secretary of State may include them in the list of fraud offences in section 36. The Minister outlined some of those. Along the same lines, the provision in clause 173(3) to further limit the Secretary of State’s power to include new fraud offences—it lists types of offences that may not be added to section 36—is a positive step.
However, we firmly believe that delegated law making of this nature, even when there are these minor constraints in place, is a worrying course for the Government to pursue when we have already strongly verbalised our concerns about Ofcom’s independence. Can the Minister alleviate our concerns by clarifying exactly how this process will work in practice? He must agree with the points that colleagues from across the House have made about the importance of Ofcom being truly independent and free from any political persuasion, influence or control. We all want to see the Bill change things for the better so I am keen to hear from the Minister the specific reasoning behind giving the Secretary of State the power to amend this important legislation through what will seemingly be a simple process.
As we all know, clause 174 allows the Secretary of State to make regulations to amend or repeal provisions relating to exempt content or services. Regulations made under this clause can be used to exempt certain content or services from the scope of the regulatory regime, or to bring them into scope. It will come as no surprise to the Minister that we have genuine concerns about the clause, given that it gives the Secretary of State of the day the power to amend the substantive scope of the regulatory regime. In layman’s terms, we see this clause as essentially giving the Secretary of State the power to, through regulations, exempt certain content and services from the scope of the Bill, or bring them into scope. Although we agree with the Minister that a degree of flexibility is crucial to the Bill’s success and we have indeed raised concerns throughout the Bill’s proceedings about the need to future-proof the Bill, it is a fine balance, and we feel that these powers in this clause are in excess of what is required. I will therefore be grateful to the Minister if he confirms exactly why this legislation has been drafted in a way that will essentially give the Secretary of State free rein on these important regulations.
Clauses 175 and 176 seek to give the Secretary of State additional powers, and again Labour has concerns. Clause 175 gives the Secretary of State the power to amend the list in part 2 of schedule 1, specifically paragraph 10. That list sets out descriptions of education and childcare relating to England; it is for the relevant devolved Ministers to amend the list in their respective areas. Although we welcome the fact that certain criteria must be met before the amendments can be made, this measure once again gives the Secretary of State of the day the ability substantively to amend the scope of the regime more broadly.
Those concerns are felt even more strongly when we consider clause 176, which gives the Secretary of State the power to amend three key areas in the Bill—schedules 5, 6 and 7, which relate to terrorism offences, to child sexual exploitation and abuse content offences—except those extending to Scotland—and to priority offences in some circumstances. Alongside stakeholders, including Carnegie, we strongly feel that the Secretary of State should not be able to amend the substantive scope of the regime at this level, unless moves have been initiated by Ofcom and followed by effective parliamentary oversight and scrutiny. Parliament should have a say in this. There should be no room for this level of interference in a regulatory regime, and the Minister knows that these powers are at risk of being abused by a bad actor, whoever the Secretary of State of the day may be. I must, once again, press the Minister to specifically address the concerns that Labour colleagues and I have repeatedly raised, both during these debates and on Second Reading.
Kirsty Blackman
I have a couple of questions, particularly on clause 176 and the powers to amend schedules 6 and 7. I understand the logic for schedule 5 being different—in that terrorism offences are a wholly reserved matter—and therefore why only the Secretary of State would be making any changes.
My question is on the difference in the ways to amend schedules 6 and 7—I am assuming that Government amendment 126, which asks the Secretary of State to consult Scottish Ministers and the Department of Justice in Northern Ireland, and which we have already discussed, will be voted on and approved before we come to clause 176. I do not understand the logic for having different procedures to amend the child sexual exploitation and abuse offences and the priority offences. Why have the Government chosen two different procedures for amending the two schedules?
I understand why that might not be a terribly easy question to answer today, and I would be happy for the Minister to get in touch afterwards with the rationale. It seems to me that both areas are very important, and I do not quite understand why the difference is there.
Chris Philp
Let me start by addressing the questions the shadow Minister raised about these powers. She used the phrase “free rein” in her speech, but I would not exactly describe it as free rein. If we turn to clause 179, which we will come to in a moment or two, and subsection (1)(d), (e), (f) and (g), we see that all the regulations made under clauses 173 to 176, which we are debating, require an SI under the affirmative procedure. Parliament will therefore get a chance to have its say, to object and indeed to vote down a provision if it wishes to. It is not that the Secretary of State can act alone; changes are subject to the affirmative SI procedure.
It is reasonable to have a mechanism to change the lists of priority offences and so on by affirmative SI, because the landscape will change and new offences will emerge, and it is important that we keep up to date. The only alternative is primary legislation, and a slot for a new Act of Parliament does not come along all that often—perhaps once every few years for any given topic. I think that would lead to long delays—potentially years—before the various exemptions, lists of priority offences and so on could be updated. I doubt that it is Parliament’s intention, and it would not be good for the public if we had to wait for primary legislation to change the lists. The proposed mechanism is the only sensible and proportionate way to do it, and it is subject to a parliamentary vote.
A comment was made about Ofcom’s independence. The way the offences are defined has no impact on Ofcom’s operational independence. That is about how Ofcom applies the rules; this is about what the rules themselves are. It is right that we are able to update them relatively nimbly by affirmative SI.
The hon. Member for Aberdeen North asked about the differences in the way schedules 6 and 7 can be updated. I will happily drop her a line with further thoughts if she wants me to, but in essence we are happy to get the Scottish child sexual exploitation and abuse offences, set out in part 2 of schedule 6, adopted as soon as Scottish Ministers want. We do not want to delay any measures on child exploitation and abuse, and that is why it is done automatically. Schedule 7, which sets out the other priority offences, could cover any topic at all—any criminal offence could fall under that schedule—whereas schedule 6 is only about child sexual exploitation and abuse. Given that the scope of schedule 7 takes in any criminal offence, it is important to consult Scottish Ministers if it is a Scottish offence but then use the statutory instrument procedure, which applies it to the entire UK internet. Does the hon. Lady want me to write to her, or does that answer her question?
Kirsty Blackman
That is actually incredibly helpful. I do not need a further letter, thanks.
Chris Philp
I am grateful to the hon. Lady for saving DCMS officials a little ink, and electricity for an email.
I hope I have addressed the points raised in the debate, and I commend the clause to the Committee.
Question put and agreed to.
Clause 173 accordingly ordered to stand part of the Bill.
Clauses 174 and 175 ordered to stand part of the Bill.
Clause 176
Powers to amend Schedules 5, 6 and 7
Amendment made: 126, in clause 176, page 145, line 4, at end insert—
“(5A) The Secretary of State must consult the Scottish Ministers before making regulations under subsection (3) which—
(a) add an offence that extends only to Scotland, or
(b) amend or remove an entry specifying an offence that extends only to Scotland.
(5B) The Secretary of State must consult the Department of Justice in Northern Ireland before making regulations under subsection (3) which—
(a) add an offence that extends only to Northern Ireland, or
(b) amend or remove an entry specifying an offence that extends only to Northern Ireland.”—(Chris Philp.)
This amendment ensures that the Secretary of State must consult the Scottish Ministers or the Department of Justice in Northern Ireland before making regulations which amend Schedule 7 in connection with an offence which extends to Scotland or Northern Ireland only.
Clause 176, as amended, ordered to stand part of the Bill.
Clause 177
Power to make consequential provision
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 178 stand part.
Government amendment 160.
Clause 179 stand part.
Chris Philp
As new services and functions emerge and evolve, and platforms and users develop new ways to interact online, the regime will need to adapt. Harms online will also continue to change, and the framework will not function effectively if it cannot respond to these changes. These clauses provide the basis for the exercise of the Secretary of State’s powers under the Bill to make secondary legislation. The Committee has already debated the clauses that confer the relevant powers.
