Subterranean Development Bill [HL]

Lord Jenkin of Roding Excerpts

Friday 10th February 2012 Lords Chamber

[Lord Jenkin of Roding]

My Lords, I congratulate my noble friend on bringing forward this Bill. Some of us attempted to persuade the Government during the passage of the Localism Bill, which my noble friend Lady Hanham was in charge of in this House, to add something that would deal with the very real problem faced by many residents in parts of London. My noble friend Lord Selsdon has given the historical background. I am very concerned by the growing volume of major protest that has arisen because of some of the basement developments across areas of Westminster, Kensington and sometimes Hammersmith and Camden. They are not just by people looking for living accommodation.

Many of these major developments are for swimming pools and gyms. I have been told that a wealthy house owner can spend £750,000 excavating and putting a swimming pool into the basement. That sounds all right except for the horrendous impact on neighbours. Those of us who have seen some of the correspondence and read the reports of some of the associations that have pursued this matter cannot understand how this has been allowed to go on. There are problems with the extent of planning control. My noble friend Lady Hanham explained some of that during the passage of the Localism Bill, but this has to be dealt with.

I will make only one other point, as I sense that the House wishes to reach the next bit of business on the Order Paper. I took a deputation to see my noble friend, with people who have really endured the appalling conditions presented by some of these uncontrolled developments in next-door basements. When my noble friend heard the accounts, she turned to her officials—I hope I am not disclosing anything that I should not—and said, “This problem must be dealt with. It must be solved”. I take great comfort from that statement that she will smile on this Bill.

My noble friend Lord Selsdon has introduced many—indeed most—of the protections that the residents in these areas are looking for. That is not to ban all basement development but to subject it to a code of practice and certain rules that aim to minimise the disruption for neighbours. I was intrigued by the historical account that my noble friend Lord Selsdon gave to the House, but the problem is happening today in parts of London and one or two other cities in the country. It has to be dealt with; this Bill attempts to deal with it, and it has my wholehearted support.

Localism Bill

Lord Jenkin of Roding Excerpts

Monday 31st October 2011 Lords Chamber

[Lord Berkeley]

My Lords, I support the concept of this amendment, but we are in danger of making even more laws when we cannot enforce the ones we have. I find pretty incredible the idea of somebody such as a litter warden—I do not think the police would do it—chasing every car that goes down a country lane to see whether something falls out of the window and then trying to identify who threw it via the keeper. The same could apply in parks or on the roads. Who is going to enforce these laws? I wonder whether either of the noble Lords who have put their name to this amendment could actually tell the House how many convictions there have been for dropping litter, even without this amendment, since the law came into effect. I am afraid that it is probably a solution that is nice to have but will not make much difference. We have to do much more to educate people about not throwing litter or dumping things and helping them, as my noble friend Lord Judd said, to have more pride in the environment in which they live.

[Lord Jenkin of Roding]

My Lords, I, too, support the amendment, but I have only one question to ask my noble friend who is going to reply. When he replied on 10 October, at col. 1370, it was perfectly clear that he had been briefed about the London Local Authorities Bill currently before Parliament. I had made the point that it was awaiting some technical changes to be approved by the Government. The Ministry of Justice and no doubt the DCLG will also have been involved. Can my noble friend tell me anything more about that? How long are we going to have to wait before that Bill can be made to work? That is what we are waiting for, and at the moment it is in the hands of the Government. Can she tell me anything about that?

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[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?

[Lord Jenkin of Roding]

My Lords, the noble Lord, Lord Berkeley, spoke to his amendment so comprehensively that I want to add only one point. As my noble friend on the Front Bench indicated, the Government’s own amendment came to light only a week ago. I should like to say a very warm thank you to him and to the officials who recognised so swiftly that there had to be a change to the 2008 Act to prevent quite unnecessary use of the special parliamentary procedure, or SPP.

I endorse what the noble Lord, Lord Berkeley, said: there are still too many examples where such procedures will or could need to be invoked. If anybody makes an objection—for instance, where one is dealing with local authority land—and that objection is sustained, it will have to go through this special parliamentary procedure. While the decisions on major infrastructure projects were being taken by the Infrastructure Planning Commission, a quango, that may have been a necessary parliamentary protection. However, as the noble Lord, Lord Berkeley, has said, under the new procedure, perhaps from April 2012, these decisions will be taken by a Minister accountable to Parliament. This changes the nature of the necessity for these other protective procedures to be built in.

Like the noble Lord, Lord Berkeley, I would very much welcome an indication from my noble friends on the Front Bench that they will look at this again. I understand that, in the short time that we have had to deal with this—it came up only on Report in this House—it has been difficult for Ministers to go as far as we would perhaps like. However, with the review coming up, there seems to be an opportunity to have another look at this so that it gets somewhat nearer the one-stop shop that was originally offered by the Ministers in the previous Government as being the major benefit of the new Infrastructure Planning Commission. It most manifestly is not a one-stop shop at the moment. Maybe it never could be a one-stop shop but it could certainly have fewer than the 42 consents that are necessary for these major projects. I hope my noble friends will be able to give us some reassurance that they are sympathetic to this and will, in the review, look at it very carefully with a view to coming somewhat nearer the original objective that was held out to Parliament when the 2008 Act was introduced.

[Lord Boyd of Duncansby]

My Lords, I declare an interest as a Scottish solicitor who is registered as a foreign lawyer in England and Wales. I also have an interest in planning. I thank the noble Earl for bringing forward Amendment 53, which deals with a real anomaly. I also support my noble friend on Amendments 87 and 88. Much of what I would say has already been said, but I shall just add a couple of points.

On the special parliamentary procedure, on Report my noble friend Lord McKenzie expressed some reservations about the abolition of what was perhaps seen as a protection. However, the point that my noble friend Lord Berkeley has made is that it is a heavier regime than that which pertained under the Transport and Works Act and the Harbours Act. Therefore, it seems curious that we have made the development consent orders regime more onerous than it was under those two Acts. I do not suppose that my noble friend will press his amendment tonight. However, I hope that the Minister will confirm that the operation of the special parliamentary procedure will be part of the review. Perhaps that will give us an opportunity to look at it and reassure those who are sceptical about removing the protection, giving them some comfort that the protections will still be there in the role of the Secretary of State and his accountability to Parliament.

Amendment 88 would do away with the large number of consenting regimes that are still in place, or at least significantly reduce them. It is not the case that doing away with these consenting regimes somehow removes protections, because protective provisions will be put into the development consent order. That is the crucial thing, and there are plenty of examples, again under transport and works orders, of protective regimes being put into place. I gave an example earlier in the proceedings of this House.

We have to strive to get a one-stop shop. If there is bureaucratic inertia to addressing this issue, then it is up to Ministers to argue the case in government against those who are suggesting that we cannot do anything about that. We need to get a more streamlined process, so that development is not held up simply because we have to go through yet another procedure. I welcome the forthcoming review, and I hope that will give us an opportunity to clear up some of these anomalies that have been left over from previous systems and planning regimes.

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[Lord Jenkin of Roding]

My Lords, of course, I am very grateful indeed to my noble friends for having, at this late stage, agreed these amendments. I cannot do better than quote a note I received only this morning from London Councils. It states that this is a notable change in the Bill and one that borough councils will very much welcome in years to come. I would endorse that very warmly. I thank my noble friends.

Amendment 61 agreed.

House of Lords Reform Bill [HL]

Lord Jenkin of Roding Excerpts

Friday 21st October 2011 Lords Chamber

[Lord Wright of Richmond]

My Lords, earlier I expressed the view that nothing in this Bill pre-empts further discussion on the government Bill. Surely the noble Earl’s amendment does precisely that.

