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Smith of Basildon, B.
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Stevenson of Balmacara, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Thornton, B.
Touhig, L.
Tunnicliffe, L. [Teller]
Wakefield, Bp.
Wall of New Barnet, B.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wheeler, B.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Young of Norwood Green, L.
Young of Old Scone, B.
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Addington, L.
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Anelay of St Johns, B. [Teller]
Arran, E.
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6.05 pm
Clause 97 : Abolition of regional strategies
Baroness Hanham: The Bill currently provides for the revocation of the eight existing regional strategies outside London and any remaining county structure plan policies saved as part of the transitional arrangements following the Planning and Compulsory Purchase Act 2004.
Government Amendments 203M, 203N, 203P and 203Q provide the Secretary of State with the power to revoke the existing regional strategies and saved county structure plan policies by a free-standing order-making power. Amendments 203S, 203T, 248ZD, 248ZF, 248ZG, 248ZH, 248ZJ, 248ZK and 249F are consequential amendments. These are largely technical amendments that will provide the Secretary of State and Parliament with an opportunity to consider the environmental assessments of the revocations that we are undertaking before decisions are made on whether to revoke the existing regional strategies and remaining saved structure plan policies.
The Government intend to lay orders in Parliament revoking the existing regional strategies and saved structure plan policies as soon as possible after Royal Assent of the Bill, subject to the outcome of the environmental assessment process. In the mean time, councils should press ahead in preparing up-to-date
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Amendment 204E is a technical amendment that closes a loophole to ensure that the local plan meets the statutory requirements and is sound. This is an important amendment, otherwise councils could adopt a local plan without complying with the duty to co-operate. I beg to move.
Lord Beecham: My Lords, I was taken with the Minister's venture into the area of astrology earlier. However, I think she called herself a "Librarian". I think a librarian is someone who works in a library. I think she meant "Libran", which is rather different. I hope she will forgive me if I assume the role of a scorpion when we look at this amendment, as Scorpio is my astrological sign.
I am slightly puzzled by the explanatory letter that the noble Baroness circulated a couple of days ago. Perhaps, in her reply, she will be kind enough to elucidate it further because the letter refers to,
I am not sure what that means. Are only the environmental aspects of regional strategies being assessed? Could she explain how the process of assessment is taking place? The letter also says that this is on a "voluntary basis", which I take to mean that it is a non-statutory exercise and that the Government will be consulting on these documents shortly. I do not know whether those documents are yet available or, if so, where they might be obtained, but I would also be grateful if she could indicate the nature of the consultative process. For example, we now have local enterprise partnerships, so will those partnerships be consulted? I assume local authorities will be, but one could also assume that those partnerships would be involved in all that.
Like other Members of your Lordships' House, I regret the demise of all the regional development agencies, although I accept that in some areas they were not particularly effective or popular. However, I suspect that we may see, just as in health, the quiet restoration of something rather similar-perhaps more at the sub-regional level, but no doubt under another name. I hope that the Minister will be able to confirm that that approach of looking at sub-regions will be part of this assessment and will also take note of some of the other developments in policy over the past few months; for example, the creation of enterprise zones and the operation, such as it has been, of the regional growth fund. These matters are clearly relevant to the planning regime, but it is not clear whether and to what extent they will be part of this assessment.
This group also refers to the position of transitional arrangements. The noble Lord, Lord Best, will no doubt be speaking about that, and I do not want to anticipate what he will say, but I strongly support the terms of his amendment because there is a considerable danger of a gap which would create difficulties in the
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Lord McKenzie of Luton: My Lords, like my noble friend I was puzzled by this group of amendments, and I hope the Minister can help us on a range of points. This seems a further twist in the saga of regional spatial strategies. The Secretary of State sought to do this by diktat and was ruled out of order, then it was provided for in the Bill before us and now, according to the letter from the Minister to which my noble friend Lord Beecham referred, by a stand-alone order-making power. Along the way, the Government seem to have determined voluntarily that they wish to undertake an environmental assessment of the revocation of the regional strategies and the structure plan policy, so it is the process of revocation which is the subject of that assessment.
Can we hear a little more from the Minister about how this all came about? At what point was the decision taken to undertake an environmental assessment of the proposed actions? Who is conducting the assessment and what are its precise terms of reference? How long is it expected to take? What is the status of local development frameworks in the interim? Can the Minister explain how this fits together with the NPPF and, in particular, the presumption in favour of sustainable development? We know that there are local plans which, together with existing regional spatial strategies are, one might say, complete one day but not the next, unless the transition provisions are put in place. The statement that we want to do away with regional spatial strategies as soon as possible and then the caveat about "subject to the sustainability assessments" smacks a little of predetermination rather than predisposition. Does this hold out the prospect of some regional spatial strategies being revoked and others not? If so, how does this all fit together? Is there not a risk that all this just creates further uncertainties in the planning world? Will the order be subject to the affirmative or negative arrangements? The Minister may say that this is all code for having some fairly loose transitional provisions, but this seems a rather strange set of amendments. Like my noble friend, I would greatly appreciate some further explanations.
6.15 pm
Baroness Andrews: Perhaps I can buy the Minister some time while she looks at her notes by asking another question about the nature of the order. Why is an order necessary? Does this help to deal with the issues we raised in Committee about transitional arrangements that would have involved saving part of the regional strategies where they were relevant to the LDFs, so that local authorities would not have to repeat all the work that went into making that part of whatever strategy had been located in the regional strategy? If so, it would be very welcome.
Baroness Hanham: In reply to the noble Baroness's question, the noble Lord, Lord Best, has an amendment on transitional arrangements that we will get to later, so perhaps we can deal with that when we get to it.
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I will answer as many questions as I can and then, if the noble Lord will forgive me, I will write on those I have not answered. The public consultation is 12 weeks. Local enterprise partnerships will be able to respond if they wish. They are not required to, but they will be consulted as one of the organisations that will be expected to have an interest. It is an environmental assessment from the regional strategies, exactly as it says it is. Initially, if there is a major objection with one strategy that has to be looked at under the environmental assessment, it will not be able to go forward in a bulk order. At the moment, the expectation is that that order will come forward separately or they might all come forward on the same day. It is the negative process at the moment.
The intention is to revoke the regional strategies and all eight strategies as soon as possible after Royal Assent to stop muddle of any sort occurring. We can do it separately or together. The face of the noble Lord, Lord Beecham, always delights me because it is so revealing. I know when I am saying something he does not agree with. The provisions are simply to make sure that those orders can be revoked. The local development frameworks still have to conform to the regional spatial strategies until they are revoked. Anything in them that is required, even if they are developing them at the moment, will have to be taken into account.
I did not pick up all the questions asked by the noble Lord, Lord Beecham. I will make sure that he gets an answer. He has the puzzled look of one who is going to ask me again.
Lord Beecham: I congratulate the Minister on her anticipation. Am I right in thinking therefore that although an environmental assessment is being undertaken, upon which there will be a consultation, the revocations will go ahead anyway?
Baroness Hanham: I did not say that. I said that they will be put forward as soon as possible after Royal Assent. The consultation on the environmental assessment is taking place. You cannot do anything without having taken account of the consultation, so the revocations will be only after the consultation has been considered.
Lord McKenzie of Luton: I am sorry to ask the Minister again, but I think it is important we get to the bottom of this. Can she tell us why there is this change in approach? This was not the original plan, was it? If it was, this group of amendments would not be necessary. How does the presumption in favour of sustainable development work in the interim? For so long as those local plans and the regional spatial strategies which support them are in place, will they hold sway? That will obviously change the minute the plug is pulled, if it is, on the regional spatial strategies. I am interested to understand why and at what point it was decided to undertake these environmental assessments. Can the Minister confirm that what is being assessed is the consequence of the revocation of those strategies? It seems a fairly significant change in where we all thought we were heading and did not want to head.
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Baroness Hanham: My Lords, I think I am right in saying that there was a legal challenge that required these environmental assessments to be carried out. It is a necessity to make sure that they are all carried forward properly. The noble Lord asked about the relevance to the presumption in favour of sustainable development. There will be no change to that until the local development frameworks are developed and the national planning framework comes in.
Lord McKenzie of Luton: If the noble Baroness would forgive me, I am trying to understand the status of the NPPF in the interim before-or if-these strategies are revoked. Where does that leave the presumption over that period? It seems from what she said that there has been a legal challenge which, essentially, has forced the Government to go down this route. I therefore presume that this is not just a cosmetic exercise but is real; and the consequence could be that some strategies might be revoked and others not. Is that right? It seems to me to leave an entirely chaotic situation. Does the Minister recognise that it could lead us into a situation which nobody has contemplated or to date recognised?
Baroness Hanham: My Lords, the national planning policy framework is being consulted upon and, once it is an approved document, it will be the document to which people will refer and will replace the regional strategies. The consultation on the environmental impact assessments is a consultation, as I have said, and we will need time to consider it. If all the orders can be dealt with at, or nearly, the same time, they will be. All I can say is that a consultation is a consultation and there are always results; you cannot ignore them so we will have to wait and see the response and the impact of it. I will not know that until the 12-week period is over and the consultation can be considered.
As for regional spatial strategies, their effect stays until they are revoked. The national planning policy framework will then either have been put forward just before that or very shortly afterwards. By that stage, anyway, it will be capable of being the primary document.
Lord McKenzie of Luton: I will not press the Minister again but, given what I think is a quite significant development, could I ask for the chance of discussions before Third Reading, so we fully understand all its ramifications?
Baroness Hanham: I am sorry that I have not succeeded in convincing the noble Lord but, yes, of course we are happy to discuss this issue further and we will make arrangements to do that.
Amendments 203N and 203P agreed.
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203Q: Clause 97, page 75, line 15, leave out subsections (3) and (4) and insert-
"(3) The Secretary of State may by order revoke the whole or any part of a regional strategy under Part 5 of that Act.
(3A) An order under subsection (3) may, in particular, revoke all of the regional strategies (or all of the remaining regional strategies) under Part 5 of that Act.
(3B) The Secretary of State may by order revoke the whole or any part of a direction under paragraph 1(3) of Schedule 8 to the Planning and Compulsory Purchase Act 2004 (directions preserving development plan policies) if and so far as it relates to a policy contained in a structure plan.
(3C) An order under subsection (3B) may, in particular, revoke all directions (or all remaining directions) under paragraph 1(3) of that Schedule so far as they relate to policies contained in structure plans."
The Lord Speaker (Baroness D'Souza): I must advise your Lordships that if Amendment 203Q is agreed to, then I cannot call Amendment 203R by reason of pre-emption.
Schedule 8 : Regional strategies: consequential amendments
203S: Schedule 8, page 315, line 36, leave out "omit paragraph (a)" and insert "in paragraph (a) after "situated" insert "(if there is a regional strategy for that region)".
203T: Schedule 8, page 316, line 31, at end insert-
"Local Democracy, Economic Development and Construction Act 2009 (c.20)17A In section 70(5) (which provides for how a regional strategy is to be interpreted) for "the regional strategy" insert "a regional strategy under this Part".
17B In section 82(2) (during the interim period, a regional strategy does not include the regional economic strategy) for the words after "For the purposes of that section," substitute "a regional strategy under this Part is to be regarded as consisting solely of the regional spatial strategy under section 1 of the Planning and Compulsory Purchase Act 2004 that subsisted for the region concerned immediately before 1 April 2010.""
Amendments 203S and 203T agreed.
