Localism Bill

Lord Newton of Braintree Excerpts

Monday 20th June 2011 Lords Chamber

[Lord Lawson of Blaby]

My Lords, this has been an instructive exchange, so far. No one has been able to define sustainable development and, indeed, the Bill does not define it. There is a simple reason for that, because the term “sustainable development” is totally meaningless. It is one of those cant expressions that grew up with the Brundtland report—perhaps a bit earlier; but that report referred to it—and is meant to feel good, but has absolutely no meaning whatever.

The right reverend Prelate attempted to define sustainable development as the type of development that he approves of. He is perfectly entitled to approve of some forms of development more than others, but that is not the sort of thing that you can put in a Bill, and quite rightly so. We live in a developed economy that has been developing for at least 1,000 years. That seems to be pretty sustainable to me. I cannot think what is unsustainable about it. It has also, importantly, led to a considerable rise in living standards among a greatly increased population.

Look at the developing world: that is what they want to do, too. They have great poverty and they want the sort of development that we have had in the developed countries. They say, “Now we are going to do that”. The idea that there is something unsustainable about it is proven to be false by the fact that it has been going on for 1,000 years or more—much more, in fact. The idea that sustainable development has any meaning whatever is clearly nonsense. It is a great pity that the Government put the phrase in the Bill. If they had not, we would not have this ridiculous debate. At least, I commend them on not attempting to define something which has no meaning whatever.

[Lord Newton of Braintree]

My Lords, before I say anything else, I should probably declare an interest, which I hope that I do not have to declare every time, which is that my wife is a former chairman of Braintree District Council and currently the cabinet member for planning and strategy. I hasten to add that, on this subject, we have not considered our views together, and I am not expressing her opinions—as I do on everything else, of course.

This is an unusual occasion for me. I do not usually find myself tempted to my feet by my noble friend, who is historically rather more robust than I am. I am normally seen as being on the softer side of the party. I have every sympathy what he just said. I will not elaborate, therefore, but I add a second heretical view, which is that, from what I have heard so far today—and I have reservations about parts of the Bill—we are in danger with all these definitional clauses of creating a pure lawyers’ paradise in which every decision is capable of endless judicial review to determine what these meaningless words mean. I do not encourage that.

[Lord True]

My Lords, I declare an interest as the leader of a local authority in London. I also thank my noble friend for her earlier comments on shadow mayors, which were extremely welcome. I do not want to come between my noble friends Lord Greaves and Lord Lawson, but I express concern about the way in which the amendment, with its merits or otherwise, is framed. Here, I follow the remarks of my noble friend Lord Newton of Braintree.

The amendment as framed, which requires a local authority to exercise the power, is applied to the core general power of competence at the start of the Bill. That means that everything done by any local authority under the Bill may be subjected to the tests. Many of the tests are desirable—I certainly do not go as far as my noble friend Lord Lawson in his comments on sustainable development, which is in principle an admirable objective—but I fear that, if the amendment is applied to the Bill in general terms, the willingness to use the general power of competence may be tainted by fear of legal action. The fundamental point that I hope that we will pursue is, as I said at Second Reading, that we should do nothing to limit the power of general competence or to discourage local authorities from employing it.

It is a worthy try by my noble friend Lord Greaves, but I hope that if he wants to return to this important principle, it should not, for the reasons expressed by my noble friend Lord Newton, be applied to this part of the Bill.

--- Later in debate ---

[Lord Greaves]

I agree entirely, except that I did make changes to the grouping. As a result of this, we are where we are. I attempted to make sense of it, but in the end it did not come out that way. Let me be absolutely clear: I am talking to the two amendments in the group that starts with Amendment 12 as moved by the noble Lord, Lord Beecham. I apologise for the confusion in the numbers, which is entirely in my head and in my notes. I shall attempt to be much clearer.

