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Baroness Browning: My Lords, as I have indicated, no one says that this is an easy matter. We have sought to reform the legislation by giving more opportunity for peaceful protest on the square while seeking to remove the problem of the encampments. I have discussed Westminster City Council's concerns with it, but it is quite clear that it will fully co-operate as partners in this legislation. We continue to discuss that with it. While I understand that Westminster City Council would perhaps have liked us to go further and extend the area that we are considering, given the proportionality concerns raised in this House and another place we have sought to get the balance right. I am assured, and I have no reason to doubt, that Westminster City Council will play its part with other partners such as

14 July 2011 : Column 931

the parks authorities and the GLA in endeavouring to make this legislation work. If in three or four years' time noble Lords come back and say, "Well, that didn't work", I will be disappointed. However, this is the best way forward: trying to address the problem while maintaining the space outside the House for democratic protest.

Lord Kilclooney: It is great that the Minister met the leader of the city council. Can she now say whether he has changed his position of opposition to what was happening?

Baroness Browning: I think I am correct in saying that when he wrote that letter he was probably extremely concerned and wanted to have more dialogue with my department. That dialogue has taken place and will be ongoing. We will certainly take seriously any concerns of Westminster City Council and any other enforcement agency that will be required to participate in this new legislation, and will continue to work with them. I have in front of me the words that I have expressed about the council. The House will be unsurprised to learn that those words have been agreed with it. I am not saying this off the top of my head. There is a constructive dialogue, and we will seek between us to overcome any concerns that it might have.

Lord Cormack: As it is quite clear that there is real concern in all parts of the House, and, from what my noble friend has just said, continuing concern in Westminster City Council, can she not adopt my suggestion of a little while ago and have further discussions between now and Third Reading with a view to seeing whether these proposals, which many of us feel are deficient, can be improved? This is a real chance to deal with an eyesore that has been here for far too long. We do not want, in three or four years' time-or even three or four months' time-to have to say that it is not working.

Baroness Browning: My Lords, I hope I have explained very clearly why the amendments before the House would not address the problem that we are seeking to address. My noble friend asked me to look at this further. We have already made concessions on this legislation to get the balance right, particularly as expressed in this House and another place, and to ensure that it was not overprescriptive for those who want to exercise their democratic right to protest outside this Building. I am not in a position to bring this back at a later stage of the Bill. I hope that noble Lords will examine carefully my concerns about a committee as outlined in the amendments.

Lord Judd: Before the Minister sits down, I have one observation. I speak as someone who has been chief executive of an organisation that, from time to time, participated in vigils. Could we take this opportunity to suggest-

Lord De Mauley: My Lords, I respectfully draw the noble Lord's attention to the rules on Report.

14 July 2011 : Column 932

Lord Judd: My Lords, with respect, I rose as the Minister was concluding and before she sat down.

Lord De Mauley: I am sorry but that is not what I am referring to. I am referring to the rule about not speaking more than once to an amendment.

Lord Judd: I thought it was possible to seek clarification from a Minister during their wind-up speech. The point on which I seek clarification is whether it would be wise, at some point, to meet those who organise vigils to suggest to them that counterproductivity in campaigning does not help their cause.

Baroness Browning: My Lords, I have noted what the noble Lord has said.

Lord Marlesford: My Lords, I am most grateful to all noble Lords who have taken part in this debate. I never pretended that this was the last word. I am disappointed that the Government feel that their Bill is the last word. I am delighted to hear that the Minister will discuss these matters in more detail with Westminster City Council. I find it a little strange that the letter from which the noble Lord, Lord Campbell-Savours, quoted was written as recently as 21 June. After all, the Government have had this Bill in gestation for many months. If I had been on Westminster City Council, I, too, would have been a little miffed if I appeared to have been ignored.

To answer the noble Lord, Lord Armstrong, and others, the committee will certainly be all-embracing. Whoever should be on it will be on it. It will not have to sit all the time; it will have a, presumably very small, permanent staff-perhaps someone seconded from the Met, someone from Westminster City Council and someone from here who will keep a watching brief for us. I was surprised when the Minister said that she did not know whether the committee would report to her. My amendment says:

"The Committee shall report annually to both Houses of Parliament".

I do not say that that is necessarily the right idea, but for her to say that I have made no provision for reporting is simply not true. It is in the amendment. My worry is that the Home Office just does not like ideas from outside. It does not even read them; it just rejects them, which is disappointing. Given the Minister's answer, and to encourage the Government to think a little more, I should like to test the opinion of the House.

4.28 pm

Division on Amendment 306A

Contents 102; Not-Contents 129.

Amendment 306A disagreed.

Division No. 4


Adonis, L.
Ahmed, L.
Berkeley, L.
Blackstone, B.

14 July 2011 : Column 933

Boateng, L.
Boothroyd, B.
Brennan, L.
Cameron of Dillington, L.
Campbell of Alloway, L.
Campbell of Surbiton, B.
Campbell-Savours, L.
Christopher, L.
Clancarty, E.
Clarke of Hampstead, L.
Cormack, L.
Craigavon, V.
Crickhowell, L.
Dear, L.
Desai, L. [Teller]
Donaghy, B.
Donoughue, L.
Drake, B.
D'Souza, B.
Dubs, L.
Elder, L.
Falkland, V.
Farrington of Ribbleton, B.
Fellowes, L.
Fraser of Carmyllie, L.
Gale, B.
Gavron, L.
Giddens, L.
Gilbert, L.
Gould of Potternewton, B.
Grantchester, L.
Grey-Thompson, B.
Hannay of Chiswick, L.
Hanworth, V.
Harries of Pentregarth, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hollis of Heigham, B.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howells of St Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hylton, L.
Jay of Paddington, B.
Judd, L.
Kennedy of The Shaws, B.
Kilclooney, L.
King of Bow, B.
Kingsmill, B.
Kirkhill, L.
Lea of Crondall, L.
Liddle, L.
Lipsey, L.
Liverpool, E.
Low of Dalston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
McKenzie of Luton, L.
Marlesford, L. [Teller]
Masham of Ilton, B.
Mawson, L.
Maxton, L.
Meacher, B.
Morgan, L.
Morgan of Huyton, B.
Morris of Yardley, B.
O'Loan, B.
O'Neill of Bengarve, B.
Pitkeathley, B.
Plant of Highfield, L.
Prashar, B.
Ramsbotham, L.
Reay, L.
Richard, L.
Rogan, L.
Royall of Blaisdon, B.
Saltoun of Abernethy, Ly.
Shaw of Northstead, L.
Sherlock, B.
Simon, V.
Slim, V.
Stirrup, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Touhig, L.
Tyler, L.
Walton of Detchant, L.
Warwick of Undercliffe, B.
Wilkins, B.
Young of Hornsey, B.
Young of Norwood Green, L.


Addington, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Ashdown of Norton-sub-Hamdon, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Benjamin, B.
Berridge, B.
Best, L.
Birmingham, Bp.
Blackwell, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Brinton, B.
Brittan of Spennithorne, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Byford, B.
Caithness, E.
Cathcart, E.
Chadlington, L.
Chester, Bp.
Colwyn, L.
Cotter, L.
De Mauley, L.
Deben, L.
Dholakia, L.
Dundee, E.
Dykes, L.
Eaton, B.
Elton, L.
Empey, L.
Falkner of Margravine, B.
Finlay of Llandaff, B.
Flight, L.
Fookes, B.
Fowler, L.
Framlingham, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
German, L.

14 July 2011 : Column 934

Goodlad, L.
Greaves, L.
Greengross, B.
Hamwee, B.
Hanham, B.
Henley, L.
Hill of Oareford, L.
Howard of Lympne, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Kramer, B.
Lingfield, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Maddock, B.
Mancroft, L.
Maples, L.
Mar and Kellie, E.
Marland, L.
Neuberger, B.
Newby, L.
Noakes, B.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Palmer of Childs Hill, L.
Pannick, L.
Parminter, B.
Perry of Southwark, B.
Randerson, B.
Rawlings, B.
Renfrew of Kaimsthorn, L.
Rennard, L.
Risby, L.
Roberts of Llandudno, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharkey, L.
Sharp of Guildford, B.
Sheikh, L.
Shipley, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Tonge, B.
Tope, L.
Trefgarne, L.
True, L.
Tugendhat, L.
Vallance of Tummel, L.
Verma, B.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Willis of Knaresborough, L.
4.38 pm

Clause 147 : Power to seize property

Amendment 306B not moved.

Clause 148 : Power of court on conviction

Amendment 306C

Moved by Baroness Hamwee

306C: Clause 148, page 100, line 1, leave out subsection (2) and insert-

"(2) But an order under subsection (1)(b) may not prohibit a person from entering the controlled area of Parliament Square nor restrict a person's right lawfully to demonstrate there."

Baroness Hamwee: We remain in Parliament Square, as it were. Noble Lords will be glad to know that we have now got as far as page 100 in the Bill. Instead of giving the court the power to impose a sanction on an open-ended basis following the conviction of anyone who has committed an offence under the prohibited activities in the controlled area of Parliament Square, the amendment would limit that power and provide that no order may,

14 July 2011 : Column 935

This is a simple proposition, I hope, that was suggested to me by the organisation Justice. It is right that Parliament Square is a public place which, as we have seen, will be well controlled, or better controlled than I would like. As noble Lords are all saying, it is a place where properly organised demonstrations and expressions of opinion are entirely appropriate. It is hard to imagine why it will be necessary to prohibit entry to the square altogether. These provisions will be targeted at demonstrators and it is important to the democratic process, again as noble Lords say, that provisions aimed at preventing setting up camps, in particular, do not have the by-product of silencing protests altogether. Rather than this blanket prohibition the court should properly look at dealing with offences on an offence-by-offence basis, not making an order, which is equivalent to an injunction, for the future. It is almost more akin to convenience than a proper criminal sanction. That is what underlies my amendment.

While I am speaking, I wonder whether I can have a word about two of the government amendments in this group, Amendments 307ZA and 309ZE. The Minister will explain the application of this very old legislation-the Parks Regulation (Amendment) Act 1926. I assume that this is a device to extend certain controls relating to seizure to other areas near to Parliament. What will be given by these provisions are powers to yet another class of official-we have park constables in this legislation. Are we giving powers to unwarranted officers to make seizures? How will that regime fit in with the arrangements to be made for Parliament Square? The legislation refers to a park trading offence, and as I read the existing legislation, that will require some regulation. Perhaps that can be clarified. My concern is that we should not be adding to the confusion by a different regime. As regards Amendment 306C, I beg to move.

Lord Dubs: I should like to speak to Amendment 307 standing in my name. I am a member of the Joint Committee on Human Rights and we spent quite a lot of time considering this Bill. I hope that the Minister will not mind if I go public on a private conversation she and I had some little while ago. I buttonholed the Minister in the Corridor and said that I had an amendment that I was sure she would see to be so sensible that she would give it her support. She looked at me and said, "Yes, that's what they all say". I still believe that this is a very helpful amendment.

When we give powers to the police there should be codes of guidance under which the police would operate. There are many precedents for having such codes: I will come to them in a moment. The Bill contains complexities that the police will find it hard to work around. Reference has already been made to structures, sleeping equipment and authorisation for amplification such as loudspeakers. These will be difficult decisions for the police to make-all the more so because I think I am right in saying that one has to get authorisation 21 days in advance for using loudspeakers, but only six days in advance for holding a demo. One has to apply much earlier for the right to use loudspeakers than for the right to demonstrate at all. This is confusing, and it will be difficult for the police to implement.

14 July 2011 : Column 936

4.45 pm

In evidence to the Select Committee, Liberty said something to the effect that if you are in a tent wearing a "Kate and Wills" T-shirt, you are more likely to be left alone than if your T-shirt has "Stop the War" on it. The point is that some people legitimately want to sleep overnight in Parliament Square in order to see an event such as a royal wedding. Again, it will be difficult for the police to enforce the powers in the Bill. There is the potential for conflict and misunderstanding.

I will give the Minister another example. If a demo goes along the Embankment, as many do, and then turns into Parliament Square to go up Whitehall, there may be a point where it has to behave differently as regards amplification from how it behaves along the Embankment and along Whitehall. Unless the stewards are very nimble, somebody may use a loudspeaker going through Parliament Square without authorisation. Again, that is a difficult area.

By giving the police codes of guidance that will be public, a lot of these difficulties could be eased. There are many precedents. When I was in the Commons, we spent many weeks debating what became the Police and Criminal Evidence Act, under which numerous codes were made available to us by the then Minister in order that we could consider them in relation to the powers given in the Bill. It is perfectly sensible to ask the police to operate under certain codes of guidance. Such codes in any case would protect them, because they would be given much better information than they have at the moment on how to exercise the powers in the Bill.

Baroness Kramer: My Lords, I will ask the Minister for clarification on government Amendment 307ZA. My honourable friend Lady Hamwee referred to this a moment ago. The amendment has appeared for the first time in the Marshalled List on Report. It amends the Royal Parks (Trading) Act 2000. That was an eminently sensible Act. It targeted the renegade burger vans that were invading Hyde Park and gave the police powers to seize the vans and the various paraphernalia. I do not think that anyone has disputed the legislation or the way in which it works. If I read the amendment correctly-I may not have, which is why I seek clarification-it will allow seizure powers to be applied in any instance where a by-law in any Royal Park appears to be violated. That is a huge broadening of powers. As many noble Lords will know, many by-laws affect the Royal Parks. As far as I know, there is no problem that requires a fix-so in a sense this is a solution finding a problem, which itself raises issues.