Clause 177 gives the Secretary of State the power to make consequential changes to this legislation or regulations made under it. It further provides that the regulations may amend or repeal relevant provisions made under the Communications Act 2003 or by secondary legislation made under that Act. The power is necessary to give effect to the various regulation-making powers in the Bill, which we have mostly already debated, and to ensure that the provisions of the 2003 Act and regulations that relate to online safety can continue to be updated as appropriate. That is consistent with the principle that the Bill must be flexible and future-proof. The circumstances in which these regulation-making powers may be exercised are specified and constrained by the clauses we have previously debated. Clause 178 ensures that the regulation-making powers in the Bill may make different provisions for different purposes, in particular ensuring that regulations make appropriate provisions for different types of service.
Amendment 160 forms part of a group of amendments that will allow Ofcom to recover costs from the regulated services for work that Ofcom carries out before part 6 of the Bill is commenced. As I said previously, the costs may be recouped over a period of three to five years. Currently, the costs of preparations for the exercise of safety functions include only costs incurred after commencement. The amendment makes sure that initial costs incurred before commencement can be recouped as well.
Alex Davies-Jones
Again, Labour has concerns about clause 177, which gives the Secretary of State a power to make consequential provisions relating to the Bill or regulations under the Bill. As we know, the power is exercised by regulation and includes the ability to amend the Communications Act 2003. I will spare the Committee a repetition of my sentiments, but we do feel that the clause is part of an extremely worrying package of clauses related to the Secretary of State’s powers, which we feel are broadly unnecessary.
We have the same concerns about clause 178, which sets out how the powers to make regulations conferred on the Secretary of State may be used. Although we recognise that it is important in terms of flexibility and future-proofing that regulations made under the Bill can make different provisions for different purposes, in particular relating to different types of service, we are concerned about the precedent that this sets for future legislation that relies on an independent regulatory system.
Labour supports amendment 160, which will ensure that the regulations made under new schedule 2, which we will debate shortly, are subject to the affirmative procedure. That is vital if the Bill is to succeed. We have already expressed our concerns about the lack of scrutiny of other provisions in the Bill, so we see no issue with amendment 160.
The Minister has outlined clause 179, and he knows that we welcome parliamentary oversight and scrutiny of the Bill more widely. We regard this as a procedural clause and have therefore not sought to amend it.
Question put and agreed to.
Clause 177 accordingly ordered to stand part of the Bill.
Clause 178 ordered to stand part of the Bill.
Clause 179
Parliamentary procedure for regulations
Amendment made: 160, in clause 179, page 146, line 13, at end insert “, or
(k) regulations under paragraph 7 of Schedule (Recovery of OFCOM’s initial costs),—(Chris Philp.)
This amendment provides that regulations under NS2 are subject to the affirmative procedure.
Clause 179, as amended, ordered to stand part of the Bill.
Clause 180
“Provider” of internet service
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider the following:
Clauses 181 to 188 stand part.
Amendment 76, in clause 189, page 154, line 34, after “including” insert “but not limited to”.
This amendment clarifies the definition of “content” in the bill in order that anything communicated by means of an internet service is considered content, not only those examples listed.
Alex Davies-Jones
I will address clauses 180 to 182 together, before moving on to discuss our concerns about the remaining clauses in this group.
As we know, clause 180 determines who is the provider of an internet service and therefore who is subject to the duties imposed on providers. Labour has already raised concerns about the Bill’s lack of future-proofing and its inability to incorporate internet services that may include user-to-user models. The most obvious of those are user-to-user chat functions in gaming, which the hon. Member for Aberdeen North has raised on a number of occasions; we share her concerns.
Broadly, we think the Bill as it stands fails to capture the rapidity of technological advances, and the gaming industry is a key example of this. The Bill targets the providers that have control over who may use the user-to-user functions of a game, but in our view the clarity just is not there for emerging tech in the AI space in particular, so we would welcome the Minister’s comments on where he believes this is defined or specified in the Bill.
Clause 181 defines “user”, “United Kingdom user” and “interested person” in relation to regulated services. We welcome the clarification outlined in subsections (3) and (4) of the role of an employee at a service provider and their position when uploading content. We support the clarity on the term “internet service” in clause 182, and we welcome the provisions to capture services that are accessed via an app specifically, rather than just via an internet browser.
We welcome clause 183, which sets out the meaning of “search engine”. It is important to highlight the difference between search engines and user-to-user services, which has been attempted throughout the Bill. We heard from Google about its definition of “search”, and Labour agrees that, at their root, search services exist as an index of the web, and are therefore different from user-to-user services. We also fully appreciate the rapid nature of the internet—hundreds of web pages are created every single second—meaning that search services have a fundamental role to play in assisting users to find authoritative information that is most relevant to what they are seeking. Although search engines do not directly host content, they have an important role to play in ensuring that a delicate balance is maintained between online safety and access to lawful information. We are therefore pleased to support clause 183, which we feel broadly outlines the responsibilities placed on search services more widely.
On clause 184, Labour supports the need for a proactive technology to be used by regulated service providers to comply with their duties on illegal content, content that is harmful to children, and fraudulent advertising. In our consideration of proactive technology elsewhere in the Bill, Labour has made it clear that we support measures to keep us all safe. When speaking to new clause 20, which we debated with clause 37, I made it clear that we disagree with the Bill’s stance on proactive technology. As it is, the Bill will leave Ofcom unable to proactively require companies to use technology that can detect child abuse. Sadly, I was not particularly reassured by the Minister’s response, but it is important to place on the record again our feeling that proactive technology has an important role to play in improving online safety more widely.
Clause 185 provides information to assist Ofcom in its decision making on whether, in exercising its powers under the Bill, content is communicated publicly or privately. We see no issues with the process that the clause outlines. It is fundamentally right that, in the event of making an assessment of public or private content, Ofcom has a list of factors to consider and a subsequent process to follow. We will therefore support clause 185, which we have not sought to amend.
Clause 186 sets out the meaning of the term “functionality”. Labour supports the clause, particularly the provisions in subsection (2), which include the detailed ways in which platforms’ functionality can affect subsequent online behaviours. Despite our support, I put on the record our concern that the definitions in the clause do little to imagine or capture the broad nature of platforms or, indeed, the potential for them to expand into the AI space in future.
The Minister knows that Labour has advocated a systems-based approach to tackling online safety that would put functionality at the heart of the regulatory system. It is a frustrating reality that those matters are not outlined until clause 186. That said, we welcome the content of the clause, which we have not sought to amend.
Clause 187 aims to define “harm” as “physical or psychological harm”. Again, we feel that that definition could go further. My hon. Friend the Member for Batley and Spen spoke movingly about her constituent Zach in an earlier debate, and made a compelling case for clarity on the interplay between the physical and psychological harm that can occur online. The Minister said that the Government consider the Bill to cover a range of physical and psychological harms, but many charities disagree. What does he say to them?
We will shortly be considering new clause 23, and I will outline exactly how Labour feels that the Bill fails to capture the specific harms that women and girls face online. It is another frustrating reality that the Government have not taken the advice of so many stakeholders, and of so many women and girls, to ensure that those harms are on the face of the Bill.
Labour agrees with the provisions in clause 188, which sets out the meaning of “online safety functions” and “online safety matters”, so we have not sought to amend the clause.
Would it be appropriate for me to speak to the SNP amendment as well, Sir Roger?
The Chair
Not really. If the hon. Lady has finished with her own amendments, we should, as a courtesy, allow the SNP spokesperson to speak to her amendment first.
Kirsty Blackman
Thank you, Sir Roger. I thank the shadow Minister for running through some of our shared concerns about the clauses. Similarly, I will talk first about some of the issues and questions that I have about the clauses, and then I will speak to amendment 76. Confusingly, amendment 76 was tabled to clause 189, which we are not discussing right now. I should have raised that when I saw the provisional selection of amendments. I will do my best not to stray too far into clause 189 while discussing the amendment.
I have raised before with the Minister some of the questions and issues that I have. Looking specifically at clause 181, I very much appreciate the clarification that he has given us about users, what the clause actually means, and how the definition of “user” works. To be fair, I agree with the way the definition of “user” is written. My slight concern is that, in measuring the number of users, platforms might find it difficult to measure the number of unregistered users and the number of users who are accessing the content through another means.
