Localism Bill

Baroness Greengross Excerpts

Tuesday 12th July 2011 Lords Chamber

Moved by

[Baroness Greengross]

148: After Clause 95, insert the following new Clause—
“Local development: survey of area
(1) Section 13 of the Planning and Compulsory Purchase Act 2004 (survey of area) is amended as follows.
(2) After subsection (3) insert—
“(3A) The local planning authority shall undertake and publish a numerical assessment of the level of housing need and demand for all age groups in its area, together with its proposals for addressing such need and demand including plans relating to the provision of housing across all types and tenures.””

[Baroness Greengross]

My Lords, localism and the Localism Bill present many opportunities for people of all backgrounds and all ages to be involved in local decision-making and developing their neighbourhoods. I declare an interest as heading up a think tank, ILC-UK, which looks at the impact of demographic change on all our lives. Some of the research ILC-UK carried out showed that opportunities in the Bill may benefit only those who already enjoy an advantageous position in society and may not adequately protect and demonstrate the needs of those who are marginalised, particularly older people. Given that much of the development of new homes and communities is going to depend on neighbourhood development plans, which will be voted in by the local population, there is a danger that these plans may not adequately reflect the needs and wishes of marginalised groups in the local population.

Amendment 148 therefore seeks to strengthen the requirement for local authorities to produce adequate assessments of the housing needs of their local population. If they are to do this, it is essential that they have robust social and demographic data—they are certainly not going to make informed decisions about future housing provision without those data.

Section 13 of the Planning and Compulsory Purchase Act 2004 lists what councils should look for when producing housing need assessments. It states that an authority must keep under review matters that are likely,

“to affect the development of their area or the planning of its development”,

including,

“the size, composition and distribution of the population of the area”.

However, this piece of legislation has had very limited impact—indeed, in some cases it has sadly been completely ignored. One example of the failure to assess adequately the demand for new homes at a local level relates to the housing needs of older people.

I will quote two examples that were outlined in a recent report by the National Housing Federation. The Audit Commission’s review in 2010 of a sample of 112 local authorities’ financial plans showed that only 10 per cent made any estimate of the financial impact of provision for increasing numbers of older people despite a rapidly ageing population, as I think everyone will acknowledge. In October 2010, the National Housing Federation surveyed local councils on older people’s housing strategies—153 councils responded to the survey but 32 per cent of them had neither a strategy nor plans to develop one. This is partly because in many cases local councils do not include in their plans the need for retirement housing, even though the ageing population is rapidly expanding. Certainly the largest provider of retirement accommodation in the country, McCarthy and Stone, believes that is the case. Fulfilling the need for retirement housing would be a very good way of getting underused housing vacated for the use of the younger generations who are having great difficulty in getting on the housing ladder, but in order to do that we have to provide specialist housing for older people.

Localism will rely on the correct evidence base being in place, so it is essential that councils are required to produce those data. Without strong guidance provided by central government, the examples quoted here show that local authorities will continue to struggle to produce robust housing needs data. Amendment 148 seeks to address that problem. I beg to move.

--- Later in debate ---

[Lord Taylor of Holbeach]

One of the things the Bill provides for, as we have just discussed in Clause 95, is the duty to co-operate. It is not a light thing; it is a duty. I mentioned in the précis I gave in response to the noble Lord that there are sanctions against authorities whereby they run the risk of their local plan failing the examiner’s test. If the noble Lord would like me to write to him specifically on that I will do so. I apologise if communications have been such that he has not had the usual courtesies extended in terms of being informed about government amendments.

[Baroness Greengross]

I thank noble Lords who have supported this amendment and the Minister for responding in the positive way that he has. This is broader than social housing and, although I am really pleased to hear that everybody agrees that local authorities must know the facts in order to meet the needs of the local population, something is not working at the moment, as the examples I quoted demonstrate. Because there is so much good will towards getting this right, I hope that that is going to happen, with the work that is going to be undertaken and with the commitment of the Minister and the Government to get this right. I reserve my judgment as to whether anything needs to be taken further but, in the mean time, I thank noble Lords again and beg leave to withdraw the amendment.

Amendment 148 withdrawn.

Localism Bill

Baroness Greengross Excerpts

Tuesday 28th June 2011 Lords Chamber

[Baroness Gardner of Parkes]

My Lords, I shall speak to Amendments 111 to 114. Part 2 makes it possible for a Minister to require a local authority to make a payment in relation to an EU financial sanction imposed on the UK by the Court of Justice of the European Union if the Minister is satisfied that the authority caused or contributed to the infraction of EU law. The amendments in my name, Amendments 111 to 114, would amend Clause 31, which among other things sets out the requirement for the Secretary of State to publish a statement of policy setting out the general principles on how the power to pass on all or part of the EU financial sanction will be exercised and the amounts determined. Many of the points that I am going to cover were covered also by the previous speaker. For that reason, there is quite a bit that we have in common.

