Subterranean Development Bill [HL]

Lord True Excerpts

Friday 10th February 2012 Lords Chamber

[Lord True]

My Lords, as others have said, this is an important Bill. The issue was discussed at some length during the Localism Bill, and I pay tribute to my noble friend and to the noble Baroness, Lady Gardner of Parkes, for what they did during those debates to bring this matter to the attention of the House.

The great strength of the Bill is that it seeks to codify an overarching approach to an emerging and extending issue. I do not object to the liberty to develop one’s own house and property, but such development can cause serious problems, as we have heard, and it should come within a properly controlled and consistent regime. The procedures laid out in the Bill are clear and admirable, and I support them wholeheartedly. I join in the tribute to the noble Earl, Lord Lytton, whose professional expertise on this issue has contributed so much.

Whether this measure requires an Act of Parliament, accords or a code of practice—a question raised by the noble Earl, Lord Caithness—the fact remains that it needs to be done. The case has been made by enough noble Lords who have spoken.

This is often perceived as a problem relating to central London but, as has been said by others, it does not relate only to central London. I can say from my perspective—and I declare an interest as leader of a London borough council where subterranean development takes place—that the problem of controlling and managing it is far more widely distributed than many imagine. Of course, as property prices increase, people naturally seek to exploit the territory that is theirs wherever they can. One of my council colleagues was telling me only yesterday of a case where development has already caused damage of more than £50,000 to a neighbouring property during construction, when pumps were put in the wrong place, and so on and so forth. That damage occurs before the neighbour is necessarily aware, and certainly before the council is aware, and it then has to be dealt with under the procedures of the Party Wall etc. Act and through the civil law.

In another case, there is a proposal only 30 yards from the Thames to go down two floors, with pumps going full-time to keep the site dry. People have ambitions to do that, so it needs an element of control. I hope that the procedures in the Bill are somehow implemented. If the Government cannot promise to introduce a Bill of their own on this line, I hope that they will be sympathetic if my noble friend or a Member of the other place brings forward a similar Bill in another Session, because the case has been made that the matter needs to be addressed.

The noble Earl, Lord Caithness, said that councils could do more. Councils are used to being criticised; it is part of one's lifestyle. We try to do what we can—Hammersmith and Fulham has recently introduced what I think are very effective documents on this—but the reality is that councils are often chasing the problem. We get many complaints about basements during construction, usually about noise, but in many cases planning permission has not been required—an issue addressed in the noble Lord’s Bill—so conditions have not been imposed. Then, building control officers, who are one of the most hard-pressed and underresourced parts of many councils, have to try to get under control a project that has already started. Councils do not have adequate powers, because some developments do not require planning permission.

It is said that Article 4 directions can be put in place. That is certainly true, but delivering Article 4 directions is quite cumbersome and requires a good deal of consultation, and so on and so forth. Our experience is that permitted development of smaller scale activities is causing a lot of the problems. Under Clause 3(1)(a), they will be brought within the ambit of the system. I welcome that.

Councils’ planning control powers are not designed to protect neighbouring buildings from construction damage. That is regulated by the 1996 Act; it does not necessarily involve the council. Yes, environmental health laws can be applied to construction sites, but that is directed primarily at controlling pollution and nuisances related to noise, vibration and dust. We can use those controls on construction sites to keep problems within reasonable bounds, but they cannot stop the issues arising from construction. I would be interested to consider the point made about the extension of building regulations. They relate to matters such as structural stability and foundations, but they are focused on compliance with regulations on the application property itself, rather than the effects on the local environment down the road or on buildings on neighbouring sites. There are other things that councils can do. My council has been proactive in dealing with issues arising from piledriving, which in larger developments is extremely tiresome and troubling for neighbours. A lot can be done under the Control of Pollution Act and other legislation to contain both the timing and the method with which piling is driven in larger developments.

Without further detaining the House, I accept the noble Earl's culminating point that councils should do more; we will try. It would be enormously helpful if the excellent code and approach embodied in the Bill were adopted by whatever method, with government support and encouragement—it may not need government time. We could wrap up all the things in the Bill so that we have proper control, proper notice—as has been mentioned by other noble Lords—proper management and a proper sense of responsibility. People can then exercise their freedoms with a sense of responsibility to others. We have an outstanding model before us in the Bill, a template for the construction of a code of practice, and I hope that the Minister will give it a warm welcome.

Localism Bill

Lord True Excerpts

Monday 31st October 2011 Lords Chamber

[Lord True]

My Lords, if I might intervene, slightly more briefly, because I agree with so much that has been said by the noble Lord. I did not have the opportunity to take part in the debates on these clauses, although I have taken part in a lot of the proceedings on the Bill. I strongly agree with the objections that have been raised to the amendment. Perhaps it is not surprising, declaring again my interests as a local councillor and leader of a local authority, that it tends to be that some of us with experience of local government find ourselves ranged against the exacting purity of those who practise at the Bar.

Some may feel this is a function of the imperfection of local councillors. Imperfect, of course, we are. The point was made by the noble Lord, Lord Sewel, and others, that councillors are biased. They are elected to be biased. My electors would be extremely surprised if I were not, as the noble Lord, Lord Greaves, said, seeking to implement the policies on which I was elected. That reality has to be understood and respected.

The current situation is having a chilling effect on a lot that goes on in local government, a point referred to by the noble Lords, Lord Sewel and Lord Greaves, and others. Councillors are nervous about expressing opinions on a whole range of matters where there is no question of predetermination or predisposition and so forth. It is having a bad effect on local democracy because local councillors are representative—they are not very highly-paid volunteers to try and put the public’s will into effect. They try their best.

