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We have said all the way through that we recognise the importance of consulting interested parties on community land trust definitions. Of course, there will still be an opportunity for consultation with stakeholders and for considering the detail when the regulator sets the relevant criteria under Clause 113, which concerns eligibility for registration. I assure the House that we are working closely with the community land trust movement to agree a suitable definition for our amendment. I hope that that demonstrates our support and commitment to everyone’s satisfaction. I thought I had made that pretty plain in Grand Committee; that was certainly what I thought I said. I am more than happy to make the concession this afternoon and hope that the House will accept our good offer to bring something back at Third Reading next week.

3.45 pm

Lord Graham of Edmonton: My Lords, I am deeply grateful to the Minister and his colleagues. Without the opportunity taken today, we would not be looking at what is possible this year; it could have been next year. I remind the Minister that the Housing Corporation

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saw fit to ask an eminent body to consult and bring forward its ideas, which it did. The Minister might believe that a wider consultation might have produced a better answer, I do not know, but it would be churlish of me not to say to the Minister that what he has done this afternoon is as much as he could possibly do. I look forward to looking at the amendment. I am sure that he and his colleagues are consulting a number of people on the precise wording. I am satisfied that the net product of their work will be acceptable to the House. I repeat that I am grateful to the Minister and his colleagues for having responded to the overwhelming view of all Benches of the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Onslow moved Amendment No. 92:

The noble Earl said: My Lords, in moving this amendment, I hope that I am a quarter as successful as the noble Lord, Lord Graham of Edmonton. This is our old friend YL again; in other words, should a housing authority be regarded as a public authority for the purposes of the Human Rights Act? In Grand Committee, the Minister said that housing associations are not and should not be regarded as such, except where ASBOs are to be given. However, it is interesting that Mr Straw said exactly the opposite in March 2000, before the concept of ASBOs was even thought of. Furthermore, in the Weaver case, the administrative court found that housing associations should be regarded as public bodies under the Human Rights Act. I think that all I have to do is to make those three statements and point out with crystal clarity that there is one hell of a muddle on this. Please can the Minister sort it out? I beg to move.

Baroness Andrews: My Lords, I am very sorry to disappoint the noble Earl. Would that it had been as relatively simple to deal with this matter as it was to satisfy my noble friend. This is an important amendment that raises very complex issues. I am glad that we can have another go at it because the noble Earl has raised a couple of additional points that I am happy to address in my response.

The amendment makes the ownership or management of social housing a public function for the purposes of Section 6 of the Human Rights Act, as proposed by the JCHR. As I said in Committee, we welcome the Joint Committee’s interest in this important matter, although we cannot agree with its recommendation. I hope I can persuasively explain why.

I made it clear that there is no logical tradition that suggests that the provision of accommodation at below the market rate is by nature a public function. In Committee, I referred to the long history of social housing provided by the charitable and commercial sectors, which are largely privately funded. I think the noble Earl sort of agreed with me that social housing

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is not a public service that has recently been privatised, but is a regulated voluntary activity in which local authorities have become involved. I also made it clear that we were very concerned by the potential consequences of the amendment because of the risks and costs on the RSL sector, which includes many very small charitable organisations—more than 1,000 of them—that could face the possibility of more legal challenges in their day-to-day decisions. The Government do not subsidise the management of social housing by RSLs so the costs, which the JCHR reasonably did not assess, may need to be met by higher rents. I cannot impose extra burdens on the sector without full and proper consideration.

The bigger risk is that reclassification of social housing as public housing would mean that the RSLs’ ability to borrow to provide new social homes and refurbish stock would be very constrained and £35 billion would be added to the public balance sheet. That is money that funds affordable homes for ordinary people. No matter how low that risk would be, the consequences for our ability as a country to provide the affordable homes so badly needed mean that we cannot take the chance that that might happen.

The noble Earl mentioned the recent case of Weaver v London & Quadrant. As he knows, the opinion of the presiding judge in the case was that social housing provision was a public function for the purposes of the Human Rights Act. Obviously, we are looking at that decision and its implications carefully. I want to make just two comments on the case. First, the judgment appears to have been finely balanced. The judgment of Lord Justice Richards states:

That is absolutely right. Secondly, I understand that the housing association involved in the case may appeal.

As I said in Committee, we are of the view that social housing provision is not and should not be considered a public function, whether for human rights or any other purposes, but we recognise that there may well be different opinions on the issue and we feel that we need a careful consideration of the arguments raised in the case. The noble Earl asked: will I sort it out? As part of the Government's response in the YL case, my honourable friend the Minister for Human Rights intends to undertake a consultation on the scope of the Human Rights Act. We are still fervently of the view that that is the best possible route for taking forward the broader question of what should and should not be considered subject to the Human Rights Act. That is where we rest our case at the moment.

My right honourable friend Mr Straw actually said that if you are a private authority carrying out a public function, that function is covered by the HRA. I have just said that that is right. He also mentioned housing associations as bodies which, he speculates, might do things including some public function. He said nothing about what functions they do that are public; he certainly did not say that social housing management is a public function.

