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I recognise that the Minister may not be in a position this evening to accept these amendments, no matter how keen he might be to do so. But given all the Government's fine words about transparency, could he at the very least agree to look at an appropriate timescale for ensuring that the provisions of this Bill do not undermine, as they currently do, the Government's commitment to increasing transparency and could he undertake to come back and tell your Lordships' House the results of his investigations at Third Reading? We know that the longer politicians stay in power, the more they like it and the less they like any fetters on the exercise of it. The value of freedom of information legislation and transparency is precisely the fact that it is a fetter on the powerful. Eighteen months ago this Government suggested that they understood the importance of fettering those in power. I hope the Minister can now demonstrate that they are still committed to that, not simply in words but in actions as well.

Lord True: My Lords, I must intervene. Obviously the noble Lord has not developed his arguments at the same length as in Committee but I am afraid I am as unconvinced by them now as I was then. It is certainly a worthy thing to pay lip service to freedom of information but one has to think about the practical impact of what is proposed. Although the noble Lord says that in Amendment 199 he places a limit on the extent of the burden by specifying contracts for any sum over £1 million, this is vitiated by the fact that his amendment goes on to say:

"Where such a contract is to any extent performed by means of a sub-contract, that sub-contract shall be deemed to include a freedom of information provision",

and so on. It is like unwrapping a Russian doll. As we discussed in Committee, many of these large contracts may relate to construction, for example, where many small businesses will be involved. This may be onerous for small businesses and those businesses may well find themselves caught by the way that this amendment is drafted. The only people exempted are legal advisers to those bodies. Indeed, any other person acting on behalf of a sub-contractor, such as the bookkeeper of a small business, may be brought in to the scope of that amendment, as I read it. I should like the Minister to reflect carefully before going in that direction.

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I argued that the new clause proposed by Amendment 201 could be absurdly onerous on local authorities. The noble Lord's amendment uses "relevant authority", which means that any parish council or community council in this country would have to publish annual reports on the Freedom of Information Act, environmental regulations and information on the number of requests that it had received. All the provisions here would apply to every authority in the country. My own council is very willing to comply with the Act-anybody can ask a question about it at council; we had a question on it answered two council meetings ago and this information was given-but the cost of doing so is already more than £100,000 a year. With the greatest respect, I do not think that extending this degree of reporting responsibility down to the level of the merest parish council and community council in this country, let alone larger authorities, is appropriate or necessary.

While respecting the enthusiasm of the noble Lord, Lord Wills, I hope that my noble friend will resist his amendment for the reasons that I and others have given and that we can proceed with the rest of the Bill.

Lord Lucas: My Lords, the noble Lord, Lord Wills, is quite right that enthusiasm for freedom of information seems to wane the longer a party is in power. He is perhaps sitting there, safely in the far corner of the Back Benches, so that he does not get too heavily stamped on by his own Front Bench. The Labour Party quite clearly lost enthusiasm for the Freedom of Information Bill in the course of taking it through Parliament. It was by the narrowest of squeaks that it survived at all, and that was only six months into government. If it has developed a new affection for it now, I am delighted, but I do not expect it to last.

However, on our Front Bench, we have Mr Freedom of Information himself. My noble friend has been dedicated to this cause for a long time, so I hope that he will take a constructive view of what we might do. I share many of the concerns of my noble friend Lord True and do not think that this amendment does the trick. However, more openness in local government and more consideration of which of the larger contracts in local government should be open to freedom of information would be consistent with the way in which the Government are going; for instance, in considering whether examination boards should be subject to the Freedom of Information Act or putting UCAS on the list of bodies subject to it, as we have a draft regulation to do at the moment. If the processes of the Health and Social Care Bill lead to a substantial transfer of what is currently public activity away from the public gaze, I shall propose that we make sure that it is brought back swiftly through the Freedom of Information Act. I do not see this Bill as leading to large-scale transfers of activity away from the public gaze into obscurity, but there should be some protection in case there is. I hope that we get a constructive answer from my noble friend.

Lord Beecham: My Lords, I shall resist the temptation to stamp on my noble friend; it is a highly resistible proposition. I support the thrust of his amendments.

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Indeed, I detect certain sympathy on the detail of Amendment 199 from the noble Lord, Lord Lucas. There are matters in it that are worthy of further consideration by government and I hope that they will not simply reject the topic out of hand even if they cannot quite accept the wording of the amendments for reasons which have been advanced tonight and perhaps others.

On the new clause that would be inserted by Amendment 201, it is not an extraordinary demand to make of a public body that it should keep a record of, or at least do a report on, requests for freedom of information. I should have thought that this was a reasonably appropriate matter for a council audit committee-I serve on such a committee-to have before it as it is information about the governance of the authority. It does not seem to me that the amendment seeks to impose an inherently onerous obligation. It is one that should be within the knowledge of members of that authority. I think that routing it through the audit committees, or possibly standards committees, of councils would be a good way to ensure that elected members do not lose sight of the council's obligations and that they ensure that their officers actually comply with them. I hope that the Minister will accede to my noble friend's request to think about this and to perhaps bring something back at Third Reading. It is an important issue and although sometimes, obviously, there are difficulties in complying with requests, there is no reason why these issues should not be examined and, in the interest of good governance, improvements made to the local regime.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, I am very grateful to the noble Lord, Lord Wills, for moving the amendment. It is well known that he was himself, when in office, a champion of freedom of information. I am very grateful for the comment of the noble Lord, Lord Lucas, about my own record. I failed to persuade Jim Callaghan to put freedom of information into the programme of the 1976-79 Labour Government, but I was very happy that it was with Liberal Democrat votes that the Freedom of Information Act that is now on the statute book passed through this House. I am sad to read that the Freedom of Information Act is among Mr Blair's major regrets of his premiership as it remains one of the things that I am most proud of being associated with.

