Business of the House

Earl Howe Excerpts

Tuesday 9th May 2023 Lords Chamber

Moved by

[Earl Howe]

That Standing Order 38(1) (Arrangement of the Order Paper) be dispensed with on Wednesday 10 May 2023 to enable debate on the second reading of the Illegal Migration Bill to begin before Oral Questions that day.

[Earl Howe (Con)]

My Lords, I beg to move the Motion on the Order Paper in the name of the Leader of the House.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I think this is a debatable Motion.

[Earl Howe (Con)]

My Lords, I am more than happy to hear from the noble Lord in a second. Although I principally rise to move the Motion, I should like to seek the indulgence of the House on one matter before I briefly address what the Motion is for.

Your Lordships have just returned from the Coronation Recess. Many of the staff of your Lordships’ House did not enjoy the weekend off. As many of us know, they were in this building, supporting noble Lords who were attending the Coronation events. I know that our tireless doorkeepers were here from the early hours of Saturday to assist with robes, as were those providing the excellent catering and those keeping us all safe. While it is always invidious to pick out individuals, I pay especial tribute to Black Rod’s office. During the last weeks, its staff have dealt with all sorts of anxious queries with their characteristic endless patience. I am sure that all noble Lords will join me in thanking all the staff involved for their dedication.

[Noble Lords]

Hear, hear.

[Earl Howe (Con)]

I turn briefly to the Motion. Tomorrow, the House will debate the Illegal Migration Bill. This is a flagship piece of legislation and 87 noble Lords have indicated their desire to speak. To allow the maximum possible time for debate, the usual channels have agreed to sit at 11 am. The House will consider the Second Reading of the Bill between 11 am and 2 pm, when we will adjourn to allow Members to attend group meetings. The House will resume at 3 pm. After Oral Questions and any Private Notice Questions, we will return to the Bill. We will break after 6 pm to consider Commons Amendments to the Higher Education (Freedom of Speech) Bill. Once this is complete, we will return to the Bill until the rise of the House. These extra hours have allowed the usual channels to agree to a six-minute advisory speaking time, which I hope will allow all sides of the House to express their positions satisfactorily on this important Bill. I beg to move.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, it always the case that when there is a difficulty for the Government, the noble Earl, Lord Howe, is put forward to deal with it, because we all love him so much. The Government think they can get away with anything when they put the noble Earl up. However, I associate myself with the remarks that he made in relation to all the staff; I am sure everyone in the House would do that. It is one of the reasons I am concerned that we are going to meet at an early hour tomorrow, with this whole helter-skelter of activity during Wednesday.

Ideally, if the Government had not got their legislative programme into a total mess—we all know it is a total mess, with Bills being brought in, taken out again and amended, so we do not know where we are—and if we were dealing with this properly, as we ought to be, the obvious thing would be to have two days for Second Reading. Many Members want to speak in the debate—87, I think the noble Earl said—but then we could deal with it properly. After all, the Illegal Migration Bill is a very important Bill. As one of my colleagues said, they are not sure whether “illegal” refers to migration or to the Bill. I think it is the Bill.

The noble Earl, Lord Howe, has been put forward. The noble Lord, Lord True, would make a good case but he is not as persuasive—not as gentle and kind—as the noble Earl. This is going to happen again and again unless we take a firm stand now. I hope we get an assurance from the noble Earl that it is not going to happen again and again, disrupting our Wednesdays, and maybe even having us meeting early on days when those of us who do not live in or near London have difficulties. I hope we will have a guarantee that we will not have this again and again. The only reason we are having is it that the Government’s legislative programme is in absolute disarray, and we should not be made to suffer for it.

[Lord Collins of Highbury (Lab)]

My Lords, I want briefly to add my comments to those of the noble Earl regarding the staff on Saturday. Not only did they carry out their duties well and properly but they were friendly and courteous and took extra steps to make the whole day enjoyable. I join with the noble Earl in his remarks.

Turning to my noble friend’s contribution, unfortunately my noble friend Lord Kennedy, our Chief Whip, cannot be here, so I am the friendly face. I accept the comments of my noble friend Lord Foulkes but we have agreed on tomorrow. In terms of a precedent, I hope the noble Earl will take my noble friend’s comments on board for future occasions.

[Earl Howe (Con)]

My Lords, I certainly take the comments of the noble Lord, Lord Foulkes, on board. There is always a judgment to be made, when the list of speakers is as long as it is tomorrow, as to whether one should seek to divide a Second Reading up into more than one day and thereby have a breakage by way of an adjournment, which in itself is never very satisfactory, or to do as we have done, which is to attempt to make a single debate fit into a single day. It was the general feeling in the usual channels that this is the right outcome in this instance, particularly as it will allow a reasonable speaking time for noble Lords and a reasonable rising time as well.

Motion agreed.

Levelling-up and Regeneration Bill

Earl Howe Excerpts

Committee stage
Wednesday 3rd May 2023 Lords Chamber

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, the noble Baroness, Lady Young of Old Scone, has introduced these two amendments very clearly. I will be brief.

The green belt is seen by most of the population as an excellent example of green space in which to relax and enjoy the fresh air, and a place where they can, if they are quiet and careful, spot some of our indigenous wildlife. As the noble Baroness, Lady Willis of Summertown, said, just the sight of green space is good for us. However, all is not well with the green belt. The percentage of green belt in England that also has a statutory nature designation, such as SSSI, SPA/SAC, LNR or NNR is only 5.44%; the percentage that also has a statutory landscape designation, an AONB in England, is 9.26%; and the percentage of the green-belt land in England without either statutory landscape or nature designation is 86.67%. This last figure takes account of the same areas with both landscape and nature designations. It is easily seen that little of the green belt has any real protection. I am grateful to Wildlife and Countryside Link for this information.

The green belt should be a community asset. It has been enjoyed for generations. During my childhood I lived in Bristol, on a new housing estate erected in haste to replace those dwellings bombed during the war, when there was a desperate need for new housing. Our back garden ran up to the edge of the green belt, as did the gardens of our neighbours. In Bristol as children, we could play games, have impromptu picnics, play hide and seek and build dens in the scrub woodland that went around the corner and covered a quarter of the area. In the winter, we could take our tin trays and toboggan down the snowy slopes. In summer, there would be bees buzzing around the clover flowers, slow-worms on the edges of the scrub woodland and mice scuttling around under the bushes; birds would steal blackberries in the autumn. The green belt is an asset that needs to be preserved for future generations of children to enjoy in both inner-city and rural areas, and to increase biodiversity, as the noble Baroness, Lady Willis, said.

Amendment 295 comprehensively defines the purpose of green belts. I will not detain the Committee by repeating the list, with which I completely agree. Where green belts are preserved and accessible to local communities, they improve the physical and mental health of those communities. Amendment 312E in the name of the noble Baroness, Lady Hayman of Ullock, and introduced by the noble Baroness, Lady Taylor of Stevenage, requires the Secretary of State to report on legislation in relation to green-belt land and to lay this report before Parliament. The noble Baroness, Lady Willis of Summertown, has spoken eloquently on this especially important amendment, and I support her comments and the aims and ethos of Amendment 312E.

I accept completely that there are competing needs on green-belt land around cities, but we need to find different ways of preserving the green belt and providing housing. Not all housing should be in the cities: as many people will know, I have long been an advocate of a rural strategy that makes absolutely certain that there is organic growth of housing in rural areas. That said, the noble Lord, Lord Lansley, has given some excellent examples of the benefits of reviewing the green belt. The green belt and the widening of its objectives are important and should be brought into statute and given teeth, as has been said.

[Earl Howe (Con)]

My Lords, it is a pleasure to respond to the noble Baroness, Lady Young of Old Scone. She and I go back a long way to the days when I was a Minister in MAFF and she was chief executive of the RSPB. A photograph of a stone curlew used to sit on my ministerial desk. I pay tribute to her as a staunch defender of the natural environment over many years, including in her current role as chair of the Woodland Trust.

I turn to her Amendment 295, alongside Amendment 312E in the name of the noble Baroness, Lady Hayman of Ullock. Amendment 295 seeks to transpose the existing purposes of green belt land from the National Planning Policy Framework into statute. It would also add new purposes in regard to climate change, biodiversity, natural capital and public access. Amendment 312E seeks to probe the possibility of introducing legislation in relation to the green belt.

Although I entirely understand the sentiment behind these amendments, the government view is that these matters are best dealt with in national planning policy rather than legislation. National planning policy already sets out the purposes of the green belt. Such land is vital for preventing urban sprawl and encroachment on valued countryside, while enabling towns and cities to grow sustainably. National planning policy includes strong protections to safeguard this important land for future generations and these protections are to remain firmly in place.

For example, national policy is already clear that the green belt can and should support public access and that opportunities for greening should be taken. The noble Baroness, Lady Willis of Summertown, mentioned that there is already provision to say that a local authority should not propose to alter a green belt boundary unless there are exceptional circumstances and it can show, at examination of the local plan, that it has explored every other reasonable option. That, I suggest, is a strong protection.

Another example is our recent consultation on reforms to the National Planning Policy Framework. We proposed new wording on green belt boundary policy, as mentioned by my noble friend Lord Lansley. Our proposed changes are intended to make clear that green belt boundaries are not required to be reviewed and altered if this would be the only means of meeting objectively assessed housing need over the plan period. We are currently analysing consultation responses. He questioned the utility of that change. My understanding is that in the current wording of the framework there is a straightforward permissive power for local authorities with regard to green belt boundaries. The wording is not slanted either way. We think it could be beneficial to slant it in the way the consultation proposes. I do not agree that it would absolve local authorities from achieving sustainable development.

Incidentally, my noble friend Lord Lansley asked about the existing boundaries within the definition of national development management policy. We have been clear about what aspects of current policy would be a national development management policy. The decision-making parts of current policy, such as that on the green belt, would form the basis of NDMPs. The Government have also committed to consulting on amendments to national planning policy to reflect the commitment in the levelling up White Paper to bring forward measures to green the green belt, so that it can better fulfil its potential as land of scenic, biodiversity and recreational value, as well as checking urban sprawl.

Some powerful points have been made in this debate, not least by the noble Baronesses, Lady Young of Old Scone, Lady Taylor and Lady Willis of Summertown, about the green potential of green belt. We are working with Defra, Natural England and others to consider how local nature recovery strategies can benefit green belt and other greenfield land to improve people’s access and connection to nature, and to maintain and restore habitat, wildlife populations and woodland. All this is work in progress and I do not want to pre-empt the outcome of our consultation on the detail of the green belt policy in the framework.

I appreciate that the noble Baroness, Lady Young, was hoping for greater certainty at this point, or at least the prospect of it; however, I cannot provide that today for the reasons I have given. Nevertheless, I hope that what I have said will give her enough reassurance that the Government are committed to consulting on giving the green belt a greener purpose and that she will be content to withdraw her amendment on that basis. Equally, I hope that the noble Baroness, Lady Taylor, will not move her amendment when we reach it.

[Baroness Young of Old Scone (Lab)]

I thank all noble Lords who have spoken in this important debate. At least, I think I thank them all. There are one or two I probably do not agree with. The noble Lords, Lord Lansley and Lord Young of Cookham, amply showed how the polarisation argument about green belt is quite corrosive. It cannot be either/or; it has to be both. We have very little land in this country and we are asking more and more of it, so we have to find ways to meet all the needs for land effectively. That is the subject of another amendment that I have tabled to the Bill. In particular, I hope I misunderstood the noble Lord, Lord Young of Cookham, who seemed to imply that if green belt did not meet the broader criteria, other than just urban sprawl reduction, that was a good reason for building on it. In my view, we should be asking: how do we get this land, which is primarily for the purpose of restraining urban sprawl, also to do other things while it is at it?

--- Later in debate ---

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, this group of amendments deals with tree preservation orders and would extend their scope and strength. TPOs are an important tool to support tree protection and need to be strengthened in order to be effective. The noble Baronesses, Lady Young of Old Scone and Lady Taylor of Stevenage, have spoken eloquently to the amendment.

Despite a well-established tree protection system, most of our ancient trees have no legal protection. Perhaps now is the time for ancient trees to have the same protection as our old buildings and other endangered wildlife. The use of TPOs around the country is very patchy: some councils, such as City of London and Blackpool, have fewer than 40 TPOs in place, whereas around 50 councils report over 1,000 TPOs, including eight with over 2,000 TPOs. Trees are an essential asset, especially in urban areas, and need to be treated with greater respect.

The amendments in the name of the noble Baroness, Lady Young of Old Scone, cover: penalties for non-compliance in Amendment 296; the meaning of “amenity” in Amendment 297; TPOs being in the public interest in Amendment 298; removing the exemption of dead and dying trees in Amendment 299; and, lastly, consultations on TPOs in Amendment 301. I support all of them. Where trees have died or are dying, I support, in general, their retention. As such, they will become homes for wood-boring insects, and nest sites for birds and smaller mammals. I do, however, add the caveat that where a tree that has died has been assessed as likely to be a danger to the public, perhaps some of the upper branches should be removed to make it stable and the lower limbs and trunks left to decay naturally.

How often have we seen councils announce that they are cutting down trees to make way for some new road improvement scheme or other facility? The public, quite rightly, rise up in protest. How much better it would be if all councils and authorities, where they are planning schemes, consult with the public and take the public with them. Perhaps with a little tweaking, their plans could be amended to ensure the retention of trees, whether ornamental or traditional species.

Trees are the green lungs of our urban and inner-city areas. They provide roosts and nesting sites for birds; their branches provide shade and a cool breeze on a summer’s day; and they hold 30% of carbon storage. We fully support this suite of amendments and look forward to the Minister’s comments.

[Earl Howe (Con)]

My Lords, I thank the noble Baroness, Lady Young of Old Scone, for proposing this group of amendments, all of which are related to the protection of trees. I should start by saying that as a member of the Woodland Trust, and as an owner of woodlands myself, which are interests I should declare, I have sympathy with the spirit of these amendments. I shall, however, attempt to persuade the noble Baroness that they are unnecessary or, in some cases, undesirable.

First, Amendment 296 seeks to make all offences of contravening a tree preservation order or tree regulations subject to an unlimited maximum fine. I understand the sentiment behind this proposal. It is right that there needs to be a credible threat of significant fines if we want to protect the trees that we most cherish. However, I think there is an important distinction between deliberate damage to a tree, leading to its total destruction, and, for example, the loss of a single branch, where the tree itself survives. Our current approach to fines recognises this difference. Wilful damage leading to the destruction or likely destruction of a tree is punishable by an unlimited fine, and there are examples of the courts handing down significant fines. Less serious offences—for example, where someone prunes a tree and is perhaps unaware that it is protected by a tree preservation order—are subject to a lower maximum fine of up to £2,500.

I firmly believe that the current approach is the right one. It is proportionate and fair, and provides a clear steer to the courts. For these reasons, I am afraid I am not able to support this amendment.

I turn to Amendments 297 to 299. Amendment 297 would provide a definition of “amenity” for tree preservation orders. Amendment 298 would make it clear that local planning authorities may utilise tree preservation orders proactively and where there is no indication of an intent to undertake works to a tree. Amendment 299 would maintain protections for dead trees and ensure that they remain eligible for tree preservation orders.

The Government recognise the need to protect and enhance biodiversity through the planning system, and trees are central to this. I agree with the noble Baroness that tree preservation orders are important tools. Local planning authorities may now use them, as she recognised, to protect selected trees and woodlands if their removal would have a significant negative impact on the local environment and its enjoyment by the public. This gives local planning authorities scope to protect the trees important to their communities, whether for amenity or for wider reasons.

The making of tree preservation orders is discretionary and local planning authorities may confer this protection where there is a risk or an emerging risk of damage to trees. So I argue that it is unnecessary to make an amendment to the Town and Country Planning Act 1990 to ensure their proactive use. Perhaps the fact that I am putting that on the record will be helpful.

I turn to the definition of “amenity”. There is already a wide definition within the tree preservation order regime of the concept of amenity. The meaning of amenity is deliberately not defined in statute, so that decision-makers can apply their full planning judgment to individual cases. The term is, however, already well understood and applied to a wide range of circumstances, with the planning practice guidance already being clear that the importance to nature conservation or responding to climate change may be considered.

Changing the meaning of amenity in the way proposed could lead to uncertainty for considering tree preservation orders and risks unintended consequences more generally in the planning system. Tree preservation orders protect living trees; they do not protect dead trees. It is important that dead trees are exempt from orders, as urgent works may need to be taken where dead trees pose a risk. In particular, for group and woodland tree preservation orders, diseased trees can pose biosecurity risks. Ash dieback is a classic example in which you absolutely have to be proactive. I speak from very recent personal experience. Preventing the spread of disease from dying trees is often very important. There can often also be an urgent need to protect the public, as the noble Baroness, Lady Bakewell, said.

Looking at the wider picture, tree preservation orders are only one of the tools we have to ensure these invaluable assets are protected. For example, our already strong protections for biodiversity in the planning system give consideration to the preservation and value of trees. We are also taking significant further steps to improve outcomes for biodiversity in the planning system through the 10% biodiversity net gain requirement in the Environment Act 2021. This will make trees of value to development, given the significant biodiversity value they bring. This will help ensure that trees are seen as integral to development as opposed to a barrier to it. Therefore, while I appreciate the spirit of these amendments, I am not able to support them, bearing in mind the breadth of protections that trees are already afforded. I hope I provided enough reassurance for the noble Baroness not to move these amendments when they are reached.

Amendment 301 seeks to introduce a requirement for public consultation prior to a local planning authority deciding to revoke a tree preservation order. The existing revocation process, as set out in the tree preservation regulations, is long established. Among other matters, it requires a local planning authority to notify persons interested in the affected land that an order has been revoked.

While the current legislation does not require public consultation, in practice I expect that local planning authorities would want to engage and consult with interested parties before reaching their decision. Our planning practice guidance makes clear that this option is open to them. The current approach to the revocation of tree preservation orders is squarely in line with revocation processes in other parts of the planning system, for example, where a local listed building consent order is revoked.

In summing up, I hope I have provided reassurances to the noble Baroness, Lady Young, and that she will be content to withdraw Amendment 296 and not move her other amendments in this group when they are reached.

[Baroness Young of Old Scone (Lab)]

My Lords, I thank noble Lords who have taken part in this debate, and I will just make a couple of points to the Minister.

The mood music around TPOs is really important. There is guidance, as the Minister has said, on revocation, but its implementation is very patchy across the country. The definition of who is interested in the land can be interpreted very narrowly so that the folk who are clearly interested—local residents on a wider basis—are often not informed about revocations. That is just one example of where these amendments intend to demonstrate that the Government are serious about TPOs and want to create a different mood music around them.

In terms of dead and dying trees, local authorities currently move very rapidly to remedy, for example, trees that are coming into a dangerous condition and need to be felled. Those of us who have got ash dieback know that they can move very rapidly on that. I do not think there is a real problem around saying that TPOs must be strengthened because there is disease. What we want for TPOs is a presumption for retention of trees, rather than the possibility of both revocation and removal of dead and dying trees. I am obviously not of the same mind as the Minister.

I will make a slightly barbed political point. I do not know whether there are any friends of the Conservative leader of Plymouth council in the Chamber. He must be rather regretting that he was not strenuous about the observation of tree protection orders, since he lost his job over the recent debacle of the illegal felling of trees in Plymouth. So I urge the Government to recognise that the public, bless their hearts, have the bit between their teeth on this. Unless the Government demonstrate that they recognise that there is a point, and unless they make some movement towards finding ways of enabling the public to be more effectively involved and to feel that TPOs are a stronger protection, this could happen again and again.

[Earl Howe (Con)]

I am grateful to the noble Baroness for giving way. It might be helpful if I write her a letter to follow up this debate, picking up some of her points, now and in her opening speech, that I may not have picked up in my response.

[Baroness Young of Old Scone (Lab)]

I thank the Minister for that, and I look forward to his letter. I beg leave to withdraw the amendment.

--- Later in debate ---

[The Lord Bishop of St Edmundsbury and Ipswich]

My Lords, I too add my support for the amendment from the noble Baroness, Lady Young, and pay tribute to the work she has done in this area. I declare an interest as someone who grows trees and has contributed to the green canopy project in Suffolk. We managed to plant 1.3 million trees under that auspice, which was more than a third of the national total. We were completely committed through various networks of people to this and, indeed, to the preservation of ancient woodlands.

Two things have struck on listening to the discussion of the various amendments on this issue. First, I was struck by the statement from the noble Baroness, Lady Young, about the presumption of retention. That led me to think that there are some underlying principles which might join up our planning, environmental aims and building aims, where clearly things are in conflict. If we could establish some overarching principles, we might be able to work more closely together on achieving what we all desire. A specific example concerning ancient woodlands is Hintlesham Woods in Suffolk. which was under threat from the National Grid, which was going to put pylons across it. Working together, the Suffolk Wildlife Trust, the Woodland Trust and the RSPB engaged in a process whereby the National Grid had the consultation it should have had and shifted the route, so that it bypassed the woodland and the woodland was saved. That would have happened as a matter of course if the presumption for consultation had been enshrined.

I fully support this amendment, because we need to ramp up the protection for trees across all these areas for the sake of our environment, and to do so in consultation with our planning aims and environmental aims.

[Earl Howe (Con)]

My Lords, Amendment 300 in the name of the noble Baroness, Lady Young of Old Scone, would require within three months of the Bill achieving Royal assent the implementation of the Government’s commitment to amend the Town and Country Planning (Consultation) (England) Direction 2021 so that local planning authorities must consult the Secretary of State if they want to grant planning permission for developments affecting ancient woodland. Let me first make clear to the noble Baroness and to all noble Lords who have spoken that we are committed to reviewing the direction to require authorities to refer applications if they are minded to grant permission for developments affecting ancient woodland.

As the noble Baroness knows, the direction is a strategic tool aimed at ensuring the right applications are captured. Noble Lords will be aware of consultation which has taken place recently on changes to the National Planning Policy Framework, which I mentioned earlier. It may be helpful for context if I say that there are other requests being made for inclusion in the direction. We really need to amend it in a managed way, capturing all the issues to provide clarity and stability to authorities, developers and others.