Let us say, for example, that someone is sent a WhatsApp message with a TikTok link and they click on that. I do not know whether TikTok has the ability to work out who is watching the content, or how many people are watching it. Therefore, I think that TikTok might have a difficulty when it comes to the child safety duties and working out the percentage or number of children who are accessing the service, because it will not know who is accessing it through a secondary means.
I am not trying to give anyone a get-out clause. I am trying to ensure that Ofcom can properly ensure that platforms that have a significant number of children accessing them through secondary means are still subject to the child safety duties even though there may not be a high number of children accessing the platform or the provider directly. My major concern is assessing whether they are subject to the child safety duties laid out in the Bill.
I will move straight on to our amendment 76, which would amend the definition of “content” in clause 189. I have raised this issue with the Minister already. The clause, as amended, would state that
“‘content’ means anything communicated by means of an internet service, whether publicly or privately, including but not limited to”—
and then a list. The reason I suggest that we should add those words “but not limited to” is that if we are to have a list, we should either make an exhaustive list or have clarity that there are other things that may not be on the list.
I understand that it could be argued that the word “including” suggests that the provision actually goes much wider than what is in the list. I understand that that is the argument that the Minister may make, but can we have some more clarity from him? If he is not willing to accept the amendment but he is willing to be very clear that, actually, the provision does include things that we have not thought of and that do not currently exist and that it genuinely includes anything communicated by means of an internet service, that will be very helpful.
I think that the amendment would add something positive to the Bill. It is potentially the most important amendment that I have tabled in relation to future-proofing the Bill, because it does feel as though the definition of “content”, even though it says “including”, is unnecessarily restrictive and could be open to challenge should someone invent something that is not on the list and say, “Well, it’s not mentioned, so I am not going to have to regulate this in the way we have to regulate other types of content.”
I have other questions about the same provision in clause 189, but I will hold on to those until we come to the next grouping.
Alex Davies-Jones
I rise briefly to support amendment 76, in the name of the hon. Member for Aberdeen North. Labour supports broadening the definition of “content” in this way. I refer the Minister to our earlier contributions about the importance of including newspaper comments, for example, in the scope of the Bill. This is a clear example of a key loophole in the Bill. We believe that a broadened definition of “content” would be a positive step forward to ensure that there is future-proofing, to prevent any unnecessary harm from any future content.
Chris Philp
The shadow Minister, in her first contribution to the debate, introduced the broad purpose of the various clauses in this group, so I do not propose to repeat those points.
I would like to touch on one or two issues that came up. One is that clause 187 defines the meaning of “harm” throughout the Bill, although clause 150, as we have discussed, has its own internal definition of harm that is different. The more general definition of harm is made very clear in clause 187(2), which states:
“‘Harm’ means physical or psychological harm.”
That means that harm has a very broad construction in the Bill, as it should, to make sure that people are being protected as they ought to be.
The Chair
Amendment 111 is not claimed; it has been tabled by the hon. Member for Stroud (Siobhan Baillie), who is not a member of the Committee. I am assuming that nobody wishes to take ownership of it and we will not debate it.
If the hon. Member for Aberdeen North wishes to move amendment 76, she will be able to do so at the end of the stand part debate.
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
As we know, the clause sets out the meanings of various terms used in the Bill. Throughout our Committee debates, Labour has raised fundamental concerns on a number of points where we feel the interpretation of the Bill requires clarification. We raised concerns as early as clause 8, when we considered the Bill’s ability to capture harm in relation to newly produced CSEA content and livestreaming. The Minister may feel he has sufficiently reassured us, but I am afraid that simply is not the case. Labour has no specific issues with the interpretations listed in clause 189, but we will likely seek to table further amendments on Report in the areas that we feel require clarification.
Kirsty Blackman
In one of our earlier debates, I asked the Minister about the difference between “oral” and “aural”, and I did not get a very satisfactory answer. I know the difference in their dictionary definition—I understand that they are different, although the words sound the same. I am confused that clause 189 uses “oral” as part of the definition of content, but clause 49 refers to
“one-to-one live aural communications”
in defining things that are excluded.
I do not understand why the Government have chosen to use those two different words in different places in the Bill. It strikes me that, potentially, we mean one or the other. If they do mean two different things, why has one thing been chosen for clause 49 and another thing for clause 189? Why has the choice been made that clause 49 relates to communications that are heard, but clause 189 relates to communications that are said? I do not quite get the Government’s logic in using those two different words.
I know this is a picky point, but in order to have good legislation, we want it to make sense, for there to be a good rationale for everything that is in it and for people to be able to understand it. At the moment, I do not properly understand why the choice has been made to use two different words.
More generally, the definitions in clause 189 seem pretty sensible, notwithstanding what I said in the previous debate in respect of amendment 76, which, with your permission, Sir Roger, I intend to move when we reach the appropriate point.
Chris Philp
As the hon. Member for Pontypridd said, clause 189 sets out various points of definition and interpretation necessary for the Bill to be understood and applied.
I turn to the question raised by the hon. Member for Aberdeen North. First, I strongly commend and congratulate her on having noticed the use of the two words. Anyone who thinks that legislation does not get properly scrutinised by Parliament has only to look to the fact that she spotted this difference, 110 pages apart, in two different clauses—clauses 49 and 189. That shows that these things do get properly looked at. I strongly congratulate her on that.
I think the best way of addressing her question is probably to follow up with her after the sitting. Clause 49 relates to regulated user-to-user content. We are in clause 49(2)—is that right?
Chris Philp
It is cross-referenced in subsection (5). The use of the term “aural” in that subsection refers to sound only—what might typically be considered telephony services. “Oral” is taken to cover livestreaming, which includes pictures and voice. That is the intention behind the use of the two different words. If that is not sufficient to explain the point—it may not be—I would be happy to expand in writing.
Kirsty Blackman
That would be helpful, in the light of the concerns I raised and what the hon. Member for Pontypridd mentioned about gaming, and how those communications work on a one-to-one basis. Having clarity in writing on whether clause 49 relates specifically to telephony-type services would be helpful, because that is not exactly how I read it.
Chris Philp
Given that the hon. Lady has raised the point, it is reasonable that she requires more detail. I will follow up in writing on that point.
Amendment proposed: 76, in clause 189, page 154, line 34, after “including” insert “but not limited to”.—(Kirsty Blackman.)
This amendment clarifies the definition of “content” in the bill in order that anything communicated by means of an internet service is considered content, not only those examples listed.
Question put, That the amendment be made.
Alex Davies-Jones
Labour has not tabled any amendments to clause 190, which lists the provisions that define or explain terms used in the Bill. However, it will come as no surprise that we dispute the Bill’s definition of harm, and I am grateful to my hon. Friend the Member for Batley and Spen for raising those important points in our lively debate about amendment 112 to clause 150. We maintain that the Minister has missed the point, in that the Bill’s definition of harm fails to truly capture physical harm caused as a consequence of being online. I know that the Minister has promised to closely consider that as we head to Report stage, but I urge him to bear in mind the points raised by Labour, as well as his own Back Benchers.
The Minister knows, because we have repeatedly raised them, that we have concerns about the scope of the Bill’s provisions relating to priority content. I will not repeat myself, but he will be unsurprised to learn that this is an area in which we will continue to prod as the Bill progresses through Parliament.
Chris Philp
I have made points on those issues previously. I do not propose to repeat now what I have said before.
Question put and agreed to.
Clause 190 accordingly ordered to stand part of the Bill.
Clause 191 ordered to stand part of the Bill.
Clause 192
Extent
Chris Philp
I beg to move amendment 141, in clause 192, page 160, line 9, at end insert—
“(aa) section (Offence under the Obscene Publications Act 1959: OFCOM defence);”.
This amendment provides for NC35 to extend only to England and Wales.
The Chair
With this it will be convenient to discuss Government new clause 35—Offence under the Obscene Publications Act 1959: OFCOM defence—
“(1) Section 2 of the Obscene Publications Act 1959 (prohibition of publication of obscene matter) is amended in accordance with subsections (2) and (3).
(2) After subsection (5) insert—
“(5A) A person shall not be convicted of an offence against this section of the publication of an obscene article if the person proves that—
(a) at the time of the offence charged, the person was a member of OFCOM, employed or engaged by OFCOM, or assisting OFCOM in the exercise of any of their online safety functions (within the meaning of section188 of the Online Safety Act 2022), and
(b) the person published the article for the purposes of OFCOM’s exercise of any of those functions.”
