Localism Bill
Lord McKenzie of Luton Excerpts(13 years, 4 months ago)
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Lord McKenzie of Luton
My Lords, we have Amendments 148ZZA and 148ZZZBA in this group, but they are consistent with the amendment moved by the noble Baroness, Lady Greengross, which we support. They have been proposed to us jointly by Shelter, the TCPA and the National Housing Federation. These amendments would help to ensure that local authorities produce a robust and public assessment of housing needs to inform local plans. Amendment 148ZZA requires housing needs to be addressed in the local development scheme, while under Amendment 148ZZZBA the LPAs must regularly survey their areas and publicise the results.
Local plans must integrate land use planning, housing strategies and delivery. While the national planning policy framework, when it appears, may help to promote this objective, we think that this issue is too important to leave to regulations and guidance. All local authorities should be required to undertake a strategic assessment of housing need and demand to provide the necessary evidence to inform the development of housing strategies and planning policies for their areas—the points raised by the noble Baroness cover this—and the needs of an elderly population that is growing older.
The information should be key to determining the amount of housing required, including affordable housing and housing specifically designed for people with care and support needs and in allocating a sufficient amount of land to meet and identify housing requirements. Bodies such as Shelter, the TCPA and the National Housing Federation have welcomed a more localised approach to planning and see the reforms to the planning system as an opportunity to allow local people to play a more active role in shaping development in their area by helping to shape local plans and hold their local authority to account.
In order to enable local people to play a more active role, it is vital that they have access to data that give them as full a picture as possible of the housing situation in their area and enable them to assess their local authority’s performance. Through local authorities setting out clearly in the local plans how they plan to address housing need, local people will be far better placed to hold their local authority to account on the success that they have achieved. Without clear aspirations being set, local people are likely to find it difficult to assess how well their local authority is performing.
The importance of providing access to good local data was outlined in the Conservative Party’s Open Source Planning paper, which sets out that in developing their local plans, councils will be expected to ensure as a minimum,
“the provision of good data by the local planning authority to the electors in the neighbourhoods, so that they can develop their vision for their community on a well-informed basis … this will need to include analysis by the council of the likely need for housing and for affordable housing for local people in each neighbourhood”.
The introduction of more consistent data sets will also allow local authorities greater opportunities to increase integrated working across areas such as sharing back office staff. That would be particularly useful in some areas of local housing planning, but varying data sets would make the practicalities of joint working more difficult. This will help to deliver the aims of a more localised system by ensuring that local people are able to play an effective role in shaping local plans and holding their local authority to account while enabling local authorities to work together more efficiently.
In Committee in the other place, the Minister stated that the Government would require from local authorities,
“an absolutely clear, transparent, robust numerical assessment of housing need”.—[Official Report, Commons, Localism Bill Committee, 17/2/11; col. 637.]
However, he argued that Section 13 of the Planning and Compulsory Purchase Act 2004 already outlined the necessary duty. In fact, with respect, Section 13 does not consider a critical element of housing need, or other needs, which is a forward projection of future need and demand. In the absence of such a clear duty, it would be easy for some local authorities to look narrowly to immediately presenting housing need and to avoid responsibilities, especially to the next generation and to the wider housing market. It is on that basis that I propose these amendments and support the amendment of the noble Baroness, Lady Greengross.
Earl Cathcart
My Lords, forgive me if I am wrong, but I thought that all councils were already required to make a housing needs assessment under the existing PPS3. If that is the case, I am not sure what the amendments will add other than to make councils do their job better.
Lord McKenzie of Luton
Would the Minister repeat what has been placed in the Library this week? Was this today or yesterday? What notification has been given of that?
Lord Taylor of Holbeach
I am sorry, my Lords, my notes here say that it was placed in the House Library this week for information. Indeed, I think that I referred earlier to draft regulations that have been placed in the Library this week for the information of noble Lords. I hope that that will inform this debate. We are going on to debate housing, though probably not this evening, so noble Lords will have an opportunity to swot up on those.
The noble Baroness, Lady Greengross, mentioned neighbourhood planning. She wanted to know how it would protect minority groups. Neighbourhood plans will be tested at an independent examination and must have regard to the national policy and be in line with strategic elements of the local plan. Everyone has the right to be heard at the examination, and human rights issues can be considered.
I come to the point made before we broke by the noble Lord, Lord McKenzie, about two authorities with some tension trying to deal with an issue that was affecting their neighbourhoods. Compliance with the duty to co-operate is assessed through the independent examination of draft local plans, and failure to demonstrate satisfactory compliance risks the local plan failing the examination. Having no local plan means that councils lose control of how their area will develop. This disfranchises their constituents, who will hold them to account, as I said in my previous comments.
I would like to correct something that I said. When I said that the draft regulations had been put in the Library this week, I meant last week. Unfortunately, we are all suffering from a slight sense of jet lag as the Bill is moving with such rapidity through the House.
The noble Lord, Lord Beecham, mentioned the low housing build. I am sure that noble Lords opposite will reflect on the fact that this extends back into the period of the previous Administration. We must remember that the market for housing has suffered for reasons entirely unconnected with planning. However, the experience is that numbers in regional plans did not provide a reliable indication of the number of homes actually being built. We know that indicative planning at the regional level for housing need caused huge stress within the system.
We will shortly be publishing the new national planning policy framework, which reviews all national planning policy. I know that my ministerial colleagues understand and take seriously ensuring that the new policy framework makes clear the need for local authorities to understand the housing needs of all people in their area and to monitor the effectiveness of their policies. We will shortly be consulting on the draft of the framework, and will listen to all the views on this and other areas to ensure that the policy is as strong as it can be. I hope that that encourages the noble Baroness and that she will feel free to withdraw her amendment.
Lord McKenzie of Luton
Before the noble Baroness answers, can I thank the Minister for alerting us to the regulations which have been posted in the Library? It is very difficult to keep abreast of what is going on in this Bill. We had some government amendments tabled yesterday of which we had no prior notice and it does not help an expeditious focus on the Bill.
Those, together with the NPPF, as soon as we get it, will reassure us on some of these points, although we would like to see this obligation embodied in primary legislation on the face of the Bill. My noble friend Lord Whitty encapsulated a debate which we will have more intensely in due course about the problems and challenges in respect of housing in the UK at the moment. Regional spatial strategies are not necessarily flavour of the month but, if you look at the record, there were years when they were beginning to deliver. If you look at 2007-08, we had the highest levels of house building for something like 20 years, just as that process was beginning to get under way.
I am grateful for the support of other noble Lords who have spoken and I am still unclear about the central issue of when you have a dispute between neighbouring authorities over housing provision and how, in terms of the examination of the plan and whether that plan is sound, those judgments will be made. I reiterate the point so that the noble Lord might reflect on it and possibly write in due course, certainly before Report. If you have two authorities which are at odds and take a different view, does the examination of the plan have to take a view as to which of those two authorities might be the most reasonable in their approach and therefore influence the outcome, or is that process in terms of co-operation just looking at whether each party played the game?
Lord Taylor of Holbeach
One of the things the Bill provides for, as we have just discussed in Clause 95, is the duty to co-operate. It is not a light thing; it is a duty. I mentioned in the précis I gave in response to the noble Lord that there are sanctions against authorities whereby they run the risk of their local plan failing the examiner’s test. If the noble Lord would like me to write to him specifically on that I will do so. I apologise if communications have been such that he has not had the usual courtesies extended in terms of being informed about government amendments.
Lord McKenzie of Luton
My Lords, we have tabled Amendment 153AKA in this group. It requires the local authority to prepare and maintain a retail diversity scheme as part of the local development scheme. It calls for a sequential approach to the development of a hierarchy, putting existing centres first, followed by edge-of-centre locations and then out-of-centre sites. This is very much consistent with the amendment of the noble Lord, Lord Cotter. I was interested to hear about his Retail Development Bill, which I must confess I have not studied in detail, although it seems that neither has his colleague who is sitting in front of him. Perhaps he has. Maybe I could borrow a copy during the Recess.
The amendment will be familiar in that it is a rerun of what was proposed in the other place. On reflection, we should have deleted the proposed power of direction for the Secretary of State. We have brought it back because it was spoken to warmly by the Minister, Greg Clark, who said:
“Policy on town centres has always been part of national planning policy … I wish to signal clearly the importance of having robust policy, including the sequential test that is currently in planning policy statement 4. That will absolutely be in place, and it will be clear in the new national planning policy framework”.—[Official Report, Commons, 17/5/11; col. 270.]
It is difficult for us to test that issue because we still do not have the new NPPF, but we live in hope.
The amendment of the noble Lord, Lord Greaves, which he has not yet spoken to, requires there to be an assessment of,
“the vitality and diversity of the shopping areas”,
and makes it necessary,
“to include appropriate policies to promote the vitality and diversity”.
The noble Lord’s amendment states that there must be a consultation, including with the traders. So far as it goes, we can and will support that amendment, but it is vital that there is clarity on the sequential approach. The existing vitality and diversity of shopping centres can dramatically be undermined by inappropriate out-of-town development.
I should recall that I spent a brief time as a Minister in CLG at the tail end of the previous Government, as well as trying to cope with DWP issues. As the noble Baroness, Lady Hanham, will know, you are allocated planning issues to look at when they come forward, one of which stuck in my mind. There was a proposal for a significant retail development in an area, which would have been fantastic for that area in terms of jobs and the retail offering but would have destroyed three or more shopping centres in close proximity. There is an issue about how the duty to co-operate will work in such situations where there is a retail opportunity in one local planning area, which is substantially in the interests of that area, but could be of real detriment to other areas. We will follow with interest these issues around what the NPPF says and the extent to which that overlays local development plans.
The noble Lord, Lord Cotter, referred to the current situation on the high street. It is in a pretty dire state. Some 12,000 shops closed their doors in UK high streets last year, and 85 per cent of people feel less optimistic about the prospects for economic recovery when they see boarded-up shops in their local high street. In the past fortnight, Jane Norman went into administration, Carpetright shut 75 stores, and Habitat put 30 premises outside London into administration. Retailers Homeform, HMV, Comet, Mothercare, JJB Sports and Thorntons have recently been hit. Local Data Company states that 14.6 per cent of retail premises are now vacant. This indicates that approximately 50,000 units are not currently open to business on the UK high street, which shows just how challenging the situation is on the ground.
This matter is particularly relevant at this point for the economy of our country, and demonstrates that we need to do whatever we can through the planning process, as well as through other means, to preserve, protect, encourage and promote development on the high street. That is the purpose of these amendments, and I hope that the Minister will support and accept them.
Lord Greaves
My Lords, as the noble Lord, Lord McKenzie, said, I and my noble friend Lord Tope, have tabled Amendment 153AKC, which proposes a new clause, entitled,
“Health and diversity of town centres and high streets”.
Before speaking directly to that amendment, I should first acknowledge the work of my noble friend Lord Cotter in this area over the years. He has been determined and diligent in pursuing these matters and is to be congratulated on bringing the amendment. It is true to say that the three amendments in the group are all rather different but address the same basic problem. I am sure that if the three of us sat around a table, we might well have been able to come up with an amendment with which we all agreed and which would combine the best of all three amendments.
The amendment that I am proposing is slightly different because, unlike the others, it concentrates not so much on town centres but on town centres and high streets. That is not to say that town centres are not important—they are vital—but the shopping streets that we are talking about are not just in town centres. My amendment, which internally we are calling the “Cambridge amendment”, comes from campaigners in a part of Cambridge called Mill Road—a shopping street that is not part of the town centre but is a district shopping street of great variety that is under threat. It was the suggestion of the campaigners that resulted in us putting this amendment together. It clearly overlaps with the other amendment.
I want to speak to Amendment 153AKC, which relates to Section 19 of the Planning and Compulsory Purchase Act 2004 about preparation of local development documents. I want to include an extra section in that, saying, first, that the duties in putting together the development documents should include,
“a requirement to assess the vitality and diversity of the shopping areas in the area”.
Secondly, that:
“When preparing local development documents and other local planning documents the local planning authority must consider the results of that assessment and consider whether to include appropriate policies to promote the vitality and diversity of those shopping areas”.
Thirdly, that:
“The local planning authority may prepare a scheme for retail vitality and diversity which may be a local development document or other local planning document”.
The policies that we set out are similar to those in the amendment from the noble Lord, Lord McKenzie, but a little different.
The local planning authority may,
“define a network of retail centres in the area … assess the existing character and vitality of those centres … designate the desired retail mix for each of these retail centres … promote sustainability and diversity in the retail mix that is desired in each case”.
In doing this, it must consult with the local community, which includes the traders in each shopping centre, and a shopping area means an area of town centre or high street where the substantial use is retail. So sustainability and diversity, which we are suggesting should be foremost in these policies, means that there is an appropriate balance of independent and multiple traders, of unit sizes, and balances of classes of use.
We are putting the emphasis on what is there now. The Labour Party amendment, if I can put it that way, talks about the importance of maintaining the existing policy of the sequential test. If there is a proposal for a new supermarket, can it be fitted in the town centre, can it be at the edge of the town centre, can it be at the edge of town, or does it have to be in the countryside? It is very important that that is maintained, but it is not the only important thing. If you are having a new supermarket, or even a new relatively small Tesco- or Sainsbury’s-type store, like a Tesco Express, the issue is not just where it is, but the effect it will have on the balance of shopping in its area.
In some areas, it might do more damage if it is in the high street than if it is 10 miles away in the countryside. According to a campaign there, Mill Road in Cambridge is described as having an eclectic range of small, specialist independent retailers; as the most ethnically diverse part of the city; and as Cambridge’s Brick Lane. A Tesco Express opened some time ago to widespread concern, and now a Sainsbury’s express wants to open on the other side of the bridge. The fear is that this will seriously undermine the independent local shops, which are a combination of ordinary food shops and specialist shops. If the food element comes under intense competition, those shops might then become unviable. It is suggested that policy and guidance is changed so that the local planning authority can take much more vigorous action to take these issues into account and, if necessary, turn down planning applications if they are thought to be detrimental to the diversity and vitality of a particular high street, whether in the town centre or elsewhere.
This is not just a Cambridge issue. We all saw on television the remarkable scenes in Bristol, where there were riots at night that apparently were connected with the opening of a similar type of convenience store in a street there. For those who live in relatively small towns, as I do, the vitality of our town centres is a very similar issue. In my own town of Colne, there are a lot of small independent shops, and maintaining that vitality and diversity means that we need the policy handles to be able to resist developments that, even if they are in the town centre and high streets, could be detrimental to their future.
Again, that is a very localist view, because it will put more power in the hands of the local authority and local people. There is no magic answer. Keeping the shopping centre and the high street going requires hard work not just by the traders but by the whole community, but it can be done. There are examples around the country where it is being done, and we need to do what we can to stop that being undermined.
“( ) In section 23 (adoption of local development documents) after subsection (3) insert—
“(4) Subject to subsection (5), if a development plan document has not been adopted by the date that this subsection is brought into force, it cannot constitute a reason for refusing planning permission.
(5) Subsection (4) does not apply in relation to a replacement or revision of an adopted development plan document that is sustainable.””
Lord McKenzie of Luton
My Lords, this is a probing amendment, prompted by the National Housing Federation. It specifically focuses on an authority that has not adopted its local plan document and provides that this cannot constitute a reason for refusing planning permission. In a sense, this picks up just part of the federation’s proposition, which sets this in the context of a statutory definition of sustainable development and the presumption in favour of sustainable development. We have already discussed definitions of sustainable development and whether they should be enshrined in primary legislation, and we touched on the Government’s draft presumption in favour of sustainable development. We will doubtless return to these points on Report.
In the mean time, we have the demise of regional spatial strategies, no agreement—as the noble Lord, Lord Best, said last week—to preserve for at least a limited period related policies that are not directly incorporated into LDPs, and no draft official NPPF. Perhaps the Minister could spell out for us how things will work when local planning authorities have not yet adopted a local development plan. It must be right that the absence of a plan cannot automatically be used to deny an application for planning permission. However, is the Minister’s position that, where a local plan is not yet complete, it is necessary to look just at the NPPF, given that the Government have heralded this as a framework that sets out government priorities only to the extent that it is relevant, proportionate and necessary to do so? Do they not envisage distinctive local and indeed neighbourhood issues that are clearly outwith the NPPF?