[Lord Jenkin of Roding]

My Lords, when I looked through the list of amendments that had been tabled earlier in the week, particularly the very large number tabled by my noble friends Lord Trefgarne and Lord Caithness, I said to myself, “I have been in both Houses of Parliament for a number of years but I have never seen such a collection of wrecking amendments”. Wrecking amendments are not a formal part of the machinery of this House, but one recognises what one sees. If I may say with great respect to my noble friend Lord Caithness, there could not be a better example of a wrecking amendment. My noble friends have made it abundantly clear that they do not want this Bill to pass, and that is what they are up to—

[Lord Hughes of Woodside]

My Lords—

[Lord Jenkin of Roding]

I am sorry but I will not give way because I am going to sit down in a second. I do not think that this House should allow itself to be deflected in this way. My noble friend Lord Tyler made a good point in the earlier debate, which is that it does not do this House any credit to become involved in the sort of shenanigans that we are being subjected to today by my two noble friends.

I end with one other point, and I hope that the right reverend Prelate the Bishop of Leicester will agree with it. I was brought up to love the sinner and hate the sin. My noble friends remain my friends, but I think that they are making a most disastrous mistake.

[Lord Hughes of Woodside]

My Lords, I understand exactly what the noble Earl is saying. It may well be that some of us are going to relearn the process of wasting time in order to avoid a Bill being passed. As the noble Lord says, that may be the motive behind all these amendments. But I do not consider it right for him to say that this is a wrecking amendment.

How can an amendment to change the name of this House in 2020 possibly be a wrecking amendment? It may not be an amendment that will find favour with many people, but it is certainly not a wrecking amendment. But as far as tactics are concerned, it does this House no good for Members to cast aspersions on the motives of other Members. I am sure that all of us who have views on this Bill have good motives. Earlier today the noble Lord, Lord Steel, was accused of being discourteous in withdrawing Clauses 1 to 9. He was not being discourteous; he was using the well-known political ploy of keeping your opponents guessing. There is nothing wrong in that. So let us not start chucking motives around.

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[Lord Jenkin of Roding]

My Lords, just to comment on what the noble Viscount has said, the amendment is not relevant to this Bill. It has been put in to enable a debate to take place. Whether people agree with it or not, it does nothing to further the remaining clauses of the Bill, of which this House seems to be in total support. That is my point, and anybody who puts amendments down for that purpose seems to me to be tabling what is properly described as a wrecking amendment.

[Lord Howe of Aberavon]

My Lords, one very short reason for refraining from supporting this proposition is the fact that the Welsh Assembly is known as Senedd, which has been adopted because it is the original meaning of the word senate. Senedd in Welsh means a “law-making Assembly”. If we were to become an English law-making Assembly, it does not seem to me suitable. Senedd and senate would be capable of confusion with each other, so let us for heaven’s sake stay where we are.

Localism Bill

Lord Jenkin of Roding Excerpts

Tuesday 19th July 2011 Lords Chamber

Moved by

[Lord Jenkin of Roding]

153AM: Clause 107, page 84, leave out lines 33 to 35 and insert—
“Consultation: code of best practice61W Code of best practice for consultation
(1) The Secretary of State must publish and keep under review a code of practice relating to the carrying out of consultation in cases where—”

[Lord Jenkin of Roding]

My Lords, I shall discuss with this amendment the three others in the group. I can deal with Amendments 153AM and 153AN very briefly. What is proposed here is that instead of having all these requirements laid out in statutes, where they become rigid and less amended, they should form part of a code of practice. That should have exactly the same effect but can be tailored to suit the changing circumstances of the time.

Amendment 153AM is the paving amendment, as it were, but Amendment 153AN would take out almost a page of the statute. It seems to me that is a sensible way of trying to deal with the requirements on pre-consultation. If one is dealing with the major infrastructure units which will go the IPC or to MIPU, then of course there has to be a very substantial programme of pre-consultation. I welcome the Government’s proposal to extend the same sort of provision to the ordinary planning application.

The last amendment in the group in my name is Amendment 153C. This raises an interesting point which was put to me by the United Kingdom Business Council for Sustainable Energy. That body is puzzled as to why the Government have decided that the relevant measure must be statutory. The Government have stated in the past that it is for the developer to decide what level of consultation is proportionate and appropriate. However, Clause 107 amends Section 61 of the Town and Country Planning Act by adding a range of provisions, including new Section 61Y, headed “Power to make supplementary provision”—my amendment proposes to take that out—which allows for local authorities to make a development order to set out publicity and consultation requirements which the developer will be required to follow. There is clearly a contradiction between these two requirements: the Government having stated that it is for the developer to decide the level of consultation, and the Bill stating that the development order will set out requirements in that regard. Therefore, Amendment 153C is a probing amendment to explore the divergence between what appeared to be the Government’s stated objective of allowing developers to decide what is proportionate and this new facility for local authorities to define what must be done through the new Section 61Y powers. I look forward to my noble friend’s reply. I beg to move.

[Lord Renfrew of Kaimsthorn]

My Lords, I rise to speak to Amendment 153B, which is grouped with the amendments of my noble friend Lord Jenkin of Roding, although it is on a rather different theme. I believe that this amendment has the support of most of those concerned with the cultural heritage of this country, and certainly of those concerned with the understanding of the prehistoric and early historic past of our land. It is needed to ensure that the Bill ensures that heritage issues are not ignored in the course of development.

Members of your Lordships' House will recall that the Heritage Protection Bill, which was supposed to be given consideration in the previous Parliament, had the intention of placing the maintenance of the historic environment record as a statutory duty upon local planning authorities. That did not happen, nor is it proposed here, but it is imperative that all developments have some regard to the historic environment and take steps not to damage it, or at least to do so only after careful consideration and with any necessary actions by way of mitigation.

These obligations do not appear on the face of the Bill and it seems very desirable that they should do so. It seems that as part of the new neighbourhood development plan process there will be no opportunity to carry out pre-application assessment in the same way as for other development under the normal planning application process. This is all the more serious since most archaeological sites are undesignated; that is, they are not scheduled monuments or otherwise protected. This point was discussed earlier in relation to Amendment 145B. This leaves a glaring loophole in the Bill.

My amendment is drawn up in such a form as to place on the developer the obligation to seek the advice of the local planning authority about the historic environment. That implies that the local authority must have access to the relevant historic environment record. This amendment deliberately sets no obligation upon each local planning authority to maintain such a record. Ideally, each will have its own record, but there may be cases where two or three local planning authorities can share a single historic environment record. We are not setting out to be prescriptive in that respect, but it is implied in the amendment that the authority shall at least have access to such a record. Is it conceivable that development should go ahead without the local authority giving consideration to the historic environment on the basis of good and up-to-date information?

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[Lord Shutt of Greetland]

My Lords, I have to say that during discussion on the Bill, noble Lords are constantly saying that the Government are being too prescriptive, on the one hand; or, on the other hand, that the Government need regulations or some backstop somewhere. It seems to me that there is balance in all things. What I have read out is the balance perceived at this point. This is Committee, so, as always, the comments of noble Lords will be taken into account.

[Lord Jenkin of Roding]

My Lords, I am grateful for that last comment and most grateful to the noble and learned Lord, Lord Boyd of Duncansby, for his support for my amendment. It is extraordinary how differently those of us on the Back Benches and my noble friends on the Front Benches can view the same proposal. In my innocence, I thought that a code of practice was rather simpler than a substantial statutory provision. Obviously, my noble friend Lord Shutt does not think so. We will look to see whether it is necessary to come back to this; I will certainly take advice. In the mean time, I beg leave to withdraw the amendment.

