Localism Bill

Lord Lucas Excerpts

Thursday 30th June 2011 Lords Chamber

[Lord Lucas]

I would add that Amendment 128D also gives authorities a complete get-out: they simply say that they are already considering the matter, and that is it.

[Lord Taylor of Holbeach]

This has been a useful debate. I am very grateful to the noble Lord, Lord Greaves, for opening it, but even more grateful to my noble friend Lord True and the noble Lord, Lord Beecham, for their contributions. They recognised that there are difficulties in seeking to restrict the use of referenda too far. For example, Amendments 126A and 126E would replace the generic reference to,

“action taken to promote or oppose a referendum question leading to a contravention of an enactment or rule of law”.

I suspect that my noble friend Lord Greaves is presenting this as a probing amendment to find out what this is about and what sorts of enactments are considered unlawful. Clearly, no local authority could be obliged to consider through a referendum something which is unlawful. I hope that I can reassure my noble friend that the provision as drafted achieves the result that he requires. The Equality Act 2010, for example, is clearly “an enactment”. The way in which Clause 47(2) is drafted actually caters for all the sorts of things that we would all want to catch and leaves no space for mischievous attempts to get round the protection, such as by phrasing a question cleverly so that it is not “the action requested” that would be unlawful, but the campaign surrounding the referendum.

The second ground that my noble friend mentioned was that the matter was not a local one over which the local authority has influence. My noble friend wanted to know what influence was and what would be the effect of replacing the word “influence” with the word “power”. Amendment 126D removes Clause 47(4)(b), which contains the definition of “influence”. We can appreciate the intention behind these amendments; nobody wants councils to be forced to hold irrelevant referendums and we have seen how the unconstrained power for electors to force parish polls has sometimes been misused by particular lobby groups to force polls on matters that are far removed from the remit of parish councils. However, if my noble friend is asking whether “influence” in Clause 47(4)(b) includes the general power of competence, I would say that indeed it does.

I do not believe that the alternative drafting suggested by noble Lords improves on what is in the Bill. When one considers the impact of Clause 1, one needs to be quite cautious about referring to situations where local authorities have “power” in future. I hope that noble Lords will accept my assurance that the formulation in Clause 47 is framed broadly enough to differentiate the circumstances where there is a manifestly inappropriate attempt to abuse the referendum system from one where there is an issue of local importance in which the local authority has a genuine role. My noble friend has acknowledged that his amendment is unnecessary in the light of the government amendment.

Amendments 126H and 128D seek to expand the fourth ground to give local authorities greater scope to reject a petition. We accept that there is a case for giving councils the flexibility to reject repetitive petitions or requests for referendums, and I hope that my noble friend will accept that the proposals set out in the government amendments that I outlined earlier will meet his concerns. I contend that the arrangements in those amendments offer a better solution to what we all hope will not in fact become a problem in practice. The key to deterring frivolous calls for a referendum is to have in place a robust system for dealing with such things.

I am not sure that my noble friend is right. The noble Lord, Lord Beecham, grasped the point that cost is not the proper equation to be taken into account in judging whether a council should be able to refuse a referendum. Something may be extremely important to a local community that may involve little expenditure in terms of its implementation but would have a great impact on people’s lives, and it is perfectly proper that that should be a subject for a referendum if the local authority feels that that is correct. So long as we get the framework right, and I believe that we have, there will be no point in anyone attempting to abuse the system and so they may not bother.

On Amendment 128A again, I agree with my noble friend Lord True. As he has said, that amendment would enable any referendum to be refused. I cannot see that that is the purpose of the legislation, and I hope that my noble friend Lord Greaves will reflect on that.

Amendment 126CA of the noble Lord, Lord Beecham, seeks to provide that a local matter will be a matter determined to be so by the local authority. We agree that it is for local authorities to determine whether or not it is appropriate to hold a local referendum. Our provisions give local authorities discretion to do that, subject to certain safeguards that we have discussed today. I am therefore not convinced that this amendment either is necessary or would make any practical difference, given the wording of Clause 47(3), which refers to whether the local authority,

“thinks that the matter to which the referendum question relates is not a local matter”.

So, that phrasing is already there. I hope that, given these assurances, the amendment will be withdrawn.