I fear there is a growing inhibition on being able to speak out and speak frankly on questions. As the noble Lord, Lord Greaves, said, there is a clearly understood distinction between issues of planning and other issues. The trouble with the amendment of the noble Lord, Lord Pannick—the noble Lord, Lord Greaves, began to say this in reading out the first part of it and my concern was reinforced by the remarks of the noble Lord, Lord Hart of Chilton—is that subsection (2)(c), in stating that an earlier statement or conduct shall be,

“given such weight as is appropriate in the circumstances of the case”,

refers to a decision as defined in the clause, which is any decision of the council. We are not just talking about planning applications; we are talking about committee meetings, sub-committee meetings, functions of the authority’s executive and council meetings. The noble Lord, Lord Hart, conjured up in my mind the spectre of lawyers standing outside the council meeting saying, “You cannot go in and cast your vote because you said this on that a few weeks ago”. It may sound humorous but that kind of thing could well happen. People are trawling the opinions of local councillors, seeing who is biased and seeing whether they can get people struck off. It is rather like one of those American films where they try to strike off members of the jury to make sure that the right result is achieved in a murder trial.

I am worried about the link between subsection (2)(c) of the amendment and its application to every possible decision that might be taken by a councillor. We do need severe protection of the law on planning, but in other areas please let councillors be biased; please let them respond to the wishes of their electors; please let them be like MPs and Members of your Lordships’ House—people who are entitled to strong opinions. Let us not proceed with the chilling effect of this process of litigation and quasi-litigation that has actually occurred or may be threatened. I support the Government’s attempt to set things right and to improve things. It may not be perfect, but I certainly prefer it to the amendment. I hope that your Lordships will not support the amendment.

[Lord McKenzie of Luton]

My Lords, we have added our names to this amendment, for reasons which I will try to explain. As I understand the Government's position, this provision is meant not to change the current position—they may confirm or deny this—but to clarify it, as the noble Lord, Lord Greaves, said. The problem in seeking to clarify it, for some of us at least, is that they have unbalanced it and made it difficult. The noble Baroness, Lady Hamwee, advanced the point that, as drafted, the “just because” was the get-out but I contend that if you have to ignore anything that the decision-maker has previously done with a view to a matter, directly or indirectly, there is not much else that that decision-maker could have done which could then be the subject of a challenge on predetermination.

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[Lord Pannick]

I understand that, of course; I am responding to the point made that if our amendment were to be carried, this would in some way affect the existence of that whipping that does take place in local government—those elements of party control that are effective. Let me just complete the citation from Mr Justice Woolf: he concluded that there is no objection to any of this so long as, when the councillors come to the council meetings, they have an open mind in the sense that they are prepared to listen to the competing arguments.

The noble Lord, Lord Greaves, was rightly concerned that we should do nothing that should enable lawyers to make lots of money out of all this. That is a very laudable objective. My concern is that Clause 25 is so unclear that it will inevitably provoke litigation, and it will do so because the Minister says that it is not changing the common law but merely expressing it, whereas its terms manifestly do change the common law.

[Lord True]

On the question of litigation, will the noble Lord answer the point that my noble friend Lord Greaves and I made? If we are concerned about litigation, surely the construction of his proposed new subsection (2)(c),

“as is appropriate in the circumstances of the case”,

which may, as construed with the rest of the section, apply to any decision of any form made by a councillor, is pretty ripe for litigation. Therefore, I do not think his argument that the Government may cause more litigation stands up. Let him answer on this one.

[Lord Pannick]

My answer to the noble Lord is that paragraph (c) is simply designed to maintain—as the Government say they wish to maintain—the existing common law principle, which is that the judge will indeed look at all the circumstances of the case and decide whether there has been unlawful predetermination. I am not seeking to change the common law position; I am seeking to maintain it. The Minister has the same objective; he does not have the objective—as I understood him—of changing the substance of the common law. The objection to Clause 25 is that, on its wording, that is precisely what it will do, or there is a real risk it will do that. That is why it needs further consideration.

In the hope that the result in your Lordships’ House is neither predetermined—

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[Lord True]

My Lords, I am rather more sympathetic to the Government’s attempt to find a formulation than some of the demurrers and I congratulate my noble friend on finding an admirable way through. That is another example of the way in which she has conducted the Bill. If I may help my noble friend Lord Tope, surely the answer to the question of committees or bodies to which councils mandate members is that in the first instance questions of misconduct must come from those bodies themselves, to which the people are mandated. It seems inconceivable that any council would wish to be represented by somebody who had attracted censure. It would certainly be within the power of any council to withdraw a nomination and I would hope that every authority would do that.

My noble friend Lord Shipley raised a point on subsection (3). I rather like that subsection although I agree with my noble friends Lord Shipley and Lord Tope, and the noble Lord, Lord Bichard, that there has to be some sense that there is independence. Often these matters can be dealt with by arbitration and a sensible person who will put two people together. It is clearly sensible, as my noble friend Lord Shipley says, that we may need to get two committees. However, there may be things that can be dealt with more effectively without getting to that process, but giving everybody along the way the sense that they can go to an independent body. I would not want my noble friend to be much more prescriptive, but I agree with the sense of what my noble friend Lord Shipley said. We have found an admirable way through and I congratulate the noble Lord, Lord Bichard, and others who have contributed to it.

[Lord Beecham]

My Lords, I declare an interest as a member of a council—hence my straying into jargon that we apply in council debates—a member of the standards committee, which meets later this week, and vice president of the Local Government Association. I join other of your Lordships in extending warm congratulations to the Minister who is clearly responsible for, and indeed embodies, an outbreak of sweet reasonableness over this issue that we hope to be pursued by some of her ministerial colleagues when we come to other legislation after this evening’s proceedings.

Like other noble Lords, I believe that there are issues that one might have wished to have taken a little further. A mandatory code would have perhaps been preferable. As the noble Lord, Lord Tope, indicated, in all probability we will end up with something like that. I hope that the Local Government Association, with others, will draft something that will be useful and will be adopted by many local authorities. It is very important that this independent role should be reflected. I agree with the noble Lord, Lord Shipley, that mandatory committees, perhaps with that independent element, would have been preferable. Nevertheless, we have gone a long way forward since the original Bill and our earlier discussions on Second Reading, in Committee and on Report. For that we are clearly indebted to the Minister.