The noble Lord, Lord Judd, put the point exceedingly well that the issue of democratic protest applies not just to Parliament Square. Many Royal Parks also have a tradition of allowing legal, peaceful demonstration and protest. The fact that there is public access at all to Richmond Park comes from public protest, which has a very long history. I am concerned that in an attempt to tidy up loose ends and provide a more sweeping basis for various powers, we are about to put in a piece of legislation that is not required because there is no problem to solve, and that puts across a problematic message that demonstration needs to be in some way

14 July 2011 : Column 937

curtailed. I seek reassurance and an explanation of why this appears in the Bill, what its purpose and intent are, and what the legal effect of it will be.

Lord Newton of Braintree: I had not intended to speak in this debate and I ought to confess that-how can I best describe it?-I copped out on the previous debate as I found my noble friend Lord Marlesford and all the other speeches very persuasive until I heard my noble friend from the Front Bench who I thought made some significant points that undermined the possible practicality of that amendment.

This amendment is also designed to modify the Government's proposals. I say to my noble friend on the Front Bench that it seems to me that we have quite an awkward situation here. Almost no one believes that what the Government have in the Bill will work. Everyone believes that something needs to be done. I was persuaded that my noble friend Lord Marlesford's amendment was not quite the ticket, so I landed up in the position I have described. Equally, I do not find myself very attracted by the proposition, which my noble friend on the Front Bench implied in her speech, that it might take four years to find out. Well, if it had not worked in four years, she would be disappointed.

The fact is that we are going to know quite soon following the passage of this Bill, if that is what happens, whether it has been effective in achieving the objective we all want, which is a situation in Parliament Square that is consistent with the buildings around it and its world status. I do not seek to persuade my noble friend to concede to the amendment or to put her in a very difficult position, but I would like her to acknowledge that in this debate points have been made by noble Lords, including the noble Lord, Lord Dubs, that need some further consideration. I would welcome an assurance that if what is in the Bill does not work, the Government will continue discussions with a view to coming forward with some other proposition that has a better chance of working in pretty short order.

Baroness Browning: My Lords, I think it was the noble Lord, Lord Stevenson of Balmacara, who, in an earlier debate, suggested that, as far as this part of the Bill relating to Parliament Square is concerned, I said I would reflect and bring things back. That is why government amendments are in this group. I am keeping my word and seeking to make some changes.

Clause 148 empowers the court to make any appropriate order which has the purpose of preventing the defendant engaging in prohibited activities in the controlled area. We want to retain some flexibility for the court to deal with a determined individual who has persistently failed to comply with direction by barring him from the controlled area when it is proportionate and necessary. The noble Lord, Lord Dubs, is seeking to make guidance statutory. The Government are committed to providing the necessary guidance and support but consider that there is nothing to be gained by making the guidance statutory, which could risk interfering in operational capabilities. I will explain why. Statutory guidance is frequently more restricted and concise, lacking the practical examples

14 July 2011 : Column 938

and case studies that are often present in non-statutory guidance. This means that statutory guidance can end up being less helpful than non-statutory guidance. If action is challenged, the courts will have a look at any type of government-approved guidance, statutory or non-statutory, in considering the lawfulness of the action. The practical impact of making guidance statutory would be limited but the usefulness of the guidance could be reduced. That is probably because we can all envisage a series of scenarios that might apply in this instance. It would be very difficult to capture them all in statutory guidance. In this case, it is believed that non-statutory guidance would be more helpful if these cases were ever tested in the court. However, the noble Lord's amendment provides a helpful template for the areas and issues which our non-statutory guidance will cover. I thank him for that.

I now turn to the government amendments. As I stated in Committee, we want to ensure that the area in which the new regime applies is as small as possible so that it targets the problem of the unique situation of Parliament Square without extending any further than necessary. We recognise the concerns of some that the controlled area is too small and that the effect of these measures could be to displace disruptive activities to footways beyond the controlled area. That is why we have been working with Westminster City Council and the GLA to ensure that relevant by-laws are strengthened to deal with disruptive activity in the wider area.

In consultation with the House authorities, it has become clear that additional provision is needed for other areas around Parliament Square not covered by Westminster City Council or Greater London Authority by-laws but which are covered by Royal Parks regulations; for example, the lawn area around the statue of George V, and Victoria Tower Gardens. Therefore, these amendments make provision for a power of seizure to be attached to Royal Parks regulations to support the position we have taken for effective enforcement of GLA and Westminster City Council by-laws. These amendments have the support of the House authorities and are in line with the proportionate and targeted approach we are taking in the Bill to deal with disruption in and around the square.

Lord Cormack: I was at odds with my noble friend in the previous debate. I would like to thank her-on behalf, I am sure, of many Members in all parts of this House-for what she has just said about the area around the statue of George V and the other areas.

Baroness Browning: I am glad to have reassured my noble friend. I will pick up on a couple of points raised in the debate. My noble friend Lady Hamwee talked about powers for parks regulations. These powers will be exercised by the Metropolitan Police as it has a distinct Royal Parks operational command unit.

My noble friend Lady Kramer also asked about other parks that might be affected by these amendments. The amendments are an enabling power only. They enable DCMS, when making Royal Parks regulations, to apply a power of seizure to any, all or some of the Royal Parks regulations. This comes back to the fact

14 July 2011 : Column 939

that these reforms are very much focused on the power of seizure. In turn, the Royal Parks regulations apply to a specified list of parks which include Hyde Park, Victoria Tower Gardens, Hampton Court Gardens and Richmond Park, to name but a few. It would be open to DCMS to apply a power of seizure to any, all or some of the parks in that list. I hope that is helpful to my noble friend but if she has any particular concerns about the read-across of this to any park she is interested in, I would be very happy to discuss it with her or let her have fuller information in writing.

These amendments are a targeted approach synonymous with what we have set out to achieve in this Bill to deal with disruption in and around the square. Before I move them, I will just touch on the fact that my noble friend Lord Newton of Braintree said that in an earlier debate I had mentioned "four years". I just said that off the top of my head. Perhaps I should stick to the official brief. I always get into trouble when I go off-piste. I could easily have said six months, a year, 18 months, whatever.

What I was really trying to convey to the House is that we believe that we have a proportionate and sensible proposal to go forward to deal with this long-standing problem. I am not going to be daft enough to say, "Problem solved, my Lords", and have everyone come back to me in two or four years. We think this is our best effort. It has the support of those who are going to enforce it and they will work together to make it happen. We are hopeful that our endeavours will resolve this problem, but it is not realistic to expect me to say what the timescale will be. My noble friend has known me long enough, and indeed I remember the time when he was a Minister and I was on the Back Benches asking him awkward questions. He knows that we will do our best, and I do not think we can be expected to do more.

5 pm

Baroness Hamwee: My Lords, the Minister has argued for giving the court more flexibility than I think is appropriate in the circumstances. It amounts in effect to precluding a demonstrator in advance. But clearly I am not going to be able to persuade her.

On the government amendments, I should say that I am left with a considerable feeling of unease. I asked who would exercise the powers and the Minister has explained that it would be the Royal Parks Police, so we have yet another player in the mix. But that troubles me much less than what I suspected might be the case, which is that these new provisions could extend powers to any of the Royal Parks. I have to say to my noble friend that it is a great pity-actually, it is quite troubling-that these provisions are being brought before the House under the heading, as it were, of Parliament Square when we have been talking about the environs of Parliament. We are being asked at this stage to agree changes to legislation which clearly could be far more wide-reaching geographically than most noble Lords would have assumed. I wonder whether I can invite my noble friend, either at this stage or through some device at Third Reading, to give assurances that the Government will not use these provisions more extensively than the environs of Parliament. As I say, I think that that is what noble

14 July 2011 : Column 940

Lords were expecting. I do not know whether she is in a position to respond, but we do have more stages to come.

Baroness Browning: We are on the last day of Report and I cannot commit at this stage to bring this back formally at Third Reading. However, I am happy to engage in discussions with my noble friend on the points she has raised.

Baroness Hamwee: I am grateful to the Minister and I certainly will want to take up that offer. I beg leave to withdraw the amendment.

Amendment 306C withdrawn.

Amendment 307

Tabled by Lord Dubs

307: After Clause 151, insert the following new Clause-

"Guidance issued under this Part

(1) The Secretary of State shall issue guidance on-

(a) prohibited activities under section 145;

(b) directions under section 145(1);

(c) seizure and retention of property under section 147;

(d) authorisations for the operation of amplified noise equipment under section 149.

(2) Guidance issued under subsection (1)(a) shall include-

(a) further details defining the terms-

(i) "structure that is designed, or adapted, (solely or mainly) for the purpose of facilitating sleeping or staying in a place for any period",

(ii) "sleeping equipment",

(iii) "the purpose of sleeping or staying in that area", and

(iv) "the purpose of sleeping overnight";

(b) guidance about the treatment of amplified noise equipment used by disabled persons for the purposes of communication.

(3) Guidance issued under subsection (1)(b) shall include provision about-

(a) the circumstances in which a direction under section 145(1) may be made;

(b) the form of any direction given under section 145(1), in particular-

(i) the circumstances when a direction or the variation of a direction must be in writing;

(ii) the arrangements for the identification of a constable or authorised officer making a direction or variation of a direction;

(iii) the appropriate duration of any direction or variation of a direction; and

(iv) the requirements for notice and communication of a direction or a variation of a direction to the person or persons subject to such a direction.

(4) Guidance issued under subsection (1)(c) shall include provision about the circumstances in which the powers under section 147(1) shall be exercised, in particular-

(a) the identification and notification of the owner of any relevant prohibited item; and

(b) the use of force by constables under section 147(4).

(5) Guidance issued under subsection (1)(d) shall include provision about-

(a) the criteria for withholding authorisation;

14 July 2011 : Column 941

(b) any exemptions from authorisation for equipment used by disabled persons for the purposes of communication;

(c) the conditions which may be imposed by the responsible authority in connection with any authorisation;

(d) the target timetables for processing applications for authorisation (including fast-track procedures for priority authorisation);

(e) the form and manner of-

(i) the application for authorisation,

(ii) the notice of authorisation, and

(iii) the notice of variation of any authorisation;

(f) the maximum fee to be paid for determining any application.

(6) Before issuing guidance under this section the Secretary of State must-

(a) publish a draft of the proposed guidance; and

(b) conduct a public consultation on the draft guidance.

(7) In preparing draft guidance, the Secretary of State must, in particular, consult-

(a) the metropolitan police force;

(b) the Greater London Authority;

(c) Westminster City Council; and

(d) the Director of Public Prosecutions.

(8) Guidance issued under this section must be made by statutory instrument and is subject to annulment in pursuance of a resolution of either House of Parliament."

Lord Dubs: My Lords, I draw a little comfort from the fact that the Minister has said that non-statutory guidance will be introduced. That addresses some of the points in my amendment.

Amendment 307 not moved.

Clause 152 : Enforcement of byelaws: powers of seizure etc

Amendment 307ZA

Moved by Baroness Browning

307ZA: Clause 152 , page 101, line 32, at end insert-

"(A1) In section 2 of the Parks Regulation (Amendment) Act 1926 (power to make regulations), after subsection (1) insert-

"(1A) Regulations under subsection (1) may include provision applying (with any necessary modifications) sections 4 to 6 of the Royal Parks (Trading) Act 2000 (seizure, retention, disposal and forfeiture of property) in relation to offences under that subsection that are not park trading offences for the purposes of that Act.""

Amendment 307ZA agreed.

Clause 153 : Temporary control of drugs

Amendment 307ZB

Moved by Baroness Meacher

307ZB: Clause 153, page 102, line 6, after "for" insert "permanent or"

Baroness Meacher: I rise to move Amendment 307ZB and to speak to Amendments 307ZC and 307ZE, which together seek to provide some flexibility for the Government in deciding how best to regulate the use and supply of so-called legal highs. The noble Lord,

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Lord Norton, has asked me to inform the House that he had requested the Public Bill Office to add his name to these amendments, and the absence of his name from the Marshalled List is purely an administrative error. These amendments are similar, although not identical, to those tabled in Committee. They now refer to the medicines Acts, consumer protection and advertising standards legislation, all of which provide legislative frameworks within which it would be possible for legal highs to be controlled.

As the Minister knows, I am not seeking to tie the hands of the Government-quite the opposite. A great deal of work needs to be done, and indeed is being done, to explore the best ways to control these substances. What I am seeking is flexibility in this legislation so that when the analysis of the various legislative frameworks and their potential application in this field has been completed, the controls could be put in place without waiting for further legislation. We all know how long that can take.

I am anxious that the Government avoid a repeat of the mistakes of the past. In Committee, I set out briefly the appalling consequences of the war on drugs, which has been pursued by this country and across the world for 50 years. From the Global Commission on Drug Policy report, we know that a rapidly growing number of highly respected world leaders and opinion formers now recognise that we need to end the criminalisation of young people and focus on evidence-based, health-oriented policies. The amendments are consistent with the growing policy consensus across the globe.