Clause 98 : Duty to co-operate in relation to planning of sustainable development
203U: Clause 98, page 75, line 33, leave out "maximising" and insert "relation to the planning of sustainable development and to maximise"
Baroness Young of Old Scone: This amendment and those in the group tabled by my noble friend Lord Whitty and myself relate to the duty to co-operate. The importance of this duty is indubitable and there
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To give two examples: river basin management plans need to operate on a wider basis than a single authority and they are a statutory requirement under European law. Likewise, landscape scale biodiversity can often be resolved by two or more authorities working together. The Government's Natural Environment White Paper and the importance of landscape scale land management for conservation have already been outlined in the ecosystem assessment that the Government conducted. There are many reasons why it is really important, because this is now the only mechanism for strategic planning at a higher level than a single authority that this duty to co-operate works.
It is doubly important now because the national planning policy framework has no spatial element to it. It is simply a set of policies that do not refer to any particular part of land or the country. Since the regional spatial strategies are disappearing there must therefore be a stronger duty for adequate co-operation between local authorities.
The groups of amendments that the noble Lord, Lord Whitty, and I have tabled cover four points. Amendments 203U and 203W strengthen the wording within the duty to co-operate to ensure that co-operation is for the purpose of achieving sustainable development. The purpose of achieving sustainable development is in the heading, but not in the text of the Bill as it stands. It also tries to ensure that the duty to co-operate is linked with the sustainable development duty under Section 39 of the Planning and Compulsory Purchase Act, so that the two duties are carried out simultaneously and in a complementary way.
The second issue covered by this group of amendments to strengthen the duty to co-operate is to ensure that co-operation is consistent and complementary across administrative boundaries-Amendment 203V. The third issue is to make clear that this duty to co-operate should cover all development, not merely development that is sustainable. We seem to be falling into the trap both in this Bill and in the national planning policy framework of seeing "sustainable development" and "development" as almost interchangeable terms. Of course, they are not. If I had a pound for every development that I have argued against that was manifestly unsustainable, I would be an extremely rich woman. We should not just assume that the two are interchangeable terms.
To leave out, as is outlined in this group of amendments, "sustainable" in Clause 98 is to make sure that co-operation will be around all strategic developments whether they can truly be said to be sustainable or not. It is probably more important to have co-operation around the ones that are not sustainable. This interchangeability of the words is a worry in the way in which the Bill and the NPPF are pitched.
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The fourth area covered by this group of amendments is again to ensure that the whole issue of consultation and preparation of joint documents between authorities is not optional. Amendments 203ZA and 203ZB remove the word "considering" so that it does not become an optional process but becomes a requirement to consult on co-operative approaches and on local development documents in these important strategic issues that cover more than one authority. I beg to move.
6.30 pm
Lord Deben: My Lords, I have great sympathy with what the noble Baroness has put forward. However, we should be careful about putting the words "sustainable development" into every sentence. We are in a slight difficulty. As three or four authorities all have responsibility to do these things in the context of sustainable development, it is difficult to consult without doing it in those terms. Each individual consultee already has that responsibility and by the sound of what the Government are prepared to do will have that to an even greater extent. I would like to say to the Government that I hope they will be careful with the confetti element-every time there is a doubt add the words "sustainable development". I say that as someone who is much in favour of sustainable development.
Secondly, I agree with the noble Baroness, Lady Young, that sometimes in the document the word "development" has been used when we mean sustainable development. It is important for the Government to say again that on those occasions real care will be taken to make sure that we have that right.
Thirdly, I would like to repeat the view that one day we will be able to use the word "development" and automatically mean sustainable development. That is what we would like to see, but the noble Baroness is absolutely right that that is not where we are at the moment.
Fourthly, I suggest to the Minister that the idea of a localism Bill is for it to be local. I worry when those who have always been enthusiastic about central direction suggest that on this or that occasion people should be required to do things. Co-operation is something that you do because you want to or it is not co-operation. Otherwise, you may as well return to a situation in which people are bossed about. We are trying to create a world in which we are not bossed about.
I have just looked on my iPad at the advice given to me by yet another of the green organisations that are so helpful in giving me advice, but I notice that most of them are central organisations, which find it difficult to deal with the concept that associations between Norfolk and Suffolk, for example, might be conducted differently from those between Warwickshire and its neighbouring counties.
It is very simple. The point about localism is that it will be different. We think and do things differently in East Anglia. We do not include either Essex or Bedfordshire, which the previous Government did in their curious manner. We do things differently and we will do them together because we want to not because some superior person tells us that it is good for us.
I have to warn the noble Baroness, Lady Young, that that will mean that we will often do things that she will not like but that is because we want to do them
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In thinking about this, I hope that the Government will take on board the perfectly justifiable concern that we do not do things without sustainable development being close to our hearts and minds. That concern has not actually been helped by some of the statements by Ministers in circumstances that sometimes lead people astray. That was the phrase used by the noble Lord, Lord Shutt, earlier on. I thought that it was a good way of expressing it. There was a rueful look on the faces of the party opposite at the same time. They also know about party conferences. We understand that, but it means that we have a backlog to make up.
So we have to repeat the words, but we should not repeat them so that it becomes like motherhood and apple pie and means nothing. Let us also be careful that we do not trumpet localism and then suggest that the only way to get it is by telling people how to be local. We know how to be local: please let us do it.
Lord Newton of Braintree: My Lords, I congratulate my noble friend on showing signs of becoming the second free radical on the Government Benches in these matters. He is a better informed free radical than I am but I welcome his addition to the ranks. Secondly, I confirm, having connections with both counties, that Essex and Suffolk do not always do things in the same way. I will not judge which is best because I would be dead in one county or the other if I did, but they are certainly different.
Thirdly, I will show that I am an uninformed free radical on this occasion by saying that what is mystifying me, especially in the wake of the non-pressing of the amendment that appeared to be trying to define sustainability a few minutes ago is whether there is a definition of sustainability in the Bill. I cannot find it. If it is in the Bill, where is it? If it is not, what is it?
Lord Greaves: My Lords, my noble friend has missed a little of the discussion this afternoon. I have to confess that I always thought that Essex was in East Anglia and I claim to be a geographer. I stand corrected and I will never make that mistake again. All I know is that all those places in that easterly bulge in the country are deplorably flat.
The serious point that I want to make on these amendments is simply to lend my support to the point made by the noble Baroness, Lady Young of Old Scone, and the noble Lord, Lord Deben. It would be good for the Government to use "development" and "sustainable development" in a rather more rigorous manner and not confuse them with each other quite so much.
Lord McKenzie of Luton: My Lords, my noble friend Lady Young's amendments are entirely reasonable and I see the thrust of them, but I thought that they were about removing the term "sustainable" from provisions in the Bill and not adding it.
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On the duty to co-operate, the noble Lord, Lord Deben, makes an interesting point about knowing how to be local. However, to be local on a sustainable basis in some respects needs co-operation and engagement not only with near neighbours but on a broader front. Some of us have ongoing concerns about the demise of regional spatial strategies. They were not necessarily the answer to everything and were perhaps not perfect, but with those gone the only thing that exists between the regional strategies that were there hitherto and local authorities is this duty to co-operate.
It seems to me that there should be requirements on local authorities to co-operate. Part of the problem is knowing how extensive that co-operation would and should be-for example, on transport or waste issues. Unless there is recognition that this must be an integral part of the way forward, then I think this really is going to be a recipe for isolationism, that we are going to draw up the barriers around our little location, irrespective of what happens around us. As regards definitions of the eastern region, I can say as somebody who lives in Luton-long since known as the urban bottom of the county-that Luton and the rest of Bedfordshire do not always do things the same way. I must apologise-I have been referring to the noble Lord, Lord Gummer, and it should be Lord Deben. I do apologise. Thank you for that correction.
I hope that I have made my point. It seems to me that my noble friend is addressing the strength and importance of the duty to co-operate, and in that we support her.
Baroness Hanham: My Lords, I, too, am guilty of the terrible solecism of not referring to the noble Lord as Lord Deben. I have known him so long as John Gummer that Gummer naturally slipped out. None the less, I apologise.
Lord Deben: Perhaps my noble friend will allow me to say that one remembers the name when one remembers that Suffolk is not flat. I look down over the River Deben, and it is quite a long way down.
Baroness Hanham: Well, I did not make the point that it was flat. Never mind, we shall get around that.
I must say at the outset that we are committed to promoting sustainable development through the duty to co-operate. I do not want to take a confetti approach to sustainable development in every single sentence-as the noble Lord, Lord Deben, suggests we are doing-but to some extent I am going to have to in reply to this amendment.
We looked at Clause 98 in Committee to see whether there was scope to give sustainable development even more emphasis. The noble Lords, Lord Deben and Lord Newton, are concerned about the localism aspect, but there are clearly times when it is important that local authorities and others work together to ensure that there is a proper plan.
We have gone on to consider this matter carefully during the months since Committee, and Amendments 203U and 203W provide me with an opportunity to explain why I do not think further
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Councils are already required to promote sustainable development through the duty to co-operate. We have also made it clear in the title of Clause 98 that the duty relates to the planning of sustainable development, and we have put sustainable development at the heart of the strategic matters on which we expect councils and other public bodies to co-operate in preparing local and marine plans.
I hope that my description of the duty to co-operate and its relationship to the wider duty in Section 39 of the 2004 Act illustrates why we do not need to amend this Bill. We believe this policy is a more appropriate way to emphasise the important role of the duty to co-operate in promoting sustainable development, and we will consider further, as part of the consultation responses on the National Planning Policy Framework, whether that is necessary. We shall also consider whether it would be helpful to emphasise the importance of sustainable development in any guidance that the Secretary of State issues on the duty.
I understand that Amendments 203X, 203Y and 203Z are intended to ensure that co-operation between councils and other public bodies is not limited to co-operation on sustainable-and I put that in inverted commas-development. The key issue here is that the duty applies to the preparation of local plans and where they relate to strategic cross-boundary matters. Local plans will set out policies for the sustainable development and use of land.
As I said earlier, councils and other bodies covered by the duty will already have to work jointly on local plans, with the objective of contributing to the achievement of sustainable development. Given these requirements, we do not consider that Amendments 203X, 203Y and 203Z are necessary. However, we shall consider whether this needs to be addressed in guidance issued subsequently on the duty to co-operate.
6.45 pm
Amendments 203ZA and 203ZB would provide more prescription regarding the engagement that is required between councils and other public bodies under the duty to co-operate. We agree that the duty must be effective. That is why this has already been strengthened during the Commons stages, and we have worked closely on this with external experts such as the Royal Town Planning Institute. I do not think we are going to want to up that any more; this has already been done as a result of the Commons' intervention.
Strategic planning is not-and I think other noble Lords have suggested this-a one-size-fits-all approach. It is now localised. It needs to be flexible, allowing
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The further Amendment 203V adds detail to the description of engagement required under the duty. We have looked at this text carefully, but do not think that it adds to the clause in drafting terms and have concluded that it is not necessary on the face of the Bill.
If I could amplify how extensive this duty should be, the draft national planning policy framework sets out the strategic priorities that we expect councils to address in local plans, working cross-boundary and with other public bodies. The issues include housing, economic development, environmental protection, climate change and infrastructure, which of course will deal with the transport matters that the noble Lord, Lord McKenzie, referred to.
So, with the explanation that in fact most of this is either already in or has been strengthened since coming from the other place, I hope the noble Baroness will feel able to withdraw her amendment.
Baroness Young of Old Scone: I would like to thank the Minister for her words, and to thank the noble Lord, Lord Greaves, for his support for my worries about "sustainable" being tacked on to every use of the word "development". I would also like to thank the noble Lord, Lord Deben, though I must admit I agree with him on the fact that Amendments 203X, 203Y and 203Z should not have "sustainable" tacked on automatically, but do not agree with him on Amendments 203V and 203W, where I think the word should be present. So that was the selective approach to using the sustainability word.
