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The view that introducing the legislation in this manner is unfair on those who have already lodged their appeals, because they did so in the expectation that they would be able to introduce new evidence at the appeal stage but are now prevented from doing so, is contrary to the way in which the law was established in the first place. We considered very carefully the manner of introduction of this measure, which is shown in that there are transitional arrangements included in the commencement of this provision. Any appeal where a hearing has already taken place or part heard at the First-tier Tribunal will not be affected by this measure.
I would remind the House that this provision has been on the statute book since October 2007, with a clear intention that it would be implemented once PBS became established in order to give applicants and legal representatives the chance to become familiar with the process. The provision is widely known among applicants and legal representatives, and it can hardly be a surprise that the Government have now chosen to implement it.
The legislation as it stood prior to 23 May did not entitle applicants to delay submitting evidence until the appeal stage. It is the applicant's responsibility to submit any and all relevant evidence with their application. I would remind the House of the statistics that I gave at the beginning of my remarks. Applicants say that it
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The Immigration Rules, the UK Border Agency website and associated policy guidance make it clear that all relevant evidence should be submitted at the time of application. The commencement of Section 19 does not change what is already expected of applicants. The immigration system's integrity relies on UK Border Agency officials being able to conduct all necessary checks on applications to ensure that the right people are allowed to stay in the United Kingdom. It is vital that all relevant information is given in order to enable them to perform these checks. Simply presenting additional information at appeal, which effectively circumvents those checks, is not acceptable. The practice needs to be stopped as soon as possible.
My noble friend suggests that a better way to have implemented Section 19 would have been to exempt all those who had already lodged their appeal. I realise that this may sound reasonable but I believe that it would in practice have created confusion in the system. A person refused under PBS has 10 days to lodge an appeal. Two persons refused on the same day a week prior to 23 May could have lodged an appeal either side of 23 May, one being caught by the legislation and the other not. Implementing in that way would have led to considerable confusion on behalf of appellants and the courts.
Several noble Lords have asked for precisely the number of people in that situation on 23 May. I do not have the exact figure and I will not give a guesstimate. I think that the House would like the exact figure: I promise to write to noble Lords and to lay a copy of that figure in the Library of the House.
The UK Border Agency is working hard to improve the overall appeals system. The commencement of this legislation is just one element in an overarching appeals improvement plan which, through a mix of operational changes and longer term policy solutions, focuses on reducing the number of appeals in the system, on improving representation and organisation, and on working in partnership with Her Majesty's Courts and Tribunals Service to modernise the system over the next 12 to 18 months. For example, we are committed to embedding a right first-time, every-time approach to decision-making in the agency and we use information we learn from appeals heard to make continuous improvement to our processes. We have already increased representation at appeals from 74 per cent last year to 83 per cent so far this year by making more flexible use of our resources and increasing productivity.
Prior to this debate, my noble friend raised some specific issues with me, which have been raised by other noble Lords. It might be helpful to the House if I touch in some detail on those points. As I have said, this provision has been on the statute book since October 2007 with a clear intention that it was to be
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The principle of legal certainty requires that the law must be accessible and, so far as possible, intelligible, clear and predictable for those who are subject to it. As already mentioned, this measure has been around since 2007. We know that applicants were aware of Section 19 as it is subject to some internet blogs. We know that in 63 per cent of the appeals that are allowed, new evidence is used that should have been provided at the application stage. That evidence has not been verified by the UK Border Agency and we believe that appellants have sought to circumvent our checks in this manner. It was important that this practice was ended. It is not right that applicants should rely on an expensive and publicly funded appeal to correct errors in their applications. Perhaps I should repeat that the Immigration Rules, UK Border Agency website and associated policy guidance make it clear that all evidence should be submitted with the application. The commencement of this section does not change that requirement.
On transitional arrangements, I have indicated that where a person had a hearing or part-hearing of their appeal prior to 23 May, the effect of the commencement order has an impact only on those who have not yet started their appeal. Those who have are not affected and will be able to complete that process.
Legal challenge has been raised, particularly by the noble Lord, Lord Rosser. It is not for me to say who will legally challenge this order but, unlike other statutory instruments, commencement orders are not subject to parliamentary procedure, which means that there is no requirement for them to be laid in advance of the date on which they come into force. Furthermore, the order is made at the time that the Minister signs it. There is therefore no opportunity under the legislation for Parliament to pray against it.
I promise to write to noble Lords and to my noble friend who has raised this debate today about the numbers involved as of 23 May. I hope that I have been able to give some background information as to the history of this legislation and why the Government have brought this order forward.
Lord Rosser: Could the Minister give me a reply to a question that I asked? Can she confirm that it is the Government's judgment that this commencement order is not open to successful challenge in the courts, bearing in mind that the issue is the retrospective effect of a commencement order?
Baroness Browning: My Lords, I think the noble Lord has been in the House long enough to know that the Government do not comment on the legal advice that they receive. Certainly, in bringing this measure into being, as I have outlined, it is our understanding
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Lord Avebury: My Lords, I did not expect my noble friend the Minister to be able to respond to that question from the noble Lord, Lord Rosser, knowing that there are already actions before the courts that have not yet been heard. She obviously cannot predict the result of those actions. Nevertheless, it is worth underlining that legal advisers of some applicants believe that they have a chance of success; otherwise they would not have been able to launch their actions in the courts. The precedent and the lawfulness of the order are still under review. We will not know the answer to the noble Lord's question until those cases have been determined.
I thank the noble Lord, Lord Rosser, and all others who have spoken in this debate-my noble friend Lady Hamwee, the noble Lords, Lord Judd and Lord Hylton, and particularly the right reverend Prelate, who made the extremely valid and useful point that to do justice to applicants, all the evidence must be heard. By this order, we deny that to many people who would otherwise be successful, as illustrated by the Government's own figures, which were just cited by the noble Baroness. Sixty-three per cent of those who produce fresh evidence after being refused were successful on appeal. I understand perfectly well her point that 92 per cent of the applicants found the process easy to understand.
However, looking at this the other way round, 8 per cent had some difficulty with it. As I said, even those who are very used to filling in forms occasionally omit a document or make a mistake on the statement that would invalidate the whole application. These minor errors cannot then be taken into consideration at the appeal stage because the documents must stand on their own merits without exception. As the right reverend Prelate pointed out, this means that any applicant who is in that position will have to formulate a new application simply because he omitted a document or made a literal error on one of the forms. This seems an unnecessary burden on both the applicant and the tribunals.
I am extremely grateful to my noble friend for her comprehensive answer to all the points that were raised in the debate. She gave full value for money in her reply, and answered many of the points that we dealt with. We look forward to receiving answers in due course to those that she did not manage to squeeze into her time, particularly to the question about the number of people who were affected at the time.
Needless to say, I did not accept my noble friend's point when she said that my suggestion would have led to further difficulties if it had made it into the transitional provisions. With respect, nor do I think that she answered adequately the question about why it was necessary to bundle this order before your Lordships with such haste over a weekend, with no adequate opportunity for either consideration by your Lordships or consultation with outside interests that might well be affected by it. I wish my noble friend had been able
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"( ) by a community organisation operating in the local authority area,"
Baroness Thornton: My Lords, given the comprehensive debate we had before the break, I intend to speak for about 30 seconds. This group of amendments is all about who should be represented on the lists to inform either consent or denial. My amendment addresses itself to the fact that it should be community organisations operating in the local authority area; other amendments have different versions of that. In a way, we just need to listen to what noble Lords have to say and then the Minister can respond. I beg to move.
Earl Cathcart: My Lords, I shall speak to Amendment 136B. There has been much concern that individuals will be allowed to make nominations. The argument is that if an asset is of community value, the nominations should be made by that community group, which has local connections, and not by an individual. This amendment would provide a safeguard against vexatious individuals making nominations, or individuals listing everything they can think of just to be on the safe side. This approach would complement the earlier proposal in Amendment 136ZD, tabled by my noble friend Lord Gardiner, regarding the definition, which would require local authorities to take evidence of community support for a nomination into account. It might be worth defining "voluntary and community bodies" so that it has to be more than 21 people. This is the definition being used for a neighbourhood forum and the principle is the same.
Lord Mawson: My Lords, I apologise for coming in and out of the debate on Tuesday and missing the key parts of the discussion. I will speak to Amendment 136A. My day on Tuesday was punctuated by meetings about the Olympics and a meeting with a Minister.
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More seriously, who decides what land or buildings are included in the list? As I have listened to this debate on the Bill there has often been an assumption that local authorities, be they in Bradford or Tower Hamlets, are in close contact on the ground with local communities, that they know what is going on and that their staff have the entrepreneurial flair and skills to spot a building or land and create an opportunity when they see it. I hear a very different message in some things I have looked at in Bradford and elsewhere. Having had 30 years of experience attempting to negotiate with local authorities, both in east London and up and down this land, I must say that this is not my experience. There is one view looking down the telescope into a local community from the offices of a local authority. There is quite a different view looking up the telescope in east London from one of the poorest housing estates in Britain.
In my experience, often local authorities are actually not in touch with the practical opportunities on the ground presented by land and buildings. Local authority staff, and sometimes the local councillors, do not always possess the skills and mindset to know what to do with these assets, which they view from a fairly traditional public sector point of view. Some local authorities are just not innovators, and some are. Some local authorities resist social entrepreneurs like me who come along and suggest a wholly new approach or point to new opportunities presented by land and buildings that challenge the status quo. Of course, there are some excellent exceptions to this rule.
As the Bill stands, and as the noble Baroness, Lady Thornton has reminded us, the nomination of land or buildings as a community asset can be done only by a parish council, a county council or local authority. This means that, for example, the Bromley-by-Bow Centre in east London-which I founded, and of which I am now the president, so I must declare an interest-could not suggest that any land or building be included in the list. This is ridiculous. The Bromley-by-Bow Centre began 27 years ago as a small charity and has today expanded its operation such that it works closely with local residents across the whole of Poplar and beyond. We have done in practice what many contributors on the Bill have talked about. Today, what began as a small charity runs a three-acre site and has 170 staff. With local people, we have created 37 businesses and social enterprises that operate across Tower Hamlets and beyond. We built the first integrated health centre in the country that is owned by local people through a development trust, and now our doctors and their partners run four health centres in Poplar with responsibility for nearly 40,000 patients.
I also helped found the housing company Poplar HARCA, with which I do some work now and so must also declare that interest. This £300 million company
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The idea that the Bromley-by-Bow Centre and Poplar HARCA, both of which are charities, should not be able to nominate land and buildings on to the list would be resisted by local residents, who have voted through a democratic process for the housing company. These charities have widespread support and are far more in touch with the opportunities for innovation on the ground than the local authority, even though we work in partnership together. What I am describing in practice is the opportunities that the Bill can present to local social enterprises and their partners if we get the detail right. I am describing what the noble Lord, Lord Jenkin, has rightly described as the wider opportunities with which the logic of this Bill might, if the detail is right, present local communities.