Clearly the answer to all this is for local authorities to get on and approve their LDPs. However, we should acknowledge that they are faced with challenges on resources—challenges faced generally by local authorities—that are not made easier by the requirement to support neighbourhood planning and not helped by the hiatus caused by the actions of the Secretary of State when coming into office. Nevertheless, I stress that this is a probing amendment, and I would be interested to hear the Minister’s response to this issue.
Lord True
My Lords, I am conscious of the need to make haste and I am perhaps making too much. There are a lot of “nots” in this amendment. Obviously where local development frameworks are in place, local authorities are consistently working on development plan documents. In any clarification that may be being made, we would not want to arrive at a situation in which an emerging policy of an authority, which is traditionally given some weight by planning committees and often by the inspector, is disallowed because the final plan has not yet been formally adopted after the hearing by the inspector. I do not expect my noble friend to respond in detail on that point, but it is an extremely important point because emerging DPDs are very often the reflection of the latest thinking of local people and a response to localist pressure.
Lord Taylor of Holbeach
My Lords, the noble Lord, Lord McKenzie, is quite right in moving this probing amendment to emphasise that the preparation of plans is a great challenge for local authorities. It is central to the Localism Bill and is certainly very important for them. We believe in a timely plan-led system, free from unnecessary targets imposed by central government. We trust local councils and their communities to choose to prepare plans where they feel that they need to shape development in their areas as quickly as they can. This is why we have been careful to retain the basic process of developing local plans, including public examination, and we are trying to make them work better in the interests of transparency and accountability.
The noble Lord’s amendment, which I accept is probing, would penalise councils without adopted plans in place by the time the Bill is enacted. I think we would all accept that this would not achieve good, responsible local planning. Perhaps I can help the noble Lord, because we agree that councils should get on with their plans. Our presumption in favour of sustainable development would be the right tool to ensure that planning applications are considered. We are clear that the presumption should be that councils should say yes to development if their plans are out of date. While we share the previous Government’s ambition that the plans should not be delayed, we know that their approach of top-down deadlines imposed in the 2004 Act just did not work.
In addition, the amendment also comes across as an unnecessarily centralising measure. Instead we want to use positive incentives, such as the new homes bonus and the community infrastructure levy, to encourage councils to plan properly. We are clear that councils will be expected to say yes to development where their plans are out of date. There is a steady flow of plans coming through and we do not believe that legislating for deadlines is the right approach. The aforementioned NPPF and a policy presumption in favour of sustainable development are the right tools. Together they are more immediate and effective levers that will incentivise the same behaviour.
The amendment would also undermine a fundamental part of the system by removing the discretion from the decision-maker to determine what issues should be material considerations to an individual case. With those assurances, I hope that the noble Lord, Lord McKenzie, is in a position to withdraw his amendment.
Lord McKenzie of Luton
I am grateful to the Minister. I will certainly withdraw the amendment, but I am still a little unclear about the situation in which the local planning authority has not yet gone through the processes and got its local development plan in place. What will determine the acceptability of planning permissions that are sought in the interim? Very soon there will be the NPPF but I understand that it will be written at a fairly generic level—necessarily, as this is the virtue that has been made of it by the Government—so it will not pick up a lot of detail. How will those issues be settled, with the lacuna of no current plan? On what criteria will planning applications be made?
Lord Taylor of Holbeach
I think I gave the noble Lord the answer to this when I said that the presumption would be that the planning should be in accordance with the NPPF and any other material considerations. Outside that, the presumption must be that approval is given, so there is an incentive for local authorities to get these plans in place.
Lord Taylor of Holbeach
My Lords, there is an incentive for local authorities to get these plans in place—I think I have made that point throughout our discussions on these amendments—and all other material considerations have to be met, so it does not happen totally in the void. Local authorities must have regard to their own circumstances when taking other matters into account, which is all the more reason for them to be working on these plans at the present time.
Lord McKenzie of Luton
My Lords, I am grateful to the Minister again. I think that my noble friend Lord Berkeley has articulated the issue more effectively than I did. I would like to read the record on this. In the mean time, I beg leave to withdraw the amendment.
“( ) In section 205 (the levy), at the end of subsection (2) insert “without prejudicing the provision of affordable housing in accordance with the development plan”.”
Lord McKenzie of Luton
My Lords, in moving Amendment 148ZZZBB, I will also speak to the other amendments in my name, namely 148ZZZBC, 148ZZZBD and 148ZZBAA. I will comment on the other amendments in this group after they have been spoken to.
Amendments 148ZZZBB, 148ZZZBC and 148ZZZBD deal with the community infrastructure levy and its consequences for the provision of affordable housing. The amendments, which were prompted by the National Housing Federation, seek to ensure, first, that the need for affordable housing is taken into account when setting the CIL and, secondly, that the CIL charging schedules contain a provision that allows for the CIL to be waived if securing the entire amount would prejudice the provision of affordable housing.
The NHF says that the community infrastructure levy will be in most cases mandatory on new developments. With 40 per cent of social housing having traditionally been delivered through Section 106 agreements, it is vital that the CIL is set at a level that does not prejudice the delivery of levels of affordable housing in accordance with local plan policy. It is also important that, where the combination of the CIL and affordable housing makes development not viable, there is a clear mechanism that allows the CIL to be waived in whole or in part so that levels of affordable housing do not fall automatically.
In the debate in the other place, all parties agreed that the CIL should not prejudice the provision of affordable housing. The Minister was explicit about this and said that the present arrangements in the Planning Act 2008 and the CIL regulations offered sufficient protection, though he did commit to return to the issue. The Minister suggested that the requirement in Section 211 of the 2008 Act to have regard to the economic viability of development meant that proper scrutiny would be given to the effect on affordable housing.
Regulation 14, which gives practical effect to Section 211, requires a balance to be drawn between the desirability of securing funding from the CIL and the effect on the economic viability of development across the area. However, this type of balancing exercise does not protect affordable housing and it cannot do so if, as is often the case, there is no clear numerical target for additional affordable housing units. It would be far better to legislate to make the position explicit that the CIL is not meant to lead to a reduction in levels of affordable housing or land for affordable housing. There is no evidence that affordable housing requirements have genuinely been taken into account in the emerging CIL charging schedules to date.
The document Community Infrastructure Levy—An Overview, which was published by DCLG in May of this year, appears to make two things clear. First, it states:
“The regulations rule out the application of the levy for providing affordable housing”.
In relation to planning obligations, the document says:
“The levy is intended to provide infrastructure to support the development of an area rather than to make individual planning applications acceptable in planning terms. As a result, there may still be some site specific impact mitigation requirements without which a development should not be granted planning permission. Some of these needs may be provided for through the levy but others may not, particularly if they are very local in their impact. Therefore, the Government considers there is still a legitimate role for development specific planning obligations to enable a local planning authority to be confident that the specific consequences of development can be mitigated”.
However, the document then goes on to say in a sense that the planning obligations proposals had been drawn tightly by circular 5/05 and that is now enshrined on a statutory basis in the regulations.
Therefore, I have a fundamental question for the Minister. Given that the CIL cannot be used for affordable housing and the Section 106 agreements cause its focus to be narrowed, what will happen to the vital source of funding for affordable housing that came from the Section 106 stream? I stress that this is not a trick question. There is a genuine inquiry here; I am trying to understand how this should work and what the Government’s intentions are. Funding generally for affordable housing has been heavily restricted. I know that the Government are looking at so-called affordable rents or intermediate rents as a means of generating resources for affordable housing. However, if that Section 106 stream is to be reduced, and potentially overshadowed by the CIL, how will that all work? How will it help the delivery of affordable housing? I beg to move.
Lord Greaves
My Lords, I have some amendments in this group, which I shall try to rattle through as quickly as possible. I start by saying that we support the broad thrust of what the noble Lord, Lord McKenzie, has just said.
Amendment 148ZZBBB is a kite-flying amendment that would include building improvement and renovation of housing. The noble Lord has spoken more eloquently than I would have done, so I shall say no more about that. However, this is a very serious problem with the new system.
Amendments 148ZZBBA and 148ZZCA, are very similar to amendments that were tabled in the House of Commons by my right honourable friend Simon Hughes. He asked us to table them again here, since he was given a fairly sympathetic response by the Minister when he talked to him about the amendments—they were tabled in the Commons but they were not debated there. They would widen the possible use of the CIL. Amendment 148ZZBBA leaves out the words “providing infrastructure to support” and inserts the word “supporting”. The proposed provision refers to the development of an area. In other words, the amendment would allow the CIL to be spent on projects that support the development of an area, and not just what might be narrowly defined as infrastructure. The amendment would amend Section 205 of the Planning Act 2008.
Amendment 148ZZCA makes a similar amendment to Section 216 of that Act, which at the moment—ignoring the preamble—reads:
“CIL regulations must require the authority that charges CIL to apply it, or cause it to be applied, to funding infrastructure”.
Amendment 148ZZCA would add “or any other matter”. That means that CIL could be used to fund things that are desirable in the area but not necessarily described as infrastructure.
Many areas, particularly big cities, do not necessarily require extra investment in their infrastructure, but that does not mean that local residents are not inconvenienced by development. They might be inconvenienced by noise, dirt or dust, or there may be nuisance from the operation of the development. A supermarket could have people coming in and out all the time, and making noise around closing time. This could be mitigated by investment in, for example, double glazing. However, this is not currently allowed under the legislation; it is not regarded as infrastructure. In reality, councillors with the opportunity of getting CIL will always levy it and will always find ways of spending it. However, they will not necessarily spend it on the best and most useful thing that they could spend it on if they have to stay within the narrow definition of infrastructure.
Amendments 148ZZBBC and 148ZZCC just propose replacing “ongoing” with “continuous”. I regard “ongoing” as being an unpleasant American word that came in probably several decades ago—I do not know—but the English word is, in my view, “continuous”, which would be better and more elegant.
Amendment 148ZZCD refers to regulation-making powers in the Bill that refer to passing CIL,
“to a person other than that authority”.
I am not trying to remove that provision, and I should say that this is a probing amendment to find out what that phrase means and who these other persons might be that the authority would or might have to pass the CIL to.
Amendment 148ZZBAZA relates to the same argument about authorities being able to make up their own minds after a charging scheme has been examined by an examiner and to obtaining their recommendations. It is the same argument that was made two groups ago, and I will not say any more about it. I do not imagine that the Government will agree with me about that, but it is important. The next amendment in the group is about the same matter, so I shall not speak to it any further.
Finally, I speak to Amendment 148ZZZBE. On page 77 of the Bill, proposed new subsection (7A) to Section 211 states:
“A charging authority must use appropriate available evidence to inform the charging authority’s preparation of a charging schedule”.
That seems to be garbage. Why does that have to be in legislation? There are then eight indications of what CIL regulations may make provision for. I shall not read them all out, but only a couple of them to provide a flavour, including,
“provision as to evidence that is to be taken to be not appropriate”,
and,
“provision as to how evidence is, and as to how evidence is not, to be used”.
They are all like this. Finally there is,
“provision as to how the use of evidence is to inform the preparation of a charging schedule”.
They are the kind of quite extraordinary provisions that ought not to be in legislation.
It is insulting that local authorities cannot make sensible decisions on their own without being given such minute and detailed instructions on exactly what to do. If the Government are to respond to all the criticisms made in this Committee about the detailed regulations that are being imposed, I hope that they might look at this provision as being at best redundant and at worst quite ridiculous.
Lord Lucas
My Lords, I would certainly like to take up my noble friend’s offer of conversations between now and Report. I think I heard three different answers to the question posed by my amendment, and I hope that I will end up with one answer by the time we get there.
Lord McKenzie of Luton
My Lords, I, too, thank the Minister for a full and indeed very positive, or broadly positive, reply. Certainly at this hour, I should like to read the record and perhaps revert to those who pressed this particular amendment on us to talk it through with them in detail. I am grateful to the noble Lord, Lord Greaves, for the thrust of his support. These issues around who else the levy should be paid to are certainly important ones, and I would be happy to be included in that correspondence if I may. It is also important that it is done by diktat of the Secretary of State rather than being the local authorities’ decision.
Can I just check: did I hear the Minister correctly when he said that he thinks it is right that the legislation provides for affordable housing to be included within infrastructure—the regulations currently preclude that? Did the Minister say that he was looking to consult on that later this year to change that rule, so affordable housing could be included? Was that what he said?
Earl Attlee
My Lords, I think the noble Lord will have to read the Hansard, but what I said was quite clear and the words in my speech will make that clear. The short answer is yes.
Localism Bill
Lord McKenzie of Luton Excerpts(13 years, 4 months ago)
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The Earl of Lytton
In response to the very wise comments of the noble Lord, Lord Beecham, it may well be a cumbersome way of doing it but the point is that we do not yet know what the precise trigger is going to be, or the subject matter. The provisions of the Bill cover a very large spectrum of possibilities and we are effectively empowering the Secretary of State to make orders. It is legitimate to lay down a marker as to what the parameters might be—I suspect that is all the noble Lord, Lord Jenkin, is doing at the moment—and just to sound a word of warning. It is timely in that context.
Lord McKenzie of Luton
I am going to speak in support of what my noble friend Lord Beecham said. It is the mention of airports that I cannot resist, of course, because we have one in Luton. I know how important it is to the local community and what a generator of jobs it is. In many ways, airports are the organisations least likely to need the measure that the noble Lord proposes because they have consultative committees anyway so there is automatically a wide engagement with the community. The principle of somebody who is potentially on the receiving end of a referendum or a petition knowing about that and the local authority having to make a decision to engage with them seems to be entirely reasonable. What we are balking at is that the specific amendment is a little too prescriptive and takes us too far down an unfortunate path. However, we are all well aware of the challenges that airports in particular face.
Lord Newton of Braintree
My Lords, I apologise to my noble friend but tempted again I have been—on this occasion just to show how even-handed I am—to join in a little bit with the noble Lords, Lord Beecham and Lord McKenzie, with due apologies to my noble friend Lord Jenkin. It is the third arm of this that worries me most. It says,
“any other person whom the authority considers to have an interest which is likely to be affected by any steps that the authority may take to give effect to the result of the referendum”.
It is not just airports. Major commercial developments, for example, have effects over a wide area. Leaving aside Stansted, about which I know a good deal, and which would certainly be said to have effects over 30, 40, 50 or 100 or more miles, Lakeside at Thurrock has had effects on shopping centres all over Essex. It is unimaginable that the local authority would really have to consult the people of Thurrock, Chelmsford, Colchester, Braintree and Brentwood—to name the Secretary of State’s constituency and indeed that of the noble Baroness, Lady Smith. We need some caution before going down the path scripted in this amendment. That is all I would say. There may be merit in the purpose but the wording needs very careful consideration.
Lord Brooke of Alverthorpe
My Lords, I hope that you will forgive me for intervening as I did not speak on Second Reading. Under this heading, I wonder whether the Minister can clarify whether there is an exemption on petitioning and on moving to have a referendum on car-parking charges. I discovered that my area in London recently increased car-parking fines to £130—a phenomenal increase. I gather that many of these increases are taking place in different locations on similar scales around the country. I wonder whether this will provide the opportunity for the citizen to petition against those, or indeed move for a referendum.
Lord McKenzie of Luton
My Lords, I shall speak briefly to the amendments, and say that we are with the noble Lords, Lord Best and Lord Lucas, on this. It is an opportunity for the Government to set out quite broadly their view on the exclusion, not only for particular planning applications but for the broader role of planning briefs and everything that goes with the planning process. Like the noble Lord, Lord Best, I think that we should congratulate the Government on their earlier concessions. That has helped our deliberations to move on a lot.