I would like to object that the noble Lord, Lord Deben, portrayed me as a top-down, centralist, Stalinist control freak. I am simply expressing concerns about the quite voluntary nature of the duty to co-operate. It is a duty, but it is not particularly well prescribed, for all the reasons that the noble Lord, Lord Deben, outlined. I just hope that if Essex and Suffolk decide that they are not collaborating at some stage we do not have a very large flood defence on the Essex side of the rivers and a very small one on the Suffolk side, because that could be rather unfortunate for the folks who decided that they did want to collaborate but were rebuffed by the folks who decided that they did not want to do so. The Minister used the word "encouragement" in the duty to co-operate. Some of these very important issues need more than a bit of encouragement, but that may be because I am a top-down, centralist, Stalinist control freak.
I very much welcome the encouragement that the Minister gave us to look at the final version of the national planning policy framework and the guidance.
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Amendments 203V to 204 not moved.
Clause 99 : Local development schemes
204A: Clause 99, page 77, line 35, leave out subsection (2) and insert-
(a) an assessment expressed in numerical terms concerning the present and projected levels of accommodation need and demand in the district of the housing market area within which the local planning authority falls; and
(b) the authority's proposals for addressing such needs and demands.
(3A) The proposals referred to in subsection (3) shall include the authority's plans relating to the provision of housing, including affordable housing, in its district.""
Lord McKenzie of Luton: My Lords, in moving Amendment 204A, I shall speak also to Amendment 204G. These amendments focus on housing and housing assessment.
A consequence to the change in planning, especially the demise of regional spatial strategies, means that local authorities will no longer be able to blame development on regional requirements. It is now down to them. This places particular emphasis on assessment of housing need, including, importantly, the needs of the vulnerable and affordable housing requirements. That is why, at the urging of the National Housing Federation among others, we seek to ensure that there is a clear and comprehensive statutory duty on local authorities to maintain an adequate assessment. The federation states that structurally the focus is on the planning system in the medium term at least being plan-led. Again, this is good, although it places a greater burden on housing associations to forward plan development programmes, since proposals may have to be made through the local plan process, given that local plans will be expected to identify the key proposed housing sites so that the plan can demonstrate that it is sustainable. In the short term, it is likely that there will be more appeals, as house builders try to take advantage of the presumption in favour of sustainable development where plans are out of date and a five-year plus land supply cannot be demonstrated.
The appeal process may raise issues about whether affordable housing policies are up to date, and some developers will argue that present policies fail to reflect the affordable rent regime or the changes in grant availability. They will also argue that viability prevents them providing full levels of affordable housing. Housing associations may need to monitor appeals to ensure that affordable housing levels are not squeezed, potentially
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The reforms to the planning system outlined in the Bill offer a new opportunity for local people to play a more active role in shaping development in their area. However, in order for them to do this, it is vital that they have access to the information that they need. This will enable them to make informed decisions and hold their local authority to account. Hence these amendments will put a duty on local councils to outline in detail in their local plan how they will address housing need. To support this, councils will be expected to provide good-quality data on affordable housing need and demand. There are a number of benefits to this approach, such as transparency; by ensuring that local authorities undertake a robust assessment of housing need, residents will have the information that they require to fully understand local planning decisions. Then there will be comparisons; detailed information will allow residents to compare the performance of their local council to that of neighbouring authorities, which will allow local people to develop a better understanding of how their council is performing. In addition, there is accessibility, with complex data put in an accessible format. Local people without a formal planning background will be able to engage in the planning decisions that affect their local area.
These amendments will also put into law a clear requirement on councils to undertake a strategic assessment of housing and accommodation needs and demand in their local areas. While the national planning policy framework promotes this, we firmly believe that the issue is too important to leave to regulations and guidance alone. With millions of people on social housing waiting lists, many with complex care and support requirements, this duty will ensure that councils have the information that they need to appropriately house people in their communities. The information will be invaluable in determining the amount of accommodation required, including affordable housing.
In Committee, the Government said that they would be requiring an absolutely clear, transparent and robust numerical assessment of housing need. However, it was argued that Section 13 of the Planning and Compulsory Purchase Act 2004 already outlined the necessary duty, when that section does not require local authorities to consider future need and demand in their areas. For the sake of future generations, it is vital that councils are required to make and act on these projections. To avoid local plans concentrating narrowly on immediate housing need to the exclusion of future requirements, it is crucial that that duty is put into law. I beg to move.
Lord Beecham: My Lords, I congratulate my noble friend on tabling these amendments, which deal with one of the most crucial social issues that affect the country today. Looking round this Chamber, I almost regret to say that most of your Lordships will recall the famous television programme from the 1960s,
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Affordability will vary from place to place, but more than that the issue of tenure needs to be addressed. While it may be perfectly reasonable to prescribe a proportion of homes for owner occupation, the demand for rented accommodation is still high. I can speak from the experience of the ward that I represent in Newcastle, where a significant regeneration scheme is under way, with a very modest element of affordable homes within it and, within that, an even more modest allocation of homes to rent. Yet given the socio-economic profile of the area, I suspect that there will be much greater demand for rented accommodation than there is likely to be in the course of this regeneration.
I am sure my noble friend and the Minister will agree that, whether or not these amendments are passed, attention needs to be given to assessing separately, as it were, the need for rented occupation and owner-occupied accommodation. That rented accommodation need not necessarily be in the form of social housing by local authorities or registered social landlords-it could be private rented accommodation but at rents which are affordable to the local community to meet that local demand. I hope that, as this matter goes forward, whether in the statutory form or otherwise, that further refinement of the concept of affordability can be taken into account and reflected in policy.
7 pm
Lord Williamson of Horton: My Lords, I am sympathetic to this amendment, an amendment directed to the essential issue of having a really reliable assessment based on the best possible numbers about the needs for housing in the various districts-this of course relates to Clause 99, on local development schemes. That is important because it underlies the whole question about the proper provision of affordable housing in these areas, which is a major priority for all of us. The Minister may feel that there is something in this point-that it is pretty self-evident, when you read the text, that you ought to have an assessment in numerical terms concerning the projected levels of accommodation, need, and demand. That seems pretty self-evident.
We know that in addition to the various public dissatisfaction-I do not say that it is justified-about the prejudgment in favour of development, there is also, from time to time, a feeling that some of the information available in local authorities is not actually up to date. For example, last weekend I attended a meeting, when I was informed that the figures for the net immigration into the district, on which were based the forward provisions for housing, were wrong by
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There is some concern about these issues; even though it may seem self-evident that we ought to have the best figures, people are not always satisfied that that is the case. So I am sympathetic to this proposal, and I hope that we can establish bases in the local development schemes which can be relied on-relied on-by people who examine them as having the best basis for the amount of housing needed and the demand for housing, and that they should not be seriously underestimated on the one hand, and on the other hand not seriously overestimated.
Baroness Whitaker: In supporting Amendment 204A for all the reasons powerfully set out by the three previous speakers, I should like simply to add that this provision will go some way to taking care of some otherwise very awkward problems: a housing shortage which a small area cannot or will not address on its own; adequate provision for Gypsy and Traveller sites so that brutal confrontations, evictions, further illegal roadside stopping, are avoided, and gradually some inroads are made into the accumulated shortage of legal sites. The words "accommodation needs" reflect exactly the wording in Section 225 of the Housing Act 2004, and will readily be understood to refer to all homeless people, whether itinerant or settled, with the right degree of equality and fairness.
Lord Boswell of Aynho: My Lords, I have not spoken previously on the Localism Bill, nor would I claim any particular expertise in the planning system, but I would like to respond to the remarks of the noble Baroness, Lady Whitaker, in the context of this debate, with particular reference to Gypsies and Travellers.
The noble Baroness and I, and indeed my noble friend Lord Avebury, have participated over a number of years in the work of the All-Party Parliamentary Group for Gypsy Roma Travellers, and we have always been conscious of the difficulties that that community faces in adequate site provision, and also the degree of lack of salience-or should I say lack of appetite, perhaps-by local authorities in meeting their existing obligation. I can well understand her fears that these might be projected into the future.
Perhaps I may just comment from my experience over nearly a quarter of a century in another place as a constituency MP. The two planning issues on which I tended to wrestle most assiduously were either at the macro level, major infrastructure projects, or at the micro level, difficulties about Gypsies' and Travellers' sites-whether they were organised or not-but more typically, when there was no adequate provision, and they were moved on; although the provision in Northamptonshire tended to improve over the years.
This particular amendment is of course about making an adequate assessment, and that is a proper start. The difficulty, in my experience, is that very few authorities see themselves as having an interest in carrying out this assessment-one or two enlightened ones do, maybe for economic reasons, in order to secure a temporary labour force. Most will do as little as they
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The reasons for that are perhaps, first, that they may fear that they are shouldering a disproportionate burden; in certain cases they may feel, secondly, that the very fact of assessing provision or having a discussion about it may, as it were, attract or create an additional population whose need has then to be met; and thirdly, they are, to be frank, often facing the hostility of the local settled population, and a very strong political pressure not really to meet their duties.
This has to be balanced; what I have always said locally is that the one thing I do not take is a one-dimensional view of this. There is a need for give and take, sensitivity and a proper discussion on both sides, but it has to start with a proper assessment. There may be a feeling that this is not going to happen.
In addition to this, I should just make the point-and it does look back to the issue of cross-border co-operation-that of course the nature of the travelling population, by definition, is that people move around; not all the time, or in every case, or outside or across local authority boundaries, but it does mean that they have to be looked at with at least a degree of flexibility and sensitivity, given, as the noble Baroness has said, some of the social pressure which is upon many of them, and which is evinced by many frightening social statistics in terms of a perinatal mortality or health outcomes, education, and the rest of it, which we need not go on to tonight.
I am not an ideological opponent of the Localism Bill-I think it is a good approach for the reasons that my noble friend Lord Deben very eloquently brought forward a few minutes ago. But we have to look at meeting the needs, indeed meeting wider statutory responsibilities for equality, which are enshrined in the duties of local authorities, and seeing whether they are adequately discharged.
I hope that encouragement will be sufficient for the local authorities so that they meet their obligations. All I can say is that I very much hope that the Minister can reassure us that she will be able to keep a watch on the situation, and I hope, if it is necessary-though one trusts that it will not be-that she will keep an open mind to any other measures or contingencies that may be required to see that this small but significant and vulnerable section of the population and their housing needs are assessed and met.
Lord Newton of Braintree: My Lords, being from Essex, albeit from Braintree and not Basildon, I am a bit hesitant, as my noble friend will probably understand, to follow him down the path of the issue that he has raised. I have to say that it was a brave speech and I have considerable sympathy with the approach that appeared to underlie it.
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I want to come in on a different aspect of this, which is emboldened by the speech of the noble Lord from the Cross Benches. My concern in this field is that the more you go for localism and devolve decisions downwards, the more you will risk people saying, "We don't want this in our back yard. Put it in somebody else's". As regards affordable housing, we need to recognise that even in the smallest units, which are not always recognised by villagers in some quite small villages-I live in a fairly large village in Essex-or the most articulate and active people, there is a need to provide houses for the families and young people who are perhaps not so comfortably off but who are essential to the overall life and social structure of the village or the neighbourhood, as it is defined in this Bill.
We need to recognise that with the disappearance of pressures from above-that is, the spatial strategy-on local authorities to build this, that or the other number of houses, we slightly strengthen the ability of everyone to say, "Yes, we all know that a lot of houses are needed but not here, thank you". We may need to do something to correct that. The thrust of the point of the noble Lord on the Front Bench opposite, although not the wording particularly, is probably well made, and I hope that it will receive an understanding response.