The noble Baroness is a resolute campaigner on these issues, and, indeed, referred to herself “banging on” about them in the House last year. She does so extremely effectively and long may that last, but in this instance I cannot give my support to the hard deadline she seeks, as it is important that the direction be updated in a coherent and managed way. I realise I am asking the noble Baroness to be patient for a while longer, but I hope she will be content to withdraw her amendment on that basis.

[Baroness Young of Old Scone (Lab)]

I thank noble Lords for the support they have shown for this amendment. We have to remember that less than 2% of ancient woodland remains in this country. We are right on the brink, being down to such a small number of fragments that are, in many cases, increasingly unviable, so it is a real and pressing issue. The Minister has asked me to have patience. I am glad he was able to restate the commitment to the amendment to the direction, but my attitude to being asked to be patient will depend on how long that patience has to last. I wonder whether he can say how long it will have to last, because it has lasted now for a year and a half. If it were another year and half, I think I might have run out of patience. I do not know if I can press him now to say when the amendment might emerge. I very rarely read in Hansard how wonderful the Government have been, but I would commit to saying how wonderful they are if the Minister can tell us when this change to the direction might happen.

[Earl Howe (Con)]

My Lords, nothing would give me greater satisfaction than to be able to tell the noble Baroness but, having asked this question myself, I fear I cannot give a definite timescale at the moment. I am sorry for that.

[Baroness Young of Old Scone (Lab)]

On that basis, I do not think I can guarantee not to come back on Report with something on this, but in the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Twycross (Lab)]

My Lords, I declare an interest as London’s Deputy Mayor for Fire and Resilience and chair of the London Resilience Forum. I just want to say, briefly, that I completely agree with my noble friend Lord Kennedy, particularly on Amendment 504E. I got quite excited when he showed it to me. If an amendment can be described as exciting, this one would match that criterion.

An office for risk and resilience would provide a focus and play an invaluable part in ensuring that this country is better prepared to deal with the many risks we face, not least in relation to climate change. If we need to do anything through this legislation, it is to ensure that the buildings and infrastructure being built now are still fit for purpose in a decade, two decades or 50 years’ time. At the moment, we cannot guarantee that this is the case. We should note that resilience is particularly relevant to the concept of levelling up, as inevitably those individuals or institutions with better resources are inherently more resilient. I urge the Minister and the Government to consider this amendment seriously.

[Earl Howe (Con)]

My Lords, this group of amendments concerns chief planning officers, local authority resources and capacity, and risk and resilience. I welcome the discussion that has taken place on these important issues.

Amendment 312B, in the name of the noble Baroness, Lady Taylor, and spoken to by the noble Lord, Lord Kennedy, would require the Secretary of State to publish guidance for local authorities on the appointment of chief planning officers. I assure noble Lords that the Government recognise the importance of effective leadership in local planning authorities—someone who can raise the profile of planning in local government, drive a strong vision for what places aspire to and ensure that this is integrated across council functions.

However, to do this effectively we need a flexible approach that recognises the circumstances of individual authorities. In that context, issuing guidance for all local planning authorities on the appointment of chief planning officers would be undesirable. Instead, we would encourage local authorities to fill these leadership roles in a way that best suits their approach to tackling their areas’ challenges and priorities.

Our approach is in keeping with the existing legislative framework. Excluding a select number of statutory posts, Section 112 of the Local Government Act 1972 allows an authority to

“appoint such officers as they think necessary for the proper discharge by the authority”

of its functions and for carrying out commitments on behalf of other authorities. That is surely right; it should be a matter for their discretion. Having said that, I shall refer in a moment to the wider programme of support that we are developing to ensure that local planning authorities have the skills and capacity that they need to create better places and provide a good service to applicants.

Levelling-up and Regeneration Bill

Earl Howe Excerpts

Committee stage
Thursday 20th April 2023 Lords Chamber

[Earl Howe (Con)]

My Lords, a range of questions have been asked on this group of amendments. It might be helpful if I begin with the question posed by the noble Baroness, Lady Pinnock, and set out why the Government are bringing forward this measure in the Bill.

Local people can, quite understandably, be resistant to new development in their area if they have little say over what gets built and it does not reflect their preferences. However, many of us know that residents are often more supportive when they can play a direct role in shaping that development, including what it looks like. The Government are looking to deliver more good quality homes in the right places. To help achieve that, we want to encourage some intensification of development in existing residential areas, particularly areas of low density in towns and cities where this has the support of residents.

Clause 99 introduces street vote development orders, which will provide residents with a new opportunity to take a proactive role in the planning process and bring forward the development that they want to see on their streets. This new route to planning permission will support wider local efforts in bringing forward developments of new or more spacious homes in places where they are needed most. Amendments 248, 251, 253A, 254 and 257 all deal with how street votes will fit with the wider planning system and related requirements, and I propose to address them as a group.

In moving Amendment 248, my noble friend Lord Young of Cookham emphasised the desirability of achieving maximum certainty in the planning system. The first thing for me to say is that we want to create a predictable system where residents have a high degree of certainty on what development is likely to be permissible before they prepare a street vote development order proposal and that we want to make the system accessible and easy to use. To achieve that, we propose to do things a bit differently with this new tool. We want to depart from existing practice, which relies heavily on the interpretation of local policies to determine whether a development is appropriate, and move to an approach where proposals are assessed against more precise requirements which will be prescribed in regulations. These prescribed regulations will include what type of development and what type of uses are allowed, as well as detailed design requirements such as floor limits, ceiling heights and the extent to which a plot can be used.

We want to test this through consultation ahead of drafting the secondary legislation. These requirements will provide residents with that certainty and ease of use and be designed to ensure that street votes development is high quality and that any local impacts are managed. While I understand the intentions behind my noble friend’s amendment, it would, if agreed, prevent us applying this new approach and therefore I am unable to support it. I emphasise that this is an issue that we intend to consult on as part of a wider consultation on the detail of the measure to ensure that a wide spectrum of views is considered and that the policy delivers for communities.

I turn next to Amendment 251 in the name of the noble Baroness, Lady Hayman of Ullock, which was spoken to by the noble Baroness, Lady Taylor. Where there is a street vote development order, we of course wish to see the resultant impacts of construction on residents and the local environment minimised. The powers we are seeking would allow the Secretary of State to prescribe in regulations the documents that must accompany a street vote proposal. They could potentially include a code of construction practice. We intend to consult on what these requirements should be as part of the wider consultation on the detail of the measure. Setting out the documentary requirements in the Bill would prevent us considering this, alongside other detailed matters, through consultation.

[Baroness Taylor of Stevenage (Lab)]

Does the Minister accept that as part of that consultation we should speak to the Local Government Association or other representatives of local government? The drawing up of such codes and so on would almost certainly involve professionals in the planning departments of local authorities. They are at breaking point already—they are greatly stretched—and these street votes can presumably pop up at any time. They will not necessarily be part of a planned workload for local authorities. One of our concerns is that if some of these codes and other things that might be needed to support street votes are not very clear in secondary legislation or the SI that brings it in, it will put an incredible burden on those hard-pressed local authority planning departments. That is probably why the LGA has spoken out so strongly against this proposal, or one of the reasons. If we are going to do some extensive consultation on this before we see secondary legislation on it—which begs the question of why it could not have come in secondary legislation in the first place—that issue needs to be considered.

[Earl Howe (Con)]

We want to engage in extensive consultation. I have every confidence that the Government will want to garner opinion from sources that have expertise of the kind that the noble Baroness mentions, and I see no reason why the LGA will not be included in that. If I can provide her with greater certainty, I will certainly do so by letter. I will be talking more about the broader consultation process in a minute or two.

The effect of Amendment 253A in the name of the noble Lord, Lord Stunell, would be to exclude development in any area with a designated neighbourhood forum from the scope of street vote development orders. This would mean that, as he explained, street vote development orders could not be used in areas where, I suggest, they would be of most benefit, for example, where local people want more homes, or where greenfield land is under particular pressure from housing development. I reassure the noble Lord that neighbourhood planning will continue to play an important role in the planning system. Indeed, other measures in the Bill reinforce this. Where street vote development orders operate, communities will continue to be able to participate in neighbourhood planning. Indeed, our intended consultation will give neighbourhood planning forums and other interested parties an opportunity to shape the policy and ensure that it delivers for communities.

[Lord Stunell (LD)]

I thank the noble Earl for giving way. He has perhaps got the cart in front of the horse there. My amendment refers to neighbourhood plans which are in force. It seeks to make sure the decisions the public take on all the issues that he has just outlined as being highly desirable—those which have completed and formed a neighbourhood plan—are not then subject to a further random challenge from a particular street vote. It is not a question of the preparation of a neighbourhood plan; my amendment would not apply in that situation.

[Earl Howe (Con)]

I take the noble Lord’s point. This highlights again how important it will be to ensure that the results of the consultation reflect issues such as those the noble Lord has raised. It may be that the general feeling is to go along the road the noble Lord has suggested. I do not want to pre-empt the consultation result in that sense, but let me reflect further on what he has said. Again, I will be happy to write to him if I have further wisdom to impart at this stage.

I can understand the reasons for tabling Amendment 254, in the name of the noble Baroness, Lady Hayman, to which the noble Baroness, Lady Taylor, spoke. I do not, however, agree that it is necessary. As a general point, biodiversity net gain will be an important point of the planning system going forward. It will ensure biodiversity must be enhanced when new development occurs and habitats will be impacted. Having said that, my colleagues at Defra have recently published the Government’s response to their consultation on the implementation of biodiversity net gain—BNG. This response makes clear that certain types of development will be exempt from BNG requirements.

The powers in the Bill require regulations to specify the development which can be consented to through a street vote development order. We are likely to use those powers to specify a range of development, from more minor developments such as roof extensions to more extensive development. In line with the wider policy approach, it is therefore likely to be appropriate to exempt some forms of street vote development from BNG requirements. That is why we are seeking the power in the Bill to both modify and exclude BNG provisions under Schedule 7A.

The noble Baroness asked in particular about conservation areas, and I will touch on that. I recognise the important role that conservation areas play in protecting local heritage. Proposals for street vote development orders will be independently examined against a set of prescribed requirements. The importance of local heritage will be taken into account in the design of these requirements. In addition, street vote development orders cannot be used to consent to the development of listed buildings and scheduled monuments.

The noble Baroness, Lady Pinnock, asked about infrastructure and perhaps I could reply to her in this particular context. We recognise that improvements to local infrastructure may be needed to support street vote development. Where street vote development takes place, local authorities will be able to secure value from the new development by charging a specific community infrastructure levy rate targeted at street vote development. This will ensure that value generated by the street vote development can be captured and used to secure infrastructure and affordable housing that will support the local area.

I turn briefly to the issue of whether it is appropriate to seek a delegated power in this case. As Defra’s recently published implementation plans make clear, much of the detailed implementation for biodiversity net gain will be set out in secondary legislation. It is therefore also appropriate to set out the biodiversity net gain arrangements for street vote development orders in secondary legislation to ensure that the systems work in harmony.

I can understand the reasons for tabling Amendment 257 in the name of the noble Baroness; however, I do not agree it is required. Clause 100(3) of the Bill allows for local authorities to expedite the procedure for setting community infrastructure levy rates for street vote development where local authorities do not have immediate plans to update or introduce CIL rates within their authority.

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[Baroness Taylor of Stevenage (Lab)]

The noble Earl has mentioned, a couple of times now, independent examination of street voting. Does that mean the idea is that we will have a whole new round of public inquiry processes for every street vote that is introduced?

[Earl Howe (Con)]

No, it most certainly does not. Our intention is to appoint the Planning Inspectorate to examine proposals and make the street vote development orders on behalf of the Secretary of State.

[Lord Stunell (LD)]

I wonder if I could help the noble Earl. For neighbourhood plans, there is an independent examiner who is not actually drawn from the inspectorate but obviously has to be a qualified professional person of independent standing according to an agreed register. I would have thought that, bearing in mind that is a task that is bringing forward a significant number of neighbourhood plans each year and the Government intend to bring forward more, there would be a substantial multiplier effect if street votes go ahead. So the pool of independent examiners may have to be deepened and widened somewhat beyond the Planning Inspectorate if he intends to proceed.

[Earl Howe (Con)]

That is a helpful suggestion, which I am happy to feed in.

On Amendments 252 and 253, in the name of the noble Baroness, the Government recognise that leaseholders will often have an interest in proposals for street vote development. Leaseholders will be able to be part of a group that can bring forward a proposal for a street vote development order if they are registered to vote in a local council election at an address in the street area on a prescribed date. If a proposal passes examination, a referendum will be held on it. Subject to the outcome of consultation, the Government envisage making a provision so that individuals, including leaseholders, who are registered to vote in the local council election at an address in the street area, as well as commercial rate payers there, will be eligible to vote. Again, we intend to consult on this proposal and on our proposals for referendum approval thresholds as part of a wider consultation on the detail of the measure.

[Baroness Pinnock (LD)]

I apologise. The noble Earl said that commercial developments in an area would have a vote, but how would they be on the electoral roll? Clause 99 says they would be.

[Earl Howe (Con)]

It is not that businesses would be on the electoral roll. If I misspoke, what I meant to say was that residents who are registered to vote in a local council election at an address in the street area on a prescribed date will be eligible to vote as part of this arrangement, as well as commercial rate payers in the area.

[Baroness Pinnock (LD)]

So could Tesco, for instance, have a vote, if there was a little Tesco Express on the street?

[Earl Howe (Con)]

The intention is that, if there is a commercial business paying commercial business rates, it should be allowed a voice in this process.

[Baroness Pinnock (LD)]

This gets more interesting by the day.

[Earl Howe (Con)]

No doubt this will be the subject of further debate—

[Lord Stunell (LD)]

And consultation.

[Earl Howe (Con)]

Yes, and consultation.

Before I speak to the government amendments, I will turn to Amendments 255 and 256, also in the name of the noble Baroness, which deal broadly with issues of propriety. I recognise the valuable expertise that organisations like the Association of Electoral Administrators can bring, but I do not agree with the noble Baroness that it is necessary to place a statutory duty on the Secretary of State to engage with them. As part of our work to develop the detail of the street votes policy for regulations, we will seek a wide range of views, as I mentioned earlier, from organisations such as the Association of Electoral Administrators and the Society of Local Authority Chief Executives to help us to get the secondary legislation right and to ensure that the policy operates effectively. However, it is right that the Secretary of State will be required to consult the Electoral Commission, given its important statutory role to ensure free and fair elections and polls.

[Baroness Taylor of Stevenage (Lab)]

I hear what the noble Earl is saying. In that respect, our amendment was more to seek the views of the Association of Electoral Administrators about the level of pressure that might be put on those groups—I made this point on planning teams earlier—if they were involved in a number of different referenda in their areas at the same time, for example. These can come out of the blue—we would not know when—so there are issues around how they are resourced to deal with that kind of uncertainty in their workloads.

Two big questions have come out what the noble Earl has said. First, as the noble Lord, Lord Stunell, said, it seems that we are going to have a whole new inspectorate. We had a light-hearted suggestion that it might be called “Ofstreet”, but that is for later determination. Who is going to pay for that inspectorate? Secondly, there is the issue of referendums. Referendums can be quite expensive—we have done them on parking issues in my borough. It costs quite a lot of money because you have to be very careful about how they are done to make sure they are fair. Who pays for those?

[Earl Howe (Con)]

My Lords, if I may say so, that is a very helpful intervention from the noble Baroness. She raises a number of key points, some of which will no doubt be covered in the consultation, but if I can expand on that I will be happy to write to her.

On Amendment 256, I would like to make it clear that the Government take the potential for conflicts of interest seriously. I am however confident that local authorities and the Planning Inspectorate, both of which we envisage having an important role in the street vote process, have appropriate safeguards in place to minimise conflicts of interest. It is a matter for local authorities to determine their own conflict of interest policies. I have every confidence that all local authorities treat conflicts of interest seriously and have robust procedures in place for both their members and officers. It would not be proportionate to legislate that local authorities publish guidance on managing conflicts of interest specifically on street votes, although no local authority would be prohibited from doing so if they so wished.

Our intention is to appoint the Planning Inspectorate to examine proposals and make street vote development orders on behalf of the Secretary of State. As the independent examiner, the Planning Inspectorate has its own conflicts of interest policy to support the proper and efficient allocation of work. In addition, chartered town planners, who may support residents in preparing proposals, are bound by the Royal Town Planning Institute’s code of professional conduct. This includes provisions to declare and avoid conflicts of interest.

I turn briefly to the government amendments in this group. The Government are committed to ensuring that street vote development is subject to the same principles in relation to environmental impact assessment as development enabled by other routes to planning permission. This is consistent with the Government’s commitment on non-regression of environmental protections. Without amending the Bill, it would be unclear for qualifying groups and relevant bodies how the EIA requirements would apply to street vote development. Amendments 257A, 504H, 504I, 504J and 509A allow for the Secretary of State to make regulations modifying the existing process under the EIA regulations so they operate effectively for street vote development orders. Where development that is consented under a street vote development order is EIA development, it will continue to be prohibited unless an assessment has been carried out and the environmental impacts are considered when making the order. Amendments 248A, 256A and 258A make technical and consequential provision to the Town and Country Planning Act, the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Elections Act 2022. These minor changes to these Acts—

[Lord Stunell (LD)]

I thank the noble Earl for giving way—I realise he has a mammoth task this afternoon. Amendment 258A introduces a new schedule to the Bill. It appears to be five pages long, which raises the total text to some 15 pages. I wonder whether he could say a little bit more about that schedule and what it is attempting to achieve. I am looking at paragraph 1(7), which is obviously difficult to interpret because it inserts bits into other legislation. Maybe he would like to write to me about this. Really quite important stuff is being parachuted into the Bill, on top of all the uncertainty we have been discussing. I wonder whether he would like to sketch in how the new schedule, which I suppose is going to renumbered as Schedule 8, fits into the general structure of this clause.

[Earl Howe (Con)]

I appreciate the noble Lord’s question and his interest in that amendment; I understand why he felt he should have asked the question. My advice is that, despite its size, this additional schedule represents a minor and technical change, which is necessary to ensure the effective operation of the street votes process and to ensure that it is integrated into the wider planning system. However, I am happy to write to him with further and better particulars.

I hope that the Committee will feel more comfortable with the provisions as I have explained them, and that the government amendments will be accepted when they are reached.

[Baroness Pinnock (LD)]

Near the beginning of my speech, I asked the Minister if he would be able to define a street. Could he do so now?

[Earl Howe (Con)]

I am so sorry I omitted to reply to the noble Baroness; I will write to her. It is a question I ask officials myself. It is an issue which will be decided in the consultation because, as she rightly said, there will be instances where a street, as such, does not exist. For example, you might have a small community of houses where the owners or residents may wish to apply under this procedure. In short, this is an issue to be determined under the consultation.

[Lord Young of Cookham (Con)]

My Lords, the hour is late, and we are less than half way through the targeted groups for the day, so I will be as brief as I can in winding up this fairly lengthy debate. I note that all those who spoke to their amendments had at some point held elective office, either as councillors or in other place—and, in some cases, both. That may explain the lukewarm—I think that is the best adjective I can use—reception for this proposal. The conclusion I draw from this is that the role of a think tank is to think and to come up with radical policies; the role of government is not to fast-track those into primary legislation but to subject them to critical scrutiny and consultation, and then progress to the next stage. The more I listened to the debate, and the more I heard my noble friend the Minister use the word “consultation”, the more I have come to the conclusion that, while I said in my opening speech that this was a policy in the process of gestation, it is in fact the size of a pinhead, as far as I can see, when it comes to movement towards delivery.

I will now pick up some of the points raised. The noble Baroness, Lady Taylor, struck a note of caution about the policy and agreed with me that it was okay to have street votes as a process of feeding into the formulation of a district plan, but she wanted more clarity and asked for assurances about conservation areas for which an assurance was not given. She asked relevant questions about the role of tenants, voting thresholds and declaration of interests. As I understand it, a short-term tenant will have a vote, but the owner, who is not in the property at the moment, will not. There are a lot of issues behind entitlement to vote, which I will come to a moment.

I suspect that the noble Lord, Lord Stunell, was a Minister in the DCLG in 2010, when the Prescott policy of not-so-gentle densification was overturned—his head is stationary, so I do not know whether he was or not; now it has moved vertically, indicating that he was indeed in the department then. He made the point—I will come to it in a moment—about the priority of the neighbourhood plan. One of the worrying things that my noble friend the Minister said in his reply was that, where a neighbourhood has gone through the whole process of consultation, and has developed and had approved a neighbourhood plan, and then within that neighbourhood a street comes up with a proposal which is in conflict with it, the street vote has priority because my noble friend was unable to accept the amendment.

The same applies to my amendment. When one has gone through the whole process of formulating a district plan, residents throughout the district feel confident in the outcome. They then find that it can be overturned by a street vote. The noble Baroness, Lady Pinnock, again highlighted the potential for neighbourhood conflict, which is one of the things that really worries me about this. I am grateful to my noble friend the Minister, whose patience and tolerance have been extended to the extreme over the past hour and a half. I note that he did not reply to the points that I made about the DPRR report, which made some scathing criticisms and suggested that whole sections of this Bill should be removed. Nor did he indicate when the Government might reply to that report.

My noble friend said that the street vote could go ahead with the support of residents, but we do not know what is meant by “support” or “residents”. As I read it, there will have to be an assessor; it will have to go through a process. My understanding is that an inspector—probably from the Planning Inspectorate—would be appointed to assess it. We did not get an answer to the question of who pays for the PINS inspector who is going to assess the proposal. The ratepayers will have a vote, but it is not quite clear who will exercise that vote on behalf of the business. If there is one very small business and one huge business, do they both have one vote? Who exercises it?

