Localism Bill

Earl of Lytton Excerpts

Thursday 30th June 2011 Lords Chamber

[Lord Greaves]

My Lords, this simple amendment would allow a referendum to take place in the area of a parish council which did not coincide with ward boundaries of either the county council electoral divisions or a district or borough ward. This amendment is not about a parish council conducting a referendum or about the existing provision for parish polls. There is an amendment about those matters later on. It suggests that there may well be circumstances—in my view, there are lots of circumstances—where, if there are to be local referendums, a parish is the appropriate area for the referendum to take place.

There are many examples of where parishes are grouped together to form ward boundaries for principal councils yet those parishes are often more natural communities than are the wards themselves. That is why parishes are as they are, whereas wards are arbitrary and have to be within a certain size. Therefore, very often, wards do not reflect one natural community. They might reflect a series of natural communities or slice communities in two—that very often happens.

Where parishes consist of a village or a small town it is often the case that they are the appropriate unit to hold a referendum if that is what people want and that provision exists. By definition, parishes will consist of one or more polling districts, which exist in order to be able to hold parish council elections. I therefore suggest that even if the referendum applies to a principal council, at whatever level, it ought to be possible to call a referendum within a parish area, rather than what may be a much more cumbersome and inappropriate ward boundary area. I beg to move.

[Earl of Lytton]

My Lords, the noble Lord, Lord Greaves, will doubtless have expected that the words “parish council” might cause this particular old pike to rise from the depths. I see where he is coming from, although I initially felt that this could loosely be reclassified as “Son of Clause 56 stand part”. I appreciate that he has made a distinction which prevents me from pressing that in particular. I will leave most of my comments for the question on Clause 56, because there is a generic process about parishes and how they fit into the thing.

I am a little concerned about inserting the principle regarding parish into something that relates to principal authorities. I question whether it rightly sits there, bearing in mind that the Bill proposes that the Secretary of State can make a separate set of provisions for parish councils. It seems to me that there are very good reasons for that, because we have to be rather careful about what template we are using for the purposes of referendums, so I question whether the insertion of the reference to a parish here is the right one, unless the intention is to eliminate Clause 56 altogether.

[Lord True]

My Lords, on this point there is of course a fundamental difference between how parishes are viewed inside and outside urban areas. I understand all the misgivings as far as rural parishes are concerned and do not wish to follow along that line, but it would perhaps not be wise to add my noble friend's suggestion to the Bill. I point out that in the recent referendum in my own authority which I referred to, the area chosen for it was in fact the boundary of a parish because that ran across more than one ward. It is not right to write that into statute but it reinforces the point that I and other noble Lords made earlier: that some power to enable local authorities to define an area, which might or might not be a parish, would be a useful broad, localist and permissive power. I would not favour writing it into the Bill in this way but it may be one of the instruments and measures that a local authority ought to be allowed to choose other than a ward.

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[Baroness Valentine]

I declare an interest as chief executive of London First, which includes businesses that may be affected by the provisions in this Bill.

I support these amendments as I consider them to be in the spirit of the Bill. The noble Lord, Lord Jenkin, gives a useful example in Gatwick Airport, but there is a wide range of third parties that may be affected by any referendum. When decisions are being taken, those impacted by them should be notified and consulted openly. It is right that local authorities consult those potentially affected about whether it is appropriate to hold a referendum at all, as well notifying them if it were to happen and consulting on what steps are taken afterwards. Referenda should be a positive tool and, to that end, they should be well considered and thoughtfully implemented if they are to have the best possible impact on communities. I hope the Minister agrees.

[The Earl of Lytton]

My Lords, I had not expected to speak on this amendment, but I think the noble Lord, Lord Jenkin, raises a very valid point. I live within what is known as the Gatwick Diamond economic area, so I know very well what he is referring to. I know of situations where, for instance, residential development takes place near to industrial premises through normal course of development and re-use. Gatwick Diamond, along with many other areas, is now a 24/7 operation. It is near enough to coastal ports for large lorries to be coming along and near enough to all sorts of aviation-related and other downstream industries.

Local residents may not much like 44-tonne lorries coming along in the wee small hours of the morning. I can quite see that, but it is not fanciful at all to suppose that they might not wish to procure a cessation via triggering a referendum with a view to protecting what they see as their interests. Nor is it a planning-only issue because it may relate to a whole raft of regulatory functions for which local authorities and other bodies have responsibility. While I cannot vouch that the wording that the noble Lord, Lord Jenkin, uses is cohesive, I think there needs to be some regard for the economic consequences of what is being sought by a referendum. It seems that a referendum can be formulated on quite a narrow premise. If that is the case, it is quite possible for it to concern things of a much broader spectrum. It is worthy of consideration by the Minister.