I say to the noble Lord, Lord True, that of course it must be right that people have the opportunity to engage and influence their neighbourhood and place. That is just what the neighbourhood planning provisions in the Bill are designed to do, with a referendum attached to that. We have some amendments coming now suggesting that there should be earlier consultation in the process of those engaged in developing plans, so we are with you on that. That is within the structure of the Bill. The noble Lord, Lord Best, made an important point about LDFs. We need to get on with that as so many of them are not yet completed. We have a lacuna, with regional spatial strategies going before many of these plans were in place, and the data associated with all of those are in danger of disappearing. We propose to deal with that by transition arrangements but that is a debate for another day, if not another week at the rate we are going. I hope that the Government will take the opportunity to clarify, as far as they are able, the scope of the exemption around planning as that is hugely important.
Lord Taylor of Holbeach
My Lords, I am grateful for this opportunity as it was a key area and the decision to table the amendments has helped to move the Bill forward. I am, however, in a less than satisfactory situation in the sense that we can see that a number of factors now come into play. The definition of planning appeals, an appeal process, and the rest of it means that it will require some further thought to see what the implications are. It is clear that a referendum on planning applications can be ruled out, but indicative planning and the like with consultative processes are a matter that we need to consider, as well as how exactly they might be brought into this process. My noble friend Lord True carefully articulated the importance of making sure that the public voice in these matters is not stifled. We accept that, but on the other hand we do not want the whole referendum process to be totally absorbed on planning matters.
I promised my noble friend Lord True that I would write to him. Indeed, I will write to all noble Lords and place a copy in the Library of our position on this issue, so that it is quite clear. However, I do not from this Dispatch Box want to give an on-the-hoof answer which may mislead noble Lords in this regard; I do not think that helps to take the debate forward and I apologise.
Lord McKenzie of Luton
We appreciate what the Minister has said because we are likely to get into planning issues next week—maybe on Tuesday at some stage, or maybe not even till Thursday. It would really help our deliberations if by then the Government had been able to focus more specifically on these issues, and perhaps we could have some reassurance on that.
Lord Taylor of Holbeach
I thank the noble Lord for assisting me. Knitting it into the neighbourhood planning proposals is clearly going to be important as well.
The noble Lord, Lord Brooke of Alverthorpe, was worried not so much about his car-parking charges as the fines when he did not pay them, if I heard him correctly. At any rate, perhaps one may lead to the other. Our amendments put in place a framework for councils to decide to refuse a referendum in certain cases. The issues raised by noble Lords clearly illustrate how difficult it would be to compile a list. This is why we have adopted our approach in our recommendations generally about how councils may determine particular referendum petitions.
Lord Greaves
I am grateful to noble Lords for the discussion. It is an indication of the complexity of the issue that I have agreed with most of the things that most noble Lords have said on all sides; it is in no circumstances straightforward. As I hope I said, I moved the amendment to probe and, in order to probe, I proposed something quite different from what was in the Bill. There are good arguments on both sides. I firmly believe that local authorities, faced with what they might think of as a hostile referendum question, should be able to put their point of view forward and, if it is a complex question, should be able to explain it.
It is quite possible, of course, that the local authority will be in favour of the referendum question, in which case it is not clear why they should spend any money at all. Perhaps they think that the people organising it are incompetent and will not do it very well. Who knows? One can imagine lots of different circumstances.
I am firmly of the countervailing view that local authorities ought not to be able to get involved in promoting referendum campaigns which are effectively being put forward by parties or party-political candidates—or any candidate in local elections—for political purposes. That would be quite wrong and quite contrary to the present code of publicity. It is difficult to see how to draw up regulations which cater for both the extreme circumstances of a hostile referendum which the authority thinks would seriously wreck its strategy and policies in key areas and, on the other hand—
Lord McKenzie of Luton
Does the noble Lord have a view on whether local authorities should be able to campaign on council tax referendums, which are in a sense political because the policy is effectively decided by elected councillors? Would he support the right of councils to be able to campaign in those?
Lord Greaves
Yes, I would. Although it is important that local authorities should not get involved in party-political campaigning, the present code of conduct on local authority publicity is too restrictive. Local authorities ought to be able to campaign in a general way more easily and widely than they can at the moment if they believe that what they are campaigning for is in the interests of the people that they serve and represent. However, that is a wider issue. We have the code as it is and I do not think that there is any prospect of it being changed much in the near future. However, it will be very difficult to find satisfactory wording that stops local authorities intervening in elections and political matters, but allows them to defend their well thought-out and agreed policies and strategies against hostile attack. This matter has to be further discussed and considered and the various organisations involved, including the LGA and the Electoral Commission, have to be involved in that. I beg leave to withdraw the amendment.
Lord Shipley
My Lords, I will speak to this clause on behalf of the noble Lord, Lord Tope, and will address some of the principles that stand behind it. In practice, the clause continues a capping regime. Councils will not want to risk losing a referendum because there will be a significant rebilling cost. Clause 59, and Schedules 5 and 6, create a duty for a billing authority to determine, in line with principles set out by the Secretary of State, whether a proposed council tax increase is excessive. Authorities will be required to hold a local referendum on the proposed rise if it is deemed to be excessive.
The difficulty is that it should be for local people to determine whether they find a proposed council tax increase excessive rather than for the Secretary of State to decide what constitutes excessive. Local people should trigger the referendum, not the Secretary of State. Therefore, there is a strong case for saying that amendments to the Bill should be introduced that would limit the Secretary of State's power to determine what constitutes an excessive rate of council tax and would give that power instead to local people under proposals elsewhere in the Bill for holding local referendums so that they can decide what constitutes an excessive rate of council tax.
Secondly, councils, rather than the Secretary of State, ought to be able to decide when a referendum will be held and to decide the arrangements for it. We should also delete powers for the Secretary of State to make non-specific regulations on matters such as the question to be asked in the referendum, the allowable publicity accompanying that referendum and how votes are to be counted. We have already discussed the percentage levels required to trigger a referendum and it seems to me that this is an example of where we do not need to have the Secretary of State interfering with what local people could perfectly well handle for themselves.
There are two issues that I feel concerned about and I have raised them at previous stages of the Bill. When a billing authority is determining whether a council tax proposal is excessive it might be appropriate for a referendum to be held on whether the council tax level and increase proposed is deemed by some to be too small. True localism should mean that local people have the right to hold a referendum on whether the council tax might be raised higher than the level that the Secretary of State deems to be excessive. I do not propose that one should have a higher rate—simply that if you really want to implement localism it should lie within the power of local people to make that decision.
There is a further complication to this. Under the Bill, referendums can be held within electoral areas within a council area. It is inevitable that referendums will be held on issues that might require additional expenditure to be made within that area. It might be unreasonable to expect the whole of the council area to fund the additional increase. The increase could be for a specific local facility that might otherwise close down, such as a swimming pool that people would like to preserve that requires additional cash. At the moment parish councils have certain powers to raise additional money. We could see referendums being held to save local facilities such as the swimming pool where local people might be willing to pay for the facility and would wish a referendum to be held on generating the necessary resource.
This seems to strike at the very heart of localism. Ultimately, if we permit referendums to be held within one or more electoral areas of a council, logically those people should be allowed, as those who have a parish council are allowed, to vote to spend additional money. I speak from my perspective as a member of Newcastle City Council. Half of my ward has a parish council, which has the power to raise additional money, and the other half does not and is not able to raise additional money. That is a complication that will become very important.
The broader issue in terms of Clause 59 is whether it is for the Secretary of State to decide to hold a referendum or whether it is for local people to use the facilities that exist to generate that referendum.
Lord McKenzie of Luton
My Lords, we should thank the noble Lord, Lord Shipley, for introducing this clause stand part debate and for his very clear exposition of localism and what it means in terms of council tax. I agree with him that the provisions in the Bill amount to a capping regime. I am sure the Government will argue that local people do determine what is excessive if they support a referendum. That is a very narrow interpretation of the Bill. This is capping by another name.
We also have to acknowledge that successive Governments have reserved the right to limit increases in domestic taxation when they have been judged to be excessive. We certainly did as a Government, and I believe that the Conservative Government did. I am not sure whether the noble Lord, Lord Jenkin, is culpable as well. There are arguments about whether that is important for the overall management of the economy.
When the noble Lord, Lord Greaves, introduced his first amendment in our proceedings, he talked about localism being decisions being taken at the lowest possible level, but he acknowledged that there is a wider dimension that has to be taken into account in some instances. The impact assessment for the Bill—
Lord Greaves
I think I said “underpinning a minimum level of service”. I certainly would not apply it to council tax.
Lord McKenzie of Luton
Indeed. I was not suggesting that the noble Lord would have judged council tax to be one of those things, but I think there is an argument that it is. The impact assessment reminds us that some 36 authorities have been capped under legislation that this Bill will replace—I think that is since the power was first used in 2004-05—and 16 of those were subject to in-year designation and had to redo their calculations. Indeed, the architecture of the Secretary of State setting principles with the opportunity to look at different categories of authorities has been imported from the existing capping regime.
We feel constrained in denying the Government powers which effectively amount to capping powers and their right to influence levels of taxation in the broader interests of the management of the economy, anti-poverty strategies, et cetera because the reality is that each year the Secretary of State will set the benchmark for council tax increases and it is probably right that few councils will run the gauntlet of a referendum, given the costs and consequences of an adverse outcome. The impact assessment estimates the cost of a council tax referendum to be between £85,000 and £300,000. Should a referendum not be successful, the administrative consequences could be convoluted, with year-end refunds or credits against future liabilities and the possibility for people to ask for an in-year refund, so the systems and costs involved in those choices could be significant.
We are coming on to discuss the powers that the Secretary of State has taken for himself in framing how the referendum question is to be put and the constraints around expenditure. According to the impact assessment, the authority will not be able to campaign for its proposed council tax level. Given the debate we have just had about the authority’s role in referendums, perhaps the Minister will confirm that an authority cannot campaign for the council tax increase that it thinks is appropriate. Of course, we might expect the cards to be stacked against those proposing the increase. Councils are facing unprecedented dilemmas at present with budgets severely constrained and with front-end loading because the coalition Government’s approach to the deficit is to cut too far and too fast. The system will have to cope with the challenges of the localisation of non-domestic rates. If this is to happen, will not local councils be forced to look to that as a source of extra income before running the risks of referendums that would increase council tax? I am not sure that that would be good news for the business community, but perhaps the Minister will tell us—I know these things are embryonic at the moment—whether there will be equivalent capping-type regimes for a localised, non-domestic rate and, if not, what the likely impact of having these effective capping powers on council tax increases might be for the NNDR.
One of the other issues that arise from this in making an assessment about whether council tax levels are fair is how council tax rebate is going to work in the future. The Government are localising council tax rebate. Not only are they cutting 10 per cent off it in aggregate, but it seems as if it is going to be left to local authorities to make individual judgments about the scheme that they want to introduce and maintain. That runs contrary to giving powers to government to manage these things centrally, and is an added complication.
For the present, we will focus our efforts on trying to improve the provisions in the Bill rather than to do away with them, but we are mindful of the strong localist argument for not having these powers at all.
Earl Attlee
My Lords, I am grateful to my noble friend Lord Shipley for giving me the opportunity to promote the principle of council tax referendums. We have several interesting amendments to debate later on, including some government ones.
Clause 59 gives effect to Schedule 5, which inserts a new Chapter 4ZA into the Local Government Finance Act 1992. This enables local electors to approve or veto excessive council tax increases in a referendum. It also gives effect to Schedule 6, which removes the Secretary of State’s powers to cap council tax in England and makes consequential amendments to various Acts as a result of the provisions for council tax referendums. The clause will ensure that excessive council tax increases occur only where they have a clear mandate from local people. This is in contrast to capping, where Ministers take the decisions and local people have no say at all. It will strengthen local democracy and ensure councils are more accountable to their electorates, but it will allow the electorate to vote for increased expenditure if they want it.
A set of principles defined by the Secretary of State will be used by authorities to determine whether their council tax increases are excessive. These principles must be submitted in a report to the House of Commons for its approval. A comparison of basic amounts of council tax could be the only principle, but the Secretary of State can include other principles as he sees fit. It is necessary for the excessiveness principles to be determined by the Secretary of State with the approval of the House of Commons.
The noble Lord, Lord McKenzie, touched upon the wider economic issues of council tax expenditure. It would be impractical and excessive to require a referendum for every single council tax increase. The flexibility allows for different sets of principles for different categories of local authorities. For example, principles relating specifically to town and parish councils could ensure that the great majority of councils—indeed, all but large, high-spending parish councils—would not be required to hold referendums. The report for the House of Commons must be laid before the date on which the local government finance report for the year is approved. Authorities will therefore know, when setting their council tax, whether or not they have exceeded the principles, so they will go into this process with their eyes open.
Where an authority determines that its council tax is excessive, it will normally hold a referendum no later than the first Thursday in May—the usual date of local elections. However, the Secretary of State can specify a different date by order, such as to allow the referendum to be held on the same day as local government elections if this date is not the first Thursday in May. Entitlement to vote in the referendum is based on the register of local government electors and entitlement to vote in local government elections for a particular area.
Where an authority sets an excessive council tax increase, it must also make substitute calculations to determine a basic amount of council tax which does not exceed the excessiveness principles. The substitute calculations would take effect in the event that the authority’s increase is rejected in a referendum or the authority fails to hold a referendum by the required date. The Secretary of State may make regulations concerning the conduct of referendums, which would include such matters as the wording of the question to be asked in the referendum, the publicity to be given and expenditure limits. There are obvious reasons why this may be necessary.
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.
The Secretary of State will have the power to direct that the council tax referendum provisions should not apply. The power could be exercised only where it appears to the Secretary of State that unless the authority is allowed to increase its tax excessively, the authority will be unable to discharge its functions in an effective manner or be unable to meet its financial obligations. This is a reserve power and the expectation is that this would be used only in exceptional circumstances, such as where the High Court has exercised its powers to appoint a receiver where an authority has failed to service its debt within a set time period.
This clause is long and detailed but it is not as complicated as capping legislation, which has such concepts as budget requirement, designation, nomination, designation after nomination and vice versa, notional budget capping as well as actual capping and so on. And I have not got the foggiest clue what that is about. It replaces all that with a simple concept; namely, that local people and not Ministers should take the decision to approve or veto excessive council tax increases.
Sadly, council tax has more than doubled since 1997. If councils want to set excessive council tax increases—that is, those that exceed the norm—in future they will have to prove their case to the electorate. I urge that Clause 59 should stand part of the Bill.
Lord McKenzie of Luton
I touched on non-domestic rates and localisation, and how that regime would sit alongside the regime proposed in the Bill. In particular, I should like to know whether there would be equivalent capping powers on the business rate because that has ramifications for council tax levels as well.
Earl Attlee
My Lords, that is a weensy bit technical for me. Some amendments deal with non-domestic rates. If the noble Lord’s point does not get covered, I will of course write to him.
Localism Bill
Lord McKenzie of Luton Excerpts(13 years, 5 months ago)
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Lord Greaves
My Lords, Amendment 109A, which is on its own, is a long and apparently complex amendment, but it need not take us too long. It is about open space and what happens when open space is disposed of by local authorities. The amendment seeks to amend the Local Government Act 1972 to return it to something like its original form before it was amended in 1980.
The substance of this amendment comes from concerns raised by the Open Spaces Society, which argues that protections are insufficient, particularly around publicity, consultations and the requirement to consider objections. It is about urban open space in particular, which is precious and increasingly recognised as vital to life in towns and cities. The coalition agreement and government promises have made proposals for new designations and protections for green spaces in urban areas, although we have not yet seen the details. It would be a good time to strengthen protections for existing open space in these areas.
When we discussed a related amendment, Amendment 24, the Minister suggested that we might have a meeting to discuss the technicalities and see what substance the Government thought there might be in these proposals. Does she agree that perhaps we can discuss this amendment at the same time? On that basis, I beg to move.
