39B: After Clause 8, insert the following new Clause—

“Extension of economic development powers to Councils

In the Localism Act 2011, after section 16 insert—

12 Mar 2013 : Column 171

“16A Duty to report on proposals for the extension of devolved economic development powers to all local councils

(1) Within one year of the second round of bespoke “city deals” being completed, the Secretary of State must lay before Parliament a report setting out the government proposals, policies and timescales for the extension of devolved economic development powers to all local councils.

(2) The report must, in particular, fully set out—

(a) the case for making the “core package” of devolved powers achieved in the second round of bespoke “city deals” available to all councils to help boost growth; and

(b) the timescales over which those proposals and policies are expected to take effect.

(3) Where the Secretary of State has determined it not appropriate to extend devolutionary powers to all local councils, the report must, in particular, fully set out—

(a) why this has been determined as not appropriate;

(b) include a resolution that sets out how the government intends to review this determination; and

(c) the review of this determination must be laid before Parliament not later than one year following the laying of the original report.””

Lord McKenzie of Luton: My Lords, we had a short but harmonious debate on an equivalent amendment in Committee, which was moved by the noble Lord, Lord Jenkin of Roding, on behalf of himself and the noble Lord, Lord Tope.

In his response to the debate, the noble Lord, Lord Ahmad of Wimbledon, in expressing his agreement with the thrust of the amendment, said:

“I do not think for a moment that we are where we want to be with the city deals. This is an evolving issue”.—[Official Report, 30/1/13; col.1587.]

Of course, things have evolved further to that discussion with an announcement by the Deputy Prime Minister on 19 February of 20 more cities that were offered city deals.

We fully support the proposals of the city deals, but must express some concern that other areas risk losing out. We do not want to see two-speed regional growth with city deal areas motoring ahead and other regional cities or towns left behind. While we welcome the stated intent that the Government wish to move away from a London-centric approach, we do not want to see that replaced with a “some cities”-centric approach. It is essential that we develop a strategy that works for the whole country, rather than just part of it. We understand that the second wave of deals will enter staggered negotiations on devolved powers and funding, with the aim of these being concluded by the end of 2013. Of course, not everything can be accomplished at once, but there are recorded expressions of disquiet from some county council leaders that the impetus for negotiated deals outside urban areas is not strong.

Little in this Bill is actually focused on growth, but the prospects of greater devolution of power and responsibilities to more local leaders who are best placed to understand the economic opportunities and challenges they face is one means of addressing this omission. Adopting this new clause would require the Government to maintain momentum beyond the identified urban areas. It does not prescribe that all local councils must end up with the some deals, but they should all have the opportunity to be engaged. I beg to move.

12 Mar 2013 : Column 172

Lord Ahmad of Wimbledon: My Lords, we discussed this issue very thoroughly in Committee, as the noble Lord, Lord McKenzie, said. I welcome the general support for the initiative. City deals are about bespoke solutions to unlocking local growth and trialling different and innovative approaches. They offer a real opportunity to drive growth across the country. The first eight cities have estimated that their deals will create 175,000 jobs over the next 20 years and 37,000 new apprenticeships.

Following the success of wave one, we opened up city deals to another 20 areas, to which the noble Lord, Lord McKenzie, has already alluded. They have submitted their initial proposals and we are working closely with these areas. However, it would not be appropriate or effective or represent value for money to roll these out to all local authorities in the same format. I have already said that these are bespoke solutions for each area.

Although city deals are not the solution everywhere, the Government recognise the importance of effective devolution. We have a strong record of commitment to a localist agenda and are working with authorities to provide the powers and support they need. Therefore, where it would make sense to make local models developed in city deals more widely available, as I have previously said, we will certainly do so.

We are giving local authorities much greater control over their own local budgets. An estimated 70% of the income will be raised locally, compared with 56% under the current formula grant system. From next April, councils will retain nearly £11 billion of business rates. This was recently initiated. I know that many noble Lords from across the Chamber have been involved in local government and that this is something for which, through their own experience in local government, they have campaigned long and hard. That is now happening. In addition, the Government intend to devolve a greater proportion of future growth-related spending based on the recommendations in my noble friend Lord Heseltine’s recent review.

5.30 pm

The Government provided an initial response to my noble friend’s recommendations in the Autumn Statement in December 2012. This response set a direction for the devolution of government spending to local areas on the basis of strategic plans developed by local enterprise partnerships, through creating a single funding pot for local areas from April 2015. As set out in the initial response, the Government intend to publish their formal response to my noble friend Lord Heseltine’s report this spring. I assure noble Lords that we will not judge spring by the weather. If we did, we would certainly still be in winter. I thought that I would clarify any climactic challenges that noble Lords might raise.

This single funding pot may include local transport, housing, schemes to get people back into work, skills and any additional local growth funding. I reiterate that I welcome the support for the city deals. I hope noble Lords will understand that, for the reasons given, we cannot accept the amendment.

Lord Shipley: My Lords, I have a question for the Minister about timing. There are three separate contributors to a policy that the amendment seeks to

12 Mar 2013 : Column 173

address. One is the report of my noble friend Lord Heseltine, to which we hope there will be a response quite soon. Separately, there is the request in this amendment that, within one year of the second round of city deals being completed, a report would be produced. That could take us through to the autumn of 2014. Then, quite separately, there was the Deputy Prime Minister’s commitment at the end of October, which I quoted in Committee, when he said of the second wave:

“while it’s too early to talk exactly about what a third Wave might look like, I very much see this as a step in a journey”.

We have all these things. It seems that there might be an opportunity for a round table discussion over the summer once some of the timing of some of these matters is a bit clearer.

Lord McKenzie of Luton: My Lords, I thank the Minister for his reply. We agree with the Government about the progress of city deals thus far. However, the amendment is about completing arrangements so that councils that feel left out at the moment can be reassured that a process is under way, a requirement on the Government to report back. It does not require the Government to produce exactly the same solution for every council; it recognises that there will not necessarily be arrangements for absolutely every council in the land. We are trying to ensure that councils that at the moment feel uneasy about the concentration on urban areas, and are feeling left out, are reassured. If the Deputy Prime Minister says that that is a step along the way, that is fine, but why not accept the amendment, which imposes an extra obligation on the Government to make sure that what has happened so far is just a step along the way?

Having heard the Minister’s reply, and not wishing to divide on an issue where we have some fundamental agreement about the core cities programme, I think the Government are unwise not to accept this fairly modest request for a further obligation to look across the piece. Accordingly, I would like to test the opinion of the House.

5.34 pm

Division on Amendment 39B.

Contents 176; Not-Contents 241.

Amendment 39B disagreed.

Division No.  1


Adams of Craigielea, B.

Adonis, L.

Ahmed, L.

Alton of Liverpool, L.

Bach, L.

Bakewell, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Bichard, L.

Bilston, L.

Blackstone, B.

Blood, B.

Borrie, L.

Bradley, L.

Brennan, L.

Brooke of Alverthorpe, L.

Brookman, L.

Brooks of Tremorfa, L.

Browne of Belmont, L.

Browne of Ladyton, L.

Campbell-Savours, L.

Carter of Coles, L.

12 Mar 2013 : Column 174

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Collins of Highbury, L.

Corston, B.

Crawley, B.

Davies of Oldham, L.

Davies of Stamford, L.

Desai, L.

Donaghy, B.

Donoughue, L.

Drake, B.

Dubs, L.

Eames, L.

Elder, L.

Elystan-Morgan, L.

Emerton, B.

Evans of Parkside, L.

Evans of Temple Guiting, L.

Evans of Watford, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Gilbert, L.

Golding, B.

Gordon of Strathblane, L.

Goudie, B.

Gould of Potternewton, B.

Grantchester, L.

Greengross, B.

Grenfell, L.

Griffiths of Burry Port, L.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Hilton of Eggardon, B.

Hollis of Heigham, B.

Howarth of Newport, L.

Howells of St Davids, B.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Irvine of Lairg, L.

Janner of Braunstone, L.

Jay of Paddington, B.

Jones of Whitchurch, B.

Jones, L.

Jordan, L.

Judd, L.

Kennedy of Southwark, L.

Kerr of Kinlochard, L.

King of Bow, B.

Kinnock of Holyhead, B.

Kinnock, L.

Kirkhill, L.

Knight of Weymouth, L.

Laird, L.

Layard, L.

Lea of Crondall, L.

Liddell of Coatdyke, B.

Lister of Burtersett, B.

McAvoy, L.

McConnell of Glenscorrodale, L.

Macdonald of Tradeston, L.

McIntosh of Hudnall, B.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Martin of Springburn, L.

Masham of Ilton, B.

Massey of Darwen, B.

Maxton, L.

Mitchell, L.

Montgomery of Alamein, V.

Moonie, L.

Morgan of Drefelin, B.

Morgan, L.

Morris of Aberavon, L.

Morris of Handsworth, L.

O'Loan, B.

Ouseley, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Patel, L.

Pendry, L.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prosser, B.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Rea, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Rowlands, L.

Royall of Blaisdon, B.

Sandwich, E.

Sawyer, L.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Smith of Leigh, L.

Stern, B.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Touhig, L.

Triesman, L.

Tunnicliffe, L. [Teller]

Turnberg, L.

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Warner, L.

Warnock, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Wilkins, B.

Wills, L.

Winston, L.

Wood of Anfield, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.

12 Mar 2013 : Column 175


Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Anelay of St Johns, B. [Teller]

Armstrong of Ilminster, L.

Arran, E.

Ashton of Hyde, L.

Astor of Hever, L.

Astor, V.

Attlee, E.

Baker of Dorking, L.

Ballyedmond, L.