Amendment 111 would amend Clause 31(4) to require the policy statement also to contain details of the arrangements for the appointment, constitution and operation of an independent review panel. Amendment 112 would require the Minister to take into account relevant determinations of the independent review panel when exercising his functions under this part of the Bill. Amendment 113 would make an EU financial sanction notice subject to the new clause as introduced by Amendment 117. Amendment 114 would determine the relevance of any determination issued by the independent review panel.

Amendment 117 would insert a new clause into the Bill to allow local and public authorities which have received an EU financial sanction notice to refer the notice to an independent review panel, as mentioned by the noble Lord, Lord Tope. The new clause sets out the grounds on which such a referral can be made and provides that the independent review panel may review any finding of fact on which the financial sanction notice was based. These grounds include if a Minister,

“failed to exercise a power conferred by an enactment, and that failure contributed to the infraction of EU law (whether directly or indirectly or by impeding any local or public authority in its attempts to comply with EU law)”,

or,

“did not follow the procedures set out in this Part or in the warning notice before giving the financial sanction notice”,

or,

“ought to have exercised any discretion under this Part or the warning notice differently”.

The new clause requires the independent review panel to determine the validity of the grounds of the referral and to provide a copy of its determination to the Minister who issued the EU financial sanction notice and the local or public body which received it. These amendments stem from the significant amount of concern, already mentioned, that has arisen from the provisions in this part of the Bill since it was first published last December. Throughout the Bill’s passage these concerns have been voiced by Parliamentarians of all parties and are shared by the Mayor of London, the London Assembly, London Councils and the Local Government Association.

Understandably, the main area of concern has focused on the ability of a Minister to pass on a fine without any form of judicial or independent oversight. The need for independent oversight is particularly vital when one considers the complexity of the factors leading up to any infraction, not least in the area of air quality—I must here declare an interest in that where my home is in London is the most polluted air in the whole of the UK—and the fact that it is more than likely that one of the parties responsible for any breach will be the Government themselves. This concern was voiced eloquently by Jeremy Smith, barrister and former Secretary-General of the Council of European Municipalities and Regions, in the Municipal Journal in February. He said:

“There is, however, a wider point of concern about Part 2 of the Bill. There is no independent decision-maker. The minister takes the decision to make the local authority pay—even though central government may be partly or largely responsible for the infraction in the first place, for example, through delayed action, poor drafting, or for myriad other reasons. This means the minister may be simultaneously prosecutor, judge, jury—and co-defendant. This is surely not a healthy legal precedent … Therefore, Part 2 of the Localism Bill needs fundamental rethinking. If there is to be a claw-back provision at all, it should not be ministers who decide, since central government is almost certainly an interested party. The process should be for the minister to refer the matter to the High Court, or independent arbitrator, to determine any fair apportionment of the Article 260 fine imposed by the ECJ. The independent decision-maker can then take into account every party’s share of responsibility”.

The complexity of any infraction process and the need for independent oversight has been reinforced by my noble friend Lord Attlee in this House only recently. In response to an Oral Question from the noble Lord, Lord Berkeley, on air quality during the 2012 Games and who is responsible for this matter, my noble friend Lord Attlee responded:

“Everyone is responsible: the Government, the mayor, TfL, LOCOG, the ODA and, most importantly, individuals who make their own transport decisions”.—[Official Report, 23/5/11; col. 1583.]

While I thank my noble friend Lord Attlee for his frank assessment of a complex situation, his words highlight not only the difficulty any Minister would have in apportioning responsibility, and a subsequent fine, for any infraction but also the fact that the Government will, in almost all instances, be an interested party, as I mentioned previously.

It is for this reason that I believe these amendments provide us with a way of building in the safeguards that are so vital to making this part of the Bill acceptable both to your Lordships’ House and the broader community of local government beyond; a community that we must remember has no role in negotiating the very European legislation which could, if these clauses remain unchecked, be presenting them with a very substantial bill. Such a bill would be unpalatable at the best of times, let alone in the current financial landscape.