Lord McKenzie of Luton
My Lords, I am grateful to the noble Lord for moving this amendment. We were not quite clear what was behind it but he has been very clear about the thrust of the amendment. We support its general direction, which is about protecting open space, particularly urban open space. I do question the use of the phrase “equally advantageous to the public”. I do not know if that is an existing term used in other legislation, but one of the requirements of the amendment is that it must be “not less in area”—understood; that is quite easy to determine—and is “equally advantageous to the public”. There will not necessarily be a single approach by the public as to the advantage of a particular piece of open space: it might be the tranquillity of the view or the opportunity for some recreation pursuits or indeed somewhere to walk the dog, whereas an alternative piece of open space may not be able to satisfy people in the same proportion or mix. I am sure that that issue could be overcome but I would be grateful if the noble Lord, when responding to the Minister, might expand a little on that test; the Minister may also have some views on that. However, I do see the thrust and the benefit of this amendment.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I thank both noble Lords for those short contributions—short, I suspect, because I have indicated that I would be happy to have discussions with the noble Lord about this. This amendment has appeared quite late on in proceedings. I do not quite understand its place in the Bill. I think it has found its way in by a devious route. It would be more helpful for the House to see exactly what lies behind the anxiety of the Open Spaces Society about this.
In acceding to speaking to the noble Lord about it, I have to say that we have particular reservations about paragraph (c). As the noble Lord, Lord McKenzie, has just pointed out, that requires a council to provide land in exchange for that appropriated or disposed of unless they can provide reasons under subsection (2) of the proposed new section. This is a difficult area. In order to provide an alternative piece of land, it is possible that the local authority would have to compulsorily purchase another bit of land in order to fulfil this obligation. So we would have considerable doubts and that is one area that I would expect to have a sharp discussion on. Having said that, I am happy to talk about this and come back to it at a later stage if the noble Lord will withdraw his amendment for the moment.
Lord McKenzie of Luton
My Lords, I speak to Amendments 117ZA and 117ZB, to Amendments 110A and 114A, to which we have added our name, and to the other amendments in this group. This has been a fascinating debate but there seems to be one very clear strand that I think that pretty much everyone who has spoken has signed up to, which is that, if these provisions proceed, the Secretary of State cannot be the final decision-maker in respect of these fines. I am on the side of those who hope that these provisions go in their entirety. I will just touch upon the point raised by the noble Lords, Lord Wigley, Lord Empey and Lord Newton. According to the Notes to the Bill, my understanding is that these provisions relate to England only, so it seems to me entirely reasonable to ask the Minister whether there is going to be any proposition that will extend them somehow to Wales, Northern Ireland and Scotland. If the answer is no, then I say good luck to Wales, Northern Ireland and Scotland. Nevertheless, how do you address the point that the noble Lord, Lord Newton, made, that you could have an EU penalty that, you might argue, is the responsibility of a number of local authorities, some in England, some not, so that under these provisions an English authority would be forced to cough up and authorities in Wales and Northern Ireland would not have to? If that is the proposition, that is simply a nonsense and cannot be right.
If I may say to the noble Earl, Lord Cathcart, I think this issue around gold-plating of EU directives is, frankly, a myth. Every time an exercise is done to try to identify where that happens, the answer pretty much always comes back that it is very difficult to identify. I agree with the noble Baroness, Lady Kramer, that this is not about laying blame at the feet of Brussels. As I said a moment ago, I am on the side of those who believe that we should remove these provisions from the Bill in their entirety, along with the noble Lord, Lord Tope, the noble Baroness, Lady Scott, and others, for the reasons that the LGA touched upon; namely, that they are,
“unfair, unworkable, dangerous for local economies, and unconstitutional”.
The noble Lord, Lord Tope, spoke to that, and other noble Lords made the point that it is the UK Government who have EU obligations, not local authorities. If there is an issue about recalcitrant local authorities, surely it has to be addressed by more effective regulation by powers of intervention that central government could take, not by this nonsense of trying to apportion fines on some basis with all the complexities and problems that noble Lords have identified today.
My understanding is—and the LGA briefing touches upon this—that the concerns are particularly around air quality, public procurement, services and waste. As a start, can the Minister confirm that those are the particular areas that the Government are concerned with? Can he also tell us at what stage potential infraction proceedings have reached over these various areas or others that might be under way? My noble friend Lord Berkeley gives instances of several hundred in relation to transport. If we cannot get these clauses out of the Bill, and if we are to try to work out the best process to deal with this, it is worth reflecting on what I understand to be the process leading to infraction proceedings and the raising of a penalty.
Looking at the more formal arrangements in Articles 258 and 260, it has to start with an informal letter of inquiry from the Commission, then a formal letter presenting an opportunity to respond to an alleged breach of Community law, followed by reasoned opinion, which is the 41 notice from the Commission advising a member state that it is in breach of its obligations, followed, if there is no satisfactory response, by an application of the Commission to the ECJ for a formal ruling.
Following that, if there is a determination that there is a breach, there will be a letter requesting information on the steps taken to put an end to the infringement. If there is failure to comply, there will be formal notice that the member state has failed to comply, following by a reasoned opinion, which is the formal determination by the Commission that the member state has failed to comply with the ECJ judgment, followed by a financial penalty.
Therefore, the process is extensive, and there are a number of occasions when member states can challenge the existence of a breach or attempt to rectify it. Indeed, is it not the case that, even before these processes occur, there will in practice be opportunities to discuss with officials any suggested breaches of the treaty, with an iterative process to try to reconcile matters? This can extend over many months, if not years. Is it not the case that they are not clear-cut issues and that compromises may have to be reached along the way? That is why it seems fundamentally unacceptable that under the Government’s proposals an authority will be formally engaged with an EU financial sanction only when it has become a reality.
I shall run through some of the amendments in a moment. I do not think that any of them separately encompasses what we now consider to be a robust fallback position in removing these provisions, but I believe that in aggregate they present a cocktail of suggestions which I hope the Minister will digest, as he has time to do between now and Report.
In our view, any retention of these provisions—our preference is for them to be removed and we will not give up on that yet—must include safeguards which make it clear that the consequences of a failure of transposition of directives into UK law can never be visited on local authorities. There must be a requirement for the Government to use all the powers at their disposal to ensure compliance with ECJ rulings, whether they are powers relating to regulation or powers of intervention. Perhaps on that latter point the Minister would write to me setting out what powers the Government have over the various areas of concern and the extent to which they have been deployed to date or are planned to be deployed to avoid or mitigate any EU breach.
There must be a statutory opportunity for authorities whose actions or inactions are considered by Ministers to have potentially contributed to a breach to be notified at an early point, and certainly before the start of the processes set out in Article 258, with a right for such authorities to be kept up to date with developments and negotiations, and to be able to make representations to government about the conduct of such negotiations and to be given an opportunity to rectify any contributory breaches. There must be protections for authorities which do not wilfully and deliberately set aside a power or responsibility and where they have taken all reasonable steps to bring about compliance. There must also be a right for authorities affected to have access to some form of independent review, judicial or otherwise—and there seems to be strong support for that—which assesses not only whether the proposed levying of the fine received by the UK is fair but whether the processes and engagement leading up to the end result have been appropriate and consistent with the principles that I have set out.
The collection of amendments before us covers much of that ground and, as I said, provides some of the key ingredients for a fallback position. While we will continue to argue for the removal of these clauses, we will consider supporting a fallback position if it is sufficiently robust. The onus is now on the Minister and his colleagues to take note of the mind of the Committee, although I suggest that it is pretty clear. I believe that he has a decent time to do that before Report and I urge him to do so.
Lord Beecham
My Lords, I entirely endorse the observations made by my noble friend Lord McKenzie. I was happy to ascribe my name to the amendments moved by the noble Baroness, Lady Eaton, and indeed I congratulate her on tabling them. I think the Committee would wish to join me in congratulating her on her tenure of office, which ends this week, as chairman of the Local Government Association. She has been a very distinguished representative of local government. She has been quite unafraid to express the views of the local government family to Governments of all three political colours over the past few years, and we look forward to her playing an even greater role in your Lordships House than she has felt able to pursue so far because of a slight feeling of a conflicted position.
My noble friend Lord McKenzie referred to the position of Wales and Northern Ireland, and he seems to be absolutely right. I obviously have every sympathy with the noble Lords, Lord Wigley and Lord Empey. One would not wish to see these fines imposed on either Wales or Northern Ireland, or indeed on Scotland. However, it would be ridiculous if they were excluded from and England were included in certain situations. For example, if the Tweed or the Severn were polluted from the north or the west of the relevant borders, the Welsh or Scottish authority involved might be exempt and an English authority held liable. That would seem quite absurd.
My noble friend Lord Berkeley and the noble Earl, Lord Cathcart, asked about the number of potential breaches. Noble Lords may recall—although probably not—that at Second Reading I referred to a Written Question and Answer in relation to this matter. The Question was what estimate the Government have made,
“of the potential liability of the United Kingdom to pay fines to the European Union; and what proportion they anticipate would fall to be paid by local authorities under the provisions of the Localism Bill”.
The Answer from the noble Lord, Lord Sassoon, was:
“The United Kingdom has never incurred a financial penalty under Article 260 of the Treaty on the Functioning of the European Union”—
or under the former articles—
“and no such fines are anticipated”.
I suggested at Second Reading that it was a little curious that in that case there should be provision in the Bill at all. However, the Answer went on:
“In the event of such a financial penalty, it is not possible to anticipate what proportion would fall to local authorities under powers proposed in the Localism Bill”.—[Official Report, 24/5/11; col. WA 419.]
Therefore, it could be a very large or a very small sum. In that context, I ask the Minister to indicate whether it is correct, as the Local Government Association believes, that the Government are considering fines relating to four specific EU laws so that councils could be forced to pay up to £1.2 billion in fines. It is alleged that the UK is facing a potential £300 million EU fine for breaches of air-quality targets. Is that correct?
Furthermore, a slightly worrying feature of the fines proposal is the reference to the breach being “caused or contributed to” by a local authority. A contribution can go from a small proportion to a very large one. What is the Government’s thinking about the situation that would arise if it were not wholly the responsibility of an individual local authority or a number of local authorities? In those circumstances, how would the fine be apportioned and who would determine it? Presumably, on the basis of the Bill as it stands, it would be the Secretary of State.
I recall money being lost to the United Kingdom, and particularly to the region from which the noble Lord, Lord Shipley, and I come, not through the fault of local authorities but through the negligence of civil servants who failed, for example—this was in the days of the previous Government—to transmit bids for EU funding in sufficient time for the money to be allocated and received. The money went missing but unfortunately there was no question of the local authorities fining the Government for that negligence. It seems that this is a one-way street. When it comes to money being lost to the UK, only local authorities seem to be scheduled to be in the firing line.
There are real problems here with the processes. The noble Earl, Lord Cathcart, talked about Ministers signing up successive Governments to regulations, and he was right to say that. In particular, Governments have signed up to these regulations without consulting local government, upon which under the Bill and indeed perhaps more generally responsibilities would lie. The position now seems to be that if the Bill goes through unamended local authorities will be faced with decisions made on the basis of targets, deadlines and laws dating back more than 10 years—again without any consultation along the way.
Earl Attlee
My Lords, I thank the Committee for the time, effort and thought that has been put into the amendments on these clauses. I particularly welcome some of the sensible comments of the noble Lord, Lord McKenzie of Luton, after he gave me his fairly firm strictures. We welcome such constructive contributions. I have taken on board the strictures of the Committee and I accept that there is much more that we need to do on these clauses. I also believe that the House is well placed to find a solution. Given the significance of these provisions, I intend to give a full reply. However, I will avoid getting involved in a debate about the EU or the desirability of any particular directive. On any relevant points that I do not answer, I will write in due course.
The basic principle is, I think, sound. The aim is to encourage authorities not to incur fines for the UK in the first place and, in the unprecedented circumstances that the UK is fined for an infraction, to achieve compliance quickly. We do not want to pay escalating fines to Europe. As many noble Lords have pointed out, we have never incurred fines for an infraction and do not see these provisions as a prelude to being more relaxed about infraction proceedings or fines. My noble friend Lord Tope, in his speech, accepts that it is very unlikely that EU fines will be incurred. The whole point of the policy is to avoid the fines in the first place.
My noble friends Lady Gardner of Parkes and Lady Scott of Needham Market, the noble Baroness, Lady Valentine, and others raised the issue of the air quality directive and the difficulty of apportioning liability to certain types of directive. The amendment of my noble friend Lord Tope deals with this problem in conjunction with the amendment of my noble friend Lady Gardner, although I have to caution that it may have unintended consequences in this respect, so further consideration is required. The noble Lord, Lord McKenzie, asked whether these clauses are aimed at just a few specific EU directives. I go back to my point that that is not the case; they are about avoiding problems in the first place.
Lord McKenzie of Luton
I understand that point. My specific question was whether those four areas that I identified are of particular concern at the moment, and in respect of those areas, how far, if at all, the early stages of infraction proceedings have got.
Earl Attlee
My Lords, I think I will be able to give the noble Lord some comfort later in my speech. The noble Lord, Lord Berkeley, rather exaggerated the spectre and size of related fines. He will recognise that most EU states are experiencing difficulties with the air quality directive, particularly in respect of NOx, but I will not weary the Committee with the technical reasons for that.
We should focus much more on preventing fines. I am therefore very interested in the amendment proposed by my noble friend Lord Tope and by the noble Lord, Lord McKenzie of Luton, on the Benches opposite. Taken together, as the noble Lord, Lord McKenzie, suggested, these would target and give a very clear warning only to authorities that are putting us at risk of a fine from Europe and just for the specific breach in question. That also deals with the point raised by the noble Lord, Lord Berkeley, about the potentially very large numbers. Actually, the numbers directed would be very small. This would involve a parliamentary process. The issues or any culpability could be clearly debated here and in the other place. In considering the merits of these amendments, we need to ask whether naming specific authorities could result in a greater desire on their part to comply and avoid any fine. This, as the Committee is aware, is the Government’s overriding aim.
Listening to the debate it seems to me that noble Lords believe that a particular advantage of the amendments is that prior to a directive being designated, all concerned can concentrate on solving the problem rather than taking legal advice and protecting their position. That deals with the point raised by my noble friend Lady Scott of Needham Market. In other words, the meter is not running until the designation order has been approved. As such, noble Lords may consider that these amendments deal with the issue of retrospectivity raised by my noble friends Lord Cathcart and Lord Newton of Braintree and the noble Lord, Lord McKenzie. However, I make it clear that the Bill’s clauses would have to apply to existing directives, not just new ones.
We must also ensure that the mechanism used as a last resort to recoup any fines works, otherwise there will be no incentive to avoid a fine.
Earl Attlee
My Lords, I am very happy to enter into detailed discussions with any noble Lord.
Lord McKenzie of Luton
Noble Lords will be grateful for the response that the Minister has made because he has indicated that this is very much open and there is scope for a lot of further detailed discussion. Can I be clear that included in that discussion will be issues around the point at which local authorities will be notified of possible infraction proceedings and the opportunity to engage in the iterative, informal discussions and negotiations that go on before we get to an Article 258 situation? Any review and assessment of the outcome would cover that early engagement and its legitimacy as well as just looking at the divvying up of the fine that may result at the end of the day. Can we have the opportunity to engage with the Minister along the way so that we will have no surprises when we come to Report?
Earl Attlee
My Lords, the noble Lord will know that infraction proceedings are a very long process, even after the Lisbon process, which, I understand, makes it a little shorter. The designation procedure suggested by the noble Lord, Lord Tope, would provide a very clear signal. One of the questions that my noble friend would have to answer—and we can do this offline—is: at what point would you designate a local authority? I would suggest that it would be after you get to a difficult stage in negotiations with the EU. I would be very happy to discuss that point with the noble Lord.
Lord McKenzie of Luton
I know the Minister has gone through a lot this evening on this. It is not just a question of designating so that you know that you are potentially in the frame; it is an opportunity for a local authority to engage with the Government, who are obviously responsible for the negotiations. Since it is a negotiation, and a deal is often struck at the end of the day, where that deal is struck could affect a particular local authority or group of local authorities in ways that are different from the way others are affected. Therefore, that chance to impact on that process early seems vital if people are going to be assured that there is a reasonable process going forward. It is not just being designated; it is being designated at a point where you can engage with the ongoing pre-formal process of the infraction proceedings.