I am talking now about Amendment 22, which is in the group that we are debating. The amendment, which was tabled by the noble Lord, Lord Beecham, and which I entirely support, reflects the analogous condition in Section 3(2)(a) of the Legislative and Regulatory Reform Act 2006. This additional safeguard is needed and is not covered by the other conditions—for example, the requirement for proportionality. The reason is that Clause 6(2)(a) refers to the proportionality of the “effect of the provision”, while Amendment 22 relates to the means of achieving that objective. The Secretary of State would have to be satisfied that the particular amendment or repeal proposed is the only way of satisfactorily securing the objective; it would require him to consider whether there were other possibilities—for example, by issuing guidance to local authorities or by amending or repealing a less significant provision. This is an extremely complicated matter. I do not know whether the Minister will be able to give us an answer that can satisfy us all, but again perhaps further discussion, either by letter or in person, can take place.

Amendment 23, which relates to the Human Rights Act and similar Acts, would add a further condition to Clause 6(2). Section 8 of the Legislative and Regulatory Reform Act 2006 makes a specific exception for the Human Rights Act. The Minister in the House of Commons stated that Clause 6(2)(e) would preclude the making of an order repealing the Human Rights Act or any part of it, but that paragraph relates to the provision—in other words, what the order proposes to do. This is different from whether the statutory provision itself, which is the subject of the order, is of “constitutional significance”. The point is that the 2006 Act recognises that distinction. The Bill as it stands does not recognise it and the question is why not. Why the change? The amendment of the noble Lord, Lord Beecham, would restore the distinction, which would be a very sensible thing to do.

[Lord Newton of Braintree]

My Lords, having already declared my wife as an interest, I will not repeat that. However, in view of the contents of Amendment 14, I should mention that I am in possession of a disabled person’s blue badge and that I chair a mental health trust.

I wanted to join in on this debate partly because of puzzlement and partly because I thought that the noble Lord, Lord Beecham, moved his amendments—in particular Amendment 14—with rather more diffidence than I had expected, and certainly with less vigour. By the time you have got through five of these clauses, your mind begins to glaze over, to be honest. However, as I read the provisions as a mere layman, what is being said here is that local authorities can do anything they like, subject to some broad qualifications, and the Secretary of State can allow them to do anything they like if he likes what they want to do; but if he does not like what they want to do, he can do whatever he likes to stop them—and all this with a limited piece of secondary legislation, possibly altering primary legislation, and on the basis of a negative resolution. I think that is it in plain English—I hope that it is, and I see some nods.

At the end of the Public Bodies Bill, I said that I thought that Henry VIII had suffered a major setback but not a terminal defeat and had gone off to regroup somewhere. Well, I now know where—it was in the Department for Communities and Local Government. Here is Henry VIII, on his charger, writ larger than ever before.

I have reservations about this, to put it mildly. The noble Lord, Lord Beecham, used a telling figure in the Second Reading debate, that there were over 1,200 pieces of legislation that could be amended by this Bill, using these powers. He has picked out some of them, and I think that he has done us a service, but I want to know the justification for this. If it is secondary legislation that is being changed, I can understand it, but if primary legislation, which has been duly and thoroughly debated and passed by Parliament, can be swept aside in this way, there is a real question about what we are all doing here. I note that safeguards have been written in, but I am not sure that they are on a parallel with the safeguards written into the Public Bodies Bill. At the very least, if the House is expected to acquiesce in these proposals, it needs at least a similar level of safeguard as we have in the Public Bodies Bill. I rest my case for the moment.

[Lord Best]

I have not spoken in the Committee stage, so I declare my interest as president of the Local Government Association. In that capacity, let me say that the earlier remarks from the Minister on shadow mayors and mayors acting as chief executives will be extremely well received at the LGA this evening.

I wanted to say one or two things in support of the remarks of the noble Lord, Lord Newton. The underlying intention is honourable—that if the general power of competence is inhibited by any other legislation, the Secretary of State has what could be rather draconian powers to overrule other legislation. But that clearly needs to be hedged around with some safeguards. A number of us have received representations from an alliance of disability groups, which are particularly concerned that some of the legislation that relates to their rights and entitlements might be diminished. That came to us from Age UK, Scope, which is involved with people with cerebral palsy, the National Autistic Society, the RNIB and Mencap. All these organisations are deeply concerned that some of the protective legislation that surrounds the world of disability might be done away with for the possibly good reason that it got in the way of the power of general competence —but that would seem a lesser priority. So we need reassurances here, and I support this bunch of amendments.