On the thrust of my amendments, we know that some of the substances referred to as legal highs are potentially very dangerous to the health of young people. We also suspect that other substances may be less dangerous than cigarettes and alcohol. It would be most unhelpful if these substances were to be dealt with in the same way. It would be particularly unhelpful if they were dealt with under the Misuse of Drugs Act 1971, which, as your Lordships know, criminalises users as well as suppliers. As the Bill stands, that is the assumption, albeit that under the temporary ban in the initial stages users will not be targeted. The assumption is that, if these substances are brought under the Misuse of Drugs Act, users will inevitably be targeted over time, as they are under that Act in respect of other drugs.

I welcome the Government's focus on treatment of problem drug use. This focus makes it clear that the Government accept that it is a health problem-certainly, drug abuse is. On this assumption, the priority for us all in developing drugs policy is to try to ensure that young people avoid the substances and the associated health problems if at all possible. This means having clear messages about the relative risk of different substances and the provision of health treatment as well as social support for all those who need it.

I welcomed the Minister's comments on the amendment of the noble Baroness, Lady Finlay, where she talked about the importance of a rounded and holistic approach to drug addiction. The Minister referred to different departments being brought together to provide that support. As the Minister knows, I have drawn attention to the Swiss model, which, instead of

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trying to get a whole lot of different departments to work together, which we know is extraordinarily difficult, brings all those services under a single umbrella, providing an extraordinarily effective service-health and social support, benefits and the rest of it-so that they achieve a two-thirds success rate over 18 months.

As important as all that is the separation of the markets for these legal highs between the markets for the really dangerous substances and those for substances which are much less dangerous. That is the fundamental point of my amendment. If there is a single market and a single set of traffickers, young and vulnerable people move inevitably from one drug to another.

On giving clear messages about the relative risks of different drugs, we know that the classification system of the Misuse of Drugs Act does not work. When cannabis was moved from class B to class C and back again from class C to class B, the trends in the use of cannabis did not change very much-the fact is, young people do not really understand the classification system. By contrast, the tobacco controls have been really rather effective over time. Tobacco and alcohol are just two substances controlled outside the Misuse of Drugs Act. There is no reason why substances should be controlled under that legislation. Solvents are controlled through the Intoxicating Substances (Supply) Act; medicines legislation has been used in a number of countries for controlling methadrone-for example, in the Netherlands and Finland-and for controlling Spice in Austria.

The controls referred to in my amendments could allow the authorities to direct users towards relatively less harmful substances as substitutes for the much more harmful ones. They also provide an opportunity to introduce controls that are not feasible under the Misuse of Drugs Act, including age restrictions, controls on marketing and packaging and requirements that substances are sold with information on dosage levels and adverse effects. All of that would be extraordinarily helpful for vulnerable young people. Sale could be limited to a relatively small number of establishments, unlike the liberal policy we have for alcohol and tobacco.

Controls are not by any means the whole story; we want prevention, too. The best preventive measures include sensitive support in school, or in other venues where young people congregate, for children who are readily identified as underperforming, alienated and unhappy. These are the children at risk of being enticed into the taking of synthetic drugs and who, once enticed, will be vulnerable to a dependence on those drugs. If they fall into the drug addiction trap, the most destructive response to these vulnerable young children is to criminalise them. As they say, you can recover from drug addiction but you can never recover from a criminal conviction. With a criminal conviction, the child's life is in pieces; family, friends, education and hope of employment are all in tatters. It is for these reasons that I implore the Minister to do all that she can to ensure that the regulation of legal highs is undertaken in such a way as to avoid criminalising children and young people if at all possible.

If we are now too late to take this action within the Bill, I would be greatly encouraged if the Minister could give the House her assurance that she will be

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asking her officials to begin work without delay on the necessary legislation to achieve these objectives. I beg to move.

Lord Judd: My Lords, I congratulate the noble Baroness on having brought back these amendments on Report. I hope the Minister will be able to give a sympathetic and positive response.

I was impressed by what the Minister said in a previous debate today-there was a great deal of personal conviction behind what she said-and her insistence on the importance of not only treatment but of cure. If that applies as a governing principle in the sphere of alcohol abuse and the much more serious social consequences that that has, why not have the same approach at the centre of the Government's policy on drugs?

If we are to get the response to drugs right-the noble Baroness was right to emphasise this-two principles are absolutely essential. First, any action which is taken should be based not on emotion, instinct or control concern but on evidence-based outcomes of thorough research. Any moves or legislative arrangements that are not properly researched can do far more harm than good. That is the first point.

The second, absolutely crucial, point is the one made by the noble Baroness about criminalisation. One certain way to make it more difficult to rescue the young from drug addiction is this excessive tendency towards their criminalisation. We have to realise that it is not a soft approach but a hard-headed one. Very often drug addiction is a symptom of victimisation: the drug takers are often victims themselves in one way or another. I am greatly impressed by the increasing amount of research which is now being undertaken which suggests that the most important factor in leading young people and others into drug abuse is the environment, social conditions and so on of which they find themselves a part.

The Minister rightly referred to culture and about wanting to change it. I have a tremendous sense of awe at the responsibilities faced by the Home Office in so many spheres. Many good and dedicated people work in the Home Office but it would be right to adopt a cultural approach there which puts rehabilitation and not only control at the top of the agenda. I am afraid that the proposals in the Bill before us do not make it absolutely clear that the rehabilitation argument, and the resistance to taking action which drives people further into the problem, should prevail.

5.15 pm

Baroness Browning: My Lords, I commend the noble Baroness, Lady Meacher, for ensuring that we keep an open mind and consider all options available to best respond to the threat of new psychoactive substances-sometimes referred to as legal highs-which are specifically designed to get around existing legislation.

As I explained in Committee, the temporary class drug orders will constitute a UK legislative response that is appropriate to the immediate threat that a new drug poses while its nature is still in question. As the noble Baroness is aware, some of these new substances present harms equivalent to those from class A and class B drug use. In these circumstances, the appropriate

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response is to disrupt the supply chain and protect the public as a priority while giving the Advisory Council on the Misuse of Drugs time to consider evidence of a drug and its harms. The proposals before the House will help us achieve that aim. Of course, our response to both the general issue and individual new substances must be both preventive and proportionate.

These amendments seek to ensure that the Government amend and consider alternative legislation to tackle the threat of new psychoactive substances, alongside control under the Misuse of Drugs Act 1971. We are keen to see all existing legislation used to curb the availability of these substances, though not as a substitute regime for harmful drugs whose proper place is under control under the 1971 Act. The UK needs a legislative response that is appropriate to the immediate threat that a new drug poses when there is evidence that its harms are commensurate with class A or class B drug use. Temporary class drug orders will provide a preventive and proportionate response to the threat posed by disrupting the supply chain and protecting the public as a priority while giving the ACMD time to assess the drug and its harms.

On the point made by the noble Lord, Lord Judd, the noble Baroness will of course be aware that in bringing in these temporary orders while a substance is evaluated, we are not in any way criminalising the user. I also draw noble Lords' attention to Section 1(2) of the 1971 Act by which the Advisory Council on the Misuse of Drugs already has the remit to provide,

We will not prejudge the advice that the ACMD is preparing, including its thematic advice on new psychoactive substances.

On government Amendments 307C and 307D, the Government have always been committed to proper scrutiny of our drugs laws. We accept the recommendation of this House's Delegated Powers and Regulatory Reform Committee that the affirmative procedure is preferred while still enabling us to take swift action against the threat of a new psychoactive substance throughout the year. The advice sometimes comes forward very quickly and there are periods when the House is in long Recess through the summer. The amendments take account of the concerns of the House's committee but at the same time ensure that we are not tardy with the harms that we are notified of by the ACMD. To remain in force, a temporary class drug order will need to have been approved in both Houses within 40 sitting days.

I am sorry that I cannot accept the noble Baroness's amendments. I would be very concerned that we would potentially deal with psychoactive substances which would ultimately fall within the class A or class B category. Notwithstanding that, it is up to the ACMD to offer the Government alternative advice as to other routes if it felt that was appropriate. On that basis, I ask the noble Lords to withdraw their amendments.

Baroness Meacher: I am grateful for the Minister's response. I am not at all clear how she envisages the less dangerous substances should be regulated. I am

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not at all clear that this can be done under current legislation other than through the Misuse of Drugs Act. That is the concern reflected in these amendments. I believe that there is no alternative as the Bill stands, so I wonder whether the Minister could respond to that point.

Baroness Browning: I am very happy to write to the noble Baroness. As I explained, the ACMD in making its recommendations to the Government is able to indicate any routes that it thinks that the Government should take. I am very happy to explore that with her. We are awaiting a report from the ACMD on these new psychoactive substances, and it may well be that that will inform the Government better as to the range of options available to us.

Baroness Meacher: I thank the Minister for that response. My understanding is that in fact there will be a need for further legislation and it is my concern that the Government do all they can to take steps to prepare for that so that there is no gap or delay before these substances can be appropriately controlled through regulatory mechanisms other than the Misuse of Drugs Act. But with that point made, I beg leave to withdraw my amendment.

Amendment 307ZB withdrawn.

Amendments 307ZC to 307B not moved.

Schedule 17 : Temporary class drug orders

Amendments 307C and 307D

Moved by Baroness Browning

307C: Schedule 17, page 225, line 41, after "(6)" insert "-

(a) is subject to subsection (10), and

(b) "

307D: Schedule 17, page 226, leave out lines 1 to 3 and insert-

"(10) An order under this section-

(a) must be laid before Parliament after being made, and

(b) ceases to have effect at the end of the period of 40 days beginning with the day on which the order is made unless before the end of that period the order is approved by a resolution of each House of Parliament.

(11) In calculating that period of 40 days no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.

(12) Subsection (10)(b)-

(a) is without prejudice to anything previously done or to the power of the Secretary of State to make a new order under this section;

(b) does not apply to an order that only revokes a previous order under this section."

Amendments 307C and 307D agreed.

Amendment 307E not moved.

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Clause 154 : Advisory Council on the Misuse of Drugs

Amendment 308

Moved by Lord Ramsbotham

308: Clause 154, leave out Clause 154

Lord Ramsbotham: My Lords, I must apologise to the House for not being able to be in the Chamber when I could have moved this amendment in Committee. The Explanatory Notes state that the purpose of the two subsections in the clause is to amend Schedule 1 to the Misuse of Drugs Act 1971 by removing the requirement on the Secretary of State to appoint to the Advisory Council on the Misuse of Drugs at least one person with wide and recent experience in each of six specified activities-medicine, dentistry, veterinary medicine, pharmacy, the pharmaceutical industry and chemistry-and persons with wide and recent experience of social problems connected with drugs.

I have to admit that to me the proposal to remove this requirement defies common sense and logic. It is hard to think of any better summary of the expertise that should be co-opted on to the Advisory Council on the Misuse of Drugs so that it is available to the Secretary of State and Ministers responsible for dealing with a major social problem. That is the immediate and narrow reason for moving my amendment, but there is a wider reason concerning the Misuse of Drugs Act 1971 itself, legislation that is now 40 years old and regarded by many who work in the field as being outdated and in need of urgent repair. Much of what I shall say now complements the amendments moved by my noble friend Lady Meacher.

The Act was introduced to replace a more liberal legal framework and to reflect United Nations treaties such as the Single Convention on Narcotic Drugs of 1961 and the developing US-led war on drugs. The debate on drugs laws has moved on since then, and questions have been raised as to the efficacy of the approach of the war on drugs, so it seems timely to revisit a law that was made in a very different climate.

The 1971 Act established the drug classification system as a basis on which to set levels of offence and punishment for possessing, supplying and using premises in relation to controlled drugs. The advisory council was established to provide scientific evidence of the harm done by each substance to enable Ministers to classify it on a scale of harm. However, the scientific basis of drugs classification has since been challenged and the fact that alcohol and tobacco, which score high on the level of harm that they do to people and society, are not included on the list of controlled drugs has been cited as evidence that social and political considerations influence policy-makers as much as scientific evidence. The proliferation of internet sales has also raised questions about the Government's ability to classify all drugs and the value of doing so when they can easily be adapted.

Criminalising the possession and use of drugs does not bring down crime or offending rates. On the contrary, it feeds them. Drug and alcohol dependency is a health problem, not a crime. Other than taking punitive action against dealers, drug-related crime is better dealt with by supporting recovery and tackling

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the interconnected problems that have contributed to drug misuse. Treating drugs as a health matter rather than a crime helps to reduce a range of harm to individuals, families and communities. That is at the heart of proposals in the Rehabilitation Revolution-the subject of the Ministry of Justice's Legal Aid, Sentencing and Punishment of Offenders Bill. Drug misuse is closely associated with mental health problems and is often a response to other problems in a person's life, for which they cannot be held responsible, such as childhood neglect. To reflect this, there are clauses in the Department of Health's Health and Social Care Bill and the Department for Work and Pensions' Welfare Reform Bill on the treatment of misusers.

