European Union (Withdrawal Agreement) Bill

Debate between Baroness Hamwee and Lord Greaves

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Baroness Hamwee]

I was not seeking to have a go at the noble Viscount. If judicial review has grown inappropriately, that is a separate matter. It is dangerous if the Executive are seeking through this provision to protect themselves from proper oversight by the courts.

In the Commons, a Member said on rights of redress for EU citizens that

“appeal rights and judicial review are enshrined”.—[Official Report, Commons, 7/1/20; col. 330.]

The Minister endorsed that, at col. 336. But Clause 11(3) seems to “deshrine”—if that is a word—judicial review. I too am concerned that at the least we understand what we are doing, but, if it is as I understand it, that we do not do it.

[Lord Greaves]

My Lords, I added my name to the amendments in the name of the noble Lord, Lord McNicol of West Kilbride, on behalf of the Liberal Democrat group. I have one or two other amendments in this group. One is on the judicial review point, and I am perfectly happy to leave the lawyers to argue the case on that, which they know far more about than I do.

Amendment 6 relates to Clause 11(1), on appeals against citizens’ rights immigration decisions, which says:

“A Minister of the Crown may”—


I would prefer “must” but I accept that “may” means it is probably going to happen—

“by regulations make provision for, or in connection with, appeals against citizens’ rights immigration decisions of a kind described in the regulations.”

Clause 11(2) defines a “citizens’ rights immigration decision” for the purposes of the Bill and it talks about various kinds of entry clearance, decisions in connection with leave to enter or remain, a deportation order, and

“any other decision made in connection with restricting the right of a relevant person to enter the United Kingdom”.

That all seems fairly comprehensive. What I do not understand, which is why I tabled Amendment 6 to probe this, is what is meant by

“of a kind described in the regulations.”

Does it mean that some of the things listed will not be covered by the regulations and the right to appeal? If so, what is the Government’s thinking about which ones they may be, or do they intend that they will all be covered, in which case why does the kind have to be described in the regulations since it is set out here in the Bill?

On the question raised by the noble Lord, Lord McNicol of West Kilbride, and other noble Lords, it is fairly clear that many people who have been given pre-settled status because they have not been living in the United Kingdom for five years or, in some cases, cannot prove that they have been doing so. There is also a significant number of people—I have no idea how many—who have been living here for five years but whose applications have been found difficult, for some reason or other. Rather than refusing them, the scheme is giving them pre-settled status because establishing the true facts would take a lot of time, energy and workload and, as the Minister said, millions of people are applying. It would be helpful to know what proportion of the people who have got pre-settled status have been, or say they have been, living here for more than five years—in some cases, they have been here pretty well all their lives—and have been given that status to give them something without prolonging the argument. In those cases, does the provision that they will automatically get settled status once they have been here for five years still apply?

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Greaves

Wednesday 8th January 2014 Lords Chamber

[Lord Greaves]

My Lords, I suppose that I ought to say thank you. As my noble friend Lady Hamwee said, when amendments come back like this from the Government, you sometimes think that all the time and effort spent in Committee has produced something worth while. Therefore, I am very grateful to the Government: when I saw this particular amendment, I thought that it was a late Christmas present.

It is an odd amendment because it is an odd new clause, including two completely different things. However, both are very welcome. The reference to the rights of freedom of expression and freedom of assembly are extremely useful. With this Bill—and all the fuss this afternoon bemused me a little—I have always been of the view that the public spaces protection order provisions had the potential to be a greater danger to freedom of speech and assembly and to the civil right to protest and so on than the injunctions for the prevention of nuisance and annoyance. The reason, as the Minister said when he introduced an earlier amendment, is that PSPOs are about territory and areas, and therefore, unless very specific provisions are made, they apply to everybody. Unlike IPNAs, which are injunctions against individual people or groups of people, as I understand it public spaces protection orders, which can last for up to five years and are renewable, would apply to everybody and stop normal activities such as handing out leaflets, parading with banners, making speeches and holding meetings. Therefore, this part of this new clause is extremely useful and valuable and the Government are to be congratulated. I am a little bemused as to why on earth they did not just produce a clause such as this and attach it to IPNAs, as that might have defused a great deal of the fuss earlier today. However, that is for the Government to think about, not me.

