The Minister of State, Ministry of Justice (Lord McNally): My Lords, we published impact assessments and equality impact assessments alongside the response to consultation. These lay out our best estimates of the impact of the reforms.
Lord Harrison: Does the Minister acknowledge that the likely rise in legally unaided, go-it-alone litigants in family cases will introduce greater delays in getting justice, as well as uncertain outcomes? In respect of Section 37 family cases, does he recognise that there will be no legal aid for interim court orders when a child is removed from a family? Finally, will he look again at the proposal to deny legal aid in domestic abduction cases, which are often very complicated, whereas, rightly, we are retaining it for international abduction cases?
Lord McNally: My Lords, I will certainly take back the points raised by the noble Lord on child cases. As far as possible, our intention is that, where children are involved, legal aid will still be provided.
On the broader point of impact, it is partly our intention to divert family and welfare cases away from outright litigation towards mediation and less confrontational ways of settling disputes. That may-and, we hope, will-change the pattern of demand in this area. That is the basis on which the Government are bringing forward their proposals. However, on the issues raised by the noble Lord, I will come back to him.
Lord Thomas of Gresford: Does the Minister agree that applications for legal aid in exceptional circumstances are likely to increase considerably? How does he propose to handle it? Does he not think that a court would be better able to assess exceptional circumstances than a Minister and his civil servants?
Lord McNally: It is an interesting idea. As this legislation goes through both Houses, I am sure that suggestions of that kind will be made. At the moment, our proposal is that this matter will be in the hands of Ministers.
Baroness Howarth of Breckland: My Lords, I declare an interest as the chair of the children and family court system. I welcome the Minister's information that there will be legal aid in children's cases, but does he mean that this will be in both private and public law? Did the impact assessments carried out during the consultation process include a definitive assessment in relation to children? If not, could that be carried out?
Lord McNally: The impact assessment was consistent with our equality duties which included the duty to have due regard to the impact of the legislation on groups of all ages. This is detailed in the equality impact assessment. I understand that legal aid is in public law. If I am wrong on that, I shall write to the noble Baroness and place a copy of my reply in the House Library.
Lord Newton of Braintree: My Lords, I am sorry to get ahead of the right reverend Prelate. There are least three pieces of major legislation currently going around that have an impact, as is perceived, on vulnerable people, including children, disabled people and others. I refer to the Welfare Reform Bill, this legal aid legislation and the housing provisions of the Localism Bill. Has anyone carried out an overall impact assessment of these pieces of legislation on the people we are concerned about? In other words, is this joined-up government?
Lord McNally: I believe it is joined-up government but it is set against the reality that all departments are faced with severe budget restrictions. I have never denied from the Dispatch Box that if you cut budgets in areas that are helping vulnerable people there will be impacts on the aid available to them. In my department and other departments we are trying to focus the scope of what we are doing so that we target what is available to the most vulnerable and needy.
Lord Bach: My Lords, can the Minister confirm that, as a direct result of Her Majesty's Government's proposals in the Bill that is now in another place, young children who have been severely injured will no longer be able to get legal aid to pursue their claims for clinical negligence? Is that not an outrage in a civilised society? How do the Government justify this denial of access to justice?
Lord McNally: The Government's assessment is that in most clinical negligence cases it will be possible to carry actions forward through arrangements with solicitors willing to take the cases. Where it is not, the special legal aid fund will kick in for cases not covered by such arrangements. It is not the case that people will not have access to justice in clinical negligence cases; they will continue to have access to justice. We have taken this tough decision because we believe that there are alternative ways of gaining access to justice, with the safety net of the special fund, which will be in the control of my right honourable friend the Lord Chancellor.
The Lord Bishop of Ripon and Leeds: Will the Minister confirm that among those most affected by this legislation will be children fighting deportation, including those who have been in this country for many years and have no knowledge of the country where they were born? Would not such an effect be contrary to Article 8 of the UN Convention on the Rights of the Child?
Lord McNally: All the proposals in the legislation are fully compliant with the Human Rights Act. As I have said before, in cases where children are involved our intention is, where possible, to provide legal aid. The problem is that we are discussing the proposals against a background of questions to which we will know the answer only when the impact of the legislation is seen. That is why we have committed to keeping the impact of the legislation, when it is in place, fully under review.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox): My Lords, the Government are currently reviewing their workplace rights compliance and enforcement arrangements to see whether there is scope to make them more streamlined and effective. We will announce our initial findings later this year.
Baroness Prosser: I thank the Minister for that reply. Clearly, I welcome the establishment by the previous Government of the single pay and work rights helpline. However, does the Minister agree that taxpayers' money could be saved and the service to vulnerable workers improved if that helpline was administered by one helpline or agency? Further, will she explain how the service provided by the current helpline could be widened to enable it to address the issue of entitlement to paid holidays? That issue was found by government-funded research to be by far the most common employment-related complaint brought by clients of the citizens advice bureaux. Currently, it can be resolved only by application to the Employment Tribunal Service.
Baroness Wilcox: I think the first question was to do with Citizens Advice. The review of our compliance and enforcement arrangements is ongoing and part of it is to look at the different enforcement structures that bodies such as Citizens Advice have put forward. The answers from that will come to us in October. On holiday entitlements and workers with holiday pay problems-I imagine that that is what the noble Baroness is really getting at here-at the moment, advice on
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Baroness Brinton: Does the Minister agree that, in addition to the existing benefits of the pay and work rights helpline to the most vulnerable employees, a single fair employment agency would significantly reduce the cost of redress on statutory pay and holiday claims compared with the existing employment tribunal system?
Baroness Wilcox: There is, as the noble Baroness will know, a review of the tribunal system at the moment, and she will no doubt wish to put her views to that. As I said, it will report in the autumn.
Baroness Turner of Camden: Does the Minister not agree that the present tribunal system, which makes arrangements for lay people to sit on cases, is a very effective way in which to deal with cases and really should not be changed? There is some suggestion that future cases, particularly dismissal cases, should go before a single judge rather than a tribunal, which consists of lay people as well as a lawyer.
Baroness Wilcox: I seem to be giving the same answer to every question. I do not mean that to be dismissive, but there are two big reviews at the moment. Obviously, any questions that are asked and answered in your Lordships' House are the sort of things that go to the review, and I imagine that the noble Baroness herself will give evidence on that.
Baroness Gardner of Parkes: I say this as someone who sat for 20 years as a lay member of an industrial or employment tribunal, but is the Minister aware that the provision was that people would bring their own cases to the tribunal? They were not required to have legal representation. Would she accept from me that, in my experience, people are sometimes badly represented legally, and even more so by the shark companies that pick up on cases as soon as the names are published and apply and seize these people? They can represent you far worse than you could represent yourself in many cases.
Baroness Wilcox: My noble friend speaks from her experience, which is usually very good on these matters. Yes, I agree-people should never feel that they cannot represent themselves in the courts. I have no doubt that the tribunal will look at this to make sure that people are very careful and that the advice that they are given does not make their case more difficult than it already is. It is very difficult to go into a court and give evidence; I have been there and I have witnessed it. People can be very nervous in doing so but, at the end of the day, if what they have to say is right and fair, they will win.
Lord Elystan-Morgan: Does the Minister recollect that, some weeks ago, the citizens advice bureaux published detailed accounts showing how much was saved from public funds by legal advice on employment?
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Baroness Wilcox: The noble Lord knows how well the Government think of Citizens Advice. We take very careful note of everything it says, which is usually backed by very good figures and evidence. As we have already heard, it is asking for everything to be merged in this way. It has also campaigned on empty justice. Yes, we will listen to everything that it says and, with two big reviews going on, there is a fair chance that the things it is asking for will come about.
Lord Davies of Oldham: Is the Minister aware of the urgency of this situation? She must be aware of the rapidly deteriorating situation in the workplace; a local authority has sent out letters sacking all its workforce at this time. Will she inject just an element of urgency into her department to ensure that the rights of workers have some protection?
Baroness Wilcox: My Lords, it is this Government's hope and plan that the relationship between employer and employee shall be of the best. It is important that we make sure that what we are doing in these reviews reflects the rights of everyone in the case, both the employer and the employed. As to the local authority, it is taking is own decisions and it is not for me to comment upon them.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland): My Lords, the Government are in the process of assessing the benefits of next-generation reactor technologies, including thorium, for the longer term, and the Secretary of State has asked the National Nuclear Laboratory to prepare a report. A previous NNL assessment of a number of claims made by proponents of thorium fuel concluded that while the theoretical science is reasonably sound, the risks and resources involved in achieving commercial deployment are significant.
Baroness Smith of Basildon: I am grateful to the noble Lord for his response. It is helpful, and I certainly welcome the fact that the Government are taking this more seriously. He will understand that despite greater acceptance of nuclear power there remain concerns about nuclear waste, both because of its potential military or terrorist use and because of the costs and
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Lord Marland: I am grateful for the noble Baroness's question. The reality is that we have waste, so it will not improve the situation with regard to nuclear waste. This Government are very concentrated at the moment on recovering from 25 years of no nuclear activity with what we have. We have to concentrate on the reactors that are available, which we have had approval for, in order to get our next-generation nuclear power off the ground. We know fully that thorium reactors will take 10 to 15 years to develop. There is a high cost in that development and, at the moment, I would not put it as a priority unless the research report that comes out at the end of this summer advises us otherwise.
Lord Marland: If only my O-level science teacher could see me now. I am very grateful to the noble Baroness for that question because I have learnt a lot about thorium recently. For those who wish to know, it is named after the Norse god Thor. It comes out of monazite sands, which are largely found in India and Norway, and is generated by a sifting process. The noble Baroness will be pleased to know that it is dimorphic, which I am happy to explain means that it changes from face-centred to body-centred. However, other noble Lords are far more qualified than me to inform us about thorium. All I would say is that it requires two neutrons to process it rather than one. The noble Baroness can find all sorts of other facts in Wikipedia, as, indeed, did I.
Baroness Worthington: My Lords, does the Minister agree with me that this is a serious topic? We have just seen a disaster in Japan that has reminded us that existing nuclear technology has inherent problems. Thorium is much safer. As my noble friend said, it does not generate waste and cannot lead to the proliferation of weapons and to terrorism. It is a very abundant and available source of fuel, unlike uranium. Given those advantages, does the Minister agree that we should have a programme to develop proof of concept of this technology?
Lord Marland: I am very aware of the noble Baroness's views and read about them in the Guardian a couple of weeks ago. By the way, that was an excellent and most thoughtful article on this subject. However, the reality is that the nuclear accident in Japan to which she referred did not cause loss of life and we have reacted calmly to it. We are committed to the course that I have just amplified. Government funds are not available
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Lord Taverne: My Lords, while some very interesting work has been done in India and interesting developments have occurred on the thorium-based reactor systems, is it not true that even those who feel that the research is very useful admit that it will remain very much a second string for a long time? Is it not vital that the Government should not be diverted from the fastest possible programme for building nuclear power stations? Should it not be noted by the anti-nuclear lobbies that the German decision to close down nuclear power will make Germany much more dependent on fossil fuels and will greatly increase carbon emissions from Germany?
Lord Marland: My noble friend makes a valuable point. He is referring to the Kakrapar plant in India, which the Indians are trying to develop. Clearly, we must press on with our nuclear programme. We are disappointed that Germany has taken a different attitude. I pay tribute to all those involved in the nuclear industry and in this debate, particularly in this House, who have kept a steady nerve while all around us things are going pear shaped. As a result, we will come out with a very careful and committed process for new nuclear generation.