(3) In subsection (7)—
(a) the words after “In this section” become paragraph (a), and
(b) at the end of that paragraph, insert “;
(b) “OFCOM” means the Office of Communications.””
This new clause (to be inserted after clause 171) amends section 2 of the Obscene Publications Act 1959 to create a defence for OFCOM and their employees etc to the offence of the publication of an obscene article.
Chris Philp
New clause 35 amends section 2 of the Obscene Publications Act 1959 to create a defence for Ofcom to the offence of publishing an obscene article where Ofcom is exercising its online safety duties. Ofcom has a range of functions that may result in its staff handling such content, so we want to ensure that that is covered properly. We have debated that already.
Clause 192 covers territorial extent. The regulation of the internet, as a reserved matter, covers all of the United Kingdom, but particular parts of the Bill extend to particular areas of the UK. In repealing that point in the Obscene Publications Act, we are ensuring that the Bill applies to the relevant parts of the United Kingdom, because that area of legislation has different areas of applicability. The clause and our amendments are important in ensuring that that is done in the right way.
Alex Davies-Jones
The clause provides that the Bill extends to England, Wales, Scotland and Northern Ireland, subject to the exceptions set out in subsections (2) to (7). We welcome clarification of how the devolved nations may be affected by the provisions of the Bill—that is of particular importance to me as a Welsh MP. It is important to clarify how amendments or appeals, as outlined in subsection (7), may work in the context of devolution more widely.
Labour also supports new clause 35 and Government amendment 141. Clearly, those working for Ofcom should have a defence to the offence of publishing obscene articles as, sadly, we see that as a core part of establishing the online safety regime in full. We know that having such a defence available is likely to be an important part of the regulator’s role and that of its employees. Labour is therefore happy to support this sensible new clause and amendment.
Kirsty Blackman
The Opposition spokesperson has said it all.
Amendment 141 agreed to.
Clause 192, as amended, ordered to stand part of the Bill.
Clause 193
Commencement and transitional provision
The Chair
Amendment 139 was tabled by a Member who is not a member of the Committee, and nobody has claimed it, so we come to amendment 49.
Alex Davies-Jones
I beg to move amendment 49, in clause 193, page 161, line 1, leave out subsection (2) and insert—
“(2) Subject to subsection (2A) below, the other provisions of this Act come into force on such day as the Secretary of State may by regulations appoint.
(2A) The provisions of Part 5 shall come into force at the end of the period of three months beginning with the day on which this Act is passed.”
This amendment would bring Part 5 into force three months after the Act is passed.
We all understand the need for the Bill, which is why we have been generally supportive in Committee. I hope we can also agree that the measures that the Bill introduces must come into force as soon as is reasonably possible. That is particularly important for the clauses introducing protections for children, who have been subject to the harms of the online world for far too long already. I was glad to hear the Minister say in our discussions of clauses 31 to 33 that the Government share the desire to get such protections in place quickly.
My hon. Friend the Member for Worsley and Eccles South also spoke about our concerns about the commencement and transitional provisions when speaking to clauses 170 to 172. We fundamentally believe that the provisions on pornography in part 5 cannot, and should not, be susceptible to further delay, because they require no secondary legislation. I will come to that point in my comments on the amendment. More broadly, I will touch briefly on the reasons why we cannot wait for the legislation and make reference to a specific case that I know colleagues across the House are aware of.
My hon. Friend the Member for Reading East (Matt Rodda) has been a powerful voice on behalf of his constituents Amanda and Stuart Stephens, whose beloved son Olly was tragically murdered in a field outside his home. A BBC “Panorama” investigation, shown only a few days ago, investigated the role that social media played in Olly’s death. It specifically highlighted disturbing evidence that some social media algorithms may still promote violent content to vulnerable young people. That is another example highlighting the urgent need for the Bill, along with a regulatory process to keep people safe online.
We also recognise, however, the important balance between the need for effective development of guidance by Ofcom, informed by consultation, and the need to get the duties up and going. In some cases, that will mean having to stipulate deadlines in the Bill, which we feel is a serious omission and oversight at present.
The amendment would bring part 5 of the Bill into force three months after it is enacted. The Minister knows how important part 5 is, so I do not need to repeat myself. The provisions of the amendment, including subsequent amendments that Labour and others will likely table down the line, are central to keeping people safe online. We have heard compelling evidence from experts and speeches from colleagues across the House that have highlighted how vital it is that the Bill goes further on pornographic content. The amendment is simple. It seeks to make real, meaningful change as soon as is practically possible. The Bill is long delayed, and providers and users are desperate for clarity and positive change, which is what led us to tabling the amendment.
Kirsty Blackman
In the interests of not having to make a speech in this debate, I want to let the hon. Member know that I absolutely support the amendment. It is well balanced, brings the most important provisions into force as soon as possible, and allows the Secretary of State to appoint dates for the others.
Alex Davies-Jones
I welcome the hon. Member’s intervention, and I am grateful for her and her party’s support for this important amendment.
It is also worth drawing colleagues’ attention to the history of issues, which have been brought forward in this place before. We know there was reluctance on the part of Ministers when the Digital Economy Act 2017 was on the parliamentary agenda to commence the all-important part 3, which covered many of the provisions now in part 5. Ultimately, the empty promises made by the Minister’s former colleagues have led to huge, record failures, even though the industry is ready, having had years to prepare to implement the policy. I want to place on record my thanks to campaigning groups such as the Age Verification Providers Association and others, which have shown fierce commitment in getting us this far.
It might help if I cast colleagues’ minds back to the Digital Economy Act 2017, which received Royal Assent in April of that year. Following that, in November 2018, the then Minister of State for Digital and Creative Industries told the Science and Technology Committee that part 3 of the DEA would be in force “by Easter next year”. Then, in December 2018, both Houses of Parliament approved the necessary secondary legislation, the Online Pornography (Commercial Basis) Regulations 2018, and the required statutory guidance.
But shortly after, in April 2018, the first delay arose when the Government published an online press release stating that part 3 of the DEA would not come into force until 15 July 2019. However, June 2019 came around and still there was nothing. On 20 June, five days after it should have come into force, the then Under-Secretary of State told the House of Lords that the defendant had failed to notify the European Commission of the statutory guidance, which would need to be done, and that that would result in a delay to the commencement of part 3
“in the region of six months”.—[Official Report, House of Lords, 20 June 2019; Vol. 798, c. 883.]
However, on 16 October 2019, the then Secretary of State announced via a written statement to Parliament that the Government
“will not be commencing part 3 of the Digital Economy Act 2017 concerning age verification for online pornography.”—[Official Report, 16 October 2019; Vol. 666, c. 17WS.]
A mere 13 days later, the Government called a snap general election. I am sure those are pretty staggering realities for the Minister to hear—and defend—but I am willing to listen to his defence. It really is not good enough. The industry is ready, the technology has been there for quite some time, and, given this Government’s fondness for a U-turn, there are concerns that part 5 of the Bill, which we have spent weeks deliberating, could be abandoned in a similar way as part 3 of the DEA was.
The Minister has failed to concede on any of the issues we have raised in Committee. It seems we are dealing with a Government who are ignoring the wide-ranging gaps and issues in the Bill. He has a relatively last-ditch opportunity to at least bring about some positive change, and to signify that he is willing to admit that the legislation as it stands is far from perfect. The provisions in part 5 are critical—they are probably the most important in the entire Bill—so I urge him to work with Labour to make sure they are put to good use in a more than reasonable timeframe.
Chris Philp
On the implementation of part 3 of the Digital Economy Act 2017, all the events that the shadow Minister outlined predated my time in the Department. In fact, apart from the last few weeks of the period she talked about, the events predated my time as a Minister in different Departments, and I cannot speak for the actions and words of Ministers prior to my arrival in DCMS. What I can say, and I have said in Committee, is that we are determined to get the Bill through Parliament and implemented as quickly as we can, particularly the bits to do with child safety and the priority illegal content duties.