The publicity stuff is useful. A lot of this brings together what is already in different bits of the Bill and puts it in one place. The specific provisions are very useful. My amendment is just to query the difference in subsection (4) of the proposed new clause, under the definition of “necessary publicity”,

“in the case of a proposed order or variation, publishing the text of it”,

and,

“in the case of a proposed extension or discharge, publicising the proposal”.

I am not quite sure what the difference is there, and this is to probe that in a minor way. I am grateful for the inclusion of the county councils and parish councils under “the necessary notification”, which is common sense, but sometimes you put forward amendments on these matters and common sense does not always apply. On this occasion it has and again I am very grateful.

My final point is that one of the things that my friend Norman Baker sent to me was a draft of the Anti-social Behaviour, Crime and Policing Act 2014 (Publication of Public Spaces Protection Orders) Regulations. This point is not exactly in this amendment but perhaps noble Lords will bear with me for two sentences. The regulations set out the instructions to local authorities that where a public spaces protection order has been made it has to be published on the council’s website and the council has to,

“cause to be erected on or adjacent to the land in relation to which the public spaces protection order has been made … such notice … as it considers sufficient to draw the attention of any member of the public using the land to the fact that a public spaces protection has been made and the effect of that order being made”.

It is the same for variations.

Again, this is very welcome. The fact that it will be in regulations is welcome, because councils will not be able to get out of it. If the notices fall into disrepair over time, they will have to replace them and keep the information before the public. I put these amendments forward in Committee, and I am grateful that the Government are taking them up and putting them into a statutory instrument regulations. I thank the Government for this amendment and those in relation to the community remedy documents, where, as the Minister said, the Government have taken up my suggestions about consulting the local authority. That will be in the Bill. This is all excellent stuff. Thank you very much.

[Baroness Hamwee]

My Lords, may I say a word following on from Amendment 54? It is on a matter that I raised in Committee, which is how parts of this Bill fit in with the existing nuisance legislation.

My noble friend Lord Clement-Jones and those with whom he worked on what is now the Live Music Act 2012 remain concerned about the possibility of local authorities using public space protection order powers when there is existing nuisance legislation that could be used against a particular nuisance—though I think that they do not regard much music as “nuisance”. There have been some awkward examples of some local authorities banning busking and other live music-making during “reasonable hours”; and when I say that, I would probably agree that they are reasonable, but I do not particularly want to bring that into the equation here. During hours when there have been a small number of complaints, the local authorities would argue that such action is reasonable and there is a concern that the powers might be used far more extensively than the Government would have in mind. They have spoken to me about balancing competing rights between freedom of expression and the right to peaceful enjoyment of one’s possessions—in this case the items that are being used for busking.

I am making the point now in the hope that the Government may be able to say something about guidance on the fit between the statutory powers under this Bill and statutory nuisance. I raised the issue at the previous stage following discussions with the Chartered Institute of Environmental Health. I know that officials are working on this area of the guidance but I also know that those who have been in touch with me will be grateful if they can have further discussions on and further input into what will now be statutory guidance. Clearly those who are working on these issues day-to-day still feel uncomfortable that their concerns about what I called “workability” have not quite been taken on board.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Greaves

Monday 25th November 2013 Lords Chamber

[Baroness Hamwee]

In moving Amendment 41B, I will speak to Amendments 44A, 44B, 49A and 55A. The amendments take us to Clause 56, dealing with the duration of public spaces protection orders. I entirely take the point that Clause 55 is targeted at activities, but I also take my noble friend’s point that such an order affects everyone. After all, the title of the order is about protecting space, even though the language of the Bill is about the quality of life of the people who may be affected.

The orders may last for up to three years with, I understand, an unlimited number of extensions. The Minister said that he shares the view that public space should be for everyone to enjoy. I take a more urban view than that of my noble friend Lord Greaves. Where space is very scarce in an urban environment it is important not to restrict it. I am aware that one can argue this both ways: one can also say that it is important to ensure that activities do not take place that mean that it is not enjoyable for everyone. It is not just an urban or even suburban or rural issue.

My amendments would provide for the duration to be no more than a year with a single extension, and for there to be no new order dealing with substantially the same space until the expiry of a year—a sort of anti-avoidance provision. For all the reasons already discussed, I would be very concerned about having something that becomes permanent or semi-permanent, but I have a more practical concern as well—it is in part philosophical. My practical concern is: if the order is to stop undesirable activities, whatever they may be, taking place on a particular space, how does one assess that the threat has passed? If the order goes on and on, the culture, local habits and so on of the area may have changed necessarily, and we will never know whether we have been successful, as we should have been in that we have prohibited an activity, or whether we have actually changed behaviour.

