Grenfell Tower: Rehousing Update

Earl Attlee Excerpts

Wednesday 5th July 2017 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, I agree with the comments of the noble Lord, Lord Morris, about the number of people who perished. We sorely want to know that information. It is not just a question of finding out how many people were tenants in the block. As we have indicated, there were people residing there who were not tenants, who were illegally subletting, which is certainly possible, or who were guests. It is entirely possible that people were staying overnight. Sadly, at the top of the block, it is very difficult indeed to identify people who have lost their lives. We are striving to find the number of people who died. I think currently we have identified 90 people who almost certainly perished in the fire. Beyond that, it is difficult, but we are seeking to do that by the measures I have mentioned. The Statement refers explicitly to the issue of trust. I agree that we need to rebuild the trust of the people who lived in Grenfell Tower and Grenfell Walk and more widely in Kensington and Chelsea, and that is what we are seeking to do in the way that we are approaching this.

[Earl Attlee (Con)]

My Lords, following the question from my noble friend Lord King, what steps is the Minister taking to ensure that there are no other local authorities that are equally weak in disaster planning and response? Although this was a terrible tragedy, in terms of managing the disaster, it was not particularly difficult. It was very concentrated geographically. What would have happened if a wide-bodied jet had landed somewhere in west London?

[Lord Bourne of Aberystwyth]

My Lords, in the immediate aftermath of this dreadful tragedy we have, as my noble friend will know, contacted other local authorities to ensure that there is not a replica of this situation elsewhere. Everything we have done since then in terms of testing and action has been to ensure that that does not happen. There has been only one case to date, in Camden, where we have had to evacuate blocks, although we have found non-compliant cladding in, I think, 202 cases. My noble friend said that this case was easy to handle but I would dispute that. It might have been geographically concentrated, but the nature of this tragedy was such that it was, and still is, very difficult to address. I have no particular knowledge of detailed plans for the type of disaster he talked about, but the suggestion by my noble friend Lord King and the Prime Minister of some sort of civil action disaster task force is an appropriate one to deal with such awful occasions, which do happen over time—we can think of transport disasters or Hillsborough. Such situations would be helped by having an appropriate body with legacy ideas passed on from one awful disaster to another. It is an idea that is worth pursuing on a non-partisan basis.

Roads: Motorists and Cyclists

Earl Attlee Excerpts

Wednesday 7th March 2012 Lords Chamber

[Earl Attlee]

My Lords, I am grateful to my noble friend Lord Glentoran for introducing this important subject for debate and for the clear way in which he did so. There are two camps in this debate; however, there is no doubt that all noble Lords are concerned about the safety of all vulnerable road users, so that cyclists are safe and that they do not endanger others.

The commendable Cities Fit for Cycling campaign has been spearheaded by the Times newspaper. Its campaign is in response to the tragic accident involving Mary Bowers. I understand that not only was she such a good reporter that she was on the staff of the Times but that she has undertaken highly commendable aid work in Africa. I am sure that we all hope and pray that she can make a recovery.

My noble friend referred to the mayor’s cycling strategy, which is entirely consistent with the coalition Government’s policies. All road accidents are tragedies that strike hard and without warning, so the Government, like our predecessor, are working hard to make highways safer for everyone. In answer to the noble Viscount, Lord Craigavon, since at least 1997 the UK Government have been strongly pro-cycling. For instance, many cyclist fatalities involve large vehicles, so to make cycling safer in our cities and towns we have recently given councils in England the power to install Trixi mirrors at junctions so that HGV drivers can see more at blind spots.

The noble Lord, Lord Davies of Oldham, raised the issue of visibility and sensors. We are leading discussions at a European level to further improve standards for HGVs to help to reduce accidents caused by poor visibility. We also welcome initiatives such as the Exchanging Places events, at which you can sit in a lorry cab and watch for a police cyclist riding up on the left of the vehicle. This gives you an idea of what the lorry driver can see.

The noble Lord, Lord Davies of Oldham, also asked about side guards on HGVs. Most HGVs already have to have side guards, but the noble Lord will be aware that there are some exemptions, particularly construction vehicles, and they have been disproportionately involved in these tragic accidents. Over time, we should see fewer new vehicles without side guards. New European rules that are currently being phased in are stricter than existing GB rules and should reduce the current fairly long list of exemptions from the fitment of side guards, as well as limit exemptions to vehicles where fitting side guards is difficult or impossible.

We are also considering how to make motorists more aware of the needs of cyclists and are looking at how to incorporate more cyclist awareness in the driver certificate of professional competence for drivers of large vehicles.

The noble Viscount, Lord Craigavon, advised caution on 20 mile per hour speed limits. Reducing traffic speeds can make our roads safer for everyone and make streets more pleasant places for both cyclists and pedestrians. We are supportive of local authorities adopting a 20 mile per hour speed limit, particularly in residential areas, and have relaxed regulations to enable these to be introduced with less bureaucracy. It is for local authorities to determine their suitability for introduction.

We have also committed £11 million per year for the remainder of this Parliament for Bikeability training to help a new generation of cyclists to gain the skills they need to cycle safely. Bikeability is not just for children; it is for adults too, and some local authorities provide free or subsidised training.

My noble friend Lord Glentoran talked about driver testing. We are committed to further improving the safety of young drivers. Young people ought to learn how to handle risks before taking the driving test. We want a driver training and testing system that ensures that learner drivers have the knowledge, skills and, most importantly, the attitude to be safe and responsible on our roads before a full licence is granted and that encourages continued training afterwards.

I am also well aware that your Lordships are very concerned that all users of the highway should abide by traffic laws. Indeed, I have recently answered Oral Questions about cyclists riding on pavements and going through red lights. Cyclists injure other road users less frequently than do motorists. However, it is important for cyclists to comply with road traffic laws for their own and others’ safety and to help to build respect between the different groups of people using our roads. I fully understand the points made by my noble friend Lady Sharples and the noble Lord, Lord Wills. The noble Lord talked about the problem of the underreporting of accidents. It can be difficult to measure cycling accidents, particularly cyclist-only accidents.

The offences of careless and dangerous driving are applicable to drivers of motor vehicles. For cyclists, there is a similar legal framework, including offences of dangerous cycling, careless and inconsiderate cycling, and cycling under the influence of drink or drugs. Noble Lords will be aware that enforcement in relation to cycling offences is an operational matter for the police. They have at their disposal a variety of sanctions, including the use of fixed penalty notices for some offences, such as cycling on the pavement. Fixed penalty notices can be issued to people aged over 16. In answer to the noble Lord, Lord Wills, the most effective deterrent is the probability of sanctions being applied rather than their levels. There is also the problem of some cyclists being ignorant of the law.

The police acknowledge that many cyclists, particularly children and young people, are afraid to cycle on some roads. This is one reason why, at times, they use their discretion and enforce the offence of cycling on the pavement using verbal warnings. Police and crime commissioners, being elected later this year, will set the strategic direction and accountability for local policing. They can represent public concerns, for example about roads policing, and instigate change locally.

Cycling has many benefits, as pointed out by my noble friend Lord Taverne and the noble and learned Lord, Lord Scott of Foscote. Research suggests that for each life lost through a cycling accident, approximately 20 lives will be extended by the health benefits of cycling. As well as the health benefits, cyclists offer other benefits when they replace vehicle trips, and these include reducing carbon emissions, improving air quality, and reducing congestion. My noble friend Lord Taverne has done the House a great service by explaining the benefits so well.

Last September, my colleague Norman Baker chaired the inaugural Cycling Stakeholder Forum. The forum was set up to gather together expert stakeholders who share our goal of increasing cycling. The group is currently looking at the links with health and how to tackle both the real and perceived risks of cycling. I believe that the next meeting is due on 20 March.

The noble Earl, Lord Clancarty, and the noble Lord, Lord Haskel, talked about shared spaces. New guidance to help local authorities to design high-quality shared space schemes was published by the Transport Minister Norman Baker last year. The local transport note on shared space has been developed to assist local authorities that want to put in place well designed shared space schemes. The guidance places particular emphasis on engagement with the local community and on inclusive design, where the needs of a diverse range of people, including people with disabilities, are properly considered at all stages of the development process.

On top of the integrated transport block funding, we are also providing £560 million to local authorities through the local sustainable transport fund to support packages of measures that deliver economic growth and cut carbon: 38 out of the 39 successful bids announced last July included a cycling element. The Government will announce decisions on tranche 2 and large project bids later this year. Last month the Government announced a further £15 million of funding for new cycle infrastructure: £7 million will go to improving facilities at stations for cyclists and £8 million will go to Sustrans to provide better local links by creating new off-road cycle paths or shared-use paths.

My noble friend Lord Glentoran talked about insurance, as did my noble friend Lady Sharples. The Government have no plans to make insurance compulsory for cyclists. We encourage all cyclists to take out some form of insurance, and many do through cycling organisations, such as CTC, which provide it with membership, or through their household insurance. The absence of insurance does not prevent a cyclist from being liable for their actions. The police, and ultimately the courts, will take into account all the circumstances of any incident and judge accordingly.

My noble friend Lord Glentoran mentioned the need for high-visibility clothing. We want to encourage all cyclists to wear high-visibility clothing to help them to stay safe while riding and to make them more conspicuous to other road users. However, to make it a legal requirement would, in certain circumstances, discourage cyclists and many noble Lords have recognised the dangers.