Lord Greaves: My Lords, if I understand it correctly, the purpose of these amendments is to make sure that a proper assessment and evidence base for housing needs is incorporated into the work on the local plan. The noble Lord, Lord McKenzie, spoke about the immediate crisis in housing. Of course, these amendments will not solve the problem in the short term. The problem of why houses are not being built is far more to do with the financial situation, and the lack of availability of finance for building houses and of mortgages for people buying them. It is nothing to do with the planning system per se but the points he is making are very valid in the longer term.
However, the argument comes down to whether this kind of requirement on local planning authorities should be in this Bill in primary legislation or should be provided in guidance. I have no doubt that the Minister will point out that the draft national planning policy framework, with which we all live and sleep at the moment, has a great deal in it about this. For example, on page 30, under the heading "Significantly increasing supply of housing", paragraph 109 reads:
"To boost the supply of housing, local planning authorities should ... use an evidence-base to ensure that their Local Plan meets the full requirements for market and affordable housing in the housing market area, including identifying key sites which are critical to the delivery of the housing strategy over the plan period".
Paragraph 111 is rather longer, and therefore I will not read it all out, but it requires that,
- "local planning authorities should ... plan for a mix of housing based on current and future demographic trends",
which I think was a point made very eloquently by the noble Lord. I suspect that there is not a great deal of difference between what the noble Lord is putting forward and what the Government want to happen, and that it is simply a matter of where the requirement should be and whether it is necessary to be in the Bill.
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7.15 pm
Reference has been made to "Cathy Come Home". I confess that I am old enough to have seen that programme, but I did not see it because we were old-fashioned enough not to have a television at our house at the time, which seems astonishing nowadays when everyone has a television in every room. Televisions themselves are now supposed to be old-fashioned and you are supposed to watch it all on your PC, laptop or strange little devices that can be carried in one's pockets.
However, the important point made here by the noble Lord, Lord Beecham, was the need for affordable housing. I would say that the phrase "affordable housing" is another phrase which seems to be a bit vague and fluffy in the way in which it is used. There are a number of different sorts of affordable housing. There is affordable housing to buy; affordable housing to rent, which is nowadays called social housing, a phrase which still grates with me; public housing or third sector housing; and affordable housing in the private rented sector. I live in a part of the country which is not only a great deal more hilly than East Anglia but I suspect that we have a lot more-or perhaps we do-poor quality, rented accommodation in the private sector, which is extremely affordable by any standards because the levels of rent are set at the level of housing benefit. Anyone who qualifies for housing benefit can afford that housing.
In any case, that housing by standards across the country is very cheap to buy and to rent. But the quality is not very good. I am old-fashioned enough to think that what is required is not just a lot more rented accommodation, but rented accommodation in the social housing sector, council housing, housing association housing and similar types of housing. I keep being told by coalition Ministers that this coalition will provide much more of such housing than did the previous Government. I still cannot quite work out exactly how it will happen but they believe it will. I wish them the best of luck. The outcomes will be the outcomes, which we will see. If that happens, the coalition will be able to trumpet it as a great success. Frankly, the previous Government in this area was a bit of a flop.
Baroness Hanham: My Lords, I thank noble Lords for their contributions. As one would expect, it ended up with a wider discussion on housing. We have had that on earlier parts of the Bill, which does not mean that we do not have to listen again to the important points that were made. Before I start on the amendments, two areas of thought were triggered in my mind. A concern was raised by the noble Lord, Lord Newton, that with localism and local neighbourhood planning, no one would accept having housing in their area and that they keep trying to shovel it off to somewhere else. That will not be possible because the neighbourhood plans will have to conform to the local development plans, which will have a clear indication of, first, the number of properties and housing they expect to be built and, secondly, the general area. The neighbourhood plans will be able perhaps to say, "Well, we would rather not have it there but we could have it there". There will be no possibility that they will not deliver what the local development framework requires. That should be helpful.
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The Government are committed to 150,000 new homes before the next election, which will be a great deal more than we have seen over the past few years. My honourable friend Grant Shapps at the other end is actively pursuing policies to ensure that housing is developed. The new house bonus is meant to contribute to and encourage both the building of new housing and the improvement of properties. It covers affordable rents and encourages other capital expenditure. The pressure to produce more housing will be there from the Government.
We are asked to talk here about the possibility of a mandatory housing assessment, which we have already discussed a couple of times. I have tried to persuade the House, so far without success, that it is unnecessary to put this in the Bill formally. As my noble friend Lord Greaves has just helpfully pointed out and as I was going to say, the draft national planning policy framework has very clear policies on how much housing must be built and what the local authority's responsibility will be. That has been combined with the guidance on strategic housing market assessments, which already sets out a framework for local authorities to take account of need and demand for both market and affordable housing, and to keep this under review over the plan period.
Local authorities already need to prepare an annual monitoring report covering housing delivery, which they must publish locally and which sets the context for reviews of plan policies. Preparing evidence is part and parcel of the plan-making process that has its own robust requirements for publication and consultation. Making local authorities publish assessments prior to undertaking local plan preparation would add yet another layer of unnecessary bureaucracy. I fully agree that local authorities should understand and plan properly for housing and affordable housing requirements. However, since existing requirements perform the functions intended by these amendments, I cannot support them. They are already being carried out.
An important point was raised by the noble Baroness, Lady Whitaker, and much supported by my noble friend Lord Boswell, on Gypsies and Travellers. I am sure noble Lords are aware that local authorities have a statutory responsibility for assessing Travellers' needs. Every local authority, when undertaking a review of housing needs for its district, is required to consider the needs of Travellers under Section 8 of the Housing Act 1985. Local authorities are also required to prepare a strategy to demonstrate how they will meet the accommodation requirements of Travellers. All the requirements are there; it is up to the local authorities to make sure that they fulfil them and carry out their obligations under the various aspects of legislation.
With the explanation that these amendments are not needed, and that there are good, robust policies to ensure that there is housing assessment as well as to make sure that affordable housing and other housing will be built, I hope the noble Lord will withdraw his amendment.
Lord McKenzie of Luton: My Lords, I am grateful to the Minister for her response, although I do not agree with some of what she said. More than 150,000 new homes a year-
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Baroness Hanham: Over four years.
Lord McKenzie of Luton: I am sorry-over four years. However, even 150,000 a year is less than what the previous Government achieved. If you go back a couple of years, the number of housing starts was the highest for around 20 years. The Government constantly quote a later figure, which was affected by the financial crisis. However, if you look at the data over the period you will see something else.
Lord Greaves: I wonder if there is confusion here between housing starts and affordable housing starts.
Lord McKenzie of Luton: Indeed, the noble Lord is absolutely right. However, I understand that the mechanism to achieve affordable housing is through 80 per cent of market rents being the primary funding source for it. Therefore, what the Government have done has slashed capital funding for affordable housing by driving an approach that jacks up rents, which for many people will be paid out of the housing benefit budget. It is difficult to see the logic of that approach from the Government's point of view.
The Minister's response to the noble Lord, Lord Newton, was to say that local development plans have to be adhered to. I thought that the noble Lord's point was about what happens in adjoining local authorities and how they can be persuaded to provide affordable or other housing when a neighbouring authority is fully developed or has little room to develop further. As I have mentioned, that is precisely the situation in which we find ourselves in Luton, as do other local authorities. The noble Baroness says that the route is through the NPPF; I think the noble Lord, Lord Greaves, quoted from that. However, as we have debated, it is a question of having regard to that. We want to put something transparent in the Bill. That transparency will help the understanding of local people as well.
Lord Greaves: If the NPPF had only to "have regard to", people might be less concerned about it. Is it not the case that local plans-core strategies-will not be approved by the inspection process unless they conform to the NPPF? They do not just have to have regard to it.
Lord McKenzie of Luton: That may be the case up to a point. How that works in practice remains to be tested, particularly given the pressures on the inspectors. We shall come to that point in a moment.
I say to the noble Lord, Lord Greaves, that I am old enough to have watched "Cathy Come Home". I think I did; it was on a black and white television. It was a defining moment in our country. We are at risk of going back to that. These assessments must also be seen in the context of what is happening to housing benefit. We know that many people will be made homeless and that many will be uprooted from their current communities and forced into new ones. Following the point of the noble Lord, Lord Williamson, about how robust and up to date those assessments are, they would also need to take account of such movements, which could be very significant.
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I very much warmed to the comments of my noble friend Lady Whitaker and the noble Lord, Lord Boswell. The Minister's response was that there is already a statutory responsibility. However, the reality is that to date it has not delivered for Gypsy and Traveller families. It is right that we should focus on that. It was absolutely commendable of the noble Lord and my noble friend to do so in the course of this debate.
My noble friend Lord Beecham, in supporting the amendment, said that we should look not just at social housing or affordable housing-whatever description we apply to it-but at the private rented sector as well. That is absolutely right: we have to look at all areas, particularly the private rented sector. We know that the formation of households over the next decade will increase-certainly at a faster rate than new homes are projected to be provided. That is the source of some challenge.
The noble Lord, Lord Greaves, made the point that it is not just about whether somebody can afford a property but about what they are affording. What is the quality of the home that they are able to access? That is why, like him, I am a great supporter of the social housing sector. I am sure the noble Lord himself remembers council house-building when it took place and Parker Morris standards, with decent garden sizes. That may not be easy for us to return to but it was indicative of a time when we believed that people should be properly and decently housed.
Baroness Gardner of Parkes: My Lords, I was very involved in housing when Parker Morris standards were still used-
Baroness Gardner of Parkes: I am sorry; I just wanted to raise the issue of Parker Morris standards, which I think I can do as the noble Lord is responding to that report.
Earl Attlee: My Lords, I regret that no one can speak after the Minister.
Baroness Gardner of Parkes: I see. I am sorry.
7.30 pm
Lord McKenzie of Luton: I should be very interested to learn what the noble Baroness wanted to say about Parker Morris standards. Perhaps we can speak in the break.
My understanding is that the real difference between us here is whether this matter should be dealt with in guidance, through the NPPF or in the Bill. We believe that it is such a fundamental issue that it should be in the Bill. Indeed, if we are on the same page regarding what we want to achieve, I do not see why the Government cannot accede to having this as an integral part of the legislation. It is a key and fundamental-
Baroness Gardner of Parkes: I am told that I am not out of order and that I can therefore ask the noble Lord a question. Is he aware that when the Parker
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Lord McKenzie of Luton: Indeed. I am certainly aware of the challenges that that produced but I hang on to the point that it was a good period for the provision of housing, with people, whatever their means, having the chance to live in decent houses in good neighbourhoods. Indeed, for 20-odd years I had the privilege of representing a patch on Luton council built just after the Second World War to those standards and it was a great place. However, that is a bit of a diversion from the amendments before us, and that is my fault.
As I said, the difference between us is whether this matter should be in the Bill or otherwise. I accept that the Government are not going to be moved on this. We will continue to make the arguments but, for the time being, I beg leave to withdraw the amendment.
204B: After Clause 99, insert the following new Clause-
"Development plan documents: climate change and carbon budgets
(1) Section 19 of the Planning and Compulsory Purchase Act 2004 (preparation of local development documents) is amended as follows.
(2) For subsection (1A) substitute-
"(1A) Development plan documents must include policies designed to ensure the development and use of land in the local planning authority's area-
(a) achieves reductions of greenhouse gas emissions in line with the carbon budgets set under the Climate Change Act 2008; and
(b) meets the national planning policy objectives on assessing the risk of and adapting to climate change in relation to that area.""
Baroness Smith of Basildon: My Lords, I am sure that the Minister has noticed that the amendments in this group are the same as the ones that I brought forward previously, but she will be relieved to know that I shall not be repeating that discussion. I have brought them back in order to seek clarification on a couple of points.