Also, if an order goes on and on, it is difficult to see how it can be challenged in the wide, democratic sense. Clause 62 is about challenging validity, but that is different. However, I have Amendment 55A—a pretty ropey amendment, I am afraid, but it would allow some sort of challenge. It is not a good amendment because the clause is about validity, but it will enable me to raise the issue with the Minister on how one challenges such orders. I beg to move.

[Lord Greaves]

My Lords, I have one amendment in this group, which covers very much the same ground as covered by my noble friend Lady Hamwee, so I shall not pursue it further. I merely support everything my noble friend said.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Greaves

Monday 25th November 2013 Lords Chamber

[Lord Greaves]

My Lords, on behalf of parish and town councils I thank the Minister for his slightly helpful comments at the end of his remarks. Perhaps, before the Bill is implemented, the noble Earl, Lord Lytton, and I and the NALC might get together to see whether we can put forward a clear, evidence-based proposal to the Government which they might consider seriously.

I thank the Minister for his helpful reply to my Amendment 22QYA, which I had forgotten to speak to.

[Baroness Hamwee]

My Lords, last week I, too, had a long reply to an amendment to which I had not spoken. Perhaps that is the way to go.

On the last of my amendments on the power to issue CPOs, I asked whether everyone falling within the description of what will be the new paragraph 1ZB in the schedule to the Police Reform Act would have the power. I think that the Minister is saying that everyone who falls within that description will have the power and not only particular individuals who have received training. Am I right in understanding that?

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Greaves

Wednesday 20th November 2013 Lords Chamber

[Baroness Hamwee]

My noble friend is absolutely right. I apologise to the Committee. There is such enthusiasm to move on today that I was moving too fast. I must give my noble friend an opportunity to accept or possibly reject my Amendment 22E. It would provide in Clause 21 that the court must receive evidence about suitability. There must be a proportionality element in the requirements provided in the orders. I may be told that this yet again is something that is dealt with in guidance.

Amendment 22G takes us to the duration of the orders. We are presented in the case of under-18s with a fixed period of not less than two years or an indefinite period. I suggest that there should be a limit for everyone, as there is for under-18s. The criminal behaviour order can include a lot of requirements and restraints, which could, if they go on indefinitely, have a disproportionate impact. To have something hanging over one’s head indefinitely could be a disincentive—you could give up hope of ever getting it right.

Amendment 22H would provide that reviews are not confined to under-18s, which continues more of that thought. Amendments 22J and 22K are consequential on that. I beg to move.

[Lord Greaves]

My Lords, Amendment 22KA is a modest attempt to help the Government to get their legislation correct. It refers to the review of criminal behaviour orders which has to take place under Clause 27. Clause 28(2) states:

“The chief officer, in carrying out a review under section 27, must act in cooperation with the council for the local government area in which the offender lives or appears to be living; and the council must co-operate in the carrying out of the review”.

Clause 28(4) states:

“In this section ‘local government area’ means—

(a) in relation to England, a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly”.

That definition is archaic and does not apply to the local government map of England as it now stands. It misses out large tracts where there are no districts and where there are unitary counties.

There are other parts of this legislation—under IPNAs and community protection notices, for example—that get it right and refer to counties where there are no districts. They clearly have to be added. My amendment adds this so that large parts of England are simply not missed out. Since the Bill refers at the moment to districts or London boroughs, I assume that the district or lowest level is meant. Where there is a unitary authority only—a county such as Cornwall, Northumberland or various others—that needs to be added. This is in the spirit of being as helpful as possible to the Government, as I always am.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Greaves

Wednesday 20th November 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I should probably start by saying, “as I was saying”. I apologise again to the Committee for some confusion about an earlier amendment. Members of the Committee were either excessively polite, in the manner of your Lordships’ House, or completely unengaged with what I was saying, and did not interrupt me for some time. I am grateful to the noble Lord, Lord Ahmad, for eventually doing so.

I do not want to repeat what I have already said, but refer the avid reader of Hansard back to the report of earlier this evening. I will repeat my requests that we discuss before Report the relationship between how statutory nuisance and nuisance under the Bill are dealt with. Community protection notices, particularly noise abatement notices, address very similar problems. I am aware that guidance will have a role to play here, and I hope to contribute to it.