My noble friend Lady Sharples talked about helmets. We want to encourage cyclists, especially children, to wear helmets to protect them if they have a collision. However, we believe that it should be a matter of individual choice, rather than a matter of imposing additional regulations that will be difficult to enforce and, again, could discourage cycling.

The noble Lord, Lord Haskel, and others raised the issue of strict liability. In English civil law, the principle of civil liability in motor insurance is predicated on the establishment of fault. In order to prove fault, it is necessary to prove that the defendant’s actions caused the accident and were either negligent or intentional. We have had the benefit of advice from the noble and learned Lord, Lord Scott of Foscote, which has saved me the effort of straying outside my area of expertise.

[Lord Davies of Oldham]

I am grateful to the Minister for allowing me to intervene, because I realise the constraints of time. He will know that in Holland and Denmark, which have been cited in this debate, the presumption of responsibility for the accident lies with the powered vehicle. That issue was raised by several noble Lords and I sought to emphasise it, too. Have the Government considered that matter?

[Earl Attlee]

My Lords, we have considered it, but it would be a little odd to have a completely different legal system just for cycles. There are serious complexities here that in my opinion are insurmountable.

The noble Viscount, Lord Craigavon, talked about advanced stop lines. There appears to be some misunderstanding about the law. It is essential that all motorists read the Highway Code to avoid inadvertently committing an offence and therefore being prosecuted by the police.

If I have missed any vital point, I will of course write to noble Lords. In conclusion, I can assure the House that we are committed both to promoting cycling and to improving road safety for all road users, including cyclists.

Localism Bill

Earl Attlee Excerpts

Monday 31st October 2011 Lords Chamber

[Lord McKenzie of Luton]

I take that point but, even if it is “only because”, what else might a decision-maker do that you have to take account of if you can ignore all of the things that are described in this provision? That seems to be the fundamental problem.

My noble friend Lord Snape asked: what is predetermination? As I understand it, predetermination is having a closed mind at the point when you make a decision. Is that not important, because if people are coming to local councils seeking decisions which they expect to be rationally made—whether on planning, licensing or anything else—are they not entitled to have a case that is properly made and not fettered by somebody ignoring all of that process at the point when the decision is made? That seems to be the key difference between predetermination and predisposition.

The noble Baroness, Lady Gardner of Parkes, said that people will always have their pet subjects, and there is absolutely nothing wrong with that. Predisposition means having a view that, other things being equal, this is what you support and this is what you do not, and it does not preclude you from having, for example, manifesto commitments. That is reflective of the current position. The problem with the clause, for some of us at least, is that it unbalances that decision. It may give clearer protections or guidance to councillors in respect of what they can and cannot do but it does not address the other side of that equation: the circumstances where somebody has a closed mind and would seek to exercise judgment on something when they should not. That seems very important to me.

Things are not helped by the demise of the Standards Board for England, which set out guidance on all of this, but I understand that there is also legal precedent and case law around all of this. My noble friend Lord Sewel raised the point about collective decisions. There is nothing wrong with a party group sitting around and having discussion on an issue. The key is that when you come to the point of making that decision—whether it is in the council chamber, the committee chamber or elsewhere—the mind is at least ajar. I think that was the terminology that was used.

The noble Baroness, Lady Eaton, said that councillors have long walked this difficult line, and she is absolutely right. I agree and, in our view, the line does not need to be changed. Yet the terms of this clause are potentially changing it and that is the problem we are seeking to address by this provision. Our position is as follows: we support the proposition that those who have a closed mind on an issue should not participate in decision-making and could invalidate it if they did. We understand that this is also the Government's position, from debates on previous stages of the Bill where we have had amendments around this. It may be particularly relevant to planning and to other decisions as well.

We differentiate predetermination from predisposition and understand that the Government also do that. Having clarity on the scope and protections that this gives to councillors is to be encouraged but issues of a closed mind or otherwise are properly to be assessed when formal decisions are to be taken. We understand that this is also the Government’s position. The problem is that, in framing the scope and protections for local councillors, there must not be opportunities for those with closed minds to have their actions and utterances ignored in evaluating whether they had already predetermined the matter when making decisions. These are matters of probity.

If it is right that we agree on those propositions about the difference between predisposition and predetermination—determined at the point when the decision is made—we should be focused on how we achieve the legal construct that deals with that. That is the real matter before us and the matter in this amendment. In this regard, we consider that the amendment moved by the noble Lord, Lord Pannick, which is also in the name of my noble friend Lord Hart, achieves those objectives. However, we are very clear that the clause as it stands makes things worse and muddies the waters on principles and issues that I think we are not apart on.

[Earl Attlee]

My Lords, I am grateful to the noble Lords who have skilfully proposed this amendment, as it has given me the opportunity to research the issue for myself—with an open mind—and to provide further elucidation to the House. I hope that I can prevail upon the noble Lord, Lord Pannick, with his open mind.

I think that there is general agreement on the mischief that Clause 25 seeks to address: that councillors and candidates are receiving overly cautious advice from a variety of sources. All noble Lords accept the need to engage with the electorate, and I agree entirely with the comment by the noble Lord, Lord Pannick, about the courts. The courts do not have a problem at all; it is the advice being given that is the mischief.

I will give an example to show how far this culture has spread, not from local government but rather from advice issued by Friends of the Earth about the planning process. One would imagine that that organisation would be keen for the public to engage with councillors, not just to put their views to the councillor but to seek the councillor’s view. Yet the advice states that,

“councillors on the planning committee are not allowed to express their view until the decision is made”.

When advice from expert campaigning groups such as Friends of the Earth is risk-averse, it is clearly time to act. My noble friend Lord Greaves also told us about different councils having different rules and the problems that that causes.

In the light of the debate during previous stages, most noble Lords clearly have no difficulty with the difference between predisposition and predetermination but it may be helpful if I remind the House what predetermination is. Predetermination, which can be actual or apparent, is where a councillor’s mind is closed to the merits of any arguments which differ from their own about an issue on which they are making a decision, such as an application for planning permission. The councillor makes a decision on the issues without taking them all into account.

I am obliged to the noble Lord, Lord Hart, for the time he has taken to explain carefully the problem to me in private. He described a situation where a bigoted person states publically, and with the protection of Clause 25, that he is strongly against some development. He is then on the committee that determines the application but says nothing, then votes against the development. The noble Lord, Lord Pannick, said much the same. The noble Lord, Lord Hart, is right that nothing can be done, but the same would apply if the councillor was covertly bigoted—that is, if he said nothing at any point but still voted against and always intended to, no matter what argument was put forward. Perhaps he is racist and would never ever support an accommodation unit for asylum seekers. My own view, for what it is worth, is that in reality very few councillors operate with a closed mind.

--- Later in debate ---

[Lord Pannick]

I am very grateful to noble Lords who have spoken in this fascinating debate and to the Minister for his detailed response. I shall respond briefly, attempting to avoid any indication of exacting purity that may offend the noble Lord, Lord True, or indeed any other form of reprehensible purity on this matter.

The Minister indicated that there is nothing wrong with the common law rules, and I respectfully agree with him. The problem, the Minister said, is the erroneous advice that is being given to local councillors up and down the land. The problem with that analysis is that, if the advice is the erroneous advice, we should deal with that advice. Let us not amend the common law in a way that changes the current position—and changes it by excluding from relevance the legal material that can demonstrate that there is unlawful predetermination.

[Earl Attlee]

May I explain the advantage of Clause 25 and the way that it is drafted? If I was a councillor and engaging, as a layman, with officials who were giving me advice, I would be able to produce the words in Clause 25 and say, “It says here that I can express a view”, and there would be very little that officials could do to counteract that.

[Lord Pannick]

I understand the point and am grateful to the Minister. However, the clause introduces clarity by amending the common law, which the Minister is concerned to maintain. The clause does not maintain the existing common law rules, which the Minister considers entirely adequate. The clause excludes from consideration anything that is said or done prior to the council meeting at which the issue is to be discussed, however extreme the previous statement may be. I entirely accept that what the councillor said prior to the council meeting may not be determinative of whether there is unlawful predetermination, but it must be relevant. That is the objection to Clause 25: it purports, in the Minister’s words, to restate the common law, which the Minister regards as entirely appropriate and unexceptionable. What it actually does is amend the existing common law in a way that will prevent real cases of predetermination being brought and succeeding.

Real concern was expressed in this debate that it is absolutely vital that local councillors should be able to express their views on matters powerfully and strongly if they wish. The noble Baroness, Lady Eaton, and the noble Lords, Lord True and Lord Greaves, made this point. I entirely agree with them that that is the common law position. The cases make it absolutely clear that local councillors deciding any matter are not impartial in the sense required of a judge; they have political allegiances, their politics involve policies and they are entitled to express their views—of course they are. The case of Lewis v Redcar and Cleveland Borough Council in 2009, covered from page 83 of Volume 1 of the Weekly Law Reports, is the leading Court of Appeal judgment. It says that any local councillor who expresses his views powerfully and strongly on any view is not guilty of unlawful predetermination so long as he is prepared to keep an open mind when he goes to the council meeting.