Amendment 153AM withdrawn.

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Moved by

[Lord Jenkin of Roding]

166D: Schedule 13, page 345, line 17, at end insert—
“(3A) After subsection (2)(b) insert—
“(ba) in the case of an application for an order including provision authorising the compulsory acquisition of statutory undertakers’ land, the effect of the compulsory acquisition on any such statutory undertaker,”.”

[Lord Jenkin of Roding]

My Lords, in moving Amendment 166D, I wish to speak to a large number of amendments in this group. With this amendment we turn to Schedule 13, which covers amendments to the Planning Act 2008 dealing with the new arrangements to replace the Infrastructure Planning Commission with a new process whereby the members of the commission are transferred to the planning secretariat. However, the decisions on these major infrastructure projects will be made by a Minister who is accountable to Parliament. At Second Reading, I remarked briefly that I was extremely pleased with the way that the members of the IPC have conducted themselves and with their readiness to accept the new process. However, there is still a lot of anxiety which has been expressed to me by the CBI and by lawyers at a City firm in London who have expressed considerable doubts as to whether the Bill adequately provides a seamless transition from the old process as set up in the 2008 Act to the new process set out in Schedule 13 to the Bill.

The Committee will be relieved to hear that I will not discuss this large group of amendments in detail. I have discussed the matter with my noble friend on the Front Bench. It is clear that she and her department are well aware of the arguments that have been advanced. I have been given an assurance that she and her department are very ready to speak to those who have put their views to me and which are reflected in these amendments.

The purpose of the amendments is, first, to ensure, as I said, a seamless transition, but it goes wider than that. The amendments also seek to remove the need for parallel and separate consent requirements so that the development consent orders regime is truly a one-stop shop, which was what was originally promoted by the previous Government when they brought forward the 2008 Act.

Secondly, they seek to introduce some limited flexibility regarding compliance with what is currently a one-size-fits-all set of procedures and requirements for applications. Thirdly, we want to clarify the ability to modify draft development consent orders as they are going through the process and to replicate other order-making regimes in terms of what criminal offences development consent orders may include; and generally remove what is regarded as unnecessary gold plating now that decisions are being returned from the Infrastructure Planning Commission—a quango—to Ministers. This was something for which a number of us argued fiercely during the passage of the 2008 Act. I am delighted that it is now being implemented in this Bill. That is what we are aiming to do here.

I shall not go through the details of all the amendments, but I should like to say that I am grateful for the offer made by my noble friend on the Front Bench that the Government will consider this matter. I am sure that we will be told that the Bill in fact provides the seamless transition from the old to the new. Nevertheless, anxieties remain. It is a hugely important matter that concerns all major national infrastructure projects such as major airports, new power stations, major transmission lines and so on. It is very important that there should be no hiatus in the process that transfers from the existing system the new.

Before I sit down, one amendment in this group also amends the Planning Act 2008 and concerns minor electricity distribution lines. The Act originally made provisions relating to a new transmission or distribution line that was,

“expected to be less than 132 kilovolts”.

My Amendment 166VZA suggests that it should,

“be 132 kilovolts or less”.

It may seem that there is no difference, but there is in fact a considerable difference. I am told on good authority that Ministers in the Department for Energy and Climate Change are wholly in favour of that amendment, and I hope that perhaps it might be accepted.

However, the bulk of amendments in my name in this group refer to the matters that I have described—the need for a seamless and, I hope, simpler transition from the existing responsibilities of the Infrastructure Planning Commission to make planning decisions for these major projects to its different role of preparing the matter and making recommendations; and the Secretary of State will make the decisions. I beg to move.

[Lord Boyd of Duncansby]

My name is also associated with Amendment 166U. At one stage, I had thought that I had put my name to one or two of the other amendments and it indeed appeared in earlier versions of the Marshalled List. However, for some reason my name seems to have been disassociated with those amendments. Nevertheless, I support the thrust of the amendments of the noble Lord, Lord Jenkin, and I emphasise the need for a seamless transition.

I do not want to take up the time of the Committee at this hour of night but I wish to mention two amendments in particular. The first, Amendment 166R, raises an important point of principle on the extent to which a development consent order can deal with all the consents—the one-stop shop that the noble Lord, Lord Jenkin, mentioned. This was particularly important in the setting up of the Planning Act regime. Noble Lords will recall from the debates at that time that the Terminal Five proposals involved 37 different applications under, I think, different pieces of legislation. The beauty of the development consent order is that it was supposed to bring all this together. The problem is that quite a number of consents are outside this process, particularly those involving the Environment Agency and Natural England. For example, under Section 109 of the Water Resources Act, the Environment Agency deals with consent issues where there is construction work in or near principal water courses. Thereby, if a nationally significant infrastructure project is next to a water course, there is a separate application to the Environment Agency.

I submit that that does not make sense. Adequate protection can be given within the development consent order. By way of example, if the Minister is taking this away to think about it, I mention the London Gateway Port Harbour Empowerment Order 2008, which was made under a similar process: the Harbours Act 1964, where adequate provision is made for the Environment Agency consents.

I mention a second matter. Amendment 166J concerns Section 114 of the 2008 Act. At present, there is concern among developers that, in effect, you get one chance to get the application right. If you have to make amendments to it, the issue then becomes whether they are substantial and, if they are, there is no way of amending the proposal properly in the process. In effect, you go back to square one. It is a bit like snakes and ladders, except that they all go back to the beginning.

I do not expect Ministers to comment on live cases, but one issue has arisen in the past few days with an application before the Infrastructure Planning Commission. It has refused to allow an amendment to an application. Does the developer then go back to square one to propose a development that the applicant presumably believes is inferior to the one they seek? I ask the Ministers to take that away to see whether they can give any flexibility in the process.

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[Lord Jenkin of Roding]

My Lords, perhaps I should have explained it with one extra sentence. Anyway, it is kilovolts. Rather interestingly, the Public Bill Office printed it as kilowatts at the beginning and we had to put that right. The point is that the voltage for these distribution lines is 132, and therefore we wanted 132 “and below”, and not the ones that would have to go to the IPC, to be above. It is simply a matter of getting the wording right as originally intended in the 2008 planning Act.

[Lord McKenzie of Luton]

I am grateful to the noble Lord for that explanation. That helps me. These amendments relate to the decision to abolish the Infrastructure Planning Commission, with the ink not yet dry on the 2008 Act, which was passed under the previous Government. The House would not expect me to welcome that change with unbridled enthusiasm, but now is not the time to revisit old arguments in detail. We would agree that infrastructure investment is vital to the UK economy and jobs and the commitment to retain the fast-track regime is to be welcomed. In particular, we support the retention of the existing timetable for decision-making, as clarified by the government amendment. The Bill includes provision for national policy statements to be scrutinised and approved by Parliament before designation. There seems to be no reason why this role should be limited to the House of Commons and, accordingly, we support the amendments of my noble friend Lord Berkeley. I think that the noble Lord, Lord Greaves, is on the same page. I have no doubt that the collective wisdom of noble Lords covering the policy areas concerned would supplement the expertise of another place. Perhaps the Minister will say why the Government consider this to be a role just for the House of Commons. Section 9 of the Planning Act 2008 includes a role for both Houses.

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[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.

Amendment 166D withdrawn.