I think that the noble Lord, Lord Wills, is a little ungenerous about the approach of this Government. It is not true that we have done nothing since coming into office. In fact, quite the reverse is the case. I think that the initiative that this Government have shown in relation to freedom of information and transparency has been quite revolutionary. The Government are committed to extending the scope of the Freedom of Information Act and to increased transparency and have made considerable progress in this since May 2010. For instance, as part of a package of measures announced in January, we have already introduced primary and secondary legislation to extend the Act's scope and are currently consulting on more than 200 further bodies in this regard. In order to ensure that the Act continues to meet the needs of its users, the

10 Oct 2011 : Column 1453

Act as a whole will be subject to post-legislative scrutiny. I do not think that noble Lords fully appreciate just how revolutionary that is. Indeed, when I urged that we bring forward post-legislative scrutiny, some of the strongest supporters of freedom of information were slightly nervous that the Act would come under too much criticism. What I say to them, and say to supporters of the Act now, is that post-legislative scrutiny and the assessments built into it will give the opportunity to prove what I still believe: that freedom of information underpins good governance.

10 pm

Alongside this is another government initiative that I believe is genuinely radical. The Cabinet Office is currently undertaking a public consultation on an open data strategy, aimed at establishing how to ensure a greater culture of openness and transparency in the delivery of public services. However, there are still challenges to be faced, one of which the noble Lord highlights here. It is vital that we ensure that changes in the way that public services are delivered do not undermine our progress in enhancing transparency. We need to meet this challenge through post-legislative scrutiny and the open data consultation. We are taking a wholesale look at where improvements can and should be made. This is the weakness in the noble Lord quite legitimately using amendments to the Bill to raise these issues. We must look across the board at where we take transparency and open data and not just in the area of local government. It is important that we assess carefully the likely impact of any change against the benefits that it will bring to ensure that transparency is both maintained and enhanced-but with due regard to the burdens that might be imposed on the public sector and those providing public services under contract.

It would not be right to rush through solutions now which might appear attractive but do not ultimately provide the most effective solution or which address the issues in a piecemeal fashion. Within this context, it would not be appropriate, as proposed by the noble Lord, simply to amend the Freedom of Information Act in relation to local government. The Act covers more than 100,000 bodies-central government, the education sector, the police, the Armed Forces, and the health service-and our approach should be consistent across the board. Where change is proposed, we should assess whether the change should be made in respect of all or most of these bodies, and whether alternative solutions are available.

I would like to reassure noble Lords that our opposition to the amendments tabled by the noble Lord, Lord Wills, does not spring from any lack of commitment to the cause of transparency. The Government are committed to driving the transparency agenda forward with pace. Where our work demonstrates that measures are necessary to increase transparency and accountability, these will be taken. The noble Lord, Lord Wills, is an old campaigner so he knows darn well that to give a specific detailed timetable on this is simply not possible. The Government recognise that there is a strong argument for increased transparency by bodies in receipt of public funds. The Government's open data consultation

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is proposing and consulting on an extension to the types of organisation to which an open data policy would apply. The Freedom of Information Act will also be subject, as I have said, to post-legislative scrutiny to see how it is working in practice. Further policy in this area will be developed in the light of the evidence drawn from these sets of work.

I am basically saying that the points raised by the noble Lord, Lord Wills, are interesting and certainly will be studied, but it is necessary to get our ducks in a row. We will do a cost benefit analysis on freedom of information. That has already been commissioned and will feed into the work of post-legislative scrutiny. My department will deliver by the end of this year a post-legislative scrutiny memorandum that will be the basis of the work by the Justice Select Committee that will start early in the new year working out and testing the practicalities of the Freedom of Information Act. Bodies will be able to give evidence to the Justice Select Committee on that work. As I said, the open data consultation will close on 27 October and will be followed by a White Paper.

I do not accept the suggestion of the noble Lord, Lord Wills, that the Government are not active in this area. The transparency agenda will make the Freedom of Information Act look like a poor relation of a Government who are really committed to transparency and will push this ahead. In the light of those assurances that what we really want to do is make sure that we have our ducks in a row before we move forward, rather than any hostility to the ideas that the noble Lord has raised, I hope that he feels ready to withdraw his amendment.

Lord Wills: I am extremely grateful to everyone who has spoken in what has been a not particularly lengthy but very revealing debate. I am grateful to the noble Lord, Lord True, for his contribution. It reminded everybody of the battles that still need to be fought for the public to get the mechanisms that they need to hold those who serve them properly to account.