Amendment 22NA, which provides that the detriment under Clause 40(1) should be significant, speaks for itself. It should be more than a de minimis matter. Amendment 22ND deals with the possible clash of the use of CPNs and existing statutory powers, as does Amendment 22NE. Amendment 22NF, unlike the earlier amendments, seemed desirable to me—I do not mean that the others are not desirable but that this is my drafting, not someone else’s. I suggest that the community protection notice should explain not only the points set out in Clause 40 but the remedial action proposed given the powers to be provided under Clause 44, which will essentially allow the local authority to go in, carry out work and charge.

Amendments 22QD and 22QE take us into Clause 43, which is about appeals against community protection notices, and are probing in the hope that the Minister will be able to confirm that modification of a notice which the magistrates’ court may make on appeal can be only in favour of the applicant and that modification can include variation by reducing the requirements—in other words, that the appellant will not be in danger of finding himself with harsher restrictions or provisions. I beg to move.

[Lord Greaves (LD)]

My Lords, I have tabled Amendment 22QC in this group, which I will comment on in a minute or two. Since this is the first group about community protection notices, I thought that it might be helpful to say a few things on the back of that about them generally. Of all the new measures to deal with anti-social behaviour that are being put forward by the Government in their new battery of weapons, I am most enthusiastic about community protection notices if they are done in an appropriate way.

My first question to the Government is about those notices, which may be issued on reasonable grounds that,

“the conduct of the individual or body is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality, and … the conduct is unreasonable”.

In what ways does this differ from the criteria and the test in Clause 1 for serving an IPNA? These require that a person,

“has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person”.

What is the difference between “nuisance” and “annoyance” on the one hand, and on the other conduct that,

“is having a detrimental effect … on the quality of life”,

of people in the locality? I am not entirely sure what the difference in meaning is but perhaps the Minister can tell me.

Secondly, what kind of things are community protection notices intended to deal with? Clearly, they are intended to deal with different things from injunctions to prevent nuisance and annoyance. There is a hint in Clause 54, which talks of repeals and transitional provisions of litter abatement notices and two other litter notices under the Environmental Protection Act 1990, and of defacement removal notices under the Anti-social Behaviour Act 2003, which refer to graffiti really. What else is there? Is this just about litter and graffiti? I am sure that it is not, but for what other things do the Government envisage that this potentially wide-ranging power could be used?

For example, could it be used to deal with accumulations of rubbish in the back yards of empty houses, or of houses where tenants do not care too much about such things? Could it be used to deal with odour, if someone was making regular bonfires and causing lots of smoke in the area? Could it be used for animal nuisances, such as dog dirt? Could it be used for somebody who insisted on hanging out their washing across the front street rather than in other appropriate places at the back? Could it be used against gatherings in the street—for example, if people wished to use it, in the complaints being made at the moment about Roma people in Sheffield? Would this be an appropriate way of dealing with that or, whether or not it is appropriate, could it be used for that? It would be very helpful if, after this debate, the Minister could list 10 useful things it could be used for. Then we will have a fairly good idea of whether those of us who are local councillors and so on might consider that this is a power which we can use.

There are some concerns that a number of these powers and the existing ASBOs criminalise anti-social behaviour if notices are not complied with, although things such as litter already involve the criminal law. If this is an exciting new power that can be used for all sorts of things in a proportionate manner, there are concerns about the lack of resources, and of new resources, for local authorities to use it. As I keep saying in debates in this Committee: tackling anti-social behaviour and nuisances, and helping to make our residential streets more civilised places at local level, is resource-intensive. It means lots of different agencies co-operating.

For example, in my ward, every month there is a local environmental audit. People from the local neighbourhood policing team, localities officers, councillors and people from the council’s anti-social behaviour unit and its refuse collection and litter sections go round with a little wagon. If there are any accumulations of rubbish, they do not bother serving notices on anybody; they just stick it in the wagon and take it away. That kind of thing is quite resource-intensive and, at a time when all local authorities are under real pressure, it is the kind of thing that will be found difficult to keep going. Yet these powers will be no good whatever unless there are people on the ground who can investigate reported problems, see problems for themselves and have the resources to serve the notices, follow them up and deal with the people.