Baroness Kramer
My Lords, we have just been through a very important debate that has taken a good two hours. I sense that the House is absolutely exhausted, so I will try to be very brief in moving Amendment 118. I will speak also to Amendment 118ZA. Since the latter is the smaller, I will address it very quickly now.
This arose because my colleague and expert lawyer, the noble Baroness, Lady Hamwee, looked at the Bill and realised that there was a serious question in the wording of Clause 38(7), which refers to business rate supplements and makes various amendments. It says:
“The amendments made by this section do not apply in relation to a BRS imposed before the date this section comes into force”.
That is an important date because on one side of the date of raising a business rate supplement there is in many cases no requirement for a ballot, and various other conditions are different, and on the other side of that benchmark the conditions are entirely different. It is absolutely necessary that any authority affected by business rate supplement rules knows when that date occurs. I apologise if we have made a mistake, but neither the noble Baroness, Lady Hamwee, nor I can find any definition to determine when “this section comes into force”. This is an attempt to do that by replacing those words with the word “enacted”. It seems that if this clause should pass and become part of the Bill in its final form there has to be some clarity from the Government. This is a technical issue but it could lead to an awful lot of confusion and litigation if it is not clarified.
Amendment 118 covers the issue of tax increment financing. I will take a moment or two to explain what tax increment financing is. I am sure many Members of this House are very aware of it but there might be one or two who are not. I will then explain why I have raised this in this Bill and at this point. Tax increment financing was first used in the 1950s by California and is now part of the framework statutes of every state of the United States bar Arkansas, as well as of various continental countries, in various forms. Essentially it is a mechanism that recognises that where regeneration takes place or where there is new infrastructure, land values consequently rise. Therefore, business rates associated with that increase in land values are attributable to the existence of the project. In effect, it allows the relevant local authority or other body to borrow against that predicted increase in the business rates that results from the construction and existence of the project.
In this country we have a great problem in building infrastructure. People often use the example of the London Tube system and the Jubilee line. We get the cost upfront—in the case of the Jubilee line, about £3.5 billion—but there is a huge benefit at the far end when the project is complete. The increase in benefit to landowners around the various stations on the Jubilee line is estimated at about £13 billion. In other words, huge value is created, but we rarely find any mechanism to let us capture that value in order to get the financing to build the project in the first place. This happens on a small scale as well as a large scale. Knowing the cash that is coming out at the end, are we going to take the steps to allow us to find a mechanism to tap that in order to get the project built?
In the United States, this is not often used on large-scale projects. It is used typically on small, local regeneration projects in blighted areas, but it need not be limited to that application. The Deputy Prime Minister, Nick Clegg, announced in September 2010 that the coalition would at some point allow local authorities to use tax increment financing to finance infrastructure projects. In a sense, this is a probing amendment to find out where on earth we are in this process. I speak partly as a Londoner because I know that so many infrastructure projects are necessary in this city, but it has to apply to the whole of the country.
This issue is relevant because of the various new clauses in the Bill that apply to the business rate supplement. I am conscious that a review is under way of local government revenue-raising powers and that tax increment financing is likely to be discussed as part of that. However, a problem arises from Clause 38 because of the new constraints that are applied to local authorities in raising business rate supplements— notably that a ballot is now necessary for every business rate supplement. Under the existing rules, no ballot is necessary if the business rate supplement provides less than one-third of the total cost of the project.
Crossrail was passed through a special hybrid Bill but the business rate supplement plays a significant part in the financing for it. Had all the businesses in London that are covered by this rate been balloted, they would not have passed the business rate supplement because many of them do not benefit from the existence of Crossrail. I am sure that this will be true on a small scale as well. It will become very difficult to achieve a business rate supplement when many businesses will look at the project that is very beneficial to the community but say that it does not benefit them directly. The joy about tax increment financing, if that were to be the basis on which businesses were balloted, is that you pay it only if you have benefited. You will pay a tax increment levy only if you have seen the increase in property values that comes because the project has been created. That, presumably, is something that businesses capture through rent or through the sale of property or in various other ways, but it is in their interest to make sure that the project happens.
That is why I have raised the matter in this context, although there is a more general Bill to come. It seemed to me that if we were going to see in this Bill new difficulties for using business rate supplements, we at least ought to have some discussion of mechanisms that would be put in place to give confidence to local authorities that they could proceed with infrastructure projects, regeneration and other necessary developments. They would then have some assurance that mechanisms would be coming their way that would allow them to achieve that. At a time when we talk about the importance of economic growth, infrastructure is perhaps more important than ever, so there is an urgency in clarifying this issue. That is why I have brought forward the amendment. I beg to move.
Lord McKenzie of Luton
My Lords, we understand why the smaller of the amendments has been introduced tonight. Doubtless the Minister will be able to give satisfaction on the date that these provisions enter into force for the reasons the noble Baroness has outlined. We also understand better now why she has attached tax increment financing to these provisions. As she said, a ballot is now required in all circumstances, whatever the level of funding, and there may be difficulties in securing that in the future.
Tax increment financing is about raising more money upfront by committing revenues which would not have arisen but for the project going ahead. We accept and support the importance of focusing at this time on tax increment financing when capital resources for local authorities are especially tight and the private-sector nervousness about the state of the economy means fund raising is extremely difficult. The noble Baroness will be aware that the previous Government set up a working party to examine this and an enlarged group has been working with the coalition Government. What I am not sure about is the grafting of these provisions on to the Business Rate Supplements Act 2009, which is about levying a supplement on the NNDR. It involves consultation arrangements and a ballot of those existing ratepayers affected. In concept, TIF is about ring-fencing additional business rates and almost hypothecating those to fund a borrowing arrangement. The current position is set out in the local growth document which the Government issued recently. That talks about introducing new borrowing powers to allow tax increment financing. It will be interesting to hear from the Minister what the mechanism is for those borrowing powers to be introduced to facilitate tax increment financing. I do not think grafting it on to the Business Rate Supplements Act provisions will be the right way to achieve it. It looks as though the Government already are focused on changes to borrowing arrangements which will facilitate it and obviously, subject to the detail of that, it is a principle and a project which we would support because it is important to get this source of funding under way at the current time.
Localism Bill
Lord McKenzie of Luton Excerpts(13 years, 5 months ago)
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Lord McKenzie of Luton
My Lords, I think that we should thank my noble friend Lord Wills for giving us the opportunity to debate this issue. He had a distinguished ministerial career and responsibility for this area, which very much showed in his contribution today.
We are living in an era of transparency, which has already been very much the byword of many of our debates on this Bill. We are also living in an era in which there will be increasing partnership working, outsourcing and joint working, very much along the lines on which the noble Lord, Lord Tope, focused when he talked about scrutiny functions in our debate on a previous group of amendments. The focus of FOI in the current era is therefore entirely appropriate.
My noble friend’s Amendment 52A very much chimes with the group of amendments that we have just discussed in its presumption that meetings should be held in public. On Amendments 133A and 133B, he acknowledged—and the noble Lord, Lord True, touched on this—that we need to focus on the practical ramifications of driving freedom of information through a contractor, a subcontractor and then perhaps a sub-subcontractor chain. I am thinking particularly of the construction industry and how diverse and complex some of its contractual arrangements are.
In a sense, my noble friend offered the route to a solution when he said that there should be some sort of de minimis or cut-off point in the application of this. His focus, as he acknowledged, was partly on the business left over from when he was a Minister, but he also dealt with some practical examples, such as Swindon, and cited the Islington Council situation, which is not theoretical but actual.
The noble Lord, Lord True, said on the one hand that he was an enthusiast for freedom of information, but on the other urged his noble friend to be sceptical about it. I am not sure that those two concepts sit very comfortably together.
Lord McKenzie of Luton
I do not disagree, but I thought that the noble Lord said that he was also an enthusiast for freedom of information. Maybe I misunderstand him and he is not, but if he is I do not think that that sits with his urging his noble friend to be sceptical.
As I said, my noble friend has given us an opportunity to have an interesting debate on an important subject. In particular, he has done us a service by focusing on particular issues relating to the Housing Ombudsman, and I am keen to hear the Minister’s response specifically to those. His request is not for the Minister to give a detailed response to his quite extensive and detailed amendment but for her to say whether the Government agree with the principle behind it. That is a very important ask, particularly, as he pointed out, because the coalition agreement has a commitment to freedom of information and to extending its scope. This area is worthy of further analysis and I hope that the Minister can give us some comfort on that matter.
Lord Tope
My Lords, I move the amendment in my name and that of my noble friend Lord Palmer of Childs Hill, and speak to Amendments 71 and 72.
The Bill will enable local authorities to return to a committee structure and, indeed, to be more free than they have been for some time to determine what governance structure they wish to have, and which best suits their particular circumstances. That is wholly to be welcomed. It is clear that the Government rightly believe that that should be a matter for the local authority in a local area rather than central government.
A number of local authorities are already working in anticipation to improve, in their eyes, their decision-making structure, particularly to enable all councillors to play a more effective part in decision making than many of us feel has been possible with the executive/scrutiny split. Indeed, I have for the past couple of months been chairing a working party for my own local authority, looking at exactly that. It proved rather more difficult than I had expected because most of my colleagues in my local authority do not remember the old committee system. They have grown up believing —rather mistakenly, in my view—that the executive/scrutiny split was the natural and normal way of doing things; whereas the old dinosaurs like me believe that there was once a rather better way that would leave them less frustrated than many of them are in their role on the local committees.
All of that is to be welcomed. On Monday evening, I will present these proposals to my council group in the hope that they will be acclaimed. However, I think that they will initially be met with some puzzlement: “Are we really there to make decisions?”. “Well, yes, there were another 44 of you elected who ought to have a part in the decision-making process, because that is what you were elected for”. Hopefully all of that will happen but, as things stand, I then have to break the news to them that, desirable though all this is, and much as though the Government are happy for all of this to happen, none of it can happen for another three years. The Bill says that none of this can be introduced until after the next elections. In the case of London boroughs, that is 2014. For those authorities that have only this year had whole-council elections it will be a further four years.
If the Government believe it is right for these things to happen, I can see no reason why, once an authority, through the proper process, has agreed what it wants to do, it should not implement that now. I hope that we shall have a sympathetic response from the Government. I shall not challenge the Minister to explain why she feels that in London—in her own authority perhaps—there needs to be a three-year gestation period, or in other areas a four-year period, while we all wait.
Some authorities, some quite well known to the Minister and some certainly known to me—it will possibly happen more so in my own authority—have de facto set up a committee system already. The committees meet and de facto make recommendations, but in fact the executive, as it is legally required to do, meets immediately afterwards for no more than five minutes simply to rubber-stamp decisions made by the committees. That must be a nonsense. At the moment, it is a necessary nonsense, as that is what the law requires, but for us to continue in that ridiculous state for another three or four years makes no sense at all.
I hope that the Minister will be able to accept our amendments—it would be an unusual victory for me to achieve—or at least be able to express sympathy with them and say that she will come back on Report with something to give effect to them. It is quite important that we get an indication that this will happen on Report, or that it will not happen, because many of us will be looking to implement the changes from the next annual council meeting in May. It so happens that my authority is well advanced with this but others may perhaps only just be starting to think about it or may not even yet have realised that they can think about the changes. I beg to move.
Lord McKenzie of Luton
My Lords, we have sympathy with these amendments and look forward to the Minister's reply about why there should be this proposed three-year wait. The noble Lord, Lord Tope, talked with some affection about the committee structure. I was leader of Luton Borough Council at the time when we went from a committee structure to a leader and executive structure. My experience was that when you are in control, the leader and executive arrangement is particularly helpful. In 2003, we ended up with a hung council and, although we were the largest party, there was a Lib Dem-Conservative coalition which appointed Lib Dems to the executive. Being on the receiving end of that, we were somewhat less enthusiastic, but I still remain committed to it. I think that the best route is to have a leader and an executive.
One thing that was lost with the committee structure was the opportunity for new councillors, particularly younger councillors, to get involved with the cut and thrust of political debate because the structure and role of scrutiny committees are different. I think an opportunity to learn through that route and to have that debate was missed. We support the right for councils to choose and to revert to a committee structure, if that is what they want. On that basis, it seems that there is no great justification in waiting three years, but the Minister may be able to convince us. Subject to that, we support the amendments.
Lord Palmer of Childs Hill
My Lords, speaking as yet another dinosaur who remembers the old system and who was a councillor and is still a councillor in the London Borough of Barnet, I think that the proposal to allow local authorities to choose whether they return to the committee system is very welcome. The only thing I disagree with, and my noble friend Lord Tope obviously disagrees with, is that one has to wait three years before a local authority can make that decision. I cannot see the logic of that.
I have had the benefit of being a cabinet member, as they are called, in a joint administration in the London Borough of Barnet and I am currently an opposition member in that borough. When I was a cabinet member, one of 10 people exercising full executive power in the London Borough of Barnet, I enjoyed the power wonderfully. I used to give little speeches saying that democracy was not being exercised as 10 people had executive power but 53 people in the ruling parties and in the opposition had no real role to play and roles were found for them rather than their playing a constructive part, as they did under the committee system. Therefore, I have experience of being in power and in opposition and I still believe that the committee system is the right one. Under the system we are discussing, back-bench members in the ruling parties and in the opposition feel that they do not have much of a role to play.
Lord Newton of Braintree
I am made nervous by the intervention of the noble Lord because he knows much more about local government than I do, except in the indirect way that I have described. However, these are decisions of the local authority. I think I am right in saying that ultimately planning decisions could go to the whole council, although they are normally dealt with by the planning committee. Am I wrong on that? Some real issues arose towards the end of the speech of the noble Lord, Lord Greaves, concerning decisions delegated to officers by the planning committee.
However, I find it very odd. I know about the worries that underlie this sort of thing, but I make the point that planning decisions are often very, very important to local communities—I am thinking of things like supermarket applications and the like. It cannot be right that a councillor representing an area should not be allowed to express a view to his constituents that he then reflects in what he does on the council, or indeed the planning committee. If there is corruption involved, that is a different issue; but if it is a genuine view, formed on the basis of what constituents have put to him on the effects of that application on the neighbourhood, he should have the same right as a Member of Parliament in respect, for example, of an airport application, which is to express his views to his constituent and to reflect those views in his votes in the House.
Lord McKenzie of Luton
My Lords, I rise to speak to our amendment in this group, Amendment 96ZA, which calls for a review and report on the operation of the section and is framed really as a probing amendment. I support the probing that has been undertaken by the noble Lord, Lord Greaves, because we are seeking to understand how much difference this provision will make to the status quo. I say to the noble Lord, Lord Newton, that his exposition of what he believes the current arrangement to be is not the full position, as I understand it. That is my understanding from a non-legal background, but I will try to come on to it and explain that point.
Views have been expressed to me that this clause provides a slippery slope that will potentially undermine the integrity of decision-making, especially on planning decisions, and will be a charter to allow bias. Others welcome the clause, as we have heard today, and consider that perhaps it does not go far enough, with some confusion around the term “closed mind”. In order to understand it, I have tried to set down a baseline to judge whether it has moved us on from the current position. Perhaps the Minister will take the opportunity to explain what this intended change will mean in practice.
As I understand it, the courts currently recognise two types of predetermination: actual predetermination and apparent predetermination—the latter is why the noble Lord, Lord Greaves, is pursuing the point about “to have appeared to have had”. Actual predetermination is where,
“a person has closed their mind to all considerations other than an already held view”.
That means that the exercise of a discretionary power where one or more of the decision-makers does not in fact exercise the discretion at all is unlawful as an abuse of that discretion. Apparent predetermination is where,
“the fair minded and well-informed observer, looking objectively at all the circumstances, considers that there is a real risk that one or more of the decision makers has refused even to consider a relevant argument or would refuse to consider a new argument”.