I am not quite so sure about the sanctions that are available and whether they are sufficient to meet some of the more serious cases. A huge range of cases has applied at national and local level. I note that people from all political groups have transgressed, sometimes quite significantly. A prominent Conservative ex-leader of a council was found to have leaked a confidential document related to a land sale and was suspended for 28 days by his council. A Labour deputy group leader was also found to have breached confidentiality in relation to a compulsory purchase order. These are not insignificant issues, and they are not personal issues either. He was suspended for three months by his local authority. A Lib Dem councillor was suspended for six months for bullying and disrespectful behaviour at a training session. One of the worst cases was an independent borough councillor who had undermined and humiliated the council’s press officer systematically in front of other councillors until she began to cry and had to leave the room. That is intolerable behaviour in any circumstances and is certainly not consonant with holding a public office. A suspension for three months took place in that case.

However, I wonder whether suspension from a committee or even removal from outside bodies is necessarily sufficient for the more serious types of case. We clearly cannot pursue this further tonight, but it may be that over time, and bearing in mind that we need to see how this works in practice, we might have to revisit that element. Another place has quite draconian powers of discipline. I am not quite sure that they are quite as draconian in this place, although there are matters currently under consideration of a very grave nature and one hopes that one would not see anything like that again in your Lordships' House. It may be therefore—given that the national framework has been dismantled and that there may still, unfortunately, be a few cases where really serious misconduct occurs—that one must wonder whether the sanctions currently available and reflected in the amendment tabled by the noble Lord, Lord Bichard, are adequate. We have clearly moved on and I am grateful and pleased that we have achieved this. I congratulate the Minister and the noble Lord, Lord Bichard, and thank them for the work they have done on this matter.

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The amendment provides a safeguard to avoid a situation where, effectively, a community might find itself being manipulated by particular interests without being aware of what those interests were. I hope that the noble Baroness will look again at this matter. This is the last opportunity, of course, in this place for that to be done. I cannot really see any strong argument against extending that degree of transparency in as sensitive an area as planning to these new forums, in the same way as would apply to members serving on a planning committee of the local authority, or indeed the parish council—given the scale, it is more like a parish council, obviously. Equally, those interests should be declared. I believe it would be consistent with the general approach that the Bill adopts in these matters for that to be the case. I beg to move.

[Lord True]

My Lords, I am sorry to say that I have a lot of sympathy with the spirit behind this amendment, but having wearied the House with my views on neighbourhood forums and not having been able to persuade my Front Bench fully about this question, I think that noble Lords opposite will know that my view is that we should start from the assumption that the neighbourhood forum includes everybody in the neighbourhood area. In those circumstances, if the neighbourhood forum is very large, I do not think that the kind of amendment that the noble Lord, Lord Beecham, has proposed would be practicable. I do not think that we could ask everybody who lives in a village or in a neighbourhood area to publish their interests simply because they wanted to participate in a neighbourhood forum.

If, however, it emerges—and I think we have to wait and see the guidance on the Bill—that my maximalist view of what a neighbourhood forum should be does not prove to be the case, and if the neighbourhood forums turn out to be rather small bodies of perhaps only 21 individuals wielding a great deal of influence in the name of the community, then I would find the arguments of the noble Lord, Lord Beecham, quite persuasive. As we gain experience going forward of what these bodies are actually going to be—whether they are small or big—this will affect the judgment that I would make about this question. I would suggest, however, that this is something that we might leave until we see further guidance on the Bill. I am sure it would be a matter that might be addressed then. If 21 people are going to be very influential in an area, I would like to know where they were coming from, and I am sure local people would, too.

[Baroness Hanham]

My Lords, Amendment 14 would require local authorities to maintain a register of the interests of members of designated neighbourhood forums. From the outset, I remind Members and my noble friend behind me that 21 is a minimum. You can have as many as you like on a forum—if he wants the whole bloomin’ neighbourhood, he can have the whole lot on it. There is nothing to stop that happening. I would take his view that if you are going to have most of the members of a ward or an area, which might amount to 1,500 or so, this proposal would probably be otiose.

A neighbourhood forum is designated by a local authority for the express purpose of preparing a neighbourhood plan or order for a designated neighbourhood area. The neighbourhood forum will not make decisions on planning applications or on whether a neighbourhood plan or order should come into force, nor will it take on wider duties and responsibilities. Neither is the neighbourhood forum intended to form an equivalent governance function to that of a parish council. The neighbourhood forum is simply a group designated by the local authority to prepare a neighbourhood plan or order.

We have worked hard to ensure that the Bill reflects this position by imposing minimum requirements that community groups must meet in order that they can be designated as a neighbourhood forum. This will enable existing groups to take a leading role in neighbourhood planning. To avoid forums acting inappropriately, the Bill gives local authorities the power to remove the designations of neighbourhood forums in certain circumstances. In addition, requiring their members to register and declare interests would be unnecessary. Since the forum is similar to a planning applicant submitting a planning application to the local authority, it is not making a decision in the public interest.

Furthermore, in practical terms, maintaining a register of the interests of neighbourhood forum members would be extremely difficult for the authority to achieve, given the wide range of individuals who could be members of a neighbourhood forum and the likelihood of frequent change in the forum’s overall membership throughout the process of preparing the plan or order. The Bill requires all neighbourhood forums to include, as I said, at least 21 members who live or work in or are elected members of the neighbourhood area and to have an open approach to their membership.

In addition, of course, there was the requirement that we put into the Bill—I think at Report stage—that there should be consultation before any plan is put to the local authority. I hope that Members will accept this view and not push this amendment today.

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[Lord Beecham]

My Lords, there have been significant changes wrought by this Bill. One of those that we debated in earlier days was the abolition of the duty to promote local democracy, which I thought was somewhat inconsistent with the general localist agenda. That elicited little or no support on the Benches opposite and did not seem to me to be worth while bringing back at this stage. However, in respect of another issue, which was the provision about petitions, it does seem to me that the case for some provision—as opposed to the elimination which Clause 46 of the Bill would have carried through—has been heightened by at least two recent developments.