Lord Broers: Does the Minister agree with me that we must fully fund R&D in nuclear, including thorium, so that we develop a mature understanding of this, but, almost more importantly, that we should focus our R&D in such a way that we enable our industry to bid effectively for the contracts that will be put out to build our nuclear plants, as, indeed, the Germans have done in the supply of train carriages?
Lord Marland: I think the noble Lord was referring particularly to training. We have to show a very clear pathway, as we have done recently. Last week, we announced six new sites for nuclear reactors. Clearly, we have to develop a training programme for the 60,000 jobs that will be required in the nuclear industry. The Government remain very committed to it.
Lord Sheikh: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. I should like to declare that I am the chairman of an insurance broking and financial services organisation.
The Minister of State, Ministry of Justice (Lord McNally): My Lords, the Government are sympathetic to the idea of a ban on referral fees and are looking at how to tackle the issue as part of our wider reforms, and at how we could do so in a way that would be effective.
Lord Sheikh: My Lords, I thank my noble friend the Minister for that reply. Lord Justice Jackson's review of civil litigation costs prescribed a reduction in fixed costs and hourly rates for solicitors, as well as a ban on referral fees. Does the Minister agree with this position, and will he indicate whether the issue will be addressed in the Legal Aid, Sentencing and Punishment of Offenders Bill, which is currently in the House of Commons?
Lord McNally: Whether the question of referral fees will find its way into the Bill is a matter for the study that we are undertaking into ways that this could be implemented. However, we are trying to bring forward a range of the Jackson proposals in that Bill. As to referral fees, as my noble friend will be aware, the Legal Services Board and the Transport Select Committee advised a solution in terms of transparency. Lord Justice Jackson recommended a ban and, as I indicated, the Government are sympathetic to the idea of a ban.
Lord Carlile of Berriew: My Lords, in addition to that, will my noble friend confirm-as he indicated to me in a Written Answer to me on 23 June-that referral fees or kick-back fees in criminal cases are illegal, corrupt and should not be undertaken in any case by any lawyer?
Lord McFall of Alcluith: My Lords, the industry has called this its "dirty little secret". Given that over the past 10 years personal injury claim payouts have doubled from £7 billion to £14 billion while road accidents have largely reduced over that period, is this not a clear case of market failure, and the Government should report this to the OFT to look at this issue and get this industry sorted out?
Lord McNally: Whether it is a matter for the OFT or the regulator is a balance of judgment. The noble Lord is right that the figures are showing a doubling. One of the factors that one must look at is the unbelievable increase in whiplash claims, about which I know the Association of British Insurers has held talks with my colleague Jonathan Djanogly. It is far too easy to find in even the most minor of accidents that subsequently whiplash is claimed, along with quite substantial damages. One of the weaknesses in the system is that the insurance
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Lord Marks of Henley-on-Thames: My Lords, does my noble friend agree that this practice of insurers charging solicitors referral fees for names is not only unethical and offensive but ensures that the claims are handled not by the most competent or well qualified solicitors but by those who are prepared to pay the most to buy the clients-thus effectively depriving their clients of their right to choose the best lawyers to handle their cases? Is that not another good reason for implementing Lord Justice Jackson's recommendation for a ban on such fees?
Lord McNally: I agree with my noble friend. I hope that the more the public are aware of what the noble Lord described as this "dirty little secret", the more it is in the public domain and the more that all parts of the insurance industry, including the insurance companies, solicitors and the consumers, will demand-and we will respond to that demand-to ban it.
Lord Bach: My Lords, I am now slightly confused as to the Government's position on referral fees. I note what the noble Lord said in his written response to the noble Lord, Lord Carlile of Berriew, and what he said in his reply to the noble Lord, Lord Sheikh, today. Have the Government made up their mind to ban referral fees or have they not?
Lord McNally: I can see a few more experienced ex-Ministers over there. The Government are sympathetic to the idea of a ban on referral fees, and are looking at how to tackle the issue as part of wider reforms-how we could do so effectively. Perhaps the Opposition have not yet got used to the fact that we are not a knee-jerk reaction Government; we are looking at the problem. The Prime Minister himself has made it very clear that we believe that Lord Justice Jackson has given us the solution to the problem. We are now looking at how to make it most effective.
Lord Phillips of Sudbury: Will my noble friend please take even more account of the fee-farming industry that has grown up in this country, which encourages indiscriminate and, I have to say, false claims because neither the fee-farming company nor
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Lord McNally: My Lords, it is almost 15 years since I first asked a question on this. I have always had my doubts about claim management companies. There are more than 3,000 of them at the moment; 450 of them have had their authorisation cancelled by the claims management regulator, and I would like to see a lot more of them cancelled.
To ask Her Majesty's Government in the light of the loss of public and commercial confidence in News International and the imminent closure of the consultation period, whether they will suspend consideration of News Corporation's bid to take over BSkyB.
Baroness Rawlings: My Lords, the Culture Secretary takes the view that News Corp has offered serious undertakings and discussed them in good faith. In all the circumstances, and given that the implementation of those undertakings will be overseen by the monitoring trustee and, thereafter, monitored and if necessary enforced by the OFT, he takes the view that there are sufficient safeguards to make certain that the undertakings are complied with.
Baroness Royall of Blaisdon: My Lords, the House, and indeed the country, will know that that is the wrong Answer. Can the Government confirm that the Secretary of State legally has the discretion to defer if he so chooses? Refusing to suspend the process will be seen as incomprehensible by both the public and News Corporation's advertisers and investors. Can the Minister set out for the House the reason for not doing so? If she is unable to do so now, will she do so in writing? Finally, will the Government provide for this House to debate these matters next week?
Baroness Rawlings: My Lords, to answer the final question first regarding a debate next week, that is in the hands of the usual channels. The Secretary of State has quasi-judicial discretion after the decisions of Ofcom and the OFT. Regarding the delay that the noble Baroness asked about, the consultation has not closed; it closes tomorrow, Friday 8 July. The Secretary of State will need to consider all the answers and all the presentations. At present, no date has been set for his decision-the Secretary of State will not be rushed. He will be fair. He has to make his decision on media plurality strictly within the law. He, like everybody else and like the press, has to work within the law.
Lord Dholakia: My Lords, I can well understand the dilemma faced by the Culture Secretary because the merger has to be decided on the basis of media plurality. However, I ask the Minister whether we need this sort of media plurality when all standards of professional behaviour and decency have been ignored by News Corporation. Would it not be wise to pause until the major investigations promised yesterday by the Prime Minister have been completed, because there may be some very serious criminal proceedings?
Baroness Rawlings: My noble friend asks an important question. The Prime Minister said yesterday at Question Time that there would be two reviews, and the Cabinet is discussing the remits for those reviews. Two areas will be looked into: one is the police investigation and the other is the practice of press regulation.
Lord Puttnam: My Lords, is the Minister having a conversation with her noble friend the Justice Minister, who is sitting at her side, and with the noble Lord, Lord Crickhowell, who is sitting behind her, to confirm that if she or her colleagues in another place check the record, they will discover that during the passage of the 2003 Act this exact clause was discussed in detail? The type of eventuality that we are dealing with today was anticipated and this clause was intended to deal with it. To ignore that is an abrogation of the will of Parliament.
Baroness Rawlings: The noble Lord, Lord Puttnam, makes a valid point. The Enterprise Act 2002 sets out the due process, which is that the Culture Secretary has to make a quasi-judicial decision on the impact of the proposed merger on media plurality issues alone. That was said by the right honourable Member in the other place, Mr Vince Cable, and that is what is happening. The decision will be made after Ofcom and the OFT have made their decisions.
Baroness O'Neill of Bengarve: Does the Minister agree that the Prime Minister said yesterday that there would be one or two inquiries, not reviews? Does she agree that those inquiries should be chaired by a judge and that they should have the power to subpoena documents and take evidence under oath?
Baroness Rawlings: My Lords, it would seem that that is necessary. However, at the moment there are several inquires going on and the Prime Minister's reviews or inquiries will happen afterwards. I am sure that the noble Baroness is right in that they will probably have a judge but at this stage I cannot give her the details.
Lord Prescott: My Lords, I think the House would agree that you can have a full inquiry under the Inquiries Act 2005, and I am sure that that is what most of us would like to see. The Minister mentioned that the Government are prepared to look at plurality, but can I advise her that Ofcom has a responsibility to look into the invasion of privacy? Are the Minister and the Government going to take that into account in regard to the Murdoch application for BSkyB?
Baroness Rawlings: I have every sympathy with the noble Lord, Lord Prescott, whom we all know has been a victim of this. We feel that personal freedom and privacy are of great importance, but so is the freedom of the press. Hacking is illegal-we know that-and wrong. These cases are disgraceful and shocking. I remind noble Lords that these present hackings are not new. Hacking has been around for a very long time and it is perpetuated by many different people, not only the press. All that does not make it any better; it is a foul deed and the press have to abide by the law, as do we all.
Lord Phillips of Sudbury: My Lords, does the Minister agree that both of the inquiries on foot heavily conflict each other? The first is News Corp's own inquiry, of which Rebekah Wade has been put in charge; and the second, more important one, is the police inquiry to which my noble friend referred. Sadly-one says this with some reluctance-there is a conflict of interest in the second inquiry, as there is no question but that a great deal of money has passed hands, not just between this newspaper but also between other newspapers and the police in recent years. Do the Government propose to do anything about that?
Baroness Rawlings: My noble friend brings up the importance and involvement of the police. We are talking about criminal cases here that are under investigation. It would be wrong to prejudge. In this whole area, the Secretary of State has been very fair and very transparent in putting everything in front of the House. We have had many debates on this. My noble friend Lord Fowler has asked questions on this; I am afraid I do not see him in his place today. We know that any payments regarding the police are against the law.
Baroness Scotland of Asthal: My Lords, can the noble Baroness confirm that the consequence of her answers is that she agrees, first, that the Secretary of State's hands are not tied; secondly, that there is no reason for him to make this decision now; and thirdly, that it would be quite wrong for him to make a decision about the validity of accepting the undertakings from News Corp before properly considering the impact of the horrendous allegations that are now being made? Can she also confirm that this Government chose to restrict the referral simply to plurality, but they were perfectly entitled to refer, and should have referred, this matter also on the basis of broadcasting standards?
Baroness Rawlings: Yes-the Secretary of State will not rush into a decision. From tomorrow, he will see all the presentations, which will take time. He will not be rushed. His hands are not tied; he is in a quasi-judicial position. Ofcom and the Office of Fair Trading are both involved. There will be no decision right now because he is waiting for the consultations to come in. As was said by Mr Ed Miliband in the other place, the hacking has nothing to do with plurality.
That the Lord Bishop of Norwich be appointed a member of the Select Committee in place of the Lord Bishop of Liverpool, resigned, and that the Earl of Selborne be appointed a member of the Select Committee in place of the Earl of Onslow, deceased.
Lord Greaves: My Lords, here we go again. I will speak also to Amendment 135A in this group. Amendment 133A challenges Clause 74(3), which states that assets that have been placed on a list of community assets will be removed after five years. This is a probing amendment. My first question is: why is it necessary to make the list temporary in this way and provide lots of extra work for the local authority? Why does an asset not remain on the list until there are good reasons for removing it, rather than being removed after an arbitrary period? Secondly, if there is to be an arbitrary period, why is it five years rather than two or 10? Thirdly, can assets be put back on the list once they have been taken off after five years? Will the procedure be the same as that for putting them on in the first place, which would seem to necessitate a lot of duplication?