The shadow Minister commented at the end of her speech that she thought the Government had been ignoring parliamentary opinion. I take slight issue with that, given that we published a draft Bill in May 2021 and went through a huge process of scrutiny, including by the Joint Committee of the Commons and the Lords. We accepted 66 of the Joint Committee’s recommendations, and made other very important changes to the Bill. We have made changes such as addressing fraudulent advertising, which was previously omitted, and including commercial pornography—meaning protecting children—which is critical in this area.
The Government have made a huge number of changes to the Bill since it was first drafted. Indeed, we have made further changes while the Bill has been before the Committee, including amending clause 35 to strengthen the fraudulent advertising duties on large search companies. Members of Parliament, such as the right hon. Member for East Ham (Sir Stephen Timms), raised that issue on Second Reading. We listened to what was said at that stage and we made the changes.
There have also been quite a few occasions during these Committee proceedings when I have signalled—sometimes subtly, sometimes less so—that there are areas where further changes might be forthcoming as the Bill proceeds through both Houses of Parliament. I do not think the hon. Member for Pontypridd, or any member of the Committee, should be in any doubt that the Government are very open to making changes to the Bill where we are able to and where they are right. We have done so already and we might do so again in the future.
On the specifics of the amendment, we share the intention to protect children from accessing pornography online as quickly as possible. The amendment seeks to set a three-month timeframe within which part 5 must come into force. However, an important consideration for the commencement of part 5 will be the need to ensure that all kinds of providers of online pornography are treated the same, including those hosting user-generated content, which are subject to the duties of part 3. If we take a piecemeal approach, bringing into force part 5, on commercial pornography, before part 3, on user-to-user pornography, that may enable some of the services, which are quite devious, to simply reconfigure their services to circumvent regulation or cease to be categorised as part 5 services and try to be categorised as part 3 services. We want to do this in a comprehensive way to ensure that no one will be able to wriggle out of the provisions in the Bill.
Parliament has also placed a requirement on Ofcom to produce, consult on and publish guidance for in-scope providers on meeting the duties in part 5. The three-month timescale set out in the amendment would be too quick to enable Ofcom to properly consult on that guidance. It is important that the guidance is right; if it is not, it may be legally challenged or turn out to be ineffective.
I understand the need to get this legislation implemented quickly. I understand the scepticism that flows from the long delays and eventual cancellation of part 3 of the Digital Economy Act 2017. I acknowledge that, and I understand where the sentiment comes from. However, I think we are in a different place today. The provisions in the Bill have been crafted to address some of the concerns that Members had about the previous DEA measures—not least the fact that they are more comprehensive, as they cover user-to-user, which the DEA did not. There is therefore a clear commitment to getting this done, and getting it done fast. However, we also have to get it done right, and I think the process we have set out does that.
The Ofcom road map is expected before the summer. I hope that will give further reassurance to the Committee and to Parliament about the speed with which these things can get implemented. I share Members’ sentiments about needing to get this done quickly, but I do not think it is practical or right to do it in the way set out in amendment 49.
Alex Davies-Jones
I am grateful for the Minister’s comments. However, I respectfully disagree, given the delays already since 2017. The industry is ready for this. The providers of the age verification services are ready for this. We believe that three months is an adequate timeframe, and it is vital that we get this done as quickly as possible. With that in mind, I will be pushing amendment 49 to a vote.
Question put, That the amendment be made.
Chris Philp
This very important and concise clause sets out that the Bill, when passed, will be cited as the Online Safety Act 2022, which I hope is prophetic when it comes the lightning speed of passage through the House of Lords.
Question put and agreed to.
Clause 194 accordingly ordered to stand part of the Bill.
New Clause 35
Offence under the Obscene Publications Act 1959: OFCOM defence
“(1) Section 2 of the Obscene Publications Act 1959 (prohibition of publication of obscene matter) is amended in accordance with subsections (2) and (3).
(2) After subsection (5) insert—
‘(5A) A person shall not be convicted of an offence against this section of the publication of an obscene article if the person proves that—
(a) at the time of the offence charged, the person was a member of OFCOM, employed or engaged by OFCOM, or assisting OFCOM in the exercise of any of their online safety functions (within the meaning of section188 of the Online Safety Act 2022), and
(b) the person published the article for the purposes of OFCOM’s exercise of any of those functions.’
(3) In subsection (7)—
(a) the words after ‘In this section’ become paragraph (a), and
(b) at the end of that paragraph, insert ‘;
(b) “OFCOM” means the Office of Communications.’”—(Chris Philp.)
This new clause (to be inserted after clause 171) amends section 2 of the Obscene Publications Act 1959 to create a defence for OFCOM and their employees etc to the offence of the publication of an obscene article.
Brought up, read the First and Second time, and added to the Bill.
New Clause 42
Recovery of OFCOM’s initial costs
“Schedule (Recovery of OFCOM’s initial costs) makes provision about fees chargeable to providers of regulated services in connection with OFCOM’s recovery of costs incurred on preparations for the exercise of their online safety functions.”—(Chris Philp.)
This new clause introduces NS2.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss Government new clause 43 and Government new schedule 2.
Chris Philp
New clause 42 introduces new schedule 2. New clause 43 provides that the additional fees charged to providers under new schedule 2 must be paid into the consolidated fund. We discussed that a few days ago. That is where the fees are currently destined and I owe my right hon. Friend the Member for Basingstoke some commentary on this topic in due course. The Bill already provided that monetary penalties must be paid into the Consolidated Fund; the provisions are now placed into that clause.
New schedule 2, which is quite detailed, makes provisions in connection with Ofcom’s ability to recover its initial costs, which we have previously debated. As discussed, it is important that the taxpayer not only is protected from the ongoing costs but that the set-up costs are recovered. The taxpayer should not have to pay for the regulatory framework; the people who are being regulated should pay, whether the costs are incurred before or after commencement, in line with the “polluter pays” principle. Deep in new schedule 2 is the answer to the question that the hon. Member for Aberdeen North asked a day or two ago about the period over which set-up costs can be recovered, with that period specified as between three and five years. I hope that provides an introduction to the new clauses and new schedules.
Alex Davies-Jones
We welcome this grouping, which includes two new clauses and a new schedule. Labour has raised concerns about the future funding of Ofcom more widely, specifically when we discussed groupings on clause 42. The Minister’s response did little to alleviate our concerns about the future of Ofcom’s ability to raise funds to maintain its position as the regulator. Despite that, we welcome the grouping, particularly the provisions in the new schedule, which will require Ofcom to seek to recover the costs it has incurred when preparing to take on functions as the regulator of services under the Bill by charging fees to providers of services. This is an important step, which we see as being broadly in line with the kind of mechanisms already in place for other, similar regulatory regimes.
Ultimately, it is right that fees charged to providers under new schedule 2 must be paid into the Consolidated Fund and important that Ofcom can recover its costs before a full fee structure and governance process is established. However, I have some questions for the Minister. How many people has Ofcom hired into roles, and can any of those costs count towards the calculation of fees? We want to ensure that other areas of regulation do not lose out as a consequence. Broadly speaking, though, we are happy to support the grouping and have not sought to table amendment at this stage.
Chris Philp
So far as I am aware, all the costs incurred by Ofcom in relation to the duties in the Bill can be recouped by way of fees. If that is not correct, I will write to the hon. Lady saying so, but my understanding is that any relevant Ofcom cost will be in the scope of the fees.
Question put and agreed to.
New clause 42 accordingly read a Second time, and added to the Bill.
New Clause 43
Payment of sums into the Consolidated Fund
“(1) Section 400 of the Communications Act (destination of penalties etc) is amended as follows.
(2) In subsection (1), after paragraph (i) insert—
‘(j) an amount paid to OFCOM in respect of a penalty imposed by them under Chapter 6 of Part 7 of the Online Safety Act 2022;
(k) an amount paid to OFCOM in respect of an additional fee charged under Schedule (Recovery of OFCOM’s initial costs) to the Online Safety Act 2022.’
(3) In subsection (2), after ‘applies’ insert ‘(except an amount mentioned in subsection (1)(j) or (k))’.