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It is a complex area; it is very easy to read things into a statement that were not intended. It was some years ago that my right honourable friend made that point; I cannot believe that he envisaged that the Act would turn private functions into public ones, as the noble Earl proposes in his amendment. Perhaps he meant that sometimes housing associations take on other public functions; for example, Group 4 in providing prison services, or contracting with the local authority. In any case, the Government's view in 2000, when Mr Straw made that statement, was that social housing provision was not a public function. Our view is the same now.

I am sorry to disappoint the noble Earl, but we have had a serious engagement in two stages and I hope that he will consent to withdraw his amendment.

The Earl of Onslow: My Lords, I never thought that I would be able to say this—it is a totally joyous thing to be able to do—because I never thought that I could confuse the noble Baroness with the Byzantine Archimandrite. She is making one of those wonderful Byzantine arguments about the number of angels who can dance on the head of a pin. As I understand it, Mr Straw said something that is now inconvenient and someone is trying, perfectly reasonably—if I had ever been entrusted with government business, which, thank goodness, I have not, I would probably be making exactly the same effort—to bat the ball away, but that did not stop it sounding slightly hollow. I accept that the Government cannot accept the amendment as it is, but I am trying to ensure that the problem is seriously and urgently addressed because it goes wider than the Bill; it goes to the YL and Weaver cases, as well as to what Mr Straw said. There is a lacuna somewhere, a muddle, and it needs to be sorted out. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 88 [Fundamental objectives]:

Baroness Finlay of Llandaff moved Amendment No. 92A:

The noble Baroness said: My Lords, the amendments in this group follow the amendments tabled in Committee. The Homes and Communities Agency’s principal power is wide-reaching, and its objectives include supporting in other ways the creation, regeneration, development or continued well-being of communities in England, with a view to meeting the needs of people living in England.

The precautionary measures proposed in the amendments are intended to address the risk of leukaemia in children, rather than any known or future risk to older people. The current scientific evidence seems to suggest an increased vulnerability in children as a result of prolonged electromagnetic field exposure. Perhaps more broadly, this signals the need for the Secretary of State to be aware of emerging risks and to be able to issue guidance that deals with public health generally in planning matters.

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A social housing regulator is to be established to carry out the objectives in Clause 88, thereby regulating the provision of social housing and ensuring that good quality housing is available. The amendment aims to protect children from risks to public health arising from electromagnetic fields. It would have an impact only on the HCA’s powers to provide social housing intended for occupation by families with children and related developments such as schools, nurseries and play areas.

Amendment No. 94A is a very general amendment. Its intention is to provide scope to enable the regulator’s objectives to be widened, if necessary, to encompass measures that the Government may bring forward in the future, such as any recommendations from the Health Protection Agency. It would avoid the need for future primary legislation to amend the regulator’s objectives.

Amendments Nos. 119A and 119B, which would amend Clause 191, would give the regulator scope to restrict the building of social housing within 60 metres of overhead transmission lines, thereby partly implementing the recommendation of the cross- party inquiry on the issue. There have also been recommendations to reduce electromagnetic fields in homes from household wiring and appliances. One proposed subsection would give the regulator powers to set standards for social housing. Another proposed subsection would allow the regulator to specify that housing intended for occupation by families with children should be located away from sources of electromagnetic fields, although there would be no obligation on the regulator to do so. Yet another proposed subsection would distinguish between housing that will be occupied by children, and housing, such as retirement homes, that will be occupied by older people, thereby lessening the impact of the amendment on development prospects.

The last amendment in the group, Amendment No. 151A, defines “overhead transmission line”. I hope that the Government will see the wisdom of introducing a precautionary principle, as research reveals significant risks. The clusters of childhood leukaemia that have recently emerged in the face of a high index of suspicion for many years suggests that there will be further findings as case numbers increase for different conditions.

I expect—indeed, I am pretty certain—that the Government will not feel able to accept the amendments, but I hope they will see that the statutory guidance should incorporate some precautionary principle into planning, so that during planning there is an assessment of risks in the light of the scientific evidence of the day. To ignore emerging science would be irresponsible. It would be dangerous to allow short-term financial expediency to override long-term considerations of the health of the next generation. I beg to move.

4 pm

Lord Best: My Lords, I support my noble friend Lady Finlay, who is much more expert than I ever could be in matters of medicine and science, and cancer and child leukaemia. In Committee, I mentioned that I was responsible for negotiating the undergrounding of a stretch of overhead cables with an electricity

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generator. From that experience, I discovered quite a few things. As a housing association, we were very unhappy at the thought that we would be developing underneath such wires. If the law meant that it would be impossible for us to develop underneath such wires, the value of the land that we would be acquiring would be correspondingly reduced, so we would have paid less for the site. As it was, the wires went underground and we were able to develop on more of the green land on top, an option that will always be open to people.

At a time when housebuilders are quite desperate to make the profits that they have made in the past, but which have become extremely difficult to make today, it is important for building regulations or planning requirements to make clear that development cannot happen under these wires. They may take actions today that they would not have taken in the past. Equally, with the housing shortage as acute as it is, people—consumers, buyers or tenants—may take unwise risks. It would be much better for the regulations to be clear. With the risks that the science appears to suggest, it would be much better if there was a prohibition on building beneath these wires and options for doing other things, such as undergrounding cables or leaving a green wedge, which are reflected in the price.