Barker, B.

Bates, L.

Benjamin, B.

Berridge, B.

Blackwell, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Brabazon of Tara, L.

Bradshaw, L.

Bridgeman, V.

Brinton, B.

Brittan of Spennithorne, L.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browning, B.

Burnett, L.

Buscombe, B.

Byford, B.

Cameron of Dillington, L.

Carlile of Berriew, L.

Cathcart, E.

Cavendish of Furness, L.

Chadlington, L.

Chalker of Wallasey, B.

Chester, Bp.

Clement-Jones, L.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Courtown, E.

Craigavon, V.

Crickhowell, L.

De Mauley, L.

Dear, L.

Deben, L.

Deech, B.

Deighton, L.

Dholakia, L.

Doocey, B.

Dykes, L.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Edmiston, L.

Elton, L.

Empey, L.

Erroll, E.

Falkner of Margravine, B.

Faulks, L.

Fearn, L.

Fellowes of West Stafford, L.

Fink, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Fraser of Carmyllie, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Goodlad, L.

Grade of Yarmouth, L.

Griffiths of Fforestfach, L.

Hameed, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Harris of Richmond, B.

Henley, L.

Heyhoe Flint, B.

Hill of Oareford, L.

Hodgson of Astley Abbotts, L.

Home, E.

Hooper, B.

Howard of Lympne, L.

Howarth of Breckland, B.

Howe of Aberavon, L.

Howe, E.

Howell of Guildford, L.

Hunt of Wirral, L.

Hurd of Westwell, L.

Hussain, L.

Hussein-Ece, B.

Inglewood, L.

James of Blackheath, L.

Janvrin, L.

Jay of Ewelme, L.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

Kakkar, L.

Kalms, L.

King of Bridgwater, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Laming, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Lester of Herne Hill, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Loomba, L.

Lothian, M.

Lucas, L.

Luce, L.

Luke, L.

Lyell, L.

Lytton, E.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

MacLaurin of Knebworth, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Maginnis of Drumglass, L.

Marks of Henley-on-Thames, L.

Marland, L.

Marlesford, L.

Mayhew of Twysden, L.

Methuen, L.

12 Mar 2013 : Column 176

Miller of Chilthorne Domer, B.

Miller of Hendon, B.

Montrose, D.

Morris of Bolton, B.

Moynihan, L.

Naseby, L.

Nash, L.

Neville-Jones, B.

Newby, L. [Teller]

Newlove, B.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

O'Neill of Bengarve, B.

Palmer of Childs Hill, L.

Palmer, L.

Palumbo, L.

Pannick, L.

Parminter, B.

Patten, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Popat, L.

Rana, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Renfrew of Kaimsthorn, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Rodgers of Quarry Bank, L.

Rogan, L.

Roper, L.

Rowe-Beddoe, L.

Ryder of Wensum, L.

St John of Bletso, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharp of Guildford, B.

Sharples, B.

Shaw of Northstead, L.

Sheikh, L.

Shipley, L.

Shrewsbury, E.

Shutt of Greetland, L.

Skelmersdale, L.

Slim, V.

Smith of Clifton, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Sterling of Plaistow, L.

Stewartby, L.

Stirrup, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Sutherland of Houndwood, L.

Taverne, L.

Taylor of Holbeach, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Tonge, B.

Tope, L.

Tordoff, L.

Trefgarne, L.

Trenchard, V.

Trimble, L.

True, L.

Tyler, L.

Ullswater, V.

Verma, B.

Waddington, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Walpole, L.

Walton of Detchant, L.

Warsi, B.

Wasserman, L.

Wei, L.

Wheatcroft, B.

Wilcox, B.

Willoughby de Broke, L.

Younger of Leckie, V.

5.47 pm

Amendment 40A

Moved by Baroness Byford

40A: After Clause 12, insert the following new Clause—

“Registration of town or village green: reduction of period under section 15(3)(c)

(1) Section 15 of the Commons Act 2006 (registration of greens) is amended as follows.

(2) In subsection (3), in paragraph (c), for the words from “the period” to the end of the paragraph substitute “the relevant period”.

(3) After that subsection insert—

“(3A) In subsection (3), “the relevant period” means—

(a) in the case of an application relating to land in England, the period of one year beginning with the cessation mentioned in subsection (3)(b);

(b) in the case of an application relating to land in Wales, the period of two years beginning with that cessation.””

Baroness Byford: My Lords, I shall speak also to Amendment 40D standing in my name. I apologise for my voice, which is going. Amendment 40A introduces

12 Mar 2013 : Column 177

a new clause which amends the Commons Act 2006, reducing the time period from two years to one in cases where the application relates to land in England—that is, in proposed new subsection (3A)(a)—and, in relation to land in Wales, proposed new subsection (3A)(b) specifies,

“the period of two years beginning with that cessation”.

I remind the House that I am a member of the CLA. In its briefing, it considers that the two years proposed for England is too long a period. The briefing states that where people have genuine concerns—which I am sure they do,

“that they are being denied access to a site which they genuinely believe they are entitled to have registered as a village green or the basis on which they are accessing it has been changed, it need not take more than one year for the community to be galvanised into action, hold a local meeting, gather their evidence and make an application for a claim. A year is really quite a generous period of time”.

The briefing goes on to say:

“The proposal for the new map and statement procedure (clause 13) is going to involve wide publication of such a deposit including notification to parish councils and notification by email to any party having requested the registration authority to inform them of the deposit of such statements. So notification will to all intents be instantaneous”.

In Committee on 30 January this year, the Minister offered reassurance that,

“where a landowner statement is deposited with a commons registration authority, the authority will be required to publicise it”.—[

Official Report

, 30/1/13; col. 1602.]

My understanding is also that anyone interested in the notification can, if they give their e-mail details, have this information sent to them as soon as the declaration has been registered by the registration authority, with parish councils being notified in the same way. That being so, my amendment reduces the time limit from two years to one.

One difficulty is that if a landlord tries to sell some land to which there has been some element of public access for a period, the purchaser’s solicitors will be filled with trepidation about a potential claim coming for village green status. Generally they will insist on the use being stopped or made permissive, and on waiting two years to see whether a challenge is made before completing the purchase. This is unnecessary in the context of today’s modern communications. With further apologies for my voice, I beg to move.

Lord McKenzie of Luton: My Lords, briefly, we cannot support the amendment moved by the noble Baroness. It is a restriction on the registration of town and village greens, and we think that the balance is already moved in a restrictive direction by this Bill.

Lord Ahmad of Wimbledon: My Lords, I thank my noble friend for tabling the amendment and particularly for taking the time, despite her straining voice, to articulate the reasons behind it. I had hoped that the noble Lord, Lord McKenzie, on the Benches opposite might have shown some sensitivity in accepting her amendment. It now falls to me to reiterate the Government’s position.

The purpose of the amendment tabled by my noble friend is to reduce from two years to one year the “period of grace” within which a town or village green

12 Mar 2013 : Column 178

application can be made after the requisite 20 years of recreational use as of right has ceased. Currently Section 15(3) of the Commons Act 2006 allows a two-year period during which a greens application can be made after the end of a 20-year period of recreational use as of right. After such use has been challenged, it takes time for the local community to recognise that challenge and, if it wishes, to put together the information necessary to make an application. The key steps would be to seek out evidence in support of the application, to identify witnesses, to gather testimony and to collate and prepare evidence for submission.

My noble friend made important points about the impact of the current legislation on landowners. Her concerns are valid, and I agree that a period of a year is sufficient for users of land to gather the necessary information to make a greens application. A period of a year provides a better balance between the rights of landowners and those of recreational users of land. Therefore, I accept the amendment and I urge all noble Lords to support it.

The Government think that it is fair that those grace periods which have already started to run before commencement of the new clause should remain at two years, and we intend to include transitional savings provisions to this effect in the relevant commencement order.

Baroness Byford: My Lords, I thank my noble friend on the Front Bench. Clearly I am disappointed that the noble Lord, Lord McKenzie, did not feel able to support the amendment, but I am very grateful for the Minister’s support.

Amendment 40A agreed.

Clause 13 : Registration of town or village green: statement by owner

Amendment 40B

Moved by Lord Tope

40B: Clause 13, page 15, line 35, at end insert—

“(6A) Regulations may specify the minimum actions that the commons registration authority must carry out to bring the deposit of a statement under subsection (1) to the attention of persons likely to be affected.”

Lord Tope: My Lords, my noble friend Lord Greaves found today that he was unable to get to London and asked me to move his amendment, which with the leave of the House I rise to do. I shall endeavour to say roughly what my noble friend would have said, although not necessarily in the manner in which he would have said it.

This is an amendment to Clause 13, which inserts new Sections 15A and 15B into the Commons Act 2006. Their effect is to allow the owner of a piece of land that is not already registered as a town or village green to make a statement to the commons registration authority—a unitary or upper-tier council—which brings to an end any period during which persons have indulged as of right in lawful sports and pastimes on the land; that is, informal recreation, openly, without hindrance and without permission.

12 Mar 2013 : Column 179

The result of making such a landowner statement is to bring to an end the right of anyone to make an application for registration of the land as a town or village green under Section 15 of the Commons Act 2006. However, under Section 15(3) of the Commons Act, there is a period of two years before that right comes to an end, in which such an application for registration as a green can still be made.

There was discussion in Committee on the question of how people would know that a landowner had made a statement under this new provision. Amendments were proposed by my noble friend Lord Greaves and the noble Lord, Lord McKenzie of Luton. In Committee, the Minister, the noble Baroness, Lady Hanham, made some very helpful commitments that,

“where a landowner statement is deposited with a commons registration authority, the authority will be required to publicise it”.—[

Official Report

, 30/1/13; col. 1602.]