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Moved by

[Lord Lucas]

127: Clause 47, page 40, line 28, at end insert—
“( ) The fifth ground is that the referendum question includes or relates to planning matters.”

[Lord Lucas]

My Lords, the Minister has got ahead of us on this with Amendment 128E being debated rather earlier today, but I do not see that Amendment 128E covers the cases that interest me. Perhaps, if I am wrong about that, my noble friend can explain. I am principally interested in the way in which allowing planning matters in under a referendum would make a mess of the provisions for neighbourhood planning. We have extensive provision there for referenda and there should not be a cross-cutting system which allows that process, which is difficult and expensive enough to organise anyway, to be upset by people running competing referendums, or in other ways trying to upset the decision once it has been made.

My noble friend’s amendment looks at the granting of planning permission. I am much more interested in the creation of a neighbourhood plan. Subsection (4)(b) of the government amendment refers to,

“a statutory right of appeal in respect of the substance of the matter or decision”,

on the part of persons adversely affected. In other words, it is saying that this provision does not apply if there is no third-party right of appeal, which I think there is not in a lot of planning permissions. I view the scope of subsection (4) of Amendment 128E as being very limited compared with the sort of exclusions that I would like to see. As all planning is dealt with very satisfactorily in the neighbourhood planning section, it should not be allowed in the local referendum section in any form. I beg to move.

[The Earl of Lytton]

My Lords, as I explained to the Minister earlier today, I think that Amendment 128E has largely covered my amendment. However, like all amendments, there was a supplementary purpose lurking behind it, which was to try to probe the wider interaction between the facility of referendums generally, especially in their cumulative effect—the noble Lord, Lord Beecham, who is not in his place at the moment, touched on that a few minutes ago—and the wider family of the statutory functions of local authorities. It is instructive to note Amendment 128C relating to transport.

I have lost count of the number of times that the burdens on local authorities on the one hand and the need to get at the authentic voice of people on the other have been referred to in this part of the Bill. We are considering the effects for a democratically elected representative body whose functions might not work terribly well, or be effectively discharged, if a referendum is imposed. The Bill cannot be all things to all men. We have to have a balance between vox populi on the one hand and the effective administration of local government on the other. That balance needs to be explained.

I hope that the Minister will be able to elaborate on some of these points, but I certainly think that there is an issue here, which was touched on in earlier debates in Committee. We need to be clear to what extent people within a community should engage with the representative and democratic processes of those who are set up to represent those community interests as opposed to reaching for some bypassing measure in the form of a referendum.

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[Lord Taylor of Holbeach]

I can say to the noble Lord that the first indication I had about the correct response had a simple two-letter word: no—that it would not be possible. However, I sought further elaboration and gained a slightly more elaborate response, though the short answer is probably correct—that this would not be a subject on which a local referendum could be held.

[Lord Lucas]

My Lords, that is a pity. I hope that my noble friend, as he is in letter-writing mood, will let the noble Lord, Lord Brooke, and me know why this could not be the subject of a referendum. It is one of the main ways in which local authorities choose to beat their residents about the head—one of the main reasons why the residents of Richmond are now happy to have my noble friend Lord True there rather than the previous incumbent. It seems to be very much the sort of thing that local referendums should be about. However, I am sure that my noble friend will be able to give us some comfort on that—or at least point out where in the Bill is the clause that stops us having referendums on this issue, so that we can take it out on Report.

As to what we were supposed to be talking about, I am very grateful to my noble friend for offering to write. It is a very complicated area and not one where I profess any expertise: I was mainly concerned that we were producing something that would cut across the bit of the Bill which really interests me, namely neighbourhood planning and how it works. My noble friend and other noble Lords—including my noble friend Lord True—have raised many subjects to which I will be very interested to read the answers. My particular worry is that proposed new subsection (4)(b)(i) in Amendment 128E seems to suggest that this is a matter in which injured and adversely affected persons have a right of appeal. In the case of most planning applications, one can consider oneself adversely affected if one has to look at an ugly monstrosity across the street, yet one does not have the right to appeal because there is no third-party right of appeal. I am concerned that the wording of the amendment does not exempt most planning applications, but I am sure that the Minister will cover that in his reply.

[Lord Taylor of Holbeach]

My Lords, U-turns are allowed nowadays in politics, are they not? I will correct an answer that I gave. I misread the answer that I was given to the question of the noble Lord, Lord Brooke, about a referendum. Councils could not refuse to hold a referendum on car-parking charges: the referendum would need to be held.