I mention all these to draw attention to the fact that the misuse of drugs is currently part of four separate Bills tabled by four separate ministries, all based on an out of date Act. It seems to have become a custom that, instead of producing single-issue Bills-such as the admirable one tabled by the noble Lord, Lord Marlesford, which we have just debated-ministries now table multi-issue monsters that dabble with a number of issues, rather than tackling one in detail. I submit to the Minister that, acknowledging that the reform of the Misuse of Drugs Act 1971 is essentially Home Office business, reform might be better done by tabling one Bill to revive that Act rather than via a variety of clauses in a variety of Bills tabled by a variety of ministries.

I therefore hope that the noble Baroness will feel able to accept my amendment in the spirit in which it is meant-not least in the interests of retaining the best advice, which will be essential in any reform process-and give the House an undertaking that urgent consideration will be given to both the reform of the 1971 Act and membership of the advisory council. I beg to move.

Baroness Browning: My Lords, the noble Lord will know that reform of the Misuse of Drugs Act is not in the Bill as a proposal, and I am not really in a position to be able to respond to him on his amendment today. Clearly, however, if there was a need to reform the Act itself, the Government would always be receptive to hearing the views that are being put forward on that, so while I have noted what he said about overall reform of the Act we would naturally need to have advice from wider quarters as well. I hope he will accept that I have heard and noted what he has said on that.

As for this amendment and its aim to retain the existing statutory nature of specified areas of expertise in the ACMD's membership under the Misuse of Drugs Act 1971, the Government take a view that placing one area of expertise on a greater footing than others brings into question the need for the latter. Our proposals therefore place all ACMD members on an equal footing. We want to make the best use of our independent experts, the ACMD, in this challenging area of government policy. The scientific community was consulted about our proposal, which will give the ACMD's membership the flexibility to adapt to the modern challenges of the drug landscape. We have the full support of the Advisory Council on the Misuse of Drugs, with which we have developed a broader

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non-statutory list of expertise from which the ACMD's membership will be predominantly drawn. This list is contained in the draft working protocol that was laid in the House Library on 1 April. It includes all six groups of expertise that are currently statutory.

The working protocol also sets out the future involvement of the ACMD in recruiting new members and the process by which we will secure the relevant expertise that is needed. It may be interest the House to know that we have received broad support for the change and our intent is to have non-statutory lists of expertise from the Academy of Medical Sciences, the British Academy, the British Society of Criminology, the Royal Pharmaceutical Society, the British Pharmacological Society and the Royal Society of Medicine, and the Science and Technology Committees of both Houses were also consulted. The committee of the noble Lord, Lord Krebs, welcomed the added flexibility to the ACMD's membership.

The Government and the ACMD are prepared to be held to account on the terms of the protocol, so a final version will be laid in the Libraries of both Houses. I am not sure whether the noble Lord, Lord Ramsbotham, has had an opportunity to study that protocol and its proposals, but I hope that he will have taken reassurance from the wide scientific body that has supported the Government in these measures. On that basis, I ask him to withdraw the amendment.

5.30 pm

Lord Ramsbotham: I am grateful to the Minister for her reply. Of course I accept what she says about the 1971 Act, and I admit that it would probably have been more appropriate to have raised the matter in Committee, if I had been able, rather than to leave it until this late stage. However, I am much reassured by the welcome she has given to possible suggestions about the renewal of the Act because I know that a number of people would like to put this forward. It is rather difficult at the moment to decide who should do so, as so many different aspects are being raised in different Bills. Perhaps this is something that we could discuss and then decide how it might be done

On the membership of the advisory council, I was not aware of the protocol and I have not seen it. However, I am much reassured that it exists and I am encouraged by the support for it, which the Minister described. I look forward to seeing it, and in that spirit I beg leave to withdraw the amendment.

Amendment 308 withdrawn.

Clause 155 : Restriction on issue of arrest warrants in private prosecutions

Amendment 308A

Moved by Lord Thomas of Gresford

308A: Clause 155, page 102, line 20, at end insert-

"(4AA) The Director of Public Prosecutions shall give consent if-

(a) the evidence establishes a realistic prospect of conviction and the prosecution would be in the public interest, or

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(b) the evidence raises a reasonable suspicion that an offence has been committed and that the suspect committed it, and the Director of Public Prosecutions is satisfied that there are reasonable grounds for believing that a continuing investigation will provide further evidence, within a reasonable period of time, so that all the evidence taken together is capable of establishing a realistic prospect of conviction.

(4AB) In the case of consent granted under subsection (4AA)(b), the Director of Public Prosecutions shall keep that case under review, so that if evidence establishing a realistic prospect of conviction is not available within a reasonable period, the Director of Public Prosecutions shall take over and discontinue the case."

Lord Thomas of Gresford: My Lords, I beg leave to move this amendment standing in my name and that of my noble friend Lord Macdonald, who like so many of us was here until late last night but is unavoidably abroad today.

Clause 155 is of importance as it ousts a long-held and apparently unfettered right of the private citizen to seek an arrest warrant, particularly in relation to offences of universal jurisdiction. For our part, we agree with the thrust of the change that has been made. As the prosecution of offences of universal jurisdiction-for example, war crimes-has always required law officer consent before a plea is entered in the court, why not require the Director of Public Prosecutions to consent on the same test before the process may be commenced at all? The alternative is the possibility that a case may proceed in the absence of any likelihood of law officer consent being forthcoming. It is a hopeless case. In that case, the prosecution will inevitably and quickly collapse when the consent of the law officers is withheld. It will have been nonsense from the start. That is most undesirable in such cases, which may have sensitive international connotations.

It seems to me that to require the prior consent of the Director of Public Prosecutions, as the clause does, merely creates an additional safeguard at no markedly adverse cost to justice. It has to be recognised that the proposal represents an inroad into the right of the citizen, unrestricted and unfettered, to seek arrest warrants, so it is particularly important, if this is an inroad, that the tests that the Director of Public Prosecutions will apply in considering the grant or the withholding of consent are crystal clear to the public, who to an extent are losing a right of unfettered access to the court. The purpose of the amendment is to achieve that clarity by putting those tests into the Bill.

What are the tests set out in the amendment? They are the tests that are used by Crown prosecutors in considering whether to charge individuals with criminal offences. This is appropriate because in a private prosecution the issuing of a warrant is analogous to the charging process in a conventional state prosecution. It is the actual issuing of the warrant that sets the ball rolling and puts the defendant under the jurisdiction of the court.

The full code test requires the prosecutor to consider whether the evidence before him raises a realistic prospect of conviction-in other words, that a reasonable tribunal would be more likely than not to convict upon that evidence. If the answer to that question is yes, there is a reasonable prospect of conviction and the prosecution would be in the public interest, a charge must follow.

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The second test that is set out in the amendment is known as the threshold test. That is to be used in circumstances in which a prosecutor has enough material to suspect an individual of an offence and a real expectation that material satisfying the full code test will become available within a reasonable period. Noble Lords who were in Committee will recall that the former Attorney-General, the noble and learned Lord, Lord Goldsmith, suggested that the public interest test should come in at that stage. In fact, that is not the case in ordinary prosecutions in this country.

The Director of Public Prosecutions, Mr Keir Starmer, has said in evidence to the Public Bill Committee that he believes these tests, which are normally used in this country for granting consent to the issue of a warrant where universal jurisdiction offences are alleged, to be the appropriate tests. There was some issue in Committee about what he had actually said on this topic in the evidence that he gave to the Public Bill Committee. I quote a paragraph from that evidence:

"Quite rightly, a number of groups and individuals have said to us, 'We may have practically everything. We just need to change the nature of the evidence and it won't take long. You surely wouldn't refuse us consent on that basis?' So we have an exception that allows us to apply the threshold test-is there enough for reasonable suspicion and do we anticipate that, within a reasonable period, the evidential gap, as it were, could be plugged? There would then be sufficient evidence for a realistic prospect of conviction. That prompts the question, what is a reasonable period? It seems to us that it is probably best measured in the period between the application for arrest and the likely time that the Attorney-General will consider consent, because that is the existing window. That is the only period that can sensibly be used for that purpose".-[Official Report, Commons, Police Reform and Social Responsibility Bill Committee, 20/1/11; col. 125.]

In Committee, my noble friend Lord Carlile of Berriew asked whether my noble friend Lord Macdonald had consulted Mr Starmer before he put down this amendment. The answer is yes, he had. Since the proceedings in Committee, my noble friend Lord Macdonald has spoken further to Mr Starmer about the matter and has received an indication from the Director of Public Prosecutions that he may convey to the House that the position he expressed in his evidence remains his position. Those are the tests, as set out in the amendment, that he would apply in considering consent to any application for a warrant in a case of universal jurisdiction.

Lord Carlile of Berriew: Will my noble friend be kind enough to confirm that the Director of Public Prosecutions has not indicated his assent to this amendment?

Lord Thomas of Gresford: If my learned noble friend will control himself for a moment, I shall come to that question in due course. Mr Starmer has indicated that he would wish to apply a public interest filter to both the tests that are set out in the amendment. Unlike an ordinary prosecution, Mr Starmer would wish to consider the public interest question on the threshold test as well as the full code test. His view is, of course, accepted.

Lord Carlile of Berriew: I am sorry but that is not good enough. Will my noble friend now answer my question? He has left hanging in the air the possibility that the Director of Public Prosecutions has indicated

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his agreement to this amendment. Is that true or untrue? I believe that it is untrue. The implication should not be left hanging in the air. Perhaps my noble friend will bear in mind that I am exercising more self-control than his last few sentences possibly justify.

Lord Thomas of Gresford: I must admit, my noble friend has always been known for his self-control. We have known each other for 30 or 40 years. The simple answer to his question is that, as I explained a moment ago, the Director of Public Prosecutions wishes to include in the guidance that he proposes to give the public interest test, at the first part, in considering the threshold test. He has said that binding guidance to that effect-

Lord Soley: I do not understand that. I want to know-it is important-whether the answer is yes or no.

Lord Thomas of Gresford: The answer is no; it is obvious. That is why I do not propose to press this amendment to a Division. It is as simple as that. That is what I was about to say. The Director of Public Prosecutions has indicated that his views will find their way into the Code for Crown Prosecutors once the legislation has been passed. We are content with that. Failure by Crown prosecutors to follow the code renders their decision-making susceptible to potential challenge by judicial review. I repeat, to make myself completely clear: I do not propose to press this matter to a Division. However, I am interested in the Minister's response on this important, and clearly slightly divisive, question. I beg to move.

Lord Pannick: If nobody else wishes to speak on this matter, I certainly will. I was very pleased to hear from the noble Lord, Lord Thomas of Gresford, that he and the noble Lord, Lord Macdonald of River Glaven, agree with the thrust of Clause 155. As he stated, it is absurd to allow for an arrest warrant to be issued without the consent of the DPP when a private prosecution cannot proceed without the express consent of the Attorney-General. I oppose Amendment 308A. Its purport would be to include in the legislation criteria that would tell the director how to exercise his discretion in giving consent to the issue of an arrest warrant. As we have just heard as a result of the cross-examination techniques of the noble Lord, Lord Carlile, it is clear-as I understand the noble Lord, Lord Thomas-that the Director of Public Prosecutions does not wish to see his discretion confined in the legislation.

5.45 pm

There are three main objections to the amendment. First, it would be most unusual for Parliament to tell the director what criteria to adopt in exercising his functions-indeed, it would be unprecedented. Parliament and the courts have for very good reason preferred to leave the director to develop his own criteria in the Code for CrownProsecutors and in his practice. The adoption of rigid norms in the legislation would be most unhelpful given the wide variety of situations, many of them unforeseeable, in which the director has to act.

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The second reason for opposing the amendment is that far from there being any good reason to create a precedent for telling the director how to exercise his discretion in this context, by contrast with all others, there are very good reasons in this context for trusting the director to exercise his discretion wisely. The reasons are that the director gave evidence to the Public Bill Committee of the House of Commons on how he proposes to exercise his discretion. There is, or should be, agreement that what he said is very sensible. None of that is surprising because what he said is simply an application in this context of general prosecution practice in all other contexts. Indeed, what he said is similar to some parts of this amendment, though not all, as I shall mention in a moment. If problems were to arise- I am confident that they will not-we could return to the matter.

The third reason for opposing the amendment is that, with great respect, the drafting suffers from two defects. Paragraph (b) does not specify-as I think it should-that it is confined to urgent cases; that is, cases where there is a fear that the individual would, or might, leave the jurisdiction. I think that paragraph (b) is also deficient-we do not need to decide this issue today-because, by contrast with paragraph (a), it would prevent the director from ever considering the public interest in one of these urgent cases. It might be appropriate-I say "might"-even in an urgent case for the director to have regard to the public interest in deciding whether to authorise an arrest warrant in a case where the individual concerned might otherwise leave the jurisdiction.

I have reflected on the debate in Committee, particularly the questions that were put to me by the noble Lord, Lord Campbell-Savours. I accept that it would be a rare case where the director would think it appropriate to refuse to give consent to an arrest warrant even though there was otherwise adequate evidence to justify an arrest warrant in relation to an alleged crime as grave as a war crime. However, we should leave open the possibility that there may be such a case, and it would be most unfortunate to enshrine it in legislation that such circumstances could never arise.