The Minister assured the Committee that regulations will include this requirement but that specific publicity requirements are best set out in regulations rather than in the Bill. She added, equally helpfully:

“The regulations will require that commons registration authorities take appropriate steps to ensure that local people and other interested parties are made aware of the fact that a landowner statement has been deposited”.—[Official Report, 30/1/13; col. 1603.]

The purpose of this amendment today is to probe further the Government’s thinking on what are “appropriate steps”. In particular, will there be appropriate publicity in the local media serving the locality in which the land is situated, not just centrally in what might be a far-flung county authority—which might just be Lancashire? Will it include a physical notice on the land itself? Will it include notification of specialist organisations such as the Open Spaces Society and the Ramblers’ Association, as well as organisations representing landowners? I hope that the Minister can give these assurances today. I beg to move.

Lord McKenzie of Luton: My Lords, the noble Lord, Lord Tope, who seems overnight to have inherited the expertise of the noble Lord, Lord Greaves, in this area, pressed the point about assurances that we seek from Ministers. My recollection corresponds with that of the noble Lord—that in Committee we got assurances from the Minister about publicity that would be given to these registrations—and it would be helpful to have some further clarification on the lines proposed.

Lord Ahmad of Wimbledon: My Lords, I thank and of course commend my noble friend for his admirable performance in imitating the noble Lord, Lord Greaves, whose contributions we are missing immensely. I understand that he is snowed in, so our thoughts are with him. I hope that he has not been caught on the motorway.

I turn first to Amendment 40B and the questions asked about publicity arrangements. We have shared a draft of the regulations with the relevant parties, which include the Open Spaces Society and the Association of Commons Registration Authorities, and we are continuing to work with them. We are also grateful for their input to date.

12 Mar 2013 : Column 180

In terms of notice requirements and regulations and the minimum actions required to publicise these particular issues and site notices, the details of notice requirements are currently being worked up with the relevant parties, including the Open Spaces Society and the Association of Commons Registration Authorities. The regulations will require that commons registration authorities take appropriate steps to ensure that local people and other interested parties are made aware of the fact that a landowner statement has been deposited. As a more general point, regarding the issue of the draft regulations being made available to noble Lords, we need to do some further work on them with relevant parties, including the Open Spaces Society and the Association of Commons Registration Authorities. I would prefer that the regulations are worked up further in conjunction with those people, with the relevant expertise, before they are discussed more widely.

6 pm

I can give a few more assurances on whether, for example, landowners will need to publicise what they are doing. There will be notice requirements to be complied with but the commons registration authority will be responsible for undertaking them. The requirements will be specified in regulations. In terms of formal consultation, key organisations, as I have already indicated, are working with us on finalising the regulations and we hope to commence the provisions during 2013, assuming that discussions reach the relevant state. To keep our discussions focused, I hope that these were the specific assurances sought and I hope that my noble friend will see fit to withdraw the amendment.

Lord Tope: My Lords, I thank the Minister. I reassure the noble Lord, Lord McKenzie, that I most certainly have not acquired the expertise of my noble friend Lord Greaves overnight; indeed, I have not managed to acquire it since I learnt of this at lunchtime. I certainly claim no expertise whatever on the subject. I thank the Minister for his reply. Both I and my noble friend Lord Greaves will read it carefully. In the mean time, I beg leave to withdraw the amendment.

Amendment 40B withdrawn.

Clause 14 : Restrictions on right to register land as town or village green

Amendment 40C

Moved by Lord Tope

40C: Clause 14, page 17, leave out line 9

Lord Tope: My Lords, I rise once again to move on behalf of the noble Lord, Lord Greaves, Amendment 40C and to speak to the other amendments standing in his name in this group.

These are amendments to Clause 14 and Schedule 4, which amend the Commons Act 2006 by inserting a new Clause 15C and a new Schedule 1A. Their effect is to restrict the right of persons to apply to register land as a town or village green on the basis that it has been

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used by persons for at least 20 years as of right for lawful sports and pastimes—that is to say, informal recreation, openly, without hindrance and without permission.

The new provisions end the right to apply for registration if a trigger event occurs. These are basically of two kinds: first, the publication of an application for planning permission on the land, or a similar action such as an application for development consent; or the publication for consultation of a draft development plan document—that is, a document that is proposed to form part of the local development framework or “local plan”—or a draft neighbourhood plan. In this context we welcome government Amendments 42 to 45 on neighbourhood plans, which appear to deal with some of our concerns in relation to those plans.

The trigger events are set out in the schedule. However, new Section 15C(5)(a) gives the Secretary of State powers to, “specify … additional trigger … events” by order. The purpose of Amendment 40C, therefore, is to ask the Minister to specify why the Government think they need these powers and what these further trigger events might be, and what the Government have in mind to use this rather draconian power for.

The other amendments are intended to assist the Government in their stated wish to align the system for registering greens with the planning system in cases where there is a published proposal for development, either as a planning application or as a draft of part of a local plan. Unfortunately, the proposals in the Bill do not do this. The problem is that there are two separate and different systems. The system for registering greens, set out in the Commons Act 2006 and rooted in the common law, is based on the facts of the case—whether the land has been used by persons for at least 20 years as of right for lawful sports and pastimes. It is based on the facts of past use of land.

Decisions in the planning system are a matter of policy and opinion about the future use of land. It is difficult to reconcile the two—to align them—but not impossible. The way this Bill deals with the matter is not to align the two processes, but to suspend one of them—the right to apply to register a green—when a trigger event occurs under the planning system.

We accept that the Government believe that there is a problem of misuse of the system of greens registration by some people in order to try to stop development, and that there is a weight of opinion behind this view. In Committee we moved amendments to probe the extent of this and its necessity. Now we are proposing ways in which both rights can be aligned within one process—the planning process—giving the Government what they want while retaining the effective right of people to put forward a view that a piece of land is a green, and to have that properly considered as part of the planning process. The amendments we have put forward suggest ways of doing this and could be taken individually. They are not necessarily a package.

Amendment 41B is the simplest, and just seeks to incorporate within the system of development management the question of whether a piece of land is a town or village green under the criteria set out in Section 15 of the Commons Act. It simply says that, where such a representation is made as part of the

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development management process, this question is a material consideration. Of course, like any other such representation it may be accepted or rejected by the relevant decision-making authority. It should not slow down the process of making the decision in any significant way.

The first part of Amendment 45A says that where the trigger event is the publication of a draft development plan document, which includes a proposal for a piece of land that has not previously been in the public domain, the trigger event should not occur until three months following the date of that publication. This may occur, for instance, if a last-minute change is made to a draft development plan document covering land allocation, as a result of representations made as part of a previous round of consultation on that question, such as on a housing land availability study. It would still allow a green registration application to be made. The second part of Amendment 45A will in most cases be covered by the government Amendments 42 to 45, for which I have already thanked the Minister. However, we recognise that this may be a step too far for the Government. So Amendment 45B states that if representations are made to a local planning authority or a neighbourhood planning body, as part of the normal consultations on a local plan or a neighbourhood development plan, that a particular piece of land is a town or village green, the authority must consider them having regard to the criteria set out in Section 15 of the Commons Act.

Although the appropriate authority would not have the power to designate and register the land as a green, applying the same criteria in this way would indeed align the two processes, which is what Ministers promised that they wanted to do, whether or not a trigger event has occurred. If the planning authority considers that the land qualifies as a green it could of course then be referred on to the commons registration authority for it to consider in the normal way. We expect this would be in a small minority of cases. However, the time taken to produce local plans would mean there is time for this process to take place. We emphasise that this procedure would only apply in plan making, which inevitably takes years rather than weeks, and not in the case of planning applications and the like which should be dealt with speedily.

These amendments are put forward in a positive way, in an effort to reconcile—indeed to align—the planning and green registration systems. In the disappointing event that the Minister is unable to accept them today, perhaps he can answer the following questions. There are six. If the intention is to align the system, what consideration can the planning bodies give during the plan-making process to representations that a piece of land qualifies as a town or village green, either as part of the local plan process or a neighbourhood plan? Secondly, if a planning authority or neighbourhood planning body considers a piece of land to be a green on the basis of the criteria in Section 15 of the Commons Act, what action may it take to promote or pursue that view?

Thirdly, what precise action in the submission and consideration of an application for planning permission or development consent will constitute publication,

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and so constitute a trigger event? Fourthly, in the case of a draft development plan document, would the trigger event be the publication of a report to the local planning authority which included the details of the DPD; would it be the formal publication for consultation of the DPD following a council decision to publish a consultation; or when?

Fifthly, could the publication, for consultation or otherwise, of any prior reports intended to form part of the evidence base for a DPD but not forming a draft DPD as such, be the trigger event for those purposes? Lastly, can the question of whether a piece of land is a town or village green, having regard to the criteria set out in Section 15 of the Commons Act or otherwise, be a material consideration in the case of an application for planning permission or development consent?

I hope that the Minister will at least be able to provide clarity on those detailed but important questions. If he cannot do so today, perhaps we could return briefly to them at Third Reading, to allow him to do so. My noble friend Lord Greaves has promised me that, if that is the case, he will table only a simple amendment enabling those answers to be given. I beg to move.

Lord Best: My Lords, I urge caution about accepting the amendments tabled by the noble Lord, Lord Greaves. Any watering down of the Government’s proposals would be cause for concern. The Government’s propositions are supported by the Local Government Association, the National Housing Federation, Shelter, the Home Builders Federation, the British Property Federation, the Federation of Master Builders and, indeed, the Country Land and Business Association.