Fourthly, can community organisations and parish councils propose that an asset which is due to come off the list at the end of five years should stay on? In other words, can they make a new nomination before the end of the five-year term or do they have to wait until the asset has come off the list and then make a new nomination-in which case there would be a gap between the end of the five years and the new nomination? These are straightforward questions, but they are not answered in the Bill and they are important if we are to know how the system will work.
Amendment 135A suggests that under the provision in the Bill for the appropriate authority-in England it is the Secretary of State-to change the period of five years to another length of time if he or she thinks that that would be a good idea at some time in the future, it should be possible to make different periods for different classes of assets. Why is it not possible for the local authority to make sensible decisions based on local circumstances, according to what is appropriate for a particular community asset? It will know the circumstances that relate to each asset. If there is a long-standing recreation ground that is not in council ownership-or even that is-and has been there for 50 years, having to apply every five years to put it back on the list would seem unnecessary. A village hall that might be in private or some sort of other ownership will not go away. One hopes that it will be there in five or 10 years, when the same problems will occur if the owner proposes to close it down or change its use to something else. That might also apply to a village pub or post office, and it seems that village pubs and post offices are where this legislation came from in the first place.
Why is it necessary automatically to take privately owned allotments off every five years and then put them back on? Why do all sorts of green spaces that people hope will be there for a considerable time have to come off and then be put back on? For example, burial grounds are not going to go away, although quite often there are proposals to take local burial grounds over, dig up the bodies and develop them. That is what happens in too many cases perhaps. That problem is going to be there in five, 10 or 25 years, so why cannot the local authority or even the Secretary of State allocate different periods for different classes of assets? These are practical problems and
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Lord Howard of Rising: My Lords, before speaking to Amendments 134 and 135, I should declare some interests. I am a district councillor and a parish councillor, the owner of an agricultural estate which contains assets which might fall within the scope of the Act and chairman of the National Playing Fields Association.
These amendments, and other amendments in my name, were put down before the Minister deposited in the Library her paper on assets of community value. I thank her for the paper and for the helpful remarks she made when this Bill was being debated earlier in the week. I am most grateful as are, I am sure, many others in this House.
The effect of Amendments 134 and 135 would be to have included in the Bill a maximum period of five years for an asset to remain on the local authority's register of community assets. It would stop the Secretary of State being able to extend the period without primary legislation and would thus avoid the worry and concern for the owner of the asset that the five-year period might be extended at short notice and without his or her foreknowledge.
In a property-owning democracy, such as ours, security of tenure is not just an important matter; it is, as my noble friend Lord Hodgson pointed out, fundamental to the way our society works. Anything which affects property ownership or value can have far-reaching effects for the vast majority of citizens of this country. For the Secretary of State to be able, by regulation, to extend the period of five years for an asset to be on the register will create uncertainty which will, in turn, affect value.
One of the faults of this Bill, as many of your Lordships have commented, in particular my noble friend Lord Jenkin, is that too much power is reserved for the Secretary of State to make what can be far-reaching changes. For the Secretary of State to be able to alter the length of time for an asset to be on the register without the requirement to introduce primary legislation could affect the value of any asset on the register. This will most affect the less well off, where the asset may represent virtually everything they have in the world. Owners of small shops and the other types of small businesses, at which this Bill is aimed, are not normally people of great resources. In the paper deposited in the Library, reference is made to renominating assets after a five-year period has ended. I urge the Minister to reconsider this, although if the five-year period remains in the Bill, having to take positive action for the asset to remain on the register would at least be a step in the right direction.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, I thank both noble Lords for their points on this matter, to which I shall
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Under Amendment 134, rather than a fixed period of five years for listing, the local authority would be able to remove the asset from the list at any time but no later than five years after listing. Amendment 135A would introduce different fixed terms for listing depending on the type of asset in question. Both amendments would have an unwelcome effect. They would make it unclear to community groups how long the listing would last and on what basis it could be brought to an end-consequently, reducing the transparency of the whole process. Under our proposals the fixed term will apply unless the site is sold in the meanwhile or the local authority changes its decision on review of the listing.
Amendment 135 would remove the power for the Government to change this period by order after the Act comes into force. We oppose this because the power will enable Parliament to review the five-year limit in the light of experience. The noble Lord, Lord Howard, suggested that this would require primary legislation but as things are in the Bill at the moment it would have to come back to Parliament without ever introducing primary legislation but on secondary legislation. We will also want to take account, for example, of the frequency with which listed assets come on to the market and how often communities wish to re-nominate assets that have changed hands.
In answer to the question asked by the noble Lord, Lord Greaves, yes, after five years an asset can be put back on the list but only if it is re-nominated and again goes through the process of the local authority having to judge whether the asset still meets the definition. The noble Lord, Lord Howard, asked whether the change of the five-year period and the period that land is listed would affect sites already listed. The answer is no. A change would affect only land listed after the change.
Lord Greaves: My Lords, I am grateful for those answers. The question in the back of my mind is the extra staffing resources that local authorities will need in order to compile and maintain these lists of community assets. I suppose the answer is that we do not know because we do not know how many nominations there will be. I suspect that in some places there will be a lot and in others there will be very few. We will find out in due course. However, on the basis of the Minister's response, I am happy to withdraw Amendment 133E. I apologise if I got the number wrong earlier. I have not brought the right glasses for reading and I will have to get them.
Lord Greaves: My Lords, I gave notice of my intention to oppose the Question that Clause 74 stand part of the Bill. I do not intend to speak in the debate, although I note that the noble Lord, Lord Cameron of Dillington, would like to do so.
Lord Cameron of Dillington: My Lords, I rise, at last, to speak in this clause stand part debate. I shall speak to whether all the clauses in Chapter 4 of Part 4 should stand part of the Bill. In some ways I am glad that I did not get to speak on Tuesday. Our debate then and some of the statements that have just been made confirm my view that I might have a solution to everyone's concerns.
Before I set out my position, I must first make it clear that I totally endorse the intentions behind Chapter 4. I have spent the greater part of my life trying to save community assets, as envisaged in this chapter. When I was at the Countryside Agency, we worked hard to provide funding for villages that were trying to protect and enhance their pubs, shops, sports facilities and heritage assets. On the latter, we ran the local heritage initiative for the Heritage Lottery Fund for both rural and urban communities. At the same time, the agency was one of the instigators of the Pub is the Hub movement. We also had a great scheme for encouraging the use of village facilities for multiple purposes, such as using the same room or building for everything from a hairdresser and a citizen's advice bureau to political surgeries and Jobcentre Plus services. We also worked hard with others to persuade the Government to put £150 million a year into saving rural post offices. We were not totally successful in saving all rural post offices, of course, but we certainly helped. Ultimately, in all these things, and as is the intention behind these clauses, whether prized community assets survive depends on the oomph or activities of the community itself.
Having established, I hope, my credentials and my enthusiasm for this chapter's intentions, I shall now explain why these clauses, as currently framed, first, will not work and, secondly, are an unnecessary nightmare of administrative red tape. First, why will they not work? On the basis that the two main community assets to be saved are probably the village shop and pub, or, in urban areas, the local shop and pub, perhaps I may use them as prime examples. I note at this point that open land used for sport or quiet recreation is already catered for by Section 15 of the Commons Act 2006, under which it can be registered as a town or village green. I put that forward tentatively because I am not an expert on the use of Section 15.
Sticking to the pub and the shop, it is important to note, first, that they are both customer-based businesses. Any interruption to their trading is tantamount to a direct hit on their sustainable future. In any period of closure, people soon develop the habit of going elsewhere for their shopping or their pint. It is surprising that even those without their own transport find alternative ways of getting what they need. More to the point, those habits soon become ingrained. There are lots of reasons why a publican or shopkeeper might want to retire. Customers may be drifting away and the business owner might be finding it hard to make ends meet. It might all be too much hard work. Believe me, running
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If, on the other hand, they want to sell their business as a going concern, that is all well and dandy and none of this is needed. If not, and particularly if the business is failing, the first thing they will do is to close the business in order to justify any change of use application. Very often the business will sit like that with the shutters closed, in my experience, for six months or a year-in some instances that I know of, considerably longer-even before an application is made. As I have already explained, that means that the business as a community asset could be snookered anyway. Of course, as far as the business owners are concerned, it is more likely that they will get their change of use because such a permission will be merely confirming a fait accompli.
I should point out that there could be as much as an extra £100,000 accruing from a successful change of use application, but the main point is that, after planning permission and building conversion, the sale of a property in this scenario-the "disposal", as it is called in Chapter 4-is often several years down the track, by which time there is definitely no community asset to save.
If the local planning authority refuses permission-I accept that, if the property is now deemed a community asset, this is more likely-the owner will probably hang on for a year or two, maybe until the five years have elapsed, and have another go. They are probably living in the property or they can lease the living quarters for a few years. Alternatively, they might, under the new circumstances, give up and sell the business as a going concern, in which case we do not need to protect this community asset at all. If the disposal of the property, being usually six months to a year or more after the closure of the business, is used as the trigger for the moratorium to give the community a chance to galvanise itself and take appropriate action, it is already too late. To plagiarise Charles I, "The bird has already flown". The business, as opposed to the property, already has both feet in the grave.
I accept that the focus that the Bill now gives to community assets means that the owner will know that an application for a change of use is likely to be refused and is therefore more likely than ever simply to close the business and carry on living in or letting the domestic side of the premises until the property slips off the radar as a recognisable community asset. However, the effect is the same. No trigger has been given to spark the community into action. Although, frankly, if the community is not sparked into action by the closure of the business into doing something to revive it elsewhere-perhaps by using their right to build, for example-there is probably nothing we can do to help them anyway. In any case, my point is still valid: it is
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If all this is not bad enough, Chapter 4 as currently proposed could actually be the killer blow to the community asset when it is in no danger at all. Let us take the example of a publican or shopkeeper who dies in service. It is not unknown, as I said earlier. It is extremely hard work. The widow or executors will want to implement a quick sale in order to keep the business going, possibly for the sake of the community, but under the current proposals, they cannot do that, so the proposals could actually cause the demise of the very business that they are supposed to save. I believe that it is important to stimulate the necessary community action only when the business is actually threatened, rather than when the ownership of the property is transferred. The threat to the business really only occurs when a change of use planning application is made. It is at that stage that the community needs to take action, rather than wait for a disposal, when it is usually too late. I accept that a passive closure of the business not involving planning permission has the same effect and that this event is not covered either by my proposal or by the current Chapter 4. As I said, only the community itself will be able to take independent action to deal with that scenario.
My other point, which I shall make briefly and is similar to the points made last Tuesday by the noble Lords, Lord True and Lord Jenkin, is that this chapter is a nightmare of administration and red tape. I looked at it, wondered how I could possibly put down any meaningful amendments and realised that I could not. I am sorry to be so blunt, but to me, it is totally over the top. At a time when local authorities are desperately trying to cut down on costs, they will possibly have to start new sections of administration keeping lists, and not only lists of successful community assets, but also lists of unsuccessful ones. Why on earth one needs the latter, I do not know. Like the noble Earl, Lord Lytton, I should have thought that a non-appearance in the first list was enough for everyone.