(4) After subsection (3) insert—
‘(3A) Where OFCOM receive an amount mentioned in subsection (1)(j) or (k), it must be paid into the Consolidated Fund of the United Kingdom.’
(5) In the heading, omit ‘licence’.”—(Chris Philp.)
This new clause provides that additional fees charged to providers under NS2 must be paid into the Consolidated Fund. The Bill already provided that monetary penalties must be paid into the Consolidated Fund, and those provisions are now placed in this clause.
Brought up, read the First and Second time, and added to the Bill.
New Clause 3
Establishment of Advocacy Body
“(1) There is to be a body corporate (‘the Advocacy Body’) to represent interests of child users of regulated services.
(2) A ‘child user’—
(a) means any person aged 17 years or under who uses or is likely to use regulated internet services; and
(b) includes both any existing child user and any future child user.
(3) The work of the Advocacy Body may include—
(a) representing the interests of child users;
(b) the protection and promotion of these interests;
(c) any other matter connected with those interests.
(4) The ‘interests of child users’ means the interest of children in relation to the discharge by any regulated company of its duties under this Act, including—
(a) safety duties about illegal content, in particular CSEA content;
(b) safety duties protecting children;
(c) ‘enforceable requirements’ relating to children.
(5) The Advocacy Body must have particular regard to the interests of child users that display one or more protected characteristics within the meaning of the Equality Act 2010.
(6) The Advocacy Body will be defined as a statutory consultee for OFCOM’s regulatory decisions which impact upon the interests of children.
(7) The Secretary of State may appoint an organisation known to represent children to be designated the functions under this Act, or may create an organisation to carry out the designated functions.”—(Barbara Keeley.)
This new clause creates a new advocacy body for child users of regulated internet services.
Brought up, and read the First time.
Barbara Keeley
I beg to move, That the clause be read a Second time.
New clause 3 would make provision for a statutory user advocacy body representing the interests of children. It would also allow the Secretary of State to appoint a new or existing body as the statutory user advocate. A strong, authoritative and well-resourced voice that can speak for children in regulatory debates would ensure that complex safeguarding issues are well understood, and would also actively inform the regulator’s decisions.
Charities have highlighted that the complaints and reporting mechanisms in the Bill may not always be appropriate for children. Ofcom’s own evidence shows that only 14% to 12 to 15-year-old children have ever reported content. Children who are most at risk of online harms may find it incredibly challenging to complete a multi-stage reporting and complaints process. Dame Rachel de Souza told the Committee:
“I worry that the Bill does not do enough to respond to individual cases of abuse and that it needs to do more to understand issues and concerns directly from children. Children should not have to exhaust the platforms’ ineffective complaints routes, which can take days, weeks or even months. I have just conducted a survey of 2,000 children and asked them about their experiences in the past month. Of those 2,000 children, 50% had seen harmful content and 40% had tried to get content about themselves removed and had not succeeded. For me, there is something really important about listening to children and taking their complaints into account.”––[Official Report, Online Safety Public Bill Committee, 24 May 2022; c. 16, Q22.]
A children’s advocacy body would be able to support children with redress mechanisms that are fundamentally targeted at adults. Given how many children now use the internet, that is an essential element that is missing from the Bill. That is why the super-complaints mechanism needs to be strengthened with specific arrangements for children, as advocated by the National Society for the Prevention of Cruelty to Children and other children’s organisations. A statutory user advocacy body could support the regulator, as well as supporting child users. It would actively promote the interests of children in regulatory decision making and offer support by ensuring that an understanding of children’s behaviour and safeguarding is front and centre in its approach.
Kim Leadbeater (Batley and Spen) (Lab)
My hon. Friend is making a really valid point. As I look around the room—I mean this with no disrespect to anybody—I see that we are all of an age at which we do not understand the internet in the same way that children and young people do. Surely, one of the key purposes of the Bill is to make sure that children and young people are protected from harms online, and as the Children’s Commissioner said in her evidence, their voices have to be heard. I am sure that, like me, many Members present attend schools as part of their weekly constituency visits, and the conversations we have with young people are some of the most empowering and important parts of this job. We have to make sure that the voices of the young people who we all represent are heard in this important piece of legislation, and it is really important that we have an advocacy body to ensure that.
Barbara Keeley
I very much agree with my hon. Friend. She is quite right: we have to remember that we do not see these things as children and young people do.
The user advocacy body that my hon. Friend has just spoken in support of could also shine a light on the practices that are most harmful to children by using data, evidence and specialist expertise to point to new and emerging areas of harm. That would enable the regulator to ensure its risk profiles and regulatory approach remain valid and up to date. In his evidence, Andy Burrows of the NSPCC highlighted the importance of an advocacy body acting as an early warning system:
“Given the very welcome systemic approach of the regime, that early warning function is particularly important, because there is the potential that if harms cannot be identified quickly, we will see a lag where whole regulatory cycles are missed. User advocacy can help to plug that gap, meaning that harms are identified at an earlier stage, and then the positive design of the process, with the risk profiles and company risk assessments, means that those harms can be built into that particular cycle.”––[Official Report, Online Safety Public Bill Committee, 24 May 2022; c. 16, Q22.]
The provision in the new clause is comparable to those that already exist in many other sectors. For example, Citizens Advice is the statutory user advocate for consumers of energy and the postal services, and there are similar arrangements representing users of public transport. Establishing a children’s user advocacy body would ensure that the most vulnerable online users of all—children at risk of online sexual abuse—receive equivalent protections to customers of post offices or passengers on a bus.
Dame Maria Miller (Basingstoke) (Con)
The hon. Lady will recall the issue that I raised earlier in the Committee’s deliberations, regarding the importance of victim support that gives people somewhere to go other than the platforms. I think that is what she is now alluding to. Does she not believe that the organisations that are already in place, with the right funding—perhaps from the fines coming from the platforms themselves—would be in a position to do this almost immediately, and that we should not have to set up yet another body, or have I misunderstood what she has said?
Barbara Keeley
I do not think that the right hon. Lady has misunderstood what I said. I said that the new clause would allow the Secretary of State to appoint a new or existing body as the statutory user advocate, so it could very much be either.
New clause 3 would also rebalance the interests of children against the vocal and well-resourced regulated companies. I think that is a key argument for having an advocacy body. Without such a counterbalance, large tech companies could attempt to capture independent expert voices, fund highly selective research with the intent to skew the evidence base, and then challenge regulatory decisions with the evidence base they have created.
Those tactics are not new; similar tactics are used in other regulated sectors, such as the tobacco industry. In line with other sectors, the user advocacy body should be funded by a levy on regulated companies. That would be in line with the “polluter pays” principle in part 6 and would be neutral to the Exchequer—another reason to accept it. Compared with the significant benefits and improved outcomes it would create, the levy would represent only a minimal additional burden on companies.
There is strong support for the creation of a user advocate. Research by the NSPCC shows that 88% of UK adults who responded to a YouGov survey think that it is necessary for the Bill to introduce a requirement for an independent body that can protect the interests of children at risk of online harms, including grooming and child sexual abuse.
It is also a popular option among children. YoungMinds has said that young people do not feel they are being included enough in the drafting of the Bill. It evidenced that with research it undertook that found that almost 80% of young people aged 11 to 25 surveyed had never even heard of the Bill.
A young woman told the NSPCC why she felt a children’s advocacy body is needed. She is a survivor of online grooming, and it is worth sharing what she said in full, because it is powerful and we have not shared the voices of young people enough. She said:
“When I was 13, a man in his 30s contacted me on Facebook. I added him because you just used to add anyone on Facebook. He started messaging me and I liked the attention. We’d speak every day, usually late at night for hours at a time…He started asking for photos, so I sent some. Then he asked for some explicit photos, so I did that too, and he reciprocated…In my eyes, telling anyone in my life about this man was not an option. We need to stop putting the responsibility on a vulnerable child to prevent crime and start living in a world which puts keeping children safe first. That means putting child safety at the heart of policy. I want a statutory child user advocacy body funded by the industry levy. This would play a vital role in advocating for children’s rights in regulatory debates. Being groomed made me feel incredibly vulnerable, isolated, and weak. I felt I had no one who was on my side. Having a body stand up for the rights of children in such a vulnerable position is invaluable…it is so rare that voices like mine have a chance to be heard by policy makers. Watching pre legislative debates I’ve been struck by how detached from my lived experience they can be”—
that is very much the point that my hon. Friend the Member for Batley and Spen made—
“and indeed the lived experiences of thousands of others. If we want to protect children, we need to understand and represent what they need.”