Like the noble Lord, Lord Thomas of Gresford, I regard Clause 155 as a much needed reform of our law to remove an indefensible anomaly. I bow to no one in my concern that this country should maintain effective procedures to ensure the prosecution in this country, where appropriate, of those against whom there is proper evidence that they have committed war crimes. I am satisfied-otherwise I would not be supporting the Government-that Clause 155 does nothing whatever to hinder that vital objective.

Baroness Scotland of Asthal: My Lords, I say for the sake of completeness that I concur with the submissions just made by the noble Lord, Lord Pannick, and particularly endorse his sentiments about the importance that where offences of this nature are identified, they should be prosecuted with vigour and rigour and that those who have committed such heinous offences should most certainly be brought to book.

I was somewhat perplexed by the amendment moved by the noble Lord, Lord Macdonald, and supported by the noble Lord and the noble Baroness for this

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reason. I agree with the legal analysis of the flaws identified so cogently by the noble Lord, Lord Pannick. I was surprised to find those flaws in an amendment drafted by lawyers of the eminence of the noble Lord, Lord Macdonald and the noble Lord. The errant drafting of the amendment has given us a cogent reason why the matter should be left to the current Attorney-General and Director of Public Prosecutions.

For completeness, I have confidence in the current Director of Public Prosecutions, Keir Starmer QC, to discharge his duty with commendable precision. I have equal confidence in the current Attorney-General and Solicitor-General that they, like their predecessors before me, will discharge their duty with distinction and propriety. I have every confidence that each of them, irrespective of political complexion, can be safely entrusted to discharge the heavy burden of exercising their discretion in those cases and that no further amendments should be made to inhibit them from doing that which must be right in cases of this severity. I am glad that the consensus now appears to be that the gap which was so carefully identified by the Director of Public Prosecutions in his evidence should be closed.

Lord Palmer of Childs Hill: My Lords, I rise rather hesitantly, because I feel intimidated in talking in this debate, which seems to be populated by QCs. I am neither a QC nor a lawyer. I rise to give a more layman's viewpoint on behalf of those, like me, who are not adept in the intricacies of the law.

No one on any side of this debate is trying to stop universal jurisdiction for the prosecution of suspected war criminals. That must be stated clearly. However, as the noble Lord, Lord Pannick, said, the amendment is unnecessary and, I would say, even unhelpful. As many noble Lords will know, the usual course at the moment is that the police investigate and pass a file to the Crown Prosecution Service if they believe that such an offence has occurred, if there is a realistic chance of conviction and, as noble Lords have said, if it is in the public interest.

I read Hansard carefully after the previous debate-that is why I was inhibited by the cabal of QCs who were speaking-and I particularly noted the comments of the noble and learned Lord, Lord Goldsmith, whom I know cannot be here today but who has intimated that he is against the amendment left on the Marshalled List. He said in Committee that,

For non-lawyers, it is perhaps useful to say so.

Comment has been made about the current Director of Public Prosecutions, who is universally admired. Those who have inquired of Mr Starmer have been given reassurance that, if extra resources are needed to pursue prosecutions, they will be there. If people who are at the moment going to the magistrates' court to seek a private prosecution, in advance of the alleged criminal coming to this country, were to give that evidence to the Crown Prosecution Service, the CPS would investigate the case before that person then comes to this country. That seems to me pretty good.

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I particularly disagree with the amendment-and the noble Lord, Lord Pannick, touched on this-because the DPP does not need to be told, as it says in the amendment, that he "shall give consent". I hope noble Lords have confidence, as I have, in the Directors of Public Prosecutions, both past and present, so to do. I am slightly dismayed that the noble Lord, Lord Macdonald, was unable to be with us in Committee and, for obvious reasons, cannot be here today. He was also a Director of Public Prosecutions and it is very important to know what he would say.

It is worth mentioning the difference with a private prosecution, via an arrest warrant in a magistrates' court, where a much lower prima facie case needs to be made. The magistrate is shown the alleged evidence but that court does not have the facilities to investigate that case in more than a superficial manner. The arrest warrant could then be issued if the paperwork looks good-it is only paperwork. The alleged criminal is not informed. No basic defence can be submitted and, if that person comes to this country, under that arrest warrant he could be put in jail for a couple of nights while the DPP decides whether to prosecute. Many people believe that in the many cases that come forward, for one reason or another, they would not have involved a prosecution. The tests used by the magistrate amount to,

I take that comment from legal advice given in an article that has just recently been written.

This has not been mentioned by other speakers but I would go on to the practicalities. Can it be right that people who have served in their countries-whichever country-as, say, a Defence Minister, Foreign Minister or a member of the armed forces and who are no longer such, and who come to this country, should be liable for arrest at the magistrates' court rather than be under the consideration of the DPP?

Lord Wallace of Saltaire: I hesitate to interrupt the noble Lord but I remind him that we are on Report and this is becoming rather more of a Second Reading speech than a speech on Report, which should be narrowly connected to the amendment under discussion.

Lord Palmer of Childs Hill: Thank you. I am happy to bring it back to the amendment. The amendment supposes that it is right to instruct the Director of Public Prosecutions what he or she should do. I believe that DPPs past and present are able so to do without the amendment.

6 pm

Baroness Tonge: My Lords, this debate reminds me of those cycle races in velodromes where everyone waits for the first rider to break from the pack and start racing. I hope that not too many people will catch me up, but I expect they will. I am sure that a noble Lord sitting behind me will catch me up.

I will briefly run through once again the current right of a private citizen to initiate a private prosecution by applying to a senior district judge to issue an arrest warrant for such criminals as war criminals. We are

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not talking about ordinary crimes, but about very big war crimes committed against international law. This ancient, common right has belonged to the people of England and Wales for many years. It is a valuable safeguard against political interference by the Government. This is why I have objected so strongly to the proposed change in Clause 155, which could delay an arrest, allowing the suspect to escape, and could introduce political interference from the Attorney-General who might influence a decision of the Director of Public Prosecutions. The noble and learned Baroness, Lady Scotland, almost indicated this by linking the whole chain of command to the Attorney-General. I am no lawyer, but I thought that the Attorney-General was a Minister of our Government-an officer of the Government. The noble and learned Baroness was almost admitting that political interference could occur.

Baroness Scotland of Asthal: My Lords, I am very happy to assist the noble Baroness. The Attorney-General has three roles, as many noble Lords may know. The first is to advise to Her Majesty the Queen, the Government and Parliament. The second-the Attorney of the day must do this independently-is to supervise and superintend all the prosecutorial authorities in this country. The third is to be the guardian of the public interest and the rule of law. The second and third roles are exercised entirely independently from the ministerial role. The Attorney of the day can be relied on to remain a stalwart guardian of the public interest and, if necessary, to challenge acts of Government and Parliament. Any Attorney worth their salt should do that without fear or favour.

Baroness Tonge: I thank the noble and learned Baroness for that explanation. I found it a little reassuring, although in the past I as an innocent layman felt that this did not always happen. The fear remains that there may be political interference if this ancient common right is taken away.

I must progress. As I have already said, this right has not been abused in the past. There have been only 10 applications in 10 years, only two of which have been successful. The only reason that I heard the Government give in Committee for introducing the change was that it might be abused in the future.

Lord Campbell-Savours: Should the noble Baroness not be asking whether the Attorney-General might ever in any circumstances have in mind a political position taken by the Government in determining his or her decision?

Baroness Tonge: I do not want at this stage to get into a debate on the Attorney-General. It would be to intrude into areas where I am not expert. There was a very famous case in the recent past where the Attorney-General was alleged to have been influenced by the Government. However, this is not why I want to speak tonight.

The clause worries me because of the debate around it. We must accept that there is a debate.

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Baroness Scotland of Asthal: I wonder whether the noble Baroness would reconsider what she has just said. The noble and learned Lord, Lord Goldsmith, is not in his place. It would be a courtesy, if such an assertion is made, to ensure that he is present to respond to it.

Baroness Tonge: I apologise to the House, and I agree with the noble and learned Baroness. In fact, I did not make an assertion; I said that there were incidents in the past where, allegedly, that had occurred.

When we look at this issue, we begin to think-certainly, the people who lobby me in great numbers think-that the real reason for the change in the law was the incident relating to Tzipi Livni. The Foreign Secretary, for whom I have high regard, argued that in the case of Tzipi Livni, the law had been abused when an arrest warrant was issued against her. He stated that:

"She is an Israeli politician of great importance, and a strong advocate of the peace process".-[Official Report, Commons, 24/3/11; col. 1130.]

That may be, but he did not criticise the evidence against her contained in the arrest warrant which had been obtained by a private citizen.

Lord Carlile of Berriew: I am grateful to my noble friend for allowing me to interrupt, and I am extremely surprised that we have not heard my noble friend on the Front Bench intervening in the way in which he intervened on my noble friend Lord Palmer of Childs Hill a few minutes ago. What my noble friend is saying is out of order, inappropriate and not related to the amendment. She is having a rant at Mrs Livni.

Lord Wallace of Saltaire: I was considering rising on precisely that point. This is Report, and we are intended to stick very closely to the amendment. This speech is ranging very widely, much more widely than is normal on Report.

Baroness Tonge: Nevertheless, my Lords, this is an extremely important issue that shows the general public how our Government conduct themselves. It is important that these things should be said and put on record. I am not going to be silenced on the grounds that this is Report. Many other people have talked at length on other subjects.

Lord Wallace of Saltaire: I am very sorry, but we are on Report, and there are rules of the House. I understand the passion with which the noble Baroness is speaking, but the rules on Report are rather tight, and there are other occasions on which one can make these points. I think the sympathy of the House is limited in this respect. We need to address the amendment, and that briefly.

Baroness Tonge: My Lords, this puts me in some difficulty because I wanted to contrast the way we had altered our law at the request of a foreign Government, which is how it is perceived, and how we plan-

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Lord Carlile of Berriew: Order! Order!

Baroness Tonge: I am not going to give way again. I must finish. We must contrast this action with what has happened in the past couple of weeks where Raed Salah, a Palestinian-

Lord Lucas: I beg to move that the noble Baroness be no longer heard.

Motion agreed.

Lord Carlile of Berriew: My Lords, I have only a few words to add. I am sorry that my noble friend Lady Tonge has chosen to disobey the normal rules of the House and has stormed out in a way which is not appropriate to noble Lords and noble Baronesses in this House. It is something that I, as a member of her party, feel very strongly about, and I hope that none of my noble friends would normally behave in that way. It is quite shocking.

I would say, and I was about to say in her presence, that she has completely misunderstood the role of the Attorney-General and the Director of Public Prosecutions. I was involved in some negotiations during the previous Government as a person who was keen to extend the cover of the universal jurisdiction. It was made clear to me as part of the package-there were other Members of your Lordships' House of all and no parties involved-that an absolute requirement to make acceptable the broadening of the universal jurisdiction was a provision of this kind.

The basic reason is that we have only one standard of prosecution in this country. It is a good standard, it is set out in the current version of the Code for Crown Prosecutors, and it is completely politically independent. There was a discussion as to whether the provision in Clause 155 should be applied to the Attorney-General-the noble and learned Baroness at the time-or the Director of Public Prosecutions. It was decided, precisely to emphasise the principle of political independence, that the Director of Public Prosecutions should be the person named.

Having said that, I absolutely agree with every word the noble and learned Baroness has said about the role of the Attorney-General. Indeed, I was fortunate enough to receive an e-mail that winged its way from sunnier climes, where the noble and learned Lord, Lord Goldsmith, is busily engaged in unavoidable other activities. I was very flattered to receive the e-mail. In it he said that he supports this clause and is opposed to the amendment, as he said with great eloquence in Committee.

Lord Campbell-Savours: I am sorry to press the noble Lord-

Lord Carlile of Berriew: No, I am not going to give way because I think we have spent-all right, I will give way to the noble Lord because I like him.

Lord Campbell-Savours: I tried to take a very neutral position when I originally moved my amendment. However, it should be made absolutely clear whether

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the Attorney-General could ever be influenced by a political position taken by a Government in any decision that he or she might take, in any circumstances.

Lord Carlile of Berriew: The noble Lord knows how much I admire him, so if I say that is a really silly question I do so in a spirit of generosity. The answer is that we in this Parliament-and the noble Lord has been in this Parliament a lot longer than I have-have to make certain assumptions. Those assumptions include what the noble and learned Baroness, Lady Scotland, the former Attorney-General, said to the House a few moments ago. The sanction for people-and Governments -who behave in that way is that they will lose the confidence of Parliament. The question that the noble Lord puts is so hypothetical as to be absurd, in my experience and, I believe, in his political life too.

I do not want to delay the House too long. All I really wanted to say about the amendment is that in Committee the noble Lord, Lord Pannick, achieved a superb deconstruction of the amendment, and he has done it again today. I do not really want to add anything to what he said, together with the support that he received from the noble and learned Baroness, and indeed the very cogent summary that we received from a non-lawyer, my noble friend Lord Palmer of Childs Hill-thank God we have non-lawyers who are prepared to speak in these debates. I close by simply saying that this clause from the coalition Government, which I and my noble friends usually support, has been introduced in a continuous thread from what was agreed by the previous Government. It brings a single high standard of prosecution to this country and one that can be changed, as it has been in new versions of the Code for Crown Prosecutors test.