[Lord Beecham]

Does the noble Lord not agree that in matters of the significance and complexity to which he and the noble Lord, Lord Jenkin, have referred, a referendum is probably the least effective way, in terms of time, of drawing the matter to the attention of the local authority? There are ways of doing that through petitions or by addressing local councillors through the local media that would be much quicker and more likely to have an effect than the necessarily rather cumbersome processes that would be involved in a referendum. In those circumstances, therefore, is there perhaps less urgency and potency in the noble Lord’s amendment than might otherwise have been the case?

[The Earl of Lytton]

In response to the very wise comments of the noble Lord, Lord Beecham, it may well be a cumbersome way of doing it but the point is that we do not yet know what the precise trigger is going to be, or the subject matter. The provisions of the Bill cover a very large spectrum of possibilities and we are effectively empowering the Secretary of State to make orders. It is legitimate to lay down a marker as to what the parameters might be—I suspect that is all the noble Lord, Lord Jenkin, is doing at the moment—and just to sound a word of warning. It is timely in that context.

[Lord McKenzie of Luton]

I am going to speak in support of what my noble friend Lord Beecham said. It is the mention of airports that I cannot resist, of course, because we have one in Luton. I know how important it is to the local community and what a generator of jobs it is. In many ways, airports are the organisations least likely to need the measure that the noble Lord proposes because they have consultative committees anyway so there is automatically a wide engagement with the community. The principle of somebody who is potentially on the receiving end of a referendum or a petition knowing about that and the local authority having to make a decision to engage with them seems to be entirely reasonable. What we are balking at is that the specific amendment is a little too prescriptive and takes us too far down an unfortunate path. However, we are all well aware of the challenges that airports in particular face.

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[Lord Lucas]

My Lords, the Minister has got ahead of us on this with Amendment 128E being debated rather earlier today, but I do not see that Amendment 128E covers the cases that interest me. Perhaps, if I am wrong about that, my noble friend can explain. I am principally interested in the way in which allowing planning matters in under a referendum would make a mess of the provisions for neighbourhood planning. We have extensive provision there for referenda and there should not be a cross-cutting system which allows that process, which is difficult and expensive enough to organise anyway, to be upset by people running competing referendums, or in other ways trying to upset the decision once it has been made.

My noble friend’s amendment looks at the granting of planning permission. I am much more interested in the creation of a neighbourhood plan. Subsection (4)(b) of the government amendment refers to,

“a statutory right of appeal in respect of the substance of the matter or decision”,

on the part of persons adversely affected. In other words, it is saying that this provision does not apply if there is no third-party right of appeal, which I think there is not in a lot of planning permissions. I view the scope of subsection (4) of Amendment 128E as being very limited compared with the sort of exclusions that I would like to see. As all planning is dealt with very satisfactorily in the neighbourhood planning section, it should not be allowed in the local referendum section in any form. I beg to move.

[The Earl of Lytton]

My Lords, as I explained to the Minister earlier today, I think that Amendment 128E has largely covered my amendment. However, like all amendments, there was a supplementary purpose lurking behind it, which was to try to probe the wider interaction between the facility of referendums generally, especially in their cumulative effect—the noble Lord, Lord Beecham, who is not in his place at the moment, touched on that a few minutes ago—and the wider family of the statutory functions of local authorities. It is instructive to note Amendment 128C relating to transport.

I have lost count of the number of times that the burdens on local authorities on the one hand and the need to get at the authentic voice of people on the other have been referred to in this part of the Bill. We are considering the effects for a democratically elected representative body whose functions might not work terribly well, or be effectively discharged, if a referendum is imposed. The Bill cannot be all things to all men. We have to have a balance between vox populi on the one hand and the effective administration of local government on the other. That balance needs to be explained.

I hope that the Minister will be able to elaborate on some of these points, but I certainly think that there is an issue here, which was touched on in earlier debates in Committee. We need to be clear to what extent people within a community should engage with the representative and democratic processes of those who are set up to represent those community interests as opposed to reaching for some bypassing measure in the form of a referendum.

[Lord Best]

My Lords, Amendment 128B is in my name. I do not think that we have given the Government enough credit for the amendment that we heard of earlier today, because that seemed to me to satisfy, if not entirely—I want to dwell on that—a good deal of the misgivings that we have had about referendums applying to the world of planning. We now have an amendment that will mean that planning applications are taken out of the reach of petitions and referendums. That is an enormous difference from where we were yesterday. I want to place on record my appreciation to the Government for taking that forward. It means that another laboriously prepared speech of mine is now redundant, but the amendment is extremely welcome.