However, predetermination of course has to be distinguished from predisposition, where a councillor may hold a view for or against a particular development, say, but has an open mind as to the merits of an argument before making a final decision. There is a difference between predetermination and predisposition. The courts, as I understand it, have moved towards a more pragmatic approach in recent years. The Standards Board of England summarised the position in a rather helpful way—I think we will miss that body—so perhaps I can just read what it says are the practicalities of local government from the case law and what has happened to date. The Standards Board says:
“The courts have accepted that these practicalities mean that the fair minded and informed observer accepts that … Manifesto commitments and policy statements which are consistent with a preparedness to consider and weigh relevant factors when reaching the final decision, are examples of legitimate predisposition not predetermination … The fact that the member concerned has received relevant training and has agreed to be bound by a Code of Conduct is a consideration to which some weight can properly be attached when determining an issue of apparent predetermination … Previously expressed views on matters which arise for decision in the ordinary run of events are routine and councillors can be trusted, whatever their previously expressed views, to approach decision making with an open mind … To suspect predetermination because all members of a single political group have voted for it is an unwarranted interference with the democratic process … Councillors are likely to have and are entitled to have, a disposition in favour of particular decisions. An open mind is not an empty mind but it is ajar”.
Lord Taylor of Holbeach
I am pleased that we have been able to have this interesting debate. As the noble Lord, Lord McKenzie, has said, both case law and the Standards Boards have moved on this issue, but there has been a considerable degree of anxiety about it in local government service areas, as my noble friend Lord Newton said. I think the Committee will agree that that has not been in the interests of local democracy. That is why Clause 14 forms such an important part of this Bill and why we are bringing it forward, so I welcome the opportunity provided by this debate. My noble friend Lord Greaves has produced, if I may say so, a typical set of House of Lords probes, and I accept totally what he is seeking to do. I think it is the wish of the Committee that I should go through the amendments that he has tabled and make it clear what the particular wording means and why we consider it important that these little nuances are brought in.
I say to the noble Baroness, Lady Whitaker, that nothing in this clause stops proper decision-making. Indeed, nothing in the provisions means that decisions are not going to be taken properly, having regard to all relevant considerations. On Gypsy and Traveller sites and the issues to which she referred specifically, I assure her that local authorities operate under fairly firm statutory guidance on provision for these matters. Any debate about this matter would have to be conducted in a proper fashion. In the end, councillors make decisions within that framework. We know that some people hold quite strong views on such issues. We accept that. In a democracy, we have to accept that people come with strong views. Whether they come with a closed mind is a different issue altogether.
I will come back to the comments made by the noble Lord, Lord McKenzie, but it might help if I first go through the amendments. Amendment 88 removes “(to any extent)”. We believe that by putting in “to any extent” we bring clarity to the issue. We are seeking to give councillors clarity that they should be fully entitled to the freedom to campaign on issues that are important to their local communities. There should be no suggestion in the drafting of this provision that there are degrees of having a closed mind that need to be taken into account when deciding whether this provision applies. That is why that phrase is in the clause. It is to make it absolutely clear that there is no degree of a closed mind that might be the subject of predetermination. If this amendment were accepted, the position on predetermination would be less clear for elected members and the public, which would defeat the whole purpose of this clause, which is to provide clarification on the current position.
Amendment 89 is an unnecessary drafting change. The phrase we are using here is taken from previous case law and provides clarity that a councillor is not to appear to have had a closed mind if they had previously campaigned on an issue. The fact that they may have campaigned on an issue does not necessarily mean that they are providing evidence that they appear to have a closed mind. This drafting seeks to provide clarity for councillors—we want them to be sure that they are doing the right thing, and we would all agree that councillors want to do the right thing—as well as judges and the courts. Indeed, the reason this is in the Bill is to provide some statutory law where so much has been dependent on case law.
On Amendment 90, the word “just” in this sentence indicates more clearly the function the provision is performing, which is excluding certain conditions from the judgment to be made about whether someone had a closed mind. Read literally, without the word “just” the sentence could mean that any decision-maker doing something that indicates the view that they will take is automatically considered not to have a closed mind, so the inclusion of the word “just” avoids the potential for this misinterpretation, which would lead to a result that we do not want. The word “just” therefore defines the matter more clearly.
Amendment 91 would narrow the range of councillors’ activities that we are seeking to ensure cannot lead to accusations of a councillor having a closed mind. Our current drafting makes it clear that if a decision-maker had previously “done anything” that indicated what view they took on an issue, they would not as a result be considered to have a closed mind. I reassure my noble friend that we fully intend the phrase “done anything” to include anything that a member may have said, written, or perhaps even held aloft on a placard. The amendment is therefore unnecessary.
On Amendments 92, 95 and 96, the legislation has been written to apply to elected, co-opted and other members of councils. There is no need for the provisions to be extended to paid officers in local councils. I assure my noble friend that separate rules are in place for dealing with officer bias in decision-making. This clause is not designed to address officer bias. The definition referred to in Amendments 95 and 96 of the type of decisions covered by these provisions does, however, need to include this reference to functions of an officer of the authority, because certain officer decisions are exercised by elected or co-opted members of the council for technical reasons; some of the functions carried out by elected mayors, the chairman of an authority, and leader of an executive are regarded as functions of officers of the authority.
On Amendment 94, we do not accept that this distinction should be made between the role of a co-opted member on a committee of the authority and the role of a co-opted member on a joint committee. Co-opted members of a committee of an authority would be free to express a view or campaign on an issue without being at risk of being unfairly accused of predetermination, but co-opted members of a joint committee would not. There are certainly instances in which co-opted members can sit on joint committees, and there is no reason to suppose that they will be any less capable of reaching a fair decision—something that lies at the heart of all of this—when sitting on a single-authority committee.
Amendment 96ZA makes a perfectly reasonable suggestion, but I refer noble Lords to our published impact assessment of these clauses. The impact assessment states that there will be a full policy-implementation review of the whole Localism Bill, including the policies on predetermination. That will provide all the information that I believe the noble Lord is looking for in this amendment, so I hope that when the time comes the noble Lord will not press his amendment.
The noble Lord, Lord McKenzie, asked whether, if as a matter of fact a councillor had a closed mind, the councillor could participate in a decision, what evidence would be used to determine that he had a closed mind and how this would be affected by the proposal in Clause 14. If a councillor is actually biased, he cannot participate in a decision; evidence of a closed mind could be that he has declared that he has a closed mind or that he refuses to listen to any new arguments. In reality, if a councillor says that he is not prepared to listen to any arguments and is self-evidently not prepared to do his duty by doing so, as we would all expect local government to do in a democracy, he would self-evidently be saying that he had a closed mind.
Lord McKenzie of Luton
My Lords, I understand and take that point. But if you had someone who declared that they had a closed mind, is not the import of subsection (2) that, if they declared that at any point up to the time when the decision was made, it would be ignored? That is what the provision says. If that is right, how do you adduce the fact that someone has a closed mind? That is what I am struggling with. We accept that, if you have got a closed mind, you should not be involved and that decisions could be unlawful. If people have room to review the facts, that is fine. But my concern is what evidence you would now get. Prior to this, if someone had said, “I have got a closed mind” and there was surrounding evidence to that effect, it would be clear where we are. But under this proposal, you have to ignore what someone has done. What someone has done is what they have said, what they have written and the banners that they may hold aloft. How does the Minister square that issue?
Lord Taylor of Holbeach
My Lords, the situation, as I understand it, is that statements made prior to a decision being made in the period in which a campaign or a discussion is being held should be evidence that a councillor may have a strong opinion, but that does not necessarily prejudice the decision that they are going to make. But if they say at the time that they are making a decision that they have a closed mind, they should not participate in that decision. The practicalities of this are to put pressure on all councillors, however passionate they are about an issue, to consider their position before they vote as to whether they have genuinely considered alternatives that are presented to them. In which case, as long as they have done that, this clause means that in no way can they be considered to have had a closed mind if they have done that in all conscience. This is designed to provide a framework of behaviour in local government, which I am sure that the noble Lord would seek to encourage.
Lord McKenzie of Luton
It is important that we get to the core of this. From what the noble Lord is saying, is it the case that if someone said every day of the week for two months leading up to the decision that they have a closed mind, that would be ignored under these provisions and that if they did not say, “I have a closed mind” on the day on which the decision is made, there is no difficulty?
Lord Taylor of Holbeach
It is fair to say that anyone who did not say that they were considering the matter with a fair consideration of the argument might well be in some difficulty. But what is disregarded by this clause is that evidence of the view that a person takes of a matter is not evidence of their state of mind when they are making that decision. It is important to understand that this is designed to enforce an openness of mind at the point of decision-making, which, after all, was always the purpose of predetermination.
The problem with predetermination was that it excluded people who had campaigned and, as my noble friend Lord Newton in his helpful contribution pointed out, the difficulty that a lot of local councillors had was knowing to what extent they could participate in the decision-making process if they had campaigned strongly on an issue. All this now does is say to a local councillor, “However hard you have campaigned on an issue, you should still make decisions without a closed mind or not participate in that decision”. But that is for the councillor himself to determine, rather than be determined by this clause.
Lord McKenzie of Luton
My Lords, I am grateful to the Minister and I am sorry to have interrupted him on two or three occasions, but this is a very important issue. We accept the anxiety in local government about what councillors can and cannot do, and the importance, as the noble Lord, Lord Greaves, said, of the democratic component of this so that people are not precluded from campaigning on issues they feel strongly about. But that is the position at the moment, for as long as their minds are ajar.
Sometimes very cautious advice is given and therefore people tend to be more restricted than the law may otherwise allow, but notwithstanding all that—I think we have common cause in what we see as a proper outcome in this, so that if you have a closed mind or you are going to be involved in a decision, you should be able to judge the facts objectively and not predetermine the matter—I still see a difficulty in this provision. That is because I cannot see how you would ever get evidence of someone having a closed mind on the basis of this provision. It seems that you would have to ignore what they had said and done and campaigned around right up to the point when they make the decision. That seems to me to be an anomaly and I am still not sure where it leaves us.
Lord Newton of Braintree
My Lords, I am so encouraged and enthused by being described as helpful by my noble friend on the Front Bench—for the first time in a long time, perhaps even uniquely—that I feel the need to intervene again. I agree to some extent with what the noble Lord has just said, but my concern is that, in all honesty, I feel as though I have strayed into wonderland or into a bit of my philosophy course when I read PPE some 50 years ago. This distinction between predisposition and predetermination is like angels dancing on the head of a pin. As a councillor, you would have to be mad not to say, if you wanted to have any effect at all, that while you had had a view, you had looked at the new evidence and it had not changed your predisposition. That would not amount to predetermination. The whole thing is complete nonsense.
My concern is that it leads to a fracture in the relationship between councillors and their constituents. They have to fence with issues, pretending that they do not have a view, or telling their constituents that they do not have a view or dare not have a view because it might affect their ability to vote. That will not be understood by any ordinary person. Councillors are elected to represent people and in relation to their views. Indeed, in some circumstances they may want to express a view. This is daft, and MPs would not put up with it.
Let us take the example of Stansted, which I think has been the subject of votes in Parliament. The MP for Saffron Walden, my neighbouring constituency in the old days, was against it and would no doubt vote against it. In Braintree I was cautious because I was in favour of Stansted, but not all my constituents were, so I did keep my head down a bit. But if I had been against it, I would have been appalled if I could not have said so and then voted in Parliament. If my noble friend has a chance to say another word, can he say why things should be different for councillors from how they are for Members of Parliament? I can see no answer to that.
Lord McKenzie of Luton
As I understand it, the impact of this clause will make it clear that individuals can campaign as you would want, but I hang on to the point that for as long as they leave open the possibility of a change of mind in due course, having examined the facts and merits of a case, they are not precluded from campaigning at the moment either. That is why I am seeking to probe just how much difference this clause makes.
Lord Newton of Braintree
I understand that, but reference was made to Mr Justice Andrew Collins, a great and good man. However, I would not want to be the judge who had to distinguish between predisposition and predetermination in circumstances where the person involved denied predetermination. You would have to be a mind reader, so it is not sensible.
Lord Greaves
My Lords, this is a substantive issue, which affects licensing. There is an important point here that needs addressing. I have no idea what the Minister will say in response to this, but perhaps some thought needs putting into it. The noble Lord, Lord McKenzie of Luton, said there was a clear distinction between quasi-judicial decisions and general policy. There is always an argument as to how quasi-judicial planning is, but there are some licensing functions which nobody can possibly argue are not quasi-judicial—not least because it is not very long since they were actually dealt with in the magistrates’ courts. One of the Local Government Acts—I think it is the 2007 one, but I am not sure—transferred the function of granting permission and licences from the courts to the local authority.
In my experience, there are two main areas. There are licence applications for events and entertainments. If you want to run a cinema or theatre or you want a temporary licence for a big shindig in the park, or whatever it is, you have to apply to the local authority for a licence. There are alcohol licences, as well as licences for premises, pubs, clubs and retail premises—for new ones and for changes and extensions to existing ones. Then there are occasions when there might be objections from the police to an existing situation where the question of revocation or restriction of the licence is considered. All those things are matters of public policy. They are not huge, overriding policies and will never be in a manifesto, but the question of whether a particular premise is a suitable place to be a pub or club is general policy. The question of whether alcohol should be sold from particular retail premises is a matter of policy and ought to be treated as policy. The removal of predetermination restrictions should apply to that. But if you are dealing with the question of whether a particular individual is a suitable, fit and proper person to hold an alcohol licence in any of those circumstances, that is not policy. Under those circumstances, judicial rules really have to apply, and you cannot possibly have people going round saying, “That man is a rogue”, or, “That man did my sister down”, or whatever it is, “and therefore I am going to vote against him having a licence”. Members of the licensing committee have to be trained, they have to carry out proper procedures, the whole thing has to be done by due process and it is a matter of whether an individual is a fit and proper person.
The other area is taxi licences for operators, drivers and so on. Again, these are matters that refer to a particular individual and to whether that person is an appropriate person to drive a taxi and carry a member of the public around, or whether they are an appropriate person to run a taxi business. The question of whether premises are suitable to be taxi offices is probably a planning decision rather than a licensing decision. That is public policy, in my view, and it is entirely reasonable that you should be able to go around an area meeting people who are concerned, or even campaigning, about it. The question about whether Joe Bloggs or whoever is a suitable person to run a taxi business or to drive a taxi is like the situation with alcohol licences: they are not questions that councillors should go around debating in public, or in private before the meetings. They are there as if they are magistrates, considering on the facts and the evidence, usually on the advice of the police, whether or not these people are suitable. There is a specific case there where the predetermination rules should be applied, and strictly. The purpose of moving this amendment is to probe the Government’s thinking on this issue. I beg to move.
Lord McKenzie of Luton
My Lords, I will be brief. I am not unsympathetic to the noble Lord’s amendment but I am not sure that I agree with the basis on which he proposes it. I think that he is distinguishing some circumstances where predetermination can be dispensed with from others where it should not. Without reopening the arguments that we have just been through, I do not believe that that is the import of Clause 14. In a sense, we are still awaiting the definitive government view on that. The issues around predetermination ought to run throughout the decision-making process. It is not quasi-judicial planning issues; there are lots of other decisions that councillors may make. As I understand it, if they have discretion on decisions, it must be real discretion. If they have pre-empted it by predetermination, there is the prospect that that decision will be unlawful, whatever area of decision-making is involved. However, I would not particularly disagree with taking those licensing operations outside the provisions of Clause 14.
Lord Taylor of Holbeach
My Lords, I thank the noble Lord, Lord McKenzie of Luton, for temporarily forgetting that he is on the opposition Benches and not the government Benches and, in effect, making the case that the Government will be making to my noble friend Lord Greaves. On this issue, I am afraid that I beg to differ with my noble friend.
I apologise to the noble Lord, Lord Beecham; I imputed this set of amendments to him and not to my noble friend when we were discussing the previous grouping. It probably rather shook him to discover that he was the author of a set of amendments that he had not actually been involved with.