With regard to the fears that the noble Lord, Lord Greaves, expressed on Tuesday about large companies coming into the local area and cutting out local organisations, I understand that fear, but in practice the Bromley-by-Bow Centre has a very successful partnership with the multinational company G4S. Together, we created the first £35 million LIFT company, which has now built 10 health centres in east London. The social enterprise Green Dreams, which was founded at the Bromley-by-Bow Centre, is a landscape business that now has a contract with G4S to work on 26 school sites across Tower Hamlets. Together, social entrepreneurs and a large business are now going for large contracts that are focused on creating local jobs and skills. This has all been done in partnership with local residents. Because G4S as a company has a long-term interest in the area, as does the Bromley-by-Bow Centre, good working relationships exist on the ground. Both partners are of course constantly looking at the opportunities presented by land and buildings.
For those reasons, I suggest that this amendment should be on the face of the Bill. Local community organisations should be able to nominate both land and buildings if going local is to look like this in practice in the future. If such an amendment is not included on the face of the Bill, I fear that some local authorities will not necessarily listen to the pleading of a small but developing local charity or social enterprise that is attempting, as we have done, to grow in capacity. The danger is that the local authority will ride roughshod over the community organisation, and a small flower
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Finally, I must say that, in my experience, we sometimes need the intervention of the Secretary of State-not too often, but occasionally-because, without the intervention of key Ministers of State in the development of the Bromley-by-Bow Centre, we would not be where we are today. Innovation in local communities is difficult to do. I know that-I bear the scars-and sometimes you need friends in high places to help you to break through the local inertia.
This is an important amendment for charities and social enterprises across the country. I suggest that the Government should support it if they truly desire to let a thousand flowers bloom. My colleagues and I would certainly be willing to sit in a room with the Minister and her colleagues to discuss further how we might make this part of the Bill work in practice. I have certainly found my conversations with the Minister on the Bill to date very helpful.
My amendments are designed slightly to strengthen and clarify the position in respect of those who should be included in the list. The first relates to Clause 76(2)(b)(iii), which speaks of "a person specified". I simply suggest that we make that "person or persons", because it is clear that an individual is not the only, or indeed the likeliest, source of a nomination. Amendment 136BZB would then add a qualification to make that person or persons,
However, an issue arises in that respect, and in other respects in this part of the Bill, about the definition of a local authority. There is a clause in the Bill which sets out the hierarchy of local authorities, counties and so on. There is also, I believe-I cannot for the moment identify it-a provision in the Bill which requires local authorities to co-operate on issues across the Bill. That leaves the question, with which the Minister might help us, of which authority in a two-tier area has the duty to compile the lists or whether it is
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I do not expect the Minister to be able to deal with these matters immediately, but could they be looked at, clarified and worked through, perhaps in consultation with the Local Government Association? The vague "duty to co-operate", a phrase to which we will return when we come on to the planning section of the Bill, does not really take us very far.
Lord Patel of Bradford: There is a consistent message here about making sure that local community groups take advantage of the opportunities that the Government have put forward, the emphasis being on "local". I shall not go into this in great detail, because my noble friend Lady Thornton and my noble Bradfordian friend Lord Mawson have spoken clearly about the importance of making sure that community groups are local.
Perhaps the Minister could comment on how we define that local connection. Does it relate to the electoral register or issues? The question whether local authorities should be included on the list of those who can nominate is also interesting, though that may be covered in Clause 76(3)(b). Again, if the Minister could clarify that, it would be helpful.
The amendment tabled by the noble Lord, Lord Greaves, relating to representation of other groups, specifically people with disabilities, is obviously welcome. However, as community groups represent a number of minority groups, is that not the intention of the whole Bill anyway?
The amendment tabled by the noble Lord, Lord Cotter, on capacity, is interesting in terms of local authorities. There is a slight temptation to say to the Minister that she may want to consider placing a duty on local authorities to provide support to local groups to make sure that they have capacity.
"In considering whether to accept a community nomination, a local authority must be satisfied that the person or body making the nomination has demonstrated that it has the intention and capacity to be treated as a potential bidder should a relevant disposal be entered into".
These are interesting amendments. I was very taken by the intervention of the noble Lord, Lord Mawson, on Amendment 136A. That amendment would make eligible a community organisation operating in the local authority area to make a community nomination. We shall put down in regulations who nominations can be made by; that is, any voluntary or community body with a local connection. I shall see that that includes what the noble Lord, Lord Mawson, spoke about, because, if not, we limit what can be done. We shall consider bringing forward an amendment at a later stage if it is necessary.
The duty to co-operate is in the development and planning area. My expectation is that the duty to co-operate would continue to exist between one authority and another if something straddled the two authorities. I am making all this up as I go along, so I may have to come back to it. The communities bidding to put a facility on the list must come from the authority area in which it sits. I cannot see that stretching out unless there were two facilities in different authorities, in which case they might have to put on both.
Lord Beecham: The problem is that you have a district council within a county area, so the resident and land may be in one place geographically but there are two authorities within whose boundaries it is situated. That is the problem that I foresee.
Lord Beecham: Again, taking up the point of the noble Lord, Lord True, that might be quite burdensome for some districts. It is worth looking at again. Perhaps it can be discussed between now and Report.
Amendment 136B proposes restricting those who may be specified in regulations as eligible to make community nominations. The majority of responses in the consultation which has just closed agreed with our initial proposal for groups and individuals to be eligible to make nominations. However, a large number of respondents experienced serious concerns about the risk of individuals-a point which has been made again today-and, therefore, we are sympathetic to Amendment 136B. We shall look at that issue further before Report. We will have nearly the whole Bill to come back to on Report.
Amendment 136BZA tends to assume that the term "person" in the Bill refers to an individual and has been brought forward alongside the earlier Amendment 136A. In fact, "person" is a legal term which can refer to either an individual or group of individuals forming an unincorporated body or an incorporated body such
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Amendment 126C would add detail to those who may be specified in regulations as being able to make a community nomination. The noble Lord, Lord Greaves, mentioned two categories: first, those with a particular interest, disability or-the amendment states "advantage", but I presume it means "disadvantage-and, secondly, people or bodies with a common right to use land because they own or occupy neighbouring property. We do not consider it necessary to specify either category. While we fully intend for the community rights to buy to be inclusive, we do not want to be too prescriptive on the kinds of organisations eligible to list land. It will be a broad list anyway and we would rather not have specific organisations on the face of the Bill.
Amendment 136BZC would add the local authority to the list of those eligible to make community nominations. We are not sure about the local authority being able to make nominations to itself because, effectively, it would have to go through the process and would have to be the promoter, the decision-maker and the final arbiter. We think it is for local community associations to make the bid and not the local authority. The tension we are talking about is better served by the existing provisions in Clause 76(3)(b), which enables regulations to be made that specify that local authorities can list assets on their own initiative, thereby avoiding pointless bureaucracy. So there is a provision there that local authorities can do this but not that they have to go through the nomination process; they can list of their own will. We have already made it clear that we intend to include this in regulations.
Amendment 139A would require a local authority, when considering a community nomination, to assess whether the nominator has the intention and the capacity to be treated as a potential bidder to buy the asset. This would make the consideration of a nomination much more burdensome and bureaucratic-a point which has been heavily laid around us today-for the local authority, requiring it to consider the merits of the nominator in addition to whether or not the asset is of community value. Such a requirement might be more appropriate where a right of first refusal is provided to the nominator subsequently. However, in a situation where the nominator will still need to compete with other potential buyers to take on the asset, such a requirement is, in our view, disproportionate because if they cannot raise the money and they have not got the financial security, they are not going to be able to bid.
Having listened to the Minister's response, I have a niggling concern that the Government are creating a vastly overcomplicated system for doing something very simple. Individuals and organisations in a local community ought to be able to nominate and there should be a simple process for then deciding whether it is appropriate. I am not clear why there have to be decisions by any bodies about who those nominators are. If they are local individuals or organisations, surely they should be able to put forward a nomination. If we turn it round the other way, I am not clear about who we are trying to rule out. If they are in, or active in, the community, who are we saying should not be able to put a nomination forward? If there is not an obvious group of individuals who should be excluded-and I cannot think of any-why do we have to have a decision-taking process at the local level on who should or should not be able to make such nominations? Complexity is the last thing we need because it does not empower communities. Arguments about whether or not a nomination has been made by a relevant local individual, group of individuals or organisation misses the point; the arguments should be about whether it is a suitable nomination in the first place.
Baroness Hanham: My Lords, the decision by the local authority would probably have to be made on only a very few occasions because it will be blindingly obvious whether or not an organisation is a community association under the terms of the Bill. It is just possible that there might be a body which no one has any idea about; a body which might have been suddenly thrown together and claims that it comes from the local community but does not, will fall outside the parameters of the Bill and it is reasonable that the local authority should be able to say, "I am sorry, you do not fulfil the requirements" and be able to turn it down. It is expected that any body which is understood to be a community body or people of the local community will find themselves nominating quite happily.
Lord Taylor of Goss Moor: I still find think this is overcomplex. At the point at which an organisation has nominated something within the community for this purpose, is it really worth having an argument about whether it is a community organisation or a part of the community? Would it not be easier to say whether or not it was a suitable asset? That process would surely trump any issues about who is eligible to nominate it provided that they can show they have a community connection.
Baroness Hanham: My Lords, we are not trying to make this overcomplicated. I am trying to simplify the local authority's role in identifying a community body. One is trying to rule out a very large body which does not have any particular community interest but would like the asset, coming in through the back door and the local authority being unable to stop it. That is how the Bill stands. I hear what the noble Lord says.
Baroness Thornton: My Lords, I am grateful to the Minister for her response. I think she has won over the Bradfordian party in the House. We look forward to the next stage. I beg leave to withdraw the amendment.
Lord Howard of Rising: My Lords, in moving Amendment 137 I shall also speak to Amendment 138. These amendments would allow a local authority to decide for itself what assets should, or should not be, included in that authority's register of assets. Surely this is what localism is about: allowing decisions that affect the community to be taken by that community rather than being dictated to by central government. I cannot see much localism if a local authority "must" include an asset, as defined by the Secretary of State. Would it not be more in keeping with the sentiments of the Bill to allow local authorities to decide themselves what is best for their local communities? It might well be that, for reasons peculiar to that area, a slightly different consideration is more appropriate for what asset needs to be included on the register. By setting the parameters, the Secretary of State can prevent abuse by local authorities, while the discretion that these amendments provide would allow for a modest amount of flexibility to suit local circumstances. Decisions taken locally is what this Bill is meant to be about. I look forward to hearing what the Minister has to say about this. I beg to move.
Lord Patel of Bradford: I have just a very short point to make about the noble Lord's amendment. One would think that it would be better to be clear about what a local authority must do rather than introduce further doubts or a lack of clarity. That has already been debated considerably today. It goes back to supporting the Government's intention to have clarity about what must be done rather than leaving any vague options open for the possibility of any misinterpretations. It would be good if the Minister could address that issue.