Localism Bill

Lord Jenkin of Roding Excerpts

Tuesday 5th July 2011 Lords Chamber

Moved by

[Lord Jenkin of Roding]

129LZZZA: Schedule 5, page 263, leave out lines 9 to 29

[Lord Jenkin of Roding]

My Lords, I hope that I will be able to deal with these amendments quite shortly. Last Thursday my noble friend Lord Shipley made an admirable speech on the clause stand part debate before the amendments came up, and advanced all the arguments that I would have made in support of this group. The main difference between my noble friend and me was that he expounded his objectives—eloquently and adequately, I thought—and I have tabled the amendments that would give effect to them.

I do not intend to take the House through each of these several amendments. However, I can say that the amendments have four main purposes in relation to the possibility of a referendum on the council tax in an area where it is thought that the council tax increase has been—to use the word in the Bill—excessive. It should not be for the Government to lay down what is excessive. There has been a lot of talk about this being a new form of rate-capping. I know something about that, having dealt with that in an earlier part of my political life. This is intended to be a protection for council tax payers against an increase in council tax which goes beyond what they feel to be fair.

The first point that I would like to make is that it should be for local people to determine whether they find a suggested council tax increase excessive. Therefore, my amendments in a sense come under four groups. First, there are amendments which would delete the Secretary of State’s powers to determine what constitutes an excessive rate of council tax—this is likely to be very different in different circumstances in different areas around the country. Secondly, it should therefore also be for the local authority to decide when a referendum should be held. That should not be determined by central government. If localism means anything, this is exactly what it is supposed to mean. Thirdly, it should be the councils, rather than the Secretary of State, which should decide how the referendum is going to be conducted. Finally, there are amendments which would delete powers for the Secretary of State to make a whole raft of regulations, on, among other things, setting out the question to be asked in a referendum, the allowable publicity accompanying a referendum, and how votes ought to be counted.

I have dwelt on this issue before. The rhetoric of Ministers in this Government has been that this is a brand new start, a real decentralisation of power from Whitehall to town hall and county hall, and that it is going to be a rejuvenation of local authorities. Yet one only needs to look at the size of the Bill to realise that, while that may be the objective, it is certainly not being produced in this Bill. The Bill is full of detailed directions, and powers to make regulations to give further detailed directions, as to how local authorities are to use what is supposed to be their new freedom.

I am not going to say more than that, or go through all the details. I hope that Ministers—who are going to have an unusually long gap between this Committee stage and the Report stage, which will come after the Recess—will have a good, hard look at this Bill, to see whether some of this centralisation and central direction, and this business of telling local authorities how to have their freedom and how to behave themselves, can be removed from the Bill. I can assure my noble friends on the Front Bench that it will be extremely popular among the local authorities, which have had their hopes raised that they are at last going to have freedom from central direction, and then find that this Bill does nothing of the sort. I beg to move.

[The Lord Speaker (Baroness Hayman)]

I have to inform the Committee that if this amendment is agreed to I cannot call Amendments 129LZZA to 129LZZF by reason of pre-emption.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Amendment 129LZZZA withdrawn.

--- Later in debate ---

Moved by

[Lord Jenkin of Roding]

130: Clause 68, page 57, line 31, leave out paragraphs (a) to (d) and insert “any public body, including, but not limited to, local authorities, government departments, government agencies and non-departmental public bodies”

[Lord Jenkin of Roding]

My Lords, I shall speak also to Amendments 131 and 132. No doubt other noble Lords will speak to Amendment 130ZC. We have discussed the question of challenges to local authorities by local communities and other bodies that wish to run their services. I am looking for a more ambitious community right to challenge. I support what is in the Bill. It is a very useful expression of bringing forward one aspect of the big society so that local people can become involved not just in yapping at the heels of those who provide a service but in putting forward suggestions for how they could do it better. I like that—but why does it stop at local government services?

My right honourable friend Greg Clark, the Minister of State for Decentralisation and Planning Policy, recently gave a lecture on the subject to the Local Government Association. He was on the right lines when he stated that Ministers are considering inviting councils and their partners to bid to manage a range of public services using devolved budgets. This recognises that government services or services provided by non-departmental bodies at national level may be run better and with more sensitivity to local needs and circumstances if they are run at local level. They do not all have to be run nationally. That is the point of the amendment. I am trying to provide a way in which my right honourable friend’s aspirations could be put into practice across the public sector.

If we are going to get this whole process going—I admired the eloquence of the noble Lord, Lord Patel, when he spoke of what was necessary—we need to generate enthusiasm for, and understanding of, what is being offered. This should be across the board and not limited to local government services. Therefore, my amendment extends the right to challenge across all public services, not just those guided by local government. Local authorities should be able to express an interest in running devolved national public services on behalf of their communities, which should be able to offer to run the services. They may need help, which local authorities are best placed to deliver.

Looking at it again with rather greater reluctance, I have to say that the suggestion that local authorities should provide a list of the services that they might be interested in devolving smacks of bureaucracy and I am not particularly enthusiastic about it. I ought to withdraw the amendment; I speak to it with no enthusiasm at all and I am grateful to see that that view is shared.

I will concentrate on the other amendments in this group, which propose extending the measure to services provided nationally by central government and by non-departmental public bodies and so on, and giving local authorities the right to bid and the duty to help local communities to do this. If you take London as an example—I declare my interest as one of the joint presidents of London Councils—the figures show that in 2009-10 central government spent over £47 billion in London. Local authorities actually spent much less than that—about £29 billion—so only 40 per cent of the total is spent by local authorities. By extending this measure, you are opening up a substantially larger pool from which one could get services provided locally. Of course, not all services can be delivered locally but a great many are. I shall give some examples in a moment.

Extending the community right to challenge and to apply it to a wider public sector would effectively address a lot of the problems that are inevitably caused by national bureaucracy. That often stands in the way of operational efficiency and, in particular, local sensitivity. A council could say, “If we did it for you, we would have to do it for everybody”. How often has one heard that excuse? What we are looking for in this Bill is a greater opportunity for public services to be run locally, where they can be responsive to local needs and circumstances. I will give some examples in a moment.

One possibility is to have cross-departmental services that could be run effectively from a local level. Another is to empower local authorities to support local aspirations. Research commissioned by London Councils last year identified over 150 non-departmental public bodies that spend more than £100,000 a year that have an influence in London. If one takes account of even the Government’s recent efforts to try to reduce the number of these bodies, as in the Public Bodies Bill, London Councils estimates that at least 120 of these organisations remain active in the capital. Many of them are responsible for the delivery of public services for which local communities have no statutory ability to hold anyone to account. This is the target one is aiming at, the substantial number of bodies that deliver services locally but are not in any way locally accountable. Therefore local authorities should be able to help them.

The third point is that, if you are going to have a community right to challenge, for that to be a genuine one, it should be open to all regardless of the local community’s expertise or experience. It will need help and the local authorities are best able to give that. If you can achieve that, you will be achieving a degree of local accountability for the services that are there for local people. Not only communities but the local authorities themselves should have the ability to challenge national services on behalf of their communities and alongside other agencies, and to run services delivered by national public bodies within their area. This would ensure that communities have some local control and that there would be some local accountability.

--- Later in debate ---

[Baroness Thornton]

My Lords, perhaps I may ask a question. I have a great deal of sympathy for the noble Lords’ amendments. I am not sure what my Front Bench is going to say, but this sounds like a very useful discussion to have about how to extend local rights. My question, because I am a champion of social enterprises and the voluntary sector, is whether they, too, will be able to challenge for those national services that might appropriately be delivered at a local level. That would seem appropriate.

[Lord Jenkin of Roding]

Immediately, exactly the same bodies and people, including local charities and voluntary bodies, should be able to challenge these national services, in the same way as the Bill provides for them to challenge local services.