The noble Lord, Lord Sewel, and the noble Lord, Lord Snape, asked for reassurance in relation to the role of party groups and party whips in local government. That, too, has been considered by the courts. In the same case of Lewis v Redcar and Cleveland Borough Council, the Court of Appeal approved an earlier judgment in 1985 by the noble and learned Lord, Lord Woolf—then Mr Justice Woolf—where he said:

“I would have thought that it was almost inevitable, now that party politics play so large a part in local government, that the majority group on a council would decide on the party line in respect of the proposal. If this was to be regarded as disqualifying the district council from dealing with the planning application, then if that disqualification is to be avoided, the members of the planning committee at any rate will have to adopt standards of conduct which I suspect will be almost impossible to achieve in practice”.

--- Later in debate ---

Moved by

[Earl Attlee]

53: After Clause 140, insert the following new Clause—
“Local authority, statutory undertakers’ and National Trust land
(1) The Planning Act 2008 is amended as follows.
(2) In section 128(3) (order authorising compulsory acquisition of local authority or statutory undertakers’ land subject to special parliamentary procedure if representation made by the authority or statutory undertakers and not withdrawn)—
(a) after paragraph (a) (but before the “and” at the end of that paragraph) insert—“(aa) the representation contains an objection to the compulsory acquisition of the land,”, and(b) in paragraph (b) (condition that representation has not been withdrawn) for “representation” substitute “objection”.(3) In section 130(3) (order authorising compulsory acquisition of certain National Trust land subject to special parliamentary procedure if representation made by National Trust and not withdrawn)—
(a) after paragraph (a) (but before the “and” at the end of that paragraph) insert—“(aa) the representation contains an objection to the compulsory acquisition of the land,”, and(b) in paragraph (b) (condition that representation has not been withdrawn) for “representation” substitute “objection”.”

[Earl Attlee]

My Lords, the need for this amendment emerged following the first decision under the regime a little over a week ago when it became clear that the Planning Act 2008 contains a drafting flaw that could have serious consequences for the regime if not corrected. Under compulsory purchase law, local authorities, statutory undertakers and the National Trust have special protection from proposals to compulsorily acquire their land. Where they object to a compulsory purchase order, and do not withdraw that objection, the order is subject to special parliamentary procedure—an involved, complex and often lengthy process which can add six to nine months to the timetable.

The first decision under the regime has demonstrated that the Planning Act 2008 has inadvertently widened the grounds on which special parliamentary procedure is engaged. Any representation by a relevant body on any aspect of the development consent order not limited to compulsory acquisition can trigger SPP. This means that many more projects will need to go through the SPP than do at present, with implications for growth and jobs. Government Amendment 53, therefore, seeks to correct the drafting of the Planning Act to bring it into line with compulsory purchase law as it operates under the town and country planning system.

Let me be absolutely clear on this for the benefit of the House. We are absolutely not seeking to lessen the important protections for land belonging to those bodies, and indeed this amendment would not prevent the National Trust, for example, from invoking SPP where a development consent order would grant consent for its land to be compulsorily acquired. The amendment seeks only to correct an error in the 2008 Act, thereby ensuring that the compulsory purchase regime is consistent across both the 2008 Act and the major infrastructure planning regimes. I beg to move.

[Lord Berkeley]

My Lords, I am grateful to the Minister for introducing his amendment and allowing me to speak to my three amendments in this grouping. He has agreed to respond after this, and it is very welcome that we can do it in this way.

I shall just make a very small comment on government Amendment 53. While I welcome the amendment—it is good to see that the Government recognise that some changes have to be made to the Planning Act in this regard—it does nothing for the point that I shall come on to shortly. In a wider sense, the special parliamentary procedure seems to be an additional safeguard in the 21st century, with a rather heavier touch, as I shall come back to several times, than the approach taken in the Harbours Act or the Transport and Works Act orders, which are two of the principal order-making regimes that the Planning Act draws on and replaces.

I turn to the amendments in my name. The House will recall that, both in Committee and on Report, the noble Lord, Lord Jenkin, my noble and learned friend Lord Boyd and I moved, and spoke in support of, a number of quite technical arguments, which we thought were pretty important to the Bill, designed to make a number of changes to the provisions of the Planning Act 2008 dealing with the new regime for considering national infrastructure projects, which are currently operated by the Infrastructure Planning Commission. The Planning Act is a distinct improvement on the many regimes that we had before for the types of infrastructure that it replaces, and I think that it is settling down.

My concern, which I expressed previously and will have to return to shortly tonight, is that this Bill should have gone further and made more changes to the 2008 Act that are either a necessary or logical consequence of the IPC's abolition and the return of decisions to Ministers or are simply required to make the 2008 Act work better. I have been briefed in particular by the National Infrastructure Planning Association, which has people with great experience in this field. I welcome the Government's intention to keep the new regime under review, but it would be helpful to hear from the Minister tonight a little more as to quite what they are going to review and when.

The House will recall that the Minister, Greg Clark MP, said in a Written Ministerial Statement that the Government are,

“listening to industry, representative groups and others using the system … and will be exploring opportunities for improvement to ensure the system has the right mix of certainty, flexibility and efficiency”.—[Official Report, Commons, 10/3/11; col. 73WS.]

That is good. In the impact assessment for the Bill’s provisions on major infrastructure projects, published in January this year, we are told that, in relation to the policy behind the preferred options, which is now reflected in the Bill,

“It will be reviewed 04/2014”.

I would like to hear from the Minister how this review will take place.

Before discussing in more detail the issues focused in these amendments, I want to mention a very recent development that appears to be highly relevant. Apparently,

“The European Union is concerned that the single market is not operating effectively because of a lack of integrated energy, transport and digital infrastructure”—

I certainly support that view—

“and is also not moving to a secure, low-carbon energy future quickly enough”.

On 19 October, only a couple of weeks ago, the European Commission launched two new proposed regulations to address this: the “Connecting Europe Facility”, which is about to spend €50 billion on all three sectors of infrastructure, which is a great deal of money; and a focus on energy infrastructure, for which the Commission will require new authorisation regimes because such projects will have to be subject to a special “permit granting process”. It is a bit complicated, but €9 billion has been earmarked for energy projects.

The Government will have to change regulations or legislation to allow these internationally significant infrastructure projects—which are apparently called ISIPs, as opposed to NSIPs or something—that will sit above, or instead of, the Planning Act regime for nationally significant projects. There are various processes and timetables set out for this and the pre-application consultation requirements are quite prescriptive. I understand that all these are required to be in place by 1 September 2013, which is only nine months after the regulation is due to come into force. It would be interesting to hear from the Minister how the Government intend to do this and make sure that the money being offered from the EU is available.

I am grateful to the Minister for arranging a meeting between his officials and myself and the noble Lord, Lord Jenkin, between Report and now. We had a very useful meeting and I take the opportunity to thank Ministers and officials for the very helpful discussions. We should have had the meeting some time ago, but we did not—as was said at Report. However, I hope that, even so, we can make progress.

Turning to the amendments themselves, I should say that Amendment 87 relates to the Minister’s amendment about development consent orders and the need to have special parliamentary procedures where there are objections. As the Minister said, it could take about nine months extra if one had to go through these procedures. I still wonder why we have to go through these procedures when there should be a single consents regime with a harmonised set of requirements and procedures, which I call a one-stop shop. I compare the complexity and difficulty of this with the transport and works orders and the harbours orders.

On Report, the Minister referred to the Planning Act drawing on long-standing and well-established protections from compulsory purchase orders for certain types of land. He thought that our proposals then would significantly weaken them, but I do not accept his reference to a two-tier system—why it should go further than happens with the TWA and the harbours order. The House will recall that the only project so far to be approved by the IPC, which is Covanta's proposed incinerator in Bedfordshire, will now have to be approved by this House and the other House under SPP. A lot of people may not like these incinerators but that has gone through a process and, again, will be subject to six to nine months’ extra delay. I hope that the Minister can indicate that these issues will be reviewed in the light of experience.

The next amendment in the group, Amendment 88, refers to the regulations made under Section 150, which deal with construction-related consents in England. Again, we discussed this quite thoroughly on Report—so much for having a one-stop shop, as there are still up to 42 other consents required from regulators in England and a further 36 in Wales. I still have not discovered why there are so many extra ones in Wales but it may be that the noble Earl will take the view that it does not matter very much. Again, the point is that it would be very good for those developing new projects to be able to reduce the number of these other consents which they have to get. I wonder whether the Minister would be prepared to give some kind of timetable and a commitment to reviewing this number, and even to produce a report to Parliament every year for the next few years. That could challenge his colleagues in other departments on whether they really can be brought underneath this umbrella of the one-stop shop.

Finally, on Amendment 89, again, we have discussed the creation of criminal offences in some detail but it is still a worry that the types of offences which can be introduced through this process are not sufficient for the types of projects and offences which might be required. Again, that provides a much greater limit than the Transport and Works Act orders do, which is why I wanted to see whether we could include railways and construction in tidal waters. One example which springs to mind is the question of trespass during construction, which could well occur on the high-speed line—assuming that it gets built—or on some of the offshore wind farms, if people can get around there. Trespass is a very difficult thing to stop if you do not have the right regulations, and it would be good to see whether the Minister would be able to extend the existing criminal offences to the two issues in this amendment.

