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The noble Baroness said: This is grouped with Amendment No. 36 in the name of my noble friend and my Amendments Nos. 37 to 42. Most of them would replace “or” with “and”. I take it that the items listed in the definition of infrastructure are not intended as alternatives. That is a very short point.

Amendment No. 41 would include open space as a facility in the reference to,

It is not necessarily regarded as a recreational facility. I think it is more than that. It is certainly part of infrastructure. I do not need to spend long trying to persuade the Committee of the importance to physical and mental health of adequate open space in

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otherwise built-up areas. It is an important part of the infrastructure. I would say that it is central. I would like to be certain that it is included. I would like it specifically mentioned, but at least an assurance that that is what is meant would be helpful. I beg to move.

The Deputy Chairman of Committees (Lord Brougham and Vaux): Amendment No. 36 is in this group. If it is agreed to, I cannot call Amendment No. 37.

Lord Greaves: I have a brief amendment in this group. I cannot imagine that this group will take us more than an hour, like the previous one did, but who knows? My Amendment No. 36 would replace,

with “transport facilities”. At all stages we ought to establish a level playing field between different types of transport and not assume that roads are necessarily at the top of the hierarchy in all cases. Of course, roads have a very detailed and intricate local relationship with any development, because they go right up to front doors or factory doors and, through the network, they link into main roads, trunk roads and motorways. New developments such as railways would not have that direct relationship, but if we are thinking of the Homes and Communities Agency being involved in eco-towns—I do not know whether we are; perhaps we can tease that out later on planning issues—and talking about ecologically, economically and socially sustainable new settlements, we certainly ought to be thinking about whether railway connections, for example, are possible, even if it involves building new lines.

Nevertheless, there are other forms of transport that have the same detailed and intricate local relationship with housing and other buildings as roads do, such as cycleways and footpaths. I could understand a reference in the Bill to highways, but it says roads. I think perhaps that was put in automatically by whoever drafted the legislation, because there is an assumption nowadays that roads come first and everything else comes second. That is the purpose of the amendment.

Lord Bassam of Brighton: I shall deal with Amendment No. 36 first. It is grouped with the other amendments tabled by the noble Baroness, Lady Hamwee, which make a small but significant change. The amendment of the noble Lord, Lord Greaves, would reduce one of the examples in subsection (3) of the types of infrastructure that might be secured by the HCA to “transport facilities” by removing the explicit reference to roads. I appreciate that the noble Lord is concerned that the drafting might limit the HCA to providing only one of any such infrastructure service at any one time or to any one development. I am sure that he would be concerned that if we single out roads in this way, it may skew the focus of the HCA in that direction.

Perhaps I should make it clear that the clause does not require the HCA to deliver roads. While it empowers the HCA to provide or facilitate the provision of infrastructure, it does not require it to do so. I do not believe that the provision will skew the

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activities of the agency or divert responsibility for the delivery of roads on to it. The inclusion of “roads or other” merely makes it clear that in this context we consider a road to be a type of transport facility. If we do not say so, it might not be obvious to all that roads should be included. Our intention is to enable the agency to act responsibly. As I said, it must ensure that the housing that it provides forms part of sustainable communities. Part of those communities being sustainable is that they must have the right infrastructure, including roads. That is the purpose of that paragraph.

Next, I turn to Amendment No. 41, which is in this group. It would expand from one set of examples of the types of infrastructure that may be secured by the HCA to emphasise that “recreational facilities” includes “open space”. I am sure that the noble Baroness, Lady Hamwee, is concerned that as drafted it may not be obvious to all that open spaces should be included in recreational facilities and that the HCA should be empowered to secure them. I am not sure that is the case. It should be apparent to all that open spaces are a pretty vital recreational facility for all our communities and that the HCA should be empowered to secure them. Perhaps it is worth reminding noble Lords that the definition is what is known as a partial definition. The examples are illustrative, not exhaustive. We have made it clear throughout our policies that we consider open space to be vital to creating sustainable communities and ensuring their well-being. I do not think that we disagree significantly in terms of principles. I would like to give this matter some further consideration and return to it on Report.