[Lord Lucas]

I want to just stand here and feel happy for a bit, but I will beg leave to withdraw my amendment.

Amendment 127 withdrawn.

Transport for London (Supplemental Toll Provisions) Bill [HL]

Lord Lucas Excerpts

Wednesday 29th June 2011 Lords Chamber

[Baroness Grey-Thompson]

My Lords, I declare an interest in that I am a paid board member of Transport for London, which is a public body constituted under the Greater London Authority Act 1999. This is a Private Bill promoted by TfL. No petitions were deposited against the Bill and it was considered by an Unopposed Bill Committee on 11 November 2008, when it was amended and permitted to pass to the next stage.

The purpose of the Bill is to provide Transport for London with additional powers where TfL has made a toll order under the New Roads and Street Works Act 1991 that would supplement the enforcement powers under the toll order. At present, TfL can seek authority to charge tolls by means of a New Roads and Street Works Act toll order, but the powers in the 1991 Act for the collection and enforcement of the tolls would not enable TfL to have recourse to sophisticated modern mechanisms that allow traffic to flow freely and are similar to those used to collect and enforce charges under the central London congestion charging scheme. Those mechanisms include giving motorists options to pay through the internet, by telephone or by text and to use automatic number plate recognition technology, and imposing escalating penalty charges for non-payment instead of criminal penalties.

In cases in which TfL has been authorised to charge tolls under a toll order, the Bill will enable TfL to make a supplemental order that makes provision for the operation and enforcement of the toll order. These powers to make supplemental orders are similar to those already conferred on TfL in respect of road user charging schemes under Schedule 23 to the Greater London Authority Act 1999, of which the best known is the congestion charging scheme. It is intended that the enforcement regime to be provided in a supplemental toll provisions order will be similar to the tried and tested regime currently operating in respect of congestion charging that is, of course, very familiar to all Londoners. Most importantly, that regime will be subject to the same safeguards. The principle is that motorists will be able to pay the tolls in exactly the same way as the congestion charge and will be subject to the same sanctions for non-payment with the same safeguards.

In the Second Reading debate on the Bill, the noble Lord, Lord Lucas, raised a number of points of concern. I am pleased to report to your Lordships’ House that the Bill was amended in Committee in response to his points as well as to meet other points raised by the Minister. In particular, the powers to immobilise and remove vehicles were removed from the Bill and reliance is instead being placed on the existing powers in the London Local Authorities and Transport for London Act 2008, which were subjected to very careful scrutiny during the Bill’s passage through this House. The Bill has also been amended to make it clear that the power to make provision in a supplemental toll order to enter vehicles and seize articles can be exercised only by a constable or a person authorised by TfL in the presence of a constable. These safeguards are the same as those that apply to congestion charging. TfL had always intended that these safeguards would apply, but they are now expressly provided for in the Bill in response to assurances given to the noble Lord, Lord Lucas, during the debate on Second Reading.

Transport for London first became aware of the need to modernise the enforcement powers for a toll order made under the New Roads and Street Works Act 1991 in the context of the promotion of the Thames Gateway Bridge project. It was proposed that the new bridge would be financed partly by means of tolls collected under such a toll order, and the Bill was needed for the project. However, it was also recognised that the Thames Gateway Bridge project was just one example and that there would be other cases in which TfL might wish to seek tolling powers in respect of which additional powers of enforcement would be needed. The Bill was therefore deliberately drafted in general terms so that all such cases would be covered.

As was explained to the Unopposed Bills Committee, the new mayor had a few days earlier, on 6 November 2008, released Transport for London’s 10-year business plan. Under that plan, it was determined that Transport for London would not pursue the Thames Gateway Bridge project, given the pressures on funding and concerns over local traffic impacts. Transport for London was tasked with undertaking a wider study, together with other parties, to assess the transport and land use needs of the London Thames Gateway, including undertaking an assessment of options for a new east London river crossing.

Transport for London has in consultation with local boroughs and others therefore undertaken a review of river crossing options in the area east of Tower Bridge up to the existing Dartford Crossing. The review has highlighted that the problems experienced in east London through the lack of river crossings mean that further crossings are warranted, and has identified that it is likely that a package of solutions is required, including the construction of a bridge or tunnel at Silvertown.