Baroness Hanham: My Lords, it is the Government's intention to set out a definition of an asset of community value in regulations that will require local authorities to judge whether an asset meets that definition in particular local circumstances. It seems right that there should be some pretty clear idea of what we are talking about and what is justified.
If the local authority decides that an asset meets the definition and it was proposed by a community nomination, it is required to list. There is a "must"; it must do that, if it fulfils the ambition of the legislation.
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Amendment 138 would amend subsequent wording in line with the change proposed by Amendment 137. We do not accept the amendments that my noble friend has proposed, because we think that on this matter the local authority needs to have pretty well defined parameters.
Lord True: I understand the point made by my noble friend the Minister, but I have some sympathy with the amendment, for reasons that she will understand from my previous interventions. I do not think that this is easy, and I look forward with interest, as many other noble Lords in this Committee will, to seeing the regulations and the guidance that her department will produce. The Minister was very receptive to that point when it was made by noble Lords two days ago and today. There are circumstances in which a local authority, using its reasonable discretion, could cut short a bureaucratic process that is pre-eminently likely to end in the rejection of a nomination. I really do not see why, taking its local circumstances into account, a local authority should not be given slightly greater freedom than is presently suggested in the Bill. I understand my noble friend's argument and that of my noble friend Lord Howard, but in many ways I slightly move towards my noble friend Lord Howard's because I hope that some degree of latitude and discretion will be allowed.
Lord Howard of Rising: The Minister said, "If we get it right for the whole country". If it were possible for whatever is decided in Westminster to be absolutely correct from Land's End to John O'Groats, my admiration would be endless and unlimited. The whole point of the Localism Bill is that central government cannot get it right for everyone all the time and that therefore there must be some discretion locally to make things work for each area as it thinks best. Having said that, I can see that the Minister does not want to move on this, so I beg leave to withdraw the amendment.
Lord Howard of Rising: My Lords, this group of amendments seeks to remove the requirement for a local authority to give reasons for not including an asset, which has been nominated for inclusion, on its register of community assets. As has been said by my noble friend Lord True and the noble Lord, Lord Greaves, at a time when officers in local authorities
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I realise, and I know from personal experience, that officers in local authorities have the highest integrity, but there would nevertheless be a strong temptation automatically to include certainly all marginal nominations and probably a number of others. Aside from the unfairness of creating this bias, ultimately it will lead to more arguments and more appeals that will, in turn, lead to much greater expense for the public purse-a worry that already concerns those of your Lordships connected with local authorities.
Over 60 per cent of referrals to the Standards Board were malicious. I should declare an interest in having been a victim of just such an accusation. There will inevitably be a number of malicious nominations for inclusion on a register of community assets. It will be time-consuming and difficult to have continually to be giving reasons for refusing this kind of nomination. Not having to justify refusal will in no way prejudice the ability of genuine community assets to get on to the register, but it will ensure a fairer consideration of what is appropriate and proper to be included on it. I beg to move.
Lord True: My Lords, again, I have some sympathy for my noble friend's arguments. Any noble Lord who has seen, for example, the papers for a meeting of a licensing committee, with hundreds of voluminous pages of submissions and comments, or who reflects on the fact that I tried to draw to your Lordships' attention earlier-that the process of a decision on whether an item should be listed is ultimately subject to appeal, as is the matter of consultation-will realise that, inevitably, however light touch it is intended to be in the first place, the process is likely to generate a large amount of natural paperwork.
I also submit that as a strong supporter of committee action, as I hope I will reveal when we discuss neighbourhood planning, I believe that those who wish to propose that a property should be listed should be prepared to take the trouble to attend a meeting and argue their case. There is a high risk that in a process that ultimately becomes subject to a test at law, whether by judicial review or by whatever other process is envisaged under the Bill, these matters will not be able to be decided by officers setting out a letter saying, "Sorry, chaps: we've decided we're not going ahead with this one". There will have to be paperwork and a process. Adding a further burden on local authorities to send out individual written notices to every body or individual who suggests that an item be listed may be extremely burdensome, in administrative terms. My noble friend Lord Howard of Rising might not have the right mechanism in what he seeks to excise from the Bill but he touches on what is, potentially, a very important matter.
Lord Patel of Bradford: I will be very brief. The noble Lord, Lord True, has touched upon some of the key issues and the noble Lord, Lord Howard, raises some important points. As this is a localism Bill, it should be left to local authorities in local areas to determine this, but we have an issue about the need for transparency. If a community or others go to the trouble of listing or raising issues, they need a clear and transparent response. Some balance has to be struck between reducing the bureaucracy and, perhaps, issues in regulations that allow local authorities to take the actions they want to. However, we certainly say that they should give reasons that should be clear for anyone who has gone to the trouble of putting in a bid of any kind.
Lord True: I agree with the noble Lord's point on transparency. My point is simply that, given the potential legal implications here, the process would have to be transparent in the way that a licensing process ultimately is. It would therefore be a matter of public record, properly minuted and so forth, so that setting up a separate process by legislation seems otiose.
Baroness Hanham: My Lords, five of these amendments look to remove the requirements on the local authority to give reasons for its decisions in connection with the scheme, whether in favour or against. On those five amendments, Clause 77 provides that where a community nomination is unsuccessful the local authority must enter the land on the unsuccessful nominations list and give the nominator written reasons for the decision. Amendment 139 would remove that requirement of giving reasons to the nominator.
Clause 78 deals with notices about the lists. Amendment 140 would remove the requirement for the local authority to give reasons in its notice for removal of land from the list of assets of community value. Amendment 141 to Clause 79, which gives a landowner a right to review of the decision to list, would mean that the local authority would not have to give the owner the reasons for the decision it has taken following the review.
Amendment 141A also concerns the right to review in Clause 79. At present, if the local authority decides on a review to remove the land from the list of assets of community value, it must give a written copy of the reasons for the review decision to the person or body whose community nomination had previously been accepted. Amendment 141A would remove this requirement. Clause 80 concerns a list of unsuccessful nominations. Amendment 142 would remove from this clause the requirement for the local authority to include in the entry the reasons for not putting the land on the list of assets of community value.
These amendments would all remove an essential guarantee of transparency from the scheme. We of course expect local authorities to behave reasonably and tell a community organisation why its nomination was refused, or why an asset had been removed from the list. We would also expect them to tell an owner who had asked for a review of the decision on listing the reason for the decision. These are basic provisions that we consider essential for all community groups
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Amendment 141B concerns what should be included in the procedural regulations for the review of listing. This also relates to Clause 79. At present, the Bill sets out matters which the Secretary of State or Welsh Ministers may include in these procedural regulations. The amendment would mean that these matters must be included in the regulations. This appears to take a contradictory approach to that taken in the previous amendments, as there is a request for prescription of the process but no intention to tell the owner or the nominator of the outcome. In every case it is the Government's intention to make procedural regulations and to ensure that they contain those details that are necessary for the effective operation of the scheme.
Finally, Amendment 140A appears to be seeking to amend Clause 79, so that where an owner requests a review of the decision to list, the time limit, if any, set for the owner to make this request is not as provided in regulations. We believe that this would be unhelpful to owners of listed land as it would create uncertainty as to how quickly they should act, and would again reduce the level of transparency. I hope that, with that explanation, the noble Lord will be happy to withdraw the amendment.
Lord Howard of Rising: I cannot say that the explanation thrills me. What is proposed will create an immense amount of work and a very strong bias to go in a certain direction. Existing freedom of information legislation would enable the transparency to be maintained. I do not suppose that there will be any assistance from the Government in funding this work or, indeed, in creating the lists in the first place. It would be nice if the Government would consider removing this provision, thereby reducing the amount of work that will be necessary for overstretched local authorities to carry out. I might want to return to this subject later. Meanwhile, I beg leave to withdraw the amendment.
Baroness Hanham: My Lords, this group comprises various minor and technical government amendments to improve the working of the community right-to-buy provisions. Before I go through each amendment, I wish to give a short introduction on them.
Clause 82 contains key details for giving communities the chance to bid for listed land. There are four broad aspects to consider: first, who has to do what to initiate the windows of opportunity; secondly, the identification of certain types of disposals which will be exempt from complying with the rules at all; thirdly, disposals which can be permitted within the full moratorium period; and, fourthly, the lengths of the interim and full moratorium periods-that is, the windows and the protected period.
We are concerned not to interfere with property transactions where the objectives of the policy will not be compromised. I can assure noble Lords that we intend to make provision for a range of types of disposal to be exempt from compliance with the rules. These include, as I indicated on Tuesday, transfers made by inheritance, gifts, transfers between family members and between partners in the same firm, or between trustees of a single trust. We are also very aware of the concerns of landowners who willingly make land or buildings available for some form of community use. They are worried that this benevolence will risk their property being listed as a result and that, if they wished to dispose of a larger site including the listed asset, they would have to delay the disposal.
There are two aspects to this. The first is the extent to which it will be appropriate for the local authority to consider occasional or periodic use of a particular site as meeting the definition of an asset of community value. There is a large difference between the use of a field once a year as a car park for the annual village fete and the licensing or leasing of a barn to a local group to run a playgroup. We will give further thought as to how to make it clearer when such use should be sufficient to justify listing.
The second aspect is whether the listing of a small site-say, part of a field or a single building on an estate-should be allowed to disrupt the sale of a whole legal estate of which the site is just a small part.
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A further area for possible exemption that has been raised through the consultation and in amendments before the House is the disposal of going-concern businesses. Again, we have some sympathy with this concern because we do not wish unnecessarily to disrupt a thriving business, such as a village shop or pub, by delaying its sale. That could relate to a sale for the same use, whereby a pub transfers to another owner who will use it for the same purpose. We wish to consider that issue further and will come back on it at a later stage.
We are also keen to ensure that where there is a community interest group with a strong interest in a particular asset and the capacity to pay an acceptable price for it, the owner should have the option to dispose of the asset to that group without waiting until the end of the window to do so. This would, for instance, allow local authorities to make asset transfers to community interest groups without being restricted by the windows. We therefore intend to make provision for this in regulations as a right of first offer.
In considering the length of the various windows, we have taken careful account of the responses to the consultation and of the need to balance community benefit and the rights of property owners. In the consultation, a broad consensus of 71 per cent of respondents were in favour of an interim window of six weeks, and 67 per cent were in favour of a protected period of 18 months. We believe that these are the right periods. Opinion was much more divided on the length of the full window. A majority of 55 per cent of respondents favoured a window of six months, as opposed to 40 per cent who favoured three months. We are minded to make the full moratorium a period of six months. This would include the interim six-week period; in other words, the window would last for four and a half months after the interim period. A body of experience suggested that a window of less than six months could undermine the benefits of the policy to community interest groups. We considered that communities would thereby be given the time and the best opportunity to succeed.