These amendments do not undermine the principle of this part of the Bill—a principle which was first outlined by the Government in Defra’s consultation documents on the natural environment White Paper last summer—but they begin to build in the safeguards that will be necessary for the relevant stakeholders to have confidence in the process outlined in the policy statement. It is vital, therefore, that local or public authorities have the ability to refer any EU financial sanction notice to an independent review panel; a panel to whose written determination the Minister must have regard. I understand that the Government have already been in discussions with the GLA, the LGA and London Councils on the formulation of a draft policy statement and I hope that these amendments will facilitate further discussions on getting that statement right. It is vital that any arrangements for,

“the appointment, constitution and operation of the independent review panel”,

as provided for by Amendment 111, are sufficiently transparent and robust to garner the support of those who will be subject to this regime. I hope that the Minister will view these amendments as a helpful way of building consensus, something which your Lordships’ House likes to achieve. They are essential if all parties are to have confidence in this part of the Bill.

[Baroness Greengross]

My Lords, first, I declare an interest as the vice-president of the Local Government Association. I decided to table Amendments 115 and 116 in this group because there is such widespread fear, some of which we have heard about today, in many local authorities and in other areas that this clause relating to the imposition of EU fines could be used as a mechanism for the Government to unload their own responsibilities onto those same authorities. That fear is absolutely understandable.

In her amendments the noble Baroness, Lady Gardner, suggests an ingenious mechanism for operating the system. Yet I am sure she would agree that, like other suggestions that have been made—for example, by the noble Lord, Lord Tope—it is a mechanism and no more. That leaves open the basic principles upon which the mechanism would operate. It is a bit like establishing a court of law without establishing the laws upon which it will base its judgment.

To my mind, those principles are very clear. Some people, in addressing this problem, have been arguing that EU fines should never be payable by local authorities. I find that a rather strange argument. In so far as it is prompted by the fear that a future Government might seek to use the legislation to pass their own responsibilities onto local authorities, it is, as I said, understandable but the solution is not the mere deletion of the clause. For local authorities the upside of the Bill is that, at long last, they get the powers that they should have. I totally agree with that but if they have the rights and the powers, they must surely accept the responsibilities that go with them. It must be right that if a local authority does something which, in part or in whole, results in the imposition of an EU fine it should, to that same extent, bear the responsibility. That is all this amendment calls for.

The amendment is merely a clear statement of the principle upon which the mechanisms for deciding the issue will operate. If I might be clear again: it merely says that if it can be proved,

“beyond reasonable doubt that the infraction of EU law has arisen, wholly or in part, as a direct result of the actions of the local … authority … that … authority should be responsible to that extent”.

[Lord Beecham]

In terms of proving “beyond reasonable doubt”, would the noble Baroness accept that the arbitration procedure would be a legitimate forum within which that burden of proof would need to be discharged or is she suggesting some other mechanism, including the courts, by which that test would be applied?

[Baroness Greengross]

I am not suggesting the detailed mechanism now. I agree with the noble Lord that we have to get this clear but I am just trying to clarify the issue. I agree that the phrase “beyond reasonable doubt” actually does no more than bring with it a number of legal arguments and problems. Because this is a difficult thing to prove, if the Minister were to indicate, for example, that she would support such an amendment subject to those words being deleted, I would be happy to omit them.

Railways: Public Procurement

Baroness Greengross Excerpts

Tuesday 30th November 2010 Grand Committee

Asked by

[Baroness Greengross]

To ask Her Majesty’s Government what public procurement lessons they have learnt from the railways.

[Baroness Greengross]

My Lords, it would seem that in the future more and more public services will be procured by local authorities contracting with the private or voluntary sectors actually to deliver those services. The object of this debate is not to discuss the rights or wrongs of such a policy; rather it is to try to make sure that if that is the way we are going, we should try to do this as well as we possibly can. To me that must mean not merely looking forward to what we want to achieve but, just as importantly, looking back to learn the lessons of past experience. At this point, I stress again as strongly as I can that this is not a debate about the rights and wrongs of public procurement, nor is it meant as a moment at which we revisit our views on the role of the state in our lives. Surely what we have learnt from all of this can and should guide us in future exercises.

Probably one of the biggest exercises in public procurement that we have had was the privatisation of the railways. With this in mind, a short while ago I set up a small group of experts to help me identify some of those lessons, and I would like to thank them for their enormous contribution. I also thank the International Longevity Centre-UK, which I am privileged to head, for its sponsorship of this work.

What, then, are the lessons that we draw? The first and perhaps the most overriding thing in any public procurement exercise is that the reasons and objectives of the exercise must be clearly laid out. It is essential that the Government are honest not merely with the public but with themselves. Only in this way can the delivery be monitored, success or failure assessed, and changes, if necessary, made.