The conclusion that I draw from this is that the best thing for the Government to do is to drop this clause. Frankly, the Bill is far too long; this is not urgent; there is no great demand for it. That was quite clear from what my noble friend said whenever he was asked a question: “This is subject to consultation”. We should have had the consultation before we had the legislation. Although I will withdraw my amendment, I suspect that if I did not, I would win the vote quite comfortably on the basis of the exchanges that we have had so far. In the meantime, however, I thank all noble Lords, and particularly my noble friend. I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Lansley (Con)]

My Lords, I am glad to follow the noble Lord, Lord Berkeley. Before we hear from my noble friend, I want to say that Section 293 of the Town and Country Planning Act 1990 defines what is Crown land and goes on to make it clear what is an appropriate authority for the purposes of what is being introduced in Section 293B, down to and including,

“in relation to Westminster Hall and the Chapel of St Mary Undercroft … the Lord Great Chamberlain and the Speakers of the House of Lords and the House of Commons acting jointly”

being the appropriate authority.

I want to ask my noble friend about something because I simply do not understand it. There is an existing Section 293A, which as it stands is called “Urgent Crown development: application”; it has almost the same name as new Section 293B. I completely understand that the existing legislation does not appear to include all the provisions relating to how the Secretary of State deals with such an application and how the Secretary of State might give permission, so it is probably defective. But then I do not understand why all this is being added in and Section 293A is not being repealed. Perhaps my noble friend can explain that to me.

[Earl Howe (Con)]

My Lords, looking first at this clause as a totality, I will begin by explaining briefly the purpose of the proposed measure. The purpose of Clause 101 is to update the existing provisions for development by the Crown that is of national importance and required urgently by providing a new, faster, more effective and efficient route for seeking planning permission. It also provides a new route for nationally important development that is not urgent. The objective of these reforms is to ensure that planning decisions can be made in a timely and proportionate way on development that is of national importance and is promoted by the Crown.

Let me banish what I have perceived from this debate is a misconception. A special urgency procedure for urgent and nationally important Crown development has existed in legislation for many years. The purpose of the clause is to update this route so it can be used more effectively to deal with urgent national crises and supplement it with a new route for making a planning decision for non-urgent planned Crown development which is of national importance.

The Government believe that, where a Crown development is of genuine national significance, the Secretary of State, who is democratically accountable to Parliament, should be able to make a planning decision rather than an individual local planning authority answerable to its local community. The Secretary of State is best placed to take a national, balanced and impartial view of the need for development.

Let me explain that nationally important but non-urgent applications will still be considered against the plan-led approach we advocate through the Bill, and local communities will be given their opportunity to give their views and have these taken into account. Again, there is precedent for this type of approach within Section 62A of the Town and Country Planning Act, where planning applications can be submitted directly to the Secretary of State. It is thought that this route would be suitable for development such as new prisons and extensions to the defence estate.

All sorts of hares have been set running on this provision, and it is most important for me to emphasise that the urgent route that we are introducing would be used sparingly where—and only where—it can be demonstrated that development is needed urgently and is nationally important. Those are high bars, but the route could, for example, be used for development needed on Crown land to develop medical centres in the event of a pandemic. Such development will need to be operational in a matter of weeks so decisions can be made very quickly. Other examples could include accommodation needed urgently in the event of a future influx of refugees, or military training facilities.

I was grateful to my noble friend Lord Hodgson for at least part of what he said, if not for all of it. Press reports have been misleading on the issue of housing illegal migrants. As I have said, the power can be used only for Crown development which is of both national importance and needed urgently. As I have said, this is a high bar, and Crown bodies making an application will need to justify that using this route is appropriate.

This does not concern any situation that we may currently be facing on illegal migrants. In the first place, it is worth bearing in mind that this power will not take effect straightaway, contrary to reports in the press. The Bill needs to finish its passage through Parliament and then we will need to lay regulations and produce guidance before this can properly be brought into force. That will take time. To this end, it may not be a suitable route for the immediate issue of housing of migrants to address the current immigration backlogs. In the case of asylum accommodation on MoD bases, it will be for the Home Secretary to decide whether to bring forward an application when the powers are in place.

We recognise that the procedure for this urgent route is not the same as the more commonly known statutory procedure for determining planning applications. It is therefore, I say again, a route that will be used sparingly. I say to the noble Earl, Lord Lytton, that those promoting the development must clearly demonstrate that there is an urgent need for the development, that timely decisions cannot be delivered by other planning routes and that it is therefore in the wider public interest that the planning decision is accelerated using the new procedure.

--- Later in debate ---

[Baroness Taylor of Stevenage (Lab)]

My Lords, I thank my noble friend Lord Berkeley for once again using his very detailed, particular knowledge and expertise of issues around the Isles of Scilly and Cornwall. As ever, we are grateful to him for speaking up for those communities. The question he asks is an important one: why should anybody be exempt from proposals in this Bill, never mind the Duchy of Cornwall?

I will start with Amendment 504GJI on leasehold. We have had long and protracted discussions around leasehold in the course of discussions on this Bill previously. My noble friend Lord Berkeley referred to the Law Commission report on leasehold and the recommendations that people should be able to buy out freehold. I cannot see any reason that Law Commission report has not been acted on, and I hope the Minister will be able to enlighten us about that.

Certainly, it does not seem to us that there should be exemptions that sit outside of that for any reason. If the Law Commission has looked closely at the rationale for the exemptions that were put forward by the Duchy and not found those to be reasonable, it seems that the Government should treat the Duchy of Cornwall in the same way as they treat everybody else. As we have heard the Secretary of State say number of times now, if the Government intend to end the feudal leasehold system, will the Duchy of Cornwall be exempt from that, too, or will the Duchy of Cornwall’s properties be included in that legislation? If the Minister cannot provide the answer today, I am happy to take an answer in writing to that question.

My noble friend Lord Berkeley was kind enough to provide information about the issue related to the Isles of Scilly steamship company to us in advance of today’s session, and the point that he makes is a very valid one. For the communities on the Isles of Scilly, this really is an issue of levelling up. He has given us information on the very steep fare increases on that steamship company, and I understand the fare is now some £89. People on the Isles of Scilly will need to use that service. Their choice is either to travel by air, which we do not want to encourage, or to use this steamship company. A strange situation has developed here; it is a situation that I wish I had had in my borough, where when you find you have to go into competition to deliver something if you use government funding, you suddenly find, after 10 years of asking for government money, that the money has appeared miraculously. That does seem a very strange situation. There needs to be close attention to the way these issues are treated. They are issues of levelling up, because communities on the Isles of Scilly want to know they are being treated in the same way as other communities in the United Kingdom. I support my noble friend Lord Berkeley’s amendment.

[Earl Howe (Con)]

My Lords, I will start by addressing Amendment 258 and then move on to Amendment 504GJI, tabled by the noble Lord, Lord Berkeley. Amendment 258 would remove land in the Duchy of Cornwall from the definition of “Crown land”, as part of planning law. The noble Lord asked what the definition of “Crown land” was, and I apologise for not answering him in the previous debate. It is set out in Section 293 of the Town and Country Planning Act 1990, as my noble friend Lord Lansley rightly indicated in the last debate. It is, broadly, land in which there is a Crown or a Duchy interest—I shall expand on that in a second. I appreciate that the noble Lord tabled a number of Private Member’s Bills concerning the treatment of the Crown and the Duchy of Cornwall, and I admire his tenacity in this regard.

For the benefit of the Committee, I will set out some factual and historical background. For a long time, the Crown was not subject to planning control, but, in 2006, provisions within the Planning and Compulsory Purchase Act 2004 made it subject to planning permission, subject to special modifications. These recognise not only the unique nature of operational Crown land—prisons and military bases, for example—but the uniqueness and importance of the royal estates.

It is important first to understand the complex status of the Duchy of Cornwall. The title “Duke of Cornwall” and the inheritance of the Duchy were created in 1337 by a charter that carries the authority of an Act of Parliament. By virtue of that charter, the Duchy vests in the eldest son of the sovereign, also being heir apparent. Where there is no son and heir, the estate reverts to the Crown. Craies on Legislation notes:

“That is why … the Crown’s prerogative attaches to the lands of the Duchy of Cornwall, for the reason that they never entirely cease to be Crown lands”.


In short, there is always the possibility of the Duchy reverting to the sovereign, as his or her property. For this reason, the Duchy never entirely ceases to be Crown lands. For example, in recent times, King George VI had no son, so, on his accession, there was no Duke of Cornwall and the Duchy remained with King George VI.

Removing the Duchy of Cornwall from the definition of “Crown land” within Section 293 of the Town and Country Planning Act risks disrupting this well-established constitutional arrangement. This could open widespread implications for not just planning but how the Duchy is treated in law more widely. I have enormous respect for the noble Lord, but I am not sure that it is appropriate to open up this debate as part of the Bill. From his previous experience, he will appreciate that it would not be right for a single individual or party to seek to change the law on the way the Duchy of Cornwall is treated. If that is done at all, it has to be done with cross-party support. In addition, a Bill affecting the Duchy requires the King’s consent and sometimes also the Prince’s consent. For the reasons I set out, the Government have no intention to change the definitions of “Crown land” at this time, especially where this concerns changes that could affect His Majesty’s hereditary rights.

Amendment 504GJI addresses the impact that recommendations in the Law Commission’s 2020 report on enfranchisement would have on the Government’s levelling-up and regeneration objectives, including for leaseholders on land owned by the Duchy of Cornwall. The Government are committed to making it easier and cheaper for leaseholders to purchase their freeholds and extend their leases, and we are grateful to the Law Commission for its detailed report on enfranchisement reform. This report addressed a range of matters relating to the qualifying criteria for enfranchisement and lease extensions, including the applicability of these to leaseholders of the Crown, the Duchy of Cornwall and the Duchy of Lancaster. In January 2022, the Government consulted on Law Commission proposals that would improve access to enfranchisement and the right to manage. I am sure that the noble Lord will appreciate that this is a long-term and complex reform programme with many interdependencies, and it will take time to get the detail right. Once it is enacted, the effect will be felt for generations, so we are determined that this work consider all the implications with care.

Levelling-up and Regeneration Bill

Earl Howe Excerpts

Committee stage
Tuesday 18th April 2023 Lords Chamber

[Earl Howe (Con)]

My Lords, as we have heard, these amendments relate to housing need and the homebuying process.

I will address Amendments 207 and 219A together. Amendment 207 tabled by the noble Lord, Lord Best, seeks to enable the Secretary of State to include older people’s housing needs assessments in documentation related to local plans and require that local authorities consider the needs for housing for older people when preparing such plans. Amendment 219A in the name of the noble Lord, Lord Bradley, seeks to enable the Secretary of State to require local planning authorities to have regard to the housing requirements of the student population, developed in conjunction with local higher education providers, when preparing their local plans. I recognise the noble Lord’s personal knowledge of this subject.

I entirely understand the sentiment behind both amendments and offer words for the comfort of both noble Lords. I believe I can first do so by highlighting that national policy already sets strong expectations in these precise areas. The existing National Planning Policy Framework makes it clear that the size, type and tenure of housing needed for different groups in the community, including older people and students, should be assessed and reflected in planning policies. In 2019, we also published guidance to help local authorities implement the policies that can deliver on this expectation. Therefore, as regards student housing, we already have a clear policy in place, backed up by guidance, to deliver solutions designed locally. Any proposals to amend this would be considered as part of our review of the National Planning Policy Framework once this Bill receives Royal Assent.

I listened with a great care and respect to all that the noble Lord, Lord Best, said to draw attention to the housing needs of older people. The Government are absolutely on his wavelength in that regard. He was right to point out that there should be a variety and diversity of housing options for older people, as underscored by my noble friend Lord Jackson of Peterborough. To further improve the diversity of housing options available to older people and boost the supply of specialist elderly accommodation, we recently consulted on proposals to strengthen the existing policy by adding a specific expectation that, when ensuring that the needs of older people are met, particular regard is given to retirement housing, housing with care and care homes. We know that those are important typologies of housing that can help support our ageing population.

Furthermore, it would be remiss of me not to point out that there is already a provision in the Bill setting out that the Secretary of State must issue guidance for local planning authorities on how their local plan and any supplementary plans, taken as a whole, should address housing needs that result from old age or disability. This is a key statutory provision.

So, again, we already have a clear policy in place on this issue, and we are proposing, as I have explained, to strengthen it to further support the supply of older people’s housing. I hope that this provides the noble Lord, Lord Best, with the assurances that he needs to withdraw his Amendment 207 at this stage.

[Baroness Pinnock (LD)]

I thank the Minister for his explanation of what is already in the policy and how it is going to be strengthened, and the national planning policy guidance. However, so far that has not brought forth anything like the numbers that are needed, so perhaps the Minister will be able to explain how that policy—which is very worthy and which I support—can be put into practice?

[Earl Howe (Con)]

I say to the noble Baroness that I will try to do so as I go along. First, though, I will address Amendment 210, tabled by the noble Baroness, Lady Fox of Buckley, which would require local authorities to adopt policies to ensure that the marketing of housing accurately describes the nature of the tenure. I listened to all that she said about the need to review, or indeed do away with, leasehold tenure, and I hope she will forgive me if I do not repeat what I said on that subject in one of our earlier Committee debates. We shall also be debating Amendment 504GJG in the name of my noble friend Lord Moylan on leasehold reform later on in Committee.

Buying a home is the largest investment that many of us will make in our lifetime, and we all want to be sure of what we are buying before we commit to purchase, so I absolutely understand the motivation behind the amendment. However, we do not believe that local plans have the legal remit to specify how property agents can market property in a local area. Even if they could, such an approach would create a complicated patchwork of requirements which would vary between one local planning authority area and another. That would be very difficult for property agents operating on a regional or national basis to navigate, and it would be confusing for buyers as well.

That is not to dismiss the concern that the noble Baroness has expressed—in the levelling up White Paper, the Government committed to working with industry to make sure that buyers have the critical information they need to know, including tenure type, lease length and service charges. The Government have also signalled our intention to legislate if this is required. We are currently considering options which will set a common approach to all property listings across England and Wales, providing certainty for buyers, sellers and estate agents, and we will set out further information in due course.

I turn next to Amendments 215 and 218, tabled by my noble friend Lord Lansley. These amendments both relate to local authority housing need, and this is where I hope I can answer the question posed by the noble Baroness, Lady Pinnock. Amendment 215 seeks to require a local plan to secure a sufficient supply of housing to meet or exceed the authority’s area requirement for housing over the plan period. The amendment also sets out that an area’s housing requirement must be derived from the housing targets and standard method prescribed in guidance by the Secretary of State. Amendment 218 seeks to set out in legislation that local authorities must have regard to any housing targets and the Government’s standard method for calculating housing need when preparing their local plan.

While I entirely understand the sentiment behind these amendments, the proposals would impose unnecessary constraints by seeking to put into primary legislation matters that are already addressed effectively, I contend, through national policy and guidance. My noble friend Lord Young of Cookham made the point, as did the noble Baroness, Lady Pinnock, that national planning policy already sets out that local authorities should make sufficient provision for housing, including affordable housing, and that they must take this into account when preparing their local plans.

Additionally, again in response to the noble Baroness, policy and guidance set out how local authorities should establish their housing requirements, and they make it clear that the standard method for assessing local housing need should be the starting point for establishing housing requirements in the plan-making process, in all but exceptional circumstances. That is not a straitjacket and nor is it laissez-faire; our planning policies already allow authorities to choose to plan for more homes than required to meet need, and we have consulted on proposed changes to national policy designed to empower local authorities to go further where that is right for their area.

It is right, however, that local communities can respond to local circumstances. To introduce more flexibility to take account of local circumstances, we are proposing some changes through our consultation on reforms to the National Planning Policy Framework. These are expressly designed to support local authorities to set local housing requirements that respond to demographic and affordability pressures while at the same time being realistic, given local constraints.

I say to the noble Lord, Lord Stunell, that we will be talking about neighbourhood plans later this evening if we get there—I hope we do, otherwise on Thursday—and we can return to the issues that he has raised on that topic. But I would just like to make a general point about housing targets: local housing need is not a housing target. The standard method for assessing local housing need is used by councils to inform the preparation of their local plans. Local areas are then free to take into account constraints and opportunities when determining their actual housing targets such as green belts, AONBs, and so on, that prevent them allocating enough sites to meet need. There are some councils that choose to plan for more homes than their local housing need number; nor does the local housing need method dictate where homes should go. It is up to councils to decide what sorts of homes can be built where.

[Baroness Thornhill (LD)]

Can I put the question the other way around? The noble Lord used phrases like “councils can choose” and “in conjunction with their local authority”. Can I ask about councils that choose not to provide supportive housing for people in need, that choose not to provide places for ex-offenders, and that rely on councils with a conscience to do those things? It seems to me that councils can choose to do very little if they want, including building homes, and certainly to not provide for the other groups that we have heard about—that is what worries me. We need more compulsion across all councils to provide for all of the population.

[Earl Howe (Con)]

In those circumstances, local plans can be checked against the assessment of need and can be shown to be defective where that is deemed to be the case—so it is not as if there is no oversight of what local authorities are doing. What we do not want to do—and I hope the noble Baroness agrees—is to get perilously close to a one-size-fits-all, top-down target mode of acting. We are trying to strike a balance between showing local authorities how to do the job that they are there to do and have been elected to do, while at the same time not being guilty of dictating or second-guessing local circumstances.

We do already have a clear policy in place on these issues, and we are proposing to clarify and strengthen this further. I hope my noble friend will feel comfortable in not moving his amendments when they are reached.

Before I finish, I will respond briefly to the noble Earl, Lord Lytton, on his points about buildout. In large part, he was anticipating the debate we look set to have in a later group, which begins with Amendment 261 to Clause 104, in the name of the noble Baroness, Lady Taylor of Stevenage. However, I just say that the Bill already contains provisions to tackle slow buildout by developers. Clause 105 gives local planning authorities powers to determine planning applications made by a person connected to an earlier permission on that same land which was not begun or has been carried out unreasonably slowly. Developers should know that planning authorities expect new residential developments to come forward at a reasonable rate.

Levelling-up and Regeneration Bill

Earl Howe Excerpts

Committee stage
Wednesday 22nd March 2023 Lords Chamber

[Earl Howe (Con)]

My Lords, I thank the noble Baroness, Lady Hayman of Ullock, for her valuable contribution to this debate and for focusing our attention on these provisions. In the light of her remarks, it is probably best for me to start by explaining the importance of Clause 79.

Too often, planning information is hard to use for all the purposes that it should serve. Clause 79 is designed to address this problem. Planning authorities often receive large amounts of information which requires manual intervention to make it usable. Re-entry is then required to use that information later in the system. These manual tasks take valuable time away from planning authorities performing their core role of making decisions that matter to communities.

There are three key effects of this clause. First, it works with Clause 78 to ensure that complying with data standards does not create a new bureaucratic burden for planning authorities receiving information and then having to render it compliant. Secondly, it gives planning authorities the power to require information in a manner that best suits their systems and the data standards to which they are subject. Thirdly, it protects against the risk that some may attempt to use the requirements under Clause 78 to inconvenience local authorities’ decision-making by deliberately submitting information in a problematic format that is difficult to extract.

Clause 79 also sets out the process that planning authorities must follow to exercise their powers. Publication of a notice on the planning authority website or through specific communications will be required to inform participants of what planning data will be subject to data standards when it is submitted to a planning authority. In circumstances where the data fails to comply, a notice must be served specifying the reasons for rejection.

I will deal briefly with the power of planning authorities to refuse information as non-compliant. There is no obligation for planning authorities to refuse non-compliant information. However, for the reasons I have just outlined, we expect planning authorities to accept such information only exceptionally. The Committee will see that we have taken steps to protect those who are not able to submit using the means specified by the planning authority or who cannot comply with the data standards in that submission. Where the provider of information has a reasonable excuse, information cannot be refused. Planning authorities will be under a duty to accept—

[Baroness Pinnock (LD)]

My Lords, I apologise for interrupting. I wonder whether the Minister has any statistics about the problem that these clauses are trying to solve. What is the extent of the difficulty such that, when applicants submit their planning applications to the planning authority, they then have to be manually entered or have to use a different system? Do we know the extent of that problem?

[Earl Howe (Con)]

We believe the problem to be quite considerable. I do not have statistics in front of me, but I will undertake to consult the department and see whether I can put some flesh on these bones, if the noble Baroness and others would find that helpful.

[Baroness Hayman of Ullock (Lab)]

On that point, it would be incredibly useful to have some sort of evidence base for us to consider. Can the Minister ask the department for that?

[Earl Howe (Con)]

Yes. These clauses have not just been dreamed up out of the blue.

[Baroness Hayman of Ullock (Lab)]

I am sure that they have not.

[Earl Howe (Con)]

We have received representations from a number of local authorities on the difficulties that they encounter and the sheer time that it takes to process information that does not conform to their systems.

As I was about to say, where the provider of information has a reasonable excuse, information cannot be refused. Planning authorities will be under a duty to accept and fully consider this information, so those with a reasonable excuse are not disadvantaged. Where information is initially refused by a planning authority, the clause provides the discretion to accept a compliant resubmission.

In summary, this clause will ensure that, by default, information received will be usable for all of the purposes to which planning authorities need it to be put. This will make the system more efficient, enabling planning authorities to work faster and focus on planning rather than data entry. That is the main point.

I turn next to Clause 81. Outdated and expensive software is one of the barriers that local authorities face to achieving more efficient ways of working in the planning process. Systems do not work with one another, forcing manual re-entry of information while locking that information away in formats that are not reusable. Clause 81 is essential for ensuring that planning authorities can benefit from the changes in this chapter through being supported by the right software, which can process standardised data.

The intent behind Clause 81 is to ensure the provision of software that is compatible with planning data requirements, so software approval requirements will follow on from the development of data standards set under Clause 78.

Our intention is to focus on exploring software that enables better availability of information and unlocks the ability to produce better tools for planning authorities. It is therefore not our intention to require the approval of all planning data software. We will continue working with planning authorities and the technology sector to determine when and where the use of this power will most benefit the planning system. In summary, this clause is essential for delivering effective, high-quality systems which the public rightly expect of government at all levels. I commend it to the Committee.

Amendment 181, in the name of my noble friend the Duke of Montrose, relates to Clause 83, as he explained, and aims to make public the result of engagement between the UK Government and devolved Administrations. I need first to explain how this amendment impacts on the planning data section of the Bill. It is important to understand what is in scope of Clause 83 in relation to the devolved Administrations.