Finally, Amendments Nos. 35, 37, 38, 39, 40 and 42 are a small group of amendments that could have significant effect. The effect may be to turn a list of examples of types of infrastructure that is not intended to be exhaustive, but to give a flavour of the sorts of things that we mean, into a narrower list. That is our concern; I am sure it is not the concern of the noble Baroness. Perhaps she is concerned that as drafted Clause 2(3) would have the effect of exclusivity; namely that the agency may, for example, be limited to providing only one of any such infrastructure service at any one time or to any one development. That is not the effect of the subsection as drafted. The definition of “infrastructure” is wide, inclusive and not exhaustive. I am concerned that the amendments may have a slight narrowing effect, as I argued earlier, on the types of infrastructure that the agency can provide. Such an effect would be contrary to their purpose.

I accept that this is a fine point of statutory interpretation. I would like to take some further opinions before concluding on this matter. I would be grateful if the noble Baroness would enable us to give the matter some further consideration and return to it on Report. Perhaps, if the noble Baroness will withdraw her amendment, we could achieve some meeting of minds on this point before we next meet to discuss these issues.

Baroness Hamwee: I am obviously grateful for that conclusion. Amendments Nos. 36 and 41 are in the group partly because we were encouraged to agree to as much grouping as possible, not because we

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necessarily felt that they were obviously part of the same group. I am glad that the Government are going to consider my noble friend’s point. I did not think that the notes from which the noble Lord was speaking made it entirely clear that the Government agreed. He asked how it would be possible for anyone to think that other forms of transport facility were not included; I do not feel that that answered the point. My noble friend is absolutely right. I am grateful for that response, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 36 to 42 not moved.]

Clause 2 agreed to.

4.45 pm

Clause 3 [Principal powers]:

Lord Greaves moved Amendment No. 43:

The noble Lord said: I shall speak also to Amendments Nos. 44 and 45, which stand in my name in the same group. Amendment No. 49A, tabled by my noble friend, is also grouped.

The reason for tabling Amendment No. 43 is that the wording of the Bill seems to allow the HCA to do anything. Clause 3 states:

I was trying to think where the boundaries will lie. Presumably, there will be sensible people on the HCA who will not want to declare war on Singapore, or wherever people may want to declare war next, and that will be reserved to some other body in this country. Nevertheless, it is an extremely wide-ranging power. My amendment would delete the words,

and insert the words “take any reasonable actions” as an alternative.

To some extent, this is a matter of semantics, as usual, and the Minister will say, “All public bodies and anyone exercising powers in public bodies have to behave reasonably and pass the test of reasonableness”. Nevertheless, legislation ought deliberately to curb what may be the wider excesses or zeal of some members of those bodies. Clause 3 is very wide ranging, and I am trying to restrict it a little.

My second amendment, Amendment No. 44, would leave out subsection (5). It, and the next amendment, which would leave out subsection (6), are probing amendments to try to get the Minister to explain to me in words that I can understand what that all means. I have what I think is an old-fashioned view that legislation ought to be understandable by people with reasonable intelligence and a reasonable understanding of the use of the English language. People may disagree, but I consider that I fulfil both of those criteria—without going overboard—and I do not understand what that means.

Clause 4(5) reads:

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I do not understand what that means at all. It seems to say that the powers in Clause 3 are limitless. Subsection (6) states,

That seems to say that the powers in Section 3 are limited by any other specific powers in the Bill and any other statute. I do not understand how the powers in Clause 3, Clause 4(5) and Clause 4(6)(b) relate to each other. Perhaps the Minister can explain that. While she is doing that, perhaps she can explain why subsection (6)(a) states that,

when it is designated as the local planning authority. There is clearly some technical reason for that, but it would be nice to understand it. I beg to move.

Viscount Eccles: I wonder whether there is a conflict between Clause 3 and the provisions in Clauses 48 to 50. The HCA will be subject to guidance, which it must take into consideration, and directions, with which it must comply. It also needs a lot of consents. I am intrigued, because I do not remember such a short clause in any of the predecessor Acts of Parliament, from which the Bill is derived, or one that sets this out so baldly. I wonder what would happen if the matter were taken to court by the chief executive, who said, “I do not have to do what you said in this direction, Secretary of State, because I have Clause 2, which says that I can do anything I think is appropriate”.