The Mayor's Transport Strategy, which was issued on 10 May 2010, states that the mayor, through Transport for London, will take forward a package of solutions in respect of east London river crossings, including a new fixed line at Silvertown. Transport for London is currently considering the development of the package. Consideration is being given to the tolling of new crossings to help to finance their construction. Any toll order made under the 1991 Act would require the enforcement powers contained in the Bill.

The Bill will assist Transport for London in financing the construction and operation of this important new infrastructure in London. I beg to move.

[Lord Lucas]

My Lords, I am very grateful to the noble Baroness for so eloquently moving the Motion that the Bill do now pass and for any influence that she might have had in securing the amendments that she described. I am quite content with the Bill as it is now, partly because TfL is a much more benign institution under current management than it was. Where it finds levels of misbehaviour, it seems interested not in immediately slapping down fines but in exploring the reasons for it, amending signage and handing out warning notices beforehand. I find it a civilised and easier-to-deal-with institution these days. I am also comforted by the level to which the Secretary of State will be involved in granting TfL any substantial powers under the Bill. I thank the noble Baroness and Transport for London, and wish this Bill good luck.

[Baroness Kramer]

I shall be brief in my comments on the Bill. I was a member of the board of Transport for London when the congestion charge was brought in and chaired all the public meetings on that issue. I have been an open opponent of the Thames Gateway Bridge, so am very glad that that project has been scuttled.

I should like to ask two questions about the Bill, just by way of seeking confirmation. Do all the usual processes of planning, consultation and approval remain in place, even though this mechanism provides the funding for any new river crossing that might be tolled? Secondly, could this framework apply to other projects carried out by Transport for London? For example—since we have had many discussions on air quality—if there were to be a low-emissions zone and it was decided to toll cars that did not meet the relevant emissions standard as they entered the zone, could this framework again be used for that purpose? It is a framework that London might turn to, particularly at the time of the Olympics. Although I seek confirmation on those matters, I am very supportive of the Bill.

Localism Bill

Lord Lucas Excerpts

Monday 20th June 2011 Lords Chamber

[Baroness Farrington of Ribbleton]

My Lords, the noble Lord, Lord Greaves, has had a long, distinguished and occasionally challenging career—and I say that as someone who served on the same authority for 20 years. I put two points to him. First, would he agree with me that almost everywhere else in Europe, unlike in this country, the principle of subsidiarity refers to the most local level of government—that is, local government— at which a good decision can be taken or policy made? Localism based on community groups and neighbourhoods that are self-forming and sometimes self-selecting are not a version of subsidiarity under the widely used European term.

Secondly, the noble Lord referred to people in the locality and the difficulty of decisions being made above the locality level. How would he envisage that working? I cite two issues to do with planning from my experience in local government. In the 1980s, long-stay mental hospitals were being replaced by local hostels for people to be reintegrated into the community. I faced ferocious public meetings with people who were absolutely determined that it would not happen in their backyard. It was an extremely difficult decision, made worse by the sadness in Ribbleton of three of the people who had spoken out publicly against such hostels coming to me privately and telling me that members of their families had been locked away for decades.

The second planning issue involved a hostel for former prisoners around the corner from where I lived. If the localism that seems to be implicit in this legislation had applied, they would not have had it, and I cannot think of any other community that would have welcomed the proposal. An absolutely ferocious public meeting was held. I was the only member of the planning committee who had given approval to it and who was present at that meeting. It was verbally nasty. When I was out with my children, I was threatened with a beer bottle by a member of the public who had been at the meeting and had been drinking. At the end of the meeting a ferocious woman in a hat bore down on my husband and said, “Is she your wife—can’t you keep her under control?”

That sort of public meeting and those sorts of services are the most intractable. They are very difficult unless a decision and delineation are made so that the general good and the needs of smaller groups can be protected. I know from his background that the noble Lord, Lord Greaves, would sympathise with the need for the provision of both those services for ex-prisoners and former long-stay patients.

[Lord Lucas]

My Lords, I look forward to addressing the questions that the noble Baroness, Lady Farrington of Ribbleton, has just raised when we come to the neighbourhood section of the Bill. It is important that for such people, and indeed for Gypsies and others who have traditionally been made unwelcome, we have a system whereby localism does not become exclusion.