The first is the changes in the Bill around the issue of democratic engagement. I very much welcome the withdrawal of the proposals for local referendums, which I thought were misconceived, overelaborate and calculated to produce a great deal of mischief and trouble. Nevertheless, they were a form—and in my view a very unsatisfactory form, and I think that has ultimately been accepted by the Government themselves—of promoting public engagement. This still leaves the issue of how one does promote particular forms of public engagement.

In another place a week ago, there was a diverting evening using the petition process which the Government have initiated to debate rather grander matters, I guess, than will normally be the case at the local level. Of course, the Government have proceeded with their electronic petitioning and the right of the other place to debate matters that receive a significant degree of support—a policy which may not have entirely produced the results anticipated last week and which some members of the Government may even have cause to regret. At any rate, the procedure is there.

For some time, in some councils, there has been an approach which has welcomed, and indeed encouraged, the bringing of petitions and discussion of them. Looking back, about three years ago the New Local Government Network, which is not a partisan organisation—it has councils in it that are controlled by all three major parties and indeed some independent members—advocated a proposal for a more defined process for bringing petitions. That proposal was, in almost the last gasp of the previous Government, embodied in legislation which, as the noble Lord, Lord Shutt, pointed out in his typically robust fashion was somewhat overelaborate, to put it mildly, and that certainly was the case. I think the legislation was announced in December 2009 and passed into law shortly after that, and it was certainly much too overprescriptive in the way it laid down how the process should be implemented.

Nevertheless, although a significant number of councils have a process to facilitate the bringing of petitions and their consideration, it is by no means universal. It seems to me important that there should be an obligation on local authorities to foster that kind of engagement with the communities they represent so that matters can be brought to the attention of the council and discussed in whatever form the council decides is appropriate, on the basis of the basic requirement that Amendment 49 would create, of having a scheme under which the petitions might be considered. This would also include another right that was brought into being by the previous Government, the right to call an officer of the council to account, in a properly structured way.

This is not an overbureaucratic process. As I say, many councils have their own procedures now. Mine certainly does; I dare say the councils of the noble Lords, Lord True and Lord Tope, and perhaps even that of the noble Lord, Lord Greaves, will have similar procedures. However, it is not universal, whereas it seems to me that it should be, so that any number of people—the council may lay down a minimum if it chooses—would know that they have the right to have matters raised at the level of the local authority, not just with their individual councillors, although that is always an option, but in a more systematic way.

The amendment also provides for a simple enough procedure for the council to give an account of what happens to those petitions, so they do not just disappear into a black hole. That certainly is the case in my own authority and I suspect in many others, and all there really needs to be, perhaps even just once a year, is a brief summary of what matters have been raised and how they were dealt with, so people can know that their views and concerns have been taken care of. It is not a huge obligation and would contribute to a healthier relationship between a local authority and its members on the one hand and the community on the other. I hope that even at this late stage the Government will have second thoughts. I beg to move.

[Lord True]

My Lords, that is a nice try by the noble Lord, Lord Beecham, but I am afraid I am going to be conditional in my support again. Petitions are important and he is quite right to say that my own authority considers them: tomorrow night we have a debate on a petition from the public; and there are two running petitions, both with over 2,000 signatures, which I am sure will lead to debates at future council meetings. I agree that it is good practice for local authorities. I do not think the Government are withdrawing from encouraging that but it would be a pity if they were.

I have not had time to study the details of his new clause so for that reason alone I would find it hard to support it. However, I am slightly worried about the concept of public petitions calling an officer to account. All those who have been in positions of authority in local government will know the amount of, frankly, sometimes libellous and hostile comment one gets about officers, and one of the duties of people who are elected is to take responsibility. I do not care for the encouragement of petitions to call officers to account. For that reason, as well as not having studied it, I would be doubtful about the form; the spirit is right but I do not think that it is something we could add to the Bill at this stage.

House of Lords Reform Bill [HL]

Lord True Excerpts

Friday 21st October 2011 Lords Chamber

[Lord Trefgarne]

I hope I may be allowed to explain shortly but clearly why I disagree that this clause should remain in the Bill. Back in 1999, the House consisted of some 700 hereditary Peers and 560 or thereabouts life Peers plus the Bishops and the Law Lords, so the vast majority were hereditary Peers. When the Government Bill came forward, it was to remove all those hereditary Peers, each and every one, all the 700. Never in history, surely, was there a Government seeking to remove more than half of one of the Chambers of Parliament by legislation, but the hereditary Peers recognised that there was a case to be made and in the end an arrangement was reached between, as we have heard, my noble friend, now the Marquess of Salisbury, and the noble and learned Lord, Lord Irvine of Lairg. The hereditary Peers did not have to be persuaded by that argument, but they were. The result was that that Bill passed.

Had that agreement not been reached, the Bill would almost certainly not have passed. Indeed, there were a good many life Peers who were not in favour of it. I believe it would not have passed although it could, no doubt, have been forced through with the Parliament Act. However, there is room for more than one respectable view about whether that was possible. The deal that was then done, the arrangements that were agreed between my noble friend and the noble and learned Lord were to the effect that 90 hereditary Peers would remain, re-elected as necessary as they passed on, and two hereditary Peers—the two great officers of state—would come ex officio, so to speak. That was the arrangement, and the arrangement was to remain in place until House of Lords reform was complete. By no stretch of the imagination does this Bill represent complete House of Lords reform. Therefore, in accordance with the undertaking then reached, this clause ought not to be included, and I hope my noble friend Lord Steel will not insist upon it.

[Lord True]

My Lords, I apologise to your Lordships. If it is any consolation to the noble Viscount, Lord Montgomery of Alamein, having to attend a medical appointment is not only a function of what age you are. I apologise to your Lordships that I, too, was attending one this morning.

I trespass on your Lordships’ indulgence simply because when those discussions were taking place in 1999 I was there as a humble agent of the discussions and perhaps I can make some comments from the standpoint of one who was actively involved in some of the official negotiations which were supporting negotiations taking place.