I am grateful to the noble Lord, Lord Lucas, for although I think he disagreed with the wording of my amendments-I have always made it clear that I am very happy for them to be revised-I detected a sympathy towards the general thrust of them. I hope I am not wrong in that. I join him in paying tribute to the Minister as he has a very honourable, long and splendid record in campaigning for transparency and freedom of information. Any criticism I might be about to make does not reflect on him personally. He has a very long and honourable record in this field.

I agree with him. This bit of legislation will benefit, I am absolutely confident, from post-legislative scrutiny. Post-legislative scrutiny was a very welcome constitutional innovation brought in by the previous Government. I am wholly in favour of it and I think this legislation, as all legislation, will benefit from it. I agree with him on that but there I am afraid our agreement ends. I ask him to look at Hansard tomorrow to see what I actually said about the record of this Government. I did not say they had done nothing. I said they had done nothing that they had not inherited from initiatives taken by the previous Government. Everything he has mentioned was set in train by the previous Government.

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In the coalition agreement they said they would increase transparency. I take that as going beyond what the previous Government did. That is where, I am afraid, I was very disappointed in the Minister's response. In all sorts of other areas of constitutional legislation which we have debated at great length in this House they have rushed it through with great vigour and energy, brushing aside getting all their ducks in a row and all those other metaphors the Minister brought out just now. There has been none of that. It was so urgent and so important it had to be ramrodded through Parliament at great speed with consequences we are going to suffer from for a very long time.

Why is transparency for this Government so much less important than all those other constitutional measures? In my view it should be even more important and the Government are showing absolutely no urgency in this field. If this Bill simply left the situation as it was I could perhaps sit down now and say, "Oh well, give the Minister a bit more time to see what happens", but it does not. When this Bill goes through, as it will, if it works as intended, and I am sure it will more or less, it will not leave things as they are. It will decrease, perhaps significantly, the scope of the Freedom of Information Act. The people we serve, the voters and taxpayers, will suddenly find they cannot get information they think they have a right to know because suddenly great swathes of services will be removed from their right to know. That cannot be right. The Minister said they will do it when they get they get their ducks in a row and all the rest of it-some time, never. He cannot even commit to coming back at Third Reading-

Lord McNally: There has been an absolute tsunami of transparency. My right honourable friend Francis Maude has been frightening the life out of Whitehall and his ministerial colleagues by the way he has been forcing through transparency and the transparency agenda. It really is no good the noble Lord, Lord Wills, rewriting the history of the past 18 months. In fact, this has been a period of real progress in transparency in government. He should have the decency to acknowledge it.

Lord Wills: If the Minister would actually listen to what I was saying-I would be delighted if that was the case. I would sit down happily. I am sitting here on the Back Benches. I have no need to sign up to the Front Bench position any more on anything. I sit here quite happily committed to greater transparency. If what the Minister had just said were the case I would sit down happily now, but it is not the case. The coalition agreement says greater transparency. All the Government are doing is carrying through what the previous Government had already put in place. That is the record. It is not rewriting history. It is there firmly on the record. All I asked the Minister to do at the end was to set a timescale-maybe next year, maybe two years or sometime this Parliament. Absolutely nothing he said suggests that he going to do anything in this Parliament to make sure that this Bill does not restrict the scope of the Freedom of Information Act. On that basis, with great reluctance, I am afraid I am going ask to test the opinion of the House.

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10.09 pm

Division on Amendment 199

Contents 17; Not-Contents 136.

Amendment 199 disagreed.

Division No. 3


Bassam of Brighton, L.
Beecham, L.
Bradley, L.
Collins of Highbury, L.
Crawley, B.
Dean of Thornton-le-Fylde, B.
Finlay of Llandaff, B.
Foulkes of Cumnock, L.
Kennedy of Southwark, L.
McAvoy, L.
McKenzie of Luton, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Tunnicliffe, L. [Teller]
Whitaker, B.
Wills, L. [Teller]
Young of Norwood Green, L.


Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Ballyedmond, L.
Barker, B.
Best, L.
Black of Brentwood, L.
Blencathra, L.
Boswell of Aynho, L.
Bridgeman, V.
Brinton, B.
Brooke of Sutton Mandeville, L.
Browne of Belmont, L.
Browning, B.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Cathcart, E.
Chalker of Wallasey, B.
Colville of Culross, V.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Craigavon, V.
De Mauley, L.
Deben, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Eaton, B.
Eden of Winton, L.
Empey, L.
Falkner of Margravine, B.
Flight, L.
Fookes, B.
Fowler, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
German, L.
Glendonbrook, L.
Gold, L.
Goodlad, L.
Greaves, L.
Grey-Thompson, B.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Hill of Oareford, L.
Hooper, B.
Howell of Guildford, L.
Hussain, L.
Hussein-Ece, B.
Inglewood, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Loomba, L.
Lucas, L.
McNally, L.
Maddock, B.
Mancroft, L.
Maples, L.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Montrose, D.
Morris of Bolton, B.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Palmer of Childs Hill, L.
Parminter, B.
Perry of Southwark, B.
Phillips of Sudbury, L.
Popat, L.
Randerson, B.
Rawlings, B.
Reay, L.
Rennard, L.
Ribeiro, L.
Risby, L.
Roberts of Llandudno, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.