When I read through the Hansard for that debate, it seemed that, although the noble Lord the Minister who responded to me on that occasion and I were heading in the same direction, we were on different paths. I think that there was some misunderstanding about the issue at the time.
During that debate, I listened to the Minister's response and agreed that I would take note of what he said. However, I also wanted to read his comments to be clear about his reasons for not being able to agree
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First, in the previous debate the Minister said that the amendment was unnecessary because neighbourhood development plans would have to be drafted, and he used the phrase "in general conformity with" the strategic policies of local plans, which would obviously include policies on climate change. I think that he was trying to be helpful. We thought that the Government would accept the amendments that we had brought forward because, if the plans can be "in general conformity with"-the phrase used by the Minister-that can exclude specifics. The reason for tabling this amendment is to see whether the noble Baroness can tighten that up a bit. I think it was agreed that, if neighbourhood development plans had to be in conformity with strategic policies and local plans, that would be a little stronger and give a clear indication and guidance that the Government intend neighbourhood development plans to take into account climate change. At the moment there is a little bit too much wriggle room, which could be damaging for the Government in trying to reach their targets.
Secondly, at that time the Minister was concerned that neighbourhood development plans should achieve reductions in greenhouse gas emissions in line with carbon budgets set under the Climate Change Act 2008. I think he was under the impression that this would mean that every area would have to achieve the same level of reduction. That is clearly impossible and was never intended in the amendment, and I shall therefore be happy if someone can come back with different wording. Both these amendments seek to ensure that all plans, at whatever level, take these issues into account so that they can make a contribution to the targets and the issue is not ignored.
The intention is no more than that, and I hope that the noble Baroness will be able to come back on both those points. Amendment 204B seeks to deal with the question of "in conformity with" and the second amendment, Amendment 206B, tries to make a contribution to the climate change targets but does not insist on equal contributions being made. I fear that, although it is not the Government's intention, this issue could be ignored. I know from the comments made by the Minister on the previous occasion that that is not the intention but I seek to ensure that it is not the effect.
Lord Deben: My Lords, there is an issue here with which I hope the Minister will be very careful. Local authorities need to be reminded all the time, and we have had some difficulty in the past in concentrating the Government's mind on the place of local authorities in carrying through the nitty-gritty of fighting climate change. Unless we make sure that they understand that they are on the front line and that what they do contributes a huge amount to the totality, we are
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Lord Lucas: My Lords, notwithstanding my noble friend's strictures, I think that this is a daffy amendment due to its wording. How can development ever achieve a reduction in greenhouse gas emissions? Building a house emits greenhouse gases. The process of development necessarily involves the emission of greenhouse gases, and when you have created something at the end of that process, that continues to emit greenhouse gases, even if it emits far fewer than would have been emitted with a development done some years ago. Proposed new paragraph (b) at the end of the amendment would do great things for East Anglia. You would be allowed to build only off-shore windmills, waiting for the day when the place flooded.
Lord Judd: My Lords, my regard for the noble Lord, Lord Deben, and his commitment on climate change is second to no one. He has been one of the leading spokespeople, showing a good deal of courage on the importance of this issue. Because of my respect for him, I can say that I think that what he has just said in this debate illustrates a contradiction between what he said earlier on a previous amendment and his position here. On a previous amendment, he argued very strongly that he believed in a society in which people were not told what to do at a local level. He felt that there had to be co-operation and that one could only suggest what might be the responsibility of a local authority or the points that should be taken into account.
This issue illustrates a tension between national priorities and localism, to which there is no absolute answer. The Government may decide that in the interests of the survival of the British people it is necessary to have certain levels of activity in order to make our contribution on climate change. However, unless there are mechanisms for delivering those targets, they become part of the world of dreaming aspiration, as distinct from real, hard policy. I wish that in the deliberations on the Bill we were all more realistic that it will not be only on climate change but on quite a number of issues that we have to strike a balance between national priority and localism.
Baroness Young of Old Scone: My Lords, I underline what the noble Lord has just said, particularly in terms of the requirement to adapt to climate change. Noble Lords may remember that the Climate Change Act contained strong reporting requirements as regards authorities reporting the action they were taking and their readiness to adapt to climate change. However, those requirements were not laid on local authorities. They were laid on a huge range of other authorities, but local authorities were not required so to report because at that stage they had a performance indicator which established their readiness to adapt to climate change. However, that performance indicator has since
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Lord Reay: My Lords, as this is my first intervention at this stage of the Bill, I declare my interest as a landowner. I object strongly to these amendments. When I sought to introduce an amendment in Committee that related to the costs incurred by local authorities contesting appeals in wind farm development cases, the noble Lord, Lord Whitty, chided me for introducing an inappropriate discussion of energy policy into a planning Bill. I could now say the same about the noble Lord's friends who are moving this amendment.
As the noble Baroness more or less explained, the intention of these amendments is to impose on local authorities a responsibility for helping the Government to achieve their renewable energy targets. The principal effect in practice would be to make it even harder than it is already to resist the attempts of subsidised developers to cover the countryside with wind farms, for, of course, that is the one technology on which, in practice, the Government are, or were, pinning all their hopes for achieving those targets. I say "were" because at the recent conference of my party there were the first interesting signs that second thoughts are being entertained at last in government circles about their energy policy, owing to its expense, which seems suddenly to have become apparent to the Government. To be sure, so far the changes have been in rhetoric only but I find it hard to see that that will not be followed by action, for the point is that the Government's deliberate pursuit of a renewable and, therefore, an increasingly expensive, energy policy is coming into ever greater conflict with the Government's attempts to protect living standards.
In the Financial Times yesterday its energy correspondent produced an estimate that at the current rate by the time of the next election the average household will be spending more than 10 per cent of its income on its energy bills. In other words, they will be officially in fuel poverty. That will be an astonishing and, I suggest, intolerable outcome. Noble Lords will remember that when the previous Government were in power it was their stated policy to abolish fuel poverty, but, of course, that is quite impossible if you are pursuing a renewable energy policy. Under their watch the number of households in fuel poverty doubled in five years to around 5 million. With the present Government pursuing the same policies, this figure has continued to rise until it has now reached 6 million or even on some estimates 7 million. Therefore, it surprises me that in these circumstances noble Lords opposite continue blithely to propose measures that can only have the effect of further adding to fuel costs for the consumer. It did not surprise me, however, that in that same article in the Financial Times the director of consumer policy at uSwitch was quoted as saying:
"I believe there is going to be a U-turn because I believe the government is listening and they're going to have to face reality".
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The Government, of course, could have done so a long time ago. I can hardly think of a single prominent independent newspaper columnist who has not over the past two years or more-in many cases much longer-succeeded in exposing the crippling expense of our climate change targets and the complete futility of wind farms. I should have thought that that probably covers virtually all the famous names in journalism, at least in the newspapers and magazines that I have read.
The Government therefore cannot say that no one warned them. Yesterday it was the noble Lord, Lord Young of Graffham, who had the opportunity to have his say in the Times. His article was headed:
"This is no time to waste our money on windmills".
The noble Baroness may laugh but I cannot think of a more unsuitable time to contemplate putting a statutory obligation on local authorities to give yet more priority to the installation of subsidised renewal energy projects. I hope that the Minister will give this amendment short shrift.
7.45 pm
Baroness Hanham: My Lords, it has had a slightly longer shrift than I thought it would. I think this amendment was slipped in on the basis that there would be a two-minute discussion on it. I might have known that it would generate a bit more than that. I hope that I can deal with it quite swiftly. In the draft national planning policy framework there is a very clear description of what is expected in terms of the planning responsibility. The Government's objective is that the planning mechanism should fully support the transition to a low-carbon economy in a changing climate, taking full account of flood risk and coastal change. That requirement is contained in the national planning framework, which is subject to the consultation.
There is already a climate change duty on plan-making. That duty seems sensible and was introduced by the previous Administration. I do not think that we are likely to change that at present. It is not worth rehearsing how the duty works but a local council's development plan policy documents taken as a whole-that is, their local plan-include policies designed to contribute to mitigating and adapting to climate change. The neighbourhood plans have to fit in with the local development plans, so the neighbourhood plans cannot duck the issue. Therefore, there is a clear line between the local development plans and the national policy framework as one leads into the other-it goes down from the national to the local to the very local and there is a requirement to take it all into account. Local communities when they are preparing plans will be in no doubt about the planning requirement.
We have proposed in the framework that the planning system should aim to secure, consistent with the Government's published objectives, radical reductions in greenhouse gas emissions. These objectives include the carbon budgets set in law which now cover the period to 2027. The noble Lord, Lord Judd, is correct to say that the emphasis on how you do this will differ in different places. Kensington High Street in my borough is one of the worst areas in this regard but then all the traffic in the world comes past our front
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Baroness Smith of Basildon: I am grateful to the noble Baroness as I think she has understood what we were seeking to do-to get these issues taken into account. I thought that when the amendments were moved at a previous stage we were on the right track but that we did not quite tie up the loose ends. I am grateful to the noble Baroness for her explanation. Like her, I was surprised that the debate took the direction it did but I should know that at any mention of climate change the noble Lord, Lord Reay, will always talk about renewable energy and wind farms. However, that was not the intention behind the amendment. It was exactly as the Minister described. As I say, I am grateful to her for her helpful explanation. I beg leave to withdraw the amendment.
Further consideration on Report adjourned until not before 8.49 pm.
First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011
First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011
27th Report from the Joint Committee on Statutory Instruments
Motion to Approve
7.50 pm
The Minister of State, Ministry of Justice (Lord McNally): My Lords, the draft order prescribes the fee to be paid by a person who appeals to the Immigration and Asylum Chamber of the First-tier Tribunal. The draft order also sets out the situations in which a person will be exempt from paying a fee and where a fee may be deferred, reduced, remitted or refunded. To facilitate the new fees regime, changes will be required to the Asylum and Immigration Tribunal (Procedure) Rules 2005. If the draft order is agreed, changes to those procedure rules will be made in another instrument.
At present, the cost of administering the asylum and immigration appeals system is met chiefly by the UK taxpayer via the Ministry of Justice vote, although a contribution is made from visa application fees charged by the UK Border Agency. In 2010-11 the total cost of the system was about £108 million. In that year the taxpayer paid approximately 87 per cent of that cost, with the contribution from visa fees amounting to £14 million. It is essential that we continue
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We are not the first to consider this. Noble Lords may be aware that a consultation paper in 2009 on immigration and visa applications by the previous Administration asked whether users of the tribunal ought to make a contribution to its costs; respondents agreed that they should. In addition, charging for immigration appeals was one of the ideas submitted in response to the Government's spending challenge in 2010 and identified as one of the suggestions that would be taken forward by the Prime Minister in August 2010. We consulted on the proposals which form the basis of the order in October 2010 and we have made a number of important changes to them in light of the responses to that consultation. I shall explain what those changes are shortly, but before I do I will set out the types of appeal that will generally attract a fee and the range of exemptions that will apply.
Appeals which will, in principle, attract a fee are family visit visa appeals from people refused a visa to enter the UK on a temporary basis to visit a family member; managed migration or in-country immigration appeals from those already in the UK seeking to extend or change the terms of their stay in the UK; entry clearance officer appeals, which are a large range of different appeal types from individuals overseas who have applied for permission to come to the United Kingdom, either permanently or temporarily, but have had their applications refused because they did not meet the requirements of the Immigration Rules; and asylum appeals from people who have been refused asylum.