To sum up, we have made progress on these issues in discussions on the Bill but we have certainly not gone as far as I would have liked to see. However, is the Minister prepared to tell us a little more about the issues that I have raised and about three things in particular? First, there is the impact assessment on how the Planning Act 2008 has worked in respect of projects through the IPC and its successor, which I believe is supposed to be there in 2014. Secondly, there is how this connecting Europe facility will work and whether the Government are keen that projects here should get the extra €9 billion that will be available for energy alone. Finally, can I press him to have an earlier review and a progress report to reduce significantly those 42 consents, plus the 36 in Wales?

--- Later in debate ---

[Lord McKenzie of Luton]

My Lords, I shall be brief. I congratulate my noble friend Lord Berkeley for spotting a difficulty and the Government for responding with their Amendment 53, which seeks to deal with that. My noble friend Lord Berkeley, my noble and learned friend Lord Boyd and the noble Lord, Lord Jenkin, have raised a number of profound and important issues about how the new system is working, the need for a one-stop shop, the connecting Europe facility and how we will take advantage of that, and the special parliamentary procedures, but I am not sure that we are going to solve all those issues tonight. I look forward to what the Minister has to say, but if he is able to confirm that there is a review under way, that seems to be the arena in which these very important issues can be picked up and addressed.

[Earl Attlee]

My Lords, I am grateful to noble Lords who have spoken to this group of amendments for their contribution to the debate on these important issues. I thought we had an excellent debate on Report, and I am grateful to the noble Lords for their time at the meeting we had a week ago to further discuss these matters. I am happy to adhere to correct procedure, and that is to allow noble Lords to move the amendments before giving a response.

The noble Lord, Lord Berkeley, referred to developments in the EU; this is developing policy and I will have to write to him on that point. Noble Lords have already explained the amendments in this group at some length, but I will briefly summarise. Amendment 87 would remove Sections 128 to 132 of the 2008 Act, which made provisions relating to the compulsory acquisition of special types of land. Amendment 88 seeks to amend Section 150 of the Act, so that it applies only in relation to land in Wales. Amendment 89 would extend the existing provisions of the Localism Bill in relation to the creation of offences in a development consent order so that offences could be created in respect of railways and off-shore development in addition to those already provided for within the Bill. The noble Lord, Lord Berkeley, gave the example of trespass during construction. I have listened carefully to what noble Lords have said and I agree that these matters need further consideration. These are complex issues and we will need to think on them carefully in the light of the new regime’s vanguard cases.

--- Later in debate ---

Moved by

[Earl Attlee]

61: Clause 196, page 203, line 30, after “Assembly” insert “or a consultee under subsection (4)(d), (e), (f) or (g) that are comments”

[Earl Attlee]

My Lords, I shall also speak to Amendments 62 to 67. These amendments are in response to two amendments tabled by my noble friend Lord Jenkin of Roding and the noble Lord, Lord McKenzie of Luton, on Report: Amendments 96 and 103. I know that my noble friend Lord True also has an interest in these matters. Those amendments related to obligations on the mayor to publish his reasons for not accepting comments made at consultation where he proposes to bring forward a mayoral development corporation. I am happy to say that we have looked carefully at the case put forward by the noble Lords for amending the Bill and propose to introduce the following changes.

Amendment 61 requires the mayor to publish his reasons for not accepting comments made by an affected borough where those comments relate to the mayor’s proposals for a mayoral development area. Amendment 62 requires the mayor to publish his reasons for not accepting comments made by an affected borough where those comments relate to an MDC’s proposed planning functions.

Amendments 64 and 65 are minor and technical relating to Clause 203 and put right minor inaccuracies arising from changes to the Bill. Amendment 66 would require the mayor to publish his reasons for not accepting comments made by an affected borough, where those comments relate to an MDC’s proposals for non-domestic rate relief. Amendment 67 defines “affected local authority”.

Together these amendments would put an affected borough on the same footing as the London Assembly with the regard to the duty on the mayor to respond directly to any concerns it may raise. I trust they address my noble friend’s concerns. I beg to move.

--- Later in debate ---

Moved by

[Earl Attlee]

76: Schedule 5, page 320, line 8, at end insert “or”

[Earl Attlee]

My Lords, I beg to move government Amendment 76 and speak to Amendments 77 to 83.

Your Lordships agreed to government amendments to provide that a council tax referendum could not be triggered solely due to expenditure that had been supported in a local referendum. However, the agreement reached at Report stage to remove local referendums from the Bill means that any link between council tax referendums and local referendums is no longer relevant. These amendments, therefore, remove the references to local referendums from Schedule 5. I beg to move.

[Lord Beecham]

My Lords, these amendments come in Schedule 5 which deals with referendums, including council tax referendums. I apologise at this late hour for raising an issue which has only just come to light in relation to council tax referendums; that is, a communication from the Electoral Commission— received extremely late in the day, it must be said—raising concerns about the procedures. I had a word with the noble Earl previously under the misapprehension that the noble Baroness would be replying to this amendment. I am not asking for a definitive answer tonight, because I do not know whether the noble Earl has actually seen the communication from the Electoral Commission. However, it was recommending that the proposed arrangements that any council tax referendums should commence from next year—Spring 2012—should not take place and that referendums should not be required to be held until 2013. There has been a principle, apparently accepted for several years now, that regulations including conduct rules should be clear no later than six months in advance of the date of the first poll to which they will apply. It is clearly of the view that that will not be possible in this case, as it has seen only a very small part of the draft secondary legislation which will be required for referendums. It has not seen details specifically for these referendums. There are a number of factors, including the fact that there might be multiple referendums held because of the variety of precepting authorities which would be potentially involved in the issue of such referendums as and when these might be held.

The Electoral Commission’s assessment is that,

“there is a high level of risk that any council tax referendums held in Spring 2012 may not be well run … There is not in our view enough time before then to adequately ensure”—

I notice it is splitting its infinitives—

“that regulations are well drafted and electoral administrators are properly prepared, and campaigners are ready to engage with others”.

Therefore, it is asking for,

“a clear commitment to not hold these referendums until Spring 2013”.

It makes the helpful suggestion that we might table amendments, but of course we are out of time to table amendments. It raises questions about how the Electoral Commission works and I know my noble friend Lord Kennedy has already raised questions about that. However, it makes an additional point that has been touched on in previous discussions on the funding of referendums and whether the rules about donations and campaign spending and so on ought to be brought into play to deal with these referendums.

It is very late. I am not expecting the Minister to give a definitive answer but I would be grateful if he could assure the House that these matters will be considered. Obviously, I expect the Government to take seriously the views of the Electoral Commission. In practice, I suspect that next year there will not be many councils that, given the general state of play, will be proposing council tax levels such as to trigger potential referendums. We cannot be certain, of course, but it is probably unlikely. There is little to be lost and indeed much to be gained, I venture to suggest, by looking closely into these matters and responding positively to the belated recommendations of the commission. An indication that the Government will at least think about that would be very welcome. Subject to that, we will certainly agree the amendments, which are simply a tidying-up process following the welcome decision to abandon local referendums at large.

[Earl Attlee]

My Lords, the noble Lord, Lord Beecham, does not disappoint me. I have read the letter from the Electoral Commission carefully. All organisations would love to have the maximum possible time to implement changes, and I understand that these are complex changes. However, council tax payers expect to have protection against excessive council tax increases. That is what we are delivering through the Localism Bill. We have a duty to consult the Electoral Commission. We are fulfilling that duty to make sure that the right processes are in place. However, the Chancellor recently announced a council tax freeze in England for 2012-13. We expect most if not all authorities to take up the freeze, in which case there will be no need for referendums next year, as the noble Lord, Lord Beecham, graciously recognised.

The Government intend these provisions to become effective from 2012-13 onwards, subject to the Bill receiving Royal Assent in sufficient time. We will of course reflect on what the Electoral Commission has said as part of our ongoing engagement with it. Noble Lords should also remember that the Secretary of State will set the excessiveness level, which will have to be approved by another place, and if necessary a local authority can be put into a special category if it has any specific problems. With that, I beg to move.

Amendment 76 agreed.

Patrick Finucane

Earl Attlee Excerpts

Wednesday 12th October 2011 Lords Chamber

[Baroness O'Loan]

My Lords—

[Earl Attlee]

My Lords, may I remind the House of the benefits of short questions in order that my noble friend the Minister can take as many questions as possible? Perhaps we should start with a former Secretary of State for Northern Ireland and then go on to the noble Lord, Lord Maginnis.

[Lord King of Bridgwater]

My Lords, is the Minister aware that this appalling murder took place during my time as Secretary of State for Northern Ireland, 22 years ago? What made it even more atrocious as a crime were the allegations, subsequently confirmed in the Stevens report, that there may have been—there was, as the Prime Minister has accepted today—collusion by members of the security forces in that murder. Against that background, I welcome the Statement. I say to the noble Baroness—the same point was made by the Front Bench in the other place—that I think it was entirely right for the Prime Minister to see Mrs Finucane and her family. If he had not seen them and this announcement had been made, people would have criticised him for a lack of courage and not being prepared to face the situation. He invited them to come to enable him to make a formal apology to them for what has happened. That was precisely the right thing to do.