I offer no advice to any noble Lords on the decision that they may or may not want to take on the Bill of the noble Lord, Lord Steel of Aikwood. There has been comment about the statement made from the Dispatch Box by the noble and learned Lord, Lord Irvine of Lairg, about the agreement, which the noble Lord, Lord Trefgarne, has described quite accurately as being binding in honour. Honour is a very personal matter, and I do not think it is for anyone to say to other people how they should interpret what being bound in honour actually means.

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[Lord True]

I am certainly aware of that. As I understand the way in which your Lordships' House operates, the decisions made in it are made by individual Peers reaching a decision on the matters before them. I was hoping to shed some light on the decision that is about to be taken; I am not going to go into the constitutional theory of binding succession.

The noble and learned Lord, Lord Irvine, said that the agreement was binding in honour, not on Privy Counsellors—that would be nonsensical—but,

“on all those who have come to give it their assent”.—[Official Report, 30/3/99; col. 207.]

It was passed by overwhelming majorities in both Houses of Parliament on the amendment put forward by the late Lord Weatherill. For my own part, I lent that agreement my assent, although I was not a Member of your Lordships' House, and I therefore consider myself bound in honour.

Why was that agreement made? That has been very clearly expressed. It was made to enable the Labour Government to achieve a long-standing aspiration of the Labour Party to reform your Lordships' House, and I think that most people in your Lordships' House believe that this House is better as a result, although it is arguable whether the Bill would have passed without the Parliament Act had that agreement not been made. It was assented to by the majority of the Peers then in the House, 666 of whom then left the House to enable that legislation to take place, on the legitimate expectation that we would be proceed to—to use the term that was used then—stage two.

Stage two is not defined, and when things are not defined, inconveniences arise, but no one suggested that stage two should be election, or necessarily appointment, or a mixed House. However, everyone in both Houses of Parliament agreed at that time that we would proceed towards stage two. So far as I am concerned, the Bill before us is, as has been said today, in no sense stage two. Stage two could be any of the things I have described, but we have not reached that point, so in those terms I—I cannot speak for others—consider the agreement that was entered into as binding in honour.

I might say to the noble Lady, Lady Saltoun, that the nature of the elections can certainly be described by some as being odd. At the time, the Conservative Party and the representatives of the Cross Benches proposed in talks that the arrangements should not be as they are now but should be more akin to a representative peerage and more like some of the other results. Representatives of the Labour Government at that time insisted on the present arrangement, and we, for our part, agreed to that. It was all part of the give and take of the agreement, and we live with the compromise.

Having troubled your Lordships, I will perhaps sit down.

[A noble Lord]

Hear, hear.

[Lord True]

I note as a new Peer the pleasure that that gives to some, but having had that slightly disobliging reaction perhaps I may sit down with a disobliging remark. One of the things that we always have to bear in mind as parliamentarians is the end result of the legislation that we propose to pass. It does not escape my notice that the end result of this clause, if passed, would be, albeit over time, that an all-appointed House of Lords would come into being. As I said in a recent debate on this subject, I believe that that is a perfectly honourable aspiration. I notice a congruity between the many supporters of this legislation and support for the end of an all-appointed House. That would not escape the notice of the country or indeed of another place, and we cannot agree that stage two is an all-appointed House by passing this Bill.

[Lord Lea of Crondall]

My Lords, the noble Lord mentions Lord Weatherill in support of his claim about what happened, but is he not aware that Lord Weatherill subsequently produced a Bill for the suspension of the hereditary by-elections?

[Lord True]

My Lords, I was describing to the House—I could do so at greater length but this is not the place to do it—how Lord Weatherill, as well as the late Earl of Carnarvon and the noble Lord, Lord Marsh, proposed what was set out in 1999 after negotiation. I am referring now to the conditions of 1999 that led to the situation that is now before us, and I believe, as I have said, that I am bound in honour by those negotiations.

[Lord Steel of Aikwood]

My Lords, the Question before the House is that Clause 10 stand part of the Bill. If I may, I will reply to the debate. I think my noble friend Lord Caithness—

Localism Bill

Lord True Excerpts

Thursday 14th July 2011 Lords Chamber

[Lord McKenzie of Luton]

My Lords, we all share the desire for the Bill to make as speedy a passage through your Lordships’ House as possible. It is not up to us or indeed to the Ministers who support the Bill to arrange these things but for the usual channels. The noble Lord, Lord Lucas, in raising the issue talked about being able to reschedule Tuesday and other days in the week. The noble Lord perhaps ought to be mindful that some of us, not just one of us, have commitments under the Welfare Reform Bill as well, which has its Second Reading. We understand that that is a very important Bill for the Government.

I am very clear that we need to do the job properly in scrutinising this Bill. In so far as it might be alleged that there has been delay, it cannot be laid at our door. I do not believe that the noble Lord did that. We still have a lot to get through: most of the planning stuff, some very important housing stuff and issues around London. Frankly, even if we sat right through the night on Wednesday, I do not see that we would conclude by having one more day, particularly as we must have the Third Reading of the Bill that we just sat through. I do not think it is practical.

I really am opposed to sitting through the night when we are discussing a Bill that has a lot of intricacies in it; a lot of it is complex and technical, and we need to deal with it when we have minds that are still relatively fresh. I do not personally see that it would be a great disaster if we picked this up and concluded it when we are back in September. The key thing is that we should have the time to scrutinise the Bill properly and have the time and opportunity to do it when we are at least not all falling asleep on the Benches.

[Lord True]

I have taken some part in this Bill and, on the basis of having spent 13 rather misspent years in the usual channels, I heard what my noble friend Lord Lucas and others have said about potentially sitting on another day. As other noble Lords have said, I would be very willing to do that to make progress on the Bill. I did not hear the noble Lord opposite express similar willingness.