As it stands, the only matters within devolved competence that planning data regulations could apply to would be Part 6 of the Bill, on environmental outcomes reports, or EORs. As such, provisions relating to consultation with the devolved Administrations must be read alongside the wider EOR clauses.

As set out in Committee in the other place, the Government are continuing to work with the devolved Administrations to understand whether there is scope to extend the EOR powers to provide a shared framework of powers across the UK. Once those discussions have concluded, the Government will bring forward any necessary amendments to both Part 6 and Part 3 to reflect the agreed position between the UK Government and the devolved Administrations. I reassure my noble friend and noble Lords that, in bringing forward the new system of environmental outcomes reports, the Government are committed to respecting the devolution settlements.

In answer to my noble friend Lady McIntosh of Pickering, our discussions at this stage are with the devolved Administrations rather than with, for example, the Scottish Parliament. I hope noble Lords will agree that we should not be required to make public the results of confidential policy discussions between the UK Government and the devolved Administrations. For all these reasons, I hope that my noble friend will accept that his amendment is unnecessary.

Amendment 182, in the name of the noble Baroness, Lady Taylor of Stevenage, seeks to ensure that the Secretary of State has consulted local authorities before establishing planning data regulations. Local authorities’ input on the new data requirements is of course important as we look to transition from a largely document-based planning system to one that is data-driven.

However, I reassure noble Lords that the intention of this amendment has already been built into the approach that the department has taken to design and test the new planning data requirements. As I have emphasised, the Government’s policy aim through planning data regulations is to create consistency on a national level. This includes the way local authorities process and publish planning data and will ensure that they are supported by suitable software to meet the new requirements.

Since 2019, we have been working with local authorities to test potential new requirements, such as data standards. This has provided valuable insights on the views of local authorities and the support that they will require to implement the new data requirements. We will continue this collaborative approach to establish planning data regulations.

Local authorities are the experts in the needs of their local areas, and these local views will form the basis of our national strategy around planning data, which these regulations will establish. We will continue to work collaboratively with local authorities, through running pilots and pathfinder projects, to gather our insights and design the new requirements.

I will bring another point to noble Lords’ attention. Planning data regulations under Clauses 78 and 80 will concern the form of planning data to be processed and published by local authorities. The planning information that these regulations will address will already be part of the planning system.

Given the collaborative approach that we are already taking to design the new requirements that will inform planning data regulations, I hope that I have been able to reassure the noble Baroness that local authorities’ views have been, and will continue to be, central to any planning data regulations that will be brought forward.

[The Duke of Montrose (Con)]

My Lords, I thank my noble friend for giving way. I was much encouraged by his suggestion earlier: it will be helpful if the Government provide guidelines for planning data operating systems at a very early stage. I realise that my amendment was covering a very small part of the subject under discussion, but it was merely for planning data. If the discussions with the Scottish Parliament produce something different, the question of disclosure will still be important.

[Earl Howe (Con)]

I take my noble friend’s point. The point that I sought to make was that, of course, the outcome of our discussions with the Scottish Administration should be reflected in the eventual regulations and indeed in what is decided on the software. I hope that he will accept that our internal discussions with the Administration are part of Government-to-Government dealings and, in the normal course, should not be made public.

I was just about to cover very briefly a question that the noble Baroness, Lady Pinnock, raised about the possible transposition of existing planning records on to a new digital system. I am advised that we will not require planning authorities to completely move all their data on to a new digital planning system. The intention is for this new system to look forward prospectively, if I can put it that way.

[Baroness Pinnock (LD)]

I thank the noble Earl very much for that information. The danger then is that, if an old software system containing planning applications from before the new software was introduced is incompatible and is therefore not transitioned across, it will not be readable by the new system for future use. That issue ought to have been considered.

[Earl Howe (Con)]

That is a very relevant point. The point that has been made to us quite forcefully is that a lot of the software that is already in use is clunky and outdated, and that somehow a solution needs to be found. Clearly, the state in which systems are at the time any new system comes into play will vary from local authority to local authority. I will investigate that point further and, if I can elucidate the issue, I will gladly do so.

[Lord Scriven (LD)]

In his normal calm and reassuring way, the Minister pointed out on Clause 81 that there may be some leeway regarding the software that could be used. However, I will read what is in the Bill, so that the Minister can explain why there will be leeway. The power is

“to require use of approved planning data software in England”,

and the clause says:

“Planning data regulations may make provision restricting or preventing a relevant planning authority in England from using or creating, or having any right in relation to, planning data … which … is not approved in writing by the Secretary of State.”


How will that leeway come in if the Bill says that the software has to be approved in writing by the Secretary of State, and that a planning authority in England cannot use it if it is not?

[Earl Howe (Con)]

I simply come back to the point I am trying to emphasise, which is that the watchword here is collaboration, between central government and local authorities. We want to get this right to get a solution that local authorities themselves are comfortable with and which is compatible, authority to authority. Although the noble Lord is correct to quote the Bill as he has, our intention is not to require approval for all planning data software.

[Lord Scriven (LD)]

That is impossible given how Clause 81 is written, because it makes provision for

“restricting or preventing a relevant planning authority”

if software is not approved by the Secretary of State. I understand the intention, but does the Minister agree that, as Clause 81 is written, what he wishes to see is actually not allowed by the Bill?

[Earl Howe (Con)]

I can only supplement what the Bill says by saying that we do not intend to introduce any requirement for approval without the appropriate exploratory work and engagement with local authorities.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank everyone who has taken part in the debate. I thank the Minister for his customarily very detailed and helpful response. We talked briefly about the evidence base behind these clauses. It would be helpful, as he suggested, to have that provided. It would also be useful to know how up to date the information in that evidence base is.

Regarding Clause 81, will the Government support the changes they are proposing to local authorities to update their software with the resources to enable them to do so? It is pretty expensive, and we know that local authorities are not exactly flush at the moment. It will be important for there to be proper funding and resources for local authorities that need to change their software.

It was good to have the further clarification that the Minister gave to the noble Lord, Lord Scriven, just now that the Secretary of State would not have to approve all software. The Minister said that this is the intention. Unfortunately, as has just been said, that intention is not clear at all in the wording. I suggest that he mentions to his department and to officials that the wording, both in the Bill and in the Explanatory Notes, could perhaps be revisited to make that really clear, because many local authorities are worrying a lot about the implications of that wording. Perhaps a slight change might resolve some of the concerns.

Finally, my noble friend Lady Wilcox has now left, but she asked me to point out very politely to noble Lords that, in May 2020, the Welsh Assembly became the Senedd and they are now the Welsh Government.

[Earl Howe (Con)]

Through the noble Baroness, Lady Hayman, I apologise for any misspeak that I may have committed. I also take on board the points she just made about costs in particular.

Clause 79 agreed.

Higher Education (Freedom of Speech) Bill

Earl Howe Excerpts

Consideration of Commons amendments
Tuesday 21st March 2023 Lords Chamber

10A: Because they consider civil proceedings to be an important means of obtaining a remedy for breach of duties imposed by the Bill.

[Earl Howe (Con)]

My Lords, I am pleased to be back again to debate the Higher Education (Freedom of Speech) Bill. I must express my thanks once again for the time and thought your Lordships have given to this legislation. Members of the other place were particularly happy to see the amendment banning the misuse of non-disclosure agreements in cases of sexual abuse, harassment or misconduct, or other bullying or harassment, as proposed by the noble Lord, Lord Collins of Highbury. I am grateful to him for tabling this amendment as a very positive addition to the Bill.

As your Lordships know, the tort has been by far the most contentious issue during the passage of the Bill, but the Government remain firm that it is vital for it to be included. I recognise that the decision of the other place to reinstate the tort as it was originally drafted, without amendment—including the government amendments that were tabled in this House on Report—has been of concern to noble Lords. I am very aware of the strength of feeling in this House regarding the tort clause. I have spoken to many noble Lords individually and listened carefully to the points raised during debate. Ministers have also had useful discussions since the Bill returned to the other place last month and have given further consideration to what form the tort should take.

Before turning to the amendment to the Government’s Motion tabled by my noble friend Lord Willetts, I shall set out once more the Government’s rationale for the tort’s inclusion and offer clarity on issues raised in recent ministerial engagement with noble Lords. I believe that the possibility of bringing legal proceedings is critical. We have said many times in this Chamber that, where issues cannot be solved satisfactorily by other routes, there should be an option to go to court. It is right that cases can be brought, and the court has a range of remedies at its disposal to achieve redress where it is concluded that that is appropriate.

The tort is a crucial part of the package of measures brought forward by the Bill to strengthen the law that protects freedom of speech, with a robust enforcement mechanism as a solid foundation for the new duties. Indeed, it is the view of some in this House and indeed of numerous academics and other stakeholders that, if the tort were removed, the Bill would not have the necessary force to bring about the cultural and behavioural shift necessary to prevent further erosion of freedom of speech on campus.

However, I also want to be clear that including the tort in the Bill will not create a free-for-all with cases being brought to court without due consideration. Indeed, we expect the use of the tort to be relatively rare, as indeed do those stakeholders who strongly support its inclusion in the Bill. The vast majority of complaints will be successfully handled by providers themselves, through the free-to-use Office for Students complaints scheme or via the Office of the Independent Adjudicator for Higher Education. Examples of where the tort may be used include where complainants feel that their complaint has not been resolved by the OfS or OIA to their satisfaction. In addition, it will be useful in the rare cases where a provider fails to comply with a recommendation made by the OfS or OIA.

There has been a suggestion that the inclusion of the tort will undermine the position of the OfS, but in fact the Bill will give the OfS new wide-ranging powers to investigate when higher education providers, colleges and student unions have breached their freedom of speech duties. It creates the role of director for freedom of speech and academic freedom, who will oversee the new free speech functions of the OfS. The tort is intended to complement those new powers, providing a backstop mechanism on the rare occasions when it is needed. We expect that the courts will generally be slow to overrule the OfS, as the expert in the sector, and the OfS will find any court rulings helpful in developing guidance and considering future cases.

Some noble Lords have expressed concern about the potential implications of the tort for student unions, which they think will not have the wherewithal, including the financial resources, to defend themselves against threatened legal proceedings. It is of course true that by bringing student unions within scope of the Bill, and by giving them new duties, they will become liable for breaches, but what is reasonably practicable for a small student union will not be the same as what is reasonably practicable for a large provider, an issue that the OfS and the courts will have at the forefront of their considerations. Examples of what is reasonably practicable include maintaining a code of practice, having a room-booking policy that covers freedom of speech appropriately and providing training to those who have a relevant role.

Other noble Lords have expressed concerns about student societies, a matter on which I believe I can also offer reassurance. As I have said, student unions will have a duty to take reasonably practicable steps to secure freedom of speech. Importantly, student societies will not themselves be subject to the duties in the Bill. However, those who run societies will be subject to the codes of practice published by their provider, college or student union. A failure to comply could result in disciplinary measures.

Similarly, if a student society is affiliated to a student union, those who run it will need to comply with the student union’s rules. Therefore, if a society is holding an event on student union premises, the student union’s room booking policies will apply, as well as the code of practice. Measures should be in place to ensure the society is aware of the rules that apply and that action can be taken if these rules are broken.

This point is crucial: a complainant would have no course of action against individual students or a student society. Although they may consider whether they are able to bring a complaint against a student union, the burden of proof will be on them to show that the student union has breached its duty to take reasonably practicable steps.

I also wish to address the point that some noble Lords have raised about the potential for the tort to create a paradoxical chilling effect, with providers, colleges and student unions avoiding holding controversial speaker events for fear of litigation. I want to be clear: the best way to avoid litigation will be not to cancel events but to take reasonably practicable steps to ensure that events can take place. There are provisions in the Bill that are intended to encourage a culture change on our university campuses, including a duty on providers and colleges to promote the importance of freedom of speech. A blanket policy of vetting all invitations and deliberately avoiding inviting any controversial speaker could itself constitute a breach of the duties under the Bill.

Finally, I turn to the amendment to the Government’s Motion, tabled by my noble friend Lord Willetts, which replicates amendments tabled by the Government on Report in the Lords. This House, carrying out its important constitutional function, opted to send a clear message to the other place that it should think again regarding the tort provisions. The other place, having thought again, has returned an equally clear message to this House as to the strength of its feeling that the tort should remain in the Bill. I note that, to emphasise that, it was willing to reinsert it without the government amendments tabled on Report in the Lords. In the light of that strong view, I hope the House will acknowledge that action by the other place and instead seek consensus on an outcome that rightly recognises that the tort should be retained but with some sensible amendments to clarify and reassure in relation to the implementation of the regime.

Indeed, I thank my noble friend Lord Willetts for his pragmatic engagement on this issue, particularly in his acknowledgement that the tort has a role to play in the new statutory regime. The Government take the view of the House seriously and therefore support this amendment to the Motion, assuming that it is moved, and I hope that other noble Lords will do so as well.

The amendments provide an opportunity to give clarity about how the tort will operate in practice. Our intention has always been that the tort should be used as a last resort, with the majority of complainants likely to rely on the free-to-use complaints schemes. Similarly, only those who have suffered loss should be able to bring a claim.

When the Government tabled those amendments back in November 2022, four months ago, the prevailing view from the sector and stakeholders was that they offered a good compromise. However, since then the issue has grown in importance, and controversy about the application of the tort has sharpened. It is only right that I share with noble Lords the concerns expressed to Ministers since this issue was last debated in this House, particularly from those the Bill is most designed to protect. In conversations with academics, we have heard serious concern that their freedom of speech is being quietly curtailed.

Given the strength of feeling from those who are genuinely concerned that their jobs are on the line and academic freedom is under attack, I have to be clear with noble Lords that this concern may well be reflected in a move in the other place to amend the Bill still further. I cannot presume to encroach on conversations or proceedings in the other place, but in that event it is only right that I commit the Government further to explore possible opportunities to achieve consensus in the Commons stages. I am therefore content to say that the Government support these amendments. But given that those academics are at the forefront of our minds, I am conscious that this matter may not yet be finally settled, should your Lordships agree to my noble friend’s amendments.

I hope that, alongside the assurances I have given today, noble Lords are persuaded that the tort is a vital legal mechanism that is necessary if we are to ensure that our world-class universities are the home of plural debate. I beg to move.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

To clarify, as I stated earlier—this really is important—I do not have a right to a platform and I do not care if people disagree with me. I do not mind if students invite me and then disinvite me. All I care about is if students are bullied into disinviting me. It is for the students that I made the speech, not for myself. Who cares about my feelings? They are of no relevance.

My point is that many academics and students have looked to this Bill and the amendment. The noble Lord, Lord Triesman, has talked to people who want the compromise. I have talked to people who think it is a fudge. Let Parliament decide—fair enough—but I do not think anyone can claim they have spoken to all the academics, and this is the only answer. I think that this is a cop out.

[Earl Howe (Con)]

My Lords, I just say to the noble Baroness, Lady Fox, that strictly speaking there should not be any interventions at this stage of the Bill.

[Lord Triesman (Lab)]

Because we are not having that kind of iterative debate, I will refrain from making the point that I am not saying that I spoke only to academics who took the same view I might take. I am just saying that if you speak to academics, you will hear as many views as the number of academics you speak to; that is in the nature of the business.

I welcome the process we have gone through because it has alerted people to a very significant problem. A few days ago in your Lordships’ House, I heard somebody say that trigger warnings were now being attached to reading lists of some of the great classics from the English oeuvre. I was just about to embark on a re-reading of Northanger Abbey. If anybody has any advice for me about dangerous pages that I should avoid, I should be extremely grateful to hear it, because I would hate suddenly to find my entire spiritual underpinnings removed while reading Jane Austen.

This debate will leave a legacy. It will make everybody more attentive to the risks to free speech and academic freedom, and I am not at all sad that we have gone through the process if that is the outcome.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, there is little more for me to say, other than to thank noble Lords for their contributions to this debate and for the way in which, amid many doubts and hesitations, Members of the House have been willing to look for compromise and common ground on what I know has proved a difficult set of issues.

I thank in particular the noble Lord, Lord Grabiner, especially for his positive comments and remarks on the role of the regulator, as well as my noble friend Lord Lucas, the noble Lord, Lord Triesman, and, for his words about the need for us all to look for consensus, the noble Lord, Lord Collins.

I simply say to the noble Lord, Lord Wallace, that I too instinctively fight shy of the suggestion that Governments should unduly interfere with the workings of our universities. However, some of his remarks suggested to me that he does not accept that there is a serious problem to be addressed. If that is his view, I believe that he is in a minority in this House.

[Lord Wallace of Saltaire (LD)]

I think we have a large social problem, which has been partly raised by social media, in the intolerance of the young as a whole and cancel culture. It stretches across our society and we have to deal with it, but it is not purely a problem for universities, nor is it thoroughly based in universities—and it certainly does not result from indoctrination by left-wing staff.

[Earl Howe (Con)]

I am grateful to the noble Lord, but I think we all agree that universities, par excellence, are places that should be safe spaces for freedom of speech, as my noble friend Lord Willetts said, whatever may happen outside the confines of the campus.

As to the timing of the coming into force of the Bill, I can tell the noble Lord that it will not be before the start of the next academic year. The Government need to consult on the regulations and indeed draft them, which will take a little time.

I simply cannot agree with the noble Baroness, Lady Fox, that my noble friend Lord Willetts’s amendments represent a fudge—in other words, a watering down of the tort or a “soft tort”, as my noble friend Lord Moylan put it. With respect to my noble friend, I utterly disagree with him that the amendments send a signal, or any semblance of a signal, to the other place or the world that the Government are not serious about protecting freedom of speech in our universities. The idea of watering down, I suggest, is more theoretical than real.

As I said earlier, the vast majority of complaints will be successfully handled and dealt with without any need to go to court. However, where a complainant believes that that has not happened, they will still have the option of going to court. In other words, the amendments from my noble friend Lord Willetts underscore what we think will happen anyway.

I hope that Members of another place will come round to that view and that both Houses of Parliament will reach the endpoint that Ministers and the Government have felt it their duty to try to achieve, which is consensus.

Levelling-up and Regeneration Bill

Earl Howe Excerpts

Committee stage
Monday 20th March 2023 Lords Chamber

[Lord Lansley (Con)]

My Lords, before my noble friend responds to the debate, I want to ask a couple of questions. I do not want to get into the detail of the public health Act, although I might say to the noble Lord, Lord Stunell, who quoted marking and painting, the text here is simply the same as the public health Act, so I do not think the draftsman can be criticised too much for incorporating some of the original drafting in the process of rewriting this bit of legislation.

I have two questions. First, subsection (10) of this clause says:

“No local Act operates to enable a local authority within subsection (1)(a) or (b) to alter the name of a street, or part of a street, in its area.”


That relates to a district council or to a county council for which there is no district council. Are there any such local Acts? I was not clear what the import of this is, and whether there are local Acts that have given this power and they are being disapplied by this provision. I wondered whether my noble friend knew whether there were any such local Acts.

Secondly, I did not give him notice of this question, but I am asking my noble friend if he will be kind enough to see what the department’s view is on it. If one knows Cambridge at all, one knows that to the west of Cambridge there is a new town called Cambourne. I was the Member of Parliament there when it was first proposed and, in the original naming process for what were then three linked villages, it was intended to use the name Monkfield, since they were actually built on land that was called Monkfield farm.

However, the local authority discovered that it had no power to determine what the name of a new village or town would be. Presumably, the legislation, except in the context of development corporations, never believed that local authorities would be naming new villages or towns that were put on to greenfield sites by private developers. As it turned out, the private developer had the right in law to determine the name Cambourne, which it chose using Cambridge and Bourn, a local village. Everyone is perfectly happy about that now, but at the time it was questioned whether it was appropriate that a local authority could name streets but could not name a town. That is a curious situation for us to have arrived at.

As it happened, the local authority subsequently came up with the excellent name of Northstowe, which I think slightly reflects the point made in the other amendment by the noble Baroness, Lady Taylor of Stevenage, since it used the name of the hundred within which the town subsists—namely, Northstowe—which historically had never been applied to a specific village or town, so a historic name was able to be given a modern usage. Fortunately, that worked okay without anyone having any problems with it. The question is: should the local authority have such a power and, if not, is this worth thinking about at some point?

[Earl Howe (Con)]

My Lords, I shall focus straightaway on the provisions of Clause 77 in the round, in response to the concerns and questions that have been raised by the noble Lords, Lord Stunell and Lord Scriven, and the noble Baronesses, Lady Taylor and Lady Bennett.

Clause 77 creates a requirement for the necessary support to be obtained for any changes to street names. The noble Baroness, Lady Taylor, and the noble Lord, Lord Stunell, asked why the Government have included this clause in the Bill. I was grateful to the noble Baroness, Lady Fox. I must repudiate the suggestion made by the noble Lord, Lord Scriven, that this has something to do with the culture wars. The answer is that it addresses the issue that, in some places around the country, there has been considerable concern and disquiet where councils have taken it upon themselves to change the name of a street without any meaningful consultation with local residents.

Under the available legislation, which noble Lords have rightly said dates from the early 20th century, any council has the power to change the name of a given street without consulting the residents in the street. The provisions of the Bill will ensure that, instead, local residents will be properly involved in changes to street names that affect them—changes that, as we have discussed, can alter the character of their area. Street names are often an intrinsic part of an area’s heritage, cherished by the community for their history and representation of the place. Changing names involves both practical costs for residents and businesses and social cost to the community. We are clear that these costs should be borne only with the consent of those affected.

How that should be attained will vary according to the nature of the street and its importance in the community. A one-size-fits-all approach would be insufficient to properly allow the views of the community to be determinative. The clause will unify the approach to how changes to street names are made where currently the rights of the community depend upon where they live and, outside of London, the decision of the local authority as to how involved or not the community should be.

[Lord Scriven (LD)]

I totally follow the logic of what the Minister has just said, but would it not be the case that a solution would be, rather than a new provision, to revoke the part of the 1925 Act that a council can adopt, which says there should be no vote, in favour of saying that all councils must adopt the 1907 Act, which says there must be a vote?