I hope that the Committee will recognise the bravery of that young woman in speaking about her experiences as a survivor of online grooming. I hope that the Minister will respect the insights she offers and consider the merits of having a user advocacy body to support children and young people experiencing harms online.
Kirsty Blackman
I read new clause 3 in conjunction with the starred new clause 44, because it makes sense to consider the funding of the advocacy body, and the benefits of that funding, when discussing the merits of such a body. Part of that is because the funding of the advocacy body, and the fact that it needs to be funded, is key to its operation, and a key reason why we need it.
Kim Leadbeater
The hon. Lady is making some excellent points. I wholeheartedly agree with her about funding for bodies that might be able to support the advocacy body or act as part of it. She makes a really important point, which we have not focused on enough during the debate, about the positive aspects of the internet. It is very easy to get bogged down in all the negative stuff, which a lot of the Bill focuses on, but she is right that the internet provides a safe space, particularly for young people, to seek out their own identity. Does she agree that the new clause is important because it specifically refers to protected characteristics and to the Equality Act 2010? I am not sure where else that appears in the Bill, but it is important that it should be there. We are thinking not just about age, but about gender, disability and sexual orientation, which is why this new clause could be really important.
Kirsty Blackman
I absolutely agree. I had not thought about it in those terms, but the hon. Member is right that the new clause gives greater importance to those protected characteristics and lays that out in the Bill.
I appreciate that, under the risk assessment duties set out in the Bill, organisations have to look at protected characteristics in groups and at individuals with those protected characteristics, which I welcome, but I also welcome the inclusion of protected characteristics in the new clause in relation to the duties of the advocacy body. I think that is really important, especially, as the hon. Member for Batley and Spen just said, in relation to the positive aspects of the internet. It is about protecting free speech for children and young people and enabling them to find community and enjoy life online and offline.
Will the Minister give serious consideration to the possibility of a user advocacy body? Third sector organisations are calling for that, and I do not think Ofcom could possibly have the expertise to match such a body.
Dame Maria Miller
I want briefly to interject to underline the point I made in my intervention on the hon. Member for Worsley and Eccles South. I welcome the discussion about victims’ support, which picks up on what we discussed on clause 110. At that point I mentioned the NSPCC evidence that talked about the importance of third party advocacy services, due to the lack of trust in the platforms, as well as for some of the other reasons that the hon. Members for Worsley and Eccles South, for Batley and Spen, and for Aberdeen North have raised.
When we discussed clause 110, the Minister undertook to think about the issue seriously and to talk to the Treasury about whether funding could be taken directly from fines rather than those all going into the Treasury coffers. I hope the debate on new clause 3 will serve to strengthen his resolve, given the strength of support for such a measure, whether that is through a formal user advocacy service or by using existing organisations. I hope he uses the debate to strengthen his arguments about such a measure with the Treasury.
I will not support the new clause tabled by the hon. Member for Worsley and Eccles South, because I think the Minister has already undertaken to look at this issue. As I say, I hope this discussion strengthens his resolve to do so.
Chris Philp
Let me start by stating the fact that this Bill, as drafted, rightly has incredibly strong protections for children. The children’s safety duties that we have already debated are extremely strong. They apply to any platform with significant numbers of children using it and they impose a duty on such companies to protect children from harm. The priority illegal safety duties are listed in schedule 6, on child sexual exploitation and abuse offences—they have their very own schedule because we attach such importance to them. Committee members should be in no doubt that protecting children is at the very heart of the Bill. I hope that has been obvious from the debates we have had.
On children’s ability to raise complaints and seek redress under the Bill, it is worth reminding ourselves of a couple of clauses that we have debated previously, through which we are trying to make sure it is as easy as possible for children to report problematic content or to raise complaints. Members will recall that we debated clause 17. Clause 17(6)(c) allows for
“a parent of, or other adult with responsibility for, a child”
to raise content-reporting claims with users, so that children are not left on their own. We have also been clear under the complaints procedures set out in clause 18(2)(c) that those procedures must be
“easy to access, easy to use (including by children)”.
That is an explicit reference to accessibility for children.
The hon. Member for Aberdeen North has also already referred to the fact that in both the children’s risk assessment duties and the adult’s risk assessment duties people’s characteristics, including whether they are a member of a particular group, have to be taken into account. The children’s risk assessment duties are set out in clause 10(6)(d). Children with particular characteristics —orientation, race and so on—have to be particularly considered. The fact that a clause on the children’s risk assessment duties even exists in the first place shows that specific and special consideration has to be given to children and the risks they face. That is hardwired right into the architecture of the Bill.
All the provisions that I have just mentioned—starting with clause 10 on children’s risk assessment duties, right through to the end of the Bill and the priority offences in schedule 6, on child sexual exploitation and abuse offences—show that, right throughout the whole Bill, the protection of children is integral to what we are trying to do with the Bill.
On the consultation that happened in forming and framing the Bill, really extensive engagement and consultation took place throughout the preparation of this piece of legislation, including direct consultation with children themselves, their parents and the many advocacy groups for children. There should be no doubt at all that children have been thoroughly consulted as the Bill has been prepared.
On the specifics of new clause 3, which relate to advocacy for children, as the hon. Member for Aberdeen North referred to in passing a moment ago, there is a mechanism in clause 140 for organisations that represent particular groups, such as children, to raise super-complaints with Ofcom when there is a problem. In fact, when we debated that clause, I used children as an example when I spoke about the “eligible entities” that can raise super-complaints—I used the NSPCC speaking for children as a specific example of the organisations I would expect the term “eligible entity” to include. Clause 140 explicitly empowers organisations such as the NSPCC and others to speak for children.
Kim Leadbeater
I agree wholeheartedly about the importance of the role of the Children’s Commissioner and she does a fantastic job, but is it not testament to the fact that there is a need for this advocacy body that she is advocating for it and thinks it is a really good idea? The Children Act 2004 is a fantastic Act, but that was nearly 20 years ago and the world has changed significantly since then. The Bill shows that. The fact that she is advocating for it may suggest that she sees the need for a separate entity.
Chris Philp
There is a danger if we over-create statutory bodies with overlapping responsibilities. I just read out the current statutory functions of the Children’s Commissioner under the 2004 Act. If we were to agree to the new clause, we would basically be creating a second statutory advocate or body with duties that are the same as some of those that the Children’s Commissioner already exercises. I read from section 2 of the Act, where those duties are set out. I do not think that having two people with conflicting or competing duties would be particularly helpful.
Alex Davies-Jones
I am grateful to the Minister for his support for Labour legislation. Does he acknowledge that we have different Children’s Commissioners across the nations of the UK? Each would have the same rights to advocate for children, so we would have four, rather than one focusing on one specific issue, which is what the Children’s Commissioners across the UK are advocating for.
Chris Philp
I do not have in front of me the relevant devolved legislation—I have only the Children Act 2004 directly in front of me—but I assume it is broadly similar. The hon. Member for Aberdeen North can correct me if I am wrong, but I assume it is probably broadly similar in the way—[Interruption.] She is not sure, so I do not feel too bad about not being sure either. I imagine it is similar. I am not sure that having similar statutory bodies with the same function—we would create another with the new clause—is necessarily helpful.
The Bill sets out formal processes that allow other organisations, such as the NSPCC, to raise complaints that have to be dealt with. That ensures that the voices of groups—including children, but not just children—will be heard. I suspect that if we have a children’s advocacy body, other groups will want them and might feel that they have been overlooked by omission.