6.15 pm

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I start by agreeing with the observations of the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Scotland, that it is important that we have an efficient system of prosecution available in this country to deal with cases, when the evidence is available, that relate not only to war crimes but also to many of the other offences listed in this clause in respect of which the United Kingdom has sought to assert universal jurisdiction. My noble friend Lord Palmer of Childs Hill made it clear that nothing in this clause seeks to end universal jurisdiction, nor indeed does it end the right of private prosecution for universal jurisdiction cases. Although such grave offences may well seem better suited to prosecution by the state, we think it right that citizens should be able to prosecute them.

Clause 155 allows anyone to apply to a court to initiate a private prosecution for universal jurisdiction offences by using arrest warrants where appropriate. It prevents a warrant being issued in cases where there is no realistic prospect of a viable prosecution taking place. As these are cases where issuing a warrant would achieve nothing, that is surely right. That point was made by my noble friend Lord Thomas of Gresford in moving his amendment. Indeed, with a singular exception, no one has dissented from the reform and from the purpose of Clause 155, which introduces the

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consent of the Director of Public Prosecutions. Through this amendment, what we are looking at is the question of whether the criteria applied and approach taken by the DPP in giving consent is something which should be on the face of the Bill. It is certainly the Government's view, which I think is shared by most noble Lords who contributed to the debate, that it should not.

Those of us who have read the clear and cogent evidence given by the DPP to the Public Bill Committee in the other place will have seen clearly how, if Parliament passes this provision, he intends to exercise the duty of whether or not to give consent. He has also made it clear that he proposes to apply the same code tests to the evidential and public interest tests that are used for prosecutions generally, and he has further indicated, as has been mentioned in this debate, that where necessary he would apply the lesser standard of the threshold test. He indicated to the Public Bill Committee that he intends to publish guidelines so that everyone will know how he would deal with decisions on whether or not to give consent.

I, too, want to endorse the comments of noble Lords that we can have confidence that the DPP will exercise his discretion properly. He has a track record which gives us full confidence that he will do that. I share the view expressed by my noble friend Lord Carlile of Berriew, the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Scotland, that that is a good reason not to inhibit that discretion by putting things into statute. These tests are of general application and it is not clear why they should be set in stone by this amendment. Indeed, in Committee my noble friend Lord Carlile said that the amendment attempts,

We would not wish to stop that evolution, particularly given the commitment to transparency on the part of the DPP.

A further point was noted by the noble and learned Lord, Lord Goldsmith, in Committee and has been highlighted today, not least by the noble Lord, Lord Pannick. It relates to the public interest dimension of the threshold test, which is not mentioned in the amendment. I rather thought that my noble friend Lord Thomas was suggesting that it was not necessarily part of the threshold test. However, paragraph 5.12 of the Code for Crown Prosecutors states:

"If both parts of the Threshold Test are satisfied, prosecutors must apply the public interest stage of the Full Code Test based on the information available at that time".

If we put something in statute, there is a danger of actually missing something out that is in the test as it applies at the moment. Perhaps that underlines why it is not desirable to have this in legislation.

My noble friend has indicated that he is not going to press his amendment, and I think that will meet with the general support of the House. I encourage him to confirm that.

Lord Thomas of Gresford: My Lords, a great deal of heat has been engendered in the course of the debate and I do not propose to add to it, although certain things were said about deconstructing this amendment

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with which I do not agree. However, I can take them up at a different time. Let me make it clear that there have been discussions between my noble friend Lord Macdonald and Mr Keir Starmer and they have come to a conclusion that is acceptable to both; namely, that the test should be published in guidance. No doubt it will be applied appropriately and in accordance with the traditions of this country, which are that the Director of Public Prosecutions and the Attorney-General should act in the public interest and not for the purposes of any political party. I beg leave to withdraw the amendment.

Amendment 308A withdrawn.

Clause 156 : Orders and regulations

Amendments 309 and 309ZA

Moved by Baroness Browning

309: Clause 156, page 103, line 38, leave out "32(1)" and insert "32(1)(a) or 36"

309ZA: Clause 156, page 103, line 40, at end insert-

"(d) an order under paragraph 16 of Schedule 15 which contains provision amending an Act (whether or not it also contains other provision)."

Amendments 309 and 309ZA agreed.

Clause 158 : Extent

Amendments 309ZB to 309ZE

Moved by Baroness Browning

309ZB: Clause 158, page 104, line 14, leave out "and" and insert "to"

309ZC: Clause 158, page 104, line 14, leave out "(4)" and insert "(5)"

309ZD: Clause 158, page 104, line 22, at end insert-

"(3A) Section 100 and Schedule 15 apply to England and Wales and Scotland."

309ZE: Clause 158, page 104, line 25, at end insert-

"(5) Subsection (4) does not apply to the amendment made to section 2 of the Parks Regulation (Amendment) Act 1926 by section 152(A1) above (which accordingly extends to England and Wales only)."

Amendments 309ZB to 309ZE agreed.

Amendments 309A to 309B not moved.

Amendment 310 had been retabled as Amendment 309AA.

Amendment 311

Moved by Lord Rosser

311: After Clause 159, insert the following new Clause-

"Expiration of and report on Chapters 1 to 6 of Part 1

(1) Except so far as otherwise provided under this section, Chapters 1 to 6 of Part 1 expire at the end of the period of 4 years beginning with the day on which section 1 of that Part comes into force.

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(2) Before the expiry of Chapters 1 to 6 of Part 1, the Secretary of State must-

(a) organise an independent review of the policing governance arrangements introduced by those Chapters.

(b) publish a report on the policing governance arrangements introduced by those Chapters, and

(c) lay a copy of the report in Parliament.

(3) The report required under subsection (2) must, in particular-

(a) set out the objectives intended to be achieved by the policing governance arrangements in Chapters 1 to 6 of Part 1;

(b) assess the extent to which those objectives have been achieved, and

(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with different arrangements.

(4) The Secretary of State may, by order, revive Chapters 1 to 6 of Part 1 if a draft of such an order is laid before and approved by an affirmative resolution of both Houses of Parliament.

(5) An order made by the Minister under this section is to be made by statutory instrument.

(6) A draft order laid before Parliament under subsection (4) must be accompanied by a copy of the report required under subsection (2)."

Lord Rosser: The Bill represents a major change for policing in England and Wales. Concerns have been expressed about the lack of effective checks and balances on commissioners and their unchallenged powers. Concerns have been expressed about the impact of the strategic policing requirements and the proposed national crime agency on the new arrangements. Concerns have been expressed about the impact of the relationship between the PCCs and chief constables on the latter's operational responsibility. Concerns have been expressed about the impact of the new policing structure on relationships and working arrangements with other bodies, including local authorities. Concerns have also been expressed about the impact of the proposed new arrangements on levels of crime and the impact of the politicisation of the police, which, frankly, this Bill introduces.

The Government agree that their proposals represent a major change. Amendment 311 calls for an independent review of the policing governance arrangements and for a report to be prepared, laid before Parliament and approved by Parliament. The report must set out the objectives intended to be achieved by the new policing governance arrangements, the extent to which those objectives have been achieved, and whether they remain.

It does not seem unreasonable to call in the amendment for an assessment to be made of the impact of the new governance arrangements, what their objectives are and whether they are being achieved within the period of four years provided for in it if the provisions of the Bill are to remain in force. I hope that the Government will agree to the amendment and its provisions for an independent review of what they themselves accept is a major change for policing in England and Wales.

Baroness Hamwee: My Lords, I do not agree with the amendment, for the following reasons. Noble Lords will be well aware of my concerns about the Bill, so I say this with a certain force. This legislation seems no different from other legislation that is contentious. It

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will be on the statute book in some form or other and able to be reviewed, renewed or repealed by a later Government-indeed, by the same Government, who may have second thoughts about it. I hope that it will be reviewed, but as part of a programme of post-legislative scrutiny, which it is high time Parliament had in place. Even without that post-legislative scrutiny, we have from time to time been reminded by the Leader of the House that there is an arrangement-it seems to me to be fairly loose, but I am assured that it exists-for substantial new legislation to be reviewed by government, which I do not think is the same as Parliament, after it has been in force for three years. Of course, if we had more time, I might tease the noble Lord about why he feels that it is necessary to provide for someone else to do something in four years.

Baroness Browning: My Lords, Amendment 311 would mean that the police and crime commissioner provisions of the Bill cease to have effect after four years unless, following an independent review and report, the House approves an order by the Secretary of State for the arrangements to continue.

Many noble Lords have spoken in the course of these debates of the risk of disruption to the police service, and I have set out as we have gone along how that will be minimised. However, it would be extremely disruptive to the police service if, a few months before the second set of elections, the elected PCC is removed and the unelected police authority is re-established.

I hear what my noble friend Lady Hamwee says about review. I fully support the principle that legislation is reviewed. I say this having served in another place for nearly 20 years. We get very excited about legislation when we are legislating and after a year or two we forget about it. Then things transpire and we think that perhaps we should have looked at it. As a principle that is a very good thing. However, I am unable to accept Amendment 311 as it would be extremely disruptive. I ask the noble Lord to consider withdrawing it.

Lord Rosser: My Lords, the key phrase in the contribution of the noble Baroness, Lady Hamwee-I think I have written it down correctly-was: "I hope that it will be reviewed ... as part of post-legislative scrutiny".

Baroness Hamwee: I said:

Lord Rosser:I think the noble Baroness is being somewhat optimistic if she believes that is necessarily going to happen.

The amendment provides for an affirmative decision by Parliament on the report that would be produced. The Minister said that it would be extremely disruptive for the police. Of course, it would also be extremely disruptive for the biggest system change in policing for years to continue if did not work or operate properly as Parliament intended. If it is working properly, no doubt the report would be received and the affirmative resolutions would be carried. If it is not working, surely it is only appropriate that it should be challenged and processes put in place to try to put it right.

However, I do not intend to pursue this matter to a vote. I have expressed my views on the response that I

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have received from the noble Baroness and the reason why I think the amendment is justified. I beg leave to withdraw the amendment.

Amendment 311 withdrawn.

Sovereign Grant Bill

First Reading

6.28 pm

The Bill was brought from the Commons, read a first time and ordered to be printed.

Localism Bill

Bill Main Page

Committee (8th Day)

6.29 pm


Moved by Lord De Mauley

Lord Lucas: My Lords, according to the programme we are supposed to conclude the Committee stage of this Bill on Wednesday after one further day's debate. That does not seem to be a realistic prospect. I would like to make good progress with the Bill and the House has the flexibility to do better than that and to give itself some additional time. We could hoof the Education Bill out of the Moses Room on Monday. We could perhaps use the Moses Room on Tuesday or put the Finance Bill into the Moses Room and use the Chamber on Tuesday. We could sit on Thursday. There seem to be a number of options available to enable us to complete the Committee stage of the Bill before we rise. I very much hope that the Government will be able to tell us which of them they propose to use. One way or another, we are not going to complete it unless we do something.

Lord Tope: My Lords, I support what the noble Lord, Lord Lucas, said. We might wish to be where we are now but none of us would wish to be where we are with the Bill, if I can make that distinction. We are where we are. We on these Benches remain committed to completing the Committee stage of the Bill as soon as possible. As the noble Lord, Lord Lucas, said, there are a number of options available to enable us to do that before the Recess. We are willing to stay as late as may be on Wednesday evening and if necessary to come back on Thursday or take what other measures can achieve that. It is not for us to determine the progress of other Bills or where they may be taken but we and your Lordships' House can urge the Government and the usual channels to co-operate with each other to ensure that we achieve the objective that we all share: to complete the Committee stage of the Bill as soon as possible before the Recess.

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Baroness Gardner of Parkes: My Lords, I, too, support the statement of my noble friend Lord Lucas. It is quite appalling that we have made such little progress. My next amendment is Amendment 149. Today is the eighth day that I have come here believing that we have reached Amendment 149. Instead, as I have said to people, I find 50 other amendments piled in before it. I have counted them while I waited through proceedings on the police Bill, and 125 amendments are piled in before me today. Of those, only three groups have simple numbers, and come from before the first day of the Committee. They are original amendments. Others go as far as Amendment 152ZZA. That seems the most far-reaching number that I have found for any of the other amendments. It is unbelievable how many Zs and things can come up in this. This is a terribly important Bill and the rate of progress has been dreadful. It is very important that we deal with this before the Recess because there is so much work to be done before Report. The Minister and those who have moved amendments will need to do a lot a work before we get to Report. We must finish this before we rise. If we have to sit on Thursday, I am only too happy to do so, or I will sit all night on Wednesday. For the Bill to just drift on in the way that it has is a disgrace to the House.

Lord McKenzie of Luton: My Lords, we all share the desire for the Bill to make as speedy a passage through your Lordships' House as possible. It is not up to us or indeed to the Ministers who support the Bill to arrange these things but for the usual channels. The noble Lord, Lord Lucas, in raising the issue talked about being able to reschedule Tuesday and other days in the week. The noble Lord perhaps ought to be mindful that some of us, not just one of us, have commitments under the Welfare Reform Bill as well, which has its Second Reading. We understand that that is a very important Bill for the Government.