[Earl Howe (Con)]

The problem is that there are, I am advised, three Acts of Parliament that date from the early part of the last century, and that has led to a confusing mix of provisions across the country. Many provisions are over a century old, as I say, and there is no transparency over which Acts apply where. We thought it simpler to take the opportunity to be clear in this Bill that there should be more local determination of these issues. The current legislation is antiquated in its drafting, apart from anything else, so this updating is intended to make the process clearer for local authorities. All that should make the process for renaming a street more democratic and ensure that the voices of the local community are genuinely heard.

Amendment 173, tabled by the noble Baroness, Lady Taylor of Stevenage, would add additional criteria for local authorities when considering the renaming of a street. We entirely agree with the noble Baroness about the importance of history, archaeology and culture in this process. The last thing we want is anodyne street names divorced from the character and history of the area. However, as I have made clear, the Government are strongly of the belief that the final say on changes affecting street names should lie with local people. We fully expect those local views to reflect the historical or cultural associations of the names concerned and the importance that communities place upon them.

The amendment would create a duty on a local authority to consider the historical, cultural or archaeological significance of a name change. It is not clear that a free-standing additional requirement of that kind is necessary, nor is it clear how that duty would work alongside the provisions of the Bill. It could, for example, make it harder to secure name changes that had local support but where new considerations, such as the need to honour a local person or event, took precedence over an archaeological interest. We saw some Olympians having streets named after them following the 2012 Olympics.

It is for this reason that, with the aim of being helpful to local authorities, the Government would be minded to set out in statutory guidance how factors such as the history and culture of the area should be considered in bringing forward proposals for street name changes under this clause. We have consulted on the prospective secondary legislation and guidance to deliver these changes, and respondents were over-whelmingly positive about our proposals: 91% of respondents agreed that regulations and statutory guidance should set out how local authorities should seek consent when changing a street name. In view of that support, and of the fact that heritage and cultural significance are matters that local communities are best placed to weigh up for themselves, I hope I will have persuaded the noble Baroness that the amendment is not necessary.

[Lord Scriven (LD)]

The 1907 Act is very clear. It is not antiquated or in any way there to be debated. The 1907 Act power may be exercised only with the consent of two-thirds of the non-domestic rates payers and council tax payers in a street. That is what the Act says. What is it about the 1907 Act and that provision which seems to be non-democratic and does not give the power to the people on the street to make the change?

[Earl Howe (Con)]

Because it is a one-size-fits-all approach and our judgment is that that is not an appropriate prescription for every situation.

[Lord Scriven (LD)]

The noble Earl is therefore saying that in one street it could be 51% and, in another street, maybe a couple of streets away, it has to be 75%. Is that what the noble Earl is saying? The provision in the 1907 Act is very clear. It gives a provision of what needs to happen and a percentage of the vote required to change the name. Is he saying that different streets need different percentages of the votes to change the street name?

[Earl Howe (Con)]

We cannot, at this stage, prescribe particular percentages to particular situations. This is to be worked through in regulations and guidance, which was, as I emphasised, the approach that respondents to the consultation felt was right: we should not be unduly prescriptive in primary legislation, but rather allow for some flexibility at local level depending on the situation under consideration.

I turn to Amendment 175 in the name of the noble Baroness. As I outlined, our view is that local people should have the final say on these matters, particularly, as the noble Baroness’s Amendment 173 demonstrates, when it comes to their local heritage. In this context, I agree with the underlying intent behind this amendment. There should be clear processes for making sure that views from all relevant groups that might be affected by a street name change are taken into account. It is, however, important that we do this in the right way so that the processes are robust but can be adjusted if needed.

The approach in these amendments would be prescriptive and would limit our ability to go further than simply consultation by making local views determinative, as the clauses do at present. But I want to reassure the noble Baroness that we will be setting out clear, transparent and robust arrangements in secondary legislation, as we set out in the consultation I already mentioned. In addition, by setting out the detail for how consultation on street naming will work in regulations and guidance, we can maintain flexibility to update processes in line with different local circumstances and changes such as new technology. I hope these remarks are helpful in explaining the Government’s approach to what is a sensitive issue.

My noble friend Lord Lansley asked whether there were any local Acts of Parliament that might affect this issue. I am advised that the Oxfordshire Act 1985 might be relevant here. I think I had better do further research for my noble friend to find out whether there are others—but that was the advice that I have been able to receive.

On his other question of the power to name new villages, I have no direct experience of this. My understanding is that what normally happens is a conversation between a private developer and the local authority and an accommodation is reached. The noble Baroness, Lady Taylor, who clearly has direct experience of this, is shaking her head, so I do bow to her experience. It would seem appropriate that I look into this further and write to my noble friend once again.

[Baroness Taylor of Stevenage (Lab)]

I am grateful to all noble Lords who have taken part. I thought this would be quite a short debate, but you never know here, do you? I am also grateful to the noble Earl for, as usual, a very thoughtful and considered response to the debate.

Our contention in tabling the amendments in this group was that the Government’s introduction of this clause to the Bill was kind of bizarre in a way. We have looked at some very key strategic issues in the debates already—we are likely to come to more in the days in Committee to come—around local finance, business rates, environmental issues, affordable housing and so on, and found that there is not as much in the Bill as we would like to see on those. However, what seems to be an issue covered by previous legislation and seems for the most part to be managed perfectly well in local areas—there may be some notable exceptions—gets a whole clause in the Bill.

I was grateful to the noble Lord, Lord Stunell, for his careful evisceration of the clause—that is what it was. He used the term “a clause in search of a problem” and asked the clear question: what is the problem here? He also referred to the impact statement having no reference to this clause. I think the idea is that there may be—let us face it, there probably are—some councils around the country which either insist on name changes that have not got public support or resist name changes that have. But the existing powers, as has been consistently referred to through the debate, require a consultation of ratepayers to vote in favour of a name change, so it is difficult to see where the push comes from.

I know that this issue causes a great deal of concern in local areas if there are things that have gone wrong, but surely the pressure on a democratically elected council would be to make sure they had their residents alongside them if they were going to present a change of name, not to push against that.

The noble Baroness, Lady Bennett, talked about the LGA supporting getting rid of this clause. I noted that from the LGA’s briefing. The idea that people really want to get tangled up in these issues in Parliament is odd, to say the least, as far as I am concerned.

The noble Lord, Lord Scriven, talked about measuring sufficient local support. Leaving this to regulation seems, again, to be a huge sledgehammer to crack a nut. If we are going to have regulations around the conduct and timing of a referendum and what percentage is going to get us over the line in terms of what we call our road, that kind of centralised direction has no place in a Bill that is supposed to be concentrating on devolution. I do not want to get caught up in the issue around roads in Haringey particularly. It may be in that case that the consultation did not take place; I do not know.

--- Later in debate ---

[Earl Howe (Con)]

I do not think the noble Baroness has understood the issue. This has everything to do with devolution; that is the whole point of the clause.

[Baroness Taylor of Stevenage (Lab)]

Well, I think that regulating to the extent of telling where signs can be put and whether they should be painted or printed really is against the spirit of devolution.

The noble Lord, Lord Lansley, made good points on what powers local authorities have to name which things. We should not avoid the fact that private developers will of course choose to name things in a way that they think will help them to sell properties in an area. They will choose either road names or settlement names because they think it is in their interest and will help to sell properties. If we are to have this clause—I assume we will, because I doubt the Government will withdraw it—we need to think about this as well. Areas should be named according to some kind of local connection, whether it is history or individuals connected with the area—my second amendment refers to this—and I do not think that this should be entirely in the hands of developers.

I have not changed my view on this clause. I agree with the noble Lord, Lord Stunell, that it does not have much of a place in the Bill, but if it is going to be in there, when name changes are made we need to think about what the connections are. I am grateful for the comments of the noble Earl, Lord Howe, on this. We also need to think about proper public consultation on matters such as this. If it has to be in the Bill, so be it, but local authorities have managed this perfectly well so far and there is no need for a clause such as this in a broad-ranging, strategic Bill. That said, I beg leave to withdraw my amendment.

Levelling-up and Regeneration Bill

Earl Howe Excerpts

Committee stage
Monday 27th February 2023 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I will specifically address Amendment 66 in the name of my noble friend Lady Bakewell, but I will also refer to Amendment 86. On these Benches we broadly support these amendments because they ask some important questions.

Amendment 66 refers to the environment, which to all intents and purposes is a bit of an orphan in the Bill. One of the great advantages of CCAs, and of gathering together councils on a bigger area, is that you can have co-ordination and efficiencies of scale on environmental issues that are more difficult in smaller units. There are great disadvantages to having large units, but on the environmental issue you need to exploit the advantages. On everything from the management of areas of outstanding natural beauty to recycling schemes—I am trying to produce contrasting examples—and particularly on transport issues, there are huge advantages to running on a larger scale. For example, you have the efficiencies of running a bus network that is not just in the towns and cities but serves the rural areas that feed into them. It is therefore very important indeed that those issues are at the forefront of the decision-making of the CCAs and that they report back on those decisions.

Turning to Amendment 86, I am sure the Minister will forgive me for some cynicism here. The first round of the UK shared prosperity fund and two rounds of levelling-up funding have posed more questions than answers on the criteria on which this sort of government funding is now being based. It seems that areas favoured by the Government are doing well, sometimes not for any good reason. There therefore needs to be accountability in the funding of CCAs.

If we look at the current patchwork of local government funding in England, there always tend to be huge discrepancies and illogicalities because you are always inheriting what has gone before. Areas change and develop, and sadly some areas decline relatively. Sometimes political decisions put some areas at a disadvantage while others thrive. The point I am making is that with CCAs you are starting afresh. It is therefore very important to explain why they are being funded as they are, not just through bald accounting but with a cost-benefit analysis. Amendment 86 is a very good idea.

[Earl Howe (Con)]

My Lords, I am grateful to members of the Committee for such an interesting debate about statements and guidance on combined county authorities. We agree completely with the need for transparency on the wide range of issues in these amendments.

Amendment 66, tabled by the noble Baroness, Lady Taylor of Stevenage, seeks to place a requirement on the Secretary of State to publish an environmental impact assessment 120 days after making regulations that establish a combined county authority. I hope I can reassure the noble Baroness that in making the regulations, government and Parliament will have already considered the environmental impact of doing so. When deciding whether to make regulations to establish a combined county authority or change arrangements for an existing one, the Secretary of State has to consider statutory tests, including whether it would improve the environmental well-being of some or all of those who live and work in the area. Indeed, the regulations cannot be made unless the Secretary of State considers that this test would be met. There is therefore in our view an ample opportunity for Parliament to consider this.

This amendment would also require a combined county authority to publish an annual environmental impact assessment of its ongoing operation. As a form of local government body, CCAs will be subject to the same requirements as other local authorities to publish environmental impact assessments for specific pieces of work and decisions where necessary.

Amendment 74, tabled by the noble Baroness, Lady Taylor of Stevenage, seeks a public statement of the definition and description of a non-constituent member of a combined county authority. I hope I can reassure her that there is already a definition for a non-constituent member in Clause 9. Paragraph 135 of the Explanatory Notes explains that:

“A non-constituent member of a CCA is a representative of a local organisation or body—such as a district council, Local Enterprise Partnership or university—that can attend CCA meetings to input their specific local knowledge into proceedings”.


The Explanatory Notes go on to explain how a non-constituent member would be chosen. First, the combined county authority may designate an organisation or body as a “nominating body” of a combined county authority if that organisation or body consents to the appointment. A nominating body would be a local organisation such as a district council. The nominating body will then suggest the representative to attend for its body—for example, the leader of the council—and that individual is the non-constituent member.

An associate member is an individual person such as a local business leader or an expert in a local issue whom a CCA can appoint. This enables the associate member to be a representative at CCA meetings and to input their specific local knowledge into proceedings.

I hope I can allay the doubts and fears of the noble Baroness, Lady Hayman, on this issue. This model is designed to allow for genuine localism. It allows the local area to decide which local organisations or bodies will bring the greatest benefit to the combined county authority, and then appoint them. No two areas are the same. Depending on the local area, this will be different stakeholders, but examples of bodies that we expect to see combined county authorities engaging with are, as I mentioned, district councils, local enterprise partnerships, local universities, local health organisations and local registered providers, to name just a few.

The clause provides that district councils can be non-constituent members of a combined county authority. This will facilitate district councils having a formal seat at the table in putting their local expertise and ensuring join-up. Non-constituent members could attend the combined county authority’s cabinet meetings, be on sub-committees, and sit on overview and scrutiny committees and audit committees, giving those organisations that want them a role and voice in the combined county authority.

The model allows for local flexibility to reflect the different situations of different areas. If the combined county authority and all district councils wish to be involved, they can all be non-constituent members. However, if one does not, a devolution deal will not fall, as it would under the current combined authority model.

As stated in the levelling-up White Paper, we expect the upper-tier local authorities that we are agreeing devolution deals with to work with district councils to deliver the powers most effectively being provided. In discussions thus far, we have been pleased to see collaboration between upper- and lower-tier councils on devolution proposals to deliver for their area.

I emphasise that it is down to the combined county authority to decide what voting rights a non-constituent member should have rather than this being imposed by us in Westminster. Depending on the decision of the combined county authority, its non-constituent members can be given voting rights on the majority of matters.

I hope that this provides sufficient clarity on non-constituent members. I shall, of course, read Hansard and pick up any further questions that I feel I have not covered adequately, and I will write to noble Lords on those points.

[Baroness Taylor of Stevenage (Lab)]

As a further point of clarification, if the Minister will allow, is that saying specifically that district councils represented on a CCA will not have a vote, whereas the CCA can decide that other non-constituent members can vote? I am not clear about this at all. Unless what is intended is more clearly set out, we could end up in what I would consider to be an unfortunate situation of elected district councillors who sit on a CCA not being able to have a vote, and the potential for that to be manipulated in a political way would still be there. We need to understand the situation around voting and non-voting for non-constituent members.

[Earl Howe (Con)]

I understand the noble Baroness’s point. I do think that I covered that in my remarks, but I will reread what I said and, to the extent that I was unclear, I will be happy to write to the noble Baroness. The broad point is that it will be up to the CCA what voting rights it allows to whom, including district councils.

Amendment 76, tabled by the noble Baroness, Lady Hayman of Ullock, seeks to allow a combined county authority to be able to request that the Secretary of State makes regulations in relation to its membership. In agreeing a devolution deal with councils in an area, we will be discussing what governance arrangements would be appropriate, including the institution to operate the devolved powers, and membership and decision-taking arrangements.

The combined county authority would be able to make such a request to the Secretary of State. Such a request would be formalised through submitting a proposal to the Secretary of State, as set out in Clause 43 for establishing a new CCA and Clause 45 for making changes to the arrangements for an existing CCA. The Secretary of State has to consider such a proposal and, if they deem the statutory tests to be met, can decide to make the regulations. Such regulations can be made only with the consent of the local area—including the combined county authority if one is already established—and with parliamentary approval.

I turn to Amendment 86, tabled by the noble Baroness, Lady Taylor of Stevenage. The Government recognise the importance of transparency with regard to allocations of funding and regular reporting on the impact of wider and deeper devolution. Section 1 of the Cities and Local Government Devolution Act 2016 requires the Government to produce an annual report on progress with devolution to combined authorities and local authorities, which covers the areas suggested by the noble Baroness’s amendment; namely, funding and regular progress reporting on devolution of additional public functions.

--- Later in debate ---

I have one final question—I would be grateful if the Minister could write to me if he does not know the answer. When the upper-tier authorities publish their reports, are they specifically not allowed to do this through the Part 2 confidential reports? I am sorry to have taken a bit of time on this, but this is an important section. It is incredibly complicated, which is why I am trying to get clarification. I do appreciate the Minister’s time.

[Earl Howe (Con)]

My Lords, I listened carefully to the noble Baroness. Although some of her questions can be dealt with quite easily via a letter, it might be helpful to her and other noble Lords if we had a round-table session to explore some of the broader questions in greater depth. As she rightly said, considerable ramifications emerge from some of these questions, and I think they would be usefully dealt with in a conversational format, with officials present. So, if that idea appeals to noble Lords, I would be happy to arrange it.

[Baroness Hayman of Ullock (Lab)]

I thank the Minister. We would very much welcome that; it would be extremely helpful. I will finish by wishing the noble Baroness, Lady Goldie, a very happy birthday.

--- Later in debate ---

My last and final point is just to say how important Amendment 69, about proportionality, is. There will be voices from across political groups in the very big, strategic issues that are going to be determined by combined authorities. To take proportionality away—to disapply it—is a mistake, and I hope that the noble Earl will take away the very strong feelings that have been expressed in the Chamber and come back with revised proposals.

[Earl Howe (Con)]

My Lords, this group of amendments considers various aspects of a combined county authority’s constitution and its day-to-day working. Although I appreciate it is a probing amendment, Amendment 67, tabled by the noble Baroness, Lady Hayman, would remove the ability of the Secretary of State to amend the regulations on the constitution of a combined county authority. These regulations include the membership of the combined county authority, which must be amended if, for example, another area wished to join a CCA. Members of the new area would need to be added to the CCA. If no such change were possible, there could be no change to the make-up of an established combined county authority, regardless of the wishes of the local area. CCAs must retain the flexibility to include a new area or for an area to leave, or to reflect other such changes.

Turning to Amendment 68, I completely agree with the noble Baroness on the need for consultation with combined county authority members on regulations regarding the constitution of a CCA. Clause 44 of the Bill already goes further than this amendment by providing that the consent of all the constituent councils is required if the Secretary of State is to make any such regulations. It is worth my making the point that these clauses should not be read in isolation, but rather in the round.

I noted the noble Baroness’s position that CCAs, once established, should just be allowed to get on with it, without the involvement of or interference by the Secretary of State. I look at the issue from the other perspective. The clause enables constitutional arrangements for a CCA to be established in the regulations that will also establish the CCA. These arrangements are the fundamental working mechanisms of the CCA; they include aspects such as the membership of the CCA. As such, it is appropriate that they are set out in secondary legislation to ensure the establishment of a stable institution with good governance. A CCA can set out its own local constitution or standing orders with additional local working arrangements. This is done locally and does not require secondary legislation. However, the local constitution cannot be allowed to contravene primary or secondary legislation. There has to be consistency, and we believe that this is the right way to ensure that.

Amendment 69, tabled by the noble Lord, Lord Shipley, and spoken to by the noble Lord, Lord Kennedy, would prevent the Secretary of State making provision for the executive of a combined county authority to represent the political make-up of its members. A combined county authority is to be made up of members from each of the constituent councils on a basis agreed by those councils through their consent to the establishing regulations. These regulations will also provide for the make-up of the CCA’s executive. It is essential that the constituent councils can agree together the make-up of the combined county authority’s executive that properly reflects the local political membership of the CCA. This is essential to underpin the collaborative working required to make a CCA work in practice.

The amendment would, in effect, impose on a combined county authority an executive that did not reflect the make-up of CCA members, which could negatively impact on the working of the CCA. It would also place the executive of a combined county authority in a different position from that of either a local authority or a combined authority, neither of which requires political balance.

Amendment 71, tabled by the noble Lord, Lord Foster, would enable a two-tier district council to be a constituent member of a combined county authority. As I said, the combined county authority is a new institutional model made up of upper-tier local authorities only. Only two-tier county councils and unitary councils can be constituent members of a CCA. We contend that this model will provide the flexibility required for devolution to areas with two-tier local government, which has proved a challenge to date. It allows a combined county authority to be established with agreement from the councils across the area that will be the constituent members of the CCA; that is, the upper-tier local authorities.

I realise that some noble Lords are sceptical about this, but this model removes the risk of one or two district councils vetoing the wishes of the great majority for devolution, as has happened with some two-tier local government areas wishing to form combined authorities, where unanimous consent from all councils in the area, including upper- and lower-tier councils, is needed.

I come back to a point I made earlier. While they cannot be constituent members of a combined county authority and, as such, cannot consent to its establishment, district councils can have a voice in a CCA via the non-constituent member model, as set out in Clause 9. As stated in the levelling-up White Paper, we expect CCAs and their upper-tier local authorities to work closely with their district councils, and have been pleased to see this happening in deal areas. This flexible model will enable the county, district and unitary councils to work together in the way that best meets local needs and wishes. The bottom line, I contend, is that this amendment would defeat those objectives.

It is important for me to say to the noble Lord, Lord Foster, that we are not taking away district council powers. Devolution is about giving power from Whitehall to local leaders. We expect the upper-tier local authorities we are agreeing devolution deals with to work with district councils, as I have said, to deliver the powers most effectively being provided. In discussions thus far, we have been pleased to see collaboration of the kind I have mentioned.

I realise that Amendment 72 is, in essence, a probing amendment. It will not surprise noble Lords to hear that I cannot accept it, because it would prevent a combined county authority resolving that non-constituent members could exercise a vote on matters where the CCA considered this to be appropriate. Non-constituent members are non-voting members by default. As I tried to make clear earlier, the combined county authority can give them voting rights on most matters, should it wish to. For example, a combined county authority may have provided for there to be some non-constituent members from the area’s district councils to enable their input on matters of importance to district councils in the CCA’s area. The CCA may wish to maximise this input by allowing in certain circumstances for these non-constituent members to vote. This amendment would prevent these non-constituent members being given a vote and would risk undermining the CCA’s ability to work in collaboration with its district councils and other non-constituent members.

Amendment 75, also tabled by the noble Lord, Lord Shipley, would prevent a combined county authority resolving that associate members could exercise a vote on matters where the CCA considered this to be appropriate. I am afraid that this is another proposal that I cannot accept, for reasons similar to those I have just outlined for Amendment 72.

Associate members are non-voting members by default, but the combined county authority can give them voting rights on most matters, should it wish to. For instance, a combined county authority may have provided for an associate member who, for example, may be a local business leader or an expert on a local issue to enable the member’s input on matters on which they have relevant expertise in the CCA’s area. The CCA may wish to maximise this input—

[Lord Shipley (LD)]

May I ask for a point of clarification on the associate members? Is it possible that a CCA can decide to give an associate member a vote, but not other associate members, and on what basis would that decision be made?