[Lord Patel of Bradford]

My Lords, I shall be very brief. I have listened carefully to what the noble Lord, Lord Jenkin of Roding, said, and I have read his amendment carefully. The basic principle of the proposal is exciting and warrants further investigation and explanation, although I agree that a list would be completely bureaucratic. As for the idea that we could take this a step further, I am excited by the community right to challenge aspect but would want to be assured that the amendments would not in any way, shape or form dilute the local community right to challenge.

--- Later in debate ---

[Lord Jenkin of Roding]

My Lords, I have been hugely encouraged by the amount of support all around the House for the fact that we should pursue this more ambitious right to challenge. I am very grateful in particular to the noble Baroness, Lady Thornton, for what she said, and for the enthusiasm and excitement of the noble Lord, Lord Patel. Turning to my noble friend, I have already indicated that I am not interested in the lists, and perhaps I should have withdrawn that amendment. However, it was encouraging to hear him say that the Government are keen to explore and that he would have to involve Ministers in other departments. If the localism ambitions are to be achieved then every department will need to be involved in this, not just the DCLG.

From what my noble friend Lord Attlee said in relation, for instance, to the discussions we had earlier about EU fines, I am aware that he now has to discuss this with all the other departments concerned, which is a good thing. If our amendments achieve that and nothing else, that would be worth while. My noble friend Lord Shutt has offered grounds for hope. A few weeks ago, when I discussed this with the Secretary of State, his reply was fairly brief. He said, “Really, we have got to be able to walk before we can run”. My noble friend used the phrase “before evaluating”.

I should like to feel that this is part of the Government’s ambition, something which we can look forward to as an extension of the right to challenge, and something which can be seen to be very much part of the coalition’s policy. Recognising that it might be difficult to put this provision into the Bill at this stage—it was not considered, I think, in the other place—we have to recognise that there are problems. However, I hope that my noble friends on the Front Bench will start consulting now with the other departments that will be involved. With that, I beg leave to withdraw the amendment.

Amendment 130 withdrawn.

--- Later in debate ---

[Lord Beecham]

My Lords, I want to assist, in a sense, the noble Lord, Lord Newton, by clarifying the description of one particular—

[Lord Jenkin of Roding]

I apologise to the noble Lord, Lord Beecham, but for those of us who rely on the loop, the microphone is rather important.

[Lord Beecham]

I shall be very brief. My Amendment 131AA looks at the definition that the noble Lord, Lord Greaves, referred to in Clause 68(7). It seeks to tighten the reference to the surplus by saying that the fact that a body’s activities generate a surplus does not prevent it from being a voluntary body for the purposes of the section. The original clause says:

“so long as that surplus is used for the purposes of those activities”.

With my amendment, it would say:

“so long as that surplus is required to be and is used”.

In other words, it is not a casual use; it is a prescribed use of the surplus in the way that you would find in a charitable organisation. I hope the amendment is not unhelpful and that it just emphasises the nature of the organisation and that the surplus is required to be used—as well as, in practice, that it may be used—for the purposes outlined. I hope the noble Lord will think about that and perhaps take the amendment back or accept that it strengthens the intention of the clause.

Localism Bill

Lord Jenkin of Roding Excerpts

Tuesday 5th July 2011 Lords Chamber

[Lord Moynihan]

My Lords, I support Amendments 136, 136ZA and 136ZD, to which my noble friend has just spoken. In so doing I need to declare an interest as chairman of the British Olympic Association which has, among its principal objectives, the promotional of sport and recreation.

I seek guidance from my noble friend the Minister because I can see a great deal of good news for sport and recreation. Inasmuch as local authorities will have a duty to maintain a list of assets, the freedom to determine the form and content of the list, to set out specific requirements and to allow community nominations to be proposed, there is in many respects a presumption in favour of listing sport and recreation assets. I would have no problem whatever if this legislation applied exclusively to local authority or public sector facilities. Indeed, we had a lengthy debate this afternoon on Amendment 130, where my noble friend Lord Jenkin sought to insert,

“any public body, including, but not limited to, local authorities, government departments, government agencies and non-departmental public bodies”.

In that context, I see real benefit. As I say, I have no problem whatever with supporting it. On the contrary, it would enhance sport and recreation provision if the principles within this Bill, which I support, applied to those public sector facilities. Many playing fields owned by the Government and many local authority facilities would fall into that category.

However, as I read it and as I listened to the debate, Clause 74(1) and the amendments to which I speak apply to assets of community value wherever they are found, including on private property. Many noble Lords have understandable reservations regarding pubs and local shops, for example, but the situation regarding sport and recreation facilities is, I would argue, very different. Organised competitive sport in this country over the past 200 years has its roots in the relationship between landowners and sporting activity. Many cricket grounds, for example, are still located in the grounds of homes around the country. Many equestrian or sailing events and fishing activities are to be discovered on privately-owned land. The history of British sport rests on the amicable nexus between sport and recreation, on the one hand, and the good will of the private property owners—long may that remain the case—but as currently drafted the Bill risks halting that process.

The reason is this: that relationship is based on good will, on tradition, on the work of volunteers, the love of sport and recreation and, in many cases, clubs which have been formed, nurtured and flourished on the cornerstones of local communities to this day. As I understand it, the sole purpose in this context of the list would be to create transparency, providing a legislative process for local communities to bid for listed facilities. The bid, of course, could be rejected. Apart from that benefit of greater transparency, I seek guidance from the Minister because I do not see any further benefit. On the contrary, at the moment a mutually agreed sale can be agreed between the landowner and a community that uses those facilities. Simply put, the Bill provides for that transparency, then adds a whole series of measures which will negatively impact on the intention and good will of many landowners and homeowners to make their facilities available to the local community.

Let me cite an example. A private landowner who has a squash court attached to his property might want to provide a local village school with the opportunity regularly to use that court, but with this legislation the person concerned is unlikely to do so. He or she will certainly be very wary of so doing. When the property is up for sale, a search initiated by a future buyer may find that squash court is now listed under this legislation. A buyer making an offer may be time-constrained and thus walk from the sale or offer a reduced price. A buyer may well walk from a sale faced by a hostile local community, with the power of the press on their side given the publicised moratorium on the sale and the provisions in the Bill. I am sure that nobody in this House, on either side, can foresee this, but nevertheless there are risks that a future Government of a different political complexion might embed the full list in new right-to-buy legislation, damaging the value of the properties, or, looked at another way, putting a new tax on today’s market value of the properties. Put simply, many landowners will avoid these risks and shelve their plans to provide for sport and recreation today.

If my noble friend the Minister can allay these concerns I will rest persuaded, but on reading the Bill—I have not had the privilege that my noble friend Lord Hodgson has had of many letters or briefings on this subject; indeed, I have not had a single briefing—I am concerned that where there is good will among individual owners of properties, where, through their good will and intent, they build strong relations with their local communities, allow primary schools to access their land and use those facilities, the tennis court, swimming pool or squash court, the consequence of the Bill, which may be an unintended consequence, will be such that that individual immediately stops doing that any more for fear that listing will impact on the final value of the house. If there is a way to address that in the Bill and to recognise that nothing could be more damaging than multiplying that across the country with the negative impact that that would have on sport and recreation facilities and the negative impact that it would have on good will and local communities—which is what the Bill is all about in driving localism—I would be content to support the Bill, to move forward and to persuade my colleagues in the British Olympic Association that this is a subject that does not warrant the concern that it currently has.