The good thing about the way the super-complaint structure in clause 140 works is that it does not prescribe what the groups are. Although I am sure that children will be top of the list, there will be other groups that want to advocate and to be able to bring super-complaints. I imagine that women’s groups will be on that list, along with groups advocating for minorities and people with various sexual orientations. Clause 140 is not exclusive; it allows all these groups to have a voice that must be heard. That is why it is so effective.
My right hon. Friend the Member for Basingstoke and the hon. Member for Batley and Spen asked whether the groups have enough resources to advocate on issues under the super-complaint process. That is a fair question. The allocation of funding to different groups tends to be done via the spending review process. Colleagues in other Departments—the Department for Education or, in the case of victims, the Ministry of Justice—allocate quite a lot of money to third-sector groups. The victims budget was approximately £200 million a year or two ago, and I am told it has risen to £300 million for the current financial year. That is the sort of funding that can find its way into the hands of the organisations that advocate for particular groups of victims. My right hon. Friend asked whether the proceeds of fines could be applied to fund such work, and I have undertaken to raise that with the Treasury.
We already have a statutory advocate for children: the four Children’s Commissioners for the four parts of the United Kingdom. We have the super-complaints process, which covers more than children’s groups, crucial though they are. We have given Ofcom statutory duties to consult when developing its codes of practice, and we have money flowing via the Ministry of Justice, the DFE and others, into advocate groups. Although we agree with the intention behind new clause 3, we believe its objectives are very well covered via the mechanisms that I have just set out at some length.
Kirsty Blackman
There have not been all that many times during the debate on the Bill when the Minister has so spectacularly missed the point as he has on this section. I understand everything he said about provisions already being in place to protect to children and the provisions regarding the super-complaints, but the new clause is not intended to be a replacement for the super-complaints procedure, which we all support—in fact, we have tried to strengthen that procedure. The new clause is intended to be an addition—another, very important layer.
Unfortunately, I do not have at the front of my mind the legislation that set up the Children’s Commissioner for Scotland, or the one for England. The Minister talked through some of the provisions and phrasing in the Children Act 2004. He said that the role of the Children’s Commissioner for England is to encourage bodies to act positively on behalf of children—to encourage. There is no requirement for the body to act in the way the Children’s Commissioner says it should act. Changes have been made in Wales establishing the Future Generations Commissioner, who has far more power.
Chris Philp
As far as I can tell, the user advocacy body proposed in new clause 3 would not have the ability to compel Ofcom either.
Kirsty Blackman
But it would be a statutory consultee that is specifically mentioned in this provision. I cannot find in the Bill a provision giving Ofcom a statutory duty to consult the four Children’s Commissioners. The new clause would make the children’s advocacy body a statutory consultee in decisions that affect children.
Chris Philp
The Bill will require Ofcom to consult people who represent the interests of children. Although not named, it would be astonishing if the first people on that list were not the four Children’s Commissioners when developing the relevant codes of practice. The statutory obligation to consult those groups when developing codes of practice and, indeed, guidance is set out in clauses 37(6)(d) and 69(3)(d).
Kirsty Blackman
That is very helpful, but there are still shortcomings in what the Minister says. The Bill, as drafted, requires Ofcom to require things of other organisations. Some of the detail is in the Bill, some of the detail will come in secondary legislation and some of the detail will come in the codes of practice published by Ofcom. We broadly agree that the Bill will ensure people are safer on the internet than they currently are, but we do not have all the detail on the Government’s intent. We would like more detail on some things, but we are not saying, “We need every little bit of detail.” If we did, the Bill would not be future-proof. We would not be able to change and update the Bill if we required everything to be in the Bill.
The Bill is not a one-off; it will continually change and grow. Having a user advocacy body would mean that emerging threats can quickly be brought to Ofcom’s attention. Unlike the Children’s Commissioners, who have a hundred other things to do, the entire purpose of this body would be to advocate on behalf of children online. The Children’s Commissioners do an amazing job, but this is not their No. 1 priority. If the Minister wants this to be a world-leading Bill, its No. 1 priority should be to protect the human rights of children.
Chris Philp
I think the hon. Lady is being a little unfair to the Children’s Commissioners. Dame Rachel de Souza is doing a fantastic job of advocating specifically in the digital sphere. She really is doing a fantastic job, and I say that as a Minister. I would not say she is leaving any gaps.
These digital children’s safety issues link to wider children’s safety issues that exist offline, such as sexual exploitation, grooming and so on, so it is useful that the same person advocates for children in both the offline and online worlds.
Kirsty Blackman
The new clause asks for an additional body. It is not saying the Children’s Commissioners should be done away with. The Children’s Commissioners do an amazing job, as we have recognised, but the No. 1 priority, certainly for the Children’s Commissioner in Scotland, is to protect the human rights of children; it is not to protect children online, which is what the user advocacy body would do. The body would specifically give the benefit of its experience and specifically use its resources, time and energy to advocate between Ofcom, children and children’s organisations and groups.
The Minister is right that the Bill takes massive steps forward in protecting children online, and he is right that the Children’s Commissioners do a very good job. The work done by the Children’s Commissioners in giving us evidence on behalf of children and children’s organisations has been incredibly powerful and incredibly helpful, but there is still a layer missing. If this Bill is to be future-proof, if it is to work and if it is not to put an undue burden on charitable organisations, we need a user advocacy body. The Minister needs to consider that.
I appreciate that the Government provide money to victim support organisations, which is great, but I am also making a case about potential victims. If the money only goes to those who support people who have already been harmed, it will not allow them to advocate to ensure that more people are not harmed. It will allow them to advocate on the behalf of those who have been harmed—absolutely—but it will not effectively tackle potential and emerging harms. It is a key place where the Bill misses out. I am quite disappointed that the Minister has not recognised that something may be lacking and is so keen to defend his position, because it seems to me that the position of the Opposition is so obviously the right one.
Barbara Keeley
I wholeheartedly agree with what the hon. Member for Aberdeen North just said, but I wish to emphasise some elements because it seems to me that the Minister was not listening, although he has listened to much that has been said. I made some specific points, used quotes and brought forward some evidence. He feels that children have been consulted in the drafting of the Bill; I cited a YoungMinds survey that showed that that was very much not what young people feel. YoungMinds surveyed a large group of young people and a very large proportion of them had not even heard of the Bill.
The evidence of the young survivor of online grooming was very powerful. She very much wanted a user-advocacy body and spoke strongly about that. The Minister is getting it wrong if he thinks that somebody in that situation, who has been groomed, would go to a parent. The quote that I cited earlier was:
“Being groomed made me feel incredibly vulnerable, isolated, and weak. I felt I had no one who was on my side.”
There were clearly adults in her life she could have gone to, but she did not because she was in that vulnerable position—a position of weakness. That is why some kind of independent advocacy body for children is so important.
I do not think children and young people do feel consulted about the Bill because the organisations and charities are telling us that. I join all Opposition Members in supporting and paying tribute to the remarkable job that the Children’s Commissioner does. I quoted her setting out her worries about the Bill. I quoted her saying that
“the Bill does not do enough to respond to individual cases of abuse and that it needs to do more to understand issues and concerns directly from children.”––[Official Report, Online Safety Public Bill Committee, 24 May 2022; c. 16, Q22.]
That is what she said. She did not say, “I’m the person charged with doing this. I’m the person who has the resource and my office has the resource.”
Dame Maria Miller
I hope that I did not in any way confuse the debate earlier, because these two things are very separate. The idea of a user-advocacy service and individual victim support are two separate issues. The Minister has already taken up the issue of victim support, which is what the Children’s Commissioner was talking about, but that is separate from advocacy, which is much broader and not necessarily related to an individual problem.
Barbara Keeley
Indeed, but the Children’s Commissioner was very clear about certain elements being missing in the Bill, as is the NSPCC and other organisations. It is just not right for the Minister to land it back with the Children’s Commissioner as part of her role, because she has to do so many other things. The provisions in the Bill in respect of a parent or adult assisting a young people in a grooming situation are a very big concern. The Children’s Commissioner cited her own survey of 2,000 children, a large proportion of whom had not succeeded in getting content about themselves removed. From that, we see that she understands that the problem exists. We will push the new clause to a Division.
Question put, That the clause be read a Second time.