I mentioned during Committee the case of the 50-acre site on the east of York which, on the grounds that it had been used, without permission, for dog walking over the past 20 years was the subject of a village green proposal. The intention was simply to prevent, or, rather, to delay—as a 50-acre village green was never a realistic proposition—a much-needed mixed-tenure housing development by the Joseph Rowntree Foundation and its housing trust, of which I declare a past interest as its previous chief executive. The delays that then ensued, the legal fees and the staff time over several months were costly and wasteful. The objectors to the housing scheme—which, I am delighted to say, is now being built, and a wonderful development it is too—were simply taking advantage of well intended legislation that, sadly, lent itself to such abuse.

The Government’s intent, which, I believe, their proposals will achieve, is that false claims are swiftly revealed. It would lead to all genuine registrations receiving fair and robust consideration and maintain the primacy of the democratically elected local plan. I urge caution in accepting the amendments tabled by the noble Lord, Lord Greaves.

6.15 pm

Lord McKenzie of Luton: My Lords, first, I say to the noble Lord, Lord Best, that we acknowledge that the system left itself open to abuse. The issue is whether what is before us produces the right balance. I say to

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the noble Lord, Lord Tope, who seems to be warming to his task in substituting for the noble Lord, Lord Greaves, that we might wish for many repeat performances—do not tell the noble Lord, Lord Greaves, that.

I do not propose to speak to Amendment 41A. Reviewing what we did in Committee on that, I think it was covered. As for Amendment 40C, I think that the noble Lord, Lord Greaves, has an appropriate probe there to understand the circumstances in which additional triggers or terminating events might be promulgated by the Secretary of State, although I note that there is a subsequent government amendment which would have that matter dealt with by the affirmative procedure. The noble Lord, Lord Greaves, has an ingenious formulation in “material consideration”. That is an interesting concept. I am not sure that I want to get into the detail of the six—or was it seven? —questions posed. I look forward to the Minister’s response.

Lord Ahmad of Wimbledon: My Lords, once again, I thank my noble friend for his sterling performance as my noble friend Lord Greaves. My noble friend Lord Tope has articulated eloquently the concerns that my noble friend wished to raise. I also thank the noble Lord, Lord McKenzie, for indicating that he will not press Amendment 41A, and note his comments.

Turning to Amendment 40C, one of four amendments tabled by my noble friend Lord Greaves, we have debated the order-making powers previously, and why they are required, so I will avoid going into too much detail. My noble friend Lady Hanham explained in Committee that the Government propose to bring other planning procedures within the scope of the reforms for registering greens: local development orders, neighbourhood development orders and Transport and Works Act orders. My noble friend also explained that we would consult on our proposals. We have also, as my noble friend said that we would, responded positively to the recommendation of the Delegated Powers and Regulatory Reform Committee that new Section 15C(5) should be subject to the affirmative procedure. Consequently, Parliament will have the opportunity to scrutinise any draft order proposed in the light of public consultation.

Furthermore, my noble friend Lady Hanham pointed out in Committee the need for additional terminating events to ensure that all outcomes in plan making are covered. We want to avoid the situation where an exclusion on applications to register land as a green fails to lift even when there is no longer an active development proposal. That would be contrary to our policy and unfair. Amendment 40C, tabled by my noble friend Lord Greaves, would stop such change from being made without requiring further primary legislation. That cannot be practicable.

I turn to the proposed new clause in Amendment 41B. I appreciate why my noble friend Lord Greaves wants to ensure that the potential value of land as a green will be considered as part of the planning process, but there is no need for the amendment to secure this intention. In considering an application for planning permission or for development consent, the recreational value of the land concerned is already capable of

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being a material consideration. Material considerations will relate to the development and use of land in the public interest.

I am sure that the House wants to move on, and I will turn specifically to answer at least some, if not all, of the questions raised by my noble friend Lord Tope. One question that he asked was, if a planning authority or neighbourhood planning authority feels that a land should be a green, what should it do? Where that is raised with a planning authority or the neighbourhood planning body, they should bear that in mind when considering a planning application or taking forward their draft plan. If they want the land to be kept open, they should not be supporting development on the land. If there is no development proposal, residents can also apply to register the land as a green.

My noble friend raised a couple of questions about trigger events. First, what would constitute a trigger event? Only the courts can give an authoritative interpretation of statute, but the intention in respect of the applications for planning permission and development consent is that a trigger point takes effect at whatever is the earliest of the required publication steps. The power in Clause 14(1)(3) could, if necessary, be used to make amendments to clarify when any of the trigger or terminating events are to be treated as having occurred. He also asked about trigger points arising in respect of draft development plan documents. For local plans the trigger point is when a draft plan is formally published by the local planning authority for consultation prior to being subject to an independent examination. The local community will then have an opportunity to make representations in support of or in opposition to proposals in the draft plan and to engage in the examination process.

Finally, a question was raised on the publication of any prior reports that are not a draft development plan and whether they could be a trigger event. The short answer is no. The trigger event refers only to the publication of development plan documents. The publication of anything that is not a development plan document would not constitute a trigger event. If there are a couple of areas that perhaps I have not answered in the detail that my noble friend asked for in representing my noble friend Lord Greaves I shall seek to clarify that before the next stage. However, on the basis of the assurances and responses I have given, I hope that my noble friend is prepared to withdraw his amendment.

Lord Tope: My Lords, I thank the Minister for that reply. I reassure the noble Lord, Lord Best, that it is not my noble friend’s wish to water down these provisions, and it is most certainly not my wish to do so. I am content with the provisions as they are. However, I think that my noble friend made clear that his intention was to try to find a way to align two different systems here, and he has gone into characteristic detail on how to try to do that. As he said in what he described as his “more than usually concise speech”, he was suggesting ways in which to achieve this. Both he and I will read with care what the Minister said. I am grateful to him for the answers that he has given thus far. In the mean time, I beg leave to withdraw the amendment.

Amendment 40C withdrawn.

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Amendment 40D

Moved by Baroness Byford

40D: Clause 14, page 17, line 21, leave out “of two years”

Amendment 40D agreed.

Amendment 41

Moved by Lord Ahmad of Wimbledon

41: Clause 14, page 17, line 26, at end insert—

“( ) In that Act of 2006, in section 59 (orders and regulations)—

(a) after subsection (3) insert—

“(3A) A statutory instrument containing an order under section 15C(5) may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament.”, and

(b) in subsection (4), after “subsection (3)” insert “or (3A)”.”

Lord Ahmad of Wimbledon: My Lords, I will speak to Amendments 41 to 45 to Clause 14 and also to Amendments 54 and 56 to 58 to Clause 31. These are government amendments in the name of my noble friend Lady Hanham. I will briefly set out their purpose, if I may.

The power in proposed new Section 15C(5) to be inserted into the Commons Act 2006 allows the Secretary of State to add, amend or omit trigger or terminating events in the new Schedule 1A to the Act. Amendment 41 would make this power subject to affirmative rather than negative procedure. This amendment implements in full a recommendation of the Delegated Powers and Regulatory Reform Committee. It means that Parliament will have the opportunity to debate any draft order, including the proposed order that my noble friend Lady Hanham referred to in Committee and on which we intend to consult.

Amendments 42 to 45 are minor technical amendments, concerning the text in Schedule 4 on the trigger events in relation to neighbourhood plan proposals. The amendments rectify an incorrect statutory reference and make a number of consequential changes to the wording to provide clarification. The intention regarding this trigger event is unchanged and is, as my noble friend Lady Hanham explained in Committee and was previously set out in Committee in the Commons, that the intended trigger point is the formal publication of a neighbourhood plan proposal by the local planning authority. This is an opportunity for the local community to make representations on the proposals that the qualifying body—be it a town or parish council or a neighbourhood forum—wants to have examined.

Amendments 54, 56, 57 and 58 bring forward the commencement of Clause 14 and Schedule 4 so that they would come into force at Royal Assent. Perhaps I may briefly explain why we are making this change. We are reforming the process for registering greens to give confidence that planning decisions being taken to promote growth will not be undermined by an application to register land as a green. This will help local communities and their councils which are encouraging sustainable development in their area, including those promoting

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affordable homes and new job opportunities. Without this amendment, there would be continuing uncertainty for two additional months. This is not helpful to anybody and this amendment would remove that uncertainty. I therefore beg to move Amendment 41.

Amendment 41 agreed.

Amendments 41A and 41B not moved.

Schedule 4 : New Schedule 1A to the Commons Act 2006

Amendments 42 to 45

Moved by Lord Ahmad of Wimbledon

42: Schedule 4, page 47, line 38, column 1, leave out “draft of” and insert “proposal for”

43: Schedule 4, page 47, line 38, column 2, leave out “document” and insert “proposal”

44: Schedule 4, page 47, line 41, column 1, after “published” insert “by a local planning authority”

45: Schedule 4, page 47, line 43, column 1, leave out “section 38A(7)” and insert “paragraph 4(1) of Schedule 4B to the 1990 Act as it applies by virtue of section 38A(3)”

Amendments 42 to 45 agreed.

Amendments 45A and 45B not moved.

Clause 15 : Applications to amend registers: modification of power to provide for fees

Amendment 46

Moved by Lord True

46: After Clause 15, insert the following new Clause—

“Development orders: development within the curtilage of a dwelling house

(1) Section 61 of the Town and Country Planning Act 1990 (development orders: supplementary provisions) is amended as follows.

(2) After subsection (3) insert—

“(4) Any development order or amendment to an existing development order made after 1 January 2013 that grants planning permission for development within the curtilage of a dwelling house shall not apply within the jurisdiction of a local planning authority until that authority has resolved that it shall.””