We also accept that there is a case for providing greater certainty by considering whether to add the respective periods to the Bill. On the other hand, we are also aware that this would limit the opportunity to review the periods in the light of experience, once the scheme is in operation. We will therefore be listening to the debate and will come back to that matter at Report.
I shall address directly the Government's amendments to Clauses 82, 83 and 85 and the proposed new clauses to follow Clauses 84 and 87. All these are technical amendments that are intended to prove how the provisions will work in practice.
The introduction in Amendment 147F of a new clause to follow Clause 87 is proposed in response to questions raised in Commons Committee about how
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Amendments 142A and 143ZB to 143ZD-the two sets of amendments to Clause 82-and the proposed new clause to follow Clause 84 contained in Amendment 147D are both about the operation of the moratorium. They ensure that the local authority is informed of a community interest group's intention to be treated as a bidder to buy the land, and require the local authority to inform the owner of a listed asset as soon as practicable that it has received such a request from a community interest group.
Our second amendment to Clause 82, Amendment 143ZB, ensures that it will not be possible for a new owner to get the benefit of the protected period relating to the owner from whom the land was bought. That ensures that the moratorium conditions apply afresh to a new owner if they wish to sell. The amendments proposed to Clause 83, Amendment 147B and 147C, remove the surrender of the lease as a relevant disposal for the purposes of the community right-to-buy scheme. In practice, it is often difficult to decide whether a surrender of a lease has taken place; surrenders are often determined only retrospectively in the courts. Removing the surrender of a lease from the definition of a relevant disposal avoids those difficulties in the very small number of cases where surrender may occur.
Lord Beecham: I have three short questions on Clause 83. The noble Baroness may not be able to answer them immediately; if not, perhaps she will write to me. First, for the purposes of subsection (2), could a charge on a property be regarded as a disposal if the property is then vacant? The second question arises under subsection (6) in respect of the qualifying leaseholders' state, which would have to have at least 25 years to run. It strikes me that someone might grant a lease for less than that, which would take it outside the parameters of the clause, with an option for the tenant to renew it which could effectively carry it beyond 25 years. Had that been a straightforward grant, it would be within the framework. Does that need to be considered? Finally, subsection (7) gives the appropriate authority the right to amend the clause by order. As in previous debates, I would like confirmation that that would be subject to an affirmative order, as it deals with personal property rights, rather than a negative resolution.
The proposed amendment to Clause 85, Amendment 147E, would enable the regulations to include an appeal against compensation decisions under the community right-to-buy scheme. The amendment will strengthen the protection for property owners affected by the scheme. I beg to move.
Baroness Hamwee: My question on Clause 83 has turned into a short supplementary to the questions asked by the noble Lord, Lord Beecham. The Minister has told us that the order-making power in Clause 83(7) will be used to deal with matters of inheritance and partnership. Can she give the Committee an assurance-I am sure she can-that the order-making power will not be used to alter the principal definitions of relevant disposal, which are already contained in the Bill? As subsection (7) is set out, it could, on the face of it, actually change the 25-year term or the definition of disposal in Clause 83(2). Those are quite fundamental points.
Lord Taylor of Goss Moor: My Lords, I welcome much that the noble Baroness said about the Government's willingness to look at the particular circumstances that may arise, for example, in the sale of going concerns and where the community asset is a small part of a larger concern. These issues have certainly raised great concerns, and I would like to add another.
I am not sure that I need to declare an interest but I shall do so just in case. I chair the eco-town strategic partnership in the St Austell area, a wide area of mining land which was mined formerly by English China Clays and more recently by Imerys. Over many years the policy of past and present mining companies in the china clay area has been to open large areas of land to community access, but always with the proviso that it might be worked in future. That is not a bad example of the concern that I want to put to the Minister about the deterrent effect that this policy-a policy which, broadly, I very much support-could have on landowners of that sort in opening up land to community use, whether for walking, riding, cycling and so on, if it were severely to limit their ability to sell and dispose of the land as part of the operation of their business. My fear is that, as things stand, it will simply freeze in aspic the current position on community access as people would be able to argue that access already exists and to list it. Equally, in terms of new community access, it is in the nature of mining land that the areas which may be accessed by the public will change over time depending on where the workings are and where land restoration has taken place following tipping. I can see this creating a substantial block to opening up land for future community use. The same may well apply to the farmer who very willingly allowed a corner of his land to be used by the cricket club. That usage now exists and a listing could be applied for. It could also create a substantial deterrent to any landowner opening up land for such use in future.
I am very much in favour of the idea that we should register assets of community value-which clearly applies to things like village shops, community halls and so on-but I am concerned about how to ensure that the creation of new community resources is not blocked by the fear that these elements will be applied.
I have one more question; I should already know the answer to it, and no doubt there is an answer. What is the position when the sale of land options-which are usually bought because planning permissions might be granted-in practice trumps these proposals to register community assets? I wonder whether the purchase of an option in any sense triggers this process.
Baroness Hanham: My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lords, Lord Beecham and Lord Taylor, for their interventions. The noble Lord, Lord Beecham, had three questions. I have the answer to two of the questions but cannot remember the other one. Would he like to ask me again, if he can remember it? If he cannot then that is fine. Perhaps we should both read Hansard. I apologise-I was getting so excited about the orders that I forgot about the next bit.
The noble Lord, Lord Beecham, asked about the 25-year period. The land will qualify only if the lease is granted for 25 years, rather than having 25 years left to run at the time of disposal. If it is granted for less than 25 years and is therefore subject to renewal, I suspect that it will not qualify, because the lease will have to be for 25-plus years.
Lord Beecham: I understand that and am grateful to the noble Baroness. That of course means that there is a way out for an owner. My first question was whether, assuming that the property was vacant, a legal charge would constitute a disposal. The Minister may need some legal advice about that, as indeed I may do too.
Any orders will be affirmative, and that is also my answer to the noble Baroness, Lady Hamwee. Under the Bill, the need to change will stay unamended. It is fair to say that at some stage there might be a requirement to change the definition. If that is the case, again it will be done through an affirmative order.
The noble Lord, Lord Taylor, has produced the sort of conundrum that we had over private land where a small piece is taken out or is open to community use. I suspect that mining land is not part of the Bill, although I shall have to write to the noble Lord. However, if it is, I accept that what he said is very similar to what was said about the problems of small bits of land being used, through benevolence, for cricket pitches. I shall come back to that with an answer before the next stage.
Lord Hodgson of Astley Abbotts: My Lords, I listened very carefully to what my noble friend said in her introductory remarks to this set of amendments. I do not think that she has shot my fox but she has probably hit it. Nevertheless, I should like to press on. I think that what she was saying-and she is sympathetic to not interfering with commercial transactions-is at the root of what I am seeking to achieve with this amendment. At the same time, the amendment addresses some of the issues raised this morning by the noble Lord, Lord Cameron of Dillington, in our Clause 74 stand part debate, as well as the issues that have arisen in prior debates on the difference between a service and a piece of property and on how a "going concern" works in relation to assets of community value.
Amendment 143 is an introductory amendment that seeks to add a further requirement where the moratorium takes effect. That relates to Condition D in my Amendment 144, which would permit disposals unless,
the sorts of issues that came up in our earlier debates. In other words, where the business is at risk, the community has some reason to interfere. However, where there is a going concern and the service will continue to be provided or the business will continue, it is not clear why there needs to be any interference with normal commercial development and commercial enterprise. That takes us back to the balance between the right to enjoy one's private property and the rights of those in the locality. Of course, this will apply to pubs probably more-I shall say a few words about that in a minute-but it will also apply to anywhere where an entry fee is charged and anywhere run as a commercial enterprise. It will include farm shops, rural zoos, gardens and parks. Therefore, it is important, in that it could cover a wide range of commercial assets that are owned by individuals.
On the specifics of the pub trade, pubs are sold in blocks and there can be between three or four or 200 or 300 in a single block. Why is that? It is nothing very unusual or surprising. It is perhaps because an individual has run a pub successfully and would like to buy two or three more and wishes to do so in a particular area because geographical proximity improves managerial control. It may be that a specific pub operator is overrepresented in one geographical area and underrepresented in another and, therefore, both wish to rebalance their portfolios.
Then there is the question of different companies viewing different sectors of the pub trade as offering particularly attractive opportunities. Those noble Lords who read the Financial Times will have seen in today's copy a long article on the decline of what is known as the wet-led trade; that is what is called the spit-and-sawdust boozers, where there is just drink and not much of a food offering. Beside those sorts of pubs, which have been under considerable strain, there are obviously town bars, village pubs, housing estate pubs and trunk-road pubs, with hotels attached such as Travelodge
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I would argue that, provided that the pub, business or service is to continue, there is no need for the community to be involved. If it is going to be closed and it falls into one of the categories that I have listed in my Amendment 144 then there would need to be a locus for the community and I could understand why the community might wish to get involved. I would say caveat emptor-pub companies do not close pubs that are very successful, they close them because they are failing. It is not an idyll, rural or urban. In this country 30,000 of the 60,000 pubs are individually owned. They are free houses, and there are 30,000 small businesses struggling to make a living.
Perhaps I may be permitted a brief rant. Governments of all persuasions talk about the importance of the pub trade as a centre where community activity can be developed and a community feeling can be expressed. That is all very well until you come to the legislation, which continually hammers pub operators, big and small, with legislative procedures and processes. You have only to look at the amendments that we shall be discussing on the Police Reform and Social Responsibility Bill to see how many of those will land quite heavily on small pubs and small pub operators.
There are the competitive pressures. The fact is that, so far, nothing has been done about supermarket pricing. On their way home tonight noble Lords can buy a pint of lager in their local supermarket for 60p a pint, but they will have to pay £2.80 in their local pub. In the supermarket it is sold at or below cost-probably below cost- before a bank holiday weekend.
Inevitably young people will buy a slab-as they call it-in the supermarket and sit in the village square or the street drinking the cans, which they may then drop on the ground while vaguely insulting the passers-by; and at about 8.30 pm they will go into the pub to watch the football and have a couple more pints. They may then be sick outside the pub, and the pub will get blamed for the disorder caused.
There is a lot in this trade which is not as easy as it looks. There are the societal pressures of people staying home, as well as the rapid societal and economic changes in our towns. A simple example is that 15 years ago, the company with which I am involved had 20 pubs in Kidderminster, the home of the UK carpet trade, and today there are three. The carpet trade has gone, so the pubs have gone. The rapid changes in our society have left pubs of all types and sizes beached.