Amendment 22QC probes what happens in a slightly interesting situation. If you serve a notice in relation to a nuisance that refers to a piece of land and the person who you are serving it on transfers its ownership from, for example, one company that they own to another that they own or are involved in, or to their wife or their husband, you have to start all over again because you are dealing with different people. The proposal I am putting down here does not work but is there to probe. Have the Government got any ideas about how to deal with this? A remarkably high proportion of anti-social behaviour problems are caused by a few individuals who just enjoy playing the system and opposing the council. They regard it all as a great game. How on earth we deal with these people, I do not know but if my noble friend the Minister has any ideas, I would certainly like to hear them.

Localism Bill

Debate between Baroness Hamwee and Lord Greaves

Monday 17th October 2011 Lords Chamber

[Baroness Hamwee]

Perhaps I may clarify that I am not suggesting that the hole is of the noble Earl's making.

[Lord Greaves]

My Lords, that reminds me of a song about digging a hole, but perhaps we should not go into it. In Committee, I attempted to search for a compromise on this and to help the Government to clarify what they were saying. I spend a lot of time trying to do that on Bills. The Government should be congratulated on and thanked for the huge amount of time and effort that was put in by Ministers and their civil servants in the Bill team, and by their ministerial colleagues in the House of Commons, to try to sort out a bit of a mess—perhaps more than a bit of a mess—that has resulted from what some of us would say was the rather hasty addition of this clause at the end of the procedures in the House of Commons. They made a huge effort, and I have no doubt that the amendment moved by the noble Earl is an improvement. It helps a bit. My noble friend says that it takes him further into a hole, but I am not sure that that is the case; it probably keeps his head above water. However, it is our clear view after reflection throughout the summer that far and away the best thing to do would be to remove the clause altogether. That is why I support the amendment eloquently spoken to by my noble friend Lady Parminter.

I want to make a couple of points—and one point in slight jest, which I will make now. My noble friend Lord Attlee said that one argument for accepting that this clause should remain is that it does no harm. I must say that I am so used to Governments telling us that amendments that we put forward may not do any harm but are not necessary that I think the boot is on the other foot now. Every time I move an amendment, while the noble Lord is taking the clause for the Government I will look forward to reminding him that my amendment does no harm and therefore should be passed with acclamation.

I would like to make two serious points. There is a very clear difference between CIL and Section 106, for example, which are themselves tied to an application and cannot be untied in any way, and the new homes bonus, which is not tied to a particular application and can be tied, as I think my noble Friend, Lord Attlee, said, only by a clear decision, a resolution presumably, of the council that will receive the new homes bonus. That is the real difference. The noble Earl said quite clearly that it can be taken into account only if it is tied to the application by the receiving council.

I have been thinking about this. In a possible case study, which may happen more often than people might imagine, a big development may result in a lot of new homes bonus and a significant amount of money coming to that council. The use of that money might be politically controversial and contested within the council. In advance of that money coming, the council, the executive, the cabinet, or whoever it is that makes decisions about its allocation, might corporately pass a resolution that makes it quite clear that when it comes, and if planning permission is given, the money will be tied to a project linked to that development. However, it is controversial and the opposition on the council does not agree to it and campaigns against it. Then there are some elections and the opposition wins them, and this large amount of money is taken out of that project and put somewhere else. Once a planning decision is made and issued, that is it; it cannot be revisited by the council. However, decisions about how to allocate money can be revisited whenever the council wants to revisit them. What happens if the development is clearly given on the basis, say, of flood damage or a new swimming pool in the middle of the estate that is linked to that development, and planning permission is passed and the council later changes its decision about how to use that money? They might have a huge budget crisis. Perish the thought that any council has a huge budget crisis nowadays, but if does have a huge budget crisis, the council may find that it simply has to put this money into the general fund in order to keep its head above water. It is quite clear that that could happen. What is the legal position? I do not believe that anybody can do anything about it, except that that planning permission will have been given on false pretences.

Localism Bill

Debate between Baroness Hamwee and Lord Greaves

Monday 10th October 2011 Lords Chamber

[Lord Greaves]

My Lords, this is the other group of key amendments in this part of the Bill. I speak to four others in the group, and there are two more in the group from my noble friend Lady Hamwee. These amendments are all about the process of procurement once an expression of interest has been accepted from the relevant body. The problem is that once the expression of interest is accepted, the procurement procedures roll forward automatically. The kind of procurement may vary according to the scale of the operation. It could be very small—for example, taking over a local pocket park. It could be modest, such as meals on wheels in a village. It could be a bit larger, such as running a village hall, an estate community centre in a town or a local library. It could be quite substantial, such as providing adult domiciliary services across a district, refuse collection and recycling across a large borough, or county library services. So the challenge, at least in theory, could apply to a wide range of services.