On Amendment 93, it might help to clarify just how radical the change is. I hope to provide some reassurance with what I am going to say. The Government’s view is that an elected member is equally able to listen to arguments and evidence and come to a fair decision on what my noble friend has referred to as a personal licensing matter as he is on any other licensing matter. That means that there is no justification for leaving unclear the circumstances that mean that a councillor has to withdraw from participating in any licensing decision process. That lack of clarity arises from the fact that we as a Government do not accept the distinction being drawn here between what a councillor can say about a decision relating to a personal licence and what they can say about a decision on any other licensing matter. We strongly believe—this is at the heart of our policy on predetermination—that councillors should no longer be restricted in which of their opinions they are free to express to the communities that they are elected to represent. Councillors, like any other individuals, will have regard to laws on libel and data protection when discussing individual circumstances or information which they may hold. However, it would be wrong to restrict them in this way from commenting on what may be a matter of great interest to their constituents.
I ask my noble friend to withdraw the amendment. I am afraid that the Government are not prepared to see these as exceptional circumstances from the general principle of predetermination and the freedom of councillors to express their view prior to making a decision.
Lord Greaves
My Lords, I had hoped that the Government might take a rather different view on this. Having listened carefully to what the Minister has said, I am now even more convinced that I am right and they are wrong. The Minister referred to libel and data protection. I am not sure that either has much to do with it. Data protection would come into it with personal details being divulged to whichever licensing committee it was, which are private and should not be made public. If councillors made them public, they would be liable for it.
However, that is not at all the point that I am making. For example, there could be two rival taxi businesses in a community. The taxi business is fairly cut-throat. People do not make a great deal of profit and work very long hours. There are attempts to do the other side down, perhaps in a legal way. One faction is larger than the other and gets to the councillor who happens to be on the licensing committee. They say, “We do not want you to give a taxi operating licence to this person or taxi driver licences to these people, because they will be able to expand their operation and compete with us. We will find it more difficult”. These are personal applications. It would be outrageous if that councillor went around saying, “Yes, I will block the personal applications for taxi driving or operating licences from this or that person”, before the meeting. Councillors should be banned from saying things like that. Any councillor who goes around making such promises should be banned from taking part in the decision.
These decisions, particularly the alcohol decision, were until recently made in magistrates’ courts. Can you imagine a magistrate being in that position: going around and promising a community that they will block a particular person from taking over a pub and being the licensee because that community wants somebody from that community who it favours? Imagine the pub is in the middle of a big estate, and the estate has somebody who they would like to take over the pub, but the owners have an alternative in mind. To go around campaigning against that person getting a licence to run that pub would be absolutely disgraceful. It should be banned by law.
The more I listen to the Minister, the more I am absolutely convinced that I have raised a genuine problem. I disagreed with the noble Lord, Lord McKenzie of Luton. He was saying that he wanted everybody to be treated the same, but he wanted it to be more restrictive for everybody. The Bill says that predetermination —I keep wanting to say “predestination”, but that is not quite it—should be abolished for everybody. I am not suggesting that the noble Lord, Lord McKenzie, is saying that, but it is what the Government are effectively saying.
Lord McKenzie of Luton
I do not think that that is what the Bill is saying. If predetermination equals a closed mind—I was trying to get an answer from the Minister earlier—and if predetermination as a concept is abolished, then there are very serious issues, particularly on planning and licensing arrangements, on which the noble Lord touched. That is the point I make about predetermination.
Lord Greaves
Yes, I accept that. I accept that there is a difference. It seems to me that there is a difference between the Government’s rhetoric and what they are saying will happen: that councillors will be freed from the kind of constraints that the wife of the noble Lord, Lord Newton, found, and which I found when I got back on the council. I think that relates to the probing that the noble Lord has usefully undertaken in the past hour or so, but there is no doubt that the regime will be more liberal than at present. We are probing what it will be exactly. The noble Lord said that it will be very radical and that perhaps we were not appreciating how radical it will be.
In general, I am fairly happy with that. However, I am not happy, and I suggest noble Lords should not be happy, about how it applies to applications for personal licences by individuals where they may be seen as controversial in the community. There may be other incidences as well. Let us look at an alternative. In a fairly built-up area, there are two corner shops which do not have alcohol licences but one of them applies for such a licence and the other one objects. The shop owner who objects could have lots of friends in the community who will instigate a petition, saying that the other shop owner should not have a licence. The motivation will be competition, not that the shop owner has spent the past five years in jail or is a fraudster or is generally unsuitable; it is simply competitive rivalry. As a result, the friends persuade a councillor with whom they have close connections, and who happens to be on the licensing committee, to oppose the licence. They hold a public meeting and present a petition. Surely that should not be allowed and yet, as I understand it, that kind of thing would be allowed under the new regime that the Government propose.
There is an important and serious issue here. I ask the Government to take the matter more seriously and to take more legal advice on it. On that basis, I beg leave to withdraw the amendment.
Lord Greaves
My Lords, I am not sure we have had a may/must amendment yet on this Bill, but perhaps we have and I have missed it. This is an important amendment. I rise to speak to my amendments in this group: Amendments 97A, 98E, 98F and 98H. I will also speak to the other two amendments in the group, if I may.
There is widespread concern within local government that the Government have not got this exactly right. At the very least, it needs some fettling and a number of probably quite major changes if it is going to work fairly. As my noble friend Lord Tope said earlier, there is a widespread feeling in local government—it is not universal—that the demise of the Standards Board for England is to be welcomed. The Standards Board for England’s regime has turned out in practice to be expensive. It has been arbitrary in too many cases, and therefore it has been seen to be unfair. It has been open to abuse, and it has been open to attempted political manipulation, not by Standards Board members or its staff, but by people trying to use the system in order to do down opponents.
In our judgment, the removal of the Standards Board for England is a good idea, and we congratulate the Government on doing it, but something has to replace it. We cannot simply go back to the free-for-all situation we had up until about 20 years ago when standards codes and sanctions against councillors were hardly known. The system then seemed to work. There did not seem to be any more rogue councillors than there are now, and people did not seem to step out of line more than they do now, but the world has changed. We are now in a world in which standards in public life have come in and are accepted right across the board of everybody who takes part in public life. We have even had to grapple with these matters and come up with solutions here in the House of Lords. Local authorities are no different, and to pretend that local authorities generally, or some local authorities in particular, can be excepted from this situation is not the world that we are now living in.
The Government’s proposal in the Bill is that there will be no national system, no national organisations and no bureaucracies; it will all be left to local authorities. In our debate on a previous amendment, my noble friend Lord Taylor said that it will be up to local authorities to behave sensibly and do what they think is best in their area. There will be no uniform or national standards code, so each authority will be able to adopt its own code or not have one. It can keep, amend or do away with the present code. If any of my description of the present system is wrong, I hope the Minister will intervene and tell me, but I do not think it is.
Authorities will be able to choose whether to have standards committees. Since local authorities all have them at the moment and are institutionally fairly conservative bodies, most of them will probably keep them in one form or another, but it will be open to an authority not to have them, so there will be a hotchpotch pattern; they will be able to invent their own rules for how standards committees work within their own codes of conduct.
In addition, for the offence of failing to declare appropriate interests, either by not entering them on to a register of interests or by failing to declare them in meetings at appropriate times, the only real sanction left is the criminal law and, subject to the Director of Public Prosecutions’ agreement, people will be arraigned before a magistrates’ court if the DPP thinks it is serious enough. Meanwhile, parish councils will be left in some sort of limbo. They might be able to have their own systems or to continue to be part of a district council’s standards committee and system of standards, but if the local district council does not have one or decides to do away with it all, the parish councillors will have the choice either of doing it themselves, which might be rather difficult for small parish councils, or not doing it at all.
That seems to be the regime that is on offer. Perhaps the way I have presented it suggests that I am not terribly impressed with it. Nevertheless, I think my presentation of it is factually correct.
We have been here before and had something similar to this. When standards committees were first brought into local authorities, local authorities were left to do their own thing. Many of them did it very well, but in some places it was not done well. It was done either inefficiently or in an arbitrary, uneven or unfair way. In a small minority of places—it is always a small minority—it was not a good thing. It was fairly dreadful. Some authorities used it to victimise individual councillors in order to conduct campaigns against opposition groups on the council and to conduct witch-hunts against individuals. That is always the danger if local authorities in an area like this are left to their own devices, because there will be some places where malign, malevolent politics gets in the way of a fair system. Therefore, we propose in amendments in this group, and in the next group, which I will speak to later, a system in which every authority must have a standards committee. It seems ridiculous that someone could be dual-hatted or triple-hatted, and on three different authorities at different levels, some of those authorities having a standards committee and some not.
Equally, we are suggesting a uniform, standard, national code of conduct. We are not talking about local diversity. There cannot be local diversity about what is appropriate conduct for people in public life. We are talking about standards in public life. While standards and rules for councillors may be different from those for Members of the House of Lords, Members of the House of Commons, people on national quangos or whatever, the organisations are different. Nevertheless, they should be based on the same principles and underlying standards in public life.
There does not seem to be any reason why, if I am a member of a district council, a parish council and a county council, which I have no intention of being except for one of them, there should be a different code of conduct on each council. Surely, that cannot be right. Nor can it be right that of the 11 or 12 district councils in Lancashire, some do not have a code of conduct and some have a very different code of conduct from the adjoining council. Codes of conduct should be laid down nationally.
We are saying that the drawing up of the code of conduct and its approval should be done by local government and not by the Secretary of State or national government. It should be the responsibility of representatives of local government and, in terms of legislation, the LGA obviously is a key representative. We want systems for appeals and we want to sort out parish councils. We want to look at criminal offences, but they are in the next group so I will not talk about them any more at the moment.
On something like this there has to be protection for the public against rogue councils. Much as I have an underlying, innate aversion to national uniformity in anything, some things are so important and fundamental that they underpin everything else. This is the right way forward.
Lord McKenzie of Luton
My Lords, we agree with the noble Lord, Lord Greaves, that we cannot have a free-for-all and that it should be mandatory for every local authority to have a code of conduct. There should be a universal code and an appeals procedure. If that means that we would support each of these amendments, that is where we are.
Lord Greaves
My Lords, I apologise. I should have jumped up before the Minister. I will speak to Amendments 98K and 98M in this group.
On the two other amendments in the group, Amendments 98J and 98L, which would remove “and other” and “or other” respectively, an important, if not fundamental, point to be made is that the Government are proposing to use in this Bill language which in local government is rather out of date. Local government used to talk about financial interests and non-financial interests. If you had a financial interest, you had to declare it. You then had to do whatever the council instructed you to do, such as leave the room or sit there and not speak. If you had a non-financial interest, you had to declare it, but you were not usually subject to those sanctions.
My experience is that local government nowadays talks about personal and prejudicial interests, which are similar. However, prejudicial interests, while they include financial interests, are wider ranging and may include interests which are not directly financial but are nevertheless thought to be prejudicial to somebody taking part in discussion and debate. Personal interests, which have to be declared, are those which people should know about but are not thought to be prejudicial to people taking part in a debate. It seems to be common practice in local government nowadays for those words to be used. I was fairly sure that they had been used in the previous legislation, although I have not looked it up. Perhaps along with my noble friend, I would ask the Government to check the nomenclature, because there is no point putting in legislation words which are not now used on the ground and, in any case, are narrower perhaps, and less clear certainly, than the words and categories now used in local government.
My amendments in this group follow on from the amendments in the previous group. They are part of a package of the way we suggest the new standards regime needs to be changed. First, if there is to be a local system of councillors being sanctioned by local committees and no National Standards Board procedure, there needs to be an appeals procedure written into the system. There has to be a way in which someone who feels aggrieved by a local decision is able to appeal to a wider group against the sanction made against them. As I understand it, this is normal human rights and administrative tribunal procedure. In many ways these bodies will be operating as administrative tribunals and we hope that the Government will look at this issue. We suggest that it should not be a national quango such as the Standards Board for England and that it should not be run by central government; it should be operated within local government by representatives of local government and it should be set up in co-operation with the LGA. As my noble friend Lord Shipley said, we have set out ways in which this can be done.
My second point concerns parish councils. The Government have not bottomed the issue of parish councils on this new standards regime. I have a long briefing about the problems that it will cause to parish councils but I shall not read it all out. If parish councils have to operate their own procedures, there will clearly be resource implications. Big town councils might be able to do it—although it might be wasteful of their funding—but small parish councils will not possibly be able to do it. If there are many individual local codes so that parish councils operate different systems and some do not have any, how will members of parish councils be trained to understand the code? How will parish clerks, who play an absolutely crucial role, be trained in the new system?
My experience from talking to people involved in standards committee throughout the country is that where there are lots of parish councils they seem to occupy quite a high proportion of the time of standards committees. The reason for this is obvious: parish councillors are not getting the expert advice on standards matters—on declarations of interest and so on—which they ought to be getting; and parish clerks are perhaps not being trained or not passing on that advice. I am a huge fan of parish councils but there may be something about parish-level politics and government that leads to individual rivalries and encourages people to make complaints against each other. Whatever it is, there is no doubt that parishes form quite a large part of the workload of standards committees in many different places. To leave them adrift, as this Bill seems to do, does not seem the right way to go.
In our view, the parishes probably need their own system. That system ought to be operated via the established means of communication and training that parish councils have with the National Association of Local Councils and other bodies such as the county organisations, and there ought to be county-level standards committees for parish councils. Whatever the system is, doing it within the parish council community is a sensible idea—particularly if the parish council finds itself cast adrift with a district that does not have a system. In any case, if districts have different codes of conduct and different systems for standards committees, the parish councils will have to join in those willy-nilly whether or not they agree with the systems and the codes. A separate parish system seems to be the way to look at things.
My final point relates to criminal offences. Again, we think the Government have not thought this issue through properly. On failures to declare interests, a major failure is a very serious matter indeed, whether it be a failure to register or a failure to declare during a meeting. A minor failure would require a sanction—but not a draconian sanction such as being hauled up before a magistrates' court. Yet the government system seems to mean that if the offence of not declaring or not registering an interest is not sufficiently serious for the DPP to agree to prosecute, there will be no sanctions at all. That does not seem to be the right way forward.
As for the criminal investigations and vexatious complaints, that needs thinking through; there are enough vexatious complaints on standards already that end up with people being found not guilty and having no sanctions against them—or, in my case, the complaint was proved and the sanction was nothing. People can imagine what happened. There are enough cases of people using the standards procedure for political or personal vexatious purposes. Think of the prospects of this being used when criminal sanctions are possible. You would get massive headlines in the local papers that the complaints had been made, it would all come to nothing but the damage would all have been done. It has to be thought through a bit more carefully.
I join my noble friend Lord Tope in hoping that we can have discussions with the Government in the mean time and that at the very least we can get the thing thought through again. If no change occurs at the end of the day, so be it—but we are convinced that the Government have not yet got it quite right.
Lord McKenzie of Luton
I am not sure that we would agree with everything that the noble Lord has said, but we would appreciate the opportunity to join in the discussions with government together with the coalition parties.
Lord Taylor of Holbeach
I thank noble Lords. I am sort of having a second bite of the cherry within the group, because I can talk specifically about the proposals of my noble friend. I hope that I can really reassure him. He talked about appeal structures and the like and the need to maintain them—and of course human rights legislation provides for this. But in actual fact the sanctions that the Secretary of State intends to provide for in regulations under Clause 18(2) will be relatively low-level sanctions based on powers of discipline that councils already possess. It is not our intention to confer any new disciplinary powers of the sort that would give rise to a need or expectation for a bureaucratic appeal process.
I cannot support Amendment 98M, which would insert a new clause relating to parish standards, although I understand the interest in it. The legislation as currently drafted gives parishes the power to have a code or a standards committee if they would like. Parish councils are free to make arrangements to work jointly with other authorities. My noble friend is mistaken if he believes that advice is not available to parish councils. The last Government published the Quality Parish and Town Council Scheme; it was published by the department in 2003, and it gives information about model charters whereby principal and local councils in England can work in partnership. That document can be viewed on the DCLG website. We intend here also that the regulations to be issued by the Secretary of State under Clause 18(1) will specify that the registration of parish members' interests will be carried out by the monitoring officer of the district within which the relevant parish falls.