My solution, which I hope is a positive suggestion, is that the Government should put a loose but meaningful description of a community asset on the face of the Bill. Then, when an application for a change of use comes into a planning department, the planning officer could inform the parish council or neighbourhood forum and all the members of his planning committee immediately-just in case they disagree with him-that he is deeming the premises to be a community asset. The community would then have, as at present, six weeks in which to express an interest which, if forthcoming, will result in a moratorium on the decision for a change of use for, say, six months or more to allow the community to galvanise itself so that it could, as it were, head off the danger at the pass. That would be a very simple but, in my view, far more effective approach than the current quicksands that we are all being sucked into. Do we really need 19 clauses and a whole wodge of regulations to achieve a very simple procedure? I think not.
I am sorry to have gone on for so long-I bet that those who were here late on Tuesday night are quite glad that I did not speak at that hour-but, as I said at the beginning, this is an important matter. I am right behind the Government in their intentions and I really want to make this work, which it definitely will not do in its current form. I know that there have been consultations, but I expect that the responses were based on what is currently proposed. I bet that few have had the temerity to say that the emperor has no clothes. Chapter 4 sounds good politically, but I do not believe that it will achieve what it is trying to do. I cannot see these provisions saving a single village shop or pub. Indeed, I can see them condemning a few to the grave-
Baroness Thornton: Does the noble Lord accept that these provisions are not primarily directed at post offices and pubs? They cover wasteland in cities, disused bank buildings, disused offices, railway arches, warehouses, mills and allotments. Might not the noble Lord be undermining his own case if he is trying to tell the House that this is just about pubs and post offices?
Lord Cameron of Dillington: I accept that there are other community assets. As I said, I think that the open-space community assets could be dealt with in other legislation. However, the provisions are ultimately about a change of use rather than the disposal of what is a community asset. I accept that I speak for rural communities, but I think that one of the main purposes of these clauses is to protect, alongside urban community assets, rural community assets such as the village shop and the village pub. In any case, I think that my comments here apply equally to urban properties.
I have put my name down to remove all the clauses in Chapter 4, so I would like to speak to all those clauses collectively, but in fact I would not want there to be nothing in the Bill on this subject. The Government have made too big a political commitment for that. Nevertheless, I have always understood that the original political interest and intention was to make sure that local communities are given a chance to intervene to try to keep going a village pub or post office or shop or public library that has been threatened with closure. Despite what the noble Baroness said, the intention goes slightly further but not much further than that. When Ministers talk about the proposals, those are the examples that they generally give-my noble friend the Minister did the same on Tuesday.
However, the Bill goes vastly wider than that. In the first place, everything would have to be listed, as the noble Lords, Lord Greaves and Lord Cameron of Dillington, have emphasised. The Government have completely glossed over the implications of that. As the noble Earl, Lord Lytton, explained on Tuesday,
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Secondly, almost any sort of asset could, by a creative council employee, without even being mischievous, be considered to have community value. Any sort of business which employed people who lived in the locality could be argued to promote or improve the economic well-being of the local community. Any cherished landmark, any listed building-although not, as the Minister tells us, if it is a residence, as regulations will prevent that-and any popular view, even, could be argued to promote the environmental well-being of the local community.
Thirdly, I should like to ask the Minister about the degree to which the provision is limited to assets of which the community has already enjoyed the use. Could a piece of ground that in someone's eyes might make a nice football pitch, cricketing pitch or playground be listed? Could it not be argued that the prospect of enjoying the use of a certain building or piece of land had contributed to the well-being of a local community?
Fourthly, the point of sale-here, I take up the point emphasised by the noble Lord, Lord Cameron of Dillington-is not the point at which local interest and local involvement should be triggered; it should be change of use or the threat of change of use. A pub can change hands and still remain a pub, but if an owner wants to redevelop it, then the community should have the right to bid. Change of use should trigger the right to bid-ditto with post offices and village shops. Could not this be done in a way that tied in with existing planning powers?
As it is, we have a snooper's charter which could lend itself to all sorts of inventive arguments and practices, and which would surely result in landlords and landowners who have willingly made facilities available in the past less likely to do so in future for fear of having such a restriction placed on their property. They would want to avoid a situation where, whenever they might want to sell or transfer their property, this blocking mechanism could arise to impede and, in practice, prevent the transaction. On Tuesday my noble friend Lord Moynihan explained in detail how this could have massive adverse consequences for the provision of land and buildings for recreational and sporting use by private landlords in private agreements with local communities throughout the country.
Many amendments have been put down that deal with one or other part of the objections which I have mentioned, but none deals with all of them. I liked the amendment proposed on Tuesday by the noble Lords, Lord Greaves and Lord Tope, which would have required assets to be businesses. Unfortunately, when she wound up the debate, my noble friend the Minister said that she did not like the amendment and wanted to include more than just businesses. I am not sure what specific assets she had in mind but the examples that she and her colleagues tend to give are of businesses.
I also liked the amendment of my noble friend Lord Jenkin of Roding, which would have required that land to be listed needed the consent of the owner. Again, my noble friend the Minister did not like that; she said that no private owners would sign up. That in itself is a bit of a giveaway. She and her officials know that they are imposing on landowners something that they will not like.
Unless landowners see a way of providing facilities of whatever sort on their land to local communities without incurring the risk of the land or building being listed as of community value, with all the nuisance that that could bring, I foresee that supply drying up. That would be a huge tragedy. It would be a great folly, if the outcome were likely to be so counterproductive, to allow the Bill to be enacted with this part of it unamended.
Ministers have so far not come up with anything that remotely measures up to the numerous and serious objections to this part of the Bill. However, they have certainly listened to us, and I hope that something can be achieved during the Recess if not before. Meanwhile, I shall follow carefully other amendments which we are about to come to. I certainly liked what I hope may be an amendment that the noble Lord, Lord Cameron of Dillington, mentioned towards the end of his remarks.
I need to amplify the remarks that I made to the noble Lord, Lord Cameron of Dillington. I am an urban person-I live in Bradford and in London-and I have been involved in community activities, projects and the acquisition of land and property for community benefit in both places. For example, my title is Baroness Thornton of Manningham. I am the patron of the community centre in Manningham Mills-the wool mill in Manningham which was acquired as part of an arrangement to provide a community centre in a very deprived urban area. That is what we are talking about. It was acquired through the imagination and drive of local community organisations and is replicated in thousands of initiatives, both rural and urban, across the country.
Lord Jenkin of Roding: What more does the noble Baroness think this part of the Bill will give to what already existed for the acquisition which she has just referred to? She and her group seem to have been very successful in acquiring it; why do they need all this bureaucracy?
Baroness Thornton: If I can continue with my remarks I think there will be some agreement across the House. We would all prefer the Secretary of State to have a smaller role in these matters. I agree with the noble Lord, Lord Cameron, that this is a convoluted part of the Bill which may need simplification and to give more reassurance. However, it does not need to be deleted completely. The Government are on the right lines.
In answer to the noble Lord's question, I would be happy to list for the noble Lord, although perhaps not right now, a host of initiatives that have fallen by the wayside, either because the powers or the time did not exist for community organisations to raise the money-this applies also in rural locations-to enable them to use the asset in question for community benefit. That is what this part of the Bill is about, and I believe that the Government are on the right lines.
During the Second Reading debate I said to the Minister that we needed to discuss this part of the Bill. I have yet to be involved-as have any of my Front-Bench colleagues-in any discussions on this part of the Bill, but we hold ourselves ready. On Tuesday evening several remarks were made about the discussions taking place but, so far, those discussions do not involve us. I hope that that will change. I also hope that organisations that are expert in these issues-the Plunkett Foundation, Locality-will also be involved in those discussions. I am sure and confident that this House can resolve this situation satisfactorily.
The whole chapter has been so badly thought through that, as written, it will do more harm than good. I have two points to make. First, we must not forget that the original aim was to allow communities to save their village shops, pubs and post offices from closure. That is an admirable aim, but no mention is made of businesses and services in the Bill. Why not? Why is the wording so broad? I suppose it was thought that there may be other assets of benefit to communities, and so the scattergun approach was adopted. The great danger of using a scattergun is that one often misses the target-and that is exactly what has happened here.
The Bill needs to be drafted so that it hits the nail on the head. As it is currently written, any person, parish or community group can nominate any asset they deem to be of value to the community. As has been said before, this has put the cat amongst the pigeons. Landowners who for purely altruistic reasons have allowed their communities to use part or all of their land for sport and recreational activities are now reconsidering their positions. On Tuesday, my noble friend the Minister said:
"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 ... We need to take note of that".-[Official Report, 5/7/11; col. 243.]
I assure my noble friend that I know of national firms of land agents that have already advised their clients of the consequences of this Bill as it is currently written. I was talking to my agent the other day, and at the end of the business he asked me what I was up to. When I said that I was involved in the Localism Bill, he said, "Oh, we are watching the progress in the Lords very carefully and we will advise our clients during the summer". So warnings and advice have already been given to landowners.
"I tried to bring this back from being a very wide problem into being quite a simple, singular matter ... There are lots of examples already of people buying their local pubs or shops to keep them from going out of business".-[Official Report, 5/7/11; col. 242.]
There my noble friend hits the nail right on the head. Why does not Clause 74 say that a local authority must maintain a list of shops, pubs and post offices or other similar business or services that are of community value, rather than the current list of land? As the Minister said, that would bring this back into being a "simple, singular matter", and it would hit the target-a bull's-eye!
I know that Governments are reluctant to put lists on the face of a Bill, so why not put "businesses and services" in the Bill, as was suggested in Amendment 133D and echoed today by my noble friend Lord Reay? As it is, we have been given the right of appeal, compensation schemes and a whole list of exemptions-inheritance, gifts, transfers between family members, between partners in the same firm, and between trustees of a single trust and homes-all to allay the fears of landowners, who are just doing things for altruistic reasons. I have no doubt that many more exemptions will be given before the Bill is through. It is all getting far too complicated. If my noble friend wants to keep it simple, for goodness' sake put shops, pubs, post offices and/or businesses and services on the face of the Bill, and then all these bones of contention will disappear overnight. I concede that there may be the odd asset missed off the wish list, but there is no reason why a community group cannot bid for that asset if it comes up for sale, just as any other purchaser does at present.
Baroness Thornton: I am bound to ask, what about railway sidings, for example? What about waste land in cities? What about all those places that people want to have access to and cannot? I beg noble Lords to stop thinking about this just in terms of pubs and post offices.
Earl Cathcart: The noble Baroness raises a good point-what about them, indeed? If communities do not use them at the moment, they do not form part of this Bill. It is the very question that my noble friend Lord Reay has just raised.
My second point is that the Government seem hell-bent on the trigger point being when an asset is disposed of or sold. Like the noble Lord, Lord Cameron, I do not think that the selling of an asset of community value hits the spot at all. Hundreds of shops and pubs are sold every week up and down the country, with no loss to communities, as the purchasers are another shopkeeper or publican. So the business continues with no loss to the community. The real trigger point is when the facilities are closed down subject to an application for change of use or a demolition order. So I ask my noble friend to listen sympathetically to my noble friend Lord Hodgson of Astley Abbotts when he speaks to his Amendment 144.
To illustrate the point, there is great concern over the loss of so many school sports fields to development over the past 20 or 30 years. I do not believe that the measures in this Bill would do anything to stop this in future. The Minister might say, "But they can be listed as assets of community value". And so they can. But the local authority can give itself planning permission for development without a sale of the land taking place and without triggering the right to bid provisions. The local authority can receive a shed load of money from the developers and retain ownership of the land for a nominal annual ground rent. The land has not been disposed of or sold, but the playing field has been irretrievably lost. Surely there should be an obligation on local authorities to supply alternative sports facilities.