10 Oct 2011 : Column 1457

Selkirk of Douglas, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sheikh, L.
Shipley, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Stedman-Scott, B.
Stephen, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tope, L.
True, L.
Tugendhat, L.
Tyler, L.
Verma, B.
Wakefield, Bp.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Wasserman, L.
Wei, L.
Wheatcroft, B.
Wigley, L.
Wilcox, B.
Younger of Leckie, V.
10.21 pm

Amendments 200 and 201 not moved.

Clause 75 : List of assets of community value

Amendment 201A

Moved by Lord Brooke of Sutton Mandeville

201A: Clause 75, page 63, line 33, after second "land" insert "(except land where privately owned), assets, services and facilities in its area that are currently"

Lord Brooke of Sutton Mandeville: My Lords, this is the first time in my parliamentary life that I have found myself moving two initial amendments to be followed by 19 government ones, which in turn secrete in their midst a single Cross-Bench one, to be moved by the highly experienced noble Lord, Lord Cameron of Dillington. I am also conscious that when today's business started, this group of amendments was the haven towards which the Government were sailing.

I am moving my two amendments on behalf of the British Retail Consortium, the BRC, which supports in principle greater localism in decision-making and welcomes the Localism Bill. It has been active throughout the Bill's passage and has supported the Government's focus on facilitating greater business participation within the decentralisation process. Although significant improvements have been made, though, there are still areas of substantial concern for retailers that, if left unresolved, will increase uncertainty for business and could reduce the potential for economic growth.

Your Lordships' House will be familiar with the state of retail markets at present. Although my only home is now in rural Wiltshire, only a blind man could miss the effects of a struggling economy on the nation's high street. In the eyes of the BRC, the clauses covering the community right to buy have the potential to distort markets for property and land, as well as having unintended consequences on the performance of businesses impacted by assets being placed on a statutory list. I am using this more clumsy definition because listed buildings, or listed assets, have another, more specific definition.

The BRC is calling for maximum certainty about what is and is not a "community asset". In its view, there should be a clear national framework within which local decisions are taken. It is calling for minimum uncertainty for current owners and would-be investors. Assets such as undeveloped land and buildings, or

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assets with only potential future community value, should be excluded. The BRC is also seeking full and genuine opportunities for businesses to be consulted and listened to during the development of this legislation and when the listing process is established.

In short, the BRC is seeking amendments to the Bill to help provide clarity as to what "community value" may encompass and to ensure that potential building usage and undeveloped land are excluded. To this end, I hope that Amendment 201A is self-explanatory.

I realise that Amendment 202A may also be inelegant and clumsy, but its purpose is to avoid distorting markets for property and land and the legendary incidence of the law of unintended consequences and to protect the proper behaviour of markets-that is, to accelerate economic growth. I understand and concur with the Government in their emphasis on growth in their planning arguments but sauce for the goose is also sauce for the gander, and attention should be paid to business interests in their analysis of what will happen if the legislation serves in any way to impede economic growth taking place at this time. I beg to move.

Baroness Hanham: My Lords, I apologise at this time of night, but I am going to take a little time both in responding to the first amendment and in going through the amendments that are down in my name.

In Committee we discussed a lot the concerns of noble Lords in relation to some aspects of the provisions within these clauses, and I agreed to take those away and consider them further. I do not think that the noble Lords were on the whole opposed to the principles of the provisions; they were just concerned about the implementation.

There were particular concerns that the provisions could act as a disincentive to landowners who are currently making their land available for community use, and could impact on their ability to dispose of their land to family members or through inheritance. There were also concerns that the provisions could have a detrimental impact on the sale of going-concern businesses, and that the provisions were open to vexatious nominations from individuals with no real desire or ability to purchase the asset in question. There were also calls for greater certainty to be put on the face of the Bill regarding the definition of an asset of community value and the length of the moratorium periods.

We have been working over the Summer Recess with interested parties to address these concerns, and I am therefore going to beg to move a series of amendments that will provide greater certainty and clarity and will minimise any unintended consequences. As I said, I hope the House will forgive me for taking a little time to go through these.

As for the amendments proposed by the noble Lord, Lord Brooke, I say now that I do not think that the response I have got is adequate, and I am hoping that by the time I get to the end of what I am saying the Box will have provided an answer for me. If not, I am going to have to write to him.

In summary, these amendments will place a definition of community asset on the face of the Bill; clarify that individuals will not be able to nominate assets to go on the list; set out a number of exempted disposals,

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including transfers of land within families and by inheritance, and business-to-business going-concern sales; put the length of the moratorium periods on to the face of the Bill; and remove various delegated powers.

We placed in the Library a policy statement which we sent to everybody on 8 September and which explains these amendments and sets out our thinking about the content of the regulations in more detail.

Perhaps I may pass over the amendments of the noble Lord, Lord Brooke, for the moment. I hope that I get an answer that is nearer to what he was dealing with than the one that I have at the moment. I hope he will forgive me for that.