There was some talk about the criminal sanctions for failing to register, and I note noble Lords’ concerns on that. The noble Lord, Lord McKenzie, asked, too, that he might be a party to discussions that we might have before Report on those issues. I assure noble Lords that we would be happy to discuss that aspect of Clause 19 relating to breaching regulations under Clause 18. With that, I ask my noble friend Lord Tope to withdraw the amendment.
Localism Bill
Lord McKenzie of Luton Excerpts(13 years, 5 months ago)
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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?
Lord McKenzie of Luton
My Lords, we should congratulate the noble Lord, Lord Greaves, on giving us an early opportunity, during the course of the Bill, to debate this very important issue. We agree that it is important to enshrine, at an appropriate point in the Bill, a definition of sustainable development and the principles that he has outlined in the amendment. We agree with the definition and with the principles that he has set out. I anticipated that we would have this debate a little later when we got to Part 5 of the Bill, but important points have been made about this not being just about narrow planning; there is a broader dimension to it.
I agree with what the noble Lord said in moving the amendment. There are concerns about sustainable development being sidelined by the Government. He referenced the Budget pronouncements. Clause 124 could be a change in the balance of the assessment of sustainable development, and we have a lack of clarity over the NPPF; indeed, the advisory group’s draft has moved us some way away from what the previous Government had accepted and which I thought was generally accepted as sustainable development.
With some hesitation, I disagree with the noble Lord, Lord Lawson, that sustainable development is a meaningless concept. The fact that we may have had 1,000 years of growth generally in the economy and growing prosperity is fine, but are there not judgments to be made along the way about what that has done to the environment? Certainly in latter years, has not that growth often been achieved by recognising that you have to balance the impact, for example on the environment? I do not believe that it is a meaningless concept.
I agree with the point made by the noble Lord, Lord True, about the framing of the amendment, and I shall come on to that in a moment. There is a real risk that you create a lawyers' paradise. One of the assessments of well-being powers, and why they were not better used, was that lawyers, who were very cautious, got involved and that that precluded the use of the power more extensively than was anticipated at the time. I therefore very much agree with the right reverend Prelate the Bishop of Exeter in his approach to sustainable development, and with the noble Lord, Lord Taylor of Goss Moor. I disagree with the noble Lord, Lord Lawson.
When thinking about the Opposition’s response to this amendment, I considered how it sits with the local authority’s duty to prepare community strategies. That is set down in the Local Government Act 2000. There has hitherto been a requirement to prepare community strategies for improving economic, social and environmental well-being and contributing to the achievement of sustainable development in the UK. I asked the DCLG whether that obligation still exists. It does, but perhaps the Minister will confirm the Government’s intention to repeal the duty to prepare a sustainable community strategy. Instead, the Government have set down light-touch, best-value statutory guidance, on which they are consulting. The consultation document is extremely interesting, and shows about four pages of rubric on one page of a draft definition of “best value statutory guidance”. Only one sentence potentially touches on sustainability. It states:
“Under the duty of best value, therefore, authorities should consider overall value, including environmental and social value, when reviewing service provision”—
in place of the existing obligation to have sustainable community strategies.
The noble Lord, Lord Greaves, said that he wanted something that ran throughout the Bill, but I do not believe his drafting achieves that. Specifically, it states:
“A local authority shall exercise the power conferred by section 1”,
which is the general power. Again, analysis of the well-being power showed that it was not used in preference to statutory powers that local authorities may have. If we saw that replicated with the general power, in a sense what the noble Lord is seeking to achieve here would not capture that.
I understand that this is a probing amendment, and we support its thrust. We certainly want to see those definitions in the Bill and are happy to work with the noble Lord to achieve some refinement to the approach set down in his amendment.
Baroness Hanham
My Lords, I understand that this is a probing amendment and I thank all noble Lords who have taken part in this short debate. The Government are not unsympathetic to the attempt to describe “sustainable development”. In fact, they have already done so on two occasions. They support the Brundtland definition, and their statement on maintaining sustainable development, published in February this year, includes a commitment to embed these principles across government policy. Therefore, it is not only in this Bill that the sustainable development is likely to come about.
We accept that there is a strong relationship between the Government’s approach and the ambitions of this Bill. However, whether we can spell it out in a way that is acceptable on four fronts is probably more difficult. It would put it on to a statutory framework that is a lawyers’ paradise. The expectation and understanding is that local people will be best placed to understand what is right for sustainable development locally, and noble Lords may have become aware of the definitions that have appeared in the consultation on presumption in favour of sustainable development that has just been published.
On the planning system, we believe that there is a presumption in favour of sustainable development at the heart of the new planning system. We will look to local planning authorities to prepare local plans on the basis of objectively assessed development needs and with sufficient flexibility to respond to rapid shifts of economic change. They should approve without delay development proposals that accord with statutory plans—noble Lords opposite mentioned that—and should grant permission where the plan is absent, silent or indeterminate, or where relevant policies are out of date.
That issue is one of planning. Noble Lords also referred to the generality. February’s Statement made clear the Government's view that there are three pillars—the economy, society and the environment—which are interconnected. We recognise that long-term economic growth relies on protecting and enhancing the environmental resources that underpin it, and on paying regard to social needs. Those are the principles of sustainable development that we need to take forward.
I will resist, at least for the moment, having a definition such as that put forward by the noble Lords, Lord Greaves and Lord Tope. If there was ever going to be a definition, we would need to be very clear and sure that it would be legally unchallengeable, because definitions never define the whole process and all the opportunities; sometimes they are restricting rather than helpful. Some of my noble friends behind me may be slightly sad about this. I say to them that in general the Government have some sympathy with sustainable development. As I have indicated, they have already made commitments on the subject. However, I regret to say to the noble Lord, Lord Greaves, that his proposed new clause would not be helpful at this stage.
Building Regulations (Review) Bill [HL]
Lord McKenzie of Luton Excerpts(13 years, 8 months ago)
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Lord Knight of Weymouth
My Lords, I want, briefly, to reinforce the comments made by the noble Lord, Lord Best. I do so as a former patron of the national fire sprinkler campaign and former chair of the Fire Safety Council. That was some years ago now and I do not currently have any interest in that area. When I was Schools Minister I ensured that the attitude towards sprinklers in schools was shifted significantly so that only the very lowest-risk schools in terms of fire would be exempt from installing sprinklers. That took a lot of ministerial heavy lifting when officials were giving contrary advice, so I urge the Minister to adopt such a policy if he is hearing all the reasons why not to do something when the case made by my noble friend Lord Harrison has been so strong in respect of the views of fire officers.
In the work that I have done over the years with fire officers—I pay tribute, in particular, to Peter Holland the chief fire officer at Lancashire—they have consistently said, “This is about saving lives for probably the cost of installing carpets in a building”. For that cost a huge amount is to be gained. Once you get into residential installations you are starting to achieve the sort of scale that can drive innovation. The noble Lord speaking from the Liberal Democrat Benches talked about the cost of tanking. Tanking systems are often but not necessarily used. If there is good enough water pressure—negotiation needs to be had with the water companies there—it is possible to go ahead with a small sprinkler system without using a tanking system.
Similarly, there may be other ways of scoring innovations. There has been some discussion about using the piping within a central heating system in a residential dwelling, and indeed using the water pump from the central heating system to supply a sprinkler system. Such innovations can be tested better, as they are in Wales, when we start to do residential systems. The comments of the noble Lord, Lord Best, about design freedom should be taken into account by the Department for Communities and Local Government—and not just design freedom within properties where some of the passive protections that can be quite frustrating to homeowners can be removed. Indeed, many of us have seen fire doors propped open which means that all the effectiveness of those passive measures is lost. There is also potential design freedom within new estates where the risk assessment from the fire authority is such that you might not need quite the same turning circles for large fire vehicles because the risk around fatalities in fires is so much reduced by having a sprinklered estate.
I urge the Minister to be sympathetic to my noble friend’s very modest proposal. I draw his attention to the first word of Clause 1—“Within”—and I hope that if he accepts the 30-month proposal, the drive is still on to get it as soon as possible. We should have in mind the story of the fire officer related by my noble friend Lord Harrison. As you wait an additional 18 months the lives of yet more fire officers and residents will be at risk.
Lord McKenzie of Luton
Briefly, I support my noble friend's Bill and the amendment and pay tribute to his persistence and dedication on the issue of fire safety. I support the amendment with reluctance, because the Bill is perfectly adequate as it stands, but my noble friend has gone the extra mile by extending the time.
Given that extension, what assurance can the Minister give us on funding for ongoing community fire safety activity, which has been at the heart of driving down the number of deaths from fires in this country? Since we last debated this at Second Reading, we have had the CLG publication, Future Changes to the Buildings Regulations—Next Steps. In Part B, on fire safety, it states about the consultation:
“However, this exercise has not produced any significant new evidence on the health and safety benefits of greater sprinkler provision that would alter the cost/benefit analysis and the basis of the current approach. The Department will not, therefore, be considering this as part of next year’s programme of work”.
It seems an odd position to take that the Government do not want to engage in or encourage new research but are happy to rely on current research, which has been a bone of contention—we debated the BRE research previously under the Bill—as the benchmark to say that there is no new evidence. That is a rather perverse way to proceed.
On the summary of work to be taken forward from the consultation exercise, I am certainly pleased to see that Part P, to do with electrical safety, will be in next year's work programme, because there is interrelation with issues of fire safety. About 8,000 deaths in the home are caused by inadequate electrical work. I would hope that that will focus on greater use of competent person's schemes. Paragraph 3.4 states:
“Finally, there is also a third group of issues that we believe currently lack clear evidence to support regulation in 2013, but which we would not wish to definitively rule out. This includes whether to expand the provisions for radon gas protection and whether flood resilience/resistance should be incorporated into regulations”.
My second question for the Minister is: where does that leave the review of Part B? What is the programme for review in Part B, or will the Government continue to oppose the Bill and the research that it seeks and rely on the status quo of research, therefore closing their minds to further review of that important part of the building regulations to deal with fire safety?
I support my noble friend and his amendment, although I think that the Government should have been more encouraging and not have required him to seek this extension.
Baroness Smith of Basildon
I support my noble friend Lord Harrison’s amendment and his Bill. At the Dispatch Box in our previous debate, the noble Lord, Lord Stevenson, referred to “Groundhog Day”. A number of us in the Chamber today feel the same sense that we have been here before. I pay enormous tribute to the tenacity and commitment of my noble friend Lord Harrison for the work that he has undertaken to drive this forward. He has not been prepared to let the issue drop. He wants to continue purely in the interests of public safety. The same goes for my noble friend Lord McKenzie of Luton, given his former role at the Dispatch Box and his commitment. My noble friend Lord Knight of Weymouth will remember many discussions on the way forward on this when I was the fire Minister and he was an education Minister. As he said, I am pleased that we were able to make such progress.
I support the amendment—with some reservations, like my noble friend, Lord McKenzie; but it will get my support. I am not sure that it is necessary, but if the Minister thinks that it helps and if that is what it takes to move the issue forward, get the research and assessment we need, I am happy to support that. I am grateful to the Minister for the meeting between his officials and my noble friend Lord Harrison, because that is what led to him proposing the amendment.
Airlines: Snow and Ice
Lord McKenzie of Luton Excerpts(13 years, 10 months ago)
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Earl Attlee
My Lords, my right honourable friend the Secretary of State has asked Sir John Beddington to give him scientific advice on the likelihood of future severe winters. On 25 October 2010, the Met Office provided the Cabinet Office with an updated three-monthly forecast, which suggested a 40 per cent chance of cold conditions, a 30 per cent chance of near average conditions and a 30 per cent chance of mild conditions over northern Europe.
Lord McKenzie of Luton
Does the Minister think that BAA and other airports might benefit from the experience of London Luton Airport, which this winter has lost just five hours of operations—that was due to closure of airspace by NATS—despite the fact that Luton experienced greater snowfall than Heathrow? Does he agree that this was down to good management and planning, involving investment in equipment and consumables, early rehearsals of runway closure procedures and co-ordination across the airport, particularly with handling agents?
Earl Attlee
My Lords, the noble Lord makes the important point that good planning can mitigate the effect, but Heathrow Airport experienced 16 centimetres of snow in one hour, which was far more than was reasonable to plan for.
Building Regulations (Review) Bill [HL]
Lord McKenzie of Luton Excerpts(14 years, 1 month ago)
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Lord McKenzie of Luton
My Lords, it is with great pleasure that I rise briefly to support my noble friend Lord Harrison. He makes a powerful case for his Bill, which I support. I also pay tribute to his commitment to the cause of fire safety, which he demonstrated again towards the end of the previous Parliament in a Bill truncated because of the general election. Like my noble friend, I take this opportunity of placing on record a tribute to the fire and rescue services, their dedication, their bravery and all they do in keeping so many of us from harm’s way.
If I may say so, I think the approach of this Bill is better than that of the previous Bill. It is seeking a review of the building regulations and an impact assessment of the possibility of automatic fire suppression systems being included for new residential premises. It sets out the matters which should be included in this assessment, but allows for factors outside the list. I have no doubt that the Minister, in giving a government view, will be able to refer to the evidence base which is anyway being assembled in connection with a review of Part B of the building regulations, but there is no reason why this could not be encompassed within the assessment that my noble friend is seeking in the Bill. While Part M of the building regulations is not due to be formally reviewed until 2013, the long lead time needed for changes would not seem to be inconsistent with the 12-month timeframe called for by this Bill.
The BRE research that underpinned the previous update of the building regulations was a bone of contention, and there was no meeting of minds about whether its analysis took account of all the evidence. The Bill presents an opportunity to move on from that, and it is encouraging that the Chief Fire Officers Association is now working on a project with the BRE to update the research. Perhaps the Minister would also take the opportunity to update us on progress on a couple of the research projects that were in train when we left office, particularly the trialling of low-cost sprinkler systems in Lancashire, Kent, Suffolk and Northumberland and the commissioned research looking at the cost-effectiveness of sprinkler systems in high-risk buildings.
My noble friend’s Bill rightly calls for an impact assessment looking at costs and benefits. I have no doubt that we will hear other contributions today which remind us of the fragility of the current housing market and the challenges facing the housebuilding sector, which were not made any easier by the draconian cuts to capital for affordable housing of which we were informed just this week. It is also right that we consider these in the longer-term context. My noble friend’s earlier Bill focused on sprinkler systems for new residential property, not the retrofitting of existing homes. Whatever the conclusions of the review and the impact assessment, we need to continue with a robust, proactive fire safety strategy. That involves efforts to reduce the incidence of fire through education, information and publicity, and in particular reminding people of the importance of having working smoke alarms installed in their homes and regularly testing them. We have seen a dramatic increase in smoke alarm ownership, helped in part by a pump-priming funding stream, which was then mainstreamed for fire and rescue authorities in the revenue support grant of those authorities.
My noble friend Lady Smith of Basildon will say more about this, but any assessment of the costs and benefits of sprinkler systems will doubtless give some regard to the capacity of the fire and rescue authorities to carry out their preventive activities at current levels. The cuts of 25 per cent in support grant will not make this easy. Making up the difference with council tax increases is hardly an option, especially with a squeeze on council tax benefit.
What my noble friend’s Bill seeks is entirely reasonable. It seeks facts and analysis about the impact of installing sprinkler systems in new residential properties and asks that this work be reported to Parliament when completed. It would seem consistent with, and could be accomplished together with or alongside, work streams that might already be under way in connection with an update of the building regulations. It presents the chance to try to resolve a difference of view that is not just about some theoretical or technical debate but about improving fire safety, saving lives and reducing the devastating consequences that a fire can inflict on individuals and families. My noble friend deserves our support and praise for his unswerving commitment to this cause.