Localism Bill

Lord Patel of Bradford Excerpts

Tuesday 5th July 2011 Lords Chamber

[Lord Greaves]

I have this somewhere. Sorry, my Lords, I got a bit carried away with the previous amendment and stopped sorting my papers out. I shall speak also to my five other amendments in this group. There is also a Labour amendment in the group.

Amendment 133ZD follows a pattern of debate and amendments on this chapter in that it tries to give local authorities more freedom to make their own choices and attempts to minimise constraint by the Secretary of State. It would give local authorities the choice whether or not to respond to an expression of interest with a procurement exercise. We discussed this in some detail in our debates on amendments before the dinner hour, so I will not go into that in any more detail now. This is an area that I think we will want to come back to in later discussions.

The reason for Amendment 133ZF, which refers to Clause 70(6) and (7), is to try to find out what they mean. Subsection (6) reads:

“A relevant authority must, in carrying out the exercise referred to in subsection (2), consider how it might promote or improve the social, economic or environmental well-being of the authority’s area by means of that exercise”.

This is a welcome provision, because it suggests that, as part of dealing with the expression of interest that comes in, the social, economic and environmental well-being of the authority’s area has to be looked at. I assume that when it says “the authority’s area”, it also means the specific part of the authority’s area that the expression of interest refers to. It would be interesting to have a comment on that. Subsection (7) then says:

“Subsection (6) applies only so far as is consistent with the law applying to the awarding of contracts for the provision on behalf of the authority of the relevant service in question”.

This is simply an amendment to probe what that means in practice. I understand what it means on paper, but in reality what balance will be given when an authority is considering how to deal with a particular expression of interest, and particularly with the procurement exercise? If what really applies is the lawyers coming along and saying, “This is how this authority awards contracts, and this is how it has to be done”, the reference to social, economic and environmental well-being may not actually mean very much. Or does it mean that the authority’s rules on the awarding of contracts—its financial regulations and so on—can be changed in order to give more weight to the kind of things that we talked about earlier, such as community involvement and the enhancement of particular areas, even if that is not the cheapest way?

Amendment 133ZG would insert a new provision, which reads:

“Any contract or other agreement that the relevant authority enters into under the provisions of this section shall be time-limited”.

This might happen automatically, but it would be interesting to hear the Minister say what the Government’s view is. Does this hand over a local service for ever, or is it the normal sort of contract that a local authority would have with an outside contractor to provide a service, which would be time-limited to five or 10 years, or whatever it might be?

Amendment 133ZH would add four more provisions. The first is:

“Any contract or other agreement that the relevant authority enters into under the provisions of this section may be subject to such arrangements for supervision, monitoring and assessment as the relevant authority thinks are necessary”.

Is it a question of handing a service over to someone in the community, or an organisation comes in and takes advantage of the procurement exercise, who is then responsible for it lock, stock and barrel, or does the council still have a residual responsibility? Will it be treated like a normal council contract—for example, a contract for refuse collections and recycling—or is it something different? Will there be a lighter touch in supervision? Will there be any supervision whatever? If it is something that the council has a duty to do by law, and there is no supervision, how does that tie in with the council’s duty?

The second provision the amendment would add is that,

“Any contract or other agreement that the relevant authority enters into under the provisions of this section may be subject to stipulations about the minimum level of services that must be provided and standards relating to their provision”.

This is the same kind of argument. It is the kind of thing that would happen automatically with a normal council contract. Does it apply in this case? If it does not, what guarantees are there that a proper service will be provided in future?

The third proposed subsection states:

“Each such contract may contain provisions relating to the action that may be taken by the relevant authority if a stipulated level or standard of service is not provided”—

in other words, if people are not providing the service that they said they would provide when they made the expression of interest and when the procurement exercise took place. If they do not provide the service, what happens? Is the council responsible for stepping in and doing something about it, or does it just hold its hands in the air and say, “That’s tough, that’s the way it is”?

The amendment further states:

“Such provisions may include a procedure by which the relevant authority may take over the provision of the relevant service itself”.

In other words, if the provider is not performing adequately, can the council move in in default, as it can with a normal contract, and take over the service, or is it lost for ever once it is out in the community, even if it is no good?

Amendment 133ZJ would apply the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006, usually known as TUPE. Clearly, if it is a question of looking after a pocket park at the end of a street, that can simply be transferred to a community group such as the parish council. However, if these provisions were used to transfer a refuse collection service, TUPE provisions would normally apply. Do they apply in the case of transfers under this legislation?