We have the appalling situation whereby the murder was committed 22 years ago and allegations of collusion emerged soon after. It is 12 years since the noble Lord, Lord Stevens, produced his report, 10 years since the Weston Park agreement was signed and six years since the previous Government approached this matter. They pledged to hold an inquiry but did nothing about it except to argue with the Finucane family about the form of the inquiry, which could not be resolved because they were not prepared to agree to the form proposed under the Act. That has left this Government with a logjam that has now to be resolved. No one can seriously suggest that it is a good idea to embark on a major public inquiry that could last another five years, during which time more people who were involved in the murder will die, as will people who may be responsible for the collusion and who ought to be liable to prosecution and brought to justice. These matters are still outstanding. I feel passionately about this.

We owe it to the Finucane family to resolve this matter, to publish a document referring to the people who may have been responsible for the murder and to make the truth known. We also owe it to all those people in the security forces, brave people who, day in, day out, 24/7, have defended the people of Northern Ireland with integrity and courage but whose conduct has been besmirched by the action of a few. We owe it to them as well as to the Finucane family to get to the truth of this as quickly as possible and then let the proper consequences of punishment, if that is appropriate, take place and for the truth to be known so that the Finucane family can see it. I hope at the end of the day—it depends, obviously, on the result of this report, but I have confidence in Sir Desmond de Silva—that Sir Desmond’s report may at last bring some satisfaction in these matters so that they can be properly dealt with.

[Lord Maginnis of Drumglass]

My Lords, I want to make it very clear first that I condemn every killing that occurred in Northern Ireland and I spent 12 years of my life ensuring that both loyalist and republican killers were brought to justice. That is my justification for saying that, while I thank the Minister for bringing the Statement here, I totally disagree with and resent the term “collusion”. Can you imagine what it is like to live 24/7 in a situation where people are being murdered, and people are talking about this in cars, in homes, in pubs, in clubs and in the workplace because they are struggling to survive the violence that we had to endure. If that is collusion, then collusion took place, but my experience over all those years, working with police and the regular Army and in command of members of the Ulster Defence Regiment, was that there was no organised collusion, and I resent that term deeply.

Let me further say that there are so many victims, and victims who are close to me: Harold Sinnamon, the brother of my assistant teacher in the school where I was principal; the Dobson brothers, whom I went to school with, two people who were not involved with anything, shot in their business office; George Shaw, who contributed to his community, who took me to my first scout camp; Eric Shields, whom I worked and played rugby with and who was not a member of my party but of the Alliance Party; all these people. Was there collusion there? Are they even considered?

In finality, I was sued by the Finucane family for saying that they were an IRA family. That is what they were, an IRA family. They sued me. When they were forced by the courts to put up or shut up, they withdrew their case against me and paid my costs. Why did that happen? Let us look at the whole picture with 40, 30 or 20 years of hindsight, at what those of us who lived through the Troubles had to endure, and see whether it is prejudiced.

[Earl Attlee]

My Lords, once more I try to remind the House of the benefits of a short question and that also, on behalf of the House, I have a very long memory.

Localism Bill

Earl Attlee Excerpts

Tuesday 19th July 2011 Lords Chamber

[Lord Berkeley]

Perhaps I might follow up something that my noble friend Lord McKenzie asked the Minister about the timetable of national policy statements. As I said earlier, the energy ones were published and agreed yesterday, which was great. We have heard nothing yet on ports, airports and interchanges, which will come out of transport. We do not even have any dates for their publication. Perhaps the port statement is in draft form—I am not sure—and there are probably other NPSs coming from other departments. I do not expect an answer from the Minister now, but it would be good to have a letter with an expected timetable. At the moment, industry sees the prospect of several years of vacuum with no policies to work to. It would be very helpful to have firm timetables.

[Earl Attlee]

My Lords, this large group contains a range of amendments that seek to amend various provisions in the Localism Bill that amend the Planning Act 2008. The noble and learned Lord, Lord Boyd of Duncansby, has not moved his amendment, which addresses a drafting flaw in the Localism Bill, because government Amendment 166VE deals with it. I am grateful that the noble and learned Lord did not worry us with moving his amendment.

The noble Lord, Lord McKenzie, asked when the full NPS will be available. The noble Lord, Lord Berkeley, asked about the ports and the timetable for other such important NPSs. I will write to noble Lords on that and on any other technical issues that I do not cover in my response.

My noble friend Lord Jenkin has tabled a range of important technical amendments that aim to ensure that the new major infrastructure planning regime is as efficient as possible. These address matters such as: land subject to compulsory purchase, Amendments 166D, 166E, 166L, 166M 166N and 166P; notification where a deadline is extended, Amendments 166G and 166H; the power to amend an application after submission, Amendments 166J and 166K; the power to waive compliance with regulatory requirements, Amendment 166Q; the application of Section 150, Amendment 166R; offences, Amendments 166S and 166T; transitional provisions, Amendment 166U, which was also spoken to by the noble and learned Lord, Lord Boyd of Duncansby; judicial review, Amendment 166V; discharge requirements, Amendment 166W; and the decision-making period, Amendment 166VCA.

I can assure my noble friend that, as he suggested, we share the same goals. It is vital for the future of the UK that the major infrastructure planning regime must be as efficient as possible. If my noble friend will permit, I would like to consider the points he has raised in more detail and consult him and others between now and Report to see whether anything further can be done on the issues he has raised. With that assurance, I hope he will not move these amendments at the appropriate point.

Amendment 166KA, tabled by the noble Lords, Lord Greaves and Lord Tope, would remove certain types of development usually connected with underground projects from the definition of associated development in the Planning Act 2008. The ability to grant consent for associated development is critical to the operation of the single consent regime. The amendment would require developers to seek multiple planning consents for major projects, adding to the cost and complexity of making the application, which is precisely the situation we are trying to avoid, so I hope the noble Lords will not pursue this amendment too far.

Amendment 166UAB, which is also tabled by my noble friends Lord Greaves and Lord Tope, seeks to require a national policy statement to address carbon emission targets and national policy objectives on assessing and adapting to climate change. I fully sympathise with my noble friends’ concerns regarding climate change and carbon reduction, but the requirements of the Climate Change Act 2008 are binding on Ministers in the exercise of any of their functions, including national policy statements. Moreover, the Planning Act 2008 already places significant requirements in relation to climate change on Ministers when carrying out their functions in relation to national policy statements. I therefore do not believe this amendment to be necessary.

Amendments 166UZA, 166UZB, 166UAA, 166UBA, 166UBB, 166UCA and 166UE in the name of the noble Lord, Lord Berkeley, and Amendments 166UA, 166UB, 166UC and 166UD in the name of my noble friends Lord Greaves and Lord Tope, seek to provide for positive approval of national policy statements by both Houses of Parliament and remove the 21-sitting day timetable for consideration.

The 2008 Act provides both Houses with a full scrutiny role in relation to national policy statements and indeed this House has already undertaken a very detailed scrutiny of the first of them, including those on energy and waste water. This role will not change. The noble Lord, Lord Berkeley, asked about debates on NPSs. The 2008 Act provides for a Committee of either House to scrutinise national policy statements and, if they recommend it, for a debate to be held on the Floor of the House. The key point to note is that the Localism Bill supplements this with a requirement for approval in the other place.

National policy statements are policy documents, not legislation. This House has never had a role in approving policy documents and it does not automatically follow that because the Localism Bill provides for the other place to have such a role, this House should also. If both Houses had the authority to approve a national policy statement, but one were to reject it and the other approve it, this would call into question the legal standing of the document and any planning decisions that were to rely upon it. This could lead to extensive delay to both the national policy statements and the provision of vital infrastructure.

The discretion to approve a national policy statement using the negative procedure and the introduction of a timetable of 21 sitting days are intended to ensure that the approval process is both efficient and flexible. Their removal could ultimately result in further delay. It is important to note that the DPRRC raised no concerns about these provisions. Given this, and the explanations I have given, I hope that noble Lords will not press their amendments.

Amendment 166VZA, in the name of my noble friend Lord Jenkin, and Amendment 166VZB, in the name of the noble Lord, Lord Berkeley, would amend provisions of the 2008 Act which relate to electricity lines and railway projects respectively. I have considered these proposals carefully and concluded that in both cases the amendments could be effected by amending Part 3 of the Planning Act. The procedure already exists in secondary legislation to achieve this and therefore there is no need to adopt these amendments. On electricity lines, I would of course be delighted to facilitate a discussion between my noble friend Lord Jenkin and colleagues in the Department for Energy and Climate Change. On railways, I would be equally happy to meet the noble Lord, Lord Berkeley, and my officials in the Department for Transport to discuss the process further. In short, if there is a problem that needs to be ironed out, I am up for it.

Government Amendments 116VA, 116VB, 116VC, 116VD and 187A extend the new power in Section 116 of the Bill to Wales to cover non-devolved matters and provide greater flexibility in the acceptance of applications.

I hope that I have given sufficient reassurance to the Committee on the matters that concern noble Lords to allow them to withdraw the amendments they have proposed, and I hope the House will agree to the government amendments in the name of my noble friend Lady Hanham when the Question is put.

[Lord Jenkin of Roding]

My Lords, we have had an extremely good debate. I am very grateful indeed to my noble friend for his readiness to accept the need to re-examine the question of the transition and to make sure that the Bill is appropriate now that major decisions on infrastructure are going to be taken by the Secretary of State. That is the difference.

