Localism Bill
Earl Attlee Excerpts(14 years, 4 months ago)
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Earl Attlee
(a) for “providing infrastructure to support” substitute “supporting”, and(b) after “land” insert “in a way that does not make development of the area economically unviable”.(2A) In the Table in section 205(3) (which describes the provisions of the Part) for “Section 216” substitute “Sections 216 to 216B”.
(2B) In section 211(4) (particular provision that may be included in regulations about setting rates, or other criteria, by reference to which the amount of levy chargeable is to be determined) after paragraph (a) insert—
“(aa) to have regard, to the extent and in the manner specified by the regulations, to actual and expected costs of anything other than infrastructure that is concerned with addressing demands that development places on an area (whether by reference to lists prepared by virtue of section 216(5)(a) or otherwise);(ab) to have regard, to the extent and in the manner specified by the regulations, to other actual and expected sources of funding for anything other than infrastructure that is concerned with addressing demands that development places on an area;”.”
Earl Attlee
My Lords, in speaking to Amendment 204GA, I shall also speak to government Amendments 204GB to 204GD, 204HA to 204HB, 204JA to 204JC, and refer to Amendments 204H and 204J.
We set out our commitment to consider whether the existing restrictions on the use of the CIL—community infrastructure levy—receipts are drawn in precisely the right way to best support and enable new development and growth. We have considered this alongside our changes at Clause 103, through which we will place control over a meaningful proportion of levy receipts with the neighbourhoods and communities that accept new development and growth. We are consulting on our proposals to use the powers to require local authorities to pass on a proportion of levy receipts raised from development in an area where there is a parish or community council for that area.
Where no parish or community council exists, we will use existing guidance to require local authorities to apply an equivalent amount to addressing the demands of hosting new development in the area and to engage with the community in determining how that proportion of the funds will be spent.
Amendments 204HB and 204JC extend the permitted uses of this proportion of the funds to allow it to be used to support development by providing infrastructure or addressing any other demands that development places on the area. First, any body to which funds are passed under new Section 216A will benefit from these wider spending powers. Secondly, where a charging authority does not have to pass funds under Section 216A, we will have the power to specify that they can use a proportion of the CIL funds in this way. It is our intention to specify the same proportion for this purpose as we will for Section 216A, providing a consistent approach in both parished and unparished areas. The remainder of the funds will be retained by the local authority and must be used to support development of the wider area by funding the provision, improvement, replacement, operation or maintenance of infrastructure.
Our amendments will allow receipts raised from new development to be applied to the range of costs that it creates. They strike the right balance between enabling funds to be directed to the localised demands that development places on the areas that host it and the cumulative burdens that development creates across the local authority and wider area. The levy is to support new development. While the provision of infrastructure is essential to physically unlock new development, it is not the only matter that needs to be addressed to make development acceptable and sustainable to the communities that are asked to host it.
At the neighbourhood level, the impacts of development are more localised, direct and diverse. The impacts will, for the most part, be concerned with local infrastructure, but communities often identify other unfunded pressures on local services as the reason why new development is not acceptable. If communities are to accept and welcome growth, they must be satisfied that they will not suffer as a result of doing so. By placing a meaningful proportion of the contribution that new development makes under the control of the community that hosts it, and by giving that community the flexibility to spend those funds on the matters that it identifies need to be addressed, we will ensure that communities share in the benefits of growth rather than suffer as a result of it. When residents see and understand that development is making a fair contribution towards meeting the demands that it places on their communities, they will be more likely to accept and, indeed, welcome it.
Our amendments will enable the levy to support new development more effectively. The levy will mean that more development can go ahead by providing a valuable contribution towards delivering the infrastructure needed to unlock and enable it, and by ensuring that communities have reasons to say yes to growth. In making our changes we have taken the opportunity to make economic viability an explicit component of the purpose of the instrument. This will mean that local authorities must ensure that charges are reasonable and do not prejudice the delivery of their local plans, including matters such as affordable housing.
My noble friend Lord Jenkin has tabled Amendments 204H and 204J, which are concerned with restricting spending of the levy to matters publicly identified by the local authority that charges it. It may be helpful to the House if I use his amendments as a peg to provide further reassurance. I fully understand my noble friend’s concern to ensure that use of the levy should be transparent; indeed, it must be if developers and communities are to see and understand how the contributions are being used to support development and manage its impacts. That is why we are strengthening, through the levy and the town and country planning regulations, the requirement for local authorities to report openly and regularly on levy income and expenditure.
Our experience from the front runners scheme, which is supporting more than 33 local authorities to implement the levy, is that local authorities are in any case choosing to publish a list of their spending intentions. This demonstrates that a flexible approach to infrastructure lists is working and that a more prescriptive approach is not needed at this time. The legislation already allows for regulations to require them to do so, should we wish to in the future.
I appreciate my noble friend’s concerns, but I hope that he will be reassured by the steps that we are taking to improve transparency and accountability of levy income and expenditure, agrees that our changes are the right means to achieve that, and will be willing not to pursue his amendments. I beg to move.
Earl Attlee
My Lords, I thank all noble Lords who have contributed to this short debate. Responding first to my noble friend Lord Jenkin, yes, we have moved a long way with the community infrastructure levy. My noble friend talked about Section 205 and the restrictions on the application of CIL. He is accurate in terms of history but he will recognise the need to develop good policies as time goes on. He kindly organised a meeting between me, him and the Institution of Civil Engineers, which I found useful.
My noble friend referred to local needs and to changing attitudes. We need to change attitudes because, quite often, the knee-jerk reaction can often be “no”, and that is not helpful for development. Local authorities are best placed to determine the infrastructure need in terms of logistics and so on, but local communities are best placed to determine their much more local needs.
My noble friend asked what a meaningful proportion of CIL is. We are consulting on the matter and have invited views on the question. We have not taken a view on this and will carefully consider the representations made during the consultation period before determining the proportion of funds that should be directed to neighbourhoods that host new development. However, we are clear that the level must be sufficient to give neighbourhoods a meaningful contribution to meeting the impacts of development in their area. This needs to be balanced with the central purpose of the levy, which is to ensure that some or all of the costs of supporting new development are met by the developers.
My noble friend also asked whether there was any limit on how a meaningful proportion must be used. Our changes allow for a proportion of CIL receipts to support development of parish and neighbourhood areas by providing either infrastructure or anything else that is concerned with meeting the demands that the development places on the area. However, the spending must support development of the area. It may not be used to fill gaps in local authority resources. I am happy to give that reassurance.
We are making this change because new development creates local demands that are concerned with matters other than infrastructure. For instance, the provision of new dwellings will increase the population of an area and new or extended office premises will increase the number of people working in an area. Increased numbers of residents or people coming into an area to work will create demands on services in the area, including transport, training, education, health, social and other services, community assets and utilities.
My noble friend Lord Shipley asked about cross-boundary needs in urban areas. It is a good question but I shall have to write to him before Third Reading.
The noble Lord, Lord McKenzie, asked about affordable housing. When setting a CIL charge a local authority must have regard to the viability of development in its area. In considering this viability, the local authority must take into account requirements normally provided for through Section 106—for instance, affordable housing—that will arise from the development. My noble friend will recall that we have tightened up on the use of Section 106.
The statutory framework for CIL provides for protection for affordable housing. This was, no doubt, in the minds of the previous Administration when they implemented the levy. However, we acknowledge that the guidance does not set this out as clearly and robustly as it could. We will revisit the guidance to make it clear that the imposition of a levy must not harm the delivery of affordable housing or other local policies set out in the local plan. I have asked my officials to work with the National Housing Federation to develop appropriate changes and we will reflect on the outcome in updated guidance from the Secretary of State. We are consulting on whether to allow CIL receipts to be used to fund affordable housing. We have asked for views on whether this approach could support local delivery of affordable housing by improving outcomes and offering better value for money. We will determine whether to make the change once we have received and considered the responses.
Inspiration has arrived to answer the question of my noble friend Lord Shipley, who asked to what extent authorities should be required to co-operate in using CIL receipts. This legislation allows authorities to pool resources to deliver infrastructure that supports their areas. We have the power to make statutory guidance about the duty to co-operate, and this could cover matters such as CIL.
The noble Lord, Lord McKenzie of Luton, asked about how CIL money could be used to perhaps bribe communities—
Lord McKenzie of Luton
I do not believe I said that. I was referring to how it was not described by the noble Lord, Lord Jenkin, to touch upon the fact that if these are inducements for communities to accept development, we need to reflect on the issues we are going to discuss in relation to Clause 130. I was not arguing in favour of bribing communities.
Earl Attlee
My Lords, I am struggling to read my inspiration here. However, I intend to make a substantive speech in our debate on Clause 130, which I think the House will find very helpful.
Earl Attlee
My Lords, I will consider any input that is brought to me or other Ministers.
Earl Attlee
“(za) in subsection (1) (levy to be used to fund infrastructure, or pay compensation under section 219)—(i) for “section” substitute “sections 216A(1), 216B(2) and”, and(ii) for “funding infrastructure” substitute “supporting development by funding the provision, improvement, replacement, operation or maintenance of infrastructure”,(zb) in subsection (2) (meaning of “infrastructure” in subsection (1)) for “subsection (1)” substitute “this section (except subsection (3)) and sections 216A(2) and 216B(2)”,(zc) in subsection (4)(a) (power to specify facilities that are to be, or not to be, funded) for “that are to be, or not to” substitute “whose provision, improvement or replacement may or is to be, or may not”,”
Earl Attlee
(c) in subsection (6)(c) (regulations may permit funding of administrative expenses in connection with infrastructure) after “infrastructure” insert “or anything within section 216A(2)(b) or 216B(2)(b)”, and(d) in subsection (6)(e) (regulations may make provision for the use of funding where the projects to be funded no longer require funding)—(i) for “the projects” substitute “anything”, and(ii) for “require” substitute “requires”.”
Earl Attlee
(a) the provision, improvement, replacement, operation or maintenance of infrastructure, or(b) anything else that is concerned with addressing demands that development places on an area.”
Earl Attlee
Lord Jenkin of Roding
My Lords, the noble Baroness, Lady Gardner of Parkes, was here a moment ago. I am not sure why she is not here, but the rest of us can speak to our amendments when we get to them. I do not think that we can move hers.
Earl Attlee
If it might help the House, the noble Lord, Lord Berkeley, can move Amendment 206 without any difficulty.
Amendment 206
Localism Bill
Earl Attlee Excerpts(14 years, 4 months ago)
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Lord McKenzie of Luton
My Lords, it is unfortunate that a raft of technical amendments have come forward very late in the day, and seemingly in an environment where the promised engagement in Committee was not fully realised. That is not the best way for us to deal with these hugely important matters. It means that we are stacking up yet another issue to deal with at Third Reading. Whether we get through Third Reading in one day remains to be seen.
I hope that we all agree that, in relation to infrastructure, we want an efficient and effective system of dealing with planning. We have heard arguments about a one-stop shop and the extent to which we are some way from that. We have heard about the issues around the extent to which there should be a parliamentary process now that the Secretary of State is the ultimate decision-maker. I say to my noble and learned friend Lord Boyd and to my noble friend Lord Berkeley that I would need a bit of convincing to step aside from a parliamentary procedure just because the Secretary of State is making the final decision. We have debated the Bill in some detail and the issue of the powers of the Secretary of State has been a running sore in our deliberations, but I remain to be convinced on that.
Certainly I agree with and support the importance of having a one-stop shop on the raft of consents that apparently are still needed. However, the clock is ticking on Third Reading. This is an opportunity to sort out some issues, but we do not have much time in which to do it. It may be, as my noble and learned friend Lord Boyd said, that the EU could overtake us on this matter. We have a couple of weeks before Third Reading and there are very serious issues that have been raised tonight by all three noble Lords. The noble Lord, Lord Jenkin, also raised new points that we had not touched on before about who can make these qualifying requests, as well as issues around pre-application consultation. I hope that the Minister will be able to give us a full response on these issues. Generally, I find that we are in an unsatisfactory position on a hugely important issue for this country.
Earl Attlee
My Lords, I thank all noble Lords who have spoken. On the point about meetings, I cannot understand what has gone wrong. I would never resist meetings, not least because I find them so valuable. It is my responsibility to call a meeting. On the other hand, if it looks as though the meeting is not going to happen, a reminder would be helpful—and I do enjoy the meetings that I have with the noble Lord, Lord Berkeley.