Whether that should be in this Bill, I leave to others to decide. It sounds more like a planning matter or, possibly, a building regulations issue. In this context, it would apply only to the social housing for which the regulator has responsibility, but I should like it to apply to all housebuilders. I very much support the sentiment behind the amendment.

Lord Dixon-Smith: My Lords, I should like to express some sympathy with this amendment. On looking at the history of our development over the past 50 years, we have seen increasing scientific sophistication, increasing capacity to measure the adverse effects of developments that have taken place historically and increasing knowledge of the side effects of some of those things. We see it across many fields and there are many things that we do not do today that were considered to be perfectly normal 50 years ago, and sometimes not even as long ago as that.

The noble Baroness is not asking that development should be prevented, but that, in social housing, particular tenants should not be moved into particular properties in particular locations, which is slightly different. I do not think that I have misunderstood her. We are not aiming to inhibit development in toto. We are saying that this housing, which may be perfectly acceptable for middle-aged adults and even the elderly, should not be used to house young people. That is a much more refined request than the idea that the proposal might be to inhibit development altogether, which is an important factor. If there is a serious risk of an effect on our young people, we should be concerned about that.

Baroness Andrews: My Lords, as always, I admire the way in which the noble Baroness, Lady Finlay, marshals the evidence and makes the case. This is a serious issue, and the contributions from the noble Lords, Lord Best and Lord Dixon-Smith, were very

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thoughtful. We discussed this in Committee. I know that the noble Baroness is keen to see action from the Government on this matter. She correctly anticipated what I have to say, but that does not mean that I have not listened very hard to noble Lords. The noble Lord, Lord Best, said that this is not the right Bill, but let me answer the points raised by explaining what we are thinking of doing in the future.

This group of amendments would place various duties and requirements on the regulator which relate to reducing exposure to extremely low frequency electric and magnetic fields—I shall use the shorthand of ELF EMF. Amendments Nos. 92A and 94A relate to the fundamental objectives of the regulator. Amendment No. 92A specifies that pursuit of the regulator’s objective to ensure tenants an appropriate degree of protection includes protecting them from any risk arising from exposure to ELF EMF, whilst Amendment No. 94A would allow the Secretary of State to add to the regulator’s objectives.

As I have said many times in the course of the Bill, the objectives are high level and guide the regulator’s behaviour; they are not designed to refer to such specific issues. The regulator has no authority over where homes are sited. Its role is to ensure good management of existing homes, wherever they are. Amendment No. 94A would give the Secretary of State the power to micromanage the regulator, giving it new tasks and changing its focus whenever she liked. That is inconsistent with the Cave review, which proposed that the regulator should be as independent as possible. We have given the regulator 10 high-level objectives which it must balance in performing its functions, and we do not want to add to those.

As I have said, the regulator has no control over where homes are sited. Therefore I cannot accept Amendment No. 119B, which would grant the regulator power to set standards to include the distance from overhead transmission lines that housing must be built, the levels of ELF EMF permitted within housing and the locations of housing intended for occupation by families and children. The regulator will not issue standards on such matters.

The noble Baroness and the noble Lords who have spoken are driving much deeper than the detail of the amendments. As I did in Committee, I can reassure the noble Baroness that the Government take this issue very seriously. There are already guidelines in place in this country to protect people from exposure to ELF EMF which are based on the established effects of exposure to these fields. In addition, we are currently considering the need for additional practical precautionary measures to reduce exposure to ELF EMF. In another place, my honourable friend Iain Wright will be taking forward discussions with Ministers in relevant government departments to inform the Government’s policy on this issue. We will not be in a position to set that out until later this year. I will ensure that the noble Baroness is fully informed of those discussions—she may like to share in them—with the relevant Ministers. I have listened closely to what she said about the way she thinks we should go forward and I will ensure that that is also put within reach of the Minister.

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Any measures which are appropriate to limit the exposure of the public to ELF EMF should apply at the national level. It is not appropriate to place individual responsibilities and duties on the regulator, as it would be subject to the same statutory control and regulatory frameworks or guidance concerning exposure to ELF EMF as any other body.

That rounds off the argument. I hope that, with those assurances, the noble Baroness will understand that the Government are alive to and concerned about the issue she raises.

Baroness Finlay of Llandaff: My Lords, I am grateful to the Minister for her reply and to the Government for their sympathetic understanding of the need for a precautionary approach and that the size of the precaution must be proportionate to the size of the risk. I accept the Minister’s arguments as to why these amendments are not appropriate. I am grateful for the support of the noble Lords, Lord Best and Lord Dixon-Smith, and I hope the Minister will also keep them informed of discussions on this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Cathcart moved Amendment No. 93:

(a) minimises interference,(b) is proportionate, consistent, transparent and accountable, and(c) complies with any duty of the regulator under section 22 of the Legislative and Regulatory Reform Act 2006 (c. 51) (code of practice).”
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