I turn to the government amendments. Amendments 202B and 202F place a definition of asset of community value on the face of the Bill. A building or other land is to be defined as an asset of community value if the following requirements are met: first, if its actual current use furthers the social well-being and interests of the local community, or a use in the recent past has done so; secondly, that that use is not an ancillary one, such as where farmland is used for the annual village bonfire; and thirdly, it is realistic to think that there will be a use which furthers social well-being in the future, whether or not this is exactly the same as existing use. This means that for an asset which already furthers social well-being or interest, it must be realistic that it will continue to do so. And for one which did so in the recent past, it must be realistic to think that there will be community use again within the next five years-and that is the period for which a listing would last.

Amendment 202F clarifies that social interests can include cultural, recreational and sporting interests. Each local authority operating the scheme will refer to this definition when deciding whether a building or other land should be listed as an asset of community value, and in the light of these amendments we are proposing to remove, through Amendment 202E, the power for the Government to set out matters that local authorities must take into account in deciding whether a nominated asset should be listed. These amendments are in line not only with concerns that noble Lords have raised but, importantly, with the results of our recent consultation exercise, in which 80 per cent of respondents agreed that local authorities should have the power to decide what constitutes an asset of community value based on a broad definition and the list of exclusions.

10.30 pm

I also remind the House that we intend to exclude residential premises and associated land from listing unless it is integral to an asset such as a pub or a shop. We will also exclude land of operational use, such as major transport networks. That will be set out in regulations. In light of what the Government have brought forward, I hope my noble friend Lord Brooke will be content to withdraw his amendment when I get around to it.

Amendments 202G to 202K move on to the nominations process. It is important that the list of assets of community value reflects the buildings and land that the community

10 Oct 2011 : Column 1460

itself recognises as benefiting its social well-being. We want to ensure that those nominating an asset for listing do so on behalf of their community, rather than on an individual's whim. Therefore, we have tabled government Amendments 202G, 202H and 202J, which will clarify Clause 77. They replace a delegated power with a provision in the Bill, which states that only voluntary or community bodies with a local connection will be eligible to make community nominations, in addition to parish councils in England and community councils in Wales. There will be a need to define these terms to ensure that eligibility is restricted only to local groups who are concerned with the social well-being of the neighbourhood. Therefore, Amendment 202K will extend the existing delegated power in Clause 77(4) to define "voluntary or community body" and provide conditions to be met to demonstrate local connections in regulations.

I come to Amendments 202L, 203 and 203A to 203C. Amendment 203 removes the power to make regulations in Clause 79(5) on the giving of written notice of an asset's inclusion on or removal from the list, including how to do so when the local authority does not have a name or address. Amendment 202L provides, instead, that where it does not appear "reasonably practicable" for the local authority to give the written notice, it must take reasonable alternative steps to bring the notice to the person's attention. Amendment 203B removes the power to make regulations in Clause 81(4) on the form and content of the list of unsuccessful community nominations. Instead we will make clear with Amendment 203A that local authorities may remove an unsuccessfully nominated asset from the list after five years if they so wish. While it is on the list of unsuccessful assets, the entry must give reasons for it not being included as an asset of community value. Amendment 203C removes the power in Clause 82(2) to make regulations on how the lists of community assets and unsuccessfully nominated assets are published without any replacement provisions. Removing these delegated powers will provide more certainty about how the scheme will operate and recognises that local authorities do not need prescription from central government.

Turning to Amendments 203D and 203H, in Committee I indicated the types of disposals that we intended to exempt from these provisions, including business-to-business transactions where the existing business is sold as a going concern and the disposal of listed land that forms part of a larger estate. The purpose of these amendments is to ensure that the provisions do not act as a disincentive to landowners who already offer their land for the use of the community, in that they do not have an adverse impact on thriving business.

Amendment 203D sets out some of the exempt relevant disposals in the Bill. These are: disposals made as a gift; disposals made due to the inheritance of the land; disposals between members of the same family-the definition of "family member" that we are proposing is set out in Amendment 203H; disposals where only part of the land has been listed as an asset of community value; disposals of businesses as a going concern; disposals occasioned by the resignation

10 Oct 2011 : Column 1461

or death of a partner in a firm of trustees of a trust; and transfers between trustees, a trust and a settler, and between a trust and a beneficiary.

We are retaining the power to specify further exempt disposals in regulations, and we intend to add further detail in regulations with regard to disposals of part-listed land. We will continue to work with key interested parties to develop the contents of the regulations. A full list of the exemptions that we propose to make through regulations is contained in a policy statement which I laid in the House Library on 8 September. In developing this list we have listened to the views of interested parties and those who responded to consultation.

Amendments 203E to 203G and Amendment 203J set out the timeframes that will apply, and offer reassurance that they cannot be changed except by further primary legislation. A number of noble Lords have made a strong case, both inside and outside the Chamber, for the value of certainty in relation to the length of these periods. Therefore, we propose to set the following moratorium periods: six weeks for the interim period during which a community group can decide to trigger the full moratorium; six months for the full period of the moratorium; and 18 months for the protected period during which property owners can sell the asset without being subject to another moratorium. These periods will all run from the date on which the local authority is notified of the intention to sell a listed asset.