The noble Lord, Lord Cameron, referred to the Pub is the Hub scheme. It is an excellent idea and a brilliant concept. However, its case studies emphasise very strongly the need, for example, for obtaining sound professional advice on running a pub as soon as possible, and include comments to the effect that running a pub is more complex than was anticipated, no one should underestimate what is involved in running a successful pub, running a pub via a committee is challenging, and so on. While we talk about the need, even where a pub has closed, to safeguard the rights of the community-I quite understand that-it is important
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That is the end of my rant. The purpose of the amendment is to urge the Government to consider carefully the exclusion from the provisions of arm's-length commercial transactions. If there is going to be a change of the sort listed in my amendment-a closure or a change of use-of course the community should get involved: it has every right to. Otherwise, we are in danger of impeding normal commercial transactions of varying sorts concerning various sorts of assets, which cannot be in the interests of the vibrancy of our local communities. I beg to move.
Lord Cotter: My Lords, I will speak to Amendment 143ZA. There is an overall concern that the Bill is sometimes aimed at property rather than at the services provided. Surely it is vital for our local communities that there is a good provision for local needs. It is fair to say that in this country-many noble Lords have spoken about this-too often, for various reasons, local shops and services have been lost. I cast my mind back-I thought it was 10 years ago, I have now written "20 years" but actually it was 25 years ago-to when I was a councillor. I thought it was not that long ago. Supported by local people, I managed to get our local council to realise that a local parade of shops was at risk of being turned into a parade of building societies and offices. Fortunately, we were successful in getting the matter addressed at that time.
Lord Gardiner of Kimble: My Lords, I will speak to Amendment 144A in my name and that of my noble friend Lord Cathcart. The intention is to set out explicitly some types of disposals of land that should be exempted from the moratorium rules and that would therefore not require notification to the local authority. I am very aware of many discussions that noble Lords have had about seeking a positive result from what we do. I hope that the amendment will produce some harmony, because there are legitimate concerns from owners of private property.
New paragraph (a) proposed in Amendment 144A would exempt from the moratorium disposal of a listed asset where the asset forms part of a larger site that is held as a single legal estate. The intention is to avoid delaying the sale of a larger piece of land or an estate if one small part of it has been listed as an asset of community value. New paragraph (b) would exempt other types of disposals of land, such as bona fide gifts following a philanthropic donation, transfers between members of the same family, made as either a gift or a sale, land passed on by inheritance, transfers between
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Lord McKenzie of Luton: I start by reiterating that I hope it is clear that we on these Benches very much want to see the Government achieve their aspirations in these provisions. However, Amendment 144A in particular illustrates the danger we are getting into of making this very complicated and bureaucratic. For example, there is a proposition that transfers between companies in the same group should not be a relevant disposal. Let us reflect on how you would cast that provision. There are plenty of differing definitions of groups of companies around. If we think one step beyond that, what happens if you sell the shares of a company that owns the asset, but not the asset itself? If that company were not only to have the asset but another asset, for example, the group of pubs mentioned by the noble Lord, Lord Hodgson, where does that leave you? We ought to be focusing on something that is deliverable, even if at the edges it is a bit rough and not technically watertight. It offends me as an accountant to suggest that, but this group of amendments and the issues that were raised in respect of the previous amendment illustrate the complexity that we are in danger of building into this provision which could undermine it completely.
The Earl of Lytton: What the noble Lord, Lord McKenzie, has just said highlights the fact that we are trying to talk about exclusions from something that would cover a potentially vast range of circumstances. I support the thrust of what he said. We need to reverse that so that we catch the transactions that need to be caught because in the global family and order of property transactions that could potentially be caught, the class of transaction that we are trying to catch is very small. The problem is the lack of definition, and therefore the clause has to be all-encompassing, and it sweeps up all these other things that other noble Lords have referred to. I think of situations where there might be transfers of assets one way or another between parish and rural community councils or between community groups of whatever form and structure. What about transfers of assets between various tiers of authorities? Are all these to be caught up? It seems to me that we are almost at the point of needing a category of owner that gets caught by the Bill, but I am not going to suggest that because I think there might be a simpler way of dealing with it, as the noble Lord, Lord McKenzie, suggested. However, there is a relatively narrow class of circumstances, and it all boils down to the fact that we have these open-ended definitions. I plead with the Minister to find some way of rendering this down so that we can get to the nub of the issue and not have a one-line provision and then 1,000 lines of exclusions and caveats and things to try to exclude all the bits that have got caught up and should not be in there in the first place.
Baroness Hanham: My Lords, we keep coming back to the same issue. I take the point that we probably need to look at the narrowing of the classification but by doing that we will still have to look at what would not be caught, which is what these amendments address. I heard the rant by my noble friend Lord Hodgson and I do not suppose for a moment that he expects me to say anything other than that we have heard what he said. I will deal with all the points raised but I should like to say from the outset that we are quite sympathetic to looking at this again.
On the government amendments, I have already said that we are sympathetic to the intention of Amendment 144A. We understand the concerns of some rural landowners who are already making their land available for periodic community use. It is certainly not our intention to discourage them from doing so. Where a listed asset forms part of a larger piece of land, we recognise that to delay the sale of the whole estate would in most cases be completely disproportionate. I am happy to confirm for the noble Lord that we will have a look at this, which complies with my previous commitment.
As set out in our consultation document, which I am sure everyone has read from cover to cover, we intend to exempt a range of different types of disposals that do not impinge on the intended aim of a policy. We have already indicated our intention to exempt disposals of land due to inheritance and gifts, and transfers between family members, in light of responsible consultations. I think that that encompassed everything put forward by the noble Lord, Lord Gardiner. But in hoping that we have a little time before the Recess and Report stage to discuss these issues, I am happy to say that we will reconsider or consider those with him and other noble Lords concerned.
Amendments 143, 143ZA and 144 would exempt the disposal of business-to-business transactions where there was no risk to the continuation of the business. Earlier, I mentioned that we understood that the use of a power might stay as the use of a power but if it was sold between two companies we would not expect that to be caught up in the community asset ability to buy.
However, we are slightly afraid that the amendments could have some unintended consequences and would create more confusion than clarity, which a number of noble Lords seem to think this is anyway. We are not sure what the terms "risk of closure" and "business" mean. We are prepared to look at these again and discuss them with noble Lords to see whether we can avoid any further unintended consequences that would impact on the aim of the policy. I hope that the noble Lord will withdraw his amendment.
Lord Hodgson of Astley Abbotts: My Lords, I am grateful to my noble friend for those answers and for her sympathetic ear to these probing amendments. Amendment 144 is focused on business-to-business transactions. I entirely accept that the phrase "risk of closure" would not commit itself to parliamentary
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I am grateful to my noble friend for her positive response and look forward to returning to this matter later when we have some further thinking from the Government. In the mean time, I beg leave to withdraw the amendment.
"( ) where the owner is a public body, any community interest group or groups which meet the requirements of subsection (3)(a) have been provided with the option of first refusal to purchase the asset, with regulations for this purpose specified by the appropriate authority, or"
There are two things that I should like to raise at this time. I understand that the Government propose that a community group should have the first right of refusal not within the moratorium period but, rather, at the end of it when the community group would compete against others on the open market. That presents a real difficulty. We all want to avoid the bureaucracy that has been a big problem in Scotland. On the other hand, we do not want to find ourselves in a position where the new community right leads to a widespread loss of assets of community value. It is a question of balance that we need to explore.
For the assets of community value in public hands, I suggest that there should be a first right of refusal for community groups. I think we all believe that it is a reasonable presumption that, where assets of community value are already being applied for public benefit, the default position should be to retain that public benefit. Only if there is no community purchaser should the asset then go on the open market. Therefore, the first
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For assets of community value in private hands, I think everybody accepts that the right of first refusal might not be the best way forward. Again, we do not want to go down the road that has been followed in Scotland. The desire to safeguard private interests, which we have already discussed, is already resulting in a level of procedure and regulation that could stifle community efforts in some cases. That is what leads us to the idea of a simple system in which a moratorium at least provides a window for any community group to prepare a bid, rather than any complex process that will tie the community up in red tape.
That brings me to the second amendment in this group, which deals with the moratorium period. I am not alone in suggesting that the period should be a minimum of six months, which could be extended if necessary. Our experience and that of community groups across the country is that even the most capable and well established community organisations certainly need more than three months to get themselves up to speed. It often takes from six months to a year to progress to the point of purchase. Therefore, we need to find a mechanism that means, when there is willingness on all sides, the process will not be stymied by a moratorium period that has a cut-off point. Instead, if there is agreement to proceed, the moratorium period should be flexible enough to allow that to happen. I beg to move.
Lord Mawson: I shall speak specifically to Amendment 147A. I notice that the noble Baroness, Lady Eaton, has now joined us in the Chamber. I assure noble Lords that the Bradfordians are not pulling the wagons around in this debate.
Six months seems to be a reasonable period. We live in a very bureaucratic world. If you are a small charity or a social enterprise, without all the back-up of a local authority to get your ducks in a row and achieve the necessary permission, it can take at least six months to move forward with land or buildings. One property that my colleagues and I have been working on with a very competent group of people has taken at least two years to get through planning and to reach a point where we can do the development. That is with even the support of local neighbours and a lot of people behind us. Six months is a reasonable period; all my experience tells me that it is about right.
The noble Lord, Lord Rogers of Riverside, who has great experience in this field, is no longer here but I know he would tell us that nowadays it takes a mini-miracle to build a building or get a development going. It is very difficult to get projects off the ground. We wonder sometimes why we are not hitting the housing targets. It is because, as the noble Lord, Lord Hodgson, reminds us, there is so much red tape and treacle that you have to swim through to make any of this work.
The real test for the Bill will be whether it will be easier for those of us who develop land and buildings, whether we are business or social entrepreneurs, to do so. Will this legislation make it easier for us to do this work, or harder? This is the real practical challenge for this piece of legislation.
Lord Howard of Rising: My Lords, Amendment 145 seeks to place a time limit on how long a community interest group is given to purchase a community asset. Again, this amendment was tabled before the Minister deposited her paper in the Library. Having read her paper and seen that she is minded to have a window of six months, I imagine she will be falling over herself to accept this amendment.
I spoke earlier about the importance of excluding measures from the Bill that might affect the value of property. As I mentioned then, the erosion of property value is far more important to the less well-off, for whom such an asset might be all they have in the world. Uncertainty over the length of time an asset must be held while local interest groups find the necessary cash to make the purchase would very seriously damage the value of any asset. Banks and financial institutions will not lend if the sale of the asset concerned could be delayed for an unknown period. Having a fixed term in the Bill would give the measure of certainty that is needed to enable banks, mortgage companies and other financial institutions to provide the funding for the sale and purchase of the sort of asset that the Bill is aimed at.
It is no help that the time available can be altered by regulation by the Secretary of State. The Minister, when responding to my Amendment 134 earlier, commented that regulation would come before Parliament, but in practical terms this is a formality. In no way does it have the strength of having to introduce primary legislation. Who knows what some future Secretary of State might decide is an appropriate length of time? I have the utmost confidence in my right honourable friend the present Secretary of State not to do something unreasonable, but he will not be in that position for ever and it is important that the Bill does all it can to avoid creating doubts over the value of assets included in the register.