We are very short on time. The amendments in this group seek to change the Planning Act 2008. Although they are technical in nature, they are none the less important, so I shall respond to each in turn. Amendments 223AA and 223AB, in the name of my noble friend Lord Jenkin, seek to limit the circumstances in which a qualifying request for a direction under Section 35 of the Planning Act 2008, as amended by Clause 120 of the Localism Bill, may be made. The amendments would restrict those who can make a qualifying request to the proposed applicant and the authority in question. Amendment 223AB would prevent a qualifying request from being made after an application is made to the relevant authority.
Earl Attlee
My Lords, first, I thank the noble Lord, Lord Berkeley, for his work in this area. In answer to the noble Lord, Lord McKenzie of Luton, I have really considered this matter only in respect of railways but I think that noble Lords will find my answers satisfactory. The noble Lord and I did indeed have a meeting on this—ironically, I turned up a few minutes late.
Amendment 223A would amend the provisions of the 2008 Act which relate to railway projects. The amendment seeks to introduce two new powers. The first relates to a case where a railway project contains both development for which consent is required under the 2008 Act and development for which permitted development rights exist. In this case, the amendment seeks—on application from the promoter—to permit the Secretary of State for Transport to direct that the permitted development should be dealt with under the Planning Act along with the development for which consent is required under the Act. I confirm that Section 35 of the Act already provides a power of direction capable of achieving this. A new power is not necessary. The second relates to a situation where development consent is required for a railway project under the 2008 Act. In response to a qualifying request, if the Secretary of State for Transport thinks that the project is not of national significance, he may direct that the development should be treated as development for which consent under the Planning Act is not required.
My DCLG officials have discussed this matter with the Department for Transport and Network Rail, and have agreed that a carefully considered threshold would be preferable to such a power, as it would provide greater clarity on what should be considered major infrastructure. We have therefore agreed that secondary legislation should be brought forward under Section 14 of the Planning Act to set a suitable threshold for rail projects, as suggested by the noble Lord, Lord Berkeley. This will be taken forward by the Department for Transport. With this assurance, I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Berkeley
I am extremely grateful to the Minister for that very positive response. Perhaps I could tell my noble friend Lord McKenzie that it applies only to railways because in other major project areas under the Planning Act there is always a minimum threshold. For some reason, one was not done at the time for railways—everybody thought that railways were big ones, and nobody picked it up. I suppose I should ask the Minister when the regulations will be tabled, but I am sure that he recognises the importance of that for certain projects. If it would help in drafting these things I am happy to meet with him, along with people from Network Rail and other infrastructure managers if they are interested. However, that seems to be a very good way forward and I am very grateful to him. On that basis, I beg leave to withdraw the amendment.
Lord McKenzie of Luton
My Lords, if I understand my noble friend’s proposition, it is that the hydraulic fracturing of underground rock will be brought within the national infrastructure projects regime, the planning regime that deals with major projects. I think that is central to what my noble friend is moving. We have had a wider debate about the potential importance of shale gas, what that might mean and the risks associated with it. It seems to me that we need a broader regime that encompasses all those issues: licensing regimes, as the noble Lord, Lord Greaves, said, not only to deal with exploration, but with exploitation as well. If there is to be no national infrastructure projects approach to this, then planning, presumably, is a matter for local planning authorities and, indeed, neighbourhood planning. That does not seem to me to fit well with something that is potentially of huge national significance, with potentially huge risks and uncertainties attached to it.
The noble Lord, Lord Greaves, said that this issue is worthy of a further debate. Perhaps when we have debated the NPPF to death we might turn our attention to it. I am a novice on this, but it is a fascinating and hugely important issue. I can remember when North Sea oil first opened up. It was a project on which I worked in my former life and I know some of the debate that went on around that. However, if I understand it correctly, my noble friend’s proposition about the environment within which the planning ought to be considered is a straightforward one, and he makes a good case.
Earl Attlee
My Lords, Amendment 223B seeks to require the Secretary of State, by order, within 12 months of Royal Assent, to add hydraulic fracturing of underground rock, commonly known as “fracking”, to the list of nationally significant infrastructure projects in Section 14(1) of the 2008 Act.
The first exploration for shale gas in the UK has begun only recently. Fracturing has so far been used on one shale gas drill site in Lancashire but is currently suspended pending a geomechanical study into seismic activity.
The noble Lord, Lord Berkeley, raised some wider planning issues, but fracking is no more difficult or technical than other mineral extraction methods, and my noble friend Lord Lucas said as much. The noble Lord, Lord Greaves, covered some of the regulatory issues, and I shall not go over that ground again. My noble friend Lord Jenkin referred to a small earthquake. Of course he was actually referring to a seismic event, which is slightly different.
The amendment would require hydraulic fracturing to be added to the types of activity that are considered nationally significant. It is not necessary, however, to use this Bill for that purpose; a secondary power exists to achieve this. I am happy to undertake that this issue will be raised with my colleagues in the Department of Energy and Climate Change and, if it appears appropriate to the purposes of the Bill to add this type of activity to the list of nationally significant infrastructure projects, we will use the secondary power. On that basis, I hope the noble Lord will feel able to withdraw his amendment.
Lord Greaves
My Lords, there has been a great deal of discussion previously about thresholds and nationally significant infrastructure projects. Does the Minister agree that the question of thresholds may also be relevant in this case?
Earl Attlee
My Lords, I am sure my ministerial colleagues in the Department of Energy and Climate Change will take all relevant matters into consideration.
Lord Berkeley
I am grateful to noble Lords who have participated in the debate. It has been a good debate in which a number of different views have been expressed. The noble Lord, Lord Greaves, made a good point about thresholds. As I raised it in a previous amendment in respect of railway projects, I think it is relevant to learn from something that possibly went wrong before.
I am grateful to the Minister for agreeing to speak to his ministerial colleagues and, if appropriate, to bring this matter forward by secondary legislation. I am therefore pleased to withdraw the amendment.
Lord McKenzie of Luton
My Lords, we are in total agreement with the amendment; indeed we should have added our name to it. I apologise for not having done that. One of the issues that was raised previously was about regulation, and if you have a new regulation then something has got to go. I would urge the Government not only to take on board this proposition but to look and see what might be gained by trying to streamline other notification procedures, particularly in relation to building regulations and notifications in respect of the community infrastructure levy. Why can these not potentially be combined into one notification procedure? So you have got two out, and only one in, on that basis. That notwithstanding, it does seem a very sensible proposition which we support.
Earl Attlee
My Lords, my noble friend’s Amendment 223C is, as he has said, a simpler, more permissive version of the one he tabled in Committee. However, I regret to say that it still does not overcome the Government’s concerns that this would add yet a further element of complexity and box-ticking to the application process for both the applicant and the local planning authorities and yet yield no practical benefit for local planning authorities.
In the March 2011 Plan for Growth, the Government clearly cited the problem of the cumulative additional cost to business of new regulations introduced since 1998. It is essential that reforms continue to reduce costs, delays and bureaucracy in the planning system and support the Government’s collective approach to driving sustainable economic growth. Local planning authorities can, and do, ask for notification of commencement of development when and where they think it necessary. A developer failing to notify the local authority that the works had commenced would not be a good start to the relationship between them.
My noble friend may argue that an administrative scheme has no teeth if the developer does not return the form but the Government’s view is that new Section 106D, to be inserted by the amendment, would have no teeth either. Making the commencement of development without giving notice a breach of planning control implies that enforcement action could be taken. However, the point of enforcement action is to remedy breaches of planning control. Once development has started it will no longer be possible to give prior notice, so the breach could not technically be remedied and enforcement action would be ineffective. If it turns out that the developer has failed to comply with pre-commencement conditions as well as not giving notice, then the local planning authority can take such action as it sees fit, perhaps by serving a breach of condition notice.
The Government’s view is that this amendment will inject additional complexity into the planning process yet provide little practical benefit. I invite my noble friend to withdraw his amendment.
Lord Greaves
I do not know whether the Minister incites me to call a Division but I will not do so at this time of night. I can see my Chief Whip in his place, who might not be very pleased by that and I do not want to fall out with him.
The Minister made some good points. On reflection, the amendment could be further simplified, particularly by the removal of the last four lines. There is a problem. The Minister wants to reduce the amount of bureaucracy on the part of local planning authorities. At the moment, particularly on major developments where there is concern about whether the development has started, the authority sends people round to find out and look on site or ring people up. That takes time and effort.
It is really six of one and half a dozen of the other. On the local planning authority side, this would not make much difference at all. However, I am sorry that the Government will not accept this. They will not accept everything that I put forward in the Bill. I beg leave to withdraw the amendment.
Earl Attlee
“(5) The amendments made by this section do not alter—
(a) whether under subsection (2) of section 70 of the Town and Country Planning Act 1990 regard is to be had to any particular consideration, or(b) the weight to be given to any consideration to which regard is had under that subsection.”
Earl Attlee
My Lords, your Lordships will recall our helpful debate in Committee on this clause, when we dealt with an array of issues. I shall give a brief reminder of the key points before moving on to the amendments now tabled and the issues that I understand still worry some noble Lords.
I start by reiterating the Government’s purpose here. As my noble friend Lady Hamwee noted in Committee, the issue of local finance incentives and planning decisions was made topical by the new homes bonus, or NHB. When we consulted on that scheme, uncertainty was expressed about its relationship with planning. The CPRE was concerned enough to seek a legal opinion, which implied that the scheme might taint the planning decision-making process. The supposition was that the scheme might encourage local planning authorities to take non-material considerations into account when determining planning applications for new homes.
The CPRE is right to keep a keen eye on this issue but in some instances its press releases and briefings have unnecessarily added to the sector’s confusion and alarm. It has raised fears that that NHB will undermine the planning system and result in,
“hugely damaging consequences for local communities and the environment”,
and result in any local decision in which a local finance consideration were taken into account being,
“legally ‘tainted’ and open to question”.
The clause itself, which the Government prepared in an attempt to ensure that local finance consideration would not be taken into account in inappropriate circumstances—in other words, to address the CPRE’s core concern—has been branded as,
“a brazen attempt to legalise cash for sprawl”,
and as a temptation for local planning authorities to,
“fill shrinking coffers by permitting any development, regardless of its environmental impact or the views of local communities”.
All such claims, though doubtless borne of genuine concern, are based on a false premise about the effect of the clause. As such they are rather misleading. To be clear, the clause simply restates the existing legal position, confirming for the avoidance of doubt that, like any other consideration, a matter such as the NHB or CIL must be taken into account if they are material to the planning application under consideration.
Inevitably, the CPRE activity on this issue has not helped the confusion already apparent in the sector, evidenced, for example, by the London Borough of Islington which, in its response to the NHB consultation, said:
“The government should make it clear whether NHB can be taken into account as a material consideration when determining planning applications”.
It was precisely to address this confusion and to give a clear and lasting reminder that local finance considerations should be taken into account only where they are material in the long-understood sense—in line with case law—that Clause 130 was prepared.
It is clearly untenable to allow confusion to linger, particularly within the bodies responsible for making planning decisions. As I said in Committee, this would undermine the planning system’s integrity and affect public confidence. Making the legal position more clear should reduce the risk of local planning authorities being accused of letting financial incentives improperly influence their decisions and so facing legal challenges to their decisions.
In Committee, my noble friend Lady Hamwee asked why the necessary clarification could not be given in guidance. As I indicated at the time, we thought carefully about the option. However, the Government concluded that with confusion on this legal and technical issue so prevalent, the only responsible option was to bring the desperately needed clarity to the fore by using the Localism Bill.
Given the significant accusations the CPRE was asserting, the consequent confusion that local planning authorities were faced with, and the grave risk which that confusion posed to the proper operation of the planning system, we felt it essential to clarify the position and clear up the confusion in law. Using the Localism Bill presented the most immediate and visible way to set the record straight on this important message. As the confusion concerned the legal position it made sense to use legislation to clarify the point and provide councils with reassurance on what they should and should not legitimately do.
It may be helpful if I remind the House of the tests for a material consideration. I know some noble Lords remain uncertain as to the circumstances in which the NHB or the community infrastructure levy might be material to a particular planning decision. Current statute confirms that in determining planning applications regard must be had to the development plan so far as it is material to the application and to any other material considerations. Statute does not define what a material consideration is but clear tests for materiality have been developed through case law.