One thing that I looked up, which might be helpful to these discussions, is what has happened in previous years. This is in fact the earliest date on which the House would rise in July since and including 1996, apart from 2003. If one looks at three separate years after the party opposite formed a Government, in 1998 we were asked to sit until 31 July and noble Lords on this side co-operated; in 2002 we were asked to sit until 30 July and noble Lords on this side co-operated; and in 2006 we were asked to sit until 25 July and noble Lords on this side co-operated. I do not think that it is unreasonable to ask noble Lords opposite to show the same willingness as noble Lords on this side have to allow the usual channels some flexibility in considering not only sitting late but perhaps allowing an extra day to complete this important Bill.

[Lord Best]

Perhaps a word could be said from the Cross Benches, too. I have quite a lot of the amendments that might detain us further on. Although we must all accommodate whatever the usual channels decide, it is quite late notice for next Thursday suddenly to be removed from our diaries when we had every reason to expect to be on Recess at that time and had other plans. I, for one, would be letting down an awful lot of other people, which I may have to do if we have to sit next Thursday. If it is of any help—and I am sure that we all have our different preferences—I would be quite prepared to go into all hours of the night on Wednesday night and will try to remain fresh, if that is required of me.

Localism Bill

Lord True Excerpts

Tuesday 5th July 2011 Lords Chamber

[Lord Greaves]

I am grateful to my noble friend for that intervention. Libraries are an example of this. In some parts of the country they are very controversial at the moment because they are being closed down on quite a large scale, while in other places they are not. So long as the existing funding for a library may be transferred to districts, there is no reason at all why districts cannot take libraries over. Indeed, the municipal boroughs before 1974 were the library authorities, and many of the fairly new libraries that now exist were built by the boroughs and not by the county council. If the county council is seriously looking at reorganising its library service, one of the ways in which it could perhaps increase the efficiency of libraries and local involvement in them is by transferring at least some of them to the districts. I am not saying that that is an ideal solution everywhere, but it is something that ought to be challengeable. There are a number of things like that.

As for national services, the ward I represent on the council had a recent problem of raw sewage flowing down from an inefficient septic tank system on a caravan site on a hillside and causing real problems to residents in the lane below. Noble Lords can imagine what their back gardens were like—not very pleasant at all. The Environment Agency became involved in this. It came and went and came and went, and the district council, which has no direct responsibility for it, became involved, and in the end it was the district council that actually organised the system, spent the money and connected the caravan site to the main sewage system. It then recharged the people who lived on the site and the people who own it. It was the district council that actually sorted it out on the ground, even though, as far as I could work out, the statutory responsibility lay with the Environment Agency. That is a classic example of the kind of service that, if transferred at a local level to a competent local council, might well be run better.

As for the river system, the Environment Agency is responsible for main rivers, but certainly in our part of the world some of the things that are classified as main rivers are tiny little streams. There is no reason at all why they should not be the responsibility of the district council. The district council has no statutory responsibility for rivers and it is not funded by government for it, but some district councils employ drainage officers because they are the sensible people on the ground who sort out flooding and drainage problems when they occur. How much better if they were actually statutorily responsible for it? I therefore support the noble Lord’s amendment with some enthusiasm, and put mine forward with enthusiasm as well.

[Lord True]

My Lords, I put my name to the first of the two amendments tabled by the noble Lord, Lord Jenkin, and I endorse all that he said. I can imagine my noble friends the Ministers saying that it is not possible to graft this on to the Bill at this stage, but the principle is a very good one, as my noble friends Lord Greaves and Lord Moynihan have also said. If the Ministers cannot accede to these amendments now, I hope that they might be prepared between now and Report to talk to local authorities and local government associations about ways in which local authorities might be given opportunities to suggest ways of localising more services.

I must apologise—and this may be a relief to some—that I have to attend a full council meeting later this evening, and if I am not in my place at 7 pm, with the less-than-coalitionist ardour that there is on opposition benches in Richmond I might find that a division is called. I could not support my noble friend on the list of challengeable services because—and he has made this point—it would cause bureaucratic problems for local authorities. I did not put down amendments to Clause 74, which comes later, because it would have been discourteous, anticipating that I was not going to be here. However, I must say that the other form of list that your Lordships will discuss later this evening might, in my estimation, need at least two officers to compile these kinds of lists. Therefore, while encouraging my noble friends the Ministers to resist my noble friend’s amendment, I also hope—in anticipation, as it were—that they will think more carefully later about the other lists that are imposed on local authorities in this Bill.

Finally, I support the suggestion about counties and districts, and of course I also support the principle relating to the Greater London Authority and London boroughs. Self-evidently, there are many things—in an earlier debate I gave the example of running high streets —that London boroughs could do far more effectively than a regional authority. I hope again that my noble friends the Ministers will consider that too.

Localism Bill

Lord True Excerpts

Tuesday 28th June 2011 Lords Chamber

I believe that our amendments go with the grain of what the Government are supporting. I accept that the Minister will not accept them today and sees that some of them can be encapsulated in guidance. However, I believe that we ought to be mindful of the fact that people who might be directly employed would be caught within these provisions, whereas those who are one stage away—perhaps in an agency company but otherwise directly engaged in working for the local authority—would be outside these provisions. One can see the scope for those wishing to use those mechanisms to get round these pay transparency provisions. I therefore urge the Government to see whether some mechanisms might not, as we have suggested, be most appropriate to tackle this lacuna in the proposals.

[Lord True]

My Lords, perhaps I can speak briefly to Amendment 105 but before doing so, I pray the indulgence of the Committee if the debate is prolonged, as I have amendments to the Education Bill in Grand Committee. I mean no offence if I have to withdraw at some point. I should also say in preamble that, having seen the news yesterday on the transparency of Transport for London and given the matters we will be considering in Clause 206, I wonder whether “a relevant authority” might include Transport for London within the meaning of these clauses.