Baroness Hamwee: Amendment No. 49A comes from the same thinking as that of my noble friend, and would amend Clause 6 half way down the third page. I propose that the powers to bring about the more effective use of land are referred to as specific. I suggest adding,

At least two of the terms in the clause are quite wide, although I am less concerned about this one than the other one. What is more effective is a matter of judgment. I am not clear what the criteria are for assessing what is more or less effective in this context.

I hope that the Government can assure us that the powers that the HCA will have to rely on are specific, and that we can read Clause 6 as an introduction to the more specific powers that the HCA will have rather than as something which the HCA could rely on without having regard to the detail of the powers that are set out in much more precise fashion.

Baroness Ford: I support Amendment No. 43, because the phrase,

is far too sweeping. I suspect that if we leave the clause as it is, it will not do the HCA any favours. Part of the concern that people have expressed recently about eco-towns and a whole range of other things comes from a deep-seated anxiety that local views will be railroaded. I know from the work that has already been done in the HCA that that is not the body language or the posture that that organisation wants

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to strike. If we leave the clause as it is and allow the agency to say that it can do anything that it considers appropriate, we are sending out entirely the wrong message, and it would be no bad thing if a test of reasonableness and reasonable action were built into the Bill. I support the amendment for that reason.

Lord Dixon-Smith: The noble Lord, Lord Greaves, has picked up a point that I made at Second Reading about the powers of the Homes and Communities Agency. I argued then that,

is inappropriate. That is the only way in which I can describe it.

I do not suppose that the noble Baroness will be minded to concede the amendment—it would be a record if she were to do so; we would strike one up on the board and think, “Whoopee”—but I ask her to take it away and get it properly and legally considered. My concern is the same as that of the noble Baroness, Lady Ford, and my noble friend Lord Eccles. What will happen if something goes to judicial review with the clause as it is worded? I really would like this to be very well tested by professional lawyers before we go any further with the Bill in its present form. I ask the noble Baroness to take that request away. Perhaps she already has a legal opinion—I do not know; I see a piece of paper coming forward. If she has not, it would be good if she could do that and, when she has the result, circulate it to Members of the Committee. This is an extremely serious matter, and every Member of the Committee would welcome an authoritative answer. I am not sure whether I am prepared to take the view of those who drafted the Bill on this, because “They would say that, wouldn’t they?”. I would want an independent view, if at all possible.

Lord Brooke of Sutton Mandeville: I do not intend to enter the debate on Amendment No. 43, not least because I shall be providing the Minister with an opportunity to consult behind her. The judicial review issue clearly pertains to the present wording, but I shall be interested to hear the Minister’s defence. I only throw into the pot something I have mentioned in at least one other context, the definition of an act of God in Blackstone’s Legal Dictionary: an act which no reasonable man would expect God to commit.

The Minister knows, because I have already had a conversation with her, that during the Question put to her yesterday in the Chamber by the noble Lord, Lord Rotherwick, about Otmoor, my mind went to the fact that the chequered field pattern there was the genesis of and inspiration to Lewis Carroll for Alice’s adventures. There is a strong Lewis Carroll element to the wording of Amendments Nos. 44 and 45 moved by the noble Lord, Lord Greaves. If the purpose of legislation is to be pellucid, I am not sure that it is as yet. It is currently worded in a matter of which Humpty Dumpty in those adventures would wholly approve.

Baroness Andrews: This series of amendments is challenging. I hope I can do justice to the high expectations of Members of the Committee.

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On Amendment No. 43, I entirely take the point on which Members of the Committee have challenged me: why do we need what appear to be wide powers? Why is the language as it is? The noble Lord, Lord Dixon-Smith, also asked whether this is subject to legal test, whether we are sure that this is the right language and where the boundaries are. I can answer that fairly simply. Essentially, there are limits in the legislation and existing public law to prevent the HCA from exploiting what could certainly be seen to be sweeping powers. There are four reasons for things being as they are, which I shall outline before I come back to the points raised by other Members of the Committee. I am particularly conscious that there is in some sense support for the amendment around the Committee, not least from my noble friend Lady Ford.