I know that my noble friend is well aware of the shortcomings of this part of the Bill and is as keen as any of your Lordships to get it right. She recognises that the most valuable asset is the current good will and genuine community well-being that already exists.
Lord Shipley: My Lords, I agree with the noble Baroness, Lady Thornton, in a number of respects, not least in that I think the Government are on the right lines. Some aspects of procedure and process-how this may be delivered-might need to be looked at before Report. I wanted to give some examples from my personal experience of where this legislation could well help to protect a community asset.
This is not entirely about pubs and post offices, but let me give an example of what can happen with a pub. Let us say that a pub is owned by a national, private sector organisation and is closed down. It is sold on the open market but, when research is done with a small advert in a newspaper over the summer, it is knocked down by the purchaser, and the community has no power under planning law to prevent it being knocked down. There is then an application for a change of use, but the criteria for change of use alter because the building no longer exists. It is treated and deemed to be a brownfield site. As a consequence, different planning law pertains and new planning permission for a change of use is much easier to obtain.
My second example is more hypothetical, but it reflects a concern that I have about the financial viability of sports clubs, which often find themselves in financial difficulties and needing to do things to protect their position. This might involve a merger, for example, or moving to a new site. There is an issue about whether land used for a sporting purpose should be considered, before it is sold, for permanent use as a sporting provision. Of course, planning law and the zoning of land help in that respect, but are not the entire story. There has to be a right to give a community the power, if the sports club is going to move, to say whether some greater community interest should be considered whereby a trust could be formed to perpetuate sporting recreational activity on that site.
A third example is government-owned land or buildings. This is not just about privately owned buildings. What about a cricket pitch on open space that is within the purview of a government building, such as a National Health Service building? Planning law currently protects that. One of my great fears is that it
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Another real-life example involved Ministry of Defence buildings for the Territorial Army next to a large secondary high school on a constrained site. The school needed further land, ideally for expansion, because it was too tightly constrained for the growth that it needed. It was in the community's interest that the school should expand, but it was clearly in the Ministry of Defence's interest to secure the largest income it could from the sale of the buildings and land. That was a housing use issue. We are then up against the difference in values between what one government department is prepared to pay to another. Nothing in current legislation says that one government department must give another the right to buy at a price lower than open market value-in this case, for housing development. This is a problem because the community's interest is not in the housing development-that may be in the MoD's interest-but in that of the children being educated in our schools.
Lord Shipley: I fully understand that the Bill does not deal with precisely that problem, but I am trying to give the community's point of view on what it worries about, such as controlling the assets that it perceives to be of community value in its area.
There is a further general issue with council-owned buildings: whether councils should have an automatic power to sell buildings that they own prior to testing community interest in running a building, such as a loss-making facility. With everyone's good intentions, I am sure that is what councils would do under the Bill. However, a register of those buildings would make councils ensure that they behaved reasonably in protecting community assets that local people might want to use. The development of community trusts and facilities whereby people in a neighbourhood can get together and form a community interest company trust is in the public interest. Put simply, there is a lot of discussion to have on the Bill between this stage and Report, but this debate is not simply about pubs and post offices. I agree entirely with the noble Baroness, Lady Thornton, that we have to think much more widely about what is in the public interest.
Lord Greaves: This has been a very interesting debate and I am stimulated to make one or two comments in view of what has been said. I am less sanguine than my noble friend Lord Shipley about whether this chapter of the Bill will help to do the kind of things that he has been talking about. I agree 150 per cent with what he said about the need for
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The noble Baroness, Lady Thornton, said that some of the comments were a full-frontal attack on this part of the Bill. When I first heard about this part-indeed, when I first saw it in this telephone book of a Bill that we have-I was enthusiastic and excited about it, because I thought that someone was at last getting to grips with the problem of the loss of community resources in both rural and urban areas. The more I have looked at it and thought about it, and the more I have listened to comments here, the more I think that what is being proposed will cost money but not actually do much good at all.
My personal view is that if this part of the Bill disappeared while going through your Lordships' House, that might not be a bad thing. The basic problem is there, but I cannot see the point of introducing what looks like an heroic gesture but will not achieve anything in practice. I find myself a little surprised to find myself saying this and on the same side as some Conservative Members here, who I quite often do not agree with on this kind of issue. However, simply from the point of view of workability and practicality, and whether the money spent on it will be of any value, I question whether it is actually of great use.
There is a rural/urban division here. The noble Baroness, Lady Thornton, and my noble friend are quite right to look at some of the other problems, but the genesis of this really came from villages, particularly when losing pubs and post offices. We have to remember that post offices, for example, are Post Office businesses and not premises. When a sub-postmaster wants to retire, the contract to run that post office is transferred to whomever the Post Office thinks is the best person to take it on-if there is more than one person; very often there is not. It is not linked to a particular building; it is a Post Office business, and that is how it works.
Often, the Post Office business has been closed down not by the sub-postmaster but by the Post Office in reducing the size of its network. In quite a few villages in smaller places, the removal of the post office facility has been the trigger for closing the local or village shop, which was partly a post office but partly a typical local or village general shop. Losing the Post Office business was the straw that broke the camel's back and made that business no longer viable. Noble Lords on the Labour Benches opposite have to understand that the biggest programme of post office closures was under the 13 years of the previous Labour Government. Often, hundreds of post offices closed a year.
Those noble Lords should also understand that this coalition Government have stopped that closure programme. My right honourable friend Vince Cable, my honourable friend Ed Davey and their Conservative colleagues-I would not take away from them as well-
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I have tried to get my mind around this part of the legislation as it regards urban areas. With the sort of area that I represent on the council, we all think of these things. I am finding it very difficult indeed to think of many circumstances in which putting assets on a list held in the town hall will make any difference at all. The moratorium will make no difference because the assets that we are talking about are often closed assets. Urban pubs are closed, and then stay empty for months and years on end while the owners of the buildings try to find another use for them. If people in the community wanted to take over those pubs, the owners would be absolutely delighted, but that is not the case. Then we are told that the measure is about railway arches, railway sidings and wasteland.
I wish to relate one more anecdote. There is a piece of former wasteland in the ward I represent that has been wasteland for 40 years. For a lot of that time we have wondered what on earth could be done about it. It has now been transformed by a partnership between local residents, the borough council and the town council into new allotments and a new mini park. It is a brilliant scheme-the sort of scheme that everyone would look at and say, "It is a wonderful, south-facing site, superb for new allotments". Why did it never happen before? That is because the resources were not there to do it. Why has it now happened? That is because it happened to be part of an area that was included in a housing market renewal priority area and we were given money to carry out environmental schemes as part of the housing market renewal work. It was possible because public money and public resources were put into it and made it happen. I hope that it will be a brilliant scheme for the next 100 years. There is no way on God's earth that the local community in areas that are in the top 5 or 10 per cent of deprived areas will be able to raise whatever it costs-say, £35,000-to remodel that land completely and put up new fencing. The resources are simply not there; they are poor areas.
If that piece of land was situated in a rich suburban village, the community may have been able to renovate it, but having a system tht is useful only in richer areas full of retired professional people who can devote their time to such projects is no good. A system must apply across the country in the inner cities, suburbs and former textile towns such as the one where I live. This proposal has very little to offer to the kind of areas in which I live and represent on the council.
Lord Fellowes of West Stafford: My Lords, I would like to make a brief observation about this business of declaring private assets to be of community value by referring to something that occurred many years ago when there was a great scandal about ruthless landlords, such as Rachman and various others, and there was a public outcry. The result was a mass of legislation
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Nobody seems to have asked why a landlord would volunteer to allow any of his assets, either buildings or open ground for sports activities, to be used if it immediately compromised his property rights. Some whose assets are already used by the public will find themselves in this spot, but many landlords will either withdraw the assets or simply refuse to allow them to be used in future. We must ask ourselves why owners would let their property be used if that immediately compromised their ownership, and somehow address that before the Bill becomes law.
Lord True: My Lords, I will briefly extend the remarks that I made on Tuesday-before I had to leave-on the potential costs of this measure. The noble Lord, Lord Greaves, also commented on that. The financial memorandum to the Bill says that the total cost of the measures in the Bill, on the heads of all local authorities in this country, will be £21 million, if I remember rightly. I am afraid that that is a grotesque underestimate. I referred to the burden that I believe that the compilation of a register might impose on my authority-two officers might translate, with overheads, into about £100,000. However, that is only for the routine management of a list.
I very much welcome the fact that my noble friends have placed a discussion document in the Library. I also welcome what my noble friend Lady Hanham said about restricting the ambit of the legislation and excluding some of the potential properties which some people are already beginning to think might be included. As has been pointed out, the discussion document relates to buildings which might improve social and environmental well-being and cultural activity. We have 8,200 buildings of townscape merit in our borough. Not all of these are residential premises-some of them are-but I can certainly envisage circumstances where communities might say, "We might want to have a bit of that if it ever comes up on the market". You have only to think of that number to envisage the time that might be devoted to this matter while this worthy legislation beds down.
I hear what my noble friend has said about looking at how the measure works in the first two years, but in the first two years there is potentially a very considerable burden. We have an appeals system. Private property owners would be able to appeal to the local authority. Beyond the local authority, there would then be an appeal to an independent tribunal. Thereafter, if there is a compensation matter, private owners will have a right to appeal, and then there will be a right to appeal to an independent tribunal on a point of law against that review decision. I make no complaint about private owners having the right to appeal. Noble Lords will not be surprised to hear that I feel as uneasy as some of my noble friends who have spoken about the potential invasion of private property rights. Given the fact that this will end up on a point of law, case law will evolve, the measure will ultimately go to the courts and local
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I hear what my noble friend Lord Shipley said about local authorities and I acknowledge that they have a responsibility in this area but we are already supposed to have asset management plans and asset management registers, and how bureaucratic they were. I was grateful to my right honourable friend the Secretary of State for reducing some of the bureaucracy in that regard. The fundamental problem here is that this is really emergency legislation. It provides for an emergency position. It all started with people being about to lose their post office or small shop, although serious potential problems of blight are involved, as the noble Lord, Lord Cameron of Dillington, said. A giant register is being sought of all potential assets of community value across every local authority in the land. As a result, like so much else in this excellent Bill, which as I said at Second Reading I believe could be a historic Bill, the measure will become sclerotic and have unintended consequences.
This is part of a tendency, begun under the previous Government but sadly continuing under this Government, of introducing Bills which are too large, take too long to progress and contain too many important measures. This issue of trying to preserve assets of community value, which is testing your Lordships' ingenuity and potentially interfering with private rights, could have been well dealt with in a narrowly defined piece of legislation. It could have been dealt with in Grand Committee and we could have teased out the question. However, we are here; but I hope that my noble friends-not those on the Front Bench, but the people who manage the Government's programme-will perhaps think again about some of theses massive and wide-ranging pieces of legislation that we face.
It is obvious that the Government will want some legislation along these lines, but we should not try to include everything. I agree with the noble Baroness, Lady Thornton, about railway land. We have a lot of it but putting it on a register will not actually release it for excellent community use, as my noble friend Lord Greaves said. If we want to deal with railway land-and, my goodness, we should-let us go after it with a specific piece of legislation rather than try to include it in this wide piece of legislation. I should like there to be a narrow definition; a lot of thought about how the administration of this legislation will go forward; and quite an eye to the costs of time, effort and potential division in the communities. I hope that between now and Report we can think further. My noble friend has been generous in the information she gave to the House and the time she has spent listening.