Lord True: My Lords, I will not be moving Amendment 46AA; it represents an attempt to offer a compromise to the Government in discussions on this which, sadly, was spurned.

The effect of Amendment 46 is simple. The Government will still be able to—as they have said they want to—impose a doubling of rights to build without planning permission in back gardens up to 6 metres for terraced houses and 8 metres for detached ones. However, under my proposal, local councils would be able to take a simple, quick decision on whether this change is appropriate for, and beneficial to, their local area. In short, it is a localist idea, which is what we have had commended to us from our Front Bench, quite rightly, for a long time.

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It is important that the House understands that this does not stop the Government enabling a general extension of rights. It does not affect any other change in permitted rights that the Government propose, only the issue of controlling large developments in gardens—no more, no less. I serve as an elected council leader and I again declare that interest, so I speak not from some romantic attachment to back gardens, about which I spoke on another day—although I do not actually think that that is an ignoble cause—but on the basis of 20 years’ experience in these matters and with some part in recent discussions on them. In those discussions, like others, I thank my noble friend Lady Hanham on the Front Bench for her readiness to engage and to listen in discussion. She is absolutely exemplary. Sadly, however, I have not found that listening characteristic everywhere and it has to be everywhere for it to mean anything.

I was elected in 2010 on a programme that included a promise to protect local back gardens from overdevelopment. The same promises were given by my Member of Parliament and our Liberal Democrat opponents. Commitments to restrict garden grabbing, as I have said on another occasion, were given in our two parties’ manifestos and also in the coalition agreement. I read those out on another occasion—they were clear and specific. As an elected representative I see it as my duty to try to keep promises that I made when we sought election.

It has been put to me that garden grabbing only meant new development but, in my view, it certainly should embrace the loss of half a back garden and potentially more to big new extensions, which is what the Government’s proposal would enable. The people I represent who wake up to find a 6 or 8-metre extension being shoved up outside their back window and who have lost the chance to have any say in the matter will not be impressed by small-print arguments about what promises meant, nor frankly would many of the people who have supported this. I have been encouraged and heartened by the many people who have written and e-mailed in support of the LGA, supporting the stand first taken by my borough and the borough of Sutton, and I am very grateful to see my noble friend Lord Tope here.

I wonder where exactly this idea of doubling permitted development in back gardens sprang from. As I have demonstrated, it was not in any manifesto—quite the reverse. It certainly did not come from your Lordships’ long debates on planning. It was never mentioned. It has not come from any great public call for action. Indeed, as the LGA has demonstrated comprehensively, most extensions outside permitted development are considered swiftly and most are agreed, but after the normal process of mediation and sometimes modification between neighbours that the planning process deliberately and sensibly allows. This idea just tipped out all of a sudden with a ragbag of other ideas, with no prior notice at all, and a hasty six-week consultation was timed to finish on Christmas Eve. We have seen no formal results from or formal response to that consultation, yet Parliament is expected to opine on planning. I rather suspect that if there had been overwhelming popular backing in the consultation, we would have seen the detailed response long ago. I certainly have

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not seen it. In short, there is no public call for this change. We have seen no evidence in favour of it and no analysis of the potential effects of making it. I submit that this is no sensible way to make legislation that will affect the home lives of many people in Britain.

6.30 pm

What would be the gains from this policy, if eventually the Government decide to go ahead? Will there be the rash of new homes, which I agree with the noble Lord, Lord Best, and others that the country needs? Certainly not, unless 6 or 8-metre additions to the backs of houses become more of the unapproved back-garden bedsits that many councils already have to fight. Will there be a boon for expanding young families, as has been suggested? Hardly, for it concerns ground-floor extensions not bedrooms. Will there be a transformation of the economy, as some have said, in a country where we are wrangling about whether we should borrow £13 million or £14 million every hour? Of course there will not be. More unlicensed development in Britain’s back gardens would at best be an undetectable pinprick in the hide of an economic elephant that is reluctant to move. I do not see any serious case for growth in this proposal.

One argument is put forward which I fear is a dogmatic one—and as a Conservative, I always recoil from dogmatic arguments. It tends to the opinion that all planning is bad and that any relaxation of planning is a public good. Some relaxations of planning—and we have had a number of them lately, which many of us have supported—are good, but I do not agree in this particular case. It was put to me directly by one of the proponents of this plan that we have gone too far in respecting the amenity and rights of home owners and need to redress that balance. That was not an argument I expected ever to hear from a Conservative, but that is how it is.

It seems that central government intend to brush aside the rights of neighbours to protect the amenity of their homes by objecting to 6 or 8-metre extensions. I cannot agree with that and tabled this amendment as a way of trying to persuade the Government to change their mind. Six or eight metres may not seem much to those, frankly, who are more fortunately endowed, but for most people who have got their way on to the housing ladder, their home represents the mainspring of their wealth, the heart of their security, their pride and what they value. Of course they value that hard-won amenity and will have a view on a major construction near their doorstep which will certainly add to the amenity of the person building it but may well greatly reduce that of their neighbour.

The planning system exists to enable a balance to be struck between those who gain and those who lose. It is a forum for compromise and my amendment urges the Government to leave that forum in respect of these back-garden extensions. It is an old tradition in this country that every person should be allowed his day in court, but the government proposal removes that right in these cases. Some of the first to use the new power will be those who have had an overbearing extension refused, which would be a direct transfer of power from those who want to obey the rules to those who have not obeyed them or do not wish to—precisely

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the reverse of what we say we intend. The removal of the right to have a say risks setting neighbour against neighbour. I believe that that is unnecessary, unwise and touches on basic principles of fairness and justice.

Finally, I have no doubt we will be told that the amendment is unnecessary because there is a power, called an Article 4 direction in the jargon, by which local authorities could still opt out of this proposal. However, that power is cumbersome, takes months to introduce and involves writing to thousands of homes if there is not to be a risk of legal challenge. It is costly in terms of potential compensation claims and lost planning fees, and can be used only so long as the Government agree. I ask my noble friend to say directly when she replies whether Ministers will agree to all such Article 4 proposals. If so, then why not accept the much simpler, swifter, less costly and non-bureaucratic route offered in my amendment? If not, then please do not let the Government any more advance the argument that such an amendment is unnecessary because of Article 4.

In my judgment, this doubling of back-garden building rights and the removal of neighbours’ counterbalancing rights to object goes too far. That is why I have tabled this amendment. If there are those of a different view, so be it. My amendment allows them to adopt the government plan. My proposal respects localism and does not interfere with applications, but protects that sense of fairness and justice that comes from home owners having the right to make representations on plans of their neighbours that seriously impact on them. It allows councils to protect back gardens where that is seen as important, but allows the Government to extend rights in other places where that is welcome, wanted and carries public consent. There is something in it for government, something for localism and something for home owners—both parties. I see that as a sensible compromise and I beg to move.

Lord Tope: My Lords, I support my noble friend’s amendment. He referred to the fact that he is, in another life, the leader of Richmond Council. For many years, I was the leader of the council in the London Borough of Sutton and, indeed, am still a councillor there. For all those years there has been a usually friendly rivalry and some competition between the two authorities. Certainly within my party, Richmond seems to alternate every election between who is going to run the council; I am pleased to say that the electors of Sutton have remained more consistently true, at least for the past 27 years, as to who would run the council. That competition continued back in the summer, when the Government made their announcement, as to which of our authorities would be the first to condemn it. I think on that occasion the noble Lord, Lord True, won the competition but probably only by hours rather than by days.

We are at one in finding the Government’s proposals incomprehensible and in condemning them roundly. What are they for and what are they seeking to achieve? That condemnation is obviously not confined to two London borough councils but is, as far as I am aware, universal throughout local government, regardless of which party happens to be in control of the council. This is a unified view, across local government, which is very strongly against the Government’s proposals.

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That is due first to incomprehension. This is being put forward in the context of growth, but does anyone seriously imagine, as the noble Lord has explained very well, that allowing extensions into back gardens will make a significant difference to the growth of the nation? Of course it will not; it is laughable. What it will bring about a considerable growth in is neighbour disputes. I can think of no single measure more likely—indeed, one might say more designed—to set neighbour against neighbour, particularly when they find that there is actually no court of arbitration. They would expect the local planning authority to be able to hear both sides of the case and to make a judgment, as with the normal planning process. When neighbours find themselves in this position and discover that that power has been taken away from the local planning authority, and with it therefore their right to make representations to anyone, I can think of little better designed to cause neighbour upset and to damage community cohesion, for no purpose whatever. I am very keen to support the noble Lord, Lord True, on this.

The noble Lord made reference to the Government’s explanation that Article 4 directions can deal with this. As he has rightly said, that is a slow, expensive, bureaucratic and cumbersome route, which is unlikely, frankly, to make very much difference at all. He is quite right and I support him wholeheartedly. We had felt until recently that the Government were at least starting to listen—commendably so, and we have said much of that today—to move and to be willing to search for compromise. Therefore, I am very disappointed to learn from the noble Lord, Lord True, as he said when introducing this amendment, that his attempts at compromise—that is what this amendment is; I do not think he or I would pretend it is what we want—have been “spurned”. That was his word. We are very disappointed with that. I hope that when the Minister replies, we can get at least some comfort from him that spurned is too strong a word, the debate and argument are still open and it is not going to be as bad as it presently seems.

However, I certainly have no hesitation in supporting my noble friend and the leader of Richmond Council, knowing that both London borough councils will, for once, be united between the two parties in agreeing with both of us.

The Earl of Lytton: My Lords, I support the thrust of this amendment because my professional work puts me at the sharp end of the fall-out from precisely this type of policy. As the noble Lord, Lord True, has said, we risk in effect a flip-flop from avoiding the regulation of the colour of front doors and replacement windows to no control at all. If ever there was an example of parliamentary process being a blunt instrument, I suspect this is one.