[Earl Howe (Con)]

I think the answer to that is yes. CCAs can distinguish between associate members in that way. But they would need to justify to themselves why they were according that difference of treatment. Circumstances would dictate a different course in different circumstances.

I come back to saying that the CCA may wish to maximise the input of associate members by allowing—

[Lord Stunell (LD)]

I appreciate the Minster’s reply, but if I could press him a little more, does he see any way at all in which we could differentiate what he is suggesting from the traditional role of the aldermen?

[Earl Howe (Con)]

The noble Lord, Lord Stunell, has stumped me there. As I am not totally familiar with the role of the aldermen, and I am sure he is, I had better write to him on that point, if he will allow.

The point I was seeking to make is that the CCA would in some, if not many, circumstances want to maximise the input from associate members by allowing in certain circumstances those associate members to vote on such matters. The amendment would prevent that happening and could risk undermining the combined county authority’s ability to work in collaboration with local experts who can contribute positively to the working of the CCA.

--- Later in debate ---

[Earl Howe (Con)]

Well, does that not argue for having in certain circumstances a similar status for associate members, who can contribute on a par with the way that commissioners contribute to combined authorities?

[Lord Scriven (LD)]

The point I am trying to make to the Minister is that, if he is going to use an example, it has to be an example of someone who already sits on a combined authority and has that influence, rather than just someone who advises the mayor and does not have a formal role within the combined authority structure.

[Earl Howe (Con)]

I think this was said earlier. I do not think you can take the model of the metropolitan areas and combined authorities and transpose that on to other areas of the country. Why should we not allow for difference, diversity and local decision-making on the way that people are used to best effect?

[Lord Scriven (LD)]

The Minister does not seem to understand. It is not about transposing from an urban to a non-urban issue. This is a matter of principle about democratic accountability for taxpayers’ money being used and that, when people sit at a table, there is some form of democratic accountability back to the people for whom they are making those decisions. The kind of membership that the Bill proposes has no democratic accountability. It is not about transposing a model from urban to rural; it is a matter of principle. If people are spending taxpayers’ money as part of a mayoral combined authority, whether urban or rural, they should be democratically accountable back to the people whose taxes they are spending.

[Earl Howe (Con)]

I sense that this is a matter that we will come back to at a later stage of the Bill. I do not think I can add anything to what I have already said on this subject.

[Lord Kennedy of Southwark (Lab Co-op)]

I will just come back to one point. I was a bit puzzled by the Minister’s response to Amendment 69 in the name of the noble Lord, Lord Shipley. The Government are taking the power in the Bill to disapply the duty to allocate seats on the basis of political proportionality in the combined authority; they are disapplying that power. The noble Lord, Lord Shipley, was seeking to remove that provision so that, if a party had a third or a quarter of the seats, it would expect something similar on the Executive. When the Minister answered the noble Lord, Lord Shipley, he gave an answer that seemed to agree with what he was suggesting while justifying the position of the Government. It seemed perverse.

I know that there are to be proposals for a Nottinghamshire/Derbyshire combined authority. At the moment Derbyshire County Council and Nottinghamshire County Council are controlled by the Conservatives, and Derby City Council is led by the Conservatives. The only Labour council is Nottingham City Council. On the basis set out in the Bill, the three Conservative councils could get together, gang up on the Labour council and throw it out of the committee structure. That surely cannot be right. Why would a minority council join something if it could be ganged up on and removed from the executive? It would not; we want to bring people together. I know that the noble Lord, Lord Shipley, is trying to ensure that this problem could not happen. I do not follow the Minister’s arguments, which were in support of the noble Lord, Lord Shipley, but were used to say that we cannot have the amendment.

[Lord Shipley (LD)]

My Lords, perhaps I could help the Minister at this point by simply suggesting that we add this to the agenda of our meeting, which gets longer and longer as we speak. It is a very important issue, to which we should add the issue of whether the calculation of political proportionality applies to the membership of the CCA—those who are there—or the bodies that each of those members represents, on behalf of which they have been nominated to attend the CCA. You might get a different answer depending on which it is. To avoid a lengthy evening and discussion at cross purposes, perhaps the Minister will agree that we can talk about it around the table; it might be easier.

[Earl Howe (Con)]

I am very grateful to the noble Lord, Lord Shipley, because the last thing I would wish to do is mislead this Committee or lead it down a path that led nowhere. Rather than go round in circles, as I suspect we might if I continued, I would be very happy to take up that suggestion and add it to the agenda of this rather lengthy round table we are planning.

Moving on to the amendment tabled by the noble Baroness, Lady Hayman, I completely agree with her on the need for the constituent members of a combined county authority to agree to the conferral of local government functions on a CCA. This is recognised in Clause 16, which provides that the consent of all the constituent councils is required if the Secretary of State is to make regulations conferring any such functions on a CCA. It is essential that all the constituent councils have agreed to the regulations that establish and confer powers on the new institution to support the collaborative working that is essential for a successful CCA.

I turn to some of the broader issues raised by the noble Baroness, Lady Bennett of Manor Castle, on Clause 25 standing part. I take on board her instinctive antipathy to the concept of having elected mayors, but let me outline the case in their defence. We have seen from our existing mayors how strong local leadership can enhance economic and other opportunities. Mayors act as champions for their areas, attracting investment and opportunity to their places. They provide that single point of accountability to local citizens. Our devolution framework in the levelling-up White Paper places a strong emphasis on the importance of high-profile, directly elected local leadership, strong local institutions, and joint working across sensible and coherent economic geographies. We believe that high-profile, directly elected leaders—such as a mayor—will be most effective in driving levelling up in an area. Such strong local leadership is essential for delivering better local outcomes and joined-up public services.

As such, level 3 of the devolution framework in the White Paper, which is the highest tier, requires an institution to have a directly elected mayor to access the fullest range of functions and funding. In the case of a combined authority, we have seen that directly elected mayors are the clearest and lightest-touch way to provide that single point of accountability that I have referred to, which enables greater risk taking in decision making. In the case of a local authority, a directly elected mayor increases the visibility of leadership and helps create a greater convening power to delivery place-based programmes. That visibility is not to be derided. The Evaluation of Devolved Institutions report in 2021 found that nearly three-quarters of respondents —72%—across all combined authority areas reported that they were aware of who the mayor of their local area was. London, with 97%, and Manchester, with 88% of respondents, reported the highest level of awareness of who their mayor was.

Many noble Lords will be aware of mayors around the country who are already playing an incredibly powerful role in driving economic growth, as well as improving public services and giving local areas a real voice on the national stage. West Midlands would be a good example, where Andy Street has led work to form Energy Capital with the aim of creating a competitive, secure modern energy system that provides low-cost, clean and efficient power, while Andy Burnham and the Greater Manchester Combined Authority have created Our Pass, a membership scheme to provide free bus travel across Greater Manchester for young people. It greatly improves their ability to take advantage of the city-region’s amenities.

Clause 25 enables regulations to be made for a combined county authority to be led by a mayor. It introduces Schedule 2, which sets out the detail of the electoral arrangements. As I have said, this opens the way for a combined county authority area to benefit from the strongest devolution offer available. As I also mentioned earlier, combined county authorities do not have to have a mayor; they can choose to be non-mayoral. We believe that that choice should be made by the local area, in line with our localism principles. Non-mayoral CCAs can access level 2 of the devolution framework, which in itself is valuable and powerful. This clause provides the mechanism for delivering our aim of having strong, visible and accountable leaders to take devolved powers and budgets, and drive the levelling up in their areas.

Amendment 113, tabled by the noble Baroness, Lady Bennett of Manor Castle, seeks to insert a requirement into Clause 26 for there to be a referendum before the Secretary of State may make regulations to provide that a combined county authority should have an elected mayor, and for this question to be approved by a majority of local government electors. I have probably said all I can on the pros and cons of referenda. I am, generally speaking, not a fan, and I have to say that I agree with the point made by the noble Baroness, Lady Hayman, about the cost of putting on a referendum.

Lest there be any doubt about local public involvement, however, I absolutely agree that it is important that the public are consulted on a proposal to introduce a combined county authority mayor in their area, hence the requirement for public consultation in Clauses 43 and 45. For the record, again, Clause 43(4) states that, prior to submitting a proposal for establishing a combined county authority to the Secretary of State, the local authorities proposing to establish it must undertake a public consultation on the proposal in the area that the CCA will cover. If those local authorities are proposing that there is an elected mayor for the CCA, that will be set out in the proposal.

Clause 45(3) includes similar provisions for a proposal from a combined county authority to make changes to existing arrangements relating to that CCA, including introducing an elected mayor for the CCA’s area if moving from a non-mayoral CCA. The authorities or the CCA must undertake a public consultation in those circumstances and submit a summary of consultation responses to the Secretary of State alongside their proposal.

When deciding whether to make the regulations to establish or change a combined county authority for an area, including introducing an elected mayor, one of the tests that the Secretary of State must consider is whether the area’s public consultation is sufficient. If they conclude that it is not, Clauses 44 and 46 provide that the Secretary of State must himself or herself undertake a public consultation before any regulations can be made. So we believe that the existing clauses provide for sufficient local consultation on the introduction of a mayor or a CCA. I know that that reply will not make the noble Baroness, Lady Bennett, any happier, but I believe we are closer to her position than perhaps she thought we might be.

Levelling-up and Regeneration Bill

Earl Howe Excerpts

Committee stage
Monday 27th February 2023 Lords Chamber

[Lord Scriven (LD)]

My Lords, I rise to speak to Amendments 51 and 52 in the name of the noble Baroness, Lady Taylor of Stevenage. As the noble Baroness, Lady Hayman of Ullock, just pointed out, these amendments relate to consultant spend by councils and regional director spends, and their roles in the Government’s levelling-up agenda.

Amendment 51 is important, as the noble Baroness just pointed out. A freedom of information request showed that in the 245 upper and lower-tier councils, £26.9 million has been spent on levelling-up bids. That is £26.9 million taken away from social care, housing, cleaning, street cleaning and bin collection at a time when councils are finding things particularly difficult. Of that money, the vast majority went to external consultants. Does the Minister think it right that £26.9 million should be used on a lottery process pitting town against town and city against city to bid for levelling-up funds, only for the Government to move the goalposts at the last second by changing the criteria against which councils are bidding, which means not only that this money could have been spent on other services but that it has been wasted?

On Amendment 52, I wish to start with a general point, and here I do not necessarily share the sentiments of the noble Baroness, Lady Hayman of Ullock. The concept of 12 regional directors controlled out of Whitehall somehow being the panacea for devolution is ludicrous. Let us be clear: what this will turn out to be is a system of crude decentralisation. Those of us who have been around for quite a while in local government know that when we had something similar in the past, the regional directors of the department dispersed to work with local area partnership boards came with “We are here to help and support you” as their mantra. However, they were used as government enforcers and the eyes and ears of government, going back to the department and saying which areas were in the good books and who should be put on the naughty step because they were not carrying out the Government’s agenda.

Reports back from such regional directors decided who got money and what sticks or carrots were deployed. I know that the noble Earl will pour out soothing words from the Dispatch Box, saying that is not the role, but history shows that it is. Look at the job advert issued in November 2022—it kind of gives the game away. It says that they will report progress to the newly established committee for levelling-up, which is exactly the same as the previous directors in the department did.

We are now told that these regional directors are on hold, but that they could be answerable and accountable to the mayors. Let us take Yorkshire as a region, as these are regional directors. We could have four mayors in Yorkshire with different agendas and from different political persuasions. To which mayor will the regional director be accountable—one of them or all of them? It is clear that these roles have not been thought through from a regional perspective but from an office in Whitehall, with a very Londoncentric view of how they can be used as government enforcers.

Talking of Yorkshire, we are a little perplexed—not that we are from Yorkshire, but perhaps the Minister can help with this. Civil Service World on 17 February had an interesting headline, stating that the department

“hires former … No. 10 official as levelling-up director.”

Ed Whiting, David Cameron’s former deputy private secretary has been hired, and he very helpfully tweeted that he has been recruited to the role of levelling-up director in the north, based in and working out of Leeds:

“I’ll be based in Leeds, hoping to be travelling round North”,


working with local councils and others on innovation. He also expects to travel to London often too—ah, yes, that newly established Cabinet committee for levelling-up has to be informed. He goes on, quite incredibly—he has been hired on a six-figure salary—to say that “details” of the new role are “tbc”.

We are perplexed, Minister, and some clarification would be helpful. Is Mr Whiting a regional director for levelling up and, if not, what is his role and how does it fit with the regional directors? When was he recruited, where was the job advert and who sat on the recruitment panel? Why have local authorities in the north not been informed officially who he is and how he is there to help them? Why has someone been recruited on a six-figure salary when their role is still to be confirmed?

That is why Amendment 52 is important. We need transparency and clarity on who the department is using in the regions and what roles they have, to ensure the Government do not establish an expensive decentralized bureaucracy, costing the taxpayers millions, trying to enforce their agenda in local areas.

[Earl Howe (Con)]

My Lords, as we have heard, this group of amendments is related to consultants and the Government’s appointment of levelling-up directors. Specifically, Amendment 51, in the name of Baroness Taylor of Stevenage, would require the Government to publish an estimate of how much local authorities have spent on consultants in relation to Part 1 of the Bill. I fear that requiring local authorities to report in this way would be disproportionate and unnecessary, but let me explain why.

The new burdens doctrine, established and maintained by successive Governments, requires all Whitehall departments to justify why new duties, powers, targets and other bureaucratic burdens should be placed on local authorities, as well as how much these policies and initiatives will cost and where the money will come from to pay for them. This provision already ensures that the Government must properly consider the impact of their policies, legislation and programmes on local government and fully fund any new burdens arising.

Further, local authorities are already bound by the Local Government Transparency Code, which mandates local authorities to publish data on all expenditure over £500 in open and accessible formats. I will come back to that point in a second, but I have a great deal of sympathy with the points made by the noble Baroness about expenditure by central government on consultants.

[Baroness Hayman of Ullock (Lab)]

Will the Minister clarify something? When he says that the Government fully fund any new burdens, does that mean that the Government are reimbursing local authorities for the cost of creating their bids?

--- Later in debate ---

[Earl Howe (Con)]

It would depend on the circumstances. It would depend on whether the expenditure on consultants was classified as a truly new burden or not, and that is an arcane science on which I do not pretend to be expert. Perhaps I may provide the noble Baroness with clarification in writing on that point, because I recognise that it is of relevance.

As I was saying, I have a great deal of sympathy with the noble Baroness’s points on expenditure by central government on consultants. As a matter of principle, I think all Secretaries of State across government would agree that they should impose a self-denying ordinance on their departments where skills can be developed in-house. Where that can happen, it should. The problem is, I suggest, twofold. First, the skills needed are very often highly specialised; secondly, if one looks across government as a whole, it is very difficult to make general statements about the needs of individual departments. However, I think the noble Baroness and I are aligned in our antipathy to expenditure that may turn out to be unnecessary—certainly expenditure that turns out to be wasteful. No department wants to go down that road.

On expenditure, transparency, as so often, is key. I note the comments of the noble Lord, Lord Scriven, about consultancy expenditure by local authorities in preparing their bids. I would just say to him that the decision by some local authorities to appoint consultants in their bidding process was a decision for them, and such decisions will doubtless have reflected in part the point that I just made: that the necessary skills are not always on tap locally. I think that is all I can say about that, but I will write on his questions about Mr Whiting, as I do not have the necessary briefing on that in front of me.

[Lord Scriven (LD)]

I want to ask a specific question, which I think the noble Baroness, Lady Hayman of Ullock, also asked. Has any regional director been appointed? That is the key question, particularly about Mr Whiting.

[Earl Howe (Con)]

I am coming to Amendment 52 in a second. It might be helpful if I added a few comments about local government funding more generally, because we recognise that the sheer number of different funds has become onerous for some councils to navigate and deliver. We have taken initial steps to address this complexity in the funding landscape. For example, the levelling-up fund provides cross-departmental capital investment in local infrastructure, and the UK shared prosperity fund provides resource-focused investment to support people, boost pride in place and strengthen communities. However, the levelling-up White Paper made it clear that we can do more, and we will set out a plan on funding simplification shortly.

--- Later in debate ---

[Lord Berkeley (Lab)]

My Lords, I have listened to this debate very carefully. The noble Lord, Lord Scriven, talked about Yorkshire, which he clearly knows well. Apparently, this new director will be based in Leeds. Several times “the north” was referred to—but does “the north” include west of the Pennines or is that a different area? What is the geographical boundary of these things, or is it still fluctuating?

[Earl Howe (Con)]

It is open for decision. We want to see local areas taking the initiative themselves. Where there is a functioning economic hub, for example, or a whole county, they may wish to apply for CCA status, but it is up to them to make those decisions. One can talk in general terms of “the north”, but until we know that the appetite is in those northern areas for taking advantage of the opportunities that we are trying to create, I cannot be more specific.

[Lord Scriven (LD)]

For clarity, the issue with Mr Whiting, to whom I referred, is that, as the Minister helpfully said, no regional director has been appointed so far. However, Mr Whiting describes himself as a regional director for the north and not for a particular region. Therefore, it is important that, when the Minister writes to me, he clarifies exactly what Mr Whiting’s role is and how it fits with the regional directors.

--- Later in debate ---

Therefore, if combined authorities do not have prior public debate and prior consultation and approval, what we get is the creation of another remote institution making decisions for local areas without direct accountability for them. Can the Minister explain what policies and proposals of combined county authorities can be questioned and challenged before final decisions are made? Currently, scrutiny arrangements in combined authorities are of the implementation and outcomes of decisions. I am keen to hear from the Minister whether the Government support the idea of pre-decision scrutiny to help to improve outcomes and involve more elected representations. In that way, more local people—or, certainly, their elected representatives—will have a say in any policies and priorities that are set out by the combined authorities. I support these two amendments and look forward to the reply.

[Earl Howe (Con)]

My Lords, this group of amendments relates to the area of a combined county authority, the new type of local government institution being provided for in Part 2 of this Bill. Provisions in this part support the delivery of the local leadership mission of the levelling-up White Paper, to enable by

“2030, every part of England that wants one”

to

“ have a devolution deal with powers at or approaching the highest level of devolution and a simplified, long-term funding settlement.

[Baroness Pinnock (LD)]

I am sorry to interrupt so early in the Minister’s response, but could he define more clearly what the “highest level of devolution” actually means?

[Earl Howe (Con)]

If the noble Baroness will bear with me, I shall do my best on that.

Noble Lords will be aware that 10 combined authorities have been established since 2011 in our city regions. However, we recognise that such authorities might not be so appropriate for non-metropolitan areas. The new model of combined county authorities is more appropriate for non-metropolitan areas, many of which have two-tier local government. It enables the establishment of a single institution covering a functional economic area, or whole county geography, which would be a suitable institution to provide effective leadership over an appropriate geography to qualify for a devolution deal.

I take on board the comments of the noble Baroness, Lady Taylor, about local government funding, but it might be helpful if I added a little to the information I gave the Committee in the last group of amendments. Our intention is to set out a plan for streamlining the funding landscape, as I mentioned, to provide greater flexibility for local authorities and make it easier to navigate opportunities for growth. This will include streamlining local growth funds, reducing inefficiency and bureaucracy and giving local government the flexibility it needs to deliver for local economies. As part of this work, we expect that there will be fewer small competitions. Where competitive funds do exist, we will look to streamline bidding and support greater alignment between revenue and capital sources. We will also consider the monitoring and evaluation requirements to ensure that places have robust, proportionate, ongoing monitoring and evaluation plans for the impact and delivery of investments and spending.

Amendment 60, tabled by the noble Baroness, Lady Taylor, seeks to allow part of a two-tier county council area to be included in a combined county authority, rather than the whole county council area. This would not be consistent with the policy we set out in the White Paper, whereby we will devolve to an institution covering a whole county geography or functional economic area. I will come on in a moment to the rationale for that model. In a combined county authority, such as the intended East Midlands CCA, the upper-tier councils within the area covered by a combined county authority are the constituent members of the CCA. There is no upper-tier council that covers part of a two-tier county council’s area; the only upper tier council is that two-tier county council, whose area covers a wider geography. As such, as the two-tier county council will be the constituent member of the combined county authority, the whole area that the council covers must be part of CCA’s area.

Moreover, allowing part of a two-tier county council’s area to be part of a combined county authority would not be consistent with the levelling-up White Paper’s principle of devolution being to institutions covering functional economic areas or whole county geographies, over which a number of functions should be exercised for maximum effect. Splitting the responsibility for such functions could also lead to discrepancies—

[Baroness Pinnock (LD)]

Can the Minister explain, then, where the geographies of a county area do not coincide with the geographies of an economic or travel-to-work area? Often, they do not. What I have heard is that you can either have a functioning geography of a county and its two tiers, or the alternative, but not a mixture of the two.

[Baroness Taylor of Stevenage (Lab)]

May I add to what my noble colleagues have said? This goes to the heart of this amendment. We struggle to say how you can have a county with more than one functioning economic area included in that county. To take my county as an example, the south of the county largely relates to London, because some of the boroughs almost are London boroughs, whereas the north of the county relates much more to Cambridge and Bedfordshire. There are definitely two distinct, functioning economic areas within one shire county. The shire counties go back centuries: their economic geographies have changed very considerably since then. If you take the economic geography of my noble friend Lady Hayman’s area, people in Cumbria may even relate to an economic area that includes parts of Scotland. This is not a simple picture around the country.

[Earl Howe (Con)]

Some extremely sensible and logical points have just been made. Perhaps I could address them by pointing out the contrast to what we have seen up to now. Devolution deals, up to now, have typically been put in place in city regions, where they cover the functional geographies in which people travel, commute, work and live.

The Government absolutely recognise that functional economic geographies are far less clear-cut in rural and semi-urban areas, and that the strategic scale and cultural and political resonance of county identities can act as a useful proxy. One can work only on the basis of best endeavours when trying to decide what a sensible area looks like. On a best endeavours basis, deals should be agreed over a sensible geography of a functional economic area, with a single institution in place across that geographic footprint to access more powers. That is the aim.