The final amendment in the group, Amendment 133ZM, is headed “Application of duties”. It seeks to investigate whether the Equality Act 2010 will apply in respect of the provision of a relevant service under the Bill. Will it be deemed to apply to the relevant body when that body is providing the service? If all you are doing is looking after a pocket park at a very local level, common sense suggests that the Act will not apply, but if you are transferring a service that involves employing people and providing a significant service such as social services to people, does the equality legislation still apply to those services, some of which might well be duties on the local authority that are being carried out by someone else? I beg to move.

[Lord Patel of Bradford]

My Lords, the noble Lord, Lord Greaves, has raised important issues, and I look forward to the Minister’s response to them. I speak particularly to Amendment 133ZEC, which seeks to include a provision relating to expressions of interest. Clause 70(5) already calls on relevant authorities to consider the likely impact of any expression of interest on promoting or improving the,

“social, economic or environmental well-being of the authority’s area”.

I greatly welcome this and believe that it is an essential component of the consideration. However, I wish to strengthen it by including a consideration of equality. As noble Lords know, I have a long-standing interest in equality and feel passionately that this is a vital issue for all public services. I greatly welcomed the previous Government’s introduction of the Equality Act and have watched with some concern the current Government’s apparent retreat from many of the excellent provisions in that Act.

It seems appropriate that we should do all we can to ensure that equality is a prime consideration under the community empowerment chapters of the Localism Bill. The noble Lord, Lord Greaves, shares this concern. His Amendment 133ZM seeks to ensure that the provisions of the Equality Act 2010 that apply to relevant authorities will also apply to relevant bodies. I wish to go somewhat further than this as I believe we need to ensure that the existing equality requirements are strengthened. I wish to outline three reasons why this is important.

First, there is a risk that the community right to challenge could result in the exclusion of vital voluntary and community groups that currently empower people and ensure that local decision-making promotes equality. Groups working with specific communities, such as lesbian, gay, bi-sexual and transgender communities, black and minority ethnic communities, people with disabilities, and faith groups, should all be given robust support to take up the community challenge. Without specific protections to ensure this, such as a duty to consider equality, many of these groups would be passed over.

--- Later in debate ---

[Lord Lucas]

My Lords, this is going to make for a very interesting Division on Report. It will be fascinating to see who ends up in which Lobby.

I should declare an interest that I own an asset of community value—a woodland in Kent. I would be happy to go along with the Bill’s provisions but that is for me. It is my decision and my feeling about my relationship with the community. Any suggestion that assets of community value are restricted to assets that are already in community use when it comes to land is extremely dangerous. It produces exactly the side-effects that all my noble friends have been talking about of immediately causing assets to be withdrawn from community use.

There is no great function for this part of the Bill when it comes to rural communities anyway. Under the neighbourhood planning provisions rural communities with a lot of land and space to spare, and therefore an ability to develop, will be in a very strong position to do deals to support the businesses that they want to support and mould communities in their own ways. They are the great winners from neighbourhood planning. I suspect that suburban communities with decent amounts of space will do equally well. I am concerned about the example that was adduced about the problems that arise in cities where neighbourhood planning has very little to offer. Such communities by and large will not have the ability to tackle these things proactively, to accumulate wealth to be able to support or buy assets as and when they are wanted and to think ahead in the way in which it will happen in rural communities. I do not have an answer to the question posed by the noble Baroness, Lady Thornton, about what happens in cities, but for rural communities this part of the Bill is entirely unnecessary, as neighbourhood planning will do it all.

[Lord Patel of Bradford]

My Lords, I will be very brief as the noble Baroness, Lady Byford, covered many of the points succinctly. First, I thank the Minister for her intervention earlier. It was very helpful, but I think that we need to study the note in the Library. I have a feeling that this will be an iterative process. We would certainly welcome involvement in that and further meetings.

Notwithstanding the benefits that my noble friend Lady Thornton pointed out in respect of this clause to local communities and local areas, we recognise the good intentions and the thrust behind many of the amendments and the arguments that have been presented, together with carefully crafted amendments. We obviously need to look carefully at the practicalities of what this means. I can say certainly that the point made by the noble Lord, Lord Moynihan, struck a chord. It is clearly an issue that we need to take further and seek more clarification from the Government.

We agree with the comments made by the noble Lord, Lord Jenkin, in respect of the centralised delegated powers. We are completely on board with that. That issue has kept coming up throughout all the debates and needs to be looked at very carefully. As I say, I think this is going to be an iterative process. The amendments pose some very serious questions that we need to explore further, and I look forward to what the Minister has to say about that. We will certainly want to sit round the table with the Minister and others and look at this a bit more carefully.