Our hesitations about where we have got to are as follows. We understand that discretion is there for local authorities not to go ahead with referendums if there is a statutory process that gives members of the public opportunities to make representations and a statutory right of appeal or of investigation through a review. However, although that clearly applies to individual planning applications—great stuff—does that apply to all of the processes of preparing local development plans? I think that it must cover the preparation of the local development frameworks. If it did not cover the local authority preparing its local development plan, that would be disastrous. Throughout local government, we are already way behind in getting those local development frameworks undertaken. The abolition of regional spatial strategies means that we will be in limbo if local authorities do not have their own local development plans. We must get on with that. It would be incredibly difficult for the Government to pursue their growth agenda and do the good things that they want to do in terms of the development of renewable energy and the development of new homes if the threat of referendums was hanging over the creation of local development plans.

Beyond that, there are supplementary planning documents. They may not have the full panoply of examination in public and independent inspection in all cases. For removal of doubt, it would be better to have an amendment such as that in my name or in the name of the noble Lord, Lord Lucas, that takes the whole of the planning scene out of the referendum process. If we cannot, can we at least have firm reassurance that the process of producing local development plans, with the supplementary elements that go with them—the whole of that process—will be excluded by this excellent amendment?

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[Lord Greaves]

My Lords, the purpose of this stand part debate and of Amendment 129F is to have an exploratory discussion to probe the Government about their intentions with regard to parishes. Is what is in the Bill to be taken at face value in that the Government realise that they have to think about how referendums will interact with parish and town councils, and inevitably therefore consider the relationship between the existing legislation for parish polls and the new provisions for referendums, which are altogether more complex and involved?

The provisions for parish polls are really very simple. A very small number of people can turn up to a parish meeting—what used to be called the ratepayers’ meeting when people paid rates—and requisition a parish poll. The parish poll is a referendum of all the local government electors in the parish, but it is often on a fairly small scale. Sometimes it is not. Sometimes it is run as a normal election, with all the polling stations open, except that the polling hours are from 4 pm to, I think, 9 pm—the noble Earl, Lord Lytton, will correct me if that is wrong—so there are restricted polling hours.

[The Earl of Lytton]

I do not know.

[Lord Greaves]

It is something like that. I do not think that it was extended to 10 pm; it might be only until 8 pm; I am not sure.

In my experience of parish polls, there is sometimes agreement between the council concerned and the district council or borough council, which has to organise the polls from its normal election process, not to have all the polling stations open. I am aware of a smallish town which has six or seven polling stations. They have a parish poll and they opened only one of the polling stations in the town centre on the grounds that it did not cost them as much. That flexibility is available, and it is an altogether simpler process. Of course, it is open to abuse because of the small number of people who can requisition a parish poll. Even if the Government are keeping provision for parish polls, I would think that, as part of the review, they will consider how the referendum provisions will impact on parishes.

There are now a lot more much bigger parishes than there ever used to be. A lot of places which, before 1974, were urban districts or small boroughs, have now become town councils. If you have an electorate of 18,000 or 22,000, or even more, having 10 people able to turn up at a parish meeting and only a small number of those being able to requisition a poll is nonsense. The parish poll provision is there for small, rural parishes, and the world is, in many places, not like that any more.

Have the Government any firm plans for what they will do or is it all provision in case they want to do something in the future? If they have firm plans, can they tell us what they will be before Report? The Bill’s provision about possible central government funding for referendums in parishes, organised by parish councils, is interesting, but I cannot believe that it is serious. It would leave it open for referendums to be organised in parishes on a large scale without any financial implication locally. The more that we discuss this in Committee, the more I come to the view that the number of referendums which will take place is probably a great deal less than some of us feared when we started looking at this, simply because of the financial problems.

We saw in the AV referendum that the no campaign campaigned heavily on the cost of the referendum itself—as though that was a logical reason to vote no, although the spending was already taking place. That was a very effective way of campaigning, and I am coming to the view that local referendums will meet a huge amount of opposition simply on the basis of cost. When people go around trying to organise them, once the cost and the implications for the council budget are revealed, a lot of them will not go ahead.

That is just musing about the future. The more that the Government can tell us about their proposals for parishes now, the better. I make it absolutely clear that I am in no circumstances trying to abolish parish polls. I am probing the Government's intentions.

[The Earl of Lytton]

My Lords, I welcome the amendment in so far as it opens up an opportunity to make a contribution on this point. I fundamentally support the Bill’s provisions to provide for the Secretary of State to make specific provision for parish council referendums. There are many reasons for that, of which I am sure the noble Lord, Lord Greaves, will be aware. I am sorry that I cannot elaborate on the question of the times of day and the hours when certain things relating to parish polls might take place. I am afraid that I am only the humble president of the National Association of Local Councils and not a fully paid-up clerk of one of the more go-getting parish councils. Noble Lords will have to suffer second best on this occasion.

As I said on Second Reading, parish councils are not a homogenous institution. They are so highly variable in size and many other ways that it is difficult to think of a standardised approach. I suspect that this is very much work in progress in terms of discussions going on with the department on how to deal with this rather difficult issue because of the problem of trying to make one size fit all. Not only are there differences in size of electorate but their budgets, capacity, degree of training and even their expertise differ widely, even within a particular size category.