Mortgages and other forms of long-term finance usually extend over the life of more than one Government. The protection given by having a maximum period of six months for a community interest group to raise finance is essential if property values are not to be badly damaged by unreasonably hampering the ability of owners to sell their possessions. There is an argument that the Human Rights Act would prevent a community interest group having an unreasonable length of time to find funding, but this would in no way be an adequate substitute for including a time limit in the Bill. I recall that it has been Conservative Party policy to abolish the Human Rights Act.
Baroness Thornton: How would the noble Lord feel if a vicar leading a group to turn the local shop into a community shop run as a co-operative missed the deadline by two weeks? Is he suggesting that you have a six-month cut-off point and that is it?
Lord Howard of Rising: Yes, that is precisely what I am suggesting. There would be nothing to prevent a local interest group starting long before an asset came on sale. We should also remember that assets of the nature we are talking about usually come up for sale only because the local population, or community, has not been using them. As someone who has subsidised his local shop for the past 30 years, I can tell you that there is a frightful squeal if people think that it will close, but while it is open they all go off to Tesco or Rainbow or wherever and never use the shop, so my sympathies are rather more limited.
I think that six months is a perfectly adequate amount of time for people to put together such a bid, bearing in mind that they could start long beforehand. In my view, it would be perfectly adequate to allow three months, which I hope is the time limit that will appear in the regulations. My amendment mentions six months as a maximum only so as to give the Secretary of State room for manoeuvre. I might also say that, whatever period of time is chosen, the point that people would feel rotten if they missed the target by two days would still apply. If we made it 20 years, people would still say, "Oh, how terrible, if it was 20 years and two days", so that is not an argument.
Lord Howard of Rising: I did not say that that is my party's policy. Let me just see from my notes what I said-I did think about this before raising it. I recalled that it has been Conservative Party policy to abolish the Human Rights Act.
Lord Hodgson of Astley Abbotts: My Lords, my Amendments 146 and 147 in this group have been slightly overtaken by the paper that my noble friend has put in the Library, by her opening remarks today and, indeed, by the remarks of other noble Lords during the preceding debate. I am aware that the timescales for the moratorium are controversial, and I quite understand the point made by the noble Baroness, Lady Thornton, about the difficulty of getting together local initiatives and getting them to the financing stage.
The simple purpose of Amendment 146 is to encourage the Government to put on the face of the Bill the moratorium periods for the interim window of opportunity, the full window of opportunity and the protected period. As a result, Amendment 147 would
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As a matter of principle, there is a strong reason for having the time periods on the face of the Bill, although I am less concerned about what those time periods are. As my noble friend Lord Howard has said, most communities will know that something is happening and, therefore, they will not start de novo from the day that a decision is announced; they will know that the particular service or shop or whatever is in trouble and, therefore, will be able to begin to get their act together. However, there is clearly a difficulty or problem or issue with timing, to which the noble Lord, Lord Mawson, referred. I am just concerned that we have clarity about the timings on the face of the Bill, which should not be capable of being altered for better or for worse-for longer or for shorter-by a future Government.
As noble Lords have heard, the first of these amendments concerns the conditions by which an owner of a listed community asset can dispose of that asset. For example, Amendment 143A would ensure that,
This additional protection would make sure that the priorities of local communities come above those of the landowner. That has to be a good principle to support in a Bill that seeks to make local communities the prime driver in considerations about the use, sale and disposal of community assets. I shall not repeat the arguments already succinctly made by my noble friend Lady Thornton, but I hope that the Minister will give this matter serious consideration.
Amendment 147A is different from the others in this group, but they are all concerned with the appropriate time that any moratorium should be in place. Amendment 147A would ensure that the prescribed period for any full moratorium should not be less than six months. This is another important protection, especially for community and voluntary groups, which may need more time to respond to any bid and to take advantage of the provision for community assets in the Bill, as the noble Lord, Lord Mawson, said.
However, I understand the concern raised by the amendment of the noble Lord, Lord Howard; that is, that the prescribed period should not be more than six months as it is reasonable for there to be some time limit to the process. At the same time, I believe that the specification of a minimum time is equally important and I hope that the Minster will accept it.
Baroness Hanham: My Lords, we are continuing to cover ground that we have largely covered previously, but in the interests of clarity I am quite happy to go over it again. As the noble Lord, Lord Hodgson, said, we have looked at this matter, but it is important that we return to it in light of these amendments.
In considering the length of the various windows, we have taken account of responses to consultation and of the need to balance community benefit with the rights of property owners. The consultation demonstrated a broad consensus in favour of an interim window of six weeks to allow a community association to decide whether it is able to put its name forward for a bid, and a protected period of 18 months. We believe that these are the right periods.
Opinion was more divided on the length of the full window, though a majority favoured a window of a maximum of six months as opposed to 40 per cent of respondents who favoured three months; that is, less rather than more. We are minded to accept six months, as I have already said.
Amendments 145, 146, 147 and 147A propose a range of lengths-in some cases, a maximum or minimum-but all agree on the importance of providing some certainty by including reference to the chosen lengths in the Bill. We have also noted the recommendation of the Delegated Powers and Regulatory Reform Committee that, if the moratorium lengths were to be set in regulations, the first exercise of the power should be subject to affirmative procedure. I also heard what my noble friends said about having assurance in the Bill. We accept that there is a case for providing greater clarity. I shall therefore come back to this matter on Report having consulted with the Welsh Government and otherwise as necessary.
We oppose Amendment 143A, which would give a right of first refusal to community interest groups where the owner of the asset concerned was a public body. The noble Baroness, Lady Thornton, introduced the amendment very persuasively, as she always does, but the amendment would mean that the existing government proposal would apply only to assets with private owners, including the voluntary sector.
The two schemes would need to be run in parallel, imposing greater costs and making the system more confusing for those trying to use it. Powers already exist under general disposal consent for local authorities to transfer assets to community ownership at less than the best consideration to further local social, economic and environmental well-being. We think that that would satisfy the noble Baroness's problems.
We already intend to provide in regulation for both public and private owners to be able to sell their asset to a community group while the window of the opportunity is in operation. If there was a willing buyer and a willing seller, they could just get on with it. This would give community groups advantage over other purchasers, who would have to wait until the end of the moratorium period for a decision to be made. With those confirmatory explanations-because I think that I have given them previously-I ask noble Lords not to press their amendments.
Lord Greaves: Am I right in thinking that during the six-month period there is a moratorium on disposal but not on putting property or land on the market? The land could be marketed during those six months and, presumably, if it was a competitive market, the resultant price would be the price that the community group would have to cough up if it wanted to buy it.
Baroness Hanham: My Lords, the noble Lord, Lord Greaves, is correct. The moratorium does not prevent property being put up for sale or marketed. All it does is to prevent the sale taking place before the community group has had an opportunity to consider whether it can match or beat what has been brought forward.
Baroness Thornton: I thank the Minister again for repeating what she has now said three times. Indeed, I believe she gave the answer to the question of the noble Lord, Lord Greaves, late on Tuesday evening.
(a) after a local authority has received notice under section 82(2) in respect of land included in the authority's list of assets of community value, and
(b) before the end of the interim moratorium period that applies under section 82 as a result of the notice,
the authority receives from a community interest group a written request (however expressed) for the group to be treated as a potential bidder in relation to the land.
(3) In this section "community interest group" means a person who is a community interest group for the purposes of section 82(3) as a result of regulations made under section 82(6) by the appropriate authority."
(5) A local authority may contribute the whole or part of any expenditure that is incurred by or on behalf of a community interest group in the acquisition, improvement or maintenance of a community asset subject to appropriate conditions."
Lord Greaves: My Lords, I have tabled the amendment in order to discuss the role of local authorities and other public bodies-but particularly the role of local authorities-in assisting with community purchases as a result of this legislation. The amendment states that the local authority may acquire and make fit for community use any property which is the subject of these proposals; that an acquisition could be by a compulsory purchase order, with the approval of the Secretary of State in the usual way; and that the local authority could sell or let a property or a business to a community interest group, and could do so by not charging the full market value-in other words, by subsidising the purchase or the maintenance of the community asset. I think the definition of a local authority should include a parish, although I have not included it.
I am not suggesting that this proposal should lead to a large-scale acquisition by local authorities of new community assets. Given the present financial circumstances of local authorities, that is unlikely to happen anyway in most places. However, this will change. In the very nature of things there is a cycle, which many of us have seen more than once, in which local authorities, for various reasons, are more flush with money at one time than they are at others for this kind of purpose. However, being practical, in many areas the only way in which the purchase or the running of community assets that are being disposed of is going to work is through some kind of subsidy from the local authority. It may be from some other public body but it is most likely to be from the local authority. In many areas, it simply will not happen and simply will not work unless that happens.
The subsidy might be relatively modest or it might be quite substantial-or it might be a big subsidy to purchase the asset and then no subsidy, or a small one,
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I may be told that, at least in the areas that do not involve subsidising a purchase or passing it on at a lower price than cost, the local authority has these powers anyway-and if they have not, they will have them under the general power of competence, and therefore this amendment is not needed. A short debate is needed on the role of local authorities in this matter and the absolutely central role that they will have to have if this is going to work in a lot of areas, and certainly the areas that I am familiar with. I beg to move.
Baroness Hanham: My Lords, we appreciate the intention of this amendment and agree that local authorities have an important role in assisting community interest groups to take on assets of community value. Indeed, the Secretary of State has announced a social responsibility deal for councils, asking them to give greater support to voluntary and community groups. However, that does not need new powers; they already exist. Therefore, this amendment is not necessary.
Local authorities already have wide powers to acquire land by compulsory purchase-for instance, to secure the proper planning of their area and grant public access to land for recreation. In June, we published revised guidance to local authorities to take seriously all viable requests from voluntary community groups put to them for the compulsory purchase of a threatened community asset. But community purchase is not a step to be taken lightly, and the local authority has to demonstrate a compelling case in the public interest that outweighs the private interests of the current owners.
The amendment goes further to suggest that local authorities be given the power to sell the acquired site to a community interest group. Local authorities already have extensive powers to dispose of land, including under the general disposal consent the power to sell land at less than market value, if it is for the social, economic and environmental benefit of the community. We therefore ask that the amendment be withdrawn as it is not necessary.
Lord Greaves: I am grateful to the Minister for saying what I thought she would say-but it is important to have it on the record in relation to the system or scheme that is proposed. One problem with compulsory purchase is making the case that the interests of the wider community outweigh those of the individual who owns the property in the first place. When you have community facilities that are not being put on the market and whose owners are closing them down and refusing to consider transferring them, or are putting
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Lord Beecham: My Lords, the Minister and I have previously exchanged amicable words about the question of compensation and it is clear that the Government have an intention to bring forward regulations. However, the Bill does not strictly require that. The purpose of this amendment is to reverse the onus. In a previous amendment the noble Lord, Lord Howard, who is not now in his place, wished to transfer "must" to "may". In this clause, I want to do it the other way round and substitute "must" for "may". The intention being what it is, I cannot see any difficulty in the Minister accepting this.