Put simply, there are many landowners who I believe will avoid these risks, as I say, and shelve their plans to provide for sport and recreation. That would, frankly, be a disaster, particularly in the countryside, and I am sure that it is not the Government’s intention. As a result I ask my noble friend to address himself to my three amendments and to take this clause away in order to see how sport and recreation can be fully protected, particularly those facilities I have focused on this evening which are owned in the private sector by private landowners. I emphasise that I fully support the provisions of the Bill to free up many facilities that are owned in the public sector for community use—many playing fields we go past daily that are unused or underutilised—so that the local community can benefit from availing themselves of those facilities. If we can engage with that in the Bill and increase participation as a result, there will be real benefit, but if the unintended consequence is that we impact negatively on the good will in the private sector and among private landowners to make these facilities available, it would be a very sorry day for sport and recreation.

[Lord Jenkin of Roding]

I want to make one or two points. I have been hugely impressed by what my noble friends have been saying about this. I listened with care to what my noble friend on the Front Bench said about the objectives behind these provisions and I shall want to read that very carefully in order fully to understand. I am not sure, possibly as a result of my poor hearing, that I got it all, but I will read it.

My fear is due to the fact that the whole essence of localism is supposed to be building a partnership between local authorities and local communities. It depends for its development on the good will that will be generated by this process. I have put my name to a lot of amendments, including that to which the noble Lord, Lord Cotter, spoke earlier, because it seems to me that that is essential.

We are talking about public assets. I find it quite extraordinary that this is intended to apply to a wide range of privately owned assets. Businesses, yes—the noble Lord, Lord Greaves, made the point that, if there is a business such as a post office, a pub or something else that is going out of business, it is perfectly reasonable that a community might wish to say, “We can run this. We will take it over. We cannot open for the full time, but we will be open so many hours in the week” and be able to do that. That is a voluntary and community partnership.

What I find difficult is that this is all to be imposed by central government. There must be some way in which the statute could be drafted so as to build on the idea of community partnership with local authorities rather than giving everyone the sense that this is being imposed on them from the centre. One fact tells the story: there are 54 references to specific cases where the Secretary of State can issue regulations from the centre in this part of the Bill alone. The whole thing is being imposed from the centre.

I do not want to go on singing this song because I have sung it a good deal during the passage of the Bill, but the amount of detail that the Government are seeking to impose is absurd. Why do they have to decide and lay down what is of community value? Why can a local authority not establish criteria? Guidance could be given about the sort of principles, but does that need to be included in statute? Why does the Secretary of State have to decide who can make a nomination and who cannot? This gets the whole thing off on entirely the wrong footing, and it is the wrong sort of emotional approach to what one is trying to achieve—that is, localism, local responsibility and the ability of local authorities to respond to the desires of the local community. After all, the councillors are elected by people from the local community. That is the relationship that one should be building on. As a number of people, including my noble friends Lord Greaves and Lord Tope have said, this gives the impression that no one in Whitehall trusts local authorities unless they are being told what to do.

I am sorry, but I get quite hot under the collar about this because it rather upsets me. I have some sympathy with the noble Lord, Lord Cameron of Dillington, who put his name to the question on whether the clause stand part, to which I have also added my name. Having considered the details of the anxieties and objections of the local authority associations—I have them all here but I will not weary the House with them—I have come to the view that we cannot go ahead with this part in the way that it is currently conceived or drafted. The whole concept behind this seems to be drawn up on the wrong principles. I hate having to differ in such a rooted way from my noble friends on the Front Bench but one really has been driven to this. I have not had anything like the representations that my noble friends have had and have spoken about but, hearing them and realising what is behind this, I beg my noble friends to think again.

[Baroness Thornton]

My Lords, it is time that someone stood up and said how much they welcome what the Minister had to say and how much they agree, although it may not help her for me to say so from these Benches. On what the noble Lord, Lord Moynihan, said about Governments of a different complexion, I say to him that in my view my own Government were really rather timid on this matter.

Why does the community right to buy matter? There are thousands of community organisations in this country that need the right to buy. This is not about central government imposing something on the local community; it is about giving a right to buy. I shall take a moment to explain. Healthy, viable communities are in the interests of landowners and everyone else. The community right to buy in the Bill is a significant step towards realising the aspirations of localism, the big society, the good society and community regeneration—aspirations that to a high degree are shared across the political spectrum. It would be a bitter blow for hundreds of communities if these actually quite modest proposals were derailed in this House.

Localism Bill

Lord Jenkin of Roding Excerpts

Tuesday 28th June 2011 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, I thank my noble friend Lord True and, indeed, all other noble Lords who have spoken on this important subject and on the innovative development of this aspect of community empowerment. We are rather constrained by the rules of debate in the sense that these amendments are primarily about the threshold, but of course the threshold needs to be taken in connection with a series of government amendments and measures in the Bill that protect the whole process of referendums. While I shall try to focus principally on the threshold, I hope that noble Lords will be mindful that when we meet again to discuss these matters we will have further opportunities to debate a complex subject that runs across several aspects. I hope that what I have to say at least places the Government’s position in some context.

One of the most important aspects is the risk of populism. That was the theme of a number of speeches. To those who fear populism, I should say that leadership in institutional local government has nothing to fear from populism. If it strengthens leadership in local government, this innovation will, in itself, be important. We are quite clear that people should be able to trigger a local referendum by submitting a petition to their council containing the signatures of 5 per cent of the electorate. My noble friend Lord Cathcart and the noble Earl, Lord Lytton, mentioned the problems of this low threshold in connection with parish councils. I should emphasise that the Bill’s provisions in this area do not provide for referendums relating to parish councils, which are not part of the Bill. We will have an opportunity later to discuss parish councils.

A large number of amendments have been tabled that seek to amend the figure from 5 per cent. Figures of 10 per cent, 15 per cent, 20 per cent and, indeed, 25 per cent have been suggested. As the noble Lord, Lord Beecham, said, I am thinking of turnouts and of my experience as a canvasser. I think how many households one can actually canvass and how many voters one actually speaks to. Collecting signatures is no mean task. I say that as a political activist. All noble Lords will have had experience of that and we should put the 5 per cent figure in that context.

There is a question as to whether there should be a higher threshold for small electoral areas. Clause 209(2) of the Bill provides for different arrangements in different areas to be made by regulations, if there is a need. I am not persuaded that there is a need, but the Bill does provide for that if becomes evident that a higher threshold is necessary. We believe that 5 per cent is a fair threshold, building on the established precedent. It appears to us to strike the balance between setting a fair and achievable threshold for issues in which local people are seriously interested but at the same time a high enough hurdle to deter potentially frivolous campaigns. I think the whole Committee would wish to see that. I would say to my noble friend Lord Greaves that, for example, a 25 per cent threshold in Pendle would require the signatures of some 17,000 people. That is an enormous threshold for any campaign to secure. Indeed, one could argue that if one secured 17,000 votes in a referendum, the result was a foregone conclusion.

I can give other examples and I hope to persuade the Committee that 5 per cent is no mean figure. Noble Lords will be aware that the figure of 5 per cent in the Bill is based on the petition threshold for binding referendums on council governance, introduced 10 years ago. In using this figure, we recognise that these referendums are far wider in scope, so we will want to monitor the threshold to see if it is the right one in practice. That is why we have included a power for the Secretary of State to amend the threshold by order if experience shows that the 5 per cent threshold is not quite right. Amendment 124C seeks to remove this power, so it leaves the Bill without that flexibility.

The debate that we have had today and the various thresholds put forward in the amendments show just how difficult it is to agree an appropriate petition threshold. In this area of referendums the Government are listening to these debates and want to get it right. We want a workable system that will reinvigorate community politics without at the same time making representative government difficult and threatened in the way that some noble Lords have implied. Therefore, getting the balance right is very important. We have taken the established threshold of 5 per cent, as I have said, to provide consistency. While we do not rule out a change to the threshold in the future—that is why we have included the power to vary it in the Bill—it would appear sensible to wait and see whether a variation is necessary.