I welcome the amendment of the noble Lord, Lord Greaves. My noble friend Lady Hanham may remember that in 2006 my brother, Tim Palmer, published a pamphlet with Policy Exchange called No More Tears. If she has read that, she will realise that I am a considerable radical when it comes to localism—I share his views—and I regard the Bill as a small step on the way. In her reply to the amendment, I hope that at this stage of the Bill we shall have a good exposition of where the Government stand on localism at the moment, which will give us a good context for the rest of these debates.

[Lord Jenkin of Roding]

My Lords, there was much in my noble friend’s speech in moving the amendment with which one could not but agree. I particularly liked his point that there may be too many provisions in the Bill where it appears that the Government are trying to tell local authorities how to exercise their newly granted general power of competence. I look forward to identifying particular points in the Bill and saying, “Look, this is not necessary”.

Where I have had difficulty with my noble friend’s new clause is that it is not going to achieve anything in the direction that some of us would like to see. You have to look at the individual provisions of the Bill if you actually want to reduce the degree of central control or direction of a locally exercisable power. If my noble friend is seeking to oblige the House to look at the Bill with that in mind then his speech will have made a useful contribution, but I am not sure that the provision that he seeks to put in would add anything. The way that one deals with legislation is that one looks at the provisions in the Bill itself and that is what we will spend a large part of the next four weeks doing.

On the interpretation of the Bill, I remind the House that the courts decided long ago, in the case of Pepper v Hart, that if the provisions of a Bill are unclear, the courts are entitled to see what Ministers said in introducing and debating it. I had to downsize my own household when we moved back to London, and I offered around my bound Hansards, which covered well over 40 years, to see whether anyone wanted them. They are all now in the Supreme Court on the other side of Parliament Square. I have not been to look at them but I am told that that is where they are. They did not cost me or the court anything. That is in order that the Supreme Court judges can have in front of them the Hansard reports of what was said by Ministers to be the purpose of the Bill.

Looking at what Ministers can say about this Bill and what is actually in it, one wonders what the purpose of the proposed new clause is. My noble friend made an interesting exposition of a number of points, but it would not be appropriate to add a new clause of this sort when we have eight days of debate in which we will be dealing with the details. I have to say that if my noble friend sought to press his new clause to a Division, I would have some difficulty in supporting him. I hope that he will forgive me.

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[Lord Lucas]

My Lords, I enjoyed what my noble friend Lord Taylor of Goss Moor said, and I would like to hear more about that, but I hope that we do not embark on a definition in the Bill for something that, in all practical terms, will be impossible to define in practice. Not only will it have the effect described by my noble friend Lord True, but for neighbourhood plans, anything of this sort will make any power that the neighbourhood has completely nugatory because it will always be open to attack by someone who has their own definition and own ways of looking at sustainable development in any particular circumstance. We have an example in east Hampshire where a decision has been taken that sustainable development means that there should be no new development of any sort in the countryside. In other words, to fit in with that strategic objective, there can be no neighbourhood plans because there can be no development. That is all based on sustainable development.

[Lord Taylor of Goss Moor]

If I may say so, that is precisely why, if we are to have a Bill that makes the definition of sustainable development the whole basis of our planning system, we should say what we mean. It was precisely the issue mentioned by the noble Lord that led me to start my report by saying that we need to ensure that our approach to sustainable development is properly defined as a balance between economic and social environmental interests, is forward looking and is not an assessment of the countryside as unsustainable.

[Lord Lucas]

I therefore think that this is a very important thing to get right. I shall listen to the Minister with great interest. If we get it wrong, it has the potential to destroy a very important part of the Bill.

[Lord Tope]

My Lords, in moving the amendment, to which I have added my name, my noble friend made it clear that it is a probing amendment. It might therefore be that the Minister is not about to accept it. If that proves to be the case, I am conscious that the Minister has received considerable advice from behind her that she should not attempt to define sustainable development now or at any time in the future. Therefore, perhaps she could confirm that the Government intend, in the not very distant future, to publish their definition of sustainable development, a definition that will subsequently appear in the national planning policy framework document. If she can confirm that, can she also confirm that it will at least reflect the balanced approach that the amendment seeks to achieve?