As to the compensation scheme, which I also have not mentioned, it is assumed that local authorities will simply pick up its cost. No one mentioned that. We are asked by our communities to list all these private assets, and then we have to pay for it. There is no help there.
My final comment is that I very much agree with what my noble friend Lord Hodgson said on Tuesday. He said that there are issues about the loss of community assets that do not relate to privately owned assets. A second Tesco is opening in my small ward. I mention Tesco because the noble Lord mentioned it. That opening will do more harm to the small shops in my ward than anything else envisaged in this Bill. Where are the planning powers of local authorities to deal with such matters? I do not find them in the pages of this legislation. Some of the things that we are trying to target in this chapter could be dealt with in better and improved planning provisions. Then we might be able to pursue some of the problems that my noble friend Lord Hodgson mentioned.
As to bureaucracy and cost, is he as puzzled as I am about the notion of a list? If you are a member of a local community, you know what its assets are-I use that term broadly. The proposal to set up a list of community assets suggests something much more commercial and directed at people and companies who are not within the local community. Does the noble Lord share that view?
Lord True: I certainly have doubts as to whether we need a list of assets of community value and a list of things that are not of community value. We already have a lot of lists and a lot of local knowledge. As I said at the conclusion of my remarks, neighbourhood planning should lead to greater local awareness and involvement. It may be a better mechanism for releasing resources and it would be on a better timescale, because this is, essentially, emergency legislation and you have six months to save it. That is how it all started. Compiling the lists is extremely complex and would relate to any use to which any of the land could be put. It states in the discussion paper that the local authority could consider former or current use, any planning policies, any use for the asset that the nominator is proposing, community support provided by the nominator, any statutory provisions affecting the asset, or any alternative sites in the neighbourhood that could serve the same purpose. I wonder whether some of the people who drafted this Bill would care to volunteer to give their time to some of the local authorities in this country to prepare for and work on those kinds of lists.
Lord Hodgson of Astley Abbotts: I rise briefly to underline the point made by the noble Lord, Lord Cameron of Dillington, that once the shop or pub is closed the game is almost certainly over. It is certainly past half-time, and every month during which they are closed makes it less likely that they can recover. It is
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Perhaps I may say to my noble friend Lord True that the arrival of Tesco damages not only in terms of shopping patterns but in the pricing of the beer and alcohol it sells, which undermines all local pubs because it sells virtually at cost price.
The Earl of Lytton: My Lords, this is such a complex part of what is in any event a complex Bill with a new concept of localism, but I confess that it is extremely difficult to know where to start on this chapter. I begin with the three words to which I should like to bring back the Committee's focus-assets, community and value. Each word opens up a raft of complex and interwoven considerations. I am pleased that the noble Lords, Lord Cameron of Dillington and Lord Greaves, have brought forward this series of clause stand-part debates to deal with the chapter as it is important to see it as a whole.
On the question of assets, one might ask, "Whose assets?". Are they land or are they services and facilities? The two are not the same. Are they intrinsic assets, are they activities or are they something that indirectly protects some other asset? Is it a current asset, a potential asset or a previous asset that has been lost? I do not need to say more, other than that it is always very difficult to turn the clock back. As to "community" as a term of art, in this part of the Bill one might ask: how local is it? How representative is it? What are its objectives? Is an objective stance being taken on behalf of the community? "Value" is a word with which I, as a practising valuer, am very familiar. What is the purpose? To whom is it of value? What is the time horizon and what are the constraints relating to it, including planning issues?
I turn to the points made by the noble Baroness, Lady Thornton. I spent the first seven years of my professional life working out of an inner city area. I spent the next four-and-a-half years working mostly in Greater London. I can relate to the issue of redundant land and wasteland. Even if they cannot immediately be used they have a negative effect by blighting the appearance of a neighbourhood. I wondered whether "asset" also meant the converse-the non-assets that detract. If so, we need to be much more careful about what we are defining.
Wasteland often relates to orphan sites that have somehow been left over. I alluded to this on Tuesday in connection with bits of rural verge. The same thing happens when urban land is built out. During the great expansion of the Victorian era, all sorts of things were left behind and no one knows who owns them. It may be that there is a case for adopting a sweeping-up principle but, if so, I would follow the
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However, perhaps the former statutory undertaker on redundant utility property land and that owned by charities, religious foundations and government agencies should have a specific social responsibility to make that land available to the community as a first choice. I point the finger at the privatised utilities in that respect. But that raises all sorts of issues, because privatised utilities are now large companies. They may be owned by French conglomerates or Scottish power companies. It is difficult to turn the clock back because the horse has gone from the stable. It does not matter what we do about the stable door, we cannot deal with that problem. As has been mentioned before, peer pressure or government pressure on companies may procure better social responsibility concerning some of that land. Again, we cannot put that in the Bill
The noble Lord, Lord Shipley, touched on a matter which I first thought might be dealt with under Section 106 of the Town and Country Planning Act: that the future use of land can be governed by legal agreements. The problem is that the legacy of past practice did not foresee where we are now. Again, it may be difficult to turn the clock back. It is possible that what we are considering is not relevant under planning law. There could be a lacuna here that we have to deal with.
I cannot remember which noble Lord mentioned Ministry of Defence land. Try getting the Treasury on side. A little thing called best value and getting the proper return for the taxpayer is trotted out. If any Member of your Lordships' House has a sure-fire way of getting hold of the Treasury, I have another proposition that I was not going to float. The noble Lord, Lord Cameron, knows what it is. If you give a douceur for offering land or assets to the community-a tax credit or tax break-you might find people making an orderly queue instead of running a mile. I have no confidence that Her Majesty's Treasury will be brought on side for that. I am also confident that it lies outside the scope of the Bill.
A county officer of parish and town councils told me not long ago that he had been approached by a parish about whether this chapter, once enacted, would enable a parish to bid for land where the recalcitrant owner was threatening to sell his paddock to Travellers. I dare say that that was a wind-up by the owner, but it brings into question whether such negatives are part of the concept of asset or something different. I think that the parish was told that the council did not think that the Bill was the right vehicle for that. I point out that relationships are not necessarily always lovely between private individuals, as owners, and communities, in either urban or rural areas. I cannot help pointing out the possibility of what I can only describe as sharp practice, where a local commercial interest gets alongside a community interest with the intention of collaborating over the ultimate division of spoils of a land development project. That is not as far-fetched as one might think. It operates as, "You, the community interest, use your neighbourhood planning and asset nomination rights and we, the commercial interest, will put in some funding and technical backing".
Lord Avebury: My Lords, I do not want to interrupt the thread of the noble Earl's argument, but did I understand him to say that it was always contrary to the interests of a community for a landowner to offer to sell land for the purpose of building a Gypsy site on it? Is that invariably contrary to the interests of the community?
The Earl of Lytton: My Lords, absolutely not. I was going to go on to say that there are many examples where owners take a benevolent view towards the community. It has already been highlighted that they might take a much more cautious attitude in future. No, I am thinking of downstream of the Bill when there are neighbourhood planning powers vested in a community, a community right to nominate and potentially unpleasant practices.
I acknowledge the desirability of communities being able to acquire assets that are important to them. I made that point at Second Reading. That is a bit different from a facility to cherry-pick assets that are not or have never been in community use or have been provided on a voluntary basis. The mechanism is wrong. The visible benefit of the top of the iceberg that we see gleaming above the water masks a much larger lump lurking below, which we need to consider carefully.
On Tuesday, I enumerated various points where I thought that authorities preparing lists would have their work cut out. I add only one thing to that on Clause 81, which concerns the publishing of the lists. Have the privacy and confidentiality issues been considered?
I come to the question of values. As a property valuer, I must suggest that that is not without consequences. I will be brief. Uncertainty is very damaging to property values. We should not await with eagerness the first case of a claim based on a lost sale.
I shall not cover the excellent and helpful paper that the noble Baroness has placed in the Library, but I shall write to her about that, because it does not cover all the things that it ought to. In particular, I mention compensation. The Bill does not provide for an automatic linkage to what is a long established compensation code under the land compensation Acts. That begs the question of whether it is intended to include the same checks and balances that are tried and tested or to introduce something else. I would welcome her comment on that.
Lord Patel of Bradford: I genuinely think that this stand part debate has got to the crux of many of the amendments laid before us. It has been extremely useful. It has helped us to explore and clarify many misconceptions as well as real issues. I thank the noble Baroness for laying the note in the Library and for the many meetings that she has offered to have with us. As my noble friend said, I think that we need to have a meeting with some of the groups that have lobbied us to have them round the table and have their views heard.
We agree with many things that the noble Lord, Lord Cameron, and others have said, especially about the bureaucracy in this chapter and the rest of the Bill.
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I hate to say this but I would almost be willing to let the noble Lord, Lord Greaves, have the red pen and have a go at this chapter because he could probably delete some of the nonsense and actually make it workable. That is the key to this-we endorse what the Government are trying to do in this chapter; the intentions are right. The key issue, as highlighted very clearly by the noble Earl, Lord Lytton, is about definitions. What is a community asset? There are different views around the country-for example, in rural areas. What we think a community asset is in Bradford clearly differs from elsewhere. It is not just about pubs and post offices but about the use of other community assets, such as land, where the community can transform these places.
The noble Lord, Lord Jenkin, asked a very important question very early on in the debate about why we need this to do what we have already done in Manningham Mills in Bradford. It is a really important and symbolic step forward, which, if introduced, could effectively provide an additional mechanism for community groups to acquire their own assets, while increasing their confidence, independence and capacity to deliver valuable services in the area. This is really important. We underestimate the creativity, innovation and cost-effectiveness that exists there and this would be a mechanism that would allow organisations such as Locality, which has been working in this area for some 20 years, to work with community groups and give them support to do this. We only have to look at the noble Lord, Lord Mawson, who could probably spend the next two hours telling us how to transform community assets into viable, lively and effective services.
Let us not throw the baby out with the bathwater. The key intention and thrust behind this, in terms of supporting communities to acquire and develop assets and to turn blight into benefit by providing a training centre, community meeting space, young people's activity or social enterprise start-up centre in disused buildings, is a real benefit. I know the noble Lord, Lord Greaves, is going to ask what difference this makes but-
Lord Greaves: It is a slightly different question. I am stimulated to stand up by the mention of Manningham Mills. I remember being taken there by an auntie who lived there when I was a small lad to look at the steam engine driving the mills-an absolutely wonderful sight. I am not aware-perhaps the noble Lord or his colleague will know-who provided all the resources and finance for that scheme. As he knows, I am passionately in favour of the kind of schemes he is talking about. In general, do they not require a great deal of resources of different sorts, whether it is money or people or whatever, from either local or national government, or from other organisations of one sort or another? Without that it is very difficult indeed in such communities to achieve such schemes. This Bill does not do that.
Lord Patel of Bradford: I take on board the point the noble Lord is making but I think the Minister would agree-going back to the community right
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Lord Greaves: I am entirely in favour, as the noble Lord is, of having partnerships with the private sector and getting spin-off from that; and indeed have experience of it. That is fine. However, the noble Lord talks about cricket pitches-he will be aware of the cricket ground at Park Avenue in Bradford, which used to be a very fine Yorkshire county cricket ground and is now just used by a local team. It must be in danger, in the future, of being developed or of no local team being able to keep up the expenditure on the large ground-all the terracing and so on. I believe it belongs to Bradford Council anyway, but how will putting that on an asset register help to save it? Surely what is required is for the project and scheme to be put together that will do something about it. They might save the football ground as well, while they are about it.