I have problems with this area of government policy in its cumulative effects. We seem almost to have a good cop Government wishing to deregulate, which I can understand and sympathise with, and conferring additional free development rights on householders. However, I am bound to say that I do not see the noble Lord, Lord True, and the LGA in the opposite camp

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of bad cop either. One of the great virtues of planning policy, among all the things that I, we and clients regularly curse about the intrusiveness of it, is that it has actually protected the built and the semi-natural environment of the urban and rural landscape. It has done so in such a way that our European neighbours come over here to see how we have managed to do it all the years since the post-war era when the first planning Acts came in.

The real possibility here is the increasing urbanisation of domestic back gardens and the materially increased density of that whole built environment. That is not without consequences, as the noble Lord has consistently pointed out on this and previous occasions. I recently attended a number of meetings at the Minister’s old stamping ground, the Royal Borough of Kensington and Chelsea, which has a basements working group. Your Lordships might wonder what basements have to do with all this, but I can tell you that a lot of basements are constructed in back gardens, so the thing is not entirely without its relevance.

A number of things came through there which I think were very interesting and that have to some extent informed my views. First, there is a risk that open space between buildings for light, air and privacy might be compromised, and the only thing that stands between the general rights of permitted development and getting a fair balance between neighbours is some intervention by the local planning authority. It is a matter of scale and proportion, but of course it has visual and amenity consequences. Beyond that, in valuation terms, the mercantile gain for one person who happens to construct their particular scheme might lead to the erosion of the visual appeal and consequential value of neighbours’ property, unless, as I say, they are carefully regulated and kept in fair proportion.

Technically—this is where I pick up the point that the noble Lord, Lord Tope, made—it brings additional pressures on the limits of property ownership, particularly in relation to boundaries. We already have a substantial amount of that in the more expensive parts of inner London boroughs. Property values as an impetus already cause serious friction between neighbours. I know this because a good deal of my professional work relates to neighbour disputes.

That might not matter if we had a land registry title plan that was a precise guide to ownership. Unfortunately, such plans do not provide that. Even in an urban area of 1:1,250 mapping scale, there is an error factor, as set out by the land registry own guidance, of plus or minus 1 metre on the ground either way. On a plan of that scale, that represents 0.8 millimetres thick, plus or minus. It is no idle suggestion, therefore, that this might increase neighbour disputes, because the process of establishing precise ownership is sometimes clear but sometimes very far from clear, and the registered title does not help.

6.45 pm

Allied to this is the generally held belief that if you do not need local authority consent, you do not need to ask anyone about anything. Policies of this nature risk seriously eroding the basic principles of property rights and obligations, and the mutual respect that

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they require. As a result, all sorts of issues crop up, such as those relating to surface water drainage, rights of light, impacts on property security and, in some instances, the integrity of buildings and privacy issues.

This is a matter which I and colleagues at the Royal Institution of Chartered Surveyors Boundaries on the party walls professional panel, which I happen to chair, have to wrestle with. We had to wrestle with it when, I think in 2009, there was a relaxation on building regulation requirements for additions to homes. We have been there before. We know what the effects are.

My next point relates to some other principles of urbanisation and the effects on the environment. During the discussions on the basements policy with the Royal Borough of Kensington and Chelsea, a letter came in from Savills, the agents acting for Thames Water. Savills is a very large international firm. It pointed out the potentially deleterious effects of developments in domestic gardens, the consequences for compromising infiltration of rain into the subsoil caused by impervious surfaces, and the outcomes for public drainage capacity.

Furthermore, it flagged up what I will nickname the “Chelsea sponge” effect: the overall cubic capacity of the subsoil available to absorb and then gradually lose and release surface and ground water. I am certain that there is a Richmond sponge, a Wandsworth sponge, and a Sutton sponge. There is certainly an Exmoor sponge, about which I tendered a paper some time ago. It applies all over the place. Thames Water also volunteered that, in its view, some 20% of the green space in the Royal Borough of Kensington and Chelsea had been lost over the last 20 years. Therefore, it viewed with some concern the interruption and the covering of these areas with if not hard surfaces then impervious objects below the surface.

That has some bearing on Thames Water’s Thames tideway scheme. It is significantly affected—I will not say largely because I am no water engineer, I must admit—by the fact that there is an old combined surface water and foul water system. Therefore, what runs off more quickly into the Victorian sewerage system has a material effect on its ability to cope.

My view is that the relaxation of planning rules on back gardens cannot safely be made on the basis of a global sweep of the hand. I do not think it is reasonable to abolish controls and then expect local planning authorities to pick up the pieces via an Article 4 direction. An Article 4 direction requires a process that may be subject to challenge, and it will allow all manner of expectations to be built up, which may in turn affect the ability to achieve this, because the potential compensation implications for householders who have proceeded in the expectation of being able to get development are removed by any Article 4 direction. Much better that this is not removed wholesale but that the discretion is placed in the hands of the local authority.

I will finish with one particular example. Your Lordships will doubtless remember the “Oxford shark”, which the noble Baroness, Lady O’Neill of Bengarve, reminded me of when I was talking to her a few minutes ago. One fibreglass shark sticking out through the roof of an Oxfordshire terraced house may be regarded as a joke, two might be more of a conversation

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piece, three would almost certainly be a bore. Bad design, poor siting and a bad choice of materials affect long-term values. For sharks, read home offices, overlarge extensions, treehouses, things being built hard on boundaries that should have been kept back from them, and the loss of privacy, amenity and spatial consideration between buildings that that would entail.

I do not know whether the Minister will accept this amendment or give the noble Lord, Lord True, some indication that some discussion and compromise can be achieved here. However, if the noble Lord decided to press the matter, I would be very inclined to follow him into the Lobby, subject to what the Minister may say, because this is a matter of considerable social, economic and practical importance in terms of the good governance of what we are actually talking about, which is scarce spatial resources within the built environment.

Lord Elton: My Lords, I am really rather appalled by what the Government are proposing and largely reassured by what my noble friend is proposing. I want merely to ask my noble friends on the Front Bench and those in my party and the Liberal Democrat party in government to consider for a moment what a very large number of people live in houses with small narrow gardens bang up against people next door, either on one side or both.

A neighbour has enormous power over the comfort and convenience, and indeed the property value, of the people on either side. Throwing up something that looks into your garden, blocks the light from your flower-beds or makes you feel in some way claustrophobic can actually blight people’s lives. It is essential for the Government to realise that a great number of people— I declare an interest; I am one of them—live in circumstances where we are all in the hands of our neighbours as regards our comfort and the “quiet enjoyment” of our property, as the common law says.

As the noble Earl, Lord Lytton, very eloquently put it, when the air, light and privacy of one’s life are at the disposal of one’s neighbour, there must be some ready course of arbitration or judgment that is in one’s power to initiate, is not cripplingly expensive and does not take for ever. It seems that my noble friend is offering that and the Government are not. Therefore, there is no question who I would support.

Lord Trefgarne: My Lords, I apologise to your Lordships that I was not in my place when my noble friend Lord True opened this debate. I absolutely support what he is proposing in this amendment. I think these proposals are little short of outrageous and, in the area where I live, will result in a change in the control of the local authority.

Lord McKenzie of Luton: My Lords, I have added my name to this amendment and we are wholly supportive of it. We have heard from the noble Lord, Lord True, a devastating critique of the Government’s proposals, strongly supported by the noble Lord, Lord Tope. We have heard the practical and professional considerations from the noble Earl, Lord Lytton, about what they mean in practice. Indeed, the noble Lord, Lord Elton,

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described a typical garden, and that is exactly the situation in large areas of Luton that were built in the early part of the previous century and sometimes before. The noble Lord is absolutely right that neighbours can impact dramatically on the quality of life, and the Government’s proposal for permitted development rights is actually facilitating that.

In many ways this is a very modest amendment, more modest than that which my noble friend Lady Donaghy is going to move in a moment. It focuses only on development within the curtilage of a property. It operates from January 2013 and is not proposed to be retrospective to any significant degree, and it is consistent with the principles of localism, which seems to be a core matter.

The noble Lord, Lord True, and others referred to what will undoubtedly again be the Government’s defence on this: Article 4 directions. We will come on to that again when we debate the following amendment. Is it still the position that the Secretary of State’s general approach to making an Article 4 direction, as set out in paragraph 4.23 of planning policy guidance note 15—I am not sure that policy guidance note still exists or what may have replaced it—is that,

“permitted development rights should not be withdrawn without clear justification”,

such as where a real and specific threat of development is being carried out that would damage an interest of acknowledged importance? If those are the criteria by which the Secretary of State acts, that would not be a defence in many situations that have been envisaged. That reference may be slightly out of date, but it would be good to hear something more up to date from the Minister.

At the end of the day this does not prevent anybody who wishes to have an extension in the rear garden from seeking planning permission in the normal way. Perversely, if permitted development rights had been withdrawn by an Article 4 procedure, you could not get fees for that planning application. However, it is perfectly possible that people will go through the normal process, so this is not denying anyone any rights.

It is a pity that we come to this at this hour. I am not sure what the noble Lord is going to do, but it would be well worth testing the opinion of the House when it is full because I think there would be very strong support for the noble Lord. I hope that at the very least we will hear from the Minister that the Government will take away the tenor of this debate and agree to look at the issue before Third Reading.