There are legitimate concerns, some of which we have heard today and previously, about the position of owners in relation to the possible losses that they might incur as a result of the processes created by the Bill. There is the question of delay, the loss of a potential purchaser and so on, and perhaps other expenses involved in contesting the situation. I appreciate that time is still running on this, but it would have been helpful to have had draft regulations. I hope that by the time we get to Report, there will be draft regulations because we need to be in a position to assure landowners, business owners and so on that there will be a proper scheme for compensation and a suitable method to adjudicate the amount in the event of a dispute. That is the purpose of my second amendment, Amendment 147EA, which would refer any contested issue to the district auditor-I beg your pardon, not the district auditor but the district valuer-as would be the case in relation to a compulsory purchase, with which this is an analogous situation.
As it is, the clause indicates that the regulations which might be made under it will deal with a range of matters with the widest possible discretion for the Secretary of State on compensation-the amount, who is to be entitled to it and so on-and, indeed, on the review of decisions made under the regulations. It would help the passage of the Bill and help reassure people with an interest if, by the time we get to Report, at least draft regulations could be tabled and discussed. In the mean time, perhaps some comfort could be given by going beyond the expressed intention of declaring that regulations will be made to accepting this amendment, which would require regulations to be made to deal with these matters. I beg to move.
Lord True: My Lords, I am grateful to the noble Lord, Lord Beecham, for raising this matter. I referred to it in earlier remarks and I will not repeat what I said, but it would be extremely helpful for the Committee to see this, given the far-reaching potential range of the regulations-who is to pay, who is to be entitled, what it should be in respect of, the amount, the procedure, appeals and so on. That is not only from the point of view of the potential effect on landowners but, as I argued earlier, from that of local authorities. I would not expect my noble friend to answer this now.
I have now found the financial memorandum to the Bill-it is indeed £21 million which is suggested as the total cost to local authorities-where we are told that funding for these new burdens will be provided through the Secretary of State. I wonder whether that is the case. When the regulations are produced, I wonder whether my noble friend could give some estimate of what she thinks the total cost of compensation levied on local authorities might be, assuming that it is levied on local authorities. From the financial memorandum, it may be that the Secretary of State is going to produce the money. That is not clear to me but perhaps those things could be clarified when the note for which the noble Lord, Lord Beecham, has asked is laid before the House.
Baroness Hanham: My Lords, the question of regulations is not going to be in my hands. I will make sure that the request that they should be available is passed on but it is not up to me, I am afraid, to make sure that they are. I assure noble Lords that we recognise the importance of offering compensation and have said that in the consultation document.
Through the consultation we sought views on the detail of the scheme-for instance, who should be entitled to compensation, what costs could be compensated and how claims should be dealt with. The noble Lord, Lord True, asked about those matters. We are therefore sympathetic to the spirit of Amendment 147DB, but believe that it is unnecessary as we have already indicated our commitment to establishing a compensation scheme and will be making regulations to do so. I will try to ensure that we at least have sight of those.
Amendment 147EA is also not necessary because we are proposing a government amendment to add to Clause 85 the power to give a right of appeal. That would be done through regulations. This will be an additional power to give landowners the right to request an internal review by the local authority of its decision on compensation.
We consider that the proposed introduction of an external right of appeal will be more suitable than the proposal in Amendment 147EA to have the appeal referred to the district auditor, by which we presume is meant an independent auditor appointed by the Audit Commission. Their role is to check the financial-
Baroness Hanham: My Lords, I apologise, the noble Lord did correct himself. However, we still believe that we have a better route than the noble Lord. We do not think that the district valuer would have a role in this. As I say, we think that that provision would be unnecessary in view of the legislation that we will be introducing.
Lord Beecham: My Lords, we will have to see what happens as regards the draft regulations. I cannot say that I am persuaded by the argument that the district valuer is not the appropriate person to deal with these matters. However, we shall see precisely what the Government have in place when somebody else provides the noble Baroness with the ammunition. I hope that by Report we can have a clearer picture and possibly reach an agreement. If not, it may be a matter on which we shall have to take the opinion of the House. In the mean time, I beg leave to withdraw the amendment.
"(vii) appeals against decisions made under the regulations."
If different parts of any land are in different local authority areas, the local authorities concerned must co-operate with each other in carrying out functions under this Chapter in relation to the land or any part of it."
"(a) a London borough,
(b) a metropolitan district,
(c) a unitary council,
(d) a county council, or
(e) by agreement between a county council and one or more of its constituent district councils, a district council."
Lord Beecham: My Lords, this amendment reverts to the issue that I raised previously about districts within counties and who is to be the appropriate authority. It suggests a framework whereby there may be a shared interest that might be disposed of between the two tiers within county areas. I am not asking for a decision on that today but perhaps it is something that we might look at. The views of the Local Government Association might be taken on how best to deal with these matters. I suspect there may well be cases where at county level there is an interest-at district level, possibly not-and it would be invidious if there was a refusal by a district council when the county council might wish to accede to a request. It is worth exploring that grey area further. If the noble Baroness will indicate that discussions can take place, I would be very happy. I beg to move.
Lord Greaves: My Lords, I have tabled Amendments 147FA and 147FB in this group. I do not wish to pursue the technicalities of what they say but they are a means of probing the role of national park authorities in all this-whether the proposed system would be any different in national parks, and whether the special nature of national parks might mean that the system will have to be tweaked or be quite different in those areas. I shall be interested in what the Minister says.
In relation to the amendment of the noble Lord, Lord Beecham, and with my district council hat on, I have to say that if this job is to be done-and, as I have already demonstrated, I am sceptical about whether it will have any real value-this really is a matter of local knowledge. Whether a particular pub in a remote area in the Forest of Bowland is an appropriate community asset to be stuck onto this register, or whether it is the kind of pub that the noble Lord, Lord Hodgson, was talking about-which is nothing to do with the local community-are local judgments. I cannot see the county barons who sit in their fastness in county hall having much of an idea about it. If they were to set up a system, they would have to decentralise it and set up systems at local and district levels. If county council functions can be operated at those levels, they should be operated by district councils. That seems to be common sense, but we discussed that earlier.
Lord Beecham: Would the noble Lord concede that in children's or adult services there might be a need and a demand for buildings or other facilities to be made available whereby the actual funding and support would probably come from the county council, rather than the district, and that there would be no need for the county to be involved? That is the sort of issue that I suggested we needed to discuss. Given the costs of all this, might not some very small district councils find it difficult to operate this scheme? Is there not a case for flexibility here between the two levels-obviously while promoting co-operation between them-in the interests of the community that we would all seek to be fulfilled?
Lord Greaves: My Lords, the last point might apply in some places. If it does, the basic power should rest with the district council, and if there is to be an agreement, it should be devolved upwards from the district to the county, rather than the other way round, which the noble Lord's amendment suggests.
His other point about children's services or other care services may be valid, but it is clearly different from funding a service-for example, totally or partly funding a voluntary or community-based service-where funding might well come from the county council. However, as to the question of who maintains the asset register, which is the narrow point we are talking about, it seems to me that if this job is to be done it ought to be done by the more competent people who, in this case, are probably the more local people.
While I am on my feet, I think that I need to declare another interest, given that I am talking again about councils. I am informed that in this past week I have been added to the long list of vice-presidents of the Local Government Association. I am not sure that it was the thing that I most wanted in life, but if it is an honour, it is an honour. I am sure that it is nothing like as big an honour as being a freeman of the Royal Borough of Kensington and Chelsea, but we all pick up these crumbs where we can. So I declare that interest.
Lord Greaves: I would like to replace the Secretary of State, but I do not think that there is much possibility of that happening. I do not know whether I would do a better job, but I might have better ideas-in some areas. I had better be careful what I say or the Whips will be after me again. We have been talking about Bradfordians a lot. There are about half a dozen Bradfordians in the Committee. The Secretary of State pretends to be a Bradfordian, but he is not really, he comes from the posh part of Keighley.
Earl Cathcart: The noble Lord, Lord Beecham, has twice raised an interesting point about county councils having care homes within a district and whether they should be involved. Could not the county council nominate that asset as an asset of community value? Then it would be registered with the district and, if something happened to it, the county council could make an offer to bid, or whatever it wanted to do. Would that not be the answer?
Baroness Hanham: My Lords, that was an amusing exchange. I look forward to seeing the noble Lord, Lord Greaves, taking over as Secretary of State, although I do not think that the Secretary of State would appreciate that. This exchange is about matters which I have answered briefly, although, I appreciate, not in detail.
We believe that it is important that we clearly set out who should run the community right to buy. Clause 91 defines what we mean by local authority and who will be responsible for administering the provisions. It makes sense that a decision on listing is
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Where there is more than one local authority in an area, we have decided that, in most cases, implementation of the scheme should be by the local authority with the relevant planning powers. That would mean that, in two-tier areas, the running of the scheme would fall to the district council. However, in the case of the national parks and the Broads Authority, which have planning powers for the area but are not elected authorities, we have left administration of the scheme with the local authority as having democratic accountability. We would expect the local authority to liaise with the local national park or the Broads Authority where appropriate. We also consider it important to retain the Secretary of State's power by order, if necessary, to amend the definition of local authority in the light of experience. Amendment 147A would remove that power, so we resist it.
Amendments 147FA and 147FB would give powers to a national park authority and the Broads Authority to make decisions on what is listed and to run the scheme. National parks and the Broads Authority have members appointed by the local authorities, but they are not themselves democratically accountable local authorities, so they would fall outside the scope of the definition of local authority.
Amendment 147FZA would replace the current list in Clause 91 of what counts as a local authority for the new list. Some items are the same, but the proposed new list would allow a county council in a two-tier area to take responsibility for administering the scheme by agreement with the district council or councils. That would remove the important link between these provisions and the planning authority. The new list also omits the Common Council-the City of London-and the Council of the Islands of Scilly and deletes the Secretary of State's power to amend the list later for England, although not the power of Welsh Ministers to do the same in Wales. For the reasons I have given, I cannot accept the amendments, and I hope that noble Lords will feel able not to press them.
Before section 1 of the Planning and Compulsory Purchase Act 2004 insert-
(1) The purpose of the planning system is to achieve sustainable development.
(2) Any person exercising functions and duties under the planning Acts must do so with the objective of furthering the achievement of sustainable development and shall have regard in doing so to any guidance given for that purpose by the Secretary of State.