In the public consultation there was a clear consensus for an interim moratorium of six weeks and a protected period of 18 months. In addition, just over half of those who responded supported a full moratorium period of at least six months. We have heard compelling evidence from the voluntary and community sector that six months is the minimum realistic time needed to raise funding and to put a business case together in order to make a bid. In addition, Amendment 203J removes the delegated power to prescribe moratorium lengths in regulations. I hope noble Lords will recognise that we have taken the necessary steps to address concerns raised at Report, and that the amendments we have proposed provide greater clarity with regard to these provisions. I hope, therefore, that noble Lords will feel free to support them.

If I may, I can now respond to the noble Lord, Lord Brooke. The definition in Amendments 202B to 202F sets out that the asset must already be of a community value, currently, or in the recent past. The reference to potential use is to allow community groups to develop options for future use of such buildings. The definition covers only social interest and well-being. It does not include economic considerations. We have also sought to exempt business-to-business going-concern disposals. I hope that answers the noble Lord's concerns-I think he was talking about land that was also owned by business and clearly there, unless the asset is or has been assessed as being of community value, it would be excluded.

I expect that the noble Lord, Lord Cameron, will want to speak to his amendment, Amendment 203ZA, before we move on to the debate.

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Lord Cameron of Dillington: My Lords, I rise to speak to my Amendment 203ZA and to ask one or two questions about the Government's new amendments and proposals. However, before doing so, I should like to thank the Government for listening to the debate and to the concerns of this House in Committee, and for listing to the numerous comments they have received from outside bodies. In particular, I thank the noble Baroness for her understanding and flexibility throughout all this. While I am not totally satisfied with what we have now, it is fair to say that we can work within the rules that she has set out. I still think that the red tape is a good example of what all Governments do, which is to go over the top. However, the Government having moved so far and the fact that we have had extensive debates, we-or certainly I-will accept where we are now.

My amendment is designed to pre-empt the regulations that, I gather, will give the landowner only 28 days to appeal for a review of the nomination of his or her asset. This is a short period in which to prepare a case and supply the necessary evidence. Such haste is not warranted because such a review will probably take place at a time when the assets are nominated rather than when an asset is about to be sold. Therefore, there is unlikely to be any real urgency at this time.

More importantly, the asset is actually on the list until it is taken off and the community's interests therefore remain protected during any pause, and thus a delay is to the community's advantage and not the landowner's. It is therefore right that the latter should have more time to prepare their case for appeal. In my amendment I have suggested a period of 60 days. I hope that the Government can agree with me.

I have three questions on the proposals put forward by the noble Baroness-actually, my third question relates not to those proposals but to part of this chapter. My first question relates to Amendment 202H on nominations from voluntary or community bodies with a local connection. I am concerned about the use of this provision and the possibility of vexatious claims, nominations and proposals. There need to be firm rules to prevent them. I realise that these rules will, I hope, be forthcoming in the intended regulations, but I was hoping for some indication of the Government's thinking at this stage. How longstanding does a group have to be before it can put forward a nomination? How many people have to be involved? Is there a percentage of the population of the community who must be involved? Do they have to be registered as charities, or if they are sports organisations or other clubs, do they have to be affiliated to a regional or national body? What is to stop a husband and wife or two neighbours forming the "Ambridge Tiddlywinks Society" today and trying to register a piece of land tomorrow? I hope that the Minister can provide helpful words of wisdom on that.

As to my second question, what is the reason for the Government requiring lists of unsuccessful nominations? I am not complaining about that but I want the reasons to be spelt out for me. Is it to put that land definitively beyond the reach of any community group and to make that knowledge public, or is it to announce to the world that this land nearly made it

10 Oct 2011 : Column 1463

and maybe next time, with a bit of careful rewording, it will make it? If, as I hope, the latter is not the case, why remove the nomination from the failed list after a period of five years, as opposed to there having to be a change of circumstances involved-which would seem to be a much better way forward?

Finally, I refer to Clause 80(6)(d), which states that regulations will provide for appeals against an adverse review of a decision to nominate an asset. As I understand it-I am not sure that this remains the case, but I have seen it somewhere-the appeal will be judged by the same council that carried out the review in the first place. This must be wrong. Everyone knows that whenever possible a local council, or for that matter any other body, will favour its own team against an outsider. Would the Government be prepared to rethink that proposal? Would they be prepared to consider an independent outside body to look at such further appeals against a decision on review, and to state now clearly on the Floor of the House that the regulations will affirm that?

10.45 pm

Lord Gardiner of Kimble: My Lords, concerns about the unintended consequences of the assets of community value provisions were raised at Second Reading and in Committee. Indeed, my noble friend Lord Cathcart and I tabled amendments because of our concern. Therefore, I thank the Minister very much for her understanding and determination to ensure that the Bill hit the right target in bringing forward the Government's amendments tonight.

I also include in my acknowledgement and appreciation of the work undertaken the Bill team and, indeed, outside bodies such as the Country Land and Business Association for securing practical solutions. The common objective that we all share is vibrant communities for the future and I hope that the Bill as amended will help to fulfil that aspiration.