On the question of the approval of the national policy statements, I moved an amendment in 2008 to say that they should be not just scrutinised but approved. Therefore, I agree very much with the proposal in this Bill that the national policy statements should be approved. Indeed, as the noble Lord, Lord Berkeley said, the energy statements were approved earlier this week. The difficulty that was put to me at the time was: if you are going to have both Houses approving, what happens if one says one thing and one says the other? The argument could be that you then have some sort of ping-pong or something, but it is not legislation—that is the point that my noble friend has made. Therefore, although I have much sympathy with what the noble Lord, Lord Berkeley, said, I did not put my name to his amendments because I did not think that they were workable. My noble friend on the Front Bench has given a very good explanation of that. I am grateful to him for what he said and I beg leave to withdraw the amendment.

Localism Bill

Earl Attlee Excerpts

Tuesday 5th July 2011 Lords Chamber

[Lord Tope]

My Lords, I suppose I can rise to speak on behalf of the only party in this House that is unencumbered by a history of support for capping, but I will try to resist too much temptation there. My name is obviously with my noble friend Lord Greaves on his amendments. I think he is right and I hope that the Government will consider very carefully that fairly simple change to wording which, as others have said, is actually very important. If these provisions are to be in Bill—like my noble friend Lord Greaves, I would rather that they were not—it is important that we have a neutral wording and not a prejudicial wording, which “excessive” must be, especially if that wording is likely to be used either as part of a referendum question or at least in support of any such referendum.

My particular reason for wanting to say a few words now is to support the noble Lord, Lord Jenkin, both in his general and particular plea. The general plea relates to much less regulation and dictation from the Government, a message repeated throughout the Bill. It is salutary to remember that when Ministers first announced the Bill, it was greeted with a pretty widespread welcome right across local government. The aim and intention as enunciated by Ministers was, broadly speaking, welcomed. We knew that there would be some things in here that we would be less happy about, but we thought that most things we would be fairly happy about. Then we came to see the detail of the Bill and the extent to which, as others have said, if it is localism at all, it is localism top-down. It is also prescribed by ministerial regulation and it is potentially constrained by Secretary of State powers. I join the noble Lord, Lord Jenkin, in urging Ministers, during what will be a longer than usual gap between Committee and Report, to take courage and look seriously at whether we need to be so risk averse that we hedge everything with regulations, Secretary of State powers, and so on. I said at Second Reading that if we mean localism, we have to trust local government. Some may occasionally get it wrong, but is that a reason to legislate for the vast majority that are to be trusted and should be trusted?

I turn now to the particular of this, which is about council tax capping. I do not have to be quite as measured as the noble Lord, Lord McKenzie. I do not have to carry that history and I understand that. It is council tax capping, as others have said. In reality, it is probably the most effective capping that a Government have ever had, because I suspect that very few, if any, local authorities will take the risk of setting what is prescribed as an excessive tax. It will be a huge risk: not just the risk of whether they can or cannot win a referendum but the cost and administrative upheaval of having to rebill later.

That seems to me to fly in the face of a fairly basic principle of localism. I have always believed that it was a fundamental democratic principle that local councillors are elected—personally, I wish that they were elected under a fairer system, but, nevertheless, they are elected —to determine the needs of their local community and to balance those needs with the level of tax that has to be raised to meet them. That is a tricky balance. Then they are accountable for their decisions to the people who elect them, the local people. We come back to the fact that if there is to be a referendum on council tax levels, it should be the local people who determine the need for a referendum, not the Secretary of State. To me, that is what localism is about, and that is why I support both the general statements of the noble Lord, Lord Jenkin, and his particular in the amendment.

[Earl Attlee]

My Lords, this is a large group. I shall speak first to Amendments 129LZZZA, 129LZZG, 129LZZH, 129LZZJ, 129LZAA, 129LZAB, 129LZC, 129LZE, 129LZF, 129LABZA, 129LABZB and 129LBA.

These amendments from my noble friend Lord Jenkin would require a referendum to be held only in response to a local petition signed by local electors. I understand what my noble friend seeks to achieve. That may indeed be purer localism than the Government's approach, but there would be grave practical difficulties in going down that road. My noble friend seeks to allow the timing to be determined locally, but time will be very short for such a petition to be organised, as council tax must be set in early March. If democratic control is to be effective, and not just cause financial confusion, the electorate's endorsement or otherwise of the authority's decision should follow very soon after. Given the binding nature of the referendum, it would be necessary to establish that each signatory of the petition was a local government elector in the area. That would be a difficult, time-consuming, contentious and potentially expensive precursor to the main event, the referendum itself.

The amendments leave in place the notion of substitute calculations, but do not resolve with any certainty the basis on which those calculations should be made. In effect, the authority will be saying, “If you do not like this level of council tax, we will adopt that one”. Who is to say that the electorate will not feel the substitute to be excessive as well?

--- Later in debate ---

[Baroness Farrington of Ribbleton]

Will the Minister indicate a preparedness to discuss between Committee and Report the implications of the amendment moved by the noble Lord, Lord Jenkin of Roding? Having had discussions with the noble Lord when he was Secretary of State and I represented local authorities, I think the Government would find helpful such discussions on the practicalities of the issues, which appear to be the issues that the noble Earl, Lord Attlee, is relying on. The noble Lord, Lord Jenkin of Roding, is very knowledgeable about the history and the implications and he would be extremely helpful if the Government were minded to move to quell the fears of the noble Earl, Lord Attlee.

[Earl Attlee]

My Lords, I am extremely grateful to the noble Baroness because I passed by my handwritten notes and did not read them out. My noble friend Lord Jenkin set some homework for Ministers during the Recess. We will carefully consider the Committee’s deliberations, and we are grateful for all noble Lords’ counsel, even if we do not agree with all of it.

The amendments in the name of my noble friend Lord Greaves would change the wording of new Section 52ZB so that an authority is no longer required to determine whether it has set an “excessive” increase in council tax. Instead it is required to determine whether the increase is,

“higher than the level recommended by the Secretary of State”.

We consider that it would not be appropriate to change the wording of the new section in that way. The question of whether an authority’s relevant basic amount of council tax for a financial year is excessive will be decided in accordance with a set of principles determined by the Secretary of State and approved by the House of Commons. If an increase in council tax is then set locally that exceeds the level anticipated by those principles, it is perfectly reasonable to call it excessive. The increase might be justified, but the authority will have to persuade the electorate of that. It would be excessive because it exceeded the norm adopted by most authorities. The Government’s policy on this must be set against the background that average council tax increases have been high over the years, and in many years higher than inflation. This Government have taken steps of their own to help move away from this position, notably by funding a council tax freeze for this year. Ultimately, however, the best way to control excessive local expenditure is to make sure the local electorate can put a stop to it.

[Lord Greaves]

The Minister said that it will be up to the local authority to persuade the local electorate of the case that it is putting forward. Is it not the case that local authorities will not be allowed to spend money on campaigning in such referendums?

[Earl Attlee]

My Lords, I am not certain of the details, and I hope we will come to a suitable amendment to debate that.

[Lord Jenkin of Roding]

The noble Lord, Lord McKenzie, asked that specific question last Thursday, and my noble friend gave this very specific answer:

“The noble Lord, Lord McKenzie, asked whether authorities can campaign for the proposed increase in council tax. No, it is intended that they cannot. They must put the facts to the electorate and leave them to decide but individual councillors will be free to campaign”.—[Official Report, 30/06/11; col. 1971.]

Is he saying that that stands, or is that not right now?

[Earl Attlee]

I am extremely grateful to my noble friend for refreshing my memory. He is absolutely right; that is the current situation.

[Lord McKenzie of Luton]

The Minister seems disinclined to accept the amendment, which would remove the word “excessive” from the legislation. Will he give an undertaking that the word “excessive”, as applied to the proposed council tax of any local authority, will not have to feature in any referendum question?

[Earl Attlee]

My Lords, I hope to give the noble Lord some comfort on that. Within the context of that policy, the Government think they are right to refer excessive increases and to require that such increases be approved via a referendum. There is enough flexibility in these provisions to enable sensible principles to be defined. The Secretary of State has the power to set different principles for different categories of authority; and, in exceptional circumstances, if an authority is unable to discharge its functions in an effective manner or unable to meet its financial obligations, he can disapply the referendum provisions altogether.

[Lord Beecham]

What sort of categories might the Secretary of State have in mind? Is the noble Earl referring to types of authority, or are there some other criteria that the Secretary of State is likely to adopt?

[Earl Attlee]

My Lords, my understanding is that they are the different types of precepting authorities, but I will clarify that in writing to the noble Lord. No doubt there will be other matters that we will need to write on in due course.

Many noble Lords have asked me questions. The noble Lords, Lord Greaves, Lord Tope and Lord McKenzie, suggested that the word “excessive” in a referendum question might prejudice the result. Noble Lords made me think hard about this point but inspiration arrived. It might be possible to ensure that referendum questions do not prejudice the matter, and we will consider this point over the Summer Recess.

The noble Lord, Lord McKenzie, asked whether these measures are capping powers and whether the Government would be happy to see voters support a higher and excessive level. If voters make an informed decision to support higher council tax, the Government will be perfectly happy. That is the principle behind the legislation. In view of what I have said, I hope noble Lords will feel able to withdraw their amendments.

[Baroness Scott of Needham Market]

Before the noble Lord decides what to do with his amendment, will the Minister undertake during this gap to look at some dictionaries for definitions of “excessive”? I have taken advantage of the new rules of the House and googled the word. The definitions all say that it describes a quantity or amount exceeding that which is justifiable, tolerable or desirable—for example, excessive drinking. So will the noble Lord accept that “excessive” is a term that has connotations, whatever its original and absolute meaning might be? I agree with my noble friend Lord Greaves that it does not have a place in legislation.