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[Lord Scriven (LD)]

I am sorry to interrupt the Minister, but he keeps talking about complexity. This is complexity of boundary, not of reality. I will give him a situation where complexity may hold back the levelling-up agenda. Let us again take the top end of the east Midlands and South Yorkshire. If both the South Yorkshire combined authority and the Derbyshire and Nottinghamshire combined authority have control of the skills money, the fact that probably about half the people from the north end of the east Midlands come up into South Yorkshire means that the skills required should be funded for jobs available in the South Yorkshire combined authority. If the Derbyshire and Nottinghamshire combined authority decides not to invest in that type of skill, the issue is that the flow of labour will not be there for South Yorkshire businesses. How does that kind of problem get solved? It is not an administrative issue but the reality of having the skills where real people and businesses travel and work together.

[Earl Howe (Con)]

I take the noble Lord’s point. The experience we have had with combined authorities is that local authorities’ natural tendency is to co-operate with each other. We have seen this all over the place: they do not want to operate in silos and they look outside their boundaries. Yes, there may well be cases where at the beginning there would seem not to be a particularly good fit, but that does not preclude two authorities, such as those he mentioned, getting together and finding a way through, if they possibly can, to address the mismatches of the kind he mentioned.

Amendment 99 seeks to amend Clause 23 to require a public consultation before any proposal to change the area of an existing combined county authority. We agree that those with an interest in the area should be consulted before a combined county authority is changed. As I said, we will have more to say about this in the debate on the next group of amendments.

Clauses 45 and 46 set out a requirement for a public consultation on any proposals from the local area on changes to the area of a CCA. Where a combined county authority has been established and subsequently seeks to change its boundary, Clause 23 enables the Secretary of State to make regulations for areas to achieve that. The Secretary of State may make regulations changing the area of a CCA if that is something the area consents to, the Secretary of State agrees and Parliament approves the necessary secondary legislation.

We fully recognise the crucial importance of residents in the local area having a say; that is common ground between us. That is why any CCA or local authority seeking to submit a proposal to the Secretary of State to change the area of a CCA must carry out a public consultation, as set out in Clause 45(3). This consultation must take place in the area covered by the CCA. This enables local residents, businesses and other interested parties to have a strong input into any such proposals. A summary of consultation responses is then to be submitted to the Secretary of State alongside the proposal.

Clause 46 provides an additional safeguard to ensure that there is sufficient public consultation. This enables the Secretary of State to undertake a consultation prior to making any regulations to enact these changes if they feel that there has been insufficient public involvement in their development.

We completely agree with the sentiment of Amendment 99, but I suggest that we already have provisions later in the Bill to address this; we will debate some of these in a few moments. I therefore hope that the noble Baroness feels able to withdraw Amendment 60 and not to move Amendment 99 when it is reached.

[Baroness Taylor of Stevenage (Lab)]

My Lords, I am pleased we tabled these probing amendments, because they have brought out some of the discussion we needed to have in these areas. I am grateful to the noble Baroness, Lady Pinnock, for her comments. She said that “combined county authority” is a misnomer, and I think she is absolutely correct.

Previous responses indicate that we could include unitaries and counties all within a two-tier area. It is not clear in the Bill what that might mean. In the example of Nottinghamshire and Derbyshire, with the overlap of economic areas and travel-to-work areas, et cetera, the geography is far more complicated than back in whatever century it was when the county shire boundaries were devised. The purpose of my amendment was to determine whether parts of a two-tier area would be required to join a CCA if it did not work for them. It is really important that we do some more probing around this and think about it more.

We did not get on to the subject of population, which I will come to in a minute. My concern with this is that we have the phrase that the Secretary of State can determine “by regulation” what a combined county authority will look like. That does not seem to me to be in the spirit of devolution in any way whatever. If it is for the Secretary of State to determine that by regulation, I would be interested to know the noble Earl’s view on how that would be conducted in relation to the partners in the local area.

I am grateful for the noble Earl’s extensive response on this, which is an indication that we are moving the debate forward somewhat. I will come back to the issue of the functional economic area. These are not neatly contained now within county council areas. We have heard a few examples of that. We need to focus on that and think about how we might amend the Bill to recognise that.

The noble Earl spoke about streamlining funding. I was grateful for those comments and I am sure they will be welcomed across local government, but when will we see the detail of how that streamlining of funding will work? If he has any more information on that, it would be helpful.

I have a lot of sympathy with what the noble Earl said about city regions. They make a lot more sense—I spent quite a lot of time with colleagues in the city region in Manchester looking at how that works. However, that does not mean that that model can be lifted and put down in areas that are very different in this country. The difficulties that we have set out underline exactly why there must be flexibility for local areas to consider for themselves what the appropriate geography might be for them.

I return to the issue of population size. In previous iterations of these bids for devolution, we were told that any bid under 600,000 population would not be considered. My county of Hertfordshire has a population of 1.2 billion—sorry, 1.2 million; I am exaggerating—which is a very different issue from a rural county that might have a population of only 300,000. That is why this is much more complicated in shire areas. Will the noble Earl comment on whether population issues will be taken into consideration in relation to the size and constitution of combined county authority areas?

[Earl Howe (Con)]

It may be helpful to the noble Baroness if I comment on that specific question. We expect upper tier local authorities with a population of less than 500,000 to collaborate with their neighbouring authorities to agree a sensible geography for a devolution deal. Where neighbouring local authorities wish to join a deal which has been negotiated and have the same level of ambition, we will expect other authorities to take this seriously in order to secure devolution and to avoid areas being stranded. Once again, I come back to the point I made earlier that our experience with combined authorities has shown that this kind of co-operation takes place quite readily. That is the position we have taken currently.

[Baroness Taylor of Stevenage (Lab)]

I am grateful to the noble Earl for his clarification. It covers one side of the picture with the smaller county areas. However, larger county areas, where the population may not lean towards a single county authority, should still be a subject for discussion.

I agree that we have several amendments relating to consultation processes and that the other amendment in this group probably sits better with those, so I am happy to postpone discussion of that until the future group. However, the principle of consultation, and recognising the importance of local areas having a say, seems to be enshrined for all the other issues around the setting up and dissolution of a CCA. If it is right for those, it must be right for a change of boundaries too. That is the point we were trying to make with Amendment 99. That said, we have had a useful discussion and I am happy to withdraw Amendment 60 at this stage.

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[Earl Howe (Con)]

My Lords, as we have heard, this group of amendments covers preconditions for establishing, and indeed disestablishing, a combined county authority. This process is locally led and it aligns with the process for a combined authority that we have seen successfully used in many areas to date.

Amendment 61, tabled by the noble Baroness, Lady Taylor of Stevenage, seeks to insert a requirement into Clause 7 that the Secretary of State can establish a combined county authority via regulations only if they deem there to be at least 60% support from local residents in the area to be covered by the CCA. In a similar vein, Amendment 127, tabled by the noble Baroness, Lady Bennett of Manor Castle, seeks to insert a requirement into Clause 44 for there to be a referendum before the Secretary of State may make regulations to establish a combined county authority, and for this question to be approved by a majority of local government electors.

We do want to ensure that the local public, in the broadest sense, are consulted on a proposal to establish a combined county authority in their area. This desire on the Government’s part is already captured by the requirement for a consultation provided for in Clause 43. Clause 43(4) states that, prior to submitting a proposal for a combined county authority to the Secretary of State, the local authorities proposing the establishment of a CCA must undertake a public consultation on the proposal in the area that the CCA will cover.

The noble Lord, Lord Shipley, asked, perfectly reasonably, what a proper consultation would look like. One important element is that it would have to cover the waterfront, as it were, in terms of stakeholders, to get a real sense of the strength of feeling and the climate of opinion in an area, and the extent to which an authority has taken the trouble to represent the scope of that opinion and feeling in the submission it makes. Once the consultation has happened, the authorities must submit a summary of consultation responses to the Secretary of State alongside their proposal.

When deciding whether to make the regulations to establish a combined county authority for an area, one of the tests the Secretary of State must consider is whether the area’s public consultation is sufficient. That is a judgment the Secretary of State must make in the light of the information presented, but if they conclude that it has not been sufficient, Clause 44 provides that the Secretary of State must undertake a public consultation before any regulations can be made.

I noted the point made by the noble Baroness, Lady Hayman, and will take advice on why that clause is worded as it is. I suggest to her that there is nothing sinister in it—it is the way that these legal provisions have to be drafted—but the net effect is as I have described, because what we wanted to introduce was a safety net, as it were, of a further Secretary of State-initiated consultation if that was deemed necessary. I hope the fact that we have done that demonstrates the importance which the Government attach to the consultation process.

We believe that the existing clauses provide for sufficient local consultation. I hope the way I have outlined the provisions and what we intend them to do in practice has persuaded the noble Baroness, Lady Bennett, that a referendum would be unreasonably burdensome. What we want, above all, is transparency of local opinion and that I hope we will get.

[Baroness Bennett of Manor Castle (GP)]

Many examples are flashing through my head, but I am thinking about one particular local government consultation that I saw, which happened to be around the city of Chester. The consultation asked, “Do you want to build on the green belt in areas A, B, C, D or E?”. Many local people pointed out to me that they wanted to say, “None of the above”, but there was no space in the box or provision to do that. So can the Minister reassure me that part of the Secretary of State’s examination of the summary of consultation responses will look at whether the consultation truly gave the space for local opinion to be expressed?

[Earl Howe (Con)]

That is certainly the aim. I do not know whether the noble Baroness would agree with me that one of the downsides of referendums that we have seen in the past is that people are asked to take a binary decision. That very often does not allow for the nuances and subtleties of an issue to be presented in the question, to put it at its mildest. So we think the consultation model is more appropriate for this type of situation, particularly as the different constituent elements of a community will have different interests and viewpoints on the issue in question.

[Lord Scriven (LD)]

It is clear that, even barring a referendum, under Clause 44(3)(c) the Secretary of State will ask for further consultation if they consider that it is required. I assume that the Secretary of State will not have a subjective opinion on that and that there will be some objective criteria. It therefore comes back to what my noble friend Lord Shipley said: would it not be wise for the objective criteria about what good consultation is to be shared and, potentially, to be in the Bill? That would stop the position where local authorities had to rerun a consultation because it had not met the criteria which the Secretary of State was looking for in the first place.

[Earl Howe (Con)]

Yes, I take the noble Lord’s point. It comes back to one that I think the noble Lord, Lord Shipley, made about minimum standards in this area. It might be helpful if I took advice on this and wrote to noble Lords who have taken part in this debate, to see whether I can add some clarification.

Turning to Amendment 62, tabled by the noble Baroness, Lady Taylor of Stevenage, the levelling-up White Paper clearly states the Government’s ambition for devolution, including the devolution framework, which is underpinned by four principles. One of these principles is sensible geography. The White Paper clearly states that future devolution deals should be agreed over a sensible, functional economic area and/or a whole-county geography, with a single institution in place across that geographic footprint. We have already debated that issue on the previous group. The combined county authority model is being established in the Bill to provide a single institution that can cover such functional economic areas, or whole-county geographies, where there is existing two-tier local government and multiple upper-tier councils. As such, I reassure the noble Baroness that combined county authorities will be focused on single economic hubs.

Higher Education (Freedom of Speech) Bill

Earl Howe Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Lord Collins of Highbury (Lab)]

I will be very brief. There is a danger of this debate widening out too far. In Committee, I advocated to the Minister the UNESCO definition of academic freedom. Of course, there is always that confusion between academic freedom and freedom of speech. I was assured by the Minister in Committee, so I was satisfied with what the Government were saying. I hear what the noble Lord says about quality, but standards of teaching and research are a very important element of our universities; we should not forget that. We should not promote one argument and then undermine the very thing that our universities are very popular for globally. We do not support this amendment. We agreed with what the Minister said before and I look forward to his response today.

[Earl Howe (Con)]

My Lords, as we have heard, the amendments in this group relate to the important issue of academic freedom. I turn first to Amendment 4, tabled by the noble Baroness, Lady Fox of Buckley, which seeks to amend the definition of academic freedom set out in new Section A1 to make it explicit that academics can voice opinions about the institutions where they work, without fear of adverse consequences.

In responding to a similar amendment tabled in Committee by my noble friend Lord Strathcarron, to which the noble Baroness also put her name, I clarified, as the noble Lord, Lord Collins, kindly mentioned, that the definition of academic freedom as currently drafted already covers the questioning and testing of received wisdom, and the putting forward of new ideas and controversial or unpopular opinions. This speech is not limited to particular subjects, so it would include speech concerning the institute at which an academic works. The Bill will therefore already protect the freedom of academics to put forward opinions about the curriculum content adopted by their provider or third-party organisations with which the provider is affiliated.

As the noble Baroness highlighted, there is a reference in the explanatory statement to the UNESCO recommendation. It may be helpful for me to put on record that the Bill as drafted protects academics in a number of the ways listed in that recommendation. Specifically, it protects the rights to freedom of teaching and discussion; freedom in carrying out research, and disseminating and publishing the results thereof; freedom to express freely their opinion about the institution or system in which they work, as I have already said; and freedom from institutional censorship. However, the Bill does not cover conduct which is not speech, such as the act of affiliating with or joining an organisation.

The noble Baroness also referred to the 2015 case of Kharlamov v Russia, and I can confirm the essential features of the case that she set out. Mr Kharlamov was a physics professor who said during a conference that he was unhappy with the nominations process for candidates to the academic senate. The university sued him for defamation. The European Court of Human Rights in due course found in his favour on the basis that the Russian courts failed to fairly balance the relevant interests and establish a pressing social need for protecting the university’s reputation over the claimant’s freedom of expression. I hope that, in the light of what I have said, noble Lords are reassured that this amendment is not in fact needed.

Amendment 5 tabled by the noble Lord, Lord Wallace of Saltaire, seeks to probe the workability, as he put it, of new Section A1(7)(b) in Clause 1. Taken at face value, it would amend the definition of academic freedom so that it would no longer specify that an academic should not be put at risk of a reduced likelihood of their securing promotion or different jobs at the provider. I realise that it is a probe. It is correct that this provision is not included in the existing legislative definition of academic freedom in the Higher Education and Research Act 2017 and the Education Reform Act 1988. However, we want to be clear in the Bill that academic staff should be protected in as expansive a way as possible—so not only from losing their job or privileges, but from being less likely to secure promotion or a different job at the provider. If we do not specify that these are also covered, there may be only partial protection. A person might not be fired but might be held back in their career, by not being promoted or given another role at the provider because of something they have said.

As I mentioned, the noble Lord wants to know how this provision will work in practice. An academic will of course need some evidence to support a complaint that they have been wrongly held back because of their views. They may have been told by a colleague the reason why they have not been promoted. There may be notes from an interview that suggest why this is the case. There may be an email which makes this clear. In the face of such evidence, the question will then be whether the provider has failed to comply with its duties under the Bill. I note the noble Lord’s point about the OfS guidance and I will ensure that the OfS also does so. This is the way that evidence in employment law is often presented. It is not new, nor is the concept of protection from not being promoted, since that can be a matter leading to constructive dismissal, which has been a feature of employment law for some time.

I hope that this explanation reassures the noble Lord that this is an important aspect of academic freedom in the context of freedom of speech, and that he agrees that the provision will protect academic staff to the fullest extent.

[Baroness Fox of Buckley (Non-Afl)]

I really appreciated the comments of noble Lords in this short debate. I want to stress a couple of things. This is not about the rights and wrongs of any particular examples I gave; it is perfectly legitimate if people want to support decolonisation or critical race theory, for example, but the point is that it is not imposed. I am also concerned about an ideological conformity that stifles the sort of professional exchanges that the noble Lord, Lord Wallace of Saltaire, was advocating.

I was bemused when the noble Lord suggested that I was almost stuck in some social science nightmare. As the noble Lord, Lord Patten, pointed out, it is precisely the fact that this has now been extended into the hard sciences that may wake up even the noble Lord, Lord Saltaire, to the problems, as perhaps he should look quite closely at the decolonisation of physics, computing or mathematics. The noble Lord, Lord Patten, was right when he said, “Why does everybody not just leave the QAA?” In many instances during the discussions in this House, people talk as though we all run colleges. The problem is, if you are an academic in a college where the college vice-chancellor or principal does not resign from the QAA but rather likes it or cites it, what do they do? I hope everybody tears up their QAA membership because of this, but what if they do not?

The noble Lord, Lord Hunt of Kings Heath, really explained what is at stake here. I was avoiding mentioning Stonewall but, in a way, that is what got me interested in this very thing. It has become compelled speech for individual academics who are told that because of the institutional values that the university has signed up to—for example, around the compulsory use of pronouns and/or a particular attitude to biological sex versus trans identity rights, and so on—if you do not agree, you are open to being accused of bigotry and sent on mandated courses. I was not joking; individual members who criticised the music decolonisation were indeed put under huge pressure by people at the university to go along with this. I said “the university” but I do not always understand the institutions and it is fair enough if the noble Baroness, Lady Royall, wants to correct me.

I will finish with this point. I mentioned the Architects Registration Board. We are in a situation whereby a statutory body that the Government are involved in says that all architecture academics must teach all levels of architecture the realities of the ecological crisis. That is a national curriculum by the back door. It is a difficulty that has to be recognised. I want to take the reassurance of the Minister, who said, “Don’t worry, it’s all taken care of”, but, as the noble Lord, Lord Moylan, explained, references to and uses of these international examples can only strengthen the message, with which the Minister seems to agree, about the legal obligations on university management not to allow these kinds of things to get in the way of academic freedoms. It would be a great reassurance to individual academics to know that this is what the Bill wants to do and to see it spell it out. What harm could it do?

Although I will withdraw my amendment at this point, I do not want the Minister to become complacent. This is a really big, serious contemporary issue that must be taken on board by the Government—indeed, whoever is in government.

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Moved by

[Earl Howe]

7: Clause 1, page 2, line 36, leave out from “speech” to end of line 38 and insert “are to the freedom to impart ideas, opinions or information (referred to in Article 10(1) of the Convention as it has effect for the purposes of the Human Rights Act 1998) by means of speech, writing or images (including in electronic form);”
Member’s explanatory statement
This amendment proposes a new definition of “freedom of speech” referring to the European Convention on Human Rights, as it has effect for the purposes of the Human Rights Act 1998.

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Moved by

[Earl Howe]

9: Clause 1, page 2, line 38, at end insert—
““member”, in relation to a registered higher education provider, does not include a person who is a member of the provider solely because of having been a student of the provider;”Member’s explanatory statement
This amendment excludes those who are members of the provider, solely due to having been a student of the provider, from being a “member” of the provider for the purposes of Part A1 of the Higher Education and Research Act 2017.

[Earl Howe (Con)]

My Lords, government Amendments 9, 12 and 31 are officially classed as “minor and technical” although I would not want to downplay their significance. They will clarify that the term “members” in the Bill does not include a person who is a member solely because of having once been a student of a provider or constituent institution. The term “members” is intended to include those who are not technically staff but are closely involved in university life, in particular members of the governing councils of universities and retired academics who are emeritus professors.

However, the noble Lord, Lord Wallace of Saltaire, tabled amendments in Grand Committee with the intention of probing the meaning of “members” in the Bill; the noble Baroness, Lady Smith, spoke on his behalf. During the debate, several noble Lords expressed concern at the use of the term “without qualification”, as some registered providers and colleges treat their students as members for life. After the debate, my officials looked into the matter and confirmed that this is the position in the case of, for example, the University of Cambridge.

As a result, the Government have tabled these amendments to clarify that alumni of providers and colleges are not covered by the Bill. It is not our intention that providers and colleges should have duties that extend so widely, even to people who have no current relationship with them other than as ex-students. I should make it clear that, if a current student’s freedom of speech is wrongly interfered with, they may still make a complaint even after they have left university. These amendments do not affect that. I am grateful to the noble Lord, Lord Wallace, and the noble Baroness, Lady Smith, for initiating in Grand Committee the discussion that brought this issue to light; I hope the House will agree that these amendments are necessary.

Amendment 24, as tabled by the Government, will distinguish between new functions imposed on the Office for Students by the Bill. It will amend the power in new Section 69A(2), in Clause 5, so that it refers to “how to support” freedom of speech and academic freedom, rather than “the promotion” of these values.

My noble friend Lord Willetts tabled some amendments to Section 69A in Grand Committee. When my officials considered these, it came to light that the wording of this provision might cause some confusion. This is because it refers to

“the promotion of freedom of speech and academic freedom”.

That wording replicates Section 35 of the Higher Education and Research Act 2017, which provides that the OfS may

“identify good practice relating to the promotion of equality of opportunity, and … give advice about such practice to registered higher education providers”.

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[Lord Grabiner (CB)]

My Lords, I have just a very brief point. I welcome, in particular, the amendments brought by the Government in relation to the meaning of the word “member” in this context. That is an extremely sensible development in the drafting of the Bill. All that I would say is that, certainly in Cambridge, there is not simply an adoption of the assumption that alums are known as members, but that fact is frequently recorded in the statutes of the particular college. It may well be worth reflecting this amendment in the code of practice in due course, so that there can be absolute clarity that the Bill makes this important distinction between what the college statute may say and what the legislation says.

[Earl Howe (Con)]

My Lords, I thank the noble Lord, Lord Grabiner. I think that is an extremely helpful suggestion which I will ensure is duly noted.

Amendment 9 agreed.

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Moved by

[Earl Howe]

13: Clause 3, page 4, line 41, leave out “, beliefs or views” and insert “or opinions”
Member’s explanatory statement
This amendment is consequential on the Minister’s proposed new definition of “freedom of speech” (see the amendment to Clause 1, page 2, line 36 in the Minister’s name).

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Moved by

[Earl Howe]

17: Clause 4, page 6, line 22, after “A1” insert “that causes the person to sustain loss”
Member’s explanatory statement
This ensures that only persons who have sustained loss can bring civil proceedings under the new section A7 inserted into the Higher Education and Research Act 2017 by the Bill.

[Earl Howe (Con)]

My Lords, the Government have tabled Amendments 17, 18 and 19 in response to an amendment tabled in Grand Committee by the noble and learned Lord, Lord Etherton. These amendments make clear on the face of the Bill what we have maintained is already the case: only a person who has suffered a loss as a result of a breach of the specified duties can bring a claim before the courts. This is not limited to pecuniary loss and could include damage to reputation, for example. I am happy that we can make that clear.