As for the actual fee levels, where an appellant indicates that they want an oral hearing, the fee will be £140. Where an appellant indicates that they do not require an oral hearing and an appeal can be decided on the basis of the papers alone, the appellant will be required to pay £80. The order includes provision for a wide array of remissions and exemptions. Appeals brought against decisions where action is initiated by the state should, in our view, be exempt from paying the fee. These will include appeals such as deportation, deprivation of citizenship or revocation of indefinite leave to remain. We will also not charge for appeals where the appellant is in the detained fast-track process. Anyone in receipt of legal aid or asylum support will also be exempt.
Some of your Lordships may be surprised that we are seeking to charge for asylum appeals at all. If so, I can reassure them that most of those refused asylum will benefit from exemptions under the order. Where they do not, the hearing of their appeals will go ahead anyway, whether or not a fee is received. Where such an appellant remains liable to pay a fee it is hoped that it will be paid in due course, and it will remain open to
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Your Lordships will also be aware that the Legal Aid, Sentencing and Punishment of Offenders Bill, currently being considered in the other place, includes proposals to make changes to the availability of legal aid for those making appeals to the tribunal and others. We made clear in our consultation paper on fees and in the response to that consultation, and I do so now again, that it is our intention to bring forward in due course a revised remissions and exemptions scheme in respect of liability to pay fees in the tribunal to take account of the proposed changes to legal aid. The exemptions and remissions set out in the instrument before your Lordships tonight, therefore, in so far as they provide for the remission of fees by reference to the receipt of legal aid, are intended to apply only under the current legal aid arrangements and will not apply under any future legal aid regime, in respect of which we will bring forward alternative proposals for the remission and exemption of fees in due course.
As I have indicated, the Government carefully considered the views expressed by those who responded to the consultation, including the Administrative Justice and Tribunals Council. This has led to a number of significant changes to the draft order and the proposed changes to the procedure rules. Foremost of these is the power for the tribunal to make an award of costs against the UK Border Agency to successful appellants up to the amount of any fee paid. This will allow an appellant to recoup their appeal fee where a clear mistake has been made by the UK Border Agency. It is also envisaged that the prospect of costs being awarded where mistakes are made will encourage the UK Border Agency to improve the quality of its initial decision-making to minimise such a financial penalty. That power will be included in the procedure rules rather than the order before the House today.
The other main change to the proposals originally consulted on is the retraction of plans to charge a fee in the Upper Tribunal. We accept that further appraisal of that option is required and the Government do not plan to introduce fees for onward appeals to the Upper Tribunal at this time.
This Government are fully committed to ensuring that all tribunals remain accessible and provide a high-quality service for their users. Whether appellants are bringing appeals from within the UK or from overseas, the introduction of fees does not affect that commitment. The draft order and the consequent changes to the procedure rules seek to redress what the Government consider to be an imbalance in the way that the tribunal is funded. They make provision to
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8 pm
Lord Thomas of Gresford:My Lords, my noble friend said in introducing this order that many of the appeals are "wholly without merit". The question is, which? That is what the tribunal exists to determine. It is impossible to start off on the basis that an awful lot of these appeals are without merit. My noble friend said that this bright idea came forward as a response to the spending challenge that was put out by the coalition Government when they came into power. It is a terrible idea when it is examined. The Explanatory Memorandum makes that quite clear.
The first point that has to be made is that it is one thing to fund the civil courts of this country by fees where a person brings an action-that is, he takes a decision to start a case by the issue of a writ or a summons-but, as the Explanatory Memorandum makes clear, this is the first instance of fees being imposed in tribunals where there has been action by the state against the individual. This is not an individual who started things up himself, as happens in High Court or county court proceedings; this is where the state has taken some action against which the individual wishes to appeal. The power to impose fees in tribunals has previously been exercised only in the areas of gambling and land.
We move from gambling and land to an extremely sensitive area of policy, immigration and asylum. Why? Paragraph 3.1 of the Explanatory Memorandum says that,
- "the Government considers that it is not reasonable for the state to continue to fund the remaining cost of the appeals system. The Government believes that it is appropriate that users of the Tribunal contribute towards the cost of their appeal where they can afford to do so".
However, as I say, this is not a situation where the appellant in one of these tribunals has initiated things; it is a case where he is appealing against an action that the state has taken.
It is not surprising, as paragraph 8.2 of the memorandum reveals, that:
"Respondents to the consultation were generally opposed to the introduction of fees".
Indeed, when it came to the suggestion of imposing fees for the Upper Tribunals, they were,
The Government have indeed responded to that.
One looks at the impact assessment to see how viable this scheme is. It really is very interesting. Under "Key assumptions" it says:
"It is unknown how prospective appellants will respond to fee-charging. A number of assumptions have therefore been made to produce illustrative estimates"-
it is a guess, in other words. It goes on to say:
"The Home Office is implementing significant changes to the UK's immigration regime in 2011, which may affect the volume of appeals in future years and thus the costs and benefits of this proposal".
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The Government's own proposals for changing the immigration regime will have an unknown impact. One would have thought that where there are changes to the regime, appeals will follow as people who are subject to orders made by the state test the boundaries of those changes as they have been made. It then says:
"The future success rate of appeals is unknown in which a cost award is made against UKBA".
We are still in the realms of complete ignorance as to the effects of these proposals.
Paragraph 2.19 of the impact assessment, which refers to the principal groups impacted by the final proposal, says, under "Appellants":
"Fees for Family Visit Visas were introduced in 2000 and subsequently reduced and then abolished in 2002. Research published by the Home Office in 2003 did not find conclusive evidence that these fees were a significant deterrent to legitimate FVV appeals. However, it is accepted that some individuals may currently choose to appeal because it is free but would not do so if a fee is payable".
That assertion does not follow from the research that was done in 2003.
Paragraph 3.4 in the "Economic rationale" section says:
"The absence of fees means that the service is 'over-consumed'"-
in other words, too many people appeal. It goes on to say that the users,
- "are not exposed to any of the costs that the Tribunal incurs as a result of the appeal. A possible indicator of this 'over-consumption' is the failure rate of appeals, which represented a majority in each of the four main appeal types ... disposed of in recent years"-
because there is a failure rate of appeals representing the majority, that shows that too many people apply. I go back to my original point that if many of the appeals are wholly without merit, the purpose of the tribunal is to determine which do have merit and which do not. You have to have a system that can come to that conclusion.
Paragraph 4.2, under "Cost Benefit Analysis", says:
"We have no information on the scale of",
"We cannot predict how appellants will respond to the introduction of fee-charging".
"For those appellants who will pay the fee, we assume that some of these appellants will decide not to appeal, but we cannot predict the size of this effect".
Paragraph 4.6 points out that,
- "there are no rules precluding individuals from submitting a new visa application rather than appealing an existing one",
and it is cheaper to put in a new application under these rules than to appeal an adverse decision that has already been made. This means that instead of appealing, you pay a lesser fee and start an application all over again. That seems to me to be absolute nonsense.
When we look at ongoing costs, paragraph 4.27 says:
"These costs are likely to involve dealing with an increased volume of customer enquiries ... and with the operation of a contract to collect, bank and administer the fee".
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There is a cost of administration there because you have to decide who is exempt and who is not. Someone has to make a decision: that is a person who is employed and paid a salary. Having done that, you then have all the business of collecting the fees. Paragraph 4.28 says:
"We expect that around three-quarters of asylum appellants would be exempt from paying fees, so debt recovery would never arise in any of these cases"-
that is regarded as a saving. In addition it says in paragraph 4.31 that,
- "it has been agreed that HMCTS would pay any judge-ordered cost award to successful appellants and then recoup this sum of money monthly in arrears from UKBA. ... However, it has not been possible to estimate these financial impacts at this time".
Then, in paragraph 4.32, it says:
"UKBA would incur extra costs if some FVV appellants decide to re-apply for a visa instead of appealing because the visa fee would be less than the paper and oral appeal fee".
Then, in paragraph 4.37, we see what the fee is to go towards. It is not going towards fixed costs, the buildings, but to variable costs, the fee paid judiciary. It says:
"In the short term only the variable cost element can be saved when the volume of appeals decreases, compared to the status quo. The Tribunal's operating cost savings are based on"-
various estimates. I will not go into the detail of it. The point is that the whole purpose of these fees is to reduce applications and then some savings will be made in judge time.
I support my Government, of course, but I find it extraordinary that this tribunal order should have been brought forward in the way that it has. I think I have said all that I need to say on the topic.
Lord Newton of Braintree: My Lords, perhaps I may intervene briefly with a few things that will not surprise my noble friend on the Front Bench at all. The first is that, having made a speech in support of the Government in a rather different atmosphere in the House earlier on, I now wish to revert to type. The second is that I was around in 2009 when there was consultation on some earlier proposals. I think that I may even have spoken against them. I certainly did not like them then and I do not like these now. The third is that I pricked up my ears when he mentioned the body that I used to chair, the Administrative Justice and Tribunals Council, which, not to my surprise, has expressed some reservations about these issues. I have got them somewhere but, having been preoccupied on other matters, I have not studied them as carefully as I should. The last thing, as I have already indicated, is that I am not very happy with them, particularly in respect of the family matters to which he referred and asylum seekers.
That said, and bearing in mind that it would be rash of me to call a vote against these proposals, which I would not want to do, I acknowledge that significant efforts seem to have been made to meet some of the concerns expressed, in terms of exemptions, the removal of the Upper Tier from these proposals, and the statement that appeals will be heard, presumably even if the money is not found up front. However, that does give rise to the question of the expense of collection after the event which was implied, or indeed explicit, in my noble friend's speech just now.
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I draw some comfort from all that, and also from the fact-which I probably have in common with the noble Lord on the opposition Front Bench-that there was an indication that some of these matters will be stirred up again by the legal aid Bill, on which I plan to stir up a bit of trouble myself if I get the opportunity. So I shall rest at this moment and wait for future occasions before pressing the matter any further.
Lord Avebury: My Lords, I look forward to hearing from the noble Lord, Lord Newton, on the legal aid Bill. Stirring up trouble on that front will be music to my ears. My noble friend has demonstrated just now that imposing fees on appellants in the immigration and asylum appellate system is neither fair nor sensible. As we all know, the Government have to make economies in every area of their work, but the right way to proceed in this area would have been to reduce the need for appeals and hence the cost of the system, which has spiralled because of defects in the UKBA's own procedures.
First, the UKBA should conform to the law by changing its practice immediately when it has been found to be illegal. For an example of a case where it failed to do so, see the reaction to the decision of the European Court of Justice in Metock, a case which involved the rights of non-EU spouses of EU citizens.
Secondly, the UKBA should address those sectors of its decision-making which are manifestly not fit for purpose. My noble friend will have seen the report Unsustainable by Asylum Aid, showing that the UKBA consistently makes the wrong decisions on claims for asylum by women. There is a particular problem with cases where the applicant has suffered gender-based persecution. We dealt with this at Questions just now. This may satisfy the requirements of the refugee convention because the victims are members of a particular social group, an aspect of the law of which, astonishingly, many case owners appear to be ignorant.
8.15 pm
Thirdly, there are huge problems with the asylum screening unit, to which attention has been drawn by the Immigration Law Practitioners' Association and the Law Society. Telephone lines are permanently engaged, imposing delays which may jeopardise the credibility of the applicant through no fault of her own and extra costs are imposed on the lawyers which are not recoverable.
The UKBA should not apply to pursue cases after it has lost at the First-Tier Tribunal when its arguments are not sustainable in law. It should review all cases where an appeal has been lodged with this consideration in mind. Imposing fees on appellants adds to the inequality of arms in the system, where in all cases individuals are appealing against government decisions, as my noble friend has pointed out.
Where the UKBA decides to revoke the decision that it has made before the appeal has been heard, presumably on the basis that it cannot justify the refusal, it would be manifestly unfair not to refund the fee that has been paid, and in any case the administrative costs in these cases must be even less than in the cases that are determined on paper alone.