(a) "sustainable development" means development that meets the social, economic and environmental needs of the present without compromising the ability of future generations to meet their own needs and includes the application of the following principles-
(i) living within environmental limits,
(ii) ensuring a strong, healthy and just society;
(iii) achieving a sustainable economy;
(iv) promoting good governance;
(v) using sound science responsibly;
(b) "the planning Acts" include-
(i) the Localism Act 2011;
(ii) the Planning Act 2008;
(iii) the Planning and Energy Act 2008;
(iv) the Planning and Compulsory Purchase Act 2004;
(v) the Town and Country Planning Act 1990;
(vi) the Planning (Listed Buildings and Conservation Areas) Act 1990;
(vii) the Planning (Hazardous Substances) Act 1990; and
(viii) the Planning (Consequential Provisions) Act 1990."
Lord Greaves: My Lords, I shall speak also to Amendments 147FD to 147FF, which are grouped. We had a good debate at the very beginning of Committee about sustainable development. We are now back to where many people may think that we ought to be, which is planning and the planning system. This is a serious attempt to strengthen the commitment to sustainable development in the planning system at all levels and to probe the definition of sustainable development and whether we can get a definition in the Bill, which some of us have tried with quite a number of Bills over the years. This is turning out perhaps to be one of the really important flashpoints as far as this Bill is concerned-certainly one of the key issues that is facing your Lordships as it goes through this Committee and then through the House. I do not think this discussion today will be the last we see of it.
It does that by amending the Planning and Compulsory Purchase Act 2004. Then it defines sustainable development as set out in one of the traditional definitions. One of the purposes of tabling these amendments is to probe whether the Government will tell us any more about whether they are trying to or intend to change that definition, and in what way. They may tell us to wait for the draft of the national planning policy framework, which we are promised we will have before Report. However, these are matters where we are going to continue prodding.
The second amendment changes the sustainable development duty under the same Act to make it stronger and absolutely clear that the duty would be to "further" sustainable development, rather than "contribute to" it, as it is currently set out in the Act. Noble Lords who were around when we discussed that Act will remember we had a lot of discussion about that and tried to get it changed to "further" sustainable development; we tried again in 2008 with the Marine and Coastal Access Bill as it went through the House and we are trying again now. At the moment the Act says there is a duty to contribute to sustainable development. These amendments increase the numbers of specific instances where that has to happen and list all the main planning legislation over the years-this Bill, the Planning Act 2008, the Planning and Energy Act 2008, the 2004 Act and the parent Act, the Town and Country Planning Act 1990. They also add specific duties in relation to neighbourhood development plans, development control, local development orders and the neighbourhood development orders that are being introduced by this Bill and by the community right-to-build orders. I think we will come back to those as there are some amendments from the noble Lord, Lord McKenzie, when we actually get to discussing neighbourhood development orders and so on, which try to make it specific in those cases, again with the same definition.
The third amendment amends the Planning Act 2008 in a similar way. All these amendments change "contributing to" sustainable development to the much stronger "furthering" sustainable development. The final amendment is about sustainability appraisals in the Planning and Compulsory Purchase Act 2004 and the preparation of local development documents, which go into what people have got used to calling the local development framework since the 2004 Act and which the present Government are encouraging us to call the local plan again, which seems to be a better way to describe it. If we never have to talk about local development frameworks again, I would be very happy, and we can talk about the local plan, of which by and large people have some understanding.
In other words, there has to be a very clear and overt sustainable development check on each of the documents. Furthermore, the question of whether the authority has complied with that duty is a central part of the independent examination.
This issue has become rather topical. An article in the Times purported to leak the draft national planning policy framework. I have no idea whether it was
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There are two main issues that, at the very least, we have to get to the bottom of, understand and, I hope, get an acceptable resolution to before the Bill leaves this House. First, will the Government at long last be persuaded to put sustainable development, as well as a definition of it, firmly in the Bill, and what will that definition be? People who, like me, have been arguing for a firm definition all these years might not be very pleased if the Government say, "Yes, we'll put it in", and then we do not like the definition. Perhaps that would be even worse.
Secondly, will it be the traditional kind of statement that balances sustainable economic development, sustainable environmental development and sustainable social development, and what will the balance be, or will there be a very different presumption for development, which might be called sustainable development but is basically economic sustainability? If there is an environmental or social spin-off, that is fine, but at the core will be economic growth. It would be foolish for any of us to be against economic growth but that clearly has to be balanced with environmental and social improvements. One might say that there needs to be economic growth, environmental growth and social growth.
It is easy to pigeonhole this issue as a simple choice between pure economic growth and a more balanced sustainable approach. However, it is not quite as simple as that because individual decisions have to be made which tilt the balance one way or another. What matters are the overall mix and the overall result. Nevertheless, are we looking for pure economic growth as sustainability or for a synthesis and a balance of economic growth, social progress and environmental sustainability and improvement? I have said that about three times in different ways but it seems to be absolutely fundamental to where we are going with the Bill.
We are not going to resolve this matter today-not least because we are not going to get the draft national planning policy framework. We have had a semi-unofficial version of it but none of us quite understands whether it is right or not. We have articles in the Times saying that the Government are going to unleash massive building all over the green belt and that the five-year supply of housing is going to be the only thing that matters in local plans. This is probably an exaggeration, at the very least. Nevertheless it is very worrying. If a positive planning system-that is the wording in the draft NPPF, which we will see when we get it-is to be brought in, it will mean that the Government expect the planning system to encourage growth proactively to meet the needs of business. If that is predominantly what it says, then that is a very substantial shift and one that, at the very least, this House will want to scrutinise very closely and about which it might be very concerned. I beg to move.
Lord Jenkin of Roding: My Lords, I have read these new clauses with some interest. I am not sure that they could sensibly form part of the Bill, but they provide a useful vehicle for debate. When will we get the national planning policy framework? It was foreshadowed in a very positive and, to my mind, very welcome Statement made by my right honourable friend the Planning Minister, Mr Greg Clark, on 15 June. It addresses many of the questions which the noble Lord, Lord Greaves, has been speaking about.
What attracts me is the presumption in favour of sustainable development, which is right, but the default position will be that an application should be accepted, subject to the important environmental safeguards that one would need to have for such important features as the green belt, national parks and so on. This is quite different from what has grown up over the years. It was already apparent when I was in charge of the planning system, which was several decades ago, when there almost seemed to be a presumption that it should not be allowed. If we can change the balance, that would be right.
We are facing a period of need for more jobs and more homes, which may well require development to go ahead. For too long we have been prisoners of the nimby phenomenon and people making enough fuss to stop something happening. I remember being told by one of my very senior officials, "Just watch it, the man who starts as the champion of new homes and eventually finds himself the owner of the last home in a new development, immediately signs up to become the secretary of the local preservation society". That is nimbyism. I was also told of another phenomenon, note-not over there either. Of course, it is summed up in the well-known expression banana-build nothing anywhere near anybody. These are public attitudes which are deeply ingrained and, in the past, they have tended to colour the way in which the planning system works.
As I said, we need more jobs and we certainly need more homes. A planning policy that is worth the paper it is written on must have that very firmly in mind. I hope that, when we get the national planning policy framework, it will be made very clear. Having said that, I repeat the question: when will we get it? Will we have it in time for the Report stage of the Bill? It is rather like Hamlet without the Prince of Denmark; we do not yet know what will be in it. Like my noble friend Lord Greaves, I do not believe the press on such matters. They have not seen the draft but they think they have; they have seen something. I await the genuine document. Please may we have it fairly soon?
Lord Cameron of Dillington: My Lords, I support the amendments in this group. I put my name to them but was too late to get on the Marshalled List. I support them not because they are necessarily the right amendments-as the noble Lord, Lord Jenkin, said, the wording could be different-but because I believe strongly in the principles of sustainable development. In the old days it was called "stewardship". Probably the most important thing that we can do in our short stay on this planet is to leave it in as good a condition as it was when we arrived-or, one hopes, better.
The great thing about the principles of sustainable development is that they can cater for short-term needs such as today's economic recession, but also ensure that the best solutions will look after today's and tomorrow's needs of people, of the countryside and of the environment that surrounds us all. We must plan-as most farmers farm-as though we are going to live for ever.
We can be justifiably proud of the planning system in England. I say "England" because it is the fifth most densely populated country in the world, yet we still have some of the most sensational countryside in the world, including our national parks, our AONBs and our coast. Who has not revelled in the TV programme of that name? Even some of our ordinary, unremarked villages, dales and copses are an integral part of our historical culture. We must not damage them.
Bill Bryson once wrote a foreword to a booklet on the English countryside. I know that because I wrote a co-foreword to the booklet. Noble Lords can imagine which foreword was the most readable. In his, he said that one of the unique features of the British countryside was that it was almost certainly the most loved countryside on earth. I believe he is right. Therefore, politically this clause has huge support from the vast percentage of our population, including most business leaders. The clause is in no way anti-business and anti-development. It merely incorporates a different way of thinking about progress.
The other reason I support the principles behind the amendment is that it would give certainty to all sides involved in the planning system and would endure. I spoke at Second Reading, and will do so again in Committee, about the necessity for a framework of rules to underpin our planning system and make it effective so that everyone will know where they stand. There is no doubt that the existence of a clause such as this would be a central pillar of such a framework.
What would happen if a local development framework or a neighbourhood plan-or even a strategic impact assessment, if I have my way later-is not ready on time or is not renewed when it should be? The existence of a clause such as this could be an important safety net. Its principles could be a satisfactory guide for the planners of the day and it would provide a framework within which we would all understand the principles on which our planning system operates, in the absence of a detailed local context. Therefore, I urge the Government to accept this or some other similar proposal.
Baroness Andrews: My Lords, I am very happy to support the amendment and to follow the noble Lord in much of what he said. Amendment 147FC is very important. I feel a bit like a sinner saved, because I remember the many arguments that I marshalled in relation to the 2008 Act about why it was very difficult to put such a clause in the Bill. I hold my hand up and say that it is absolutely right that we do so in this Bill and make it good.
It is very timely to start with a positive definition of the purpose of planning. Planning gets a bad press. It is misunderstood, and most of the time people come across the planning system because it stops them
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Perhaps the Minister will say that the amendment is not needed and ask what other purpose planning could have. However, it is because the purpose of planning is obscure that we need a definition. We need it precisely because of the limitations on the definition of sustainability that the Government offer in their presumption in favour of sustainable development. We need a consistent definition that does not retreat from the Brundtland definition, and I believe it is time that we had a legal definition in the Bill that reads across to other legislation.
The noble Lord, Lord Jenkin, has already referred to the pressures in the system. There is pressure on land, the greatest non-renewable resource we have, for housing, employment, green space, aggregates and all the things we need increasingly urgently for a growing and ageing population. We need to balance land for housing and all those other demands within a framework that is trustworthy and transparent and works. Like the noble Lord, Lord Cameron, I believe that in England we have a planning system that works. A statement that planning is there to sustain the needs of the community within environmental limits serving the well-being of society alongside a sustainable economy is extremely timely and welcome, but the amendment becomes crucial when you set it alongside the limitations of the definition set out in the presumption of sustainable development as published by CLG. When you read it and follow its logic, it destabilises the careful definition of sustainability offered by Brundtland.
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