First, Members of the Committee are aware that a statutory body such as the HCA can only use the powers it is given in legislation. If they are not wide or competent enough, the body could unintentionally act ultra vires: outside its powers. I take the point about explaining this in simple language, a challenge I put to my officials as well; I am not a lawyer. In short, Clause 3 works with the rest of the powers in Part 1 to ensure that the HCA is at no risk of acting outside its powers.

Secondly, this is a standard provision in this sort of legislation, which creates a non-departmental public body. For example, the Urban Regeneration Agency was given this power in Section 160(1) of the Leasehold Reform, Housing and Urban Development Act 1993. More recently, Natural England was given it in Section 13(1) of the Natural Environment and Rural Communities Act 2006.

Thirdly, there are controls on the power. As with other non-departmental public bodies, these powers are given their limit and extent by the objects of the HCA because they can be exercised only for the purpose of the objects or for purposes incidental to those purposes, and by the specific powers that follow in the rest of the Bill. That is where the relationship between Clauses 3 and 4 is important. Some of those specific powers, such as that of compulsory purchase, can be exercised only on the authority or with the confirmation of the Secretary of State, so that is another safeguard. A further safeguard resides in Clause 4(6)(b), which refers to powers in general by stating that,

The specific power is the competent power and the general powers cannot be used to override it. For example, Clause 10 restricts the HCA’s ability to dispose of land, while Clause 22 states that the Secretary of State’s consent will be required before financial assistance is given to any person. Those restrictions are not overridden by the general powers in Clause 3. If, for example, the agency wished to fund a bypass in order to unlock a site that currently cannot be developed, it would first have to obtain the Secretary of State’s consent, either generally or specifically, including for the terms and conditions on which the funding is given.

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5 pm

I turn now to the point raised by the noble Viscount, Lord Eccles. He asked about the relationship between these powers and those other opportunities, shall we say, that the Secretary of State has to direct the HCA to do what she thinks strategically is in the national interest. I explained briefly on our first day in Committee that the relationship between the Secretary of State and the department is to set the policy objectives and broad strategy to determine the number of houses we want and so forth, while the HCA is the delivery agent. Clauses 48 to 50 set out the ways in which the HCA can exercise its functions, and those functions are the powers set out in Clause 3 and the specific powers in Part 1. Clause 3 is limited to the HCA’s objects, so anything the agency does under the specific powers in Clause 3 will be subject to the specific opportunities that the Secretary of State has to make directions and so forth. A proportionate and appropriate series of relationships are set out in the Bill.

Let us look at the effect of the amendment. I should tell the noble Lord that it would be quite harmful. It sounds reasonable by proposing to substitute what is known in law as an objective test, which is that the HCA should take “reasonable actions” in the eyes of the court for the existing subjective test that the agency may,

The noble Lord was right to say that there is a test of reasonableness and that we expect the HCA to act reasonably. If in the unlikely event it is perceived to have behaved in a manner that is unreasonable, it could indeed be subject to challenge in public law by way of judicial review. However, the effect of the amendment in substituting an objective test would in fact invite the courts to reopen the decision itself rather than leaving the decision to the HCA. The courts would be in a position to drive down what would be an objective test. That could be exploited by someone opposed, for example, to a useful project such as a housing scheme and would introduce an element of doubt over the nature of the partnership between the private and public sectors, if we are to get anything done within a reasonable timescale. As we have said many times, part of the purpose of the HCA is to make sure that we integrate and co-ordinate, but the amendment would prevent that happening.

I have heard the concerns expressed about the language here, and I am absolutely sure that I can answer the question put to me by the noble Lord, Lord Dixon-Smith. Yes, this is legally tested and watertight. However, we will look to see whether there is any alternative wording that might not raise the sort of concerns we have heard. I cannot in any sense promise that we will be successful. I will take it away to see whether there is something that we can address and come back to on Report.

There is the even more challenging question about how to explain the relationship between Clauses 3 and 4, raised by Amendments Nos. 44 and 45. I will do my best, but I might have to resort to writing. It is one of those legal formulas that are necessary for clarity in the face of the law and legal challenge, but it is not

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always clear when one reads it. The amendment has the potential to restrict the ability of the HCA to deliver what we all want, which is why I cannot accept it.

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