Lord Greaves: My Lords, I thank the Government for listening to the debate on this matter in Committee and for coming forward with amendments which, by and large, are very sensible. I particularly appreciate their picking up the ancillary use point that I raised in an amendment, a great deal of which makes sense. Furthermore, I think that we all owe a debt to the noble Lord, Lord Cameron of Dillington, for the hard work that he put into this part of the Bill-not least because it meant that we could leave it to him and concentrate on other parts of the Bill.

Lord Kennedy of Southwark: My Lords, we have had an interesting debate at this late hour on this group of amendments. I can offer the Government some measure of support tonight, as there is lots to welcome in their proposals here, and they have clearly listened to the concerns expressed in the House.

The origin of some of the proposals can, of course, be found in the previous Administration. Amendment 201A, moved by the noble Lord, Lord Brooke of Sutton Mandeville, is not an amendment that we on these Benches can support, although his Amendment 202A , requiring the Secretary of State to publish criteria by which an asset must be assessed in

10 Oct 2011 : Column 1464

order to be defined as being of community value, could be of some merit, as is the proposal from the noble Lord, Lord Cameron of Dillington.

Baroness Hanham: My Lords, I am extremely grateful for the more or less general support for what we have done, and, in my turn, I thank all those who have diligently attended meetings-not only the noble Lord, Lord Cameron, but my noble friends Lord Gardiner, Lord Cathcart and Lord Howard of Rising. I fear that I may have forgotten someone but there have been great consultations, mostly over the summer, and I am very grateful for the time that noble Lords have put in to ensure that these provisions do not have the unintended consequences that were anticipated.

The noble Lord, Lord Cameron, was the only person to pose questions and perhaps I may turn to those. His amendment would give landowners 60 days to request the local authority to carry out an internal review of its decision to list an asset. We are now going to move from 28 days to six weeks, which is a bit longer, but we think that that will give a landowner time to decide whether he needs to appeal the decision. The details of the procedures for carrying out an internal review, including who can do it, will, I am afraid, be in regulations. I am sure that we will have an opportunity to talk about this further before then, but it is anticipated that that is what will happen.

The process will be that the landowner will first be contacted by the local authority if the land has been nominated by a community group. Therefore, in practice, landowners will have been aware of the process well before they receive the formal notice of the local authority's decision. Once a review has been requested, it is proposed that the local authority will have six weeks to conduct the review. We also intend to provide in the regulations that, if a local authority and the landowner agree, this period can be extended. Therefore, I think that flexibility is built into that system.

I was also asked who can nominate an asset and about the voluntary and community body. Conditions will be set out in the regulations to demonstrate a local connection. The intention is to ensure that such groups are genuinely concerned with the social well-being benefit of their community and that they are based in the relevant community or neighbourhood. This may include unincorporated groups, so as to allow groups that have recently been set up to help save an asset. There are many examples that have already taken place where people have set up a group to try to save their pub or an asset. We know that that can and has happened. We do not feel that we ought to stand in the way of such groups. However, we will look to see whether we need to place stricter requirements on them as to whether they need to be incorporated or recognised, very much as the noble Lord has said. I will come back to him on that as we make those regulations.

I am extremely grateful to all those who have given their time to do this. I hope that we have more or less answered their concerns. I know you can never be 100 per cent sure-there is bound to be somebody round about who does not think we have quite gone far enough-but I think we have addressed all of the concerns that were raised.

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Lord Brooke of Sutton Mandeville: My Lords, if I may say a word at the close of this debate, having moved the original amendment that stimulated the admirable speech by my noble friend the Minister, I think that I am right in saying that I put down my amendments either just before or at the same time as those of my noble friend the Minister. Therefore, my amendments did not take into account the amendments that the Government were putting down. However, I join everybody else in congratulating my noble friend on and thanking her for the admirable series of amendments that the Government have provided.

As to what my noble friend very kindly said in response to my own amendments this evening-on which the whole debate was in the end hung-I will of course read her response and compare notes with the British Retail Consortium. I do not expect there will be a need to come back to this matter at Third Reading, but nevertheless I reserve the possibility after I have had those conversations. I am most grateful for all the contributions made in this short debate. I am sure everyone will be delighted when I sit down. I beg leave to withdraw my amendment.

Amendment 201A withdrawn.

Amendments 202 and 202A not moved.

Clause 76 : Land of community value

Amendments 202B to 202F

Moved by Baroness Hanham

202B: Clause 76, page 64, line 23, leave out from "Chapter" to end of line 26 and insert "but subject to regulations under subsection (2), a building or other land in a local authority's area is land of community value if in the opinion of the authority-

(a) an actual current use of the building or other land that is not an ancillary use furthers the social wellbeing or social interests of the local community, and

(b) it is realistic to think that there can continue to be non-ancillary use of the building or other land which will further (whether or not in the same way) the social wellbeing or social interests of the local community.