I am very clear that we need to do the job properly in scrutinising this Bill. In so far as it might be alleged that there has been delay, it cannot be laid at our door. I do not believe that the noble Lord did that. We still have a lot to get through: most of the planning stuff, some very important housing stuff and issues around London. Frankly, even if we sat right through the night on Wednesday, I do not see that we would conclude by having one more day, particularly as we must have the Third Reading of the Bill that we just sat through. I do not think it is practical.

I really am opposed to sitting through the night when we are discussing a Bill that has a lot of intricacies in it; a lot of it is complex and technical, and we need to deal with it when we have minds that are still relatively fresh. I do not personally see that it would be a great disaster if we picked this up and concluded it when we are back in September. The key thing is that we should have the time to scrutinise the Bill properly and have the time and opportunity to do it when we are at least not all falling asleep on the Benches.

Lord True: I have taken some part in this Bill and, on the basis of having spent 13 rather misspent years in the usual channels, I heard what my noble friend

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Lord Lucas and others have said about potentially sitting on another day. As other noble Lords have said, I would be very willing to do that to make progress on the Bill. I did not hear the noble Lord opposite express similar willingness.

One thing that I looked up, which might be helpful to these discussions, is what has happened in previous years. This is in fact the earliest date on which the House would rise in July since and including 1996, apart from 2003. If one looks at three separate years after the party opposite formed a Government, in 1998 we were asked to sit until 31 July and noble Lords on this side co-operated; in 2002 we were asked to sit until 30 July and noble Lords on this side co-operated; and in 2006 we were asked to sit until 25 July and noble Lords on this side co-operated. I do not think that it is unreasonable to ask noble Lords opposite to show the same willingness as noble Lords on this side have to allow the usual channels some flexibility in considering not only sitting late but perhaps allowing an extra day to complete this important Bill.

Lord Best: Perhaps a word could be said from the Cross Benches, too. I have quite a lot of the amendments that might detain us further on. Although we must all accommodate whatever the usual channels decide, it is quite late notice for next Thursday suddenly to be removed from our diaries when we had every reason to expect to be on Recess at that time and had other plans. I, for one, would be letting down an awful lot of other people, which I may have to do if we have to sit next Thursday. If it is of any help-and I am sure that we all have our different preferences-I would be quite prepared to go into all hours of the night on Wednesday night and will try to remain fresh, if that is required of me.

Lord Shutt of Greetland: My Lords, I thank noble Lords for their contribution. It is not easy, because we had no idea of the exact time when the earlier Bill would conclude today. There were great expectations that there would be a serious amount of time to discuss localism today, but noble Lords in regulating themselves felt that it was important to consider the previous Bill. Those who have been observant will have seen that various noble Lords have been talking off the Floor of the House, as others have been talking on the Floor. If we could make a start on the Localism Bill now, even though there are only 22 minutes before seven o'clock, we could do one or two amendments. That would be sensible.

The usual channels can channel away a little longer and, I hope, make a statement before we conclude tonight. We do have it in our diaries to come here on Monday, Tuesday and Wednesday. The prospect has been put-

Lord Bassam of Brighton: It might be for the convenience of the House if we invite the government Chief Whip to make her statement now, because I think it would help us to draw proceedings to a close. I, as ever, wish to be helpful.

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Baroness Anelay of St Johns: My Lords, my deputy and I are joined at the hip, like twins. In this occasion, the Gemini were slightly apart, and I had the advantage of being able to have a further conversation with the opposition Chief Whip as well as briefly with the Leader of the Opposition and their spokesman on these matters. The noble Lord, Lord McKenzie, is spokesman not only on this Bill but also on the Welfare Reform Bill, which as he has just this moment said is very important. We have perhaps found a new way forward, which needs further examination but would provide for the inclusion of the Localism Bill next week. It would also meet some of the concerns expressed around the House that, having started the Welfare Reform Bill Second Reading, we would do the Committee stage as soon as we got back in September.

The discussions now afoot would mean that we would do whatever we may within about the 20 minutes or so remaining tonight on the first amendment on the Localism Bill. However, we would expect to continue discussions. The proposal is around the idea that Monday would go ahead as anticipated, with the Fixed-term Parliaments Bill followed by the Finance Bill, but on Tuesday it may well be that instead of the Welfare Reform Bill Second Reading, we could then have a full day on the Localism Bill and on Wednesday, as already scheduled, start the day on the police Bill Third Reading but then move into the Localism Bill, with a fair expectation of being able to conclude that business.

People say that the House of Lords stays the same over centuries, but things can happen in seconds here by agreement. That is one of the interesting things of this place, where there is self-regulation. I know that there is continuing good will on these matters. I think that this is the time when Chief Whips sit down and invite the Convenor and others to come to a meeting to discuss what the impact might be on their Benches.

Lord Bassam of Brighton: My Lords, as ever, my door is open for discussions and if there is some small progress this evening and we can carry on discussing next week's business, that would be very helpful.

Localism Bill

Bill Main Page
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Explanatory Notes
Copy of the Report (15th)
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Committee (8th Day)

6.41 pm

Amendment 148ZZBB

Moved by Baroness Byford

148ZZBB: After Clause 99, insert the following new Clause-

"Registration of land

In section 15 of the Commons Act 2006 (registration of greens), after subsection (10) insert-

"(11) Regulations may provide for amendments to be made to the criteria by which a new town or village green can be determined in order to restrict the scope for such applications.""

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Baroness Byford: My Lords, I remind the House of my interests, particularly my membership of the CLA. We come to the section of the Bill which causes it and others concern. As I see it, if an area of land is designated as a town or village green, any development on it is prohibited notwithstanding any grant of planning permission. As a result of the changes made by the Commons Act 2006 and a series of court cases, it is now far easier to probe that a particular area is a town or village green than was previously the case. It is of course important that bona fide applications should succeed but, all too often, spurious applications are being made with the aim of overturning the effect of planning permission being granted. I believe that the Minister and his team have been in discussions with the CLA, so I will not go into further detail on that.

However, I have also been contacted by Sue Chalkley from the Hastoe Housing Association, which has raised the issue of vexatious use of the towns and village greens registration system to delay or block legitimate development. It is concerned that such misuse is causing increasing delays and costs to developers. The risk of having land blighted by a TVG application is a considerable deterrent to landowners. In rural communities, this problem is more acute and may well jeopardise the provision of much needed affordable rural housing.

I give but one example: in Marsh Gibbon in Bucks, eight affordable houses were planned, with six for rent and two for shared ownership. A half-acre site was chosen by the parish council and the planners. The field had been farmed for over 200 years, most recently for strip-grazing dairy cattle. Full planning permission was granted in February 2008. The parish councillor and the landowner were adamant that the field was not a village green. A TVG application was made on the whole of the 15-acre field. In June 2010, the inspector's decision came. The TVG application was unsuccessful, but one should be aware that there was a delay of two and a half years at a cost of £80,000 to Hastoe Housing Association.

We need those village developments, as indeed we need developments elsewhere, and I am very concerned that the Bill will not help in that way. In answering a Question on 23 May, my honourable friend Richard Benyon indicated that from 2005 to September 2009, 650 applications were made, 99 were granted and 551 were rejected. I understand that it costs nothing to put in a TVG application, but the costs incurred to the registration authority can be significant. There is a problem and I beg to move.

6.45 pm

The Earl of Lytton: I support the noble Baroness, Lady Byford. I, too, am a member of the Country Landowners' Association and a landowner. Briefly, we need to ensure that there is an authentic local view at work here. We need a reasonable level of general support to be established and demonstrated, and we need a coherent and reasoned justification for things to be included as "commons". We do not need national agendas, narrow sectoral bases of arguments, frivolous or vexatious grounds, or to give succour to a no-development ethos. As the noble Baroness rightly pointed out, this is currently capable of being a free

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bet. That cannot be allowed to continue. There are clearly well-documented instances of abuse of process and therefore I support her in the amendment.

Lord Lucas: My amendment seeks to remedy this difficulty by allowing neighbourhood plans to rule out the creation of village greens that the neighbourhood plan does not recognise.

Lord Best: My Amendment 170CK, which comes later in the Bill, is not quite as imaginative as the approach of the noble Lord, Lord Lucas. It is a more pedestrian way of dealing with the matter by amending the Commons Act 2006, which is essential. At nominal cost to the applicant, frivolous and vexatious applications can add so much cost and delay to a scheme as to deter the developer or housing association from proceeding. I have personal experience of this, being familiar with a development in York. We were attempting to create a significant new mixed-tenure community of some 540 homes and, despite the council being fully in support of that, havoc was wreaked by a village green application to incorporate the whole of a 53-acre site. It was made on the basis that a local resident had been walking their dog on the site for the past 20 years, thereby meeting the criteria of lawful sport or pastimes. Since the tolerant owner had taken no legal action against them, the case could be made that this large site could possibly be England's largest village green. Although the proposition was in due course thrown out, it involved my charity in considerable frustration, the potential loss of public and private funding, considerable expense and delay of more than a year. A less tenacious developer might well have given up, depriving the city of York of what will be a huge asset for generations to come.

Perhaps I may quote from one landowner in Norfolk, whose perspective has been sent as an illustration by the Hastoe Housing Association. They state:

"I believe that affordable homes are vital in sustaining rural communities. As a result, when Hastoe with the backing of the parish council approached me about selling them some land, I agreed. Many people retiring from the south-east have moved to this area of Norfolk, raising prices beyond the local people's means and threatening the future of the [village] school ... Unfortunately, this decision to help has resulted in me becoming involved in an extraordinary process that will last several years and cost me many thousands of pounds. What is so frustrating is I have detailed crop records for the past 20 years and an acknowledgement from those claiming the arable field as a village green, that they never walk on it when it is in crop. On top of that, those making the claim have taken more than two years putting in their village green application, are funded by somebody whose main home is not in the village and have refused to reveal themselves to the rest of the village. However, it appears that the law is so badly drafted and open to so much interpretation, that the County Council admits that it is extremely unlikely to throw out the claim until it has gone to Public Inquiry as they do not want to run the risk of having to pay for any legal challenge to their initial decision".

Naturally, this example of big society action by the landowner means that he and no doubt dozens of others are unlikely to part with any land until this overindulgent legislation is reined in.

My amendment looks at the nitty-gritty of the situation and proposes ways in which the law could be amended. I will briefly outline what it says.

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Amendment 170CK would stop retrospective application for town and village green status after planning consent has been granted, which is currently possible. It would prevent efforts to overwhelm the authority with excessive paperwork, allow authorities to reject vexatious or frivolous applications and allow the recouping of costs in such cases. It would make deregistration possible where a review showed that the village green status had, some time later, become obsolete. I hope that the amendment commends itself to your Lordships and the Minister.

Lord Greaves: My Lords, I remind the House of the interest that I declared at the beginning of the Committee stage. I am vice-president of the Open Spaces Society, which is the expert voluntary organisation on village and town greens and spends a lot of its time advising people who wish to register greens. It strongly advises people not to do so purely to resist development and not to proceed if the evidence appears to be poor. Not everyone takes that advice, unfortunately.

The amendments attempt to tackle this perceived problem-it is indeed a problem in some areas-by amending this legislation and thereby amending the Commons Act 2006. I suggest that this is probably the wrong time and the wrong legislation to do that. Town and village green legislation, as noble Lords who took part in the discussions of the Commons Act in 2006 will know, is extremely complex and somewhat difficult. Section 15 of that Act laid down a new system for the registration of greens, but that was based upon much older commons legislation, going back to the past, describing what is and is not a green.

I have some questions. Is there an identified problem? Yes. Is it hugely widespread? No, but it is serious where people are abusing the system. Some instances of that have been identified here today and I could provide some more. Does it need sorting out? Yes. Does it need new primary legislation and is this the right Bill to do it? No. As the noble Baroness, Lady Byford, has identified, what is required is an overhaul of the Commons Registration (England) Regulations 2008, which result in a system of greens registration that, in my view and that of the Open Spaces Society, is overly bureaucratic, takes far too long and can be far too costly.

I was involved on the other side, as it were, in an application for a green in Lancashire where Lancashire County Council wanted to build a new secondary school, which I was in support of, and a group of people tried to suggest that the land on which it was being built was a green. I met them, advised them and told them that it was not, but fortunately Lancashire County Council, perhaps because it was a project of its own that was potentially being blocked, was very expeditious in sorting it out. Quite correctly, it rejected the application.

We have a 10-point programme that would greatly improve the green registration system. It could be done simply by secondary legislation by amending the 2008 regulations. I am not suggesting that that is the whole answer and I am not going to tell your Lordships today what all the 10 points are, but we are happy to discuss this with Ministers. They will be Defra Ministers, though, as this is not a CLG matter. Defra is already

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looking into the problem; it has commissioned research, it is having discussions and it is considering its responses. I hope that on that basis we can let the department get on with it.

There is an understanding on all sides that this is urgent. It is important not to throw the baby out with the bathwater and not destroy the system of registration of town and village greens, which is a very useful process, but to stop people abusing it.

Lord McKenzie of Luton: My Lords, we should thank the noble Baroness, Lady Byford, and the noble Lords, Lord Best and Lord Lucas, for identifying and raising this issue this evening. Clearly, as the noble Lord, Lord Greaves, said, we must cherish and support the legislation which enables the identification, reclamation and maintenance of town and village greens. However, there is clearly a problem here. As the noble Lord, Lord Greaves, asks: is there a problem? Yes. Does it need sorting out? Yes, it does.