Baroness Hanham: My Lords, I hear what the noble Lord has said and what my noble friend has said in moving the amendment. I appreciate very much that noble Lords wish to make sure that local authorities are able to adapt national permitted development rights to their own circumstances. Indeed, it is an important element, which we recognise, that national development rights have an effect on different areas, urban and rural. The noble Lord did not speak to Amendment 46AA, which would be the other side of the coin: opt in or opt out. Therefore, I will address only Amendment 46.

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There has been some tweaking, with noble Lords saying that I will use Article 4 directions in my response. Not surprisingly, I am going to do so. As the noble Lords, Lord True and Lord Tope, will be well aware, an Article 4 direction can already be introduced to remove specific permitted development rights in a defined area. Those areas can be very small: only a few houses, a conservation area, one street or two blocks of houses. They can be tailored in a way that puts a permitted development into a defined area.

There was a suggestion that if an Article 4 direction was put forward it had to be submitted to the Secretary of State for a decision. It does not have to go to the Secretary of State for approval. The Secretary of State would intervene only where the power was being used unreasonably by the local planning authority. One would hope that that would never take place as the planning authority would have to consult local residents before implementation. It is not sensible just to wipe out the Article 4 directions. It is one of the lines that local authorities can take and we would expect them to do so where necessary.

With regard to the proposed permitted development right and its effect, we would expect neighbours to talk to neighbours about this and to have some interest in what they are going to say. Local authorities are also able to put conditions on permitted development if it is thought to be justified.

7 pm

Lord Elton: Such conversations very often do happen and they result in almost open warfare. They do not often result in amicable decisions such as “Okay, we will not build a second storey because you do not want it”. The pressures of the benefit to the developer overcome the priorities of good neighbourliness.

Baroness Hanham: My Lords, my noble friend said “benefit to the developer”. The development is limited to the curtilage of the building and the benefit is to the person who owns the property and who wants to extend it, for their own use, to a limited extent—to have a new kitchen or whatever they need. I hear what my noble friend says but, first, the amount is limited to the curtilage and, secondly, it would be expected that consultation would take place.

There are many people who wish to do smallish extensions to their houses. The noble Lord, Lord True, suggests this is “garden-grabbing” but it is their garden and the garden-grabbing we have talked about in the past has been new developments in back gardens which are clearly not just modest extensions to people’s houses. It is probably not very good to deny people the benefits of being able to extend their houses somewhat.

Lord Campbell-Savours: I am sorry, but this is just agony. What are the origins of this proposal? It was not in the coalition manifesto, it was not in the Conservative manifesto, it was not in the Liberal Democrat manifesto. Where has it come from? What are the origins of this nonsense?

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Baroness Hanham: My Lords, this policy is being put forward to extend the localism rights that we have been moving towards across neighbourhood plans, community budgets and everything that brings more control and power into the hands of local people. This is just an addition to that to make it more helpful and constructive for local people to manage their own affairs.

Lord Trefgarne: My Lords, I am afraid my noble friend is living in a world of her own. I will show her some correspondence between me and one of my near neighbours relating to a proposed development which ended up in the High Court. In that case, we did not have the amicable conversations which she imagines.

Baroness Hanham: My Lords, I hear what the noble Lord says. Consultation on this matter closed in December. We have had 1,000 responses and these will be available before we get round to secondary legislation which will be in a very few months, presuming that the clause is accepted by both Houses.

Lord McKenzie of Luton: Has there been some analysis of the consultation thus far, and, if so, might we get at least a first cut of it before Third Reading?

Baroness Hanham: My Lords, I think not. I have been told that it will be available before secondary legislation.

Lord Adonis: What is the big problem about analysing 1,000 responses in time to allow your Lordships’ House to see them before we proceed to Third Reading?

Baroness Hanham: My Lords, they will be ready before secondary legislation. If they can be ready at any stage before that I will make sure that they are, but I am advised that it will be at the secondary legislation stage. I rely for my response—

Lord Trefgarne: My Lords, when does my noble friend propose to introduce the secondary legislation?

Lord Ahmad of Wimbledon: I remind noble Lords that we are on Report and there are specific rules which should be borne in mind.

Baroness Hanham: My Lords, I thank my noble friend for that. The consultation will be available within the next few months, probably by May, as will the response and the secondary legislation.

I rely, in my response, on the ability for local authorities to use Article 4 directions. It is perfectly reasonable for them to do so, but it is also reasonable for people who own houses to wish to extend them and to do so without having to go through the procedures of planning applications when the extension is relatively modest. I hope noble Lords will feel able—

Lord Hunt of Chesterton: Is there some limit to the height? In many gardens, the most important things are wind and lighting and you can occlude the sun in

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your neighbour’s garden. We are hearing an extraordinary speech. A neighbourhood is a set of houses, built and designed in a way that we all understood when we bought those houses. If one person wants to push out, all the other people will push out and it will have an extraordinary effect on neighbourhoods. This will be a social revolution. What survey did the Government do of people around the country? Did they just listen to some bureaucratic process? Have there been social surveys across the country? I do not believe there have been. This is a change to the whole British way of life. I have been a councillor and I have seen these effects.

Lord Ahmad of Wimbledon: My Lords, I have to remind noble Lords that we are on Report, not in Committee. As your Lordships know, we are a self-governing Chamber. As the Companion states, there are specific criteria we need to observe and we owe the Minister that level of respect in allowing her to finish her response. If noble Lords wish to push this to the vote, that is a matter for them. At this time, we are on Report and I would ask noble Lords to respect that.

Baroness Hanham: The answer to the question about the extent is that it is limited to a single storey and within the curtilage of the building.

I have reminded the House that a consultation has taken place and that we will see the results before secondary legislation, that there is the question of Article 4 directions being used and that it is, and should be, the right of citizens to extend their houses if they wish.

Lord McKenzie of Luton: Before the Minister sits down, she has not dealt with the point about the criteria that guide the Secretary of State’s engagement with Article 4 directions, in particular planning policy guidance note 15—or its replacement if it has been updated—which states:

“Permitted development rights should not be withdrawn without clear justification such as where there is a real and specific threat of development being carried out that would damage an interest of acknowledged importance”.

If those are the criteria that guide the Secretary of State in these matters we would want to know about it and certainly know about it before Third Reading.

Baroness Hanham: My Lords, I do not have a response to that. I would need to take advice on it. If I can come back on that aspect before Third Reading I will.

Lord McKenzie of Luton: Will the Minister come back at Third Reading if she is not able to do so beforehand?

Baroness Hanham: My Lords, I am advised that there has not been an update, so I presume that that guidance would be followed. Let us bear in mind, too, that the Secretary of State does not have to approve. He will take an interest only if he wishes to. With those explanations, I hope that the noble Lord will withdraw his amendment.

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Lord True: My Lords, I thank all those who have spoken in the debate, which has been a little one-sided perhaps. I thank my noble friend on the Front Bench. It is a difficult task to defend a policy that manifestly, from the body language and from what people have said, has no support from anybody present in this House. I do not hold her responsible for that. The noble Lord, Lord Campbell-Savours, asked where the policy had come from. If he reads earlier discussions on this, he will see that I have expressed a shrewd suspicion as to the answer: some might say the uber-moderniser tendency—indeed, I think that that is self-description.

The noble Lord, Lord McKenzie, for whose support I am grateful, is quite right that people will still be able to build extensions, but, as the noble Lords, Lord Trefgarne and Lord Elton, said, as well as the noble Earl, Lord Lytton, in a striking speech which I hope officials will study carefully, they will simply have to negotiate with neighbours, which is part of neighbourliness and living together in a society. It seems in life that many matters depend on which end of a telescope you look in. The Government are talking about extending rights, but they are taking away, if you look in the other end of the telescope, a major right from those who are neighbours of people who want to build very large extensions. I repeat what I said: in some of the small, terraced communities which I and others represent, those extensions in some cases could be more than half the back garden if you take the curtilage of the front garden into account. This is major stuff.

One of my many eccentricities is that I used to spend a lot of time when I was young reading Livy, the Roman historian. The third decade of his books, about the wars against Hannibal, relate that, after three crushing defeats, the Roman generals, Fabius and Claudius Marcellus, although the latter was a little more vigorous, did not take on the Carthaginian field army until the Romans thought that they had the balance of forces in their favour. Despite the overwhelming opinion in the House being in favour of this position, I do not believe that something analogous is likely to happen at this moment. I want to study particularly carefully the point made by the noble Lord, Lord McKenzie, about Article 4, which is critical. I reserve the right to come back to it at Third Reading, perhaps looking at Amendment 46AA. We need to clarify how local authorities opt out. It is true that the Secretary of State does not have to approve, but the Secretary of State has the power to cancel or modify an Article 4 direction at any point. That is absolutely germane to this, setting aside the other points that I made.

I do not want noble Lords to think that this will be the end of the matter. I have had some experience in the usual channels in this House. There will many opportunities to bring this matter back before your Lordships which I shall explore, including on secondary legislation. I therefore hope that the Government will listen to the mood of your Lordships’ House. What is the point of your Lordships’ House if it does not have the opportunity through its debates as well as its Divisions to express an opinion?

I hope to hear further clarification at Third Reading on how Article 4 will actually work as well as more about the consultation—11 weeks to analyse 1,000 answers

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is quite a long time in my book. The leader of the council could do that, let alone some of the good people I employ. With the promise that I do not intend to go away on this matter, I beg leave to withdraw the amendment.

Amendment 46 withdrawn.

7.15 pm

Amendment 46A

Moved by Baroness Donaghy

46A: After Clause 15, insert the following new Clause—

“Planning permission required for development

(1) The Town and Country Planning Act 1990 is amended as follows.

(2) In section 57(3), after “Where by a development order (or a local development order” insert “issued by the local planning authority”.