[Earl Attlee]

My Lords, I cannot agree with my noble friend's point that it does not have a place in legislation, but I undertake to consider whether the word “excessive” is appropriate in the referendum question.

[Lord Greaves]

I am grateful for that; it is a step forward. If the Government are to do that over the Recess, will they consult the Electoral Commission about that matter, as it is a referendum question?

[Earl Attlee]

My Lords, I think it would be extremely unlikely that we did not take advice from the Electoral Commission.

[Lord Jenkin of Roding]

My Lords, we have spent more than half an hour on this amendment, following the speech of the noble Lord, Lord Shipley, on Thursday. I think the Government have got the message. I am extremely grateful to my noble friend Lord Attlee for undertaking to cogitate on these matters between now and Report. I understand some of the difficulties that his officials have put before him, but I was very encouraged to hear him say that he read from his own handwritten notes in response to the noble Baroness opposite when he said he would look at all these matters again. In the light of that assurance, I hope the noble Lord, Lord McKenzie, will forgive me if I do not go into detail about what the results of this might be. I do not regard these amendments as an infallible way of achieving the overall purpose of less top-down government control and more control by devolved local authorities. They are accountable to their electors and I suspect that my noble friend Lord Attlee really will look at this, as he said he would. I shall be happy to help him, and I shall perhaps bring along some of those who have been advising me on these matters. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord McKenzie of Luton]

My Lords, this is a straightforward matter and I hope it will not detain us for long. In determining the principles by which a level of council tax is considered to be excessive—or whatever replacement word we may have—the Secretary of State can adopt different principles for different categories of authority, a point just raised by my noble friend, but such principles must apply to all authorities in the same category. There is nothing new in that and similar arrangements operate under existing capping rules. In determining categories of authority, the Secretary of State must take into account any information which he thinks is relevant. In the interests of transparency, this amendment simply requires those reasons to be set out in the report on the principles, which must be laid before the House of Commons.

This is especially important because, in government terms, these matters are to be determined by the public. I do not know whether the Minister can expand a little on what type of principles are likely to be identified in the circumstances which would help members of the public, if they were to vote, and how and what information would be conveyed to them.

[Earl Attlee]

My Lords, this amendment appears to assume that the Secretary of State will inevitably determine different categories of authority in a set of principles. That is not necessarily the case. The proposed new Section 52ZC allows the Secretary of State to determine different categories of authority, but he may also decide to apply the principles equally to all authorities. Without pre-judging the Secretary of State's decisions, he may, for example, determine as a category districts, councils, counties, metropolitan boroughs, police or fire authorities, which I think fully answers the question that arose in the previous group of amendments. That would be a matter for the Secretary of State to decide on a yearly basis. The Secretary of State is already required to set out his principles in a report to the other place. It is inevitable that the reasons for the principles will be debated there before the other place gives its final approval. Therefore, the proposed new clause is unnecessary and I urge the noble Lord to withdraw the amendment.

--- Later in debate ---

[Lord Greaves]

My Lords, I have a later amendment, Amendment 129LEA, which is on its own. I would have included it in this group if I had quite understood what the latter part of the amendment tabled by the noble Lord, Lord McKenzie, was about. The new Section 52ZR, which the Bill would insert into the Local Government Finance Act 1992, provides for the Secretary of State to give a direction,

“that the referendum provisions do not apply”,

because,

“the authority will be unable to discharge its functions in an effective manner or … the authority will be unable to meet its financial obligations”.

When speaking in the stand part debate introduced by my noble friend Lord Shipley last week, the Minister referred to this briefly when he said that these provisions would be used only in very extreme circumstances, such as,

“where the High Court has exercised its powers to appoint a receiver where an authority has failed to service its debt”.—[Official Report, 30/6/11; col. 1971.]

I do not know how often that happens, but I do not think it has happened, certainly in England, in my lifetime. It seems very rare, so I tabled Amendment 129LEA for the purpose that the noble Lord, Lord McKenzie, tabled his amendment: to probe the Government on exactly what kind of circumstances this provision might be used in. In view of that, I will listen carefully to the answer in this grouping, and I will not move my amendment when we get to it.

[Earl Attlee]

My Lords, Amendments 129ZB and 129LAB would add the words “non-domestic rates” to new Section 52ZF(3)(a) and new Section 52ZJ(4)(a). There is no need to do this. The wording “redistributed non-domestic rates” covers the sums that would have to be taken into account in respect of non-domestic rates when an authority carried out its original council tax calculations.

The noble Lord, Lord McKenzie, asked whether amounts of non-domestic rates are fully redistributed. The answer is yes, by virtue of Schedule 8 to the Local Government Finance Act 1988. When making substitute calculations to determine an amount of council tax that is not excessive by reference to the principles under the new Sections 52ZF and 52ZJ, an authority must use the amount determined in its previous calculations for redistributed non-domestic rates. This is because an authority should not be able to change its estimate of the amount it will accrue in the year in respect of redistributed non-domestic rates to calculate an amount of council tax which complies with the excessiveness principles.

[Lord McKenzie of Luton]

Perhaps I can help the Minister. The purpose of these amendments is much more straightforward than that. It is simply to try to cater for the situation where we no longer have redistributed non-domestic rates but have directly billed non-domestic rates. That is the sole purpose.

[Earl Attlee]

My Lords, these are complex matters, and I am advised that I should read it all out.

Subsection (8) of new Section 52ZN provides the Secretary of State with the power to modify or disapply a billing authority’s entitlement to recover costs in connection with a council tax referendum from a precepting authority. Amendment 129LAC would remove this provision. This power is needed so that the Secretary of State may make different provision for the recovery of costs in a situation in which a number of billing authorities are required to hold a referendum on a major precepting authority’s increase in council tax but one billing authority fails to do so. In this situation, it would not be appropriate for those billing authorities to recover their costs from the major precepting authority. Provision may instead be made for the billing authorities to recover their costs from the defaulting billing authority. We are aware that the Delegated Powers and Regulatory Reform Committee’s report on this part of the Bill recommended that this power should be subject to the affirmative procedure. We will consider that recommendation carefully and will return to the matter in due course, if required.

Amendment 129LE seeks to limit the matters the Secretary of State may make provision for in regulations regarding the conduct of council tax referendums. The regulations would include setting out what is acceptable in terms of publicity, expenditure, the conduct of authorities, their members and officials, and the counting of votes, so these are significant issues. We consider that it is important that these matters be prescribed in regulations, as an authority will be bound by the result of the council tax referendum, in contrast to a local referendum. It is intended that the regulations made under these powers will be modelled on the Local Authorities (Conduct of Referendums) (England) Regulations 2007, which make provision in relation to the conduct of referendums on local government executive arrangements. I can assure the noble Lord that the regulations will be subject to consultation with the Electoral Commission.

--- Later in debate ---

[Earl Attlee]

My Lords, I can assure my noble friend that my words are very carefully chosen.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for his very full response to these amendments. We will need to read the record to see what we wish to take forward from this, but I just want to follow up the point about the reserve powers that the Secretary of State is to have.

I can see that such powers would be necessary in a range of circumstances—including in catastrophic circumstances, at one end of the spectrum—and we are not arguing that, at the other end of the spectrum, there should be an automatic right to go to an unelected body to try to get off the consequences of this legislation. However, there could well be circumstances in-between. It may be that the solution would be—and perhaps this is what the Minister was suggesting—that you would separately designate a particular authority as a special category, but in general these regulations will be applied to groups of authorities, if not all of them together. Although the Government may well take the view that in aggregate they have enough to fulfil their functions, there could be circumstances of individual authorities where that is simply not the case. To be able to convince an electorate in a referendum that that is the case may not always be easy. There could be circumstances around litigation or sensitive commercial discussions where simply to spell out the upside and downside of that information provided in a referendum could be detrimental and prejudicial to the local authority. Therefore, has there not got to be some other safety valve in those sorts of circumstances, which are not the authority defaulting on its debt but the authority potentially getting into quite severe difficulty because of the potential downside of a court case, for example? It would be left not able to raise the level of tax that it thought that it should be able to deal with.

That is the point we are probing, which we have coupled with a right for an independent assessment in those circumstances. I ask the Minister to consider that point seriously. Whatever the supposed evils of capping at the moment, one of the benefits was that at least it was looked at on an authority-by-authority basis. If you had an authority which was in a sense in a particular circumstance, that could be taken account of within the principles that had been set. That seems to be not available under this formulation, which is a real issue.

[Earl Attlee]

My Lords, while not agreeing to take the matter away, I will unpack the issue with my officials and, if necessary, write to the noble Lord.

[Lord McKenzie of Luton]

I am very grateful for that. I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Earl Attlee]

129LA: Schedule 5, page 266, line 45, leave out from “Acts” to end of line 2 on page 267

--- Later in debate ---

[Earl Attlee]

My Lords, government Amendments 129LA and 129LB ensure that only residents and not business voters are entitled to vote in any council tax referendum in the City of London. This addresses an anomaly which has become apparent since the clauses were originally drafted. Without the amendment, business voters in the City would be able to vote in a council tax referendum even though they are not resident in the area. The amendments therefore provide that it is only the residents of the City of London who can vote, which will bring the City in line with the position in the rest of England regarding council tax referendums. I beg to move.