Lord Patel of Bradford: It is ironic that this Bill could be the trigger to sort out Bradford Park Avenue, because a team called Wibsey Park Chapel plays on the ground and I have played for them for the last two years. The noble Lord is absolutely right that there are issues about not being able to maintain this historic ground. If it got on a list, I bet my bottom dollar a number of groups would get together in the community, get the money required and have this historic ground restored; and you would see cricket on there on a regular basis all the year round. That is a really good example and it is what would happen. At the moment it is in the hands of the Friends of Park Avenue, who feel like they are not the friends of Park Avenue when they see it is falling to bits. You are absolutely right: the cricket team is struggling to keep it going, because it does not have the funds. If it was opened up more widely, a number of other cricket clubs would get involved.
Baroness Hanham: My Lords, that was a good debate. We had a very long time for it, and quite a lot of it had very little to do with the centre-point of the Bill-we roamed pretty widely, near to the subject, but also away from it-but I return to the points I made when we last discussed this issue the day before yesterday. We are looking for a simple way of ensuring that local communities can have an opportunity to try to put together a business case and purchase a facility in which they have a particular interest if it comes up for sale. I shall not try to answer all the points made today, some of which will come up again later. This debate has gone right across this clause, but various amendments cover other clauses and I shall respond to them then. I shall be sympathetic to some of those amendments but not to others. As I also said last time, there is a terrible danger that I will go back over what I have said before. As noble Lords said, I have put in the discussion document, and at our previous sitting I gave a pretty good indication of the sort of areas that the Government are considering. I think that I have also given a pretty good indication that we are not closed to thinking about possible unintended consequences. Many of the speeches today raised the question of unintended consequences. I think that a number of those consequences are completely outside the scope of the Bill. We want to narrow the debate and return to the Government's starting point which, as I said, was precisely to try to deal with situations where facilities simply vanish from the community's sight because it cannot do anything about it.
I have taken notes throughout the debate and have to say that so many separate points have been raised that I will need an opportunity to consider them. As I said, I am happy to discuss these issues-some for the first time, some not-with noble Lords. We want this part of the Bill to be right. We want it to do what we believe it should do, and we do not want people to spend the next 10 years of their lives trying to sort out what it means and does not mean. As I said, I am happy to have more discussions about this to see how we can look at the issues further, if necessary.
One matter that I want to address is compensation. We have included compensation for loss of value between a notification and a sale, and we expect the general rules to apply in quantifying this, as with compulsory purchase orders. No final decision has yet been taken on it but I think we can assume that that is roughly what will happen.
We are going to come back to this issue after we have had a break and we will answer more of the points then. As I said, I am listening very carefully to what has been said but, without notice of some of the points that have been raised, I do not think that I can answer them at this stage.
I thank everyone who has contributed to the debate. I assure all noble Lords that every single point that has been raised will be taken into account. I shall endeavour to talk to noble Lords and give them answers before the next stage, or I shall talk to them and not give them the answers, in which case those points will reappear at the next stage. In the mean time, I hope that the clause will be agreed.
Lord Tope: My Lords, I am very grateful for the noble Baroness's offer of further discussions, negotiations and consideration. I think that all of us in your Lordships' House who have taken part in the Bill over the previous five days in Committee have very much appreciated the-dare I say it?-conciliatory tone from the government Front Bench and their willingness to discuss, consider and, if agreed, make changes to the Bill at the next stage.
However, as we have just found out today when the next stage will be, I ask the noble Baroness how she envisages that we will achieve that further discussion and consideration, given that the last day in Committee will be the day on which we go into recess and the first day of Report will be the day that we come back, the intention being that Report will be completed in the two weeks in which we sit in September. I do not doubt for one moment the sincerity with which these assurances and offers have been made. My concern, which I suspect will be shared on the Front Bench, is how that is going to be achieved between 20 July and 1 September, the day on which amendments have to be tabled for the first day of Report. I suspect that there is no answer to that but we have to find one.
Lord McKenzie of Luton: My Lords, I endorse what the noble Lord has just said. We increasingly have concerns about the timing of the process. We are doing everything we can to make sure that we make progress, but there is an issue with trying to resolve some of these matters when the House is in recess. Frankly, some Ministers will be away, and writing to everyone will be more difficult when officials are also likely to be away with their buckets and spades. If we want to get the Bill right, I urge the noble Baroness to consider that point.
Baroness Hanham: My Lords, it is not for me to consider. As the noble Lord knows, government business and the timing of that business are dealt with by the usual channels. That does not fall within my remit at all. We have three weeks left with virtually two days a week to be spent on the Bill. Somewhere within that time people will, I hope, come together and we will be able to discuss the issue. I just make the point that I have had several meetings and I am very happy to extend the invitation to those meetings to the Opposition.
Lord Beecham: My Lords, on a different point, the Minister referred just now to compensation, as she did on Tuesday. I have two linked amendments on that issue in today's Marshalled List that we shall come to later. Have I missed an amendment on this that the Government have already tabled? I do not see a provision in the Bill about compensation, other than that an authority may make compensation available. Has an amendment been tabled? If not, is it the intention to table an amendment about it?
Lord Cameron of Dillington: My Lords, I thank noble Lords for what I thought was a very good debate. I want to make it clear that, unlike the noble Lord, Lord Greaves, I do not want this part of the Bill to disappear; I want it to work. I want it to save pubs, shops and some community spaces. I accept that there is more to life than pubs and post offices, and I totally accept that communities should get involved with their open spaces. I am not sure about railway sidings-that is obviously a very difficult matter which I am afraid is beyond me-but clearly it does not really belong in this Bill.
However, if wasteland and other sites are owned by public bodies, as the noble Lord, Lord Jenkin, said, there is nothing to stop the community getting together now and trying to buy a particular site. If it is owned by a private person, they can also make a bid, as is being proposed. As I said, under Section 15 of the Commons Act 2006 people can make a bid to have a site declared as a village green. However, I still think that the real danger to an existing community asset occurs with a change of use. That applies to the possible cricket pitch of the noble Lord, Lord Shipley, or his MoD sale for business development. I am not sure about the demolition of the pub. I always thought that you had to get permission to demolish a pub. I am told that you do not; I accept that. That may be an exception but there is probably nothing that any legislation can do to stop that in any case.
As I said, I do not want this part of the Bill to disappear. I want it to work, but there is also no doubt in my mind that the chapter as currently proposed is not the right answer to saving community assets.
The Chairman of Committees (Lord Brabazon of Tara): My Lords, before we move on to the lunch hour business, there are about a dozen amendments which have already been spoken to and it may be for the convenience of the Committee if we deal with those now. However, if any noble Lord wishes to move one of those amendments, we must stop immediately.
Lord Avebury: My Lords, I am very grateful for the opportunity to discuss this Motion, which relates to an order that brings into effect Section 85A of the Nationality, Immigration and Asylum Act 2002, inserted by Section 19 of the UK Borders Act 2007. The title of Section 19 is "Points-based applications: no new evidence on appeal", and that is a succinct description of its effect. The general rule that applies to immigration cases is that the immigration tribunals have power to consider any evidence relevant to the substance if the UKBA decision is under appeal, except in entry clearance cases-that is, cases relating to applications from abroad. In such cases, if there is a new development, the individuals have to make a new application to UKBA.
Section 19 makes provision for a new exception: all points-based system cases dealing with people either coming to or remaining in the UK for the purposes of work or study. A good deal was said about the substance of this section in the debate in Committee on the Bill which became the UK Border Act 2007, although there is no point in recapitulating the arguments against it that were deployed in both Houses, including in your Lordships' Grand Committee, on an amendment which I moved on 1 July 2007. If anyone is interested, it starts at col. GC 70, but I am afraid that the arguments are now only of historical interest.
In this short debate, I invite your Lordships' attention to the specific reason for this Motion: namely, what I consider to be the unlawful retrospective effect of the commencement order. On Thursday 19 May, the immigration Minister, Damian Green, made a Written Ministerial Statement, announcing that this change would come into force the following Monday, 23 May, and advancing as an argument that around two-thirds of successful points-based system appeals were those at which further evidence had been submitted after the dismissal of the initial application. At some point on Friday 20 May, the commencement order was placed on the website www.statutelaw.gov.uk and printed copies were available in Parliament some time on that day.
There was hardly any time for your Lordships or Members of another place to consider the merits of the order or its lawfulness, let alone to consult with persons who might be affected by it or their legal representatives. On the Localism Bill, we have just had a discussion on the unwisdom of allowing discussions on the further edges of that Bill to be channelled into the Recess, the only opportunity between the last sitting day and the first day that we come back-it is a similar case. Your Lordships are not being given adequate opportunities for discussions on what may be very important details or of consulting with outside experts or lawyers on the way in which these matters are being dealt with.
This is not the way to treat Parliament and I would be grateful if the Minister could explain the reason for such unseemly haste when Section 19 has been lying unused on the statute book for the past four years, during which time six commencement orders relating to other sections of the 2007 Act have been approved by Parliament. It could not have been for the reason sometimes given for orders changing immigration law being brought in with little notice, which is to prevent a spike in applications before the change comes into effect. In this case the only persons affected were those who had already received a refusal from the UK Borders Agency and had either lodged an appeal or were within the 10-day working window for deciding whether to lodge an appeal.
No doubt that is true, but your Lordships still have the right to consider these orders, by tabling a Motion before they come into effect, as I have done. I respectfully suggest that, to table these Motions on a Friday when generally neither House sits in the hope that no one will notice them on Monday when they arrive for a busy week, is a sneaky way of preventing any parliamentary scrutiny. This case is not only an insult to Parliament, but it creates major problems for the affected applicants, their legal representatives and tribunals.
Looking at the order, the new provisions on evidence do not apply to appeals that were part heard on 23 May, but they apply to appeals that were pending before the tribunal on that date; in other words, when a person has lodged an appeal and is waiting for it to be heard. The gravamen of my Motion is that it is a violation of the principle of legal certainty when a person has gone to the trouble and expense of lodging an appeal on one legal basis only to find the rug pulled from under their feet by a change in the legal basis, which has come into effect without warning or notice. Indeed, they would have had every reason to believe that, as Section 19 had been dormant for the past four years, they would be very unlucky if it suddenly came to life during the interval between the refusal of their application and the hearing of their appeal. Such a person may have concluded or may have been advised that their prospects of an appeal succeeding were
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We are advised by ILPA that the terms of the order are not lawful. It argues that unless the language clearly indicates a contrary parliamentary intention, a statutory provision has to be construed as not interfering with existing accrued rights. There is a presumption against retrospectivity which can be displaced only by clear statutory language and there is nothing in Section 19 or in Section 59 of the parent Act 2007 dealing with commencement that displaces the presumption in the case of Section 19. It is particularly telling that Section 59 displaces the presumption in the case of other sections of the Act, such as Section 26.
Without going through all the consequences of what Section 19 will mean in practice, there is one on which I seek an assurance from the Minister. This is the refusal of appeals on the grounds that mandatory evidence is missing or faulty. UKBA has issued a notice to its consultative forum, the employers' task force, stating that a validation stage is being trialled in which applicants are contacted when mandatory evidence is missing and given the opportunity to provide it before the decision is made. Those with pending appeals on the date on which this order came into effect had not had the benefit of that validation stage and I ask my noble friend to check that none of them had their applications rejected solely on the ground that a mandatory document had not been produced. As we all know, when dealing with complicated applications, it is easy enough to omit accidentally some piece of information that is required and we would expect to be reminded of the omission rather than to be told that the service requested would not be granted to us because of the omission.