I am grateful for my noble friend’s remarks, but my concern is about politically inspired resolutions put to local authorities, particularly in the run-up to elections. I accept that the wording of my amendment may not be correct. I am not someone who has argued for extensive regulation but we have seen, even from such an august person as the Secretary of State, that public comment on the level of senior officers’ pay attracts the attention—often very approving attention—of the press. My fear is that, notwithstanding the niceties of employment law and the effective risk of constructive dismissal, in the approach to an election it would be unbearably tempting for a minority party in a local authority to lay a resolution calling, say, for the reduction of chief officers’ pay by 10, 15 or 20 per cent. Why stop there? “Vote for us and we will cut senior officers’ pay”.

In those circumstances it is politically quite difficult for the governing party in a local authority to resist such a proposal if put as a resolution to a council. Any member of a council can put forward a resolution just as any noble Lord can put forward a proposal here. Clause 23(4) makes it absolutely clear that, including after the beginning of the financial year in which a senior officer’s pay statement has been laid, it is perfectly in order for a local authority to seek to change that pay statement. So while I am not calling more regulation down on the heads of local authorities, I warn my noble friend that there is an extremely high risk in the six months before elections of competitive resolutions being laid to reduce the pay of members in authority, which might have pernicious effects and could, in some cases, be contrary to employment law.

Having asked my noble friend to consider the matter, I am grateful for the consideration he has given so far and I am reassured by some of the things he has said on the point, but I hope that, in considering any guidance, he will take very seriously the points that have been made. It would be a great pity to see a rash of resolutions coming out of local authorities asking the impossible of senior officers, who are in most cases distinguished public servants doing their best for local people.

[Lord Beecham]

My Lords, I understand the noble Lord’s point, but I have to say that it would be a huge infraction on the responsibilities and rights of elected members of councils to indicate what might go on a council agenda and what might not. That is going much too far. Although I expect members to behave responsibly, if they are irresponsible, it would be the task of those answering such a resolution to make the case. We ought to have the self-confidence to do that, so I do not think, with all respect to the noble Lord, that his amendment should progress.

I seek some assurances from the Minister, to see whether I have understood him correctly, apart from anything else. Later—many, many hours later—we will come to the question of the community infrastructure levy and whether or not it should be a material consideration in determining planning matters. There will, I think, be quite strong views about that. I wonder, having heard the Minister, whether it will be permissible for councils to take into account the factors referred to in my noble friend’s amendment as a material consideration in the awarding of contracts. If I understood him correctly, the noble Lord indicated that that would be permissible, although it should not be prescribed, and I can understand that position. Perhaps he will confirm or disabuse me of that notion.

I also ask the noble Lord whether he has a view on the living wage, which has been espoused—I think before an election but certainly after an election, to revert to the point of the noble Lord, Lord True—by no less a person than the Mayor of London, who has adopted the concept initiated by his predecessor of promoting the living wage. Does he accept that it is right for councils, if they choose, to adopt such a policy in respect of their own authorities and to seek to reflect that in the conditions upon which they let contracts?

Localism Bill

Lord True Excerpts

Tuesday 28th June 2011 Lords Chamber

[Lord Cameron of Dillington]

My Lords, I support the right reverend Prelate in his intention to oppose the clause standing part. In so doing, as this is the first occasion on which I have spoken in this Committee stage, I declare all my interests as a landowner and farmer and, in this instance, as chairman of the Charities’ Property Association, whose membership includes many charities that either have property as part of their core business as a charity or own property as part of a wider portfolio. I have been asked by my members to probe the Government’s intentions here and, without repeating what the right reverend Prelate has said, I hope that we get some encouraging words from the Minister.

[Lord True]

My Lords, I intervene briefly from the perspective of a local authority. I think that most local authorities would have enormous sympathy with what the right reverend Prelate has just said. I am generally very suspicious of definitional creep. I do not think that the charity world has necessarily been helped by the major attempt to redefine a charity after doing away with the great simplicity and proven law of the Elizabethan statute. Therefore, I hope that we are not going to move down another definitional road.

I would not want to see local authorities not being able to have constructive dialogue with charitable organisations, because I think that discretionary relief is extremely important. On the other hand, sometimes premises are certainly not used as efficiently as they might be. It might be for the general good if two or three charities shared offices that might be improved, and I would not want to see that kind of exploration forbidden. Therefore, I, too, should like to hear from my noble friend, but I certainly feel that this is a provision that local authorities would like to stay long in law.

I could speak for a long time on the subject of the fine arts but I do not think that I will. The noble Lord, Lord McKenzie, referred to eloquence and I wondered whether his much admired contributions to these debates meant that debating was a fine art as well. If so, he should be part of it.

[Lord Shutt of Greetland]

My Lords, I thank the noble Lords who have contributed to this debate. It might be easier if I start with the right reverend Prelate the Bishop of Birmingham on the whole business of relief. The message is that there is to be no change in relief for charities. Whether it is mandatory or discretionary, the answer is, “No change”. There is no element of change in this provision. To me, the words that the right reverend Prelate is concerned about are a bit convoluted, but that convolution is because of the business rate element. For charities, however, I repeat that there is no change.

I return to the three amendments. Amendment 118A would require an authority to have regard to the interests of business rate payers as well as council tax payers. When the noble Lord, Lord McKenzie, spoke to the amendment, he was looking at contingent events rather than where we stand now. The words,

“only if it is satisfied that it would be reasonable”,

are included because the local authority that wanted to assist a business rate payer would have to realise that the council tax payer would in effect be funding it. The Bill is saying that a local authority has to be certain that it is reasonable, bearing in mind who will carry the burden.

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Moved by

[Lord True]

119: Clause 42, page 37, line 20, leave out “must” and insert “may”

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[Lord True]

My Lords, I rise to speak to Amendments 119, 120 and technical Amendment 121 in my name. I also support Amendments 123, 124,125,126 and 129 in the name of my noble friend Lord Cathcart. This is an exploratory group to whose question other noble Lords have come forward with other potential solutions, but it goes to the heart of a critical question relating to the purpose and the workability of this Bill. Accepting that there may be a right of referendum by the people to a local council, and I made clear at Second Reading that I see a case for that, I am asking what the appropriate triggers for a referendum are and how we restrain potential mischievous use of the power and the risk of escalating costs? I freely admit that the solutions that we are offering may not be the right ones. In terms of the numbers concerned, other noble Lords have tabled amendments, and the amendments tabled by my noble friend Lady Hanham in the following group raise interesting questions and may well offer some answers from the Front Bench.