All these processes will have to be carried out according to basic standards such as openness, transparency, non-discrimination, equal treatment and proportionality, which, apart from anything else, are imposed by the relevant European directive, which was transposed into the public contracts regulations in 2006. As I understand it, and perhaps the Minister can confirm this, the underlying system is unchanged relating to contracts by local authorities that contract out services.

In addition, we have the standards of auditing and supervision by, at the moment, the Audit Commission, by the system that will replace it, by the councils’ own standing orders and by financial regulations. As I understand it, the community right to challenge contracts will all be bound by existing regulations in this way. The key cut-off is imposed by European rules and public contract regulations. Those regulations are set out in euros so the monetary threshold varies a bit according to how the euro goes up and down, but I am assured that it is around £156,400. That is the threshold over which the annual value of a service must be open to tender throughout the European Union.

The fear and the danger is therefore that the community right to challenge could open the way to a new and rather random form of compulsory competitive tendering and the takeover of relevant services by large commercial companies, even if that might be against the wishes of the principal council—the “relevant authority”, in the jargon of the Bill—and the community group, the parish council, the charity or whichever relevant body put forward the bid.

Again, we have had a large number of government assurances. Ministers at all levels have stated time and again that that is not their intention with this provision. If councils want to test the market, as they are able to, they should do so clearly and deliberately, not by accident under the community right to challenge. That is what Ministers in the Government assure us is their position. However, it is not clear how that can be prevented in the Bill as it stands. May we have a clear statement that the Government do not intend the community right to challenge to be a way in for large commercial companies, and that clear guidance will be given to councils on how this can be prevented? May we please know how it can be prevented?

Meanwhile, the amendments suggest two possible ways forward as safeguards. Amendment 197EZA says that the relevant authority can reject an expression of interest for a service above the annual cost at which a full tendering process is required. In other words, if it goes over that threshold, that can be a reason for saying, “No, we’re not going to put it out to tender because of the consequences”. In practice, this is the £156,000-odd threshold imposed by the public contracts regulations.

Amendments 197EB, 197EC and 197ED would allow a council, instead of going for competitive procurement by tender, to carry out a full and open public service review. New subsection (3A), which we are proposing, reads:

“A service review carried out for”,

this purpose,

“must include a consultation process with the relevant body, users of the service and any bodies representing them, employees engaged in providing the relevant service and their representatives, residents of the area and such other persons that the relevant authority considers appropriate”.

In other words it would be a very open, transparent and, one hopes, effective process, looking at how the service was provided to see whether the challenge from a particular group could in fact provide the service more effectively, economically and advantageously for the community.

These amendments may not be the best ways to provide safeguards against the problem that we have identified, but that there is a problem seems to be the case. There does not seem to be an answer to the problem that if you go for a competitive procurement you are bound by the European rules and regulations, and if it is a service that is worth more than £156,000 each year, then there is a real risk that you are putting it out to a commercial company. I beg to move.

[Baroness Hamwee]

My Lords, I have Amendments 197FA and 197FAA in this group, and I am well aware that my noble friend at the Dispatch Box will tell me that what I am proposing is not lawful. What I am proposing is that a local authority can apply its own criteria essentially in assessing the expressions of interest, and include whatever restrictions and requirements it thinks appropriate—to very much the same aim, the same end, as my noble friend. I have no expectation about the amendments being accepted but, like him, I am looking for reassurances.

My noble friend the Minister said in response to the previous group of amendments that an expression of interest by two or more employees would not be a proxy for a commercial organisation, and referred to that in terms of abuse. I wrote down what he said about that but confess that, having printed off the policy statement to which he referred some weeks ago, I have completely forgotten about it, and it is probably somewhere in a pile of papers on my desk at the moment. What he said was that those expressing an interest would have to show that they are capable of providing a service, that they had engaged with the staff, and that what they were doing was not vexatious or frivolous. I have to say that I would have thought that any commercial organisation will very easily satisfy those criteria.

A concern to which my noble friend Lord Greaves has not referred is that having set up the arrangement—and this of course is not just something that would apply to the two employees; it could apply to a community body as well—it could then sell the business or dispose of the shares in the company which it had formed to run the service. I have not seen any way in which this could be prevented. I suspect that I would be told that it would be improper to prevent it. But it concerns me that it is taking this proposal a good deal further than appears on the face of the Bill.