My purpose was to flag up some of the things that the Secretary of State might need to consider. As I say, I am aware of ongoing discussions and I certainly do not want to be in any way prescriptive. In the parish council, being the smallest unit of local government, there must be a proper balance between engagement with representative democracy and the referendum facility. That is likely to be exacerbated in future because, as localism brings the involvement of parish councils with a larger range of things that may have been dealt with traditionally by principal authorities, the opportunities for things to be called into question will inevitably increase. We must have robust systems to guard against that. It is also the case that that can add to the risk of people wanting to reach for the referendum solution. It is beginning to look like a question of how many bites of this not very large cherry in some places is to be provided for the public.

I will not labour the point about the engagement with the democratic and representative function of parish councils. The burdens of referendums on parish councils are by and large disproportionately high. I mentioned that in a previous Committee sitting and gave an example. Currently, the trigger for a parish poll under paragraph 18 of Schedule 12 to the Local Government Act 1972 is by common consent too low. But that is no argument for removing it altogether. I was very pleased to hear the noble Lord, Lord Greaves, say that that was not his intention. I look forward to something better than that provision in the Local Government Act coming forward at a later stage, but I do not know whether discussions will have proceeded that far ahead. There is a need to prevent the parish being hijacked by the referendum provision. To that end triggers must be in some way relevant to the issue and possibly to the parish size. I cannot go further than that because we are dealing with tiny parish councils on the one hand and some very large town councils on the other, some of which have budgets that would exceed principal authority sizes.

There has to be a genuine local interest. I was very pleased when, some time ago, one of the smaller political movements tried to hijack the process for national political aims. I seem to recall it was something to do with the European Union and it was ruled out of order. Quite right too, because what should a small parish be doing with something concerning the European Union? Small parishes in particular are vulnerable, if we are not careful, to these sorts of pressures.

In addition, there needs to be protection for referendums cutting across other issues that have to be dealt with—the other powers and functions. I mentioned this earlier in connection with principal authorities. The same thing needs to be built in; not necessarily on exactly the same model, but in essence something similar. There needs to be a cost benefit out of all this, not for it to be completely disproportionate in the manner that I explained when I addressed this issue at our last Committee sitting.

[Lord Taylor of Holbeach]

My Lords, this is an important area. The Bill that addresses localism must indeed address the issue of parish councils, the most local form of government. In providing for referendums in this Bill, the Government have said that they will be consulting about the way they take place. I am grateful for the contribution of the noble Earl, Lord Lytton; and perhaps I can make amends to my noble friend Lord Cathcart for my dismissive ways with his previous contributions on this subject.

I value the contributions made by both noble Earls because I consider parish councils to be important. My noble friend Lord Greaves has an amendment in this group, Amendment 129F, which we can consider at the same time. It relates to parishes where electors have long enjoyed the power to demand a local referendum or parish poll under the Local Government Act 1972. It removes the power of local government electors to demand a parish poll. However, as my noble friend says, he has no intention of anticipating that this amendment might achieve that objective until replacement facilities are in place.

We know that a poll must be organised if the chairman consents, or if it is demanded by 10 or one-third of the electors present at the meeting, whichever is the lesser figure. So the triggers for parish polls can be quite small. None the less, I understand the concerns expressed about the varying size of parishes and this is a matter that will be considered by the review that the Secretary of State has put in train. This, along with whether parish provisions apply to parish meetings as well as parish councils, are all part and parcel of the mix. We will see if there is pressure to bring this in and if it is possible within the review that the Bill provides.

I agree that the current parish poll rules need reform, but accepting the amendment moved by the noble Lord, Lord Greaves, would remove the provisions without replacing them with anything. We want a modernised and proportionate referendum regime for the parish sector and we propose to create this with regulations under Clause 56, which empowers the Secretary of State to apply the scheme to parish councils with such modifications as may be necessary. The effect of the clause would be to allow the replacement of the existing archaic parish poll regime with a modernised local referendum regime tailored to the particular circumstances of parish councils. While we seek to retain this important element of direct democracy that has been enjoyed for years by voters in parish areas, we want to modernise the existing regime and make it fit for purpose in the modern world.

Before making any regulations, we will consult widely on the reforms that people want. We will consult on whether all or some of the referendum provisions in the Bill should apply and on whether the ability of electors to demand a poll at a parish meeting should be retained; and, if it is, on what the threshold should be. Decisions on the appropriate modernised regime for parishes will be taken following the consultation, and subsequent regulations will be subject to affirmative resolution, giving noble Lords the opportunity to ensure that the replacement regime is better than the existing provisions. I hope that the assurances I have given will allow noble Lords to accept that Clause 56 should form part of the Bill.