Earl Attlee
My Lords, I feel slightly disappointed that I have not managed to convince all noble Lords of my position. However, I do not feel in the slightest that I am in a hole. I am entirely comfortable with Clause 130 and the Government’s position. It was mentioned that this was introduced as an incidental matter in the House of Commons. Your Lordships are quite used to matters being sneaked into a Bill in the other place and then coming to your Lordships' House for detailed scrutiny, which is exactly what we are here for.
The noble Lord, Lord Howarth, discussed my assertion that the Bill does not change the law, but my contention is that the clause is essential. On my point that it does no harm, the harm has been done by opinions that have muddied the waters in the past with regard to the NHB, and therefore it was necessary to introduce Clause 130. My noble friend Lord Greaves raised the issue that we need to be sure that the money will be tied to a project. In his expert case study, he described a situation in which the political landscape could change. The CIL-charging authority will need to be sure that it will spend the money in the way anticipated at the planning decision stage. If not, and things change, it may be challenged on the grounds of legitimate expectation. The local planning authority and the CIL authority will need to be sure that the money will be spent in the way anticipated.
I gave the House a very detailed exposition of my position and we have had an excellent, thorough and useful debate on this clause. I must thank my noble friend Lord Greaves in particular for highlighting the scope for the clause to be made clearer on the point of weight. In light of what I have said, the House can be confident that the clause poses no threat to the fair and proper operation of the planning system. I hope your Lordships are now happy, if a little reluctant, to support Clause 130 and the important elucidation it brings to the question of when local finance considerations can be taken into account in planning decisions. With the further refinements made by the Government’s amendments, it is not clear to me that there is any problem left to solve. I hope, therefore, that my noble friend Lady Parminter will feel able to withdraw her amendment at the appropriate point and support the Government’s amendment.
Lord McKenzie of Luton
My Lords, the issue of green belt is one of those matters which has caused great consternation. Obviously, we will have to await the final version of the NPPF. Of course, it is not for me to defend the NPPF in its current form, but as currently drafted it seems to address what the noble Baroness is in part seeking. The NPPF states that:
“A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are: limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; or limited infilling or the partial or complete redevelopment of previously developed sites”.
That is envisaged within the NPPF as I understand it.
In terms of the infrastructure, it is not always right that the services and infrastructure exist before, rather than being provided as a consequence or as part of, the development. I understood that it might be implicit in the noble Baroness’s amendment that it needed to be there before, rather than arising as an alternative. Therefore, I struggle to support the amendment in its current form. But the issues around development in the green belt are very important. We need to track what is going to happen and what the final version of the NPPF will be.
Earl Attlee
My Lords, my noble friend’s amendment seeks to allow infilling on green belt land if,
“sufficient infrastructure and services exist as to make the development reasonable”.
This test is not related to green belt policy, which is about preserving openness, preventing the unrestricted sprawl of built-up areas and preventing the merger of towns. You could well have land with sufficient infrastructure, but allowing development on it would put at risk the key principles of the green belt policy. In any case, the law already requires determinations under the Planning Acts to be made in accordance with the development plan,
“unless material considerations indicate otherwise”.
Infrastructure is one of the material considerations routinely taken into account by decision-makers in planning cases.
As observed by the noble Lord, Lord McKenzie, the draft national planning policy framework contains the Government’s proposed policies on planning, including the green belt. It includes exceptions, set out in a similar way as current green belt policy, for certain categories of development. For example, it allows for the re-use of buildings, and the extension or replacement of dwellings. It also provides for the infilling or redevelopment of previously developed sites. I believe that these policies provide the flexibility to achieve the outcomes which my noble friend is seeking.
Given that current national policy has delivered a strong level of protection, I do not think it appropriate to make changes to green belt policy through legislative means. If changes are required to green belt policy, they should be carefully considered as part of the ongoing consultation and, if appropriate, taken forward through the framework. I hope that my noble friend will feel able to withdraw her amendment.
Baroness Gardner of Parkes
My Lords, it seems to me that the policy has always existed about being able to use infill sites. The real debate is: what is an infill? I remember the case of Little Paddock in Pinner from when I was on the Greater London Council. There were huge rows which went on for a period of a year or so about whether it was an infill. I do not know how it was eventually decided other than that eventually someone was allowed to build on it. Whereas in other cases I have met, people have been told, “Oh, well this has been a little smallholding, so if you put a barn on it, and you make it possible to live in the barn, you’ll be able progressively to convert it”, in the way that the Minister has just said, saying that you can rebuild and change things slightly. That seemed to be such a false way of allowing it, to have a creeping development into this infill site.
As I said, I have known some that were described as not being infills being definitely described as green belt even though there were huge conference centres adjoining them. It is a question of this definition of infill, which I hope can be clarified in due course. Meanwhile, I beg leave to withdraw the amendment.
Earl Attlee
My Lords, I am grateful to the noble Lord, Lord Best, for moving his amendment again as the matter has moved on a little. Amendment 232 would provide regulation-making powers to allow commons registration authorities to decline new greens applications if there was insufficient evidence that they could meet the necessary criteria, or if they were frivolous or vexatious, and to award costs. It would also prevent applications for the registration of land on which use for sports and pastimes ceased before 6 April 2007 if the land was subject to planning permission.
The Government share the concerns lying behind the amendment about the way in which the new greens registration system is being used in some cases to hinder legitimate development. I said in Committee on 14 July that the Government hoped to make an announcement on town and village greens shortly. On 25 July, we published a consultation document proposing reforms to the new town and village greens registration system. Coincidentally, that consultation closes this evening.
The noble Lord, Lord Best, asked what can be done through regulation. Through regulation, we can consider streamlining the process for registering greens and setting the fees. The consultation includes a proposal to rule out applications for land which is subject to a planning application or planning permission. This would address the purpose of subsection (5) of the amendment. It also includes a proposal to rule out applications for land which has been identified for development or protected by the local green spaces designation in a local or neighbourhood plan. There is also a proposal to introduce fees for applications.
Commons registration authorities already have the power to reject new town and village green applications that are incomplete or lack the requisite evidence for registration. However, a specific power to deal expeditiously with such matters will provide an increased level of confidence to authorities. For that reason, we have proposed to streamline the sifting process. My noble friend Lady Byford and the noble Lord know that we are still consulting on our proposed reforms, though the deadline fast approaches—in fact, it is tonight. I am sure that they will appreciate how those who have responded to the consultation would feel if we were to legislate now in the manner suggested, without, it would seem, hearing their views on the options we have set out.
I have made it clear that the Government share the concerns of my noble friend and the noble Lord. As the Minister for the Natural Environment and Fisheries said in his introduction to the Government’s consultation, we plan to announce our conclusions early in the new year. We will want to work with my noble friend, the noble Lord, Lord Best, and with others with an interest in taking these conclusions forward. In the mean time, I would prefer not to second-guess what those conclusions will be without having first carefully digested the response to the consultation.
Lord Best
My Lords, I think there is some helpful material within that. There are still 58 minutes in which people can give their responses to the consultation document. I am grateful for that response. We will be able to look at it at our leisure. I beg leave to withdraw the amendment.
Earl Attlee
Earl Attlee
My Lords, I beg to move Amendment 232AB and will speak to Amendments 232AC to 232AR. I have a short speech and a very short speech. The sense of the House is rather for the latter. Amendments 232AB to 232AR amend Clause 218, which reforms the planning assumptions for compulsory purchase compensation. Amendments in this group extend the application of Clause 218 to Wales as well as England following a legislative consent Motion before the National Assembly. The other amendments, particularly Amendments 232AE and 232AR, make technical drafting changes so that the provisions work as intended. I beg to move.
Lord Boyd of Duncansby
My Lords, briefly, Clause 218 was put in without any debate in Committee. I simply thank the Government for having looked at the issue, bringing forward Clause 218 and then engaging with the Compulsory Purchase Association to discuss the amendments that are now being moved by the Government. I very much welcome this. Part 8 is an important part of the new Bill. I thank noble Lords for their time.
Earl Attlee
“14 Taking account of actual or prospective planning permission”
Earl Attlee
Baroness Hanham
Baroness Hanham
War Memorial Gardens
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Lord Berkeley
To ask Her Majesty’s Government whether they will introduce legislation concerning the use of war memorial gardens for entertainment purposes.
Earl Attlee
My Lords, the Government have no plans to introduce legislation concerning the use of war memorial gardens for entertainment purposes. It is for local authorities to take decisions on such matters where they own the land. In doing so, we would expect them to take into account the sensitivities of the local communities involved.
Lord Berkeley
I am grateful to the Minister for that Answer. This Question arises from an application for two months of corporate events in Trinity Square Gardens, a memorial in the City to the many hundreds of thousands of merchant seamen who lost their lives in the major wars. As noble Lords will know, this has generated widespread disgust. I congratulate the mayor and Tower Hamlets Council on rejecting this application in the past 24 hours, but can the Minister offer an opinion on whether it is appropriate that those who caused the financial crisis, often got bailed out by the taxpayer and are still awarding themselves mouth-watering bonuses should ever be allowed to dance around memorials like this?
Earl Attlee
My Lords, first, I should remind the House of my interest as I am still a serving officer in the Territorial Army. This is a Question about war memorials, not regulation of the City. But what I would say is that, when opposing the proposed event at Trinity Square Gardens, the Deputy Master of Trinity House, Rear Admiral Sir Jeremy de Halpert, wrote this:
“It is the tranquillity and character of the entire garden that delivers the respect and atmosphere for quiet contemplation and reflective memory of loved ones and comrades. There are only a few places which mark the selfless sacrifice of so many in the cause of the freedom we now enjoy”.
Few could have expressed our sentiments better.
Lord Cope of Berkeley
My Lords, I am a trustee of the War Memorials Trust and of course I deplore any inappropriate use of gardens and war memorials. At the same time, I am sure that it is not a matter that should be the subject of legislation. It is one for the custodians of the individual memorials, for local authorities and so on. That, after all, has brought the right decision in this case.
Earl Attlee
My Lords, I agree entirely with the sentiments of my noble friend. It is important to understand that nothing has gone wrong here. An event was proposed, it was considered and, quite rightly, it was determined that it was inappropriate.
Lord West of Spithead
My Lords, I declare an interest as president of the Merchant Navy Association and president of the Merchant Navy Medal. At the annual service for seafarers at St Paul’s yesterday, a large number of Merchant Navy and former Merchant Navy personnel spoke to me. I think that we have come to exactly the right conclusion about this affair.
Do the Government have any plans to celebrate appropriately the 70th anniversary of the Battle of the Atlantic in which 25 per cent of the Merchant Navy sailors involved were killed, an unbelievably high percentage, and something that I fear is often forgotten by the nation?
Lord Lee of Trafford
My Lords, would it be possible to encourage a national programme in which schools adopt their local war memorial, thereby making youngsters more aware of our history and of the sacrifices made, as well as helping with maintenance?
Earl Attlee
My Lords, that is a very good idea. I am sure that schools can do so if they wish to. One of the gratifying things that I see on battlefield tours in Europe is coach loads of British schoolchildren doing what they should do and learning from the mistakes we have made in the past.
Lord Phillips of Sudbury
My Lords, does the admirable self-denying ordinance of my noble friend the Minister in terms of yet more legislation represent a turning point? Might it be a model for the future?
Earl Attlee
My Lords, as a good Conservative, I recommend legislation and regulation only when absolutely necessary.
Baroness Royall of Blaisdon
My Lords, will the Minister take this opportunity to agree with me that the War Memorials Trust and the Commonwealth War Graves Commission do the most magnificent job for the people who fell in the world wars, those who lament the loss of their loved ones and also for us? It reminds us of the evils of war but makes us proud that we continue to look after the graves and war memorials.
Earl Attlee
My Lords, I could not possibly agree with the Leader of the Opposition to any greater extent.
Lord Brooke of Sutton Mandeville
My Lords, is my noble friend aware that thanks to the late Fred Cleary there are approaching 250 gardens within the City of London? I acknowledge that some of them are in horse troughs and window boxes but there are a large number of alternative gardens which could be used for the purpose of the original application.