Amendment 120J would allow local authorities to change the area in which a referendum is being held from the one stated in the petition. We believe that the amendment is unnecessary. If a council wants to hold a referendum throughout the area of the authority, it can resolve to do so irrespective of whether a petition has been received with the requisite number of signatures to trigger a referendum in just part of the area. Indeed, the council can resolve to hold a referendum of its own accord, separate from the issue of the petition threshold. We take the view that if a referendum is to be held in just part of an authority's area, it is right that the people in that part should have a say in whether there should be a referendum. They can do this either by joining in the petition or getting the councillors for that area to request that a referendum in their area be held.

Amendment 121, in the names of my noble friends Lord True and Lord Cathcart, seeks to retain the duty on authorities to provide facilities for the hosting of petitions in electronic form. In fact, the provision that the amendment seeks to omit is essentially a technical one. It attempts to deal with the situation that might arise if the referendums provisions that we are currently debating are brought into force before the petitions provisions in the Local Democracy, Economic Development and Construction Act 2009 are repealed.

In practice, we intend to abolish those petition obligations as soon as possible. I think it is fair enough for us to debate the principle of whether it would be right to impose a new obligation on councils to host electronic petitions calling for referendums. However, I cannot say that from anything I have heard today I am persuaded that that is a necessary imposition. The Government’s view is that it should be up to local authorities to decide whether they provide for this, and our provision in Clause 43(4) makes that clear.

There has been a lot of concern about councillor requests for referendums and how they might impact on local campaigning and perhaps be extremely disruptive. Amendments 125 and 126 would provide safeguards against inappropriate calls for referendums by councillors, and I can certainly support the intention behind those amendments. In fact, we have already provided what I believe to be an important safeguard in Clause 49. I believe that the safeguard we have in place—that, following a request from a member, a referendum may not be held unless the full council has resolved that it be held—is a better check. These amendments would make a councillor call for a referendum redundant, as, if a petition is supported by 5 per cent of local voters, there will be a referendum in any event.

Finally, my noble friends propose in Amendment 129 that local authorities may recover the cost of a referendum from electors in the area in which the referendum is held. The amendment is, however, silent on how the cost would be recovered. My noble friend has voiced his concerns about the frequency of referendums—indeed, many noble Lords have thought that the numbers might be excessive—as well as the resulting cost burdens.. He is concerned that some areas within a council will, through the legislation, have all the opportunities to vote in a referendum, while the cost of the referendum will come out of the council’s overall budget, meaning that those who are not part of the referendum will bear some of the cost. Their amendment seeks to ensure that the costs of holding a referendum are spread across the area over which it is held. However, our approach already enables that to happen. It puts in place a scheme that enables referendums to be held in the relevant council area for the issue at hand. Therefore, if it is a district council matter or a matter over which the district council has influence, the referendum can be held at the district council level, whether it be across one or more wards of the district or the entire district council area.

I should now like to refer to the comments of my noble friend Lord Greaves, who was concerned that the rules should be rigorous. The rules on referendum petitions relate to when a council must hold a referendum. A council has discretion to hold a referendum whenever it wishes on any subject it feels to be appropriate. Thus, if a council believes that it is right to have a referendum on any subject, it can do so, irrespective of how many people sign a petition, and indeed irrespective of whether there is a petition. The noble Lord, Lord Beecham, worried about the 1 per cent threshold, the concern having somehow been lodged that the Government had tabled amendments to change the threshold to 1 per cent. We are not reducing the threshold to 1 per cent but in the case of London, in addition to the 5 per cent requirement, each London petition should contain the signatures of 1 per cent of the electorate in each London borough to demonstrate London-wide support for the petition. This is a safeguard; it is not meant to be a lightening of the burden regarding petitions.

There has been some concern that, by doing away with petitions and introducing the concept of referendums, we are destroying something positive and useful. We think that local referendums are more effective for two basic reasons. First, they have greater visibility than a petition. It is difficult to create the same impact with a petition than with a local referendum where every elector gets a chance to give their view. Petitions are essentially about one voice; referendums are about two voices, so that those who do not agree have the opportunity of voicing that. We must not assume that every referendum that is presented automatically results in a positive vote. Secondly, the effect of a referendum is almost certainly that more people will be engaged. If more people are engaged in holding a referendum the local authority will benefit as a consequence.

[Lord Jenkin of Roding]

My noble friend said earlier that the Bill gives the Government power to alter the minimum numbers for a referendum by order, and helpfully he referred to Clause 209. It may be that I am totally misunderstanding it, but Clause 209(1) says:

“Any power of the Secretary of State … to make an order or regulations under this Act is exercisable by statutory instrument”.

The next subsection is the one to which I think he was referring, which states:

“Any power of the Secretary of State … to make an order or regulations includes … power to make different provision for different cases, circumstances or areas”.

I sense that my noble friend was rather relying on that for his proposition that the Secretary of State would be able to change the figures in the Bill by order. Nowhere in the Bill on the question of the minimum levels is there any power to make an order. It just does not apply. There are regulation powers towards the end of the part dealing with voting in and conduct of local referendums. Clearly, that would invoke Clause 209. Unless I have completely misunderstood, Clause 209 applies only where the Bill contains a power to make orders, unless in relation to these minimum figures it does not. It may be that my noble friend already has an answer. I went on long enough to ensure that perhaps he would. If I have misunderstood, I am happy to be corrected. I am not clear that my noble friend stated the provisions of the Bill properly. Perhaps he can reply before he finishes the point he was making.

[Lord Taylor of Holbeach]

I thank my noble friend. One can rely on one’s noble friends to provide the testing question. Clause 44(2) on page 39 of the Bill states:

“The Secretary of State may by order amend subsection (1) to specify a higher or lower percentage than the percentage for the time being specified in that subsection”.

Perhaps I ought to have relied on that provision rather than the more complex structural arrangement.

[Lord Jenkin of Roding]

I am extremely grateful to my noble friend. He was quite right when he said originally that Clause 209 would allow the Secretary of State, as he has an order-making power, to make different orders for different figures, different areas and different sizes of electorate. I am greatly relieved to know that he was able to get an answer as quickly as he did, and I am very happy to be assured.

Revised Draft Overarching National Policy Statement for Energy (EN-1)

Lord Jenkin of Roding Excerpts

Tuesday 11th January 2011 Grand Committee

[Lord Jenkin of Roding]

My Lords, I must begin by declaring a couple of interests. I am the honorary president of the National Skills Academy for Nuclear and the honorary president of the Energy Industries Council. Like the right reverend Prelate, I thank the Minister and the Government for the extent to which they have taken on board the discussions that we had at the earlier stage. The revisions make considerable improvements to the national policy statements. I single out in particular national need. Originally it was referred to as being merely “significant”. As my noble friend will perhaps realise, I tabled an amendment to say that it should be “of critical importance”. The statement has not gone quite as far as that, but the fact that the need is now referred to as being “urgent” makes the point perhaps more simply and is a considerable improvement.

I also applaud the acknowledgement in the statements that we need to look beyond 2025. We have all recognised the importance of the Pathways 2050 paper which the department produced last year. A number of points in these documents reflect that work and I shall return to them in a moment.