I do not think that the Bill, as currently drafted, has set the threshold high enough to trigger a referendum in any local authority in this country. Authors of the Bill perhaps underrated also the political difficulty of refusing a request for a referendum. Although the power is given to do so, it is not necessarily that easy a power to exercise, particularly as an election approaches, even in the case of those types of proposals described in Clause 47(6) as “vexatious”, which in itself is a dangerously justiciable word. The reality is that, in practice, if a referendum is requested, the local authority lies under a legal duty to hold it under the original Bill unless it can find cause for exception. As I have just said, it would be quite difficult for some referendums to be refused. My Amendment 119 builds the presumption of discretion in if we are to retain in the Bill thresholds as low as they are now set, and I note that the Government appear to be moving in that direction in relation to special petitions. I should say that 5 per cent might be 300 or so voters in an urban ward, or perhaps a few dozen in a rural community, but these figures are not very hard to make with a minimum of political organisation. Some of these proposals benefit political organisations more than they may members of the public. I suggest that as a potential compromise a local authority should have discretion on whether to hold a referendum on a petition at that low level. I feel that the Government may be moving in our direction.

There are many other ways to respond to a petition from the public, which need not be put in legislation or regulation but often could be dealt with, and indeed are dealt with, under a local authority’s standing orders. A local authority might simply do what the petitioners ask, at least in some modified form. That was how this Parliament came into being: the Commons came to Westminster, or to wherever the Parliament was meeting, to petition the Crown and noble Lords to hear their complaints on particular subjects. Very often, the Crown readily responded without a referendum. In the end, it saddled itself with the other place, but that perhaps is a subject we should not go into.

It might have a debate in council, which would be a perfectly reasonable way to respond. It might hold public meetings to explore the purpose of a petition. It might set up a process of consultation. All these might get to the desired end quicker than a referendum and sometimes in a far less divisive way than in circumstances, say, which one can readily envisage, where in an urban area 300 people wanted a controlled parking zone introduced or perhaps removed and a couple of hundred others were implacably opposed. One can see the whole formal process of the referendum ending in dividing rather than uniting a community.

However, I recognise the Government’s wish, which I support, to make some petitions inescapable. We therefore suggested in these amendments that the referendum should be mandatory, subject to Clauses 46 and 47, if 20 per cent of the electors in an area ask for it. The noble Lord, Lord Beecham, has suggested a figure of 10 per cent. I believe that the noble Lord, Lord Greaves, with that plebiscitary fervour of the Liberal Democrats, has suggested that 25 per cent might be the threshold. I certainly would not want to come between the noble Lords, Lord Beecham and Lord Greaves. Certainly, 20 per cent might not be the right figure but it is a figure that we offer.

The reality is that well above that level of electors participated in a recent contested referendum in my authority, so I do not think that 20 per cent is an impossible figure to reach. But I equally accept that it may well be too high and we in this Chamber would want to hear arguments for other figures set down in other amendments and other proposals, including interesting ones from my noble friend which we will consider later.

The purpose of laying these amendments originally was to enable your Lordships to consider in Committee another way of approaching the difficult question of the trigger. I will get out of the way to allow your Lordships to do that shortly. I certainly do not want to anticipate the speech of my noble friend Lord Cathcart but I would, from a local authority standpoint, like to draw your Lordships’ attention to the potential difficulties of Clause 42(3), taken with Clause 45. As I read it, this means that in a typical three-member ward in a politically split urban area, two members from a minority party might be able to provoke a referendum without any significant local support and with no particular effort to collect signatures. I might have found that power rather tempting in the past in opposition but I am sure that I would have resisted the temptation.

This provision is very open to political exploitation with members seeking referendums that they do not really want, perhaps just to make a political point or even one that has salience outside their own ward by challenging the local authority to refuse a referendum. I do not think that that is a wise, helpful or even very localist provision. My noble friend Lord Cathcart suggests that such a proposal would have to be supported by at least 5 per cent of the electors in an area. Without going over the issue of the appropriate level again—I hope that my noble friend will forgive me for anticipating that important amendment, which I support —that additional trigger would avoid short-term political exploitation. I beg to move.

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[Lord True]

My Lords, I am very grateful to my noble friend for his very thoughtful and considerate response to the debate and also to all noble Lords who have taken part. It is an important matter. I apologise to the noble Lord, Lord Beecham, for not being present when petitions were discussed—I was in proceedings on the Education Bill—but I can assure him that if a petition were presented to my council, it would be considered under the standing orders of the council at the next council meeting.

As far as the debate is concerned, I take the point that seeing it only from the point of view of the opposition was a defect in what we said—perhaps it comes from being under the control of my noble friends for 23 years—but I think the point made about the temptation on parties in power to procure referendums is important, and I hope my noble friends will consider it. Equally, the point made about the BNP by the noble Lord, Lord Greaves, was important, and I hope my noble friends will consider it further.

I did not comment on the amendment tabled by the noble Lord, Lord Beecham. I shall comment on it further when we come to neighbourhood planning matters, but in the processes that we have undertaken, local people have defined areas that they believe are their communities which are different from ward boundaries or electoral area boundaries. I believe that they could be capable of being recognised in petition and referendum procedures. I hope that my noble friends will consider that matter and that flexibility further because I have amendments down in relation to neighbourhood planning.

My noble friend and I did not seek to find the final answer on the issue of the threshold. The triggers in terms of ward councillors and, I still think, for a mandatory referendum—potentially a percentage—are too low in certain circumstances. I will reflect very carefully on what my noble friend said. I welcome the fact that he said he would reflect on the position of potentially having different thresholds for different quantities of population, as suggested by my noble friend Lord Cathcart. I thank all noble Lords who have taken part in the debate. I beg leave to withdraw the amendment.

Amendment 119 withdrawn.