[Baroness Hanham]

My Lords, this has been a longer debate than we would have hoped for at this time of night. I fully accept that this is not ideal but that is how the business has gone. We could not have stopped at 9.30 pm. I kept hoping that somebody would manage to keep the debate on the previous amendments going long enough for us to stop, but that has not been possible. We have had the opportunity now to discuss the amendments pretty widely and I will speak to them as well as I can in a minute or two.

I want to say from the outset that we are looking at this all the time. I hear what has been said and where I cannot answer questions put forward by noble Lords satisfactorily, we will clearly need to make sure that by the next stage we have had the sort of discussions the noble Lord, Lord Patel, is talking about. Indeed, we have already had considerable discussions on the points made. The fact that they have come up again probably means that we have not satisfied noble Lords and we will have to try and do that and look at making revisions to the Bill before the next stages.

In my opening remarks I tried to bring this back from being a very wide problem into being quite a simple, singular matter. The purpose behind these provisions is to try and ensure that, when a valuable asset in a local community comes up for sale, the local community has a window of opportunity to see if it can get the money together to buy it. I know this is happening all over the place. There are lots of examples already of people buying their local pubs or shops to keep them from going out of business.

There are also plenty of examples of people saying, “If only we had had a bit of time, we could perhaps have done something to preserve this and protect it for our local community”, and that is what we are offering here. It is not going to be a very long time; it is just going to be a short time for people to say, “That is a valuable asset. We have already said that we like it. If it comes up for sale, we want the opportunity to see whether we can, as a community, get the money together”. What the Bill does not do is say that they can buy that facility if they cannot afford it at the price that the seller is asking. During the time that the community is putting the money together, there is nothing to stop the person selling from going through all the negotiations and discussions that they want. At the end of the day, the seller may be perfectly happy to sell whatever it is to the community, and they can do that. There is nothing in the provisions that says that they cannot sell to the community at an early stage if they want to. All we say is that there is a window of opportunity for the community to find out whether they can do something.

Most noble Lords have not seen that as being unreasonable, but there is a certain feeling of pressure and compulsion about this which really is not there. The only compulsion, if I can put it that way, is the fact that the asset has to be notified in advance as being something in which the local community is interested. That is where a list comes in.

In a village, I do not know how many pubs people can claim to have an interest in. I am not sure how many assets there will be in a town centre in which people can have an interest, but probably not a lot. I do not think we are talking about a multitude of areas on which people will want to put their finger and say, “If you are going to sell it, this is an asset that we want”. Public assets can also be listed. If a local authority decides to sell a sports ground, for example, that is an area where this provision would intervene, so that it could have an opportunity to see whether it could buy it.

I shall read very carefully what has been said and I shall make sure that my colleagues do too. We have to be able to answer more clearly than I can tonight the concerns that are being raised. I cannot say that they are not justified because I cannot narrow it down sufficiently at this stage to say categorically that this will be the situation. As regards the fears expressed by noble Lords about land assets being devalued because part of the land will have been identified as an asset, a compensation scheme will come into effect. On the point about something on a list coming up in a land search, presumably someone will say it is there anyway, but I do not know whether that will devalue it. I do not see why it should just because someone is trying to get some money together. It might delay the sale, but there will be compensation if that happens.

The fact that my noble friend Lord Moynihan spoke about the loss of sports and recreation facilities if this goes ahead, and that other noble Lords commented on the fact that landowners will be advised not to let their land be used for any community facility, is something of which we need to take cognizance. If that is what is being said, and if that is a fear, that will stretch out further as we go through the Bill. We need to take note of that and I can assure noble Lords that we will discuss it and come back on that.

I will go through the amendments. Some people will be quite happy with what I am saying and others will not be. Going through the brief on the amendments will pick up some of the points that have been raised and may explain matters better than I can at this time of night.

We do not think that Amendment 136, tabled by my noble friend Lord Hodgson, is necessary. Clause 75(1) and (2) say that there will be an indication under regulations of what will be involved. We will try to see that there is reasonable coherence about that so that when we come to the next stage it is understood as well as it can be. It will involve buildings such as pubs and local community facilities. I am not sure how much wider it will go, but we will ensure that it is well understood. I recognise that there has been pressure from noble Lords for greater certainty, including over definitions. We are very grateful to noble Lords who have raised this matter. My noble friends Lord Gardiner and Lord Cathcart raised the issue in connection with Amendment 136ZD.