I also welcome the proposal to extend CCS beyond just coal. I recognise that CCS for coal is the most important because coal is the greatest pollutant, but the policy statements now recognise that any generating capacity over 300 megawatts should include gas as well as coal. Given that the market in gas is huge, such a move is very valuable. I also welcome the details that have been given in response to both Houses of Parliament on the technical and economic feasibility both of carbon capture and storage and carbon-capture readiness. I shall return to that later, because it raises a few questions.

It is right to mention one or two points which were raised during the consultation with interested organisations but which, so far as I can see, are not reflected in the revised drafts. I am an officer of the All-Party Oil and Gas Group and I have had my attention drawn by Oil & Gas UK to a couple of points. It had argued that there should be an explicit obligation on the IPC or its successor to consider prior established rights for, for example, offshore applications when they have to determine applications under the policy statements. It was disappointed that there was no statement to that effect in the key principles which are in paragraph 4.1.3. Perhaps the Minister could comment on that.

Then, there is a related concern that if there is a conflict between, for instance, offshore oil and gas and the requirements of offshore wind power, the national policy statements do not really represent the scale and complexity and safety requirements of offshore oil and gas activities in the UK’s continental shelf. Too many of the provisions, it will argue, are somewhat woolly and imprecise and leave the resolution of difficulties between offshore wind power and oil and gas simply to be settled by the commercial companies involved. Given the role of DECC in both these matters it would seem to me that there is a case for arguing that there needs to be rather more guidance on this from the department. These are just a couple of points where there is a little disappointment.

I think that we should look at the context—indeed, all the previous speakers have done this—in which we are considering these revised national policy statements. My noble friend mentioned the planning reforms. Like others, I applaud the decision to transfer decision-making from the IPC to Ministers. I would like to say that it would be right to applaud the decision of Sir Michael Pitt, the chairman of the IPC, and of all the members of the commission to agree to work within the new system when the IPC’s functions will be dealt with by the major infrastructure planning unit within the Planning Inspectorate. I have to say that before the election I attached enormous importance to that in my discussions with my colleagues, and it has been achieved. I think that that is wholly admirable.

However, there are certain other planning developments still to come. We are told that there is to be a national planning policy framework and some rationalisation of the planning policy statements—both of which are no doubt very desirable—and everybody agrees that it is vital to build the confidence of investors, particularly for the major energy investments, if these things are to happen. To do that one needs to reduce uncertainty and achieve policy stability. Therefore I ask two things of my noble friend. First, what undertaking can he give to designate these new revised national policy statements as soon as possible after the consultations have been completed? Secondly, given that there are going to be these further developments coming along later, could he ensure that the national policy statements should stand as clear guidance and should slot unscathed into the revised suite of policies and the guidance as they are developed? That is a point that has been put to me and I entirely support it. As has been said, there is to be huge energy investment over the next 10 to 15 years and anything that can achieve certainty on this is to be welcomed.

Can my noble friend tell me something about the future timetable on this? I have been assured by the usual channels that we could, if we wished, repeat last year’s processes and table resolutions that could be debated on the Floor of the House, and that would, in theory, be divisible. I am not sure whether that will be necessary on this occasion as most of these national policy statements will attract wide agreement. I have been told that this will happen in the other place and that there will be a vote on a Motion from the Government to approve the national policy statements. Can my noble friend say whether anything like that is likely to happen in this House?

A few moments ago I referred to the 2025 span for the national policy statements and the 2050 figure in the pathways paper. Perhaps I may draw attention to what was said about that in paragraph 3.3.16 of the overarching statement, which states:

“The Government has therefore considered a planning horizon of 2025 for the energy NPSs in general and for EN-6 in particular, as an interim milestone”.

It is important to notice that phrase. The following paragraph states:

“The Government will keep the relevance of this interim milestone of 2025 for the energy NPSs under review”.

The question that I should like to put to my noble friend is: how will that be done; and when does he anticipate that it will be appropriate to extend the review either in new national policy statements, as he suggested, or in some form of amendment? I will refer to this again on Thursday, because it is particularly important in the consideration of nuclear investment and the need for nuclear sites. I will not dwell on that today, and I hope that the right reverend Prelate will forgive me for that.

I return to the policy statements we are considering today. There are a great many issues to which I am sure noble Lords in all parts of the Grand Committee will wish to refer. I should like to pick out the question of gas infrastructure. I refer to the figures that have been quoted at paragraph 3.8.4 and are the subject of figure 3.1, which makes it clear that there will have to be considerable use of gas over the foreseeable future if we are going to have intermittent renewable energy and sufficient overall energy to keep the lights on. All I can say is that that is a welcome realism. It has not always been apparent in some of the public statements that have been made, but it is only realistic. There are ample supplies of gas. It is much more easily adjustable to the changing patterns of demand and we are inevitably going to use it. Gas will remain a significant source.

However, it is also made clear in the paragraphs that there are uncertainties. In particular the document mentions energy prices. In this context, I was mildly surprised that there is no reference to the comparatively recent advent, especially in the United States, of shale gas. This was mentioned in a briefing sent to a number of us last November by the department. It stated:

“Additional supplies in the US may now have a limited impact on international gas markets (since it is now largely self-sufficient), unless the US were able to export some of this gas”.

I read an article the other day which indicated that although it is true that current plans to convert some of the LNG terminals in the United States to export terminals have for the time being been set aside, the fact of the matter is that the US is now producing shale gas at considerably below the world market gas price. There must therefore come a point when there will be an undoubted incentive to try to use some of that on the world markets and therefore to have an impact on prices. That is likely to have an impact on the balance of gas on our markets here and might at some stage require a revision of the figures to which I referred a few moments ago.

As the right reverend Prelate and others have said, gas is of course a fossil fuel and therefore emits greenhouse gases. If it is going to be a larger part of our energy scene, and if that is undesirable, that implies that other sources will have to be expanded to stop that happening. One sees that the obvious answer, as a very low-carbon source, is more nuclear. That is another point that my noble friend might like to mention.

Other speakers have referred to CCS and carbon-capture readiness. I shall refer to two issues related to that. One is the whole question of carbon dioxide transport and storage, and the other is the process by which the IPC or its successor is to decide on approval, or not, of a CCR plant.

On the question of pipelines and storage, there is a requirement on the IPC under paragraph 3.6.5 to take account of further developments of CCS that will require further carbon transport and storage. This seems to be really quite difficult. The industry itself, in paragraph 4.7.7, is asked when planning its investment to bear in mind further developments. I have always felt that eventually there will have to be a CO₂ grid, or perhaps a series of regional grids, in the country so that one does not have a mass of single pipelines leading to underground storage offshore. Achieving that objective, though, will be very difficult to deliver in practice. How is the IPC expected to take account of future demand? The four demonstration projects, all of which will be CCS, are intended to establish the viability of CCS as an economic and technical possibility. By definition, no one knows what the future investment is going to be, so I find this a difficult concept. I hope that my noble friend might be able to explain. I realise that a lot of this is spelt out in the revisions to EN-1, but I have not been entirely clear about how they are going to work out.

I come to the more difficult, and more problematical, question of CCR, where a plant can be produced but it has to be established that it is carbon-capture ready, and how the IPC is to handle those applications. This will be a very difficult problem. One has to remember that this all came via the European Union.

[Lord Shutt of Greetland]

My Lords, even in the benign atmosphere of the Grand Committee, the noble Lord has had 17 minutes and I am afraid that 15 minutes is the recommended time. I do hope that he will be able to conclude his remarks.

[Lord Jenkin of Roding]

I can conclude my remarks extremely briefly by saying that I hope that my noble friend will give us some explanation of how the new guidance on CCR is intended to work, and what the remaining role of the IPC will be in that. I am sorry if I have tested the patience of noble Lords on this, but I think that these are relevant points.