Aviation
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Earl Attlee
My Lords, I start by congratulating my noble friend Lord Rotherwick on securing this debate. My noble friend said that he was worried, but he need not be, not least because of his skilful advocacy of general aviation. We have heard about the significant contribution that the general aviation sector makes to the UK economy, and we must not forget the social benefits of GA as well. It provides many thousands of enthusiasts with the chance to enjoy their passion for flying, provides world-class training for pilots, technicians and many other roles, and inspires youngsters to take up a career in aviation. The noble Lord, Lord Davies of Oldham, rightly mentioned the vital air ambulance services.
The existence of a network of general aviation airfields across the country plays a key role in the success of this sector, linking business centres that are not otherwise served by commercial air services, and providing the basis from which various recreational and sporting aviation activities take place. My noble friend Lord Rotherwick and others mentioned the employment opportunities that can arise. Reference has been made to the current planning system, which, I regret to say, has become unwieldy and complex, making it hard for experts to put into practice, let alone communities to understand. Instead, the Government are committed to putting in place a simpler, swifter system that everyone can understand. This afternoon's debate will, I hope, reassure my noble friend that the policies within the draft National Planning Policy Framework support and maintain appropriate protection for our important general aviation sector.
The draft framework streamlines current national planning policy into a consolidated set of priorities to consider when planning for and deciding on new development. It will help to ensure that planning decisions reflect genuine national objectives, such as the need to safeguard the natural environment, combat climate change and support sustainable local growth.
Lord Deben
Did my noble friend notice that the noble Lord the spokesman for the Opposition made it quite clear that the Opposition did not take an interest in the environmental case, which enabled us to say that the expansion of Heathrow was a bad thing, but tried to suggest that it was a party-political decision rather than one of high moral standing?
Earl Attlee
My Lords, I try to minimise my party-political comments as much as possible and normally manage to confine them to the noble Lord, Lord Davies of Oldham.
Planning decisions should support those national objectives while allowing local councils and communities to produce their own plans, reflecting the distinctive needs and priorities of different parts of the country. The draft framework sets national priorities and rules only where it is necessary to do so. The principle of sustainable development permeates the draft: that the actions we take to meet our needs today must not compromise the ability of future generations to meet their own. I will not be drawn any further into defining “sustainable development”.
To help support economic prosperity, the draft framework contains polices on planning for business, transport and infrastructure. To support quality of life, there are policies on housing, design and the green belt; and to help protect our environment there are polices covering climate change, and our natural and historic environment.
As my noble friend Lord Rotherwick noted, the transport polices within the draft framework streamline current transport policy contained within PPG 13 on transport. However, it is important to emphasise that the current core policy approach for planning for airports and airfields has not changed. The draft framework asks local councils to consider the growth and role of airports and airfields, which are not subject to a separate national policy statement, in serving business, leisure, training and emergency service needs. Local councils are also asked to consider the principles set out in the relevant national policy statements and the Government's framework for UK aviation, which is under development. So in answer to my noble friend’s question, I do not feel that specific further protection provisions for airfields are needed in the NPPF if they are to be set out elsewhere.
Reference was also made earlier to previously developed land. On this, the Government want to hand responsibility back to local councils and communities to decide which developable land should be used in their areas. The draft framework still encourages the use of previously developed land for development. It states that,
“plans should allocate land with the least environmental or amenity value”.
That means, of course, using derelict land when considering where to develop in the future. But it also allows restored green space that was once in industrial use, such as urban nature reserves, to be protected.
The reforms will give power back to local communities to decide the areas they wish to see developed and those protected away from the interference of Whitehall. The definition of “previously developed land” within the draft framework remains the same as that set out within PPG 3 on housing. It is defined as land which is or was occupied by a permanent structure, including the curtilage of the developed land and any associated fixed-surface infrastructure.
However, in determining the future use of an airfield which is deemed to comprise,
“land with the least environmental or amenity value”,
the local council will need to also consider the role of the airport or airfield in serving business, leisure, training and emergency service needs, and ensure the location of the proposed development is appropriate and sustainable when considered against all of the policies within the national planning policy framework, the local plan for the area and any other relevant material planning considerations.
I note that the General Aviation Alliance has responded to the Government’s call for comments on the draft framework. I can assure noble Lords that during the weeks ahead the Government will consider all the suggestions that have been made as part of this consultation and will ensure that the policy adopted will continue to protect against inappropriate development, while also enabling local people to plan for the sensible and well designed development that provides homes and jobs, on which the future prosperity of their community depends.
I will try to answer as many specific questions as possible. I always look forward to the comments of the noble Lord, Lord Davies of Oldham, and I will of course be positive. The noble Lord knows perfectly well that a policy framework for aviation will not be completed in a few months, as he suggested. The noble Lord will also recall that Heathrow, while very important, is not generally involved in general aviation activities, for obvious reasons, so I will resist the temptation to get involved in debating Heathrow.
My noble friend Lord Rotherwick asked about the supporting aviation infrastructure network. The draft NPPF asks local councils to work with neighbouring councils and transport providers to develop strategies for the provision of the viable infrastructure necessary to support sustainable economic growth. This includes the transport investment necessary to support strategies for the growth of airports. My noble friend also asked about extending the safeguarding to all GA airfields and small airports. This would require careful consideration as there is potential for conflict with other aviation interests and wider government aims. The safeguarding process includes protection against other aviation activity; given the significant number of aerodromes across the UK, there is a real risk of overlapping safeguarding zones. Where this occurred, local planners might be forced to prioritise one aerodrome over another, which may in turn work to the detriment of general aviation.
My noble friend Lord Sharkey asked a number of questions, including one about UK flight training. He will recognise that there are a number of commercial and operational reasons why flight training organisations conduct some or all of their training outside of the UK, despite the observations of my noble friend Lord Goschen about the high quality of UK training. These include increased competition from flying schools in other countries, rising costs—including VAT—and the complications afforded by the weather and congested airspace in the UK. Mitigating some of these taxation issues, even if desirable, could cause considerable problems with the EU state aid rules and the principal VAT directive. However, the UK has implemented the mandatory exemptions for suppliers of education laid down in Article 132 of the principal VAT directive. My noble friend also asked about renewable energy. The coalition Government have made clear their commitment to increasing the deployment of renewable and low-carbon energy across the UK.
My noble friends Lord Sharkey and Lord Goschen also asked about European issues related to pilot licensing and EU regulation. The UK supports the principles of proportionate regulation and the view that new EU regulatory proposals should be supported by a meaningful impact assessment that reflects different types of aviation activity across the sector. A one-size-fits-all approach is not always the best solution. My noble friend Lord Goschen compliments the UK regulatory regime—he should do because he had ministerial responsibility for it at one point.
The noble Earl, Lord Stair, asked about a sustainable framework for aviation. The Government are currently developing a new policy framework for UK aviation. A scoping document was published on 30 March, setting out our priorities for aviation, and the extended call for evidence closes on 20 October. The scoping document asked a series of questions, some of which are specifically directed at the GA sector, including the balance to be struck between conflicting demands such as housing and maintaining a network of GA aerodromes. I can assure the noble Lord that a number of GA stakeholders have already responded and their views will be taken into consideration alongside those of other respondents as the policy development process moves forward. The noble Earl asked about the protection of agricultural land. The policy in the draft framework maintains the agricultural land protections currently set out in planning policy statement 7.
My noble friend Lord Goschen asked about the local impacts of airfield development. The draft framework includes a policy that asks local councils to ensure that the new development is appropriate for its location, having regard to the effects of pollution on health and the natural environment or general amenity and taking into account the amount of potential sensitivity of the area of proposed development to adverse effects from pollution. This policy would apply to planning proposals nearby or next to airports or airfields. Therefore, where noise is likely to be an issue to the proposed site or development, the location is likely to be deemed inappropriate.
In conclusion, I thank my noble friend for his short debate and all his efforts in supporting the general aviation sector.
Localism Bill
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Baroness Gardner of Parkes
My Lords, I was very involved in housing when Parker Morris standards were still used—
Baroness Gardner of Parkes
I am sorry; I just wanted to raise the issue of Parker Morris standards, which I think I can do as the noble Lord is responding to that report.
Asylum Seekers
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Baroness Bakewell
To ask Her Majesty’s Government, in the light of the number of asylum decisions overturned on appeal, in particular among female asylum seekers, what steps they are taking to ensure that women fleeing gender-based persecution receive fair asylum decisions.
Earl Attlee
My Lords, the Government recognise that women can face particular forms of persecution that are quite often different from those faced by men, and are committed to ensuring that women’s claims for asylum are dealt with as fairly and sensitively as possible. The UK Border Agency is working closely with a range of key corporate partners in developing improvements to the asylum system. This will increase gender awareness throughout the asylum process.
Baroness Bakewell
I thank the Minister for his reply, and for implying that there is still space for improvement. Perhaps he knows the case of the playwright Lydia Besong, who sought asylum here in 2006 having been imprisoned and raped in Cameroon for being a member of the Southern Cameroons National Council. She has been refused asylum and is under threat of removal. Does the Minister agree that women such as Lydia—and there are several—who suffer gender-related persecution should be protected rather than sent back to face further risk, and that early access to legal representation for appeal would reduce the costs of the asylum process?
Earl Attlee
My Lords, Miss Besong is a failed asylum seeker, having had her appeal and further submissions dismissed by the courts, not by UKBA. She became appeal rights exhausted this year and therefore subject to enforced removal action if she refuses to leave the UK voluntarily. On the noble Baroness’s second point, about leaving it to appeal, it is open to legal and other advisers to introduce new evidence to the UKBA at any point between the original decision and the appeal hearing. Asylum could then be granted before the appeal is heard. It is not clear to me why this does not happen more often.
Lord Avebury
Does the noble Lord accept that at the asylum stakeholders’ meeting on 4 August the UKBA said that it had not released any victim of gender-based violence from the detained fast-track and did not consider it a reason for releasing a person? Is this not a breach of the undertaking that was given to the High Commissioner for Human Rights at the Council of Europe that:
“Particularly vulnerable applicants including … victims of trafficking or sexual violence … are not dealt with within the DFT process as a matter of policy”?
Does my noble friend accept that as the success rate of appeals by women against refusal of asylum is running at 50 per cent, it is clear that the improvements in procedures for dealing with gender-based violence in the criminal justice system have not read across to the UKBA?
Earl Attlee
My Lords, I think I have already explained why there can be very good reasons for the overturn rate at appeal. As regards the noble Lord’s question about detained fast-track, I am confident that legal protections for the detainee must be in place, but I shall write to the noble Lord on that point.
Lord Martin of Springburn
My Lords, there were more asylum seekers in my previous constituency of Glasgow North East than in any other part of Scotland, with 90 per cent of the cases at my surgery being asylum seekers. They were made most welcome by some of the poorest communities in the United Kingdom, but should there not always be monitoring in these communities to ensure that enough resources are going in to help where there is strain on local health services, schools and housing departments?
Earl Attlee
My Lords, the noble Lord makes an important point about the need for care. One reason why you see concentrations of certain nationalities in certain places is that communities tend to become established, and it is natural for asylum seekers to go and join their own community in the UK.
Baroness Kennedy of The Shaws
My Lords, perhaps I may return to the issue of gender. The running rate of 50 per cent of women succeeding in appeals, which is almost double that of men, is suggestive that there is poor decision-making and a culture of disbelief at the first instance in relation to women. Is that therefore not a signal, first, that there is poor training and, secondly, that there should be legal representation when the women are first interrogated and questioned because they are having to deal with sensitive matters such as sexual violence?
Earl Attlee
My Lords, I largely agree with the noble Baroness. The problem is that the matters that the applicant has to explain to the UKBA officers are extremely sensitive and the applicant has not yet acquired confidence in the machinery of our state because the machinery of their home state has totally failed.
Baroness King of Bow
My Lords, following on from the noble Baroness’s point, is the Minister aware of Asylum Aid research which stated that there was a “striking failure” of understanding what was happening to these women on the part of those making the decisions? Would the Minister be prepared to meet me and other interested Peers to discuss how the UKBA training could be improved? Women deserve better than they are currently getting.
Earl Attlee
My Lords, I entirely agree that women deserve better, and we are working at improving our performance. We are not saying that we are perfect but often new evidence is introduced at a later stage when the applicant becomes more confident or has better legal advice. I shall of course be delighted to have a meeting with all noble Lords who are interested in this matter and I shall take steps to make sure that that happens.