Entry clearance appeals have always been held under the law which applied when a negative decision was made by UKBA and before that by the Home Office on the application, going right back to the original immigration Act 1971. Not surprisingly, challenges to the lawfulness of this order are coming before the courts, a situation which could have been avoided if the Government had made transitional provisions for the small number of points-based system cases where the application had been refused but the appeal had not yet been started when the order came into effect. The wording of the order could simply have been amended so that it applied to appeals against decisions made on or after 23 May.
For the sake of this handful of cases, the Government are breaching a fundamental principle of law and it is the duty of Parliament to warn them of the enormity of what they are doing. We ask them to lay orders in proper time to allow Members to judge whether they are lawful and never again to scurry them in furtively over a weekend. We ask them never again to fail to make it clear in primary legislation where it is the intention to make the commencement of a section or sections retrospective. I beg to move.
Baroness Hamwee: My Lords, I will not repeat the arguments that my noble friend made so powerfully. I have one point and one question for the Minister. My noble friend mentioned the validation pilot. Before
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I will not talk about making rods for our own back, but as a country we owe it to those who are applying for visas to be as clear as possible about what is required. We have talked in many debates about immigration and the importance of warm feelings on the part of other countries towards this country-the reputational area. I will mention that in this context.
Lord Judd: I will follow on from that sentiment, but first I feel that it is important to congratulate the noble Lord, Lord Avebury, on raising this matter. In this House, there is sometimes-shall I say?-exaggerated and even slightly operatic flattery, but it is impossible to overdo our appreciation of the noble Lord. Throughout his parliamentary career, he has been a model of what disciplined, detailed scrutiny is about. We may have big and emotional debates and focus on sensational issues, but the noble Lord has demonstrated that for Parliament, doing scrutiny well requires a great deal of detailed application and thoroughness. He does not easily let points of principle escape his attention, and we should all be grateful to him.
The issues on which it would be important to hear comments from the Minister include retrospective legislation of any kind. I deprecate retrospective legislation because on the surface it always casts doubt on the principle of legal certainty. From that standpoint, there has to be a very special case for anything that involves retrospective legislation.
My second point is one that the noble Baroness has just emphasised, namely that we spend a lot of time preaching to the world about the absence of the rule of law. Immigration policy puts us in the front line of relationships with people from other countries. It is terribly important that in our policy we demonstrate an absolute commitment to the rule of law. There is a perception-we could debate this more fully on another occasion-that what we take as important in the general administration of law does not always apply to immigration; that the task of immigration is to say no and to get people to go home rather than to find the truth behind the application; and that it is not to put ourselves in a position to understand a person's desperate plight and to determine that no stone shall be left unturned in ensuring that justice is fulfilled in their case. From that standpoint, what the noble Lord has put before us today is an applied illustration of why it is so important to take these matters seriously. I hope that the Minister will deal fully and convincingly with what he has put before us.
The Lord Bishop of Ripon and Leeds: My Lords, I support the Motion of the noble Lord, Lord Avebury. Like the noble Lord, Lord Judd, I thank him for his persistence on this issue of justice for those coming to or remaining in this country, in particular to work or study. That includes a significant number of people who come at the invitation of churches and other faith communities, as well as academic bodies, to be a part of the life of churches, universities and so on in this country.
The points-based system has proved problematic for many long-established relationships with other countries. It is in some danger of causing the lack of warmth to which the noble Baroness referred moments ago. The order adds to the perception that we are more interested in obtaining decisions in favour of UKBA than in achieving justice for applicants.
I stress again the point made by the noble Lord, Lord Judd. Why do we move so fast on immigration law? Why does it appear to be different from other laws that we consider in this House? I would like the Minister to indicate as clearly as she can what we are doing here. What we should be doing is seeking justice for claimants based on all the evidence that we can possibly have at a particular moment. Any legislation that looks as though it is seeking to exclude available evidence must be dangerous and problematic. The order also appears to ignore the fact that many of those applying have little in the way of resources, and that new applications, which would be possible, will add significantly to the costs.
There ought to be an absolute rule, first, that our legislation is not retrospective, and, secondly, that commencement orders such as this should provide proper notice to those affected. As the noble Lord, Lord Avebury, indicated, this order applies to appeals already in the pipeline, and there was only a weekend between it being published and coming into effect, so it fails the test on both counts. I, too, regret this unnecessary threat to justice being done and being seen to be done for those applicants whom it affects.
Lord Hylton: My Lords, the noble Lord, Lord Avebury, made a very strong case, and we are all grateful to him. I will ask one question. Will the Minister tell the House how many appeals were still pending on 23 May of this year? That would be very helpful in indicating the scale of the problem.
Lord Rosser: My Lords, I, too, thank the noble Lord, Lord Avebury, for tabling this Motion of Regret and enabling us to probe the reasons for the Government's actions in relation to the retrospective effect of this commencement order, which brings into force Section 85A of the Nationality, Immigration and Asylum Act 2002, inserted by Section 19 of the UK Borders Act 2007. The noble Lord, Lord Avebury, explained in some detail the background and significance of Section 19 of the 2007 Act. I do not intend to repeat all the ground that he covered, although inevitably there will be some repetition, for which I apologise.
The noble Lord raised the issue of the retrospective effect of the commencement order and, as a result, its legality. Section 19 is entitled "Points-based application: no new evidence on appeal"-which is exactly what it is about. As the noble Lord said, in immigration cases the general rule is that immigration tribunals can consider any evidence that is relevant to the substance of the UK Border Agency's decision, including evidence from after the date of the decision.
An exception to this is entry clearance applications, and Section 19 makes provision for a new exception; namely, points-based-system cases which relate to cases about people coming to or remaining in the UK for the purposes of work and study.
As the noble Lord, Lord Avebury, said, Parliament had no proper opportunity to consider the order since the change was announced on a Thursday in May this year to be effective from the following Monday. Such haste creates difficulties for applicants, their legal representatives and the tribunals. Why such haste-not for the first time-was necessary in this instance is not clear. As has already been said, sometimes immigration provisions are brought in with little notice to prevent a sudden increase in applications before the change, but I assume that would not have applied in this case as the only people affected by the change were those who had already received a decision from the UK Border Agency and had lodged an appeal or were deciding whether to appeal within the allowable period of 10 working days.
Under the commencement order we are discussing, the new provisions on evidence do not apply to appeals that were part-heard on 23 May 2011, but they do apply to appeals that were pending before the tribunal on 23 May 2011; namely, where the person had lodged an appeal and was waiting for it to be heard. This is the issue that this regret Motion is about. The rules have suddenly been changed so rapidly and so quickly, without warning and without notice, that a person who concluded, or was advised, that their prospects of success on appeal were good, because they could challenge the reasons for refusal with new evidence, suddenly finds that their prospects of success are poor because they cannot now produce that new evidence. As I am sure the Minister must know, a clear view has been expressed by the Immigration Law Practitioners' Association that the terms of the commencement order are not lawful and that it is an abuse of the principle of legal certainty. It argues that unless the language clearly indicates a contrary parliamentary intention, a statutory provision has to be construed as not interfering with existing accrued rights and that there is a presumption against retrospectivity which can be displaced only by clear statutory language, which cannot be found in Section 19 or in Section 59 of the UK Borders Act 2007, which deals with commencement.
I am not a lawyer, and I am not qualified to offer a legal opinion, but I understand that challenges to the lawfulness of the commencement order are likely to be coming before the courts. I would like to put some specific points to the Minister to which I hope she will respond. The first is a question that she has already been asked: what is the Government's estimate of the number of people who had lodged an appeal before the tribunal on 23 May 2011 and were waiting for it to be heard? What is the Government's estimate of the maximum number of people who on 23 May 2011 could still have been deciding whether to appeal within the allowable 10 working-days window? Why was it necessary to announce the change on a Thursday and make it effective just four days later, including a weekend, on the following Monday? Why could it not have been implemented over a timescale that would not have left people who had gone to the time and expense of lodging an appeal on one basis finding that the legal basis had been changed without warning and without
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I appreciate that it is unlikely that the Minister will disclose the legal advice the Government received on whether the retrospective effect of the commencement order is lawful, but can she confirm in words of one syllable that it is the Government's judgment that this commencement order is not open to successful challenge in the courts? I look forward to the Minister's response to the points I have raised and to those raised by other noble Lords, not least by the noble Lord, Lord Avebury.
The Minister of State, Home Office (Baroness Browning): My Lords, I thank my noble friend Lord Avebury for the opportunity to debate this Motion, and I am also grateful to him for correspondence relating to this debate that he has made available to me. A number of points have been raised, and I will do my best to deal with the issues to which they give rise.
The Motion deals with a distinct subject: the manner of implementation of Section 19 of the UK Borders Act 2007. As we have heard, the UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011 commenced Section 19 of that Act and introduced a new Section 85A into the Nationality, Immigration and Asylum Act 2002. That section introduces a restriction on the new evidence that can be presented at points-based system appeals so that only evidence considered by the UK Border Agency caseworker can be taken into account.
The Government believe that migration has enriched our culture and strengthened our economy, but that it must be controlled so that people have confidence in the system. In today's global economy, we need to be able to attract the best and the brightest to ensure that our companies remain competitive and our standard of living remains high. We have already pledged to transform the immigration system so that it does the best by the public. People have a right to know that the Government are protecting their jobs, keeping a firm grip on those who come here and sending home those who break the rules.
The UK Border Agency is committed to improving the quality of initial decision-making across all case categories, overseas and in-country, and has already made good progress with a dedicated programme of work under way to make such improvements. However, where evidence is not supplied with an application, caseworkers are unable to take it into account. They are then seeing their decisions overturned on appeal when appellants submit new evidence. It cannot be said that the PBS application process is complicated. A customer satisfaction survey found that around 85 per cent of applicants are clear about what evidence they need to provide and that up to 92 per cent of applicants find the application process easy to understand. I particularly draw that to the attention of my noble friend Lady Hamwee.
The Government commenced Section 19 to help ensure that applications, and therefore decisions, under PBS are made correctly first time. Before Section 19 was commenced, 63 per cent of allowed PBS appeals were allowed because appellants were submitting new evidence at the appeal hearing that was not provided to the UK Border Agency with their application. Such documentary evidence, for example, relating to a person's level of funds or demonstrating their English-language ability, will be taken at face value by the immigration judge and cannot be validated by the UK Border Agency. There simply is not time when that new evidence is submitted at the appeal stage. I stress that that sort of information is required at the time the application is made and should not be submitted at a much later date as part of an appeal procedure where no validation can take place.
Section 19 will also help to end unnecessary appeals. Applicants should submit all necessary evidence to allow the caseworker to reach the right decision in the first instance. An expensive and publicly funded appeal is not the remedy for those who fail, deliberately or otherwise, to submit the required evidence with their applications in the first place. Evidence can continue to be presented at PBS appeals where it is in support of a human rights, race relations, asylum or EEA ground of appeal, is provided to prove that a document previously submitted is genuine or valid and is provided in support of grounds that do not relate to the acquisition of points.
The Government carefully considered the best way to introduce this legislation and decided to apply it to all appeals heard for the first time on or after 23 May, the date of commencement. Doing so creates a clear cut-off point.
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