(1A) For the purposes of this Chapter but subject to regulations under subsection (2), a building or other land in a local authority's area that is not land of community value as a result of subsection (1) is land of community value if in the opinion of the local authority-

(a) there is a time in the recent past when an actual use of the building or other land that was not an ancillary use furthered the social wellbeing or interests of the local community, and

(b) it is realistic to think that there is a time in the next five years when there could be non-ancillary use of the building or other land that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community.

(2) The appropriate authority may by regulations-"

202C: Clause 76, page 64, line 27, leave out from "that" to "a" in line 28

202D: Clause 76, page 64, line 31, leave out from "that" to first "a" in line 32

202E: Clause 76, page 64, line 36, leave out paragraph (c)

202F: Clause 76, page 65, line 9, at end insert-

""social interests" includes (in particular) each of the following-

10 Oct 2011 : Column 1466

(a) cultural interests;

(b) recreational interests;

(c) sporting interests;"

Amendments 202B to 202F agreed.

Clause 77 : Procedure for including land in list

Amendments 202G to 202K

Moved by Baroness Hanham

202G: Clause 77, page 65, line 15, after "value" insert "only"

202H: Clause 77, page 65, line 27, leave out from "person" to end of line 28 and insert "that is a voluntary or community body with a local connection."

202J: Clause 77, page 65, line 32, leave out paragraph (b)

202K: Clause 77, page 65, line 33, at end insert-

"(za) the meaning in subsection (2)(b)(iii) of "voluntary or community body";

(zb) the conditions that have to be met for a person to have a local connection for the purposes of subsection (2)(b)(iii);"

Amendments 202G to 202K agreed.

Clause 79 : Notice of inclusion or removal

Amendments 202L and 203

Moved by Baroness Hanham

202L: Clause 79, page 66, line 25, at end insert-

"but where it appears to the authority that it is not reasonably practicable to give a notice under this subsection to a person to whom it is required to be given, the authority must instead take reasonable alternative steps for the purpose of bringing the notice to the person's attention."

203: Clause 79, page 66, line 33, leave out subsection (5)

Amendments 202L and 203 agreed.

Clause 80 : Review of decision to include land in list

Amendment 203ZA not moved.

Clause 81 : List of land nominated by unsuccessful community nominations

Amendments 203A and 203B

Moved by Baroness Hanham

203A: Clause 81, page 67, line 41, after "land" insert "-

(a) may (but need not) be removed from the list by the authority after it has been in the list for 5 years, and

(b) while it is in the list,"

203B: Clause 81, page 68, line 1, leave out subsection (4)

Amendments 203A and 203B agreed.

Clause 82 : Publication and inspection of lists

Amendment 203C

Moved by Baroness Hanham

203C: Clause 82, page 68, line 24, leave out subsection (2)

Amendment 203C agreed.

10 Oct 2011 : Column 1467

Clause 83 : Moratorium

Amendments 203D to 203J

Moved by Baroness Hanham

203D: Clause 83, page 69, line 15, after "land" insert "-

(a) if the disposal is by way of gift (including a gift to trustees of any trusts by way of settlement upon the trusts),

(b) if the disposal is by personal representatives of a deceased person in satisfaction of an entitlement under the will, or on the intestacy, of the deceased person,

(c) if the disposal is by personal representatives of a deceased person in order to raise money to-

(i) pay debts of the deceased person,

(ii) pay taxes,

(iii) pay costs of administering the deceased person's estate, or

(iv) pay pecuniary legacies or satisfy some other entitlement under the will, or on the intestacy, of the deceased person,

(d) if the person, or one of the persons, making the disposal is a member of the family of the person, or one of the persons, to whom the disposal is made,

(e) if the disposal is a part-listed disposal of a description specified in regulations made by the appropriate national authority, and for this purpose "part-listed disposal" means a disposal of an estate in land-

(i) part of which is land included in a local authority's list of assets of community value, and

(ii) part of which is land not included in any local authority's list of assets of community value,

(f) if the disposal is of an estate in land on which a business is carried on and is at the same time, and to the same

10 Oct 2011 : Column 1468

person, as a disposal of that business as a going concern,

(g) if the disposal is occasioned by a person ceasing to be, or becoming, a trustee,

(h) if the disposal is by trustees of any trusts-

(i) in satisfaction of an entitlement under the trusts, or

(ii) in exercise of a power conferred by the trusts to re-settle trust property on other trusts,

(i) if the disposal is occasioned by a person ceasing to be, or becoming, a partner in a partnership, or

(j) "

203E: Clause 83, page 69, line 21, leave out "prescribed period" and insert "six months"

203F: Clause 83, page 69, line 24, leave out "prescribed period" and insert "six weeks"

203G: Clause 83, page 69, line 28, leave out "prescribed period" and insert "eighteen months"

203H: Clause 83, page 69, line 29, at end insert-

"(6A) For the purposes of subsection (5)(d), a person ("M") is a member of the family of another person if M is-

(a) that other person's spouse or civil partner, or

(b) a lineal descendant of a grandparent of that other person.

(6B) For the purposes of subsection (6A)(b) a relationship by marriage or civil partnership is to be treated as a relationship by blood."

203J: Clause 83, page 69, line 30, leave out subsection (7)

Amendments 203D to 203J agreed.

Consideration on Report adjourned.

House adjourned at 10.54 pm.

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