[Lord McKenzie of Luton]

My Lords, we are happy to support these amendments.

--- Later in debate ---

[Earl Attlee]

My Lords, this amendment seeks to allow an authority another bite at the cherry if it loses a council tax referendum. It also is surprising to note, given the previous debate, that the amendment would give the Secretary of State a new power of direction. A council tax referendum will present a clear option to voters: to vote for either the authority’s preferred increase or for an increase that does not breach the excessiveness principles. This amendment would allow the authority to apply to the Secretary of State to set an excessive increase in council tax when the local electorate have voted against this, thus allowing him to override the referendum result.

The noble Lord suggested that an extraordinary situation could arise locally. However, the electorate would be aware of that when they chose whether to vote for an excessive increase or not. The principle of this provision is that the local electorate should take the decision and not the Secretary of State. The Secretary of State has a power to direct that the referendum provisions are not to apply. However, he may use this power only where the authority is unable to discharge its functions in an effective manner or is unable to meet its financial obligations. The expectation is that this power would only be used in exceptional circumstances, such as where the High Court has appointed a receiver where an authority has failed to service its debt. It would not be appropriate for the Secretary of State to be able to direct that an authority may set an excessive increase in council tax and take the power of veto away from local electors as a matter of routine. I therefore urge the noble Lord to withdraw his amendment.

[Baroness Scott of Needham Market]

Will the noble Lord consider a scenario in which a local authority is required to increase substantially its council tax because it has to pay one of the EU fines being introduced by the Government in an earlier part of the Bill?

[Earl Attlee]

My Lords, I hope that the need to pay an EU fine will be an exceedingly unlikely event.

[Lord McKenzie of Luton]

My Lords, I am grateful to the noble Lord for his response but I do not think he really dealt with the question about an EU fine. It is provided for in this Bill and if the provision is removed we would all be delighted. A fine could be visited on a local authority at the last minute potentially after it has set its budget and its referendum detail is public.

I want to return to what happens if there is a challenge to the referendum—the Bill allows for that—and that challenge is sustained. If a local authority is deemed to have an excessive council tax increase—we must stop using that term otherwise it is going to be inculcated in our own speech as well as the text of the Bill—it has to hold a referendum. If that referendum does not support the council tax increase but is subsequently determined to be flawed, what are the consequences? It seems to me there are no provisions for the Secretary of State or anyone else to bring redress to the local authority which has been on the receiving end of malpractice in respect of the referendum.

--- Later in debate ---

[Earl Attlee]

My Lords, I imagine that the local authority will have to adhere to its reduced budget but, if I have anything to add on that point, I will write to the noble Lord.

[Lord McKenzie of Luton]

I beg leave to withdraw.

--- Later in debate ---

Moved by

[Earl Attlee]

129LB: Schedule 5, page 271, line 33, leave out from “Acts” to end of line 37

--- Later in debate ---

Moved by

[Earl Attlee]

129M: Schedule 5, page 280, line 29, at end insert—
“(ba) the amount of any levies and special levies—(i) issued to it for the year, or(ii) anticipated by it in pursuance of regulations under section 74 or 75 of the 1988 Act, or(c) the amount of any expenditure it estimates it will incur in the year that will be qualifying expenditure in taking steps to give effect to the result of any qualifying local referendum held in an area consisting of, or including, the whole of its area.”

[Earl Attlee]

My Lords, I shall speak also to government Amendments 129N to 129U. This group of amendments addresses two specific issues concerning the calculation of whether an authority’s council tax is excessive. First, the amendments ensure that a referendum on a council tax rise is not triggered solely because of planned expenditure which has already been explicitly supported in a local referendum. The amendments apply where a qualifying local referendum is held across the whole of the billing authority area, the county council or the GLA. In such circumstances, an authority may be able to disregard qualifying expenditure that it estimates it will incur in taking steps to give effect to the result of that referendum when calculating whether an increase in council tax is excessive. This means an authority will not have to take this expenditure into account when determining whether it must hold a council tax referendum.

The conditions for qualifying expenditure and qualifying local referendums will be prescribed by the Secretary of State in regulations. The regulations will include matters such as the information that must be available in advance of the local referendum, the time period within which the local referendum must have been held and restrictions on the expenditure that may be disregarded. For the avoidance of doubt, we are making changes only to the calculation which determines whether a council tax is excessive. We are not changing the calculation of council tax itself.

Secondly, the amendments ensure that increasing levies, which have to be treated as part of the billing authorities and certain major precepting authorities’ expenditure for council tax purposes but are outside their control, do not tip the balance in requiring an authority to hold a council tax referendum. These amounts will therefore also not be taken into account when an authority calculates whether its council tax is excessive. I beg to move.

[Lord McKenzie of Luton]

My Lords, I think that I am grateful to the noble Earl for his explanation but I would like to read the record. These seem not unreasonable amendments.

--- Later in debate ---

Moved by

[Earl Attlee]

129N: Schedule 5, page 280, line 30, after “than” insert “a county council or”

Localism Bill

Earl Attlee Excerpts

Tuesday 5th July 2011 Lords Chamber

[Earl Attlee]

My Lords, I suggest that we go into the detail of the amendments and then, if the noble Lord wishes, have a good stand part debate.

[Lord Cameron of Dillington]

On the whole of Chapter 4? At which stage? After the first amendment?

[Earl Attlee]

On the appropriate clause stand part debate.

[Lord Hodgson of Astley Abbotts]

My Lords, I am extremely grateful to my noble friend for her explanation. She gave us quite a lot of information at a fairly rapid rate. I have been scribbling down some of the points that she made, and I found myself very sympathetic with her comments about the need for balance and the need to satisfy certain criteria. Then she turned to the question of consistency across the country and a national standard. That is where my Amendment 136 comes in. It inserts in Clause 74(5) the requirement that there should be a definition of an asset of community value. That establishes consistency across the country.

I have not participated in this Bill so far, so I should make it clear at the beginning that I support its thrust. I favour community empowerment. I think it is a good Conservative principle, and I am on the side of the little battalions. Indeed, having just chaired a task force on red tape and having seen hundreds of examples from across the country, one or two of which I may refer to later, I know how important and vibrant local community feeling is, so I very much support the localism idea. Perhaps I may take a minor swipe as I go past. It is rather extraordinary that we should, as a party or Government, appoint Sir Terry Leahy, the ex-chief executive of Tesco, as our adviser. Sir Terry Leahy has had a very distinguished career, building up Tesco nationally and internationally, but his entire career has been devoted to destroying localism. His plan, of course, is to have a Tesco store on every corner, and every butcher, baker and candlestick-maker should be wiped out. It is a slightly strange appointment, but there we are.

I agree with my noble friend that there is a balance to be struck between the community entitlement and the right to private property. This amendment, and indeed the later amendments which I shall be speaking to—probably at our next sitting of the Committee—seek to explore this balance and discover the Government’s thinking.

I first need to declare at least a couple of interests. The first is that I am the senior independent director of a listed company, which is one of Britain’s largest brewers and pub operators. We operate five breweries and over 2,000 pubs across the country, some of which are managed and some of which are tenanted; we are an integrated business, not a pubco. Some of what I say will therefore have a pub flavour about it, if I may use that phrase, but I think there is a good deal of read across to other assets which are of interest to the community and on which I am sure other noble Lords will wish to speak. The other interest that I ought to declare is that I am president of the National Council for Voluntary Organisations, and—before someone else points it out—the NCVO has briefed against my amendments, which just shows that that is what makes horse racing. There is clearly a balance to be struck.

My concerns and my reasons for speaking to this amendment are partly philosophical and partly practical. I will deal with the philosophical point first. As my noble friend has made clear, the right to enjoy one’s private property is an absolutely fundamental part of our society. The Englishman’s home is his castle: it provides stability for our society; it provides people with a stake in our society and in the order of that society. If I may exaggerate grossly to make a point, development experts will say that property rights are a key part of any country developing satisfactorily. If you do not know when your property may be removed from you, why bother to invest? Merely go and stick it in Switzerland and wait for the inevitable to happen. I am not in any way suggesting that there will be wholesale expropriation. I am, however, suggesting that there may be the law of unintended consequences. It may deter people from offering their assets for use by the community, for fear of precedent; and as noble Lords will have seen in the briefings we have had, woods, cricket pitches and use of buildings are all issues that have been raised by various interest groups talking about the background to this Bill. It would surely be a shame if we were to impede much worthwhile activity at a local level.

So much for the philosophy; what practically needs to be done? My amendment suggests that we should insert a definition on what constitutes an asset of community value on the face of the Bill. This will reduce the fear of the unknown factor. What factors and issues could be included there? I think there is an argument that it should only operate for local businesses. I understand that the wish is to have farm shops, village stores, restaurants and pubs, but national chains—even Sir Terry with his store—might not be as appropriate as an asset of community value. The question is also whether there is any alternative provision in the locality; if there are two restaurants or two pubs, for example, should one of them be able to be listed? As the noble Lord, Lord Greaves, said, there needs to be some distinguishing between the service that is being offered and the premises in which it is being offered. Many communities will like having a shop, a post office, or a shop and post office combined, but suppose it is bought up by the community and turned into an antique shop; that is rather a different issue.