(3) After section 57(3) insert—

“(4) Where a local planning authority propose to make an order under this section they shall first prepare—

(a) a draft of the order; and

(b) a statement of their reasons for making the order.

(5) The statement of reasons shall contain—

(a) a description of the development which the order would permit; and

(b) a plan or statement identifying the land to which the order would relate.

(6) Where a local planning authority have prepared a draft local development order, they shall consult, in accordance with regulations, persons whose interests they consider would be affected by the order.””

Baroness Donaghy: My Lords, in moving Amendment 46A, I make it clear that I am in full support of Amendment 46 moved so eloquently by the noble Lord, Lord True. If the first platoon of True, Tope, Lytton, Elton, Trefgarne and McKenzie came crashing against the citadel, I do not have too many illusions about how my amendment, which is much more radical and not in the least bit modest, might be faced by the Front Bench. Nevertheless, I shall persevere because the issue is of such importance. I have been in the House for only two-and-a-half years, but I have never seen such a measure of frustration in the House as I did on the previous amendment, so I think it is a topic that is worth pursuing.

I am aware that my amendment represents a significant, but perhaps long overdue, change to the planning system. It is clear that it could not be introduced without considerable consultation, and I fully acknowledge that any frameworks for proposed local permitted development could be produced only after thorough consultation at all levels.

The argument used against the proposal in Committee was that it would produce a postcode lottery and that local government already had the tools to restrict or relax nationally set permitted development by using Article 4 directions and local development orders, or LDOs.

The phrase “postcode lottery” implies something completely random, which this need not be. It is quite correct that there would be local differences—that is, after all, what local government is supposed to be

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about—but there is no reason why non-statutory guidance could not be issued by government giving local authorities recommended criteria when setting out and consulting on a local permitted development framework. When it comes to siting broadband infrastructure, the Government consider non-statutory guidance to be sufficient, so why not here?

Article 4 and LDOs are no longer fit for purpose, as has already been mentioned by several speakers on the previous amendment. Local authorities must give one year’s notice before they can use Article 4 directions to avoid high levels of compensation. They are time-consuming and unnecessarily bureaucratic as well as being expensive. Although this is contested by the Department for Communities and Local Government, these devices are rarely used by local authorities. Indeed, the LGA has indicated that it is not aware of any evidence demonstrating widespread use of Article 4 and LDOs.

Amendment 46A would localise permitted development, allowing planning authorities to tailor individual frameworks for their own local areas so that they supported economic growth in the most appropriate and sustainable way. This could lead to a boost in development overall and would be a localist measure. Democratically elected representatives, accountable at the ballot box, would be given more power. This, if nothing else, would be more of a reflection of the title of this Bill than the discussion that went on earlier. I beg to move.

Lord McKenzie of Luton: My Lords, in the circumstances, I shall speak just briefly and thank my noble friend Lady Donaghy for introducing the amendment and broadening the debate about the importance of localism and why permitted development rights should be qualified or subject to local authorities’ determination.

I want to go back to Article 4, which permeated our discussions on the earlier amendment and will perhaps do so again now and at Third Reading. Article 4 directions can certainly be cumbersome and bureaucratic. There is not just one type of Article 4 direction. As I understand it, there are three types of article for direction: one affects only listed buildings, one affects dwelling houses in conservation areas and the other affects other properties. That latter category has generally been used to cover commercial property in a conservation area and is generally used outside a conservation area for restricting the use of temporary buildings.

If Article 4 is to be prayed in aid in respect of this amendment, as it was—at least in part—in respect of the earlier amendment, I think we need much more detail as to how it operates. I understand that whether it is an Article 4(1) or Article 4(2) direction, the routes and processes that have to be adopted are different. We need to understand that more effectively and we need greater clarity on the role of the Secretary of State and the guidance or principles which should govern how the Secretary of State approaches Article 4, whether using Article 4(1) or Article 4(2) directions. Given the hour, I simply support my noble friend and thank her for moving this broadened amendment.

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Baroness Hanham: My Lords, I thank the noble Baroness, Lady Donaghy, and the noble Lord, Lord Tope, who has not spoken to this amendment but whose name has been added to it. It has the admirable aim of giving local authorities the power to decide how to adapt the nationally set permitted development and local development orders.

The noble Lord asked me for details about Article 4. I say straight away that I do not have them on me. If the noble Baroness is not going to press her amendment today, I shall be very happy to see that answers to the questions that have been asked are available before Third Reading in terms of the interpretation of Article 4 and how it can be used by the Secretary of State. I think that might be helpful under the circumstances as I rely again on the fact that local authorities can use Article 4 directions, particularly where the aim is to extend permitted development rights locally. They can be used with local development orders, and local development orders provide a quick and simple way to do this.

It is correct, as the noble Baroness said, that they have not been widely used. They were introduced of course under the last Administration but they are beginning to be used. I have a note here of where a number have been used to bring into control extensive changes of use for ground-floor units, for example, or where local development orders have been granted to extend household and permitted development rights in a village. Therefore, they have their uses and they are certainly beginning to move forward. Local authorities are beginning to recognise their benefits and that they can be put in place through a simple and streamlined procedure.

More than 30 local development orders have now been put in place in enterprise zones, and, as we speak, local development orders are contributing to growth by helping to speed up the delivery of everything from small domestic alterations to major industrial development. They can be used pretty widely across the piece.

The noble Baroness has given an outline, perhaps, of what she wanted to deal with. If she is not going to press the amendment today and is likely to return to this matter at Third Reading—which I think she would be entitled to do—I will make sure that the information about the Article 4 make-up is made available. I hope that the noble Baroness will withdraw her amendment.

Baroness Donaghy: I thank the Minister for her response and my noble friend Lord McKenzie for his support. I will withdraw my amendment. I just wanted to underline the fundamental difference in perception between the Department of Communities and Local Government and the LGA on the usefulness and appropriateness of LDOs and Article 4. It seems to me that the perception is so fundamentally different that there has to be something wrong somewhere. Therefore, I would appreciate a lot more information about the examples the noble Baroness has given about LDOs in that particular area and also a lot more information about why her department feels that Article 4 is flexible and the Local Government Association

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does not. On the basis of an assurance that we will have that information before the House, I beg leave to withdraw my amendment.

Amendment 46A withdrawn.

Amendment 46AA not moved.

Amendment 46B

Moved by Lord Berkeley

46B: Clause 21, page 22, line 31, at end insert—

“(4A) In section 150 (removal of consent requirements) subsection (1), for the words “consented to the inclusion of the provision” substitute “been consulted by the applicant about the inclusion of the provision”.”

Lord Berkeley: My Lords, I shall also speak to Amendment 55, which is grouped with Amendment 46B. I asked for these amendments to be degrouped, because I thought that we would have a better discussion that way, but they have not been, so I am happy to plough on with both amendments unless other noble Lords indicate that they would rather debate them separately.

I would like first to express my gratitude to the Minister for probably several meetings that we have had on various issues relating to the amendments that are in my name and that of the noble Lord, Lord Jenkin of Roding. I am also grateful for the letter that she sent us yesterday with a number of attachments. I was able to study some of them but I am sure that there will be other things that we will want to debate further on.

I turn first to Amendment 46B, which is the same one as was moved in Committee. It is another attempt to provide for the NSIP/DCO regime to be the one-stop shop for all construction-related consents that was initially promised in the 2007 White Paper which led to the Planning Act 2008. It was one of the many proposals to try to speed up the process for getting consents for major projects. I think that one could call the present regime a bit of a bazaar. I hope that that is not insulting to those dealing with it. However, Sir Michael Pitt, of PINS, recently referred to the fact that some 40% of all construction-related consents were outside the DCO regime.

It is not intended and never has been intended by this amendment to cover operational consents, such as nuclear site operating licences or nuclear safety and environmental permissions. However, the point that did not come out in Committee is one of principle. How can it ever be right that an outside body such as the Environment Agency or Natural England has a veto on what a Minister can include in a DCO made by him or her? Section 150 of the 2008 Act gives these outside bodies such a veto. It may have been appropriate in the days of the IPC but it is no longer so when the decisions on the proposed DCOs are taken by democratically elected and accountable Ministers. Surely it is a fundamental principle that no one should be able to dictate what goes into a DCO? They can make representations, as this amendment proposes, but I suggest that, ultimately, the decision must be the Minister’s alone with reference to PINS’ recommendations.

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The key point here is that the regime needs to be flexible. It needs to allow the promoter in discussion with the regulators to come up with a proposed consents regime that is right for each individual project. That may require some consents to be wrapped up in the DCO, by the DCO disapplying them, and other consents to be retained separately. However, there is a precedent for this, because disapplying consents by orders—and indeed by Acts such as the Crossrail Act 2008 and the Channel Tunnel Rail Link Act 1996—is not the new concept that observers of the debate in Committee might have been led to believe. It is commonplace in the Transport and Works Act and the Harbours Act regimes. In many cases separate consents is disapplied in exchange for protective provisions for the benefit of the regulator concerned being included in the order, such as provisions requiring the regulator to approve detailed plans of the project before construction starts. These protective provisions often then go on to provide for subsequent monitoring and compliance with them to be enforced by the regulator concerned, such as protective provisions in the TWA orders for the benefit of the Environment Agency.

I suggest that the same approach could be adopted in the case of DCOs. A single consenting regime for the construction phase of large projects can deliver real benefits and efficiencies, which I am sure is what the Government are looking for. For example, in 2008 the Department for Transport decided in response to the application for the harbour empowerment order to authorise the London Gateway port—which is now under construction; there were great pictures last week of what I think is one of the biggest cranes in the world being floated into it—that it was appropriate to disapply through the order much of the Environment Agency’s consenting regime, because it was already the case