I turn to subsections (5) and (6) of Clause 71, the first dealing with an expression of interest, the second dealing with a procurement exercise. Both talk of the authority considering—and I will come back to that term—whether the activity would,

“promote or improve the social, economic or environmental well-being of the authority’s area”.

Well indeed, and well and good. But consider: it is not bound to apply those factors. It needs to consider them. I dare say that means that it must be able to show how it has considered them.

Turning to subsection (7), we are told that this,

“applies only so far as is consistent with the law”.

There is no particular assurance at all here, if I may say so. Subsection (7) refers to the procurement exercise but I am worried that an authority may well read this as applying to the expressions of interest as well. In general, I suspect that local authorities will need quite a lot of reassurance over how they apply these provisions.

I speak only for myself in this. I am finding it difficult to articulate some of the unease that is almost more instinctive than technical. However, general expressions of reassurance and consolation may not go quite so far, technically, as to amount to real reassurance. I have rambled enough. I hope that the House has a sense of my unease.

Localism Bill

Debate between Baroness Hamwee and Lord Greaves

Thursday 7th July 2011 Lords Chamber

[Baroness Hamwee]

My Lords, we shall come, although not tonight, to clauses in the Bill dealing with national policy statements. Many noble Lords here are veterans of the debates about how national policy statements should or, in many cases, should not be dealt with. Perhaps it is not fair to say, “should not be dealt with”, but perhaps I should say, “should have been dealt with in a more extensive and iterative fashion”.

I use this opportunity to say to the Minister that I hope that by the time we get to Clause 114, on national policy statements, he may be in a better position to explain to the Committee how the national planning policy framework will be dealt with in procedural terms. I cannot gaze into a crystal ball, but I do not think it takes much imagination to guess that we shall debate the role of this House, as this House could make such a contribution to the planning policy framework and to the policy statements. I am sure we shall debate those things. As well as making that plea, I put down a marker for what I have said might be a more iterative and more measured process and certainly for the House to have an opportunity to make more of a contribution than it was able to do on the current arrangements under the Planning Act 2008.

[Lord Greaves]

My Lords, I would like to add a couple of points. Following on what my noble friend Lady Hamwee has just said, anyone who has taken part in the discussions on the national policy statements in this House probably realises that it has not been a very satisfactory process. When we talked about them under the 2008 Bill, there was a question about whether this House would be involved in discussing them at all. A campaign was led by the noble Lord, Lord Jenkin of Roding, for this House to have a role in scrutinising them. That was successful to a degree, but the powers that be restricted what was to happen to the absolute minimum. The level of scrutiny which national policy statements have had in this House has consisted of a session in the Moses Room, when there was a debate with a speakers list, and then the matter came back to the Chamber. In theory, amendments could be moved when it returned to the Chamber, but I cannot remember any. Apparently, there were some. Did we vote on any? The noble Lord will know better than me.

Localism Bill

Debate between Baroness Hamwee and Lord Greaves

Tuesday 5th July 2011 Lords Chamber

[Baroness Hamwee]

My Lords, I am sure that they use plain English in Colne. I imagine that it is very direct language, and I very much doubt that they use the term “spiffing wheeze” or “jolly wheeze”. My noble friend may have forgotten that the department has actually issued a plain English guide to the Bill.

[Lord Greaves]

A lot of people in Colne used to read the Beano.

[Baroness Hamwee]

But do they read the plain English guide to the Localism Bill? That says, on the community right to challenge, that many local authorities,

“recognise the potential of social enterprises”.

I hope that my noble friend Lord Shutt of Greetland, who I think will respond to the debate, will be able to say a word about whether in the Government’s mind social enterprises are something different from community groups. Many social enterprises are in fact businesses. That is not a criticism, but they are very different from community groups. The application of these provisions to social enterprises is interesting. The guide refers to them providing,

“high-quality services at good value”,

and delivering services “with”—that is, with local authorities—“and through them”. I was interested in the “with”, which, in the legislation, finds its manifestation in,

“assisting in providing a relevant service”.

I do not know whether my noble friend is able at this stage—we may need to wait for the regulations, which I, like the noble Lord, Lord Greaves, hope to see before too long—to explain what that assistance might look like.