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I am concerned by the statement in paragraph 8.4 of the Explanatory Memorandum-which has already been referred to-that,
- "the Government decided to withdraw the proposal to charge a further fee for bringing an appeal to the UTIAC for the present".
I would like to know what change in circumstances might cause them to revive this proposal-which, as has been said, was unanimously opposed by all 27 respondents to the consultation-at some time in the future. As my noble friend said in his comments on the order, this decision not to impose fees for appeal to UTIAC was taken at this time. So obviously the Government have in mind some future change in the circumstances which would dispose them towards charging fees in the Upper Tribunal. I would like to know what those are.
Appellants have already paid a large fee to make an application that has been refused-£900, for example, in the case of an application for indefinite leave to remain-and on top of that they are likely to have to pay for legal representation if the proposed changes in the legal aid system are implemented.
As regards asylum seekers, I do not agree that the exemption from payment of these fees should be limited to those who are in receipt of asylum support. Many are not eligible for that support because they are staying with friends and therefore do not agree to be dispersed. Any asylum seeker who meets the financial and merits criteria for legal aid ought to be exempt, as should also victims of domestic violence, unaccompanied children and anyone who has a case under the ECHR, the refugee convention, any provision of EU law to which the UK is a party and the European Convention on Action against Trafficking in Human Beings.
The impact analysis estimates that three-quarters of asylum applicants would be exempt already, as my noble friend has pointed out, under the government proposals, and of the remaining 25 per cent, another quarter have successful appeals and are awarded costs. The table in paragraph 4.30 of the analysis shows that in any of the four scenarios examined, the amount of money recovered less the cost of pursuing the asylum seeker for payment is not significant compared with the undermining of the spirit of our obligations under the refugee convention. I would like to ask my noble friend whether the Government have consulted the UNHCR about this aspect of the proposal, and, if so, what was their response. My noble friend pointed out that similar tribunals do not impose fees on appellants. Since the majority of immigration and asylum appellants are from minority ethnic groups, imposing fees for this part of the justice system only risks creating unlawful race discrimination. If, contrary to these arguments, fees are imposed, they should be paid by the UKBA if the appeal is successful. This would promote equality of arms and should discourage the UK Border Agency from making unwarrantable refusals of applications.
This is not the first order that we have had on an immigration issue where the cost-benefit analysis-as my noble friend pointed out in detail-is based on pure guesswork. Two arbitrarily chosen scenarios as to the behavioural response to fee charging have been picked as the basis for the calculations: that a £100 fee would lead to a decrease in appeal volumes of 10 per
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"Justice" is not a word that comes into the Explanatory Memorandum or the impact analysis; the objective is to save money, irrespective of whether the outcomes conform with the merit of the applications.
Lord Bach: My Lords, I start by thanking the Minister for explaining the order in his opening remarks so clearly and succinctly. I also thank the other speakers in the debate. It could be argued that between them they pretty well demolished the entire point of the order. Of course, when we were in government, we too thought of this-but we did not implement it. It now falls to the Minister to justify why we should take the steps that he intends us to take.
Clearly, this is an important and controversial order. Many points that I wanted to make have been very well made already by the three Back-Bench speakers. It is an important moment not least because-as the noble Lord, Lord Thomas of Gresford, said, and as paragraph 4.1 of the Explanatory Memorandum states-this is the first instance of fees being imposed in an action by the state against an individual.
Secondly, perhaps a little less importantly-this point was made by the noble Lord, Lord Avebury-it would also be on top of the fee already paid for making the application that is being appealed against. This point was very well made by the Immigration Law Practitioners' Association in its briefing to noble Lords.
The first application for leave to remain in the United Kingdom-the noble Lord, Lord Avebury, used this example-costs £900 per person. If it is made at the UKBA, the cost will be £1,250 per person. The fee is not for the appeal but for the original application. It costs £70 to apply for a visitor's visa from abroad. An application for a student visa costs £220, and there are other costs as well. The fee is not refunded if the application is refused. I suppose that some unmeritorious appeals might not be heard as a consequence of the order but I wonder, particularly after the analysis of the impact assessment made by noble Lords, how much the Government really expect to save from the order before us.
I pay tribute to the Government because they have conceded on more points following the consultation. This point was made by the noble Lord, Lord Newton of Braintree. They have made genuine concessions, particularly in the exemptions under Article 5 of the order in the areas of under-18s, children in need, asylum support, people in detention, appeals and decisions to remove. That is a more generous list than before the
12 Oct 2011 : Column 1805
"No fee is payable where, at the time the fee would otherwise become payable, the appellant is, under the 1999 Act",
in receipt of legal aid. How can this provision be squared with the proposed withdrawal of legal aid for many areas? To put it mildly, there is an irony in its appearance in the order that we are being asked to pass tonight when the legal aid Bill is well on its way to this House.
Article 5(3) in a number of cases will become an irrelevance. Asylum cases will generally stay in scope, but much immigration law will be removed from scope if the Government get their way. I hope the noble Lord will not object if I repeat a question that was asked by my honourable friend Mr Andrew Slaughter MP, who spoke from the opposition Front Bench when the order was debated in another place on 14 September last. He asked why, if legal aid becomes no longer a criteria simply because it does not exist, an exemption should not be made for those on low incomes or specified benefits who would have been eligible for legal aid if it had still existed.
The Minister drew back the curtain a little on this when he said that the Government would come forward to make allowance for legal aid going out of scope. However, I would like him in his reply to tell us a little more about what the Government plan. Surely the criteria should remain the same whether legal aid exists or not. The Minister in another place did not answer that question in his summing up. I hope that the noble Lord will tonight.
Nor did the Minister in another place answer when he was asked to clarify figures from 2009-10 for success rates when public funding was available in these cases, and for when it was not. The noble Lord, Lord Avebury, told us about the difference between oral and paper hearings. These questions are about when legal aid was available. I ask whether the following figures are correct. As far as concerns migration, there was a 52 per cent success rate on appeal without legal aid but a 60 per cent success rate with legal aid. On asylum cases, there was a 25 per cent success rate on appeal without legal aid and a 37 per cent success rate with legal aid. For entry clearance cases, there was a 36 per cent success rate without legal aid and a 65 per cent success rate with legal aid. Lastly, for family visits, there was a 44 per cent success rate without representation under legal aid and 53 per cent success with legal aid. The Minister in another place was not able to confirm whether the figures were correct. It may be that the Minister tonight cannot answer the question, either. If he cannot, I would be very grateful if he would write a letter with the answers to the questions, which will appear in Hansard, and send a copy both to me and to other noble Lords who spoke in the debate. Those figures seem to imply, and in fact go further than that to prove, that representation is of enormous benefit to appellants. This is hardly a surprising conclusion but it is of course a very important one in the arguments about legal aid that we will no doubt enjoy in a few weeks.
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8.30 pm
That leads me to worry whether the joint effect of first, charging a fee for an appeal, which this order does, and secondly, removing legal aid, may-or undoubtedly will-lead to some meritorious cases not getting as far as the appeal. Of course that is an unintended consequence-the Government do not intend that to happen-but we suspect it might happen. Can the Minister assure us that it will not happen if this order is passed and legal aid is then simply abolished in a few months?
Perhaps I may make three last points, because I do not want to repeat those made so tellingly by other noble Lords. First, we are grateful that the Government have come to the view that there should be no additional fee for the Upper Tribunal, but the noble Lord, Lord Avebury, asked the right question: is this a definite view for the long term, or is it just for the time being? I would like the Minister to explain the Government's present position on that.
Secondly, successful appellants may, at the discretion of the tribunal, get the cost of their fee returned. The Government have given ground on that and they should be congratulated on doing so. But the tribunal only has the power to give the costs back on a successful appeal, and that does not seem to us to be quite enough. Should there not be a presumption that a successful appellant will get the fee costs back at the end of their case? Of course that presumption can be rebutted if there are various aspects of the case that the judge feels mean the appellant should not get the costs back, but to say that it is just at the discretion of the court is not really any help at all. Why can it not be a presumption that may be rebutted?
Lastly, this is new territory and I think the Government are wary of the effects it may have; the impact assessment seems to say so. Would it not be sensible to review carefully the workings of this order in the next few months, and certainly over no more than a year? What plans do the Government have to review how it works and to inform Parliament of the conclusions?
As I think the Minister will be able tell-and I have been in his position a number of times-there is not much enthusiasm for this order in the House tonight. We are not going to vote against it. But I think it is clear from what I have said, and abundantly clear from what other noble Lords have said, that those interested in these matters are pretty unhappy about this course of events and it would have been better if the Government had not started down this road.
Lord McNally: My Lords, I am grateful for the contributions to this debate. They do not entirely surprise me. What the Government are trying to do is difficult, and it is always easier to spend taxpayers' money. I understand what colleagues are saying, but I think that they are putting slightly too much burden on their fears and on warnings. We are talking about asking people to pay 25 per cent of the charge for a process which-as has been acknowledged-will have already carried a fee of some £900. This is not a case of the state casually dropping on innocent citizens and prosecuting them. This is about people who are applying to enter our country, who are paying a fee for a process and where, at a second stage of that process-the tribunal level-we are suggesting a very modest fee.
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I fully accept that we are going to have a much more fundamental debate when the Legal Aid, Sentencing and Punishment of Offenders Bill reaches us, and I will be very happy to take on that debate. We are suggesting that there are certain areas of legal aid, which have been covered, where my right honourable friend the Lord Chancellor and I believe that it is not the business of the taxpayer to finance the legal profession to participate in these activities. Indeed, at the tribunal level we believe that the emphasis should be put on a much less legalistic approach, but that may be a debate for another day.
I do not think that this is a horrendous charge. It will benefit the taxpayer because we expect the savings and receipts to benefit the budget by £16 million to £20 million a year. Again, this must be seen in the context of dealing with almost 200,000 appeals. Whether the charges will have an impact on a falling-off of appeals will have to be seen, but I suspect that it will; it certainly may have a small deterrent effect on non-meritorious appeals. But if one looks at how my right honourable friend the Lord Chancellor has gone out of his way to create as broad as possible a range of exemptions and inclusions-the noble Lord, Lord Bach, was good enough to acknowledge that-I do not think that this is the harsh and unfeeling policy that has been suggested.
The noble Lord, Lord Avebury, asked whether we had consulted the UNHCR. Yes, we did, as part of the full consultation. Perhaps not surprisingly the commission did express concerns about the charging of refugees and others, but there was no suggestion that in so doing we were breaking any of our international obligations. I am sure that we will have a debate on other matters because we are looking to reduce the amount of money that the taxpayer contributes to a range of legal activities, and in this case we are asking those who apply to enter our country-it has been conceded that they will have already paid a considerable fee up front-if they have to appeal against a decision, to pay a modest fee in response. I do not think that that is the kind of horrible policy suggested by my noble friend Lord Thomas of Gresford. It is one of those necessary activities we are undertaking partly to reset the system that we inherited and partly to ask those who make use of the system to make a modest contribution.
Future changes will be affected in part by the decisions of the Bill before the House, and I have already explained how that will make a further impact on tribunal work. The noble Lord, Lord Bach, asked about the discrepancies in the success rate of appeals supported by legal aid versus those that are not. I understand that the figures are not published by the Ministry of Justice, but we will investigate them and write to the noble Lord. On our plans for future fee levels, the Government have committed themselves to regular reviews, the first of which will take place in 2012. I think that I have covered most of the questions that were raised by noble Lords, but if I have not, I will certainly write in clarification.