Secondly, in negotiating the contract, experience has shown that it is essential that a realistic and workable alternative method of operation is in place first. A Government without a credible fallback situation are not in a strong position when negotiating the original contract or in its subsequent enforcement.

Third is the need for proper risk allocation. In any public procurement, the Government need to be absolutely clear about what risks they want to allocate to the operator and why and how they intend to do that. For example, while some risks that arise from changes in public policy relating to the contract should clearly not be taken by the contractor, if the operator wants the profits of public procurement, it must surely take the commercial risks. It does so in its dealings with the commercial world—some people would say the real world—so why not in its dealings with the Government? From rail privatisation, one will have seen too often such risk merely being transferred back to the Government.

Fourthly, the Government’s ability to enforce the contract properly is essential. All contracts should incorporate, for example, an adequately-sized bond, to be forfeited if the contractor or the franchisee walks away from the contract. That should be accompanied by pre-defined penalties, to be levied for non-delivery at the end of, or even—dare I suggest?—during, the contract.

[The Deputy Chairman of Committees]

My Lords, there is a Division in the House. Unfortunately, the Committee must adjourn for 10 minutes.

--- Later in debate ---

[Baroness Greengross]

My Lords, I have already spoken about the need for the Government to be clear and honest about their objectives in any procurement exercise, and I have stressed the need for a workable and realistic alternative to give strength to the Government’s hand. I cannot stress strongly enough the need for a proper risk allocation. Next is the Government’s ability to enforce the contract properly. It is essential that all contracts should incorporate an adequately sized bond, to be forfeited if the contractor or franchisee walks away from the contract. That should also be accompanied by predefined penalties to be levied for non-delivery at the end of, or dare I suggest during, the contract. If the contractor is a wholly-owned subsidiary, these should also be guaranteed by the parent company. Finally, whatever mechanisms are used, it is absolutely essential that they are made subject to independent and credible audit. Past arrangements have proved to be deficient in this respect and there is considerable scope for improvement.

These are just some of the lessons that this group of experts drew from the history of rail privatisation. For anyone who may be interested, I would be happy to arrange to send them a copy of the report. May I ask the Minister—this long preamble does not change the fact that this is a Question for Short Debate—what he has learnt from past privatisation? What lessons have the Government learnt? Above all, can we have an assurance that these lessons will be properly reflected in any future public procurements? I am sure the Minister will understand that this debate is not just about the railways and that he will answer with that in mind. I intend to broaden my work on procurement with the help of experts in their field to look at education, the Prison Service, healthcare and housing to see how we can all learn from these lessons and ensure better procurement in the future. I am grateful to your Lordships for hearing me this afternoon.

As someone who has spent most of my life working in the voluntary sector, often interacting with the private sector, it is not surprising that I have strong feelings about the procurement of services through these sectors. I know only too well how well, and sometimes sadly how badly, they can deliver services. The lunacy whereby we recently learnt that it would cost more money to cancel the building of two aircraft carriers than to have them completed must not be allowed to continue. It sometimes seems that the inmates have truly taken over the asylum. They say that hindsight gives 20:20 vision. Let us at the very least resolve to learn from the pains and tribulations of the past. I hope the Minister can assure me that Her Majesty’s Government will do just that in the future.

Transport: Bus Stops

Baroness Greengross Excerpts

Monday 22nd November 2010 Lords Chamber

Asked By

[Baroness Greengross]

To ask Her Majesty’s Government what powers exist to ensure that vehicles other than buses do not park in bus stops.

[Earl Attlee]

My Lords, the Traffic Signs Regulations and General Directions 2002—TSRGD—include powers to provide bus stop clearways, which restrict parking and loading where appropriate. Those traffic authorities granted civil parking enforcement have powers under the Traffic Management Act 2004 to enforce against contraventions. Elsewhere, this is a matter for the police.

[Baroness Greengross]

I thank the Minister for that reply. Would he not agree that it is very regrettable that a number of local authorities do not seem to use their existing powers to make sure that the rules are enforced? A lot of transport consumer bodies have raised this issue because many disabled people, lots of older people and young parents with buggies find that they cannot get on to what are now generally accessible buses because there is a car parked in the way. Sometimes cyclists come up very quickly on the nearside and make them very scared. This is not working properly. Is there anything the Minister can do to make sure that local authorities use their enforcement powers?

[Earl Attlee]

My Lords, we encourage local authorities to use the powers available to them. A key point about bus stop clearways is that you do not need a traffic regulation order to set one up so they are easy for local authorities to implement.