I am not sure that we necessarily have the way forward encapsulated within the amendments before us. The noble Lord, Lord Greaves, has made some interesting suggestions and I will be interested in the Minister's response. The noble Lord, Lord Lucas, offers the prospect of being able to identify and establish a town or village green only through a neighbourhood plan. That seems potentially too restrictive: if you do not have a neighbourhood plan in place, what happens? They will not necessarily be universal.

I side with those who say that a misuse of this legislation is taking place. I accept that it may not be widespread, but it does need sorting out. I look to the Minister to see what solutions he offers.

Earl Attlee: My Lords, I welcome the opportunity to respond to these amendments and the balanced way in which the arguments have been presented to the Committee. Of course, I speak for Her Majesty's Government and not one particular department.

I know that the system for registering new town or village greens is a matter of rising significance to those of us interested in development sites, as well as to local authorities in their role as commons registration authorities. As I shall explain, it is also a matter of considerable interest to this Government.

We recognise the value of the town or village green registration system in safeguarding traditional open spaces in local communities. Government surveys show an increasing trend in applications during the past decade, although not all of these applications are granted. The noble Lord, Lord Greaves, suggested that problems were not widespread, although he agreed that they could be serious. Around 200 applications are made every year to register land in England as greens. The volume of applications, the character of application sites, the controversy which such applications often attract, the cost of the determination process on parties affected and the impact of a successful registration on the landowner are all matters of serious and increasing concern. We are well aware of the difficulties that some registration applications can cause where an application is made in response to advance plans for the development of a site. However, we also appreciate

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the importance that local communities can place on an open space as well as new development. We understand that there must be confidence that the relevant decision-making processes are working coherently in the interests of the community as a whole and not just in those of a minority.

The natural environment White Paper announced that we will consult on proposals for a new green areas designation that will give local people an opportunity to protect green spaces which have significant importance to their local communities. We are considering what changes to the greens registration system are required in connection with the new designation as a response to the Penfold review, which recommended changes to the registration system to ease non-planning impediments to development.

Amendment 148ZZBB in the name of my noble friend Lady Byford would give the Government powers to achieve a sharper focus in the criteria for registering greens. I have some sympathy with the purpose of the amendment, which could help to address some of the cases where applications have been used as a last resort only to delay development, such as my noble friend has described to us. The noble Lord, Lord Best, asked a question about rural housing. We share the concerns of my noble friend Lady Byford and the noble Lord, Lord Lucas, that the green registration applications can have an unfortunate deterrent effect on the provision of land for rural affordable housing. We are actively looking at whether amendments to the registration criteria are needed. We shall want to hold discussions with those with an interest in our proposals before concluding on the nature of any legislative changes. Legislative changes may be necessary. My noble friend Lord Greaves is right: the registration of a green is indeed a matter of fact. The criteria against which registrations are considered are set in law. There is no discretion. Local communities have no say in whether registering land as a green is desirable or not.

7 pm

Amendment 148AG in the name of my noble friend Lord Lucas would enable a neighbourhood plan to designate town or village greens but would block the registration of new towns or village greens that had not been so designated. I appreciate why my noble friend has neighbourhood plans in mind when thinking about protecting green areas. We propose that the green spaces to be protected by the new green areas designation can be identified by local communities through their neighbourhood plans. As I have said, we are looking at whether changes to the registration criteria for town or village greens are needed. I should add that we have no plans to weaken protection for existing registered greens, as his amendment would appear to do.

Amendment 170CK in the name of the noble Lord, Lord Best, is quite specific in tackling some of the concerns of local authorities that deal with greens applications. Here, too, I say to the noble Lord that we understand the frustration experienced by local authorities and others in dealing with certain greens applications, which may be seen as a last ditch defence against development. I believe there is a consensus that local authorities should be able swiftly to reject vexatious applications. We are certainly looking at that. However,

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I am not confident that this amendment necessarily adopts the best approach in every case. We certainly do not think it is right to open existing registrations to re-examination, as the proposed new Section 15A would do. However, we are actively reviewing the way in which new greens are registered.

My noble friends and the noble Lord may feel that we have taken too long over our deliberations on whether changes to the registration criteria for town or village greens are needed. I agree with them, but I very much hope that we shall be able to announce our conclusions later this summer, and that my noble friends and the noble Lord will see that those conclusions respond to many of the concerns raised tonight. Given this assurance, I hope that the amendment can be withdrawn.

Baroness Byford: My Lords, I thank the Minister for his, I think, encouraging and detailed response. There are clearly difficulties. Indeed, my noble friend Lord Greaves accepted that 551 rejected schemes means a great trial for each of those individuals who had to go through the process. They are very costly and a great deterrent to landowners opening up some of their land to future development, particularly for affordable rural housing, as we hope they will. However, I am grateful to the noble Earl and particularly pleased that there will be ongoing discussions. I hope we may have some news later in the summer, perhaps before the Bill is passed. With those few comments, I beg leave to withdraw my amendment.

Amendment 148ZZBB withdrawn.

Clause 100 : Use of Community Infrastructure Levy

Amendments 148ZZBBA and 148ZZBBB not moved.

Amendment 148ZZBBBA

Moved by Lord Jenkin of Roding

148ZZBBBA: Clause 100, page 79, leave out line 20 and insert-

"(b) providing that which CIL provided initially under paragraph (a) on an ongoing basis."

Lord Jenkin of Roding: In moving this amendment, I wish to discuss the other two with which it is grouped. I tabled these amendments before we had the debate last Tuesday in which we discussed the application of the community infrastructure levy. Anxieties had already been aroused with regard to the original purpose of the levy being altered. My noble friend Lord Attlee spelt out that purpose very correctly. It is meant to support infrastructure development and be paid by the developer of a facility such as housing or industry. My noble friend Lord Greaves had moved an amendment which would widen the permitted use of the levy receipts beyond infrastructure matters that support the development of the area. My noble friend Lord Attlee said:

"We want to reflect on whether continuing to limit spending solely to providing infrastructure restricts local authorities' ability to support and enable development of the area".-[Official Report, 12/7/11; col. 707.]

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He went on to say:

"We want to reflect on the amendments proposed by my noble friends Lord Greaves and Lord Tope to allow the spending of the levy on matters other than infrastructure".-[Official Report, 12/7/11; cols. 709.]

These words have aroused considerable anxiety. I have a copy of a letter written yesterday by the Institution of Civil Engineers to the Secretary of State. The letter was copied to my right honourable friend Greg Clark and my noble friend Lord Attlee. The institution's chairman wrote:

"I am writing to highlight concerns regarding the Government's undertaking to reflect on allowing the use of the Community Infrastructure Levy on matters other than infrastructure. The Levy was specifically conceived and justified to provide for new and upgraded infrastructure-a point reinforced by the Government many times".

Indeed, they did so most recently last Tuesday through my noble friend Lord Attlee.

The purpose of these three amendments is to try to get clarification on three specific issues. First, Amendment 148ZZBBBA seeks to ensure that the application of CIL is confined to the provision and maintenance of an infrastructure project which is in an approved charging schedule, on the ground that that fulfils the original purpose of the introduction of the CIL. The institution believes-I accept the case that was made on Tuesday and is in the Bill-that this should include what is called in the Bill "ongoing expenditure", which I understand to mean the maintenance of an approved infrastructure project financed by CIL. I hope that my noble friend can give me a very clear undertaking that there is no question of this levy being used simply to fill a revenue hole in a local authority's budget. It has to be confined to the provision and maintenance of an infrastructure project.

My second point has been touched on but I would like to be given a much needed assurance. There are plenty of examples of where developers have agreed to make a contribution under Section 106 of the Town and Country Planning Act 1990. If a developer has made such an agreement-sometimes it can last for a number of years-he should not be charged the CIL in addition. I hope that my noble friend can give me a clear undertaking on that. It was briefly discussed, and if we had not risen when we did on Tuesday, I would have intervened, because I was expecting to move the amendment on Tuesday night. I said, "Let's wait until I am speaking".

My third point concerns the suggestion of compensating communities by allowing CIL receipts to be passed to other persons. I do not quarrel with that-although I know that some object-but it must be spent on infrastructure projects. It must not be allowed to be a financial recompense paid to a community because it has development in its area. I hope that my noble friend can give me a clear assurance on that.

My final point is that the area must not be too tightly defined. There is anxiety that that may be the effect of the Bill. For instance, if the money has to be spent in the area, how will that fund a bypass which may be necessary as a result of the development, or flood defences, which may have to happen well outside the area but are clearly for its benefit?

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I have asked a number of questions, and I do not think that I need to go on longer. Those are seen as serious issues by those concerned with re-establishing our infrastructure in this country. I took part in the original debate on the CIL when the 2008 Bill was going through the House. Indeed, I tried to ensure that both Houses would be able to approve the delegated legislation under it. I carried that in this House, but it was turned down by the then Leader of the House in another place. I have a considerable interest in making sure that we get this right. I beg to move.

Lord Berkeley: My Lords, I am very pleased to support the noble Lord, Lord Jenkin of Roding, on this group of amendments. He has articulated very well the problems which the CIL could cause developers. It is particularly important for bigger projects, which might be taken through a hybrid Bill process, through the IPC or the Transport and Works Act, where the decisions are effectively made by Ministers. Ministers will approve-or not-a deal which ends up as a Section 106 agreement. The worry is that, completely separately, the local authority might want to put a CIL charge on the project. One must think of the effect on business confidence when considering ports, airports, logistics centres, railways, roads, power stations or anything else of that size, and of the figures involved.

The people who run Gatwick Airport have told us that they are committed under a Section 106 agreement to contribute about £1 million annually to public transport via a levy on their car park revenues. If they had also been required to pay a CIL to the local authority-probably retrospectively, because it may well have happened after the Section 106 agreement was signed-they would not know what liability they would be stung for, frankly. To give two bigger examples, Hutchison Ports had a Section 106 agreement to extend the ports at both Felixstowe and Bathside Bay. It was committed under the agreement to spend about £100 million on upgrading the railway line to Leeds. We can question why it should be Leeds, but that is what was agreed. I think that the London Gateway port project, downstream on the Thames, had to contribute a similar amount for road improvements between there and the M25. If, having signed up to all that, they are suddenly stung for a CIL, it will put off developers from going ahead with these projects. It is after all the Government's wish to develop new projects-I return again to the Secretary of State for Transport's plan to build a high-speed railway line to Birmingham and beyond. You can imagine that people in villages along the route who do not like the plan, having had their referendum to vote against it, will then try to sting the promoters, whoever they may be, for a CIL. It could get quite interesting. It will put off business and I hope that when the Minister responds he can strengthen the assurance that was given in another place that a CIL will not be levied on projects for which a Section 106 agreement has been entered into and agreed.

7.15 pm

Lord Greaves: There is a great deal of sense in that. Some of the difficulty is the muddle between Section 106 agreements and the community infrastructure levy,

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but it is the clear intention-it was the clear intention of the previous Government and I assume that that has not changed-to phase out Section 106 and replace it with CIL. The difficulty with that is that it brings levies and what they might be used for down to a quite small-scale local level. Large infrastructure projects are one thing, and I agree with many of the comments made by the noble Lord, Lord Berkeley, about that, but there are big projects, small projects and projects in-between. The amount of CIL that would be levied on many local development projects is quite small. Unless it can be seen as a replacement for Section 106 for the kind of things that Section 106 is spent on, and perhaps some further flexibility, a great deal will be lost. It is difficult to find ways of spending those relatively small amounts of money on things that might be classified as infrastructure.

One large-scale thing that Section 106 has been important in subsidising and helping to develop is affordable housing. We have had a debate about that and the Government have said that they are looking seriously at allowing CIL to be used for affordable housing. Affordable housing is not really infrastructure, apart from for the people living in a particular house. It is development that needs infrastructure around it. Classic cases of Section 106 funding include subsidising local bus services, whether it is a service to a new supermarket or a new estate. It is not infrastructure. Lots of local amenity areas, playgrounds, and so on, have been paid for out of Section 106. Are they infrastructure? A common-sense use of the word would suggest that they are not. Unless the levies can be used from local developments on this kind of thing, local authorities will find it much more difficult to provide them. Often new housing is developed by converting a mill into flats and then improving some of the areas around, which are pretty run down, by turning them into nice amenity areas and playgrounds, which is very important and linked to the development.

We have a new supermarket, which released £390,000 under Section 106 to spend on the local town centre. A lot of the spending on that town centre could not be described as infrastructure. It is about improving the appearance, relaying flags and grassed areas, improving shop fronts, and so on, which is all very important in helping the town centre compete with the new supermarket and hold its own, but is it infrastructure? My right honourable friend Simon Hughes suggested that double glazing might be an appropriate use of CIL from local projects. That is not infrastructure, but it is the kind of area in which we hope for some flexibility. I am not sure that we are that far apart. Clearly if a project is big enough to pay for a bypass, that is certainly infrastructure. However, we need flexibility.

Lord McKenzie of Luton: My Lords, as I indicated to the noble Lord, Lord Jenkin, we support the thrust of these amendments. Certainly I agree that CIL must not be used to fill revenue holes in the budgets of local authorities. A specific assurance on that from the Minister would be entirely appropriate.

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