Amendment 20, tabled by the Government, provides that claimants must first have exhausted the complaint procedure of the OfS or the OIA before they can bring proceedings under new Section A7. Both Policy Exchange and the Russell Group have called for an amendment along these lines as a considered and proportionate response. This amendment will mean that a complaint on the same subject must have been made to either complaint scheme, and that a decision must have been made under the scheme on the extent to which the complaint was justified.

If a complaint fails because, for example, it is brought out of time under the rules of the complaint scheme, then the complainant will not be able to bring a civil claim. It is useful to note that the OIA has a deadline of 12 months, so the OfS may have something similar. We think that this outcome is right. Equally, if the OfS or OIA dismisses a complaint without considering its merits because it considers it frivolous or vexatious, as they are entitled to do, the complainant would also not be able to bring a civil claim under new Section A7.

However, I should be clear that, if the complainant is unhappy with a decision of the OfS or OIA which means that they would be unable to bring a claim under new Section A7, then judicial review will be available for them to challenge it. The purpose of Amendment 20 is to make clear what we have always said: the tort will operate as a backstop, since we did not anticipate that many complainants would pursue legal proceedings rather than the free-to-use complaint schemes.

I am therefore happy to make this clear in the Bill on the basis that it will alleviate concerns raised by several noble Lords that the statutory tort will burden universities with dealing with unmeritorious and costly claims, as well as potentially undermine the OfS as a regulator and operator of the new complaints scheme. This point has been made by the noble Lord, Lord Grabiner. On this latter point, I should say that the OfS will undoubtedly welcome case law from the courts, since it will help going forward on its decision-making and formulation of guidance.

I will say more when I sum up. I hope that noble Lords will see these amendments as helpful and as a useful response to the debates we had in Grand Committee. I beg to move.

[Lord Grabiner (CB)]

My Lords, I thank the noble Earl the Minister and the Minister the noble Baroness, Lady Barran, for the explanations that they have provided in the House, in correspondence and at meetings that we have had. That said, I am afraid that I am still firmly against Clause 4 and believe that the Bill would be improved if it were deleted.

I will not repeat the points I made in Committee, but I summarise my concerns by reference to the Minister’s closing remarks on day 3 in Committee on 14 November, in Hansard cols. 725-30, and the government amendment now before us. My starting position, unlike that of some noble Lords, is that I am in favour of the introduction of the new duties to be imposed on universities, colleges and student unions. The Minister has given many examples of absolutely unacceptable behaviours designed to undermine speech freedom. In short, I agree with the Government that, in light of the developing experience, it is now necessary—unhappily—to enshrine freedom of lawful speech in primary legislation.

We have two very experienced regulators in our higher education system: the Office for Students and the Office of the Independent Adjudicator—the OfS and the OIA. In my view, these new duties should be enforced only by the expert regulators. This would be a natural and logical extension of their regulatory powers and they would bring to bear their specialist expertise in this clearly defined area of educational activity. It is also the case that these regulators are subject to judicial review in the courts. Thus, if the decision-making regulator takes into account irrelevant matters, or fails to take account of relevant ones, or is plainly wrong in law, the complaining party can apply for judicial review. If it is necessary to have what the Minister calls a “backstop”, the judicial review mechanism fits the bill precisely. Given the regulatory and higher education context, I do not believe it is necessary, still less is it desirable, to make express provision giving a civil law cause of action in tort which would enable the claimant to pursue a claim in court against the university, the college or the student union, as the case may be.

In the debates that we have had thus far, it seems to me that three issues have emerged which, taken together, strongly suggest that Clause 4 should be deleted from this Bill. First, I and other noble Lords believe that Clause 4 would be an open invitation to ill-motivated trouble-makers—if the social media is taken at face value, there are plenty of them out there. The trouble-makers would inevitably wish to use the very public platform provided by this new access to the courtroom to advance their own ideological stance.

Secondly, we know that universities and student unions are very poorly funded. We should not be subjecting them to the risk of unnecessary and expensive litigation. That is especially the case when we have an established regulatory structure in the sector.

Thirdly—this point has been made in particular by the noble Lord, Lord Macdonald of River Glaven, but also by other noble Lords—the fact that Clause 4 exists will have a chilling effect on the academic sector. Instead of our universities being places where debate and challenge should constantly thrive, decision-making, for example as to who should be invited to speak and on what subjects, will be inhibited. On the first day in Committee, the noble Earl the Minister pointed out, correctly in my view, that

“there is no right to a platform”.—[Official Report, 31/10/22; col. GC 36.]

That is an important point. It is obvious that college authorities and student unions will bear it well in mind. They will inevitably err on the side of caution and rather anticipate and avoid any risk of Clause 4 litigation simply by not inviting speakers who are or may be perceived to be controversial.

This would produce the very opposite of what is intended by the Bill: lawful freedom of speech will have been denied and we will never know the details. I wonder how many universities, colleges or student unions would invite JK Rowling to speak if Clause 4 were in force. My guess is that they would not invite her. That is a shocking fact and is precisely the result we would wish to avoid.

Ministers have separately sought to justify Clause 4, and I will address the points that have been made on the new government amendment before us. It is said that, in practice, there is nothing in my first issue—the ill-motivated claims point. It is accepted that such claims will be made, but it is said that they will be thrown out peremptorily and that the costs incurred by the university or student union would be recovered from the vexatious claimant. This is pure assertion and speculation. It would not be difficult to formulate a plausible argument that the court would be reluctant to halt at the embryonic stage. Also, if you win, it is never easy to recover your costs: the claimant is likely to be elusive and probably penniless, and the process of seeking recovery is time-consuming and expensive. Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?

Next—this is said to be a key point—the Minister repeatedly describes the new tort as a necessary “backstop measure”. The new amendment takes account of some of the criticisms made in Committee on the Bill as originally drafted. If left as it is, there would concurrently be in place the regulatory procedures as well as the new civil law cause of action, without any rules as to priority or the relationship between the two. The new amendment requires that mediation at the college level and all regulatory procedures should be exhausted before a claimant can use Clause 4. I agree that that clarifies matters, but unfortunately it still leaves us with Clause 4.

The argument now relied on by the Government, off the back of the new amendment, is that the individual claimant should be able to claim damages in court for loss, which could not be done in judicial review proceedings—it is correct that an individual cannot recover damages in a judicial review case. This is interesting, but noble Lords should realise that this represents a significant change of tack by the Government, because the Bill as drafted made no reference at all to losses or compensation. The new amendment gives no definition of loss—it might encompass hurt feelings and financial loss, such as wasted travel expenses and matters of that kind—but it is obvious that we are talking about very small amounts of money.

How do you measure, in financial terms, the damage done to someone whose freedom of lawful speech has been undermined? A judge is not entitled to pick a figure out of the air; there must be a rational explanation for the amount of damages awarded. In my view, there is no substance in the argument that the complainant needs a damages remedy; he, she or it will not be able to prove any serious financial loss. In any event, I suspect that, in the mind of the complainant, damages would not be a top priority; it is more likely that the remedy of a declaration, perhaps coupled with an injunction, would be the aim.

Professor Kathleen Stock has been referred to in relation to other amendments, but I should mention her in this context, in case it is suggested that she is a good example of why Clause 4 is necessary. I have every sympathy for Professor Stock, and I am certain that everyone here also does. From what is publicly known of the case, it looks as though she was treated very badly indeed by her employer, the University of Sussex, and, it seems, by some academic colleagues who should have known better. That said, she could have sued her employers for breach of her employment contract, but, for whatever reason, she chose not to. In the circumstances, Clause 4 would not have improved Professor Stock’s position.

My concern is that Clause 4 will be used by mischief-makers, whereas our real focus in this House should be the effectiveness of the regulatory function in ensuring that these new and important duties are understood, respected and properly enforced. In my view, the supposed financial protection of the individual claimant is a distraction and a sideshow. I believe the Bill would be greatly improved if Clause 4 were deleted.

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[Lord Collins of Highbury (Lab)]

My Lords, I have a confession to make: when I spoke at Second Reading, I expressed the opinion that this Bill was not necessary. However, during the process of Committee and the dialogue and discussions that I have had with many noble Lords—by the way, I have no interest as a university leader to declare—I was persuaded that there is an issue to address.

My experience as a trade union official over many years is that, when you want to change behaviour and culture, you do not do it through the courts. You do it through the very mechanism that the Bill proposes: improved and strengthened regulation, and a strengthened code of practice. That is what the Bill attempts to do and I have been convinced that it is necessary from hearing the arguments and all the cases and evidence given. This is not a binary choice: I now accept that the Bill is necessary. However, in my opinion, keeping Clause 4 would undermine the very thing the Bill is seeking to achieve. If you support the Bill, get rid of Clause 4, because it would undermine the very thing we are seeking.

Our approach, throughout Committee and Report, has been not to make this a partisan or party-political issue. We have heard the debate and listened, and I have accepted the need for the Bill. That is why I signed the amendment of the noble Lord, Lord Willetts. I expect and hope to divide the House, because this clause needs to go.

[Earl Howe (Con)]

My Lords, I begin by expressing my thanks to noble and noble and learned Lords from all Benches of the House for their thoughtful and helpful contributions to this debate, all of which I listened to with great attention. I think it would be helpful to the House if I begin my response by considering the tort in the round, before turning to the amendments tabled to this clause, bearing in mind the nature of the debate in Grand Committee and the subsequent, helpful discussions that my noble friend Lady Barran and I had with a number of noble and noble and learned Lords outside the Chamber.

The tort has undoubtedly been one of the most controversial measures in the Bill. A number of noble Lords have spoken today to express their opposition to its inclusion in the Bill. However, other noble Lords strongly support the inclusion of the clause. My noble friends Lord Moylan, Lord Frost, Lord Strathcarron, Lord Jackson of Peterborough and Lord Farmer, and the noble Lord, Lord Moore of Etchingham, have written to me setting out compelling arguments for retaining the tort, some of which we have heard today. Many of the arguments have been echoed by the Free Speech Union in a letter to the Secretary of State for Education signed by 49 leading academics, among them, incidentally, Professor Kathleen Stock. Perhaps I might say in that context that I reject the view expressed by my noble friend Lord Moylan that the government amendments, to which I spoke earlier, somehow water down or weaken the tort provision. They address the concerns expressed about the perceived risk of the OfS’s role as a regulator being undermined and of unmeritorious claims burdening universities with unnecessary costs. I am sorry that no noble Lord acknowledged that the government amendments would deal with those perceived risks, in my view, pretty comprehensively.

We are dealing here with a mixture of arguments. Part of the argument advanced for removing the tort is that it is unnecessary and that there are somehow other measures available to achieve the same thing. I think the best place for me to start would be to address that issue. The noble and learned Lord, Lord Hope of Craighead, suggested in Grand Committee that there would be a common-law tort available, even if the statutory tort was not in the Bill, and that view has been supported by other noble Lords. The Government have looked carefully at that proposition, but we are not convinced that that position is sufficiently legally certain, and for that reason it is not something on which we would wish to rely. I believe that opinion is divided even among noble and learned Lords on the issue.

The purpose of including the tort in the Bill at introduction was to make it 100% clear that a tort will be available, rather than leaving it to the courts to infer whether or not Parliament intended there to be a tort, which in certain cases, they may do. To leave the situation uncertain when we have the opportunity to be absolutely clear would be remiss of us.

The noble Lord, Lord Grabiner, made the point that the tort is not necessary because judicial review is available, whether of a decision by the higher education provider or a decision under the complaints scheme of the Office for Students or the Office of the Independent Adjudicator for Higher Education. However, judicial review is not available against decisions of a student union, and damages are generally not awarded in judicial review claims. I am afraid I do not accept his argument that damages would never be quantifiable in such cases. Of course, let us bear in mind—

[Lord Grabiner (CB)]

I am grateful to the Minister for giving way. With respect, I did not say that they would not be quantifiable. My point was that there would be difficulty in quantifying the figure but in any event, in my view, for what is worth, the figure that you would arrive at would be peanuts, or not much more. That is why I could not really understand the significance of the argument that the reason for the tort was to protect the financial position of a complaining party.

[Earl Howe (Con)]

I am grateful to the noble Lord. It is not the only reason for the tort, as I shall go on to explain. I was going to say that we need to bear in mind that under a judicial review the court would consider standard judicial review grounds, such as a failure to take relevant considerations into account, rather than the substantive issue of whether reasonably practicable steps were taken.

Equally, it has been argued that the tort is not necessary because a claimant could bring a claim for a breach of Article 10 of the European Convention on Human Rights. However, again, this would not be available in relation to student unions because they are not public authorities, and the test for whether damages may be awarded is not an easy one to satisfy. Again, the court would consider whether there had been a breach of Article 10, rather than of the duties under the Bill.

In Grand Committee the noble and learned Lord, Lord Etherton, suggested that we should specify in the Bill what remedies are available in a tort claim. I come back to the point made by the noble Lord, Lord Grabiner, a moment ago, which was a helpful intervention because it highlighted the potential role that court proceedings could have in particular cases. The Government’s intention is that damages should be available to compensate the claimant for the loss they have suffered. We can argue about whether the damages are nugatory or more substantial.

There may be situations in which an injunction is appropriate, for example if a student is expelled from their course and so the court orders the provider to offer them a place on the course for the following year. Other remedies may be suitable in some cases, in addition to these—perhaps a declaration. Our view is that where a claimant does not believe that they have been fairly dealt with by the OfS or the OIA, we should leave it to the courts to determine what is appropriate in an individual case.

Various noble Lords have raised concerns that the tort will create a chilling effect, dissuading higher education providers, colleges and student unions from inviting controversial speakers to campus because of fear of litigation. My noble friend Lord Willetts raised this concern; I understand him to believe that the availability of the tort may cause students or academic staff to self-censor over fears of being labelled a controversial speaker or lecturer.

To say that the Government are not convinced by these arguments is an understatement. The stronger counterargument appears to us to be that the Bill as a totality, including the tort and codes of practice, will create a stronger regime that will encourage providers to make sure they are getting their decisions right and will encourage a change of culture across our campuses. That regime and change of culture will deter providers from the notion of simply not inviting controversial speakers and will give greater protection to academic staff to speak out.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, expressed a concern that has been raised with me in other contexts outside the Chamber—that the OfS complaints scheme will simply take too long to reach a decision. I am glad he raised that point, and I hope I can reassure noble Lords on that score. The OfS will consult on the scheme rules and will publish clear expectations on timetables. It will be held to account on its efficiency and the effectiveness of the scheme by its board and by the Government.

As a possible exemplar, the OIA says of its complaints scheme that it commits to normally sending a complaint outcome within 90 days of receiving all the necessary information. It also says that where a party needs a case to be reviewed particularly quickly, it can request that it be prioritised. Some cases may take six months to review overall, by the time all the information has been gathered, but others may take much less time, depending on the complexity. It is worth noting in this context that the limitation period for bringing a civil claim is six years, so there is little risk of missing that deadline if this approach is taken. I hope that explanation gives some comfort to those who are concerned that a complaint may go into some sort of black hole and not come out again for years and years.

I want to cover another issue that was raised in the context of government Amendment 20, so that it is understood. We do not consider that this amendment would prevent a person seeking an interim or emergency injunction in the courts. Such an injunction would be sought in a case where the claimant wants to prevent a future breach of the specified freedom of speech duties, rather than where a breach has actually occurred—in other words, where there is the threat of a breach. In that case, an individual would not be able to complain to the OfS or the OIA under either scheme, as there has been no breach yet. Accordingly, the requirement to have first exhausted a complaint scheme would not apply and the claimant could in principle go straight to the courts.

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Moved by

[Earl Howe]

18: Clause 4, page 6, line 25, after “A1” insert “that causes the person to sustain loss”
Member’s explanatory statement
This ensures that only persons who have sustained loss can bring civil proceedings under the new section A7 inserted into the Higher Education and Research Act 2017 by the Bill.

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[Lord Collins of Highbury (Lab)]

My Lords, my noble friend Lord Sikka knows the Labour Front Bench’s position on his amendment, because I wrote to him about it. He knows that we are very sympathetic to the issues and, like the noble Lord, Lord Wallace, believe that they need to be addressed. Certainly, over the years, all Governments have been focused on sufficient funding of research, through different mechanisms, such as the Medical Research Council and the Economic and Social Research Council—all these bodies through which we have attempted to ensure that research is open and transparent.

One of the problems that my noble friend is seeking to address is the sort of research when somebody decides to ask a question, hoping they know what the answer will be, and those tend to be funders, whether from business or industry. They are seeking a particular outcome and, if they invest in that research and the outcome is not the one they want, of course they will not publish. The noble Baroness, Lady Fox, focused on charities. I keep harping on about my own experience in the trade union movement, but I must admit that we certainly funded research in the hope that it would support our case for greater workers’ rights and higher pay. It did not always come out the way we wanted and we were sometimes not particularly keen to publish it. We did not prevent the academic from expressing the view and certainly did not stop them from publishing it themselves, but we were not necessarily going to promote it.

The Bill is about freedom of speech—we have had a long debate about it. When it comes to academic freedom and research, there are much more complex questions that should not really be dealt with in the Bill. I am fully sympathetic to some of the arguments that my noble friend Lord Sikka made, but this is not the right Bill, and certainly these amendments are not the right ones.

[Earl Howe (Con)]

My Lords, Amendment 23 tabled by the noble Lord, Lord Sikka, seeks to ensure that the provision of grant funding for research does not interfere with the academic’s freedom to edit and publish their research. The only exceptions would be if there was a confidentiality agreement between those giving and receiving the grant made in advance or if a court finds that full publication would threaten national security, public safety or health.

The noble Lord is of course right to be concerned about the provision of grant funding for academic research and, as he acknowledged, we discussed this issue in Grand Committee, although perhaps not conclusively. The approach in the Bill is to place duties on registered higher education providers, their constituent colleges and student unions. I have to say that it goes too far to place duties on others, such as those who give grant funding, and I am also not at all comfortable with the idea of interfering in the private contractual arrangements between parties, which would be the effect of this amendment.

If an academic wishes to seek grant funding, it is for them to agree with the other party what contractual arrangements should apply. That is in fact reflected in proposed new subsection (3)(b) of the noble Lord’s amendment and reflects the Haldane principle: that decisions on individual research proposals are best taken by researchers themselves through peer review—a principle enshrined in the Higher Education and Research Act 2017.

However, in my view it would go too far to require legal proceedings to determine whether full publication of research would threaten national security, public safety or health. First, those are extremely limited reasons, which I appreciate is the noble Lord’s aim, but there may well be other legitimate reasons why the grantor would not want full publication. Secondly, this would potentially open the door to costly and time-consuming litigation. I fear that this may have a chilling effect on grant funding if it deters grantors, which is obviously not desirable; it may also affect the academic, as a potential party to the litigation, who is likely not to have the means to fund their part in it. It does not seem to me that the involvement of the courts in such a matter is appropriate.

Noble Lords have suggested that there is a lacuna as regards transparency in the domestic funding of higher education. I hope that I can allay that concern very simply. The Higher Education Statistics Agency collects data about research grants and contracts, which is publicly available. The OfS collects data that it needs to support its functions, including ensuring that providers are financially sustainable, and publishes this through annual reporting.

Given those points, I hope that noble Lords will agree that this amendment is not necessary.

[Lord Sikka (Lab)]

I am grateful to the Minister and all the other participants in this debate for the vital points that they have made. This amendment is not about sources of funding. It is about the ability to disseminate research findings when the funder decides that the outcomes are not what they were looking for but are of vital interest to other stakeholders. It is when those findings are suppressed that I am really concerned about. I gave an example from my personal experience but, if you met academics on the conference circuit, many of them would tell you similar kinds of stories. That issue remains, and I do not see anything in the Bill to address it.

I am grateful to the noble Lord, Lord Wallace of Saltaire, for his comments but I do not think that this is an issue of codes of practice. Codes of practice cannot bridge asymmetric power relationships. The more powerful are going to define the codes of ethics; they do not give anybody any enforcement rights. You cannot go to a court and say, “I want to enforce a code of conduct”, because no law of any kind has been breached. There are issues around adjudication and enforcement. Before long, we will come back to the need for a legal framework.

I am also not convinced by the argument that it is up to the institutions. What can universities do? They are hungry for external money, and will persuade and pressurise academics to get it. Beyond that, they are not really interested in how the academic negotiates publication. They cannot deal with that. Then the academic is left on his or her own versus what the funder desires. Academics may well have spent a long time on their research but they will have nothing whatever to show in terms of any publications, dissemination or conference presentations. They are left on their own versus a very powerful provider of research. The Bill does not do much on this issue either.

The Minister said that this amendment could have a chilling effect on research grants. I do not see how. Let us say that two parties want to negotiate on some blue-sky thinking, develop some new technology to manufacture engines or whatever, and want to consult an academic. If it is agreed that this kind of research would be confidential, that is fine. Nobody is interfering with that. The point is about what your research findings show. For example, imagine somebody is looking at the effects of living in poor housing and suddenly discovers that a two year-old child is breathing mould and is therefore likely to be disabled for the rest of his life. What should they do? Should they be quiet? At the moment, they can be silenced by the landlord. I am giving people freedom. I am saying that they should have the freedom to communicate that living in those kinds of housing conditions is damaging and can kill people. However, the response I am getting from both Front Benches is, “We can’t have that”. That is unacceptable. People reading this debate will see that it is unreasonable. How will we eradicate the conditions that I have just described for people living in poor housing? I have not heard anything in this debate to offer me any comfort on this point.

Nevertheless, I am grateful to noble Lords. Since both Front Benches are opposed to my amendment, or at least do not fully support it, I have no choice but to withdraw for the time being. However, as and when an opportunity arises, I shall return on this issue.

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Moved by

[Earl Howe]

24: Clause 5, page 7, line 12, leave out “the promotion of” and insert “how to support”
Member’s explanatory statement
This clarifies that the new function conferred on the OfS enabling it to identify good practice in freedom of speech matters and to give advice about such practice is not directed at giving guidance to providers about how to discharge their new duty to promote the importance of freedom of speech.