Localism Bill
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Lord Kennedy of Southwark
As far as it goes, I support the amendment moved by the noble Baroness, Lady Gardner of Parkes. Pedicabs, and the way in which they operate, can be a nuisance, and it is only by licensing them that we can get some control over them. It would therefore be good if local authorities could establish local by-laws for the licensing of pedicabs in their area. If people are going to travel in them, we should make sure that they are roadworthy, that there is proper insurance cover for passengers, that there are rules about where they can stand when waiting for business, that the people peddling them comply with traffic legislation and that, where breaches occur, there is provision to get them off the road.
I accept that at present they seem to operate only in central London, so Westminster council faces the biggest problem. However, like my noble friend Lord Berkeley, I would have preferred to see London-wide licensing of pedicabs. They will no doubt move elsewhere, with Camden, Islington, Kensington and Chelsea, Southwark and Lambeth all likely to have them in parts of their boroughs. By-laws that differ from borough to borough just risk confusion and it would be better to have a London-wide option. However, as I said, the Opposition support the thrust of the amendment and I hope that the Government can indicate what they will do to deal with this problem.
Earl Attlee
My Lords, I can understand why my noble friend Lady Gardner of Parkes has moved this amendment. She has explained the problem and other noble Lords have made sensible and balanced contributions. However, Transport for London and ultimately the mayor are responsible for pedicabs in London. The Government take the view that issues surrounding pedicabs in London should be dealt with at a local level, which this amendment would provide for. After all, this issue only really affects London. However, the mayor, Transport for London and the London local authorities are already taking the initiative to address the matter with straightforward measures that avoid the trap of overregulation. Noble Lords will be aware that Westminster City Council is currently working up a voluntary—
Lord Berkeley
I am sorry to interrupt the Minister but I believe that they operate in Oxford, and there is a similar problem there. But I do not know what the solution is.
Earl Attlee
My Lords, I skilfully avoided saying that this problem was unique to London, because I thought this issue might arise, and I might get challenged by someone like the noble Lord.
Westminster City Council is currently working up a voluntary registration scheme for pedicabs, with registration being incentivised by providing parking bays and pedicab ranks for members. Those operators and riders subscribing to the scheme will sign up to a code of practice, and the noble Lord, Lord Berkeley, has already alluded to these developments. This registration scheme would then tie in with the provisions relating to the enforcement of road traffic offences in relation to pedicabs, which are included in the London Local Authorities and Transport for London (No. 2) Bill, currently before Parliament. Effective implementation of the provisions in the Bill relies on a system of licensing or registration being in place. The relevant clause could not come into force until a registration scheme for owners and riders has been approved by the Mayor of London.
Baroness Gardner of Parkes
I thank the noble Earl and the noble Lords who have contributed to the debate. It has been much wider and more interesting than I had expected. However it is an issue, and I would like to respond on a couple of points.
The noble Lord, Lord Berkeley said that it should apply to the whole of London. I draw attention to the fact that traffic varies tremendously in London. For example, on the subject of disabled parking, the blue badge scheme does not apply in any of the three central London boroughs. You have to have a blue badge and a local badge as well to take full advantage of disabled parking. If you have a blue badge, there are blue-badge places you can use, but you cannot use any other parking places. Each of the three central London boroughs said it would make it impossible for them, because they would be flooded by people coming from outside the boroughs. So this is a long-standing arrangement just for central London.
I do not agree with the noble Lord that you need to have licensing for pedicabs out in Havering, for example, which I represented at one time. I do not believe there are any pedicabs running around Havering. I think they are a fun thing in central London. However my concern is not the fun element, which I agree with my noble friend Lord Jenkin, is absolutely wonderful. In Bangkok it was great fun to travel around in them. However it is not a fun element if you are at risk of being injured due to their ignoring road behaviour. That is what worries me.
This is an issue that needs to be tackled. I accept that it might be better tackled somewhere else and in some other way. Perhaps LRT could deal with it selectively, but it has to be done selectively, because many boroughs will have no problem at all. If—as the noble Lord, Lord Berkeley has said—Oxford already has pedicabs then there are other places which need this issue to be addressed now. But again, the areas will need to be limited.
I have listened to the debate and I think it is valuable to have it on record for when this issue comes up again as it surely will in some other capacity. Meanwhile I beg leave to withdraw the amendment.
Earl Attlee
“(1) A Minister of the Crown may, in accordance with the provisions of this Part, require public authorities to make payments of amounts determined by a Minister of the Crown in respect of an EU financial sanction to which this Part applies.
(2) A requirement to make a payment under this Part—
(a) may only be imposed on a public authority if— (i) the authority has been designated under section (Designation of public authorities); and(ii) the EU financial sanction concerned is one to which the designation applies; and(b) must be imposed by a notice given to the authority under section 33 (referred to in this Part as a final notice).”
Earl Attlee
My Lords, I shall speak to a necessarily long list of amendments, starting with Amendment 195ZAA. The amendments deal with EU fines. I thank noble Lords for the constructive suggestions made during and since Committee. As a direct result, I am able to move some substantial amendments and therefore intend to take a little time explaining them.
To start, it would be helpful to reaffirm the basic principles here: this is about encouraging authorities not to incur fines for the UK in the first place. In the unprecedented circumstance that the UK is fined in relation to an infraction, it is about achieving compliance quickly, using a process which is fair, proportionate, reasonable and holds no surprises. We do not want to pay escalating fines to Europe. We have never incurred fines regarding an infraction and do not see these provisions as a prelude to being more relaxed about infraction proceedings or fines.
All this is reflected in the policy statement of the Local Government Group, which has been placed in the House Library and updates the one previously put forward by the Greater London Authority. I strongly welcome the statement, which is very helpful. I thank both the Local Government Group and the Greater London Authority for working with us so closely on this, and for their help and support. This paper will form the basis of a government policy statement on which we will consult more fully in due course.
The noble Lords, Lord Tope and Lord McKenzie of Luton, each provided convincing proposals on designation in Committee. I have combined these and taken them further so that the Minister would need to designate each authority by order, using the affirmative procedure and specifying the infraction case and related activities of the authority, before the Localism Bill’s provisions could be used. The activities described must take place after the order comes into force and will relate to the authority’s functions and obligations.
This means that authorities can be designated only for something which is their responsibility. Only actions or failures to act following designation would be taken into account when deciding whether to pass on a fine, and only in relation to the specific infraction case. The designation order would cease to have effect when the infraction case was closed. This responds to concerns on retrospectivity raised previously and highlighted in Committee by my noble friend Lord Newton of Braintree. It puts in place a mechanism which will give authorities an early opportunity to put things right, to solve the problem, before any fine. It also means that this House and the other place will have the ability to test the rationale for the proposed designation in debate. If this does not provide sufficient incentive, and in the unprecedented circumstance that the UK is fined for failing to comply with EU law, we will establish an independent advisory panel before seeking to recover any fines.
I am grateful to my noble friend Lady Gardner of Parkes and the noble Lord, Lord Best, for suggesting how an independent advisory panel could provide sufficient checks and balances to ensure that the Minister could not act, at the same time, as prosecutor, judge, jury and co-defendant on these matters. As I made clear in Committee, we remain committed to the principles of transparency, fairness, reasonableness and proportionality. This amendment will enhance all these qualities.
Such a panel would be formed at the point of need, with relevant legal, topical and sectoral expertise for the specific case. The Minister would consult the panel on the procedure and timetable. The panel would receive representations directly from the Minister and from the authorities involved. It would carry out fact-finding and make published recommendations to the Minister, including on the fair apportionment of culpability.
I remain strongly of the opinion that decision-making should remain with the Minister as an elected member of the Government with responsibility to make such decisions on resources. Any Minister acting against recommendations would need strong reasons for doing so should there be a subsequent judicial review.
The amendments on the process reflect the new role of an independent panel and will enable the authority better to plan its finances by covering all possible payments up front: lump-sum, accrued and ongoing periodic fines. This transparency could be a big help, allowing the authority to weigh the costs of fines against the costs of speedy compliance.
Any ongoing liability to pay towards a fine from the EU would end at the point where the authority demonstrated that it had taken all reasonable steps to comply. There is also provision for liability to be reduced—but not increased—if there is a change of circumstances.
We are extending the provisions to cover reserved matters in devolved areas. I am grateful to the noble Lords, Lord Wigley and Lord Empey, who spoke on this, with others, in Committee. I can confirm to the House that the extension of the provisions to cover reserved matters, without prejudicing the performance of any devolved functions, has the full agreement of all the devolved Administrations. On the request of the Welsh Government, we are also providing a mirror power for Welsh Ministers to pass on EU fines to responsible public authorities exercising devolved functions in Wales. This replicates the UK provisions in their entirety, including designation by order.
The rest of my amendments make changes to ensure that the clauses as a whole work together.
Finally, I should like to respond to the amendment proposed by the noble Lord, Lord Berkeley—in advance of him moving it—which would ensure that the Government could not designate any rail or inland waterway provider. I agree that we should not penalise companies for their private services and functions, but where a company is performing a public function, and only for that public function, it needs to be encouraged to comply with EU law in order to avoid significant fines being picked up by the British taxpayer. Where a private company has responsibility under statute to carry out public functions, the default position would be to use any existing regulatory framework to resolve the issue. A Minister would seek to designate a private company only if it was carrying out a public function, if it had caused or contributed to an active infraction case, and if any regulatory body had not been able effectively to incentivise compliance. This would of course be tested by this House and the other place should a Minister seek to designate in such circumstances.
I hope that this demonstrates that I have taken on board the points raised in Committee, and that these provisions are stronger and better as a result. With these amendments there is a very clear emphasis on incentivising avoidance of fines. We are radically devolving power, but that needs to go hand in hand with responsibility. Therefore, I strongly believe that these provisions will help to protect UK taxpayers. I beg to move the government amendment, and hope that the noble Lord, Lord Berkeley, will be willing to withdraw his amendments at the appropriate point after he has spoken to them.
Lord Tope
My Lords, as I think I was the first to complain about the original provisions of the Bill when we considered it in Committee, it is only right that I should now be the first to rise to congratulate the Minister on what he has achieved since we were in Committee. I said at that time, with great regret, that the first that local government knew of the Government’s intentions on EU fines was when they read it in the Bill, which was most unsatisfactory. That is not the responsibility of the noble Earl, Lord Attlee, at all. His responsibility is the leadership that he has shown since that time in retrieving this situation. None of us would have wished to start from there, but that is where we found ourselves. The noble Earl has worked tirelessly since that time to achieve a compromise that is fully and wholly accepted by the Local Government Group, the Greater London Authority and, as far as I am aware, all others involved in this. It is still their position that it would be better if this were not in the Bill at all, but that is not too surprising—most people would rather not have provisions to fine them in legislation. Given that it is the Government’s intention, for the reasons given, that this will be in the Bill when it is enacted, then—thanks to the noble Earl and, as I think he would be the first to acknowledge, thanks to his officials—we have achieved a satisfactory outcome.
The only point that I would like to add is to welcome—as I also said in Committee—the statement of policy. It is a very good intention that the Government will discuss with local government those areas of concern in upcoming proposed EU legislation that has a significant effect upon local government. That is a very welcome good intention but I want to be sure that it happens. I have no doubt whatever that, as far as the noble Earl’s department is concerned, that has always been the case. I have been for many years a member of the Local Government Association’s European and international board and its predecessor’s bodies, right back to the days of the Local Government International Bureau. For some time in the early days of the new Labour Government we had regular meetings not only with CLG but also with the FCO and the Europe Minister to discuss issues of concern. They fell into abeyance some years ago and do not happen any longer. My plea to the noble Earl, and through him to the Government, is to ensure that this very welcome statement of policy does not just remain a statement of good intent but is actually put into practice. I am sure that this sort of meaningful dialogue between representatives of local government and representatives of central Government—not just CLG but also the FCO and other departments dealing with these issues, as appropriate—can only be to mutual benefit and will, we all hope, ensure that the provisions that we will shortly pass will never need to be used.
Lord Beecham
He was none the worse for that. I do not think that his wife, who used to drive him around, would have been guilty of depositing fish and chip papers anywhere near the noble Lord’s house.
The position that we have reached is one that the Local Government Association has worked very hard with the Minister and colleagues from all sides of the House to achieve. In particular, the outcomes around the designation and the opportunity to correct a situation that perhaps led to a fine—the provision of an effective appeals system—have all been significant. I am encouraged that the statement of policy that has been produced by the Local Government Group is one that I understand the Government are minded to adopt. Perhaps when he replies the noble Earl will indicate how far their consideration of the document has gone and whether there are likely to be any issues of significance that might not accord with the proposals that have been made. I understand that effectively an agreed position has been reached around four main areas: working in partnership; that there should be no surprises; that there should be a fair and proportionate process; and that consideration should be given to the ability to pay.
One of the crucial issues first voiced in the debate to the Committee by the LGA was the lack of an opportunity for local government to be involved in the legislation from which proceedings ultimately might flow in terms of infringement of European law. It is welcome that the Government have now indicated that local government will be identified specifically as a key sector for consultation when the Government enter into negotiations on EU legislation that could ultimately lead to fines coming down to local authorities. That is an extremely important extension of the consultative role that should ensure that the legislation is right in the first place, which would be a distinct improvement on the position hitherto.
The Minister has made it clear that there will be no surprises in future. No local authority will be taken by surprise because of the designation process, which is a reasonable one in which Parliament will be involved. Equally, the process will be broadly based in terms of those involved in deciding a number of matters—for example, whether the UK Government themselves have contributed to the infraction. I take it that that will also apply to any infraction that might have been contributed to by the devolved Administrations where their activities impinged on European legislation. I assume that that is taken care of in the arrangements that the Government have come to with the devolved Administrations.
My final point is crucially important. The panel will determine these matters and the Minister will consider the authority's ability to pay a fine and provide for possible alternatives in the event that the ability to pay is not present. It is conceivable that a small district council might find it impossible to pay a significant fine in respect of some infraction of environmental legislation within its competence. It is extremely welcome that the Government have acknowledged that that is a risk and that they will not be seeking to extort from such an authority a contribution to a financial penalty that would seriously impede the activities of that local authority.
Thanks very largely to the Minister, we have reached a satisfactory position on this. It has been a good example of the way in which local government and the Government can work together and in which Ministers can listen to proceedings in your Lordships' House, take back concerns and proposals and work with them. I hope that the noble Earl will feel able, metaphorically at least, to bite one or two of his ministerial colleagues in the hope that this becomes a habit across government and not confined to the noble Earl.
Earl Attlee
My Lords, I thank my noble friend Lord Tope and other noble Lords for their kind comments. First, I plead not guilty for all the work: it was my officials what done it.
My noble friend Lord Tope talked about consultation on the EU legislation and the fact that we are committed to consulting with local authorities. I am confident that the LGG will hold our feet to the fire on this issue.
My noble friend Lord Jenkin mentioned Keeling schedules. They are useful in certain circumstances but the decision to use them is decided on a case-by-case basis.
My noble friend also asked me to give an assurance that under no circumstances could fines refer to activities, errors and omissions made before the Bill passes. I am very happy to give an absolute assurance that under no circumstances can the provisions be used retrospectively. Subsection (5)(b) of the clause proposed by Amendment 195ZAH means that only actions or inactions after designation can be taken into account. This is extremely important because it allows all those affected to concentrate on solving the problem rather than listening to the lawyers and doing nothing other than arguing. It is a very important point.
Earl Attlee
And ability to pay—a very important point. The fines can only be set at a level that will not effectively bankrupt the authority. That is one of the principles in the legislation.
Earl Attlee
Earl Attlee
“Designation of public authorities
(1) A Minister of the Crown may by order designate a public authority for the purposes of this Part.
(2) The order must—
(a) specify the public authority by name;(b) identify any EU financial sanction to which the designation applies; and (c) describe the activities of the authority which are covered by the designation.(3) The order may identify an EU financial sanction for the purposes of subsection (2)(b) by—
(a) specifying an EU financial sanction that has been imposed on the United Kingdom;(b) specifying any Article 260(2) proceedings that have been commenced and providing that the designation is to apply to any EU financial sanction that may be imposed on the United Kingdom in those proceedings;(c) specifying a judgment of the Court of Justice finding that the United Kingdom has failed to comply with an EU obligation and providing that the designation is to apply to any EU financial sanction that may be imposed on the United Kingdom for failing to comply with that judgment; or(d) specifying or describing any proceedings under Article 258 or 259 of the Treaty on the Functioning of the European Union that have been or may be commenced and providing that the designation is to apply to any EU financial sanction that may be imposed on the United Kingdom for failing to comply with a judgment of the Court of Justice given in those proceedings. (4) The order may, for the purposes of subsection (3)(d), describe any proceedings under Article 258 or 259 that may be commenced by reference to the subject-matter of—
(a) a Reasoned Opinion addressed to the United Kingdom under Article 258 or 259 (as the case may be); or(b) any other document sent to the Government of the United Kingdom by the Commission of the European Union or by another member State which gives notice to the Government of the possibility of proceedings being commenced against the United Kingdom.(5) The activities described for the purposes of subsection (2)(c) must be activities of the public authority which—
(a) are carried out in the exercise of non-devolved functions of the public authority; and(b) take place after the provisions of the order describing the activities come into force.(6) The following may not be designated under this section—
(a) the House of Commons, the House of Lords, the Scottish Parliament, the Northern Ireland Assembly or the National Assembly for Wales; (b) a Minister of the Crown or a United Kingdom government department;(c) a member of the Scottish Executive;(d) the First Minister or the deputy First Minister for Northern Ireland, a Northern Ireland Minister or a Northern Ireland Department;(e) a member of the Welsh Assembly Government;(f) a court or tribunal.(7) Before making an order designating a public authority a Minister of the Crown must consult—
(a) the public authority concerned; and(b) if it is a public authority with mixed functions, the appropriate national authority.(8) In sections 32 to 33 references to “acts”, in relation to a public authority which has been designated under this section, are to acts within a description of activities covered by the designation.”
Earl Attlee
“Establishment of independent panel
(1) This section applies where—
(a) an EU financial sanction to which this Part applies has been imposed by the Court of Justice; and(b) at least one public authority has been designated under section (Designation of public authorities) and the EU financial sanction is one to which the designation applies.(2) A Minister of the Crown must establish a panel for the purpose of carrying out any functions it may be given by or under any provision of this Part in relation to that EU financial sanction.
(3) The panel must be established before any warning notice is given to a public authority in relation to that EU financial sanction.
(4) The panel is to consist of one or more individuals appointed by a Minister of the Crown who appear to a Minister of the Crown to have suitable qualifications, expertise or experience to carry out their duties.
(5) A Minister of the Crown may invite nominations for appointment to the panel from such organisations as a Minister of the Crown considers appropriate.
(6) The validity of any acts of the panel are not affected by a vacancy among its members.
(7) A Minister of the Crown may pay to a member of the panel such fees, allowances or expenses as a Minister of the Crown may determine.
(8) A Minister of the Crown may provide such staff, accommodation or other facilities as a Minister of the Crown may consider necessary to enable the panel to carry out its functions.”
Earl Attlee
“(1) Before a public authority which has been designated under section (Designation of public authorities) can be required to make any payment under this Part in respect of an EU financial sanction to which the designation applies—
(a) a Minister of the Crown must give a warning notice under this section to the public authority;(b) the procedures set out in the warning notice (with any changes made under subsection (7)) must be followed; and(c) a Minister of the Crown must determine the matters mentioned in section (Matters to be determined before a final notice is given)(4).”
Earl Attlee
“Matters to be determined before a final notice is given
(1) This section applies where—
(a) a warning notice has been given to a public authority; and(b) the panel has considered all representations made to it under the procedures set out in that notice. (2) The panel must make, to a Minister of the Crown, a report on the matters to which the representations made to the panel relate.
(3) The report—
(a) may be published by the panel in such manner as the panel thinks fit and, if not published by the panel, must be published by the Minister of the Crown to whom it is made in such manner as the Minister of the Crown thinks fit;(b) must include recommendations as to the determination of the matters mentioned in subsection (4)(a) and (b);(c) if the authority has made representations to the panel about anything the authority considers relevant to any of the matters mentioned in paragraphs (c) to (e) of subsection (4), must include recommendations as to the determination of the matters mentioned in those paragraphs; and(d) must include the panel’s reasons for any recommendations included in the report.(4) After having had regard to the report, a Minister of the Crown must determine the following matters—
(a) whether any acts of the authority did cause or contribute to the infraction of EU law concerned and, in relation to any periodic payments mentioned in subsection (3)(c) of section 32, whether those acts have continued and will continue to do so;(b) the proportion of—(i) the total amount of the sanction (as specified under subsection (3)(b) of that section), and(ii) any periodic payments (as specified under subsection (3)(c) of that section),that, in the light of the acts of the authority which are determined to have had or to be having an effect mentioned in paragraph (a), is to be regarded as reflecting the authority’s share of the responsibility for the infraction of EU law concerned or, in relation to any such periodic payments, the continuing infraction of EU law concerned; (c) whether the authority should be required to make any payment or payments in respect of the EU financial sanction;(d) if so, what payment or payments the authority should make towards—(i) the total amount of the sanction specified under subsection (3)(b) of that section; and(ii) any periodic payments specified under subsection (3)(c) of that section; and(e) when any such payment or payments should be made.(5) In determining the matters mentioned in subsection (4)(c), (d) and (e) the Minister of the Crown must have regard to—
(a) the effect on the authority’s finances of any amount it may be required to pay and in particular, if the authority has mixed functions, the need to avoid any prejudicial effect on the performance by the authority of its devolved functions;(b) the determination under subsection (4)(b); and(c) any other relevant considerations.(6) Before making a final decision on the matters mentioned in subsection (4)(c), (d) and (e), the Minister of the Crown must invite—
(a) representations from the authority about the potential effect on its finances and, if it has mixed functions, the effect on its devolved functions of any amount it may be required to pay; and(b) if the authority has mixed functions, representations from the appropriate national authority.”
Earl Attlee
Earl Attlee
Earl Attlee
Earl Attlee
Earl Attlee
““the appropriate national authority”, in relation to a public authority with mixed functions, has the meaning given by section (Meaning of “public authority” and related terms)(8);
“Article 260(2) proceedings” has the meaning given by section 31(8)(c);
“Court of Justice” means the Court of Justice of the European Union;
“EU financial sanction” has the meaning given by section 31(8)(a);
“final notice” means a notice under section 33;
“functions”, “non-devolved functions” and “devolved functions” are to be construed in accordance with section (Meaning of “public authority” and related terms);
“infraction of EU law”, in relation to an EU financial sanction, has the meaning given by section 31(8)(b);”
Earl Attlee
“PARTEU fines: WalesPower to require Welsh public authorities to make payments in respect of certain EU financial sanctions
(1) The Welsh Ministers may, in accordance with the provisions of this Part, require Welsh public authorities to make payments of amounts determined by the Welsh Ministers in respect of an EU financial sanction to which this Part applies.
(2) A requirement to make a payment under this Part—
(a) may only be imposed on a Welsh public authority if— (i) the authority has been designated under section (Designation of Welsh public authorities); and(ii) the EU financial sanction concerned is one to which the designation applies; and(b) must be imposed by a notice given to the authority under section (Final notices) (referred to in this Part as a final notice).(3) If a final notice is registered in accordance with rules of court or any practice direction, it is enforceable in the same manner as an order of the High Court.
(4) Any sums paid by a Welsh public authority under this Part are to be paid into the Welsh Consolidated Fund.
(5) In this Part—
(a) “EU financial sanction” means a sanction consisting of a lump sum or penalty payment (or both) imposed by the Court of Justice in Article 260(2) proceedings for an infraction of EU law;(b) “infraction of EU law”, in relation to an EU financial sanction, means the failure to comply with a judgment of the Court of Justice given in proceedings under Article 258 or 259 of the Treaty on the Functioning of the European Union; and(c) “Article 260(2) proceedings” means proceedings under Article 260(2) of that Treaty.”
Lord McKenzie of Luton
My Lords, the purpose of the amendment is to try to have a safety valve in the arrangements for referendums around council tax, and for the outcomes of those, whereby the Secretary of State, notwithstanding the early determination, may direct that a substitute calculation can be increased by an amount determined by the Secretary of State. When we debated these amendments before we instanced particular circumstances where it was perhaps difficult for a local authority to disclose fully some of the sensitivities around its budget. Those matters might be commercially confidential or there might be a dispute outstanding. To spell out the consequences, risks and costs associated with that that could fall on the local authority, which could be difficult and prejudice its position. Hence the proposition that there should be an opportunity for the Secretary of State, obviously after discussions, to increase the amount determined. It may be that the Minister will say that this could be dealt with earlier in the process when the Secretary of State designates certain categories of authority, and that there will then be scope through that discussion to itemise just a few or even one particular local authority. That would be the mechanism to allow a council tax increase which was relevant to that local authority, but which was greater than the amount generally determined. That is the purpose of the amendment. I beg to move.
Earl Attlee
My Lords, I fear that my response on this occasion will be fairly similar to the previous one. The amendment does not take account of the fact that the provisional principles for council tax referendums will be announced at the same time as the provisional local government finance settlement. Authorities will then have the opportunity to make the Secretary of State aware of any exceptional circumstances that they consider he should take into account when determining the principles.
The noble Lord, Lord McKenzie, suggested that there may be financial problems that the local authority is reluctant to disclose. But what about being open to the Secretary of State about its problems? Surely it would want to keep the Secretary of State informed. I do not understand how the situation could arise whereby a local authority was in severe difficulties but wanted to keep that quiet from the Secretary of State.
Lord McKenzie of Luton
I am sorry if I was not clear. The concern was not about being open and transparent with the Secretary of State, but about the process of a referendum laying bare some difficult situations that could prejudice the outcome of those so far as the wider public is concerned. Obviously, in due course, everything would have to be properly reported and accounted for in the public domain, but there could be some sensitivity around issues just at the point where the referendum might be undertaken. That is the issue we are seeking to safeguard.
Earl Attlee
I think that I can accept, as the noble Lord describes, that you might not want to make the difficulties public at the time of the referendum, should that be necessary, but I do not understand why the local authority would not make it clear to the Secretary of State that there was a problem locally. It might have been a minor disaster, or a facility could have been destroyed, for example. The Secretary of State may or may not be aware of it but the local authority could tell the Secretary of State, and if it is a matter that does not need to be fully advertised then the Secretary of State could perhaps put it in a different category. It might be common knowledge, and therefore it would not be a surprise that the local authority was put in a different category.
In addition, if an authority is faced with difficulties prior to the referendum being held, the Secretary of State may direct that the authority need not hold a referendum if he considers that it will be unable to discharge its functions effectively or unable to meet its financial obligations. It cannot be right to allow an authority to apply to set an excessive council tax after it has been rejected by the electorate, nor can it be right for the Secretary of State to set a higher level of council tax after a referendum.
I do not think that this is localist. Indeed, it would defeat the whole reason for having a council tax referendum in the first place—to let the local electorate decide. I therefore ask the noble Lord to withdraw the amendment.
Lord McKenzie of Luton
My Lords, I am grateful to the noble Earl for his explanation. We had this response and exchange previously. I should stress that I was not in any way suggesting that a difficulty which a local authority may be in should not be fully shared with the Secretary of State. I was simply expressing the difficulty, at that point in time, of having to expose it fully in the public domain because of the adverse consequences that it might bring, to the detriment of the taxpayers in that area. That was the issue that I was seeking to pursue.
I take the noble Earl’s point that doing this perhaps after the referendum has been lost would seem to negate that process. However, I hang on to the point that there needs to be some mechanism to deal with it. The noble Earl referred to provisions, which we will cover in a different way in Amendments 196A and 196B, whereby if the Secretary of State is of the view that an authority is unable to discharge its functions or would be unable to meet its financial obligations the Secretary of State can step in. However, when we discussed that matter last time, it emerged that that would be an in extremis situation and I am still trying to focus on an issue when that situation has not been reached but it might be a material contractual issue that the local authority is facing. The issue may have reached a critical stage in negotiations, or there may be litigation pending or under way. I am suggesting a safety valve to deal with that.
If the Minister is saying that the best way of dealing with that is to have these discussions earlier so that there can be a separate category for that authority, I would accept that as a route forward. Quite how it would be viewed by the wider public if an individual authority, which presumably would have to be named, were to be separately categorised, and the inferences that might be drawn, could give rise to some—
Earl Attlee
My Lords, you could have a category with a single authority or with two authorities that have some bad luck, where something went wrong, and they could be treated a little more generously than others.
Lord McKenzie of Luton
Again, I am grateful for that. I hold to the view that although it may help in some instances, being named separately in a category with a potential council tax increase that was greater than that of most other authorities could itself engender inquiries, concerns and speculation over what might be going on. There is no easy way round this but I am happy to accept the Minister’s assurance that this type of issue could be dealt with through the mechanism that he identifies. I am content to leave it there and beg leave to withdraw the amendment.
Lord McKenzie of Luton
My Lords, I beg to move Amendment 195K but shall not move Amendments 195L or 195M because this is an overlapping provision. This amendment would delete the detailed list of issues where guidance can be given by the Secretary of State in relation to a referendum. Regulations can touch upon provisions relating to: the question to be asked; the publicity to be given in connection with a referendum; the limitation of expenditure in connection with a referendum; the conduct of the authority, members of the authority and officers of the authority; when, where and how voting in a referendum is to take place; how the votes cast in a referendum are to be counted; and for disregarding alterations in a register of electors and so on. I contend that those issues should be left to the local authority to determine. If we are to be adherent to localism and want to trust local authorities, then we do not need this degree of prescription.
I am afraid that I missed all the fun over the removal of referendums earlier in the Bill as I was in the Committee on the Welfare Reform Bill. This is one area where referendums clearly remain in the Bill but I believe that the prescription should be removed.
Earl Attlee
My Lords, this amendment removes the power to make regulations in relation to significant issues relating to the conduct of council tax referendums. If there are to be no regulations, what are there to be? Are authorities to be left to make up their own rules on conducting council tax referendums and counting the votes?
Voters are entitled to see referendums handled in a consistent way with proper safeguards. The Government have accepted, on the recommendation of your Lordships’ Delegated Powers and Regulatory Reform Committee, that the regulations should be subject to the affirmative resolution procedure.
When I responded to similar amendments proposed in Committee, I said that the regulations would be modelled on existing regulations on the conduct of referendums on local government executive arrangements and would be subject to consultation with the Electoral Commission. Therefore, we are not suggesting a completely different system for operating a referendum; we are merely suggesting changes, where necessary, for this particular type of referendum.
Given that the regulations will be given considerable scrutiny and will be subject to the approval of both Houses, I request that the amendment be withdrawn.
Lord McKenzie of Luton
My Lords, I do not think that we are going to agree on this issue. We think that the Bill is unduly prescriptive and unnecessary. Clearly, the local authority has to have a referendum if it is going to deal with its council tax levels or if it wishes to go above the designated level. It cannot avoid that. If it acted spuriously or arbitrarily, it could obviously be held accountable for that.
There is also the question, which we touched on in Committee, of what happens if the referendum is found to be flawed in some respect in due course. What happens to the declared outcome of that referendum? That is an adjunct to these provisions but, on the specifics of seeking the removal of this prescription, I think that I understand the Government’s position. I do not agree with it but I do not see that there is a great point in pursuing it further this evening and I beg leave to withdraw the amendment.
Earl Attlee
“(6A) No regulations under this section are to be made unless a draft of the regulations has been laid before and approved by resolution of each House of Parliament.”
Earl Attlee
My Lords, in its report, your Lordships’ Delegated Powers and Regulatory Reform Committee recommended that regulations made under new Section 52ZQ should be subject to the affirmative procedure.
These regulations will set out the rules for conducting council tax referendums, and I am content that the Bill should be aligned with this recommendation. To give effect to this recommendation, Amendments 196 and 197 will add new subsection (6A) to new Section 52ZQ of the Local Government Finance Act 1992, which is inserted by Schedule 5 to the Bill, and will amend Schedule 6 accordingly.
There are a number of further minor and technical amendments—Amendments 197A, 197ZA, 197ZB, 197ZC, 197ZD and 197ZE. These do not alter the policy effect of the council tax referendums provisions but they ensure that minor drafting errors are corrected and that the provisions operate appropriately in relation to Wales. If your Lordships desire, I can give more detail on these amendments, but I assure noble Lords that they are minor and technical. I beg to move.
Lord McKenzie of Luton
My Lords, I am content with the government amendments and have no points to raise in connection therewith. Although they are grouped together, I have not yet spoken to Amendments 196A and 196B. I do not know whether they will be called separately but I can support the government amendments as they stand.
Lord McKenzie of Luton
My Lords, this amendment takes us back to the point that we touched on earlier this evening: whether circumstances might arise where currently the Secretary of State can determine whether an authority will be unable to discharge its functions in an effective manner or will be unable to meet its financial obligations unless it has a so-termed excessive council tax increase. Our amendment would bring to that process the right to seek an independent assessment of those same criteria, so that there is a process, other than, or in addition to, the Secretary of State’s own engagement with that decision. That may, in part, provide a route for dealing with the issue that we discussed earlier concerning one-off events arising for local authorities.
My understanding is that these tests are to be judged in the extreme—only if there is a cataclysmic situation and not one somewhere along the spectrum before that. I do not think that that is what the wording actually says or what the natural meaning would be. However, I believe that an authority should have a right to an independent assessment when it is heading towards situations which are very serious for it and which, without an excessive council tax increase, it could not see its way through.
Earl Attlee
My Lords, similar amendments were withdrawn in Committee. I set out the Government’s position there and my noble friend Lady Hanham followed up in significant detail in her letter to the noble Lord, Lord Beecham, dated 19 July, a copy of which has been placed in the Library of the House. I shall not repeat all those points in detail, other than to reiterate that it would be inappropriate for an unelected and unaccountable person to make the decision, which will involve a judgment about whether local taxpayers should be entirely unprotected from excessive increases for a financial year.
My noble friend’s letter made it clear that authorities will be able to make the Secretary of State aware of any special circumstances applying to them during the process when council tax principles are formulated and finally determined. We talked about the possibility of having a separate category. If my right honourable friend got this decision wrong, clearly there could be very serious consequences if it turned out that a local authority was not able to carry out its functions, and there would be political repercussions for my right honourable friend. My noble friend also said the Government would keep an open mind about the context within which this power to disapply a council tax referendum would be used. With this in mind I would ask the noble Lord to withdraw these amendments.
Railways: Brighton to London Line
Earl Attlee Excerpts(14 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Berkeley
To ask Her Majesty’s Government whether they will safeguard Uckfield station and the rail track of the former Uckfield to Lewes route for possible future use to provide additional capacity to the main Brighton to London line.
Earl Attlee
My Lords, there are no current plans to issue safeguarding directions. However, the former Uckfield to Lewes route is safeguarded by both Wealden and Lewes district councils in their local plans.
Lord Berkeley
My Lords, I am very grateful to the Minister for that Answer. Is he aware that East Sussex County Council has plans to build a road across the formation outside Uckfield which would, of course, completely prevent the line being reopened? Furthermore, is he aware that British Rail Property Board, which, as the House will know, is being abolished, is trying to sell off all its surplus land, which includes the land of the old Uckfield station, which, again, is essential to the reopening of this line? Will he instruct the property board not to do that and to keep this and other similar pieces of land for future reopening?
Earl Attlee
My Lords, the noble Lord raised two points, the first of which is the road. One of the benefits of the proposed scheme is that it allows for the building of a bridge at a later stage should that be necessary. In fact, the scheme makes it easier to open the line, should that be necessary, because to the west of the proposed road crossing is a level crossing, which would be unacceptable if you wanted to open the railway.
The noble Lord asked about the BRPB and whether we would give it directions. No, we will not. It is not necessary. We are absolutely confident that nothing has been done that will compromise the ability to open the railway at some point in the future, should it be desirable to do so.
Lord Bradshaw
Will the Minister widen his consideration just beyond this line. There are a number of noble Lords who have in their areas of interest railway lines that could be reopened with advantage in the future. Surely the land concerned should be vested in Network Rail, which in July last year pronounced the Uckfield to Lewes line of strategic importance. There are many other such lines, of which one example is Oxford to Cambridge. This has been made almost impossible to open between Bedford and Cambridge because of building.
Earl Attlee
My Lords, it is important to ensure that disused railway lines could be reinstated if it was necessary. The difficulty with my right honourable friend the Secretary of State issuing safeguarding directions is that he can do so only if it is intended to reopen the railway line, not to make it possible. In addition, if he does give safeguarding directions, it can result in compensation to developers.
Baroness Whitaker
My Lords, does the Minister accept that his words “at some point in the future” are not very consoling to south-east commuters, of whom I am one, who regularly have to stand on overcrowded trains at certain times of the day?
Earl Attlee
My Lords, the noble Baroness makes an extremely important point. We all know that at peak periods, the commuter railway lines south of London are all running at peak capacity. One difficulty is that we cannot easily increase the capacity to the main line terminals. In the case of Uckfield to Lewes, one of the bottlenecks is East Croydon, so even if we increased capacity in that area on the south of the line, you would still encounter the bottleneck at East Croydon, and there is very little we can do about that.
Lord Dubs
My Lords, does the Minister agree that many people believe that the Beeching cuts represented an act of terrible vandalism in the previous century? There are local campaigns to bring back many small railway lines up and down the country that have fallen into disuse because of Beeching. Can the Government at least say that they will encourage local initiatives to help us restore those railway lines? They have environmental benefits and tourist benefits. If the Government were to say that that is their policy, many of us would be very grateful.
Earl Attlee
My Lords, it is great that there are local initiatives to reopen lines—to make my department think carefully about that—but there has to be a good business case.
Lord Dholakia
My Lords, does the Minister accept that Gatwick Airport is a very popular destination for those travelling between London and Brighton? The number of passengers has increased. Secondly, does not the maximum use of the line between Victoria and Brighton demonstrate the need to preserve an alternative method, especially when this expansion of the Brighton line is exhausted?
Earl Attlee
My Lords, I fully accept that the Brighton line is running at capacity, but this particular scheme will do nothing to relieve the bottleneck. For instance, the path between Sevenoaks and Orpington is just twin track and there are no more train paths available at the peak period.
Lord Rosser
Nearly all line reopenings that have taken place have proved successful and have more than met projected passenger figures. Can the Minister say whether other lines are being considered for reopening? In particular, what is the current position with the reopening of the Skipton to Colne route and the safeguarding of that route?
Earl Attlee
My Lords, the Skipton to Colne route is a little far from Uckfield and Lewes. I can point to the dualling of the Swindon to Kemble line, which is very expensive but will bring many benefits. I see the Leader of Her Majesty’s Opposition nodding her head enthusiastically.
Lord Berkeley
My Lords, I am very grateful to the Minister for the answers that he has given to various colleagues on my original Question. Lewes-Uckfield is in Network Rail’s route utilisation strategy, which was published last year, so a lot of people in Network Rail must think that there is demand there.
The Minister said that if the Secretary of State was asked to give some assurance or make some designation on certain routes, the developers might try to claim compensation. Given the time that it takes to develop any of these new railway lines—noble Lords have given different examples—surely there is a case for looking at the policy again so that routes can be safeguarded even for 10 or 20 years. It may take that time to get a new project off the ground.
Earl Attlee
My Lords, we do not think that that route will need to be opened within the next 20 years.
Airports: Heathrow
Earl Attlee Excerpts(14 years, 5 months ago)
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Lord Spicer
To ask Her Majesty’s Government whether they expect Heathrow airport to lose its status as the world’s busiest international airport; if so, to which airport; and when.
Earl Attlee
My Lords, last month the Department for Transport published its UK aviation forecasts to support the development of a new policy framework for UK aviation, which supports economic growth and addresses aviation’s environmental impacts. It is forecast that Heathrow will have 85 million terminal passengers in 2030 compared with 65.7 million in 2010. The department does not forecast demand for airports outside the UK.
Lord Spicer
My Lords, when I was Minister for Aviation, Heathrow was the number one international airport in the world and Gatwick was number four, and together they provided the international crossroads and hub for the whole world. Does my noble friend share my concern—based, if for no other reason, on economic growth—that the pre-eminence of Heathrow should now be challenged by the likes of Schiphol and Frankfurt because of the capacity constraints that have been set on it?
Earl Attlee
My Lords, I understand the point that the noble Lord makes, but there are also airports in the Far East which will probably overtake Heathrow eventually. We want to see a successful and competitive aviation industry which supports economic growth and addresses aviation’s environmental impact. Aviation should be able to grow, but to do so it must play its part in delivering our environmental goals and protecting the quality of life of local communities.
Lord Soley
Is not the answer to the Question of the noble Lord, Lord Spicer, really that, in future, South American flights will go to Madrid, Indian and Chinese flights will go to Frankfurt and Schiphol and the rest will go to Paris? If the Government are determined to advertise that Britain is closed for business, I can hardly think of a better deterrent than the current aviation policy, with the possible exception of the reintroduction of biplanes.
Earl Attlee
My Lords, the noble Lord will understand that we cannot arrange for every flight coming into Europe to land at Heathrow.
Baroness Kramer
My Lords, the Minister will be aware of the recent report by Airport Watch, which demonstrates that Heathrow and London dwarf every European rival in number of flights to the world’s main business destinations. Therefore, would he agree that in order to keep its place, Heathrow should focus on how it treats its passengers and perhaps the UK Border Agency could change its policy so that people with non-UK passports can get through in less than one and a half hours, which was true at terminal 3 two weeks ago?
Earl Attlee
My noble friend makes extremely important points which were all picked up by the South East Airports Taskforce. She mentioned the UK Border Agency. We are aware of scope for improvement and UKBA is working on that. She will also be aware of other things that will be happening as a result of the South East Airports Taskforce’s work, which will improve the experience for passengers.
Lord Berkeley
My Lords, would it not be better if we concentrated on service quality at airports and did not go for the busiest? Is the Minister aware that Beijing is soon to have another runway, which will give it a total of 120 million passengers a year, and would it not be much better for the environment if we concentrated policy in this country on the medium and shorter-term passengers being able to travel by high-speed rail and ordinary rail?
Earl Attlee
My Lords, the general thrust of what the noble Lord says is very good. Interestingly, I went to Gatwick airport last week and saw the effort being put towards improving the passenger experience. No doubt I shall be going to Heathrow shortly.
Lord Dixon-Smith
My Lords, the present situation in our airports was predicted 45 years ago, I think. There was a very reasonable proposal to put an airport in the Thames estuary, which would remove the constraints that are inevitable anywhere west of London. Perhaps my noble friend might care to comment on that possibility, as it is being raised again. At least, if that strategic decision were taken, there would be the possibility of a long-term solution.
Earl Attlee
My Lords, we welcome all these suggestions. The mayor’s input and suggestions will be considered alongside the many other contributions to the debate about our future airport aviation policy.
Lord Palmer
My Lords, could the noble Earl try to persuade his colleagues in the Treasury to look again at this terrible problem of air passenger duty, which is one of the reasons that Heathrow has lost its premier slot in the world?
Earl Attlee
My Lords, the noble Lord will know that air passenger duty is under review. However, it is a matter for the Treasury, as well as the Department for Transport. We are giving it careful consideration and will make an announcement in due course.
Lord Mawhinney
My noble friend has already made it clear that this Government have made their decision about Heathrow. However, this Government also talk about the need for economic growth as well as environmental sustainability. If the next Government and those after also believe in economic growth, would my noble friend recommend that they build a third runway at Heathrow or a new airport in the estuary?
Lord Davies of Oldham
What is the Government’s transport policy really meant to contribute to economic growth? On rail, it seems a question of asking passengers to pay more; on roads they cut the funding that subsidises the cameras that keep our roads safe; and on aviation they have taken the negative decision against the third runway. What exactly are the Government’s plans for the aviation industry to make a contribution to economic growth?
Earl Attlee
My Lords, we will have to wait and see when the aviation policy framework document is published next year as a draft.
Localism Bill
Earl Attlee Excerpts(14 years, 5 months ago)
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Lord True
My Lords, I declare an interest as leader of a London borough. I thank my noble friend the Minister for the moves that have been made to address some of the legitimate concerns put forward at the previous stage. Having said that, my noble friend Lord Jenkin of Roding eloquently put the case for further consideration of some of the minor details—some of which are not so minor—in clarifying how this will work. Rightly or wrongly, there is suspicion among leaders of London boroughs about the risk of the mayor imposing policies on areas of London. Further safeguards and assurances would be desirable in that respect.
The other brief point I wish to make is that, as my noble friend Lord Jenkin said, recourse to the London Assembly, with all great respect to that body, is not a fully local response. In the Bill we already have to contend with the fact that regional government is continuing in London and that the local element of the Bill is somewhat deficient in London. Geographically elected members of the London Assembly represent quite large areas—less local than London boroughs—and are less urgently concerned through wards with local affairs. The London Assembly Members who are elected under proportional systems do not have that kind of local connection.
I hope that my noble friend, in considering the amendment of the noble Lord, Lord Jenkin, will tell us that he will be able to consider further the noble Lord’s points before the next stage.
Earl Attlee
My Lords, this group of amendments addresses concerns raised about borough councils’ representation on an MDC’s board and committees. I am grateful for all noble Lord’s contributions. We have thought carefully about this and have tabled government amendments.
Amendment 97 would ensure that a borough council, including for this purpose the Common Council of the City of London, whose area forms part of an MDC, will have an automatic seat on the board by requiring that the mayor must exercise his power to appoint members to the MDC so as to secure that the members of an MDC include at least one elected member of each relevant council. Such appointments will still be subject to the same safeguards as other appointments. Amendment 99 would allow the mayor to remove a borough council member from an MDC’s board if that member ceases to be a borough member and the mayor wishes to appoint another member of that borough in the original member’s place. Amendment 102 is a consequential amendment to rules about the validity of proceedings and simply ensures that the absence of at least one elected member of each affected borough council will not affect the validity of an MDC’s proceedings.
Amendment 100 removes the stipulation that the majority of members of a committee or sub-committee of an MDC must be members of the MDC. These are significant concessions. My noble friends have suggested in Amendment 98 that one-sixth of the members must be from the boroughs, but that is not necessary. For example, with the proposed Olympic Park Legacy Corporation the four borough members would be likely to constitute rather more than one-sixth of the board. On that basis I ask my noble friends to withdraw their amendment. The House may recall the amendment the noble Baroness, Lady Grey-Thompson, tabled for Committee, which was not debated. That sought to provide that an MDC’s committees and sub-committees should not, as is currently the case, require a majority of MDC members. I am delighted to say that we have brought forward Amendment 100, which secures the aims of the noble Baroness.
Amendment 101, tabled by my noble friend Lord Jenkin of Roding and the noble Lord, Lord McKenzie, also relates to membership of committees and sub-committees but seeks to prescribe membership. It states that there should be at least one elected borough representative on both committees and sub-committees from those boroughs whose areas are affected by a designated mayoral development area, and, where those committees are concerned with planning, that at least half of the membership should comprise representatives from affected boroughs. I hope the House will agree that the existing provisions regarding committees and sub-committees, bolstered by Amendment 100, will give an MDC maximum flexibility over the make-up of its committees and sub-committees. I hope that deals with the point raised by my noble friend Lord Campbell of Alloway. For example, an MDC will be able to appoint one or more relevant borough council members to its planning committee and, should it wish to do so, have a majority of non-MDC members on that committee.
I turn now to Amendments 96 and 103 which address a borough’s comments on, first, the proposed designation of a mayoral development area and, secondly, designation of an MPC as the local planning authority. It is clearly right that an affected borough council must be consulted on both these issues, just as it is right to offer the opportunity to the London Assembly, relevant Members of the other place and other statutory consultees as the Bill provides. It is also the case that the mayor will be obliged to consult affected borough councils and other statutory consultees were he to propose that an MDC should offer business rate discounts. The Bill provides that, should comments be made by the London Assembly and the mayor not accept those comments, he is obliged to publish a statement giving reasons for that non-acceptance. Amendments 96 and 103 would extend that requirement to comments of the borough councils. However, there is no need to do this. As I have said, an affected borough council must be consulted by the mayor, so it could make its views known to him by that route. But a borough council could also make representations to its London Assembly constituency member who, in turn, could feed those views to the Assembly as a whole, as a result of which the Assembly could, if it wished, relay those representations and any of its own to the mayor. I suggest that this is a sufficient level of scrutiny.
I would ask noble Lords to withdraw their amendments and accept Amendments 97, 99, 100 and 102 in their place.