Amendment 136ZD also combines a primary requirement that assets of community value have been or are promoting social well-being with a number of factors that local authorities must take into account as secondary considerations in arriving at final decisions on listing. These include relevant planning policies, the use that the nominator is proposing for the asset, evidence of community support for the nomination and the availability of other assets locally that could serve the same purpose. As I said, we will give this careful consideration and consult more on it. In doing so, we will have in mind the recommendation of the Delegated Powers and Regulatory Reform Committee that any regulations under Clause 75 should be subject to the affirmative procedure.

There has been a lot of criticism about the number of regulations laid out in the Bill. One reason is that consultation processes have gone on and are going on, and some regulation will come about as a result of those consultations to make this part of the Bill work.

Amendment 136ZBA proposes an ingenious way of addressing concerns that have been expressed on behalf of landowners who make land or buildings available for community use. This point was made very clearly by my noble friends Lord Moynihan and Lord Gardiner. We have had a lot of discussion about this outside the House. I will take the example of a corner of an agricultural field used for the cricket club or disused clay pits to which people have access for walking. The suggestions in Amendment 136ZBA are interesting and we will give them further consideration.

We have some sympathy also with the intention behind Amendment 136ZAB, tabled by the noble Lords, Lord Greaves and Lord Tope. Since the provisions are breaking new ground, we will need to learn from experience how they work. However, we will need to give further consideration to those as well.

Amendment 136ZAC would limit the power to decide whether an asset meets the definition to a local authority and no other body. The present thinking is that it will be only the local authority, as defined in Clause 91, which can exercise that power as the democratic authority. My noble friend Lord Jenkin asked why this was being laid down from the centre and why local authorities could not make up their own minds about who will be able to nominate an asset, what the asset will be and whether it will go on the list. The centre is laying down only the ground rules for this. It would be impossible to leave it to local authorities to decide what an asset is without giving them guidance as to what an asset of community value might be, and whether there are limitations about which they need to know. Of course it will be up to local authorities to decide whether a community that is looking at something will be able to deliver or whether it is just putting forward a sighting shot. They will be in charge of making sure that the community is not simply using a delaying tactic but putting forward something that has a reasonable expectation of being successful.

I made it clear in my opening statement that it is our intention through regulations to exclude types of land such as residential premises from the listing—that point was made by my noble friend Lord Moynihan—unless, for example, they are integral to a pub or shop. If you have a pub with residential accommodation attached to it, you will not just be able to list the pub if it also has residential accommodation that is being used. We cannot support the remaining exclusions.

Amendment 133D fundamentally misconstrues the purpose of the provision by proposing to replace land and buildings with businesses. It is wider than that. It will not just be confined to businesses as such, but we need to talk about how much wider it is going to go. It would be entirely inconsistent with the rest of the chapter and would effectively exclude most public assets from these provisions, since they would not be considered to be businesses, although they are crucial to the aims of the policy.

On the other hand, Amendment 136ZA would limit land of community value to publicly owned land, or land that a private owner agreed is of community value. This would in effect limit it only to publicly owned land, since most private owners would probably not agree to make their land subject to the rules of the scheme. An owner can, after all, voluntarily choose to delay a sale to give a community group time to prepare a bid if they want to. They can also sell it to the community if they want to. By effectively excluding private assets from the provisions, this amendment would exclude some of the key assets that we want to help communities to save, such as the last village shop or pub.

Amendments 136ZB and 136ZC make a different point. They seem to propose excluding land for which public access is already guaranteed under statute, or which is very unlikely to be put on sale but which is self-evidently of community value. In both cases, while listing would be unlikely to lead to any further action, there is no reason, we believe, for not allowing such land to be listed to provide for the unlikely event that it does come up for disposal.

We have another series of amendments, all based on the same theme that local authorities should be allowed to operate the scheme as they wish within some very broad parameters set out in the Bill. It is a question of balance. As I have said, we will be considering that further.

I am conscious of the many questions raised by noble Lords, not all of which I have answered either in my opening remarks, in my response to the amendments or by what I have said. However, I hope that I have covered enough of them to make noble Lords realise that my ears are wide open to this. We appreciate that this is a controversial area of the Bill, but we have been having discussions and will continue to do so to see that we end up not with unintended consequences in this Bill but with what we believe would be a valuable asset, which is to be able to ensure that local communities have an opportunity, if it arose, to take over buildings of community value if they can afford to do so.