We are not looking at this as a draconian hurdle that makes it impossible for people to appeal; quite the contrary. How we have set up the structure and the
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Finally, in response to the representations made about consultation, the order provides that the tribunal may instruct UKBA to refund the fees of successful appellants, thus ensuring that they do not have to pay to correct the errors of the agency. That in itself will incentivise the agency to improve its initial decision-making-I take the point made by my noble friend Lord Avebury about that-and will reduce the rate of successful appeals to the tribunal. I note what has been said and that we will be returning with vigour to some of these issues when the LASPO Bill comes before the House. But, overall, I believe that this is a carefully measured proposal that will reduce government expenditure at a time when this is vital to our economic well-being, while maintaining access to an important means of challenging the decisions of the Executive in the immigration field. In that spirit, I commend this draft order to the House.
8.44 pm
Localism Bill
Report (6th Day) (Continued)
8.49 pm
Clause 100 : Adoption and withdrawal of development plan documents
204C: Clause 100, page 78, line 25, at end insert-
"(ai) that the document has had due regard to protecting and enhancing the quality and character of the countryside"
Lord Marlesford: My Lords, my Amendment 204C relates to the central issue of the Bill-the purpose of the planning system. I want, therefore, to put it in an historical and political context. I have always thought that the two great achievements of the post-war Attlee Government were the creation of a national health
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The creation of our planning system really goes back to 1928. That was the year that the great architect and conservationist Clough Williams-Ellis produced a polemical book called England and the Octopus, in which, in the words of Jonathan Dimbleby:
"He waged war on the ugliness, selfishness and short-sightedness and the catastrophic consequences of these human frailties on the precious quality of rural England".
In 1928, the CPRE, of which in 1996 Jonathan Dimbleby was president and I was chairman, was in its infancy; but Clough Williams-Ellis and the other founding fathers such as Patrick Abercrombie used it to create the pressure from which, 20 years later, we got our planning system. That the planning system needs reform, I hope none of us would contest; but the rather ill-informed and ill-prepared zest with which the Government launched this Bill and the draft NPPF provoked and indeed alarmed a large section of the huge community that cherishes the English countryside.
Amendment 204C, which is being promoted by the CPRE, and is also supported by the National Trust and the Heritage Alliance, seeks to ensure that, when they are preparing local development plans, local planning authorities give due consideration to the need to protect and enhance the countryside, in the words of the late Nicholas Ridley-who was a tough Treasury minister and a true Tory-"for its own sake".
One of the central tenets of the post-war planning system in England is that by guiding appropriate development to sustainable locations in the countryside, the countryside itself should be protected from unnecessary and irreversible damage, and the regeneration of our towns and cities promoted.
This principle is currently upheld by a series of policies contained in national planning policy statements, including policy EC6 in Planning Policy Statement 4: Planning for Sustainable Economic Growth, that the countryside should be protected,
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Critically, this protection is not just conferred on high-profile designated areas of countryside, such as national parks, areas of outstanding natural beauty and heritage coasts, but on the ordinary countryside which is enjoyed by and which improves the quality of life of rural and urban dwellers all over England. However, the Government's planning reforms, being implemented by both the Localism Bill and the draft NPPF, as currently drafted, stand to remove the existing protection for the wider, ordinary countryside. I should emphasise that undesignated countryside makes up well over half of all countryside in England.
In addition, the NPPF introduces a,
a material consideration which my right honourable friend the Chancellor, in his 2011 Budget speech, summarised as meaning that,
Understandably, the Government have been reluctant to define the term "sustainable" but, as my noble friend Lord Deben says, in a sense we all know what we mean by sustainable. It is common sense and it is localism at its most intense.
As Amendment 204D, in the name of the noble Lord, Lord McKenzie of Luton, draws attention to, the draft NPPF also does not contain a presumption that previously developed land should be developed first-the brownfield first policy-and it does not require planning authorities to have policies on housing density.
We should remember two points. First, developers will always go for green land rather than brown, if they have the choice, as it is so much cheaper to build on. Secondly, in general, the lack of housebuilding, particularly now, is probably more due to the economy than to a shortage of land. Housebuilders will not build houses if they cannot sell them.
Taken together, these changes will have serious and potentially devastating implications for the future of the countryside. They will create pressure on undesignated countryside, drastically limit the ability of local authorities to contain urban sprawl, to promote sustainable patterns of development and, therefore, to maintain a distinction between town and country and to plan for a high-quality and sustainable built environment.
It is not at all clear how, in the absence of national policy that promotes the protection and enhancement of the wider countryside, the Government intend to ensure that the countryside is protected from unnecessary and irreversible damage under the terms of its planning reforms. My amendment would create a legal requirement that development plans should not be deemed sound unless they have had due regard to the protection and enhancement of the countryside.
In their natural environment White Paper, published earlier this year, the Government declared their ambition for,
- "this to be the first generation to leave the natural environment of England in a better state than it inherited".
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This document, significantly, also recognises the intrinsic value of the natural environment, and explicitly includes the open countryside in its definition of natural environment.
9 pm
In May 2008, the present Prime Minister told CPRE:
"The beauty of our landscape, the particular cultures and traditions which rural life sustains, these are national treasures to be cherished and protected for everyone's benefit. It is not enough for politicians just to say that - we need leaders who really understand it and feel it in their bones. I do."
I hope my noble friend can say amen to that. Just last week, the Prime Minister recognised the importance of the countryside, stating in his speech to the Conservative Party conference:
"I love our countryside and there's nothing I would do to put it at risk".
Also in Manchester, the Communities Secretary, my right honourable friend Eric Pickles, said:
"Our countryside is one of the best things that makes Britain great, and we will protect it".
These are welcome commitments, but the planning system is the key means we have of protecting the natural environment, and these commitments will amount to nothing if we do not get the detail right. Perhaps in her response the Minister will say that the NPPF, rather than the Bill, is the right place to deal with these concerns, but she will be aware that very many people who care about the countryside, whether they live in urban or rural areas, have looked at the draft of that document and are extremely concerned about its contents. I hope that today she can give me an unequivocal assurance that the planning system will continue to protect the countryside for its own sake. If this is to be done in the NPPF, rather than the Bill, before Third Reading, the Government must provide the House with detailed wording of how this will be done.
Simon Cairns, the highly experienced and entirely non-political director of the Suffolk Preservation Society, of which I am president, sent me an e-mail last week in which he said:
"I am frankly amazed that a Conservative Administration is proposing to remove the national policy presumption against development in the open countryside. This would undermine the very cornerstone of our national planning system".
There will be an audience, well beyond the Palace of Westminster, for my noble friend's reply today. I pray that she will not disappoint them.
Lord McKenzie of Luton: My Lords, we have Amendment 204D in this group, and we have added our name to the amendment moved by the noble Lord, Lord Marlesford. My approach to this will be much more mundane than the rhetoric, commitment and passion that we have just heard from the noble Lord, but we support the thrust of his inquiry. There is no doubt that this combination of the Bill and the NPPF-we struggle to have these two different tracks of change in planning policy-has created great consternation in a constituency which is probably closer to the Minister and her colleagues than to us. There are clear questions that have to be answered.
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I agree with the noble Lord, Lord Marlesford, who said when he moved this amendment that the two great achievements of what these Benches call the Attlee Government and view with great affection were the creation of the NHS and the planning system. Was it Mr Silkin who did it in the Commons?
Lord McKenzie of Luton: I am advised that it was Lewis Silkin. We have some historical perspective on our side as well. I would not say they were the only achievements of the 1948 Government-there was much else-but I agree with that assessment. I never aspired to do what my noble friend Lord Rooker did in tearing up ministerial briefs. It is only somebody with my noble friend's experience who could get away with doing that.
The noble Lord has focused on a real question about protecting the countryside. The Minister may well pray in aid the draft NPPF, subject still to that final consultation, and say that it is all covered in there. However, the onus is on the noble Baroness tonight to say that it is.
Amendment 204D talks about "previously developed" land. Sometimes the shorthand of "brownfield sites" gets mixed up with that terminology, even by Minister Greg Clark himself in an exchange in the other place. He was questioned and answered:
"I am happy to reassure the hon. Gentleman that that is not the case"-
that is, a planning free-for-all.
"If he takes the specific example of brownfield sites, he will find that paragraph 165 of the framework sets out clearly that land of the least environmental value should be brought forward first. That is another way of saying, brownfield land first".-[Official Report, Commons, 5/9/11; col 20.]
However put, if that is still the policy, and demonstrably so, then it clearly has our support. The success of that approach is clear: the "brownfield first" policy has been working. Last year, 76 per cent of new dwellings were built on brownfield sites-an increase from 55 per cent in 1989-but we are entitled to inquire how that position is going to be protected in the new world of planning. Will the Government confirm that it is their intention that that should be the approach? We would be pleased to hear it confirmed this evening and the extent to which it is reflected either in the Bill, which I do not think it is, or in the NPPF and its references focusing on it. I am advised that it is estimated that there are already 62,000 hectares of previously developed land ready for building on, of which 10,000 are in the south-east. This is enough to build more than 1.2 million new homes.
The issues for the Minister in replying are clear: she has to reassure us-and as the noble Lord, Lord Marlesford, said, she must also reassure a much wider public-about the Government's intent. More importantly, how is that intent reflected in the NPPF or the Bill? Without necessarily analysing the timing, manner or wording of the NPPF and the Bill, there is no doubt that it created a furore and a backlash. It is incumbent on the Government tonight and in going forward to clarify their position and reassure those who are concerned about what may happen to the countryside.
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I would argue not only for the countryside. I have always lived in an urban area and there are issues about urban spaces as well, but this focus is on the countryside, particularly that part that is not specifically designated as greenfield land. The NPPF focuses on designation and the circumstances in which designation might be reassessed. One of the propositions is that if local development plans are revised or updated, that may be a trigger for reviewing the boundaries of greenfield land. Given that there is not a local development plan in the land that will be up to date when this Bill comes into force, there is a big question mark over that as well.
I am sorry I cannot muster the passion of the noble Lord, Lord Marlesford, in his arguments for the countryside, but I support those arguments and seek reassurance on developing previously developed land first as the policy and commitment of the Government.
Lord Judd: My Lords, passion perhaps not, but I know that my noble friend's commitment is outstanding on these issues. I welcome his amendment because while I support all the arguments that he made about brownfield site priority, one other important point which is sometimes overlooked is that if we give priority to brownfield site development we have a chance to improve the character of our urban areas. There is a chance to do imaginative things with housing and the rest in the middle of our urban areas.
I should declare an interest as president of the Friends of the Lake District, which also represents the CPRE in the whole of Cumbria. I am also vice-president of the Campaign for National Parks, but they are not really central, as the noble Lord, Lord Marlesford, explained, to our concerns tonight. The Government have made it pretty clear, which is very reassuring, that they have a commitment which they fully intend to honour to the national parks and the areas of outstanding natural beauty. That is a terrific undertaking from the Government and we look forward to seeing them fulfil it not only in the detail but in the spirit.
The noble Lord, Lord Marlesford, recaptured history very well. I was just entering my teens when the new planning legislation became operative. As the noble Lord, Lord Tope, knows very well, I was born in what was then Surrey on the edge of London and grew up in that area. I remember the concern among my family and many others as we saw many of the rich rural areas of Surrey near London being eroded by road building, ribbon development, new housing and the rest. It was a great sense of relief when this legislation came in. Some beautiful parts of the county of Surrey were preserved very near to London.
I know how important that was to me in my upbringing because as an active Boy Scout and keen walker I was always out in those areas, and so were many other people. Of course, these areas of beauty and of rich natural inheritance near to our urban centres are of special importance. It would be unforgivable if we were to let those slip and let further erosion develop.
We must remember something else. This idea about planning and the preservation of the countryside did not just come out of an elitist brain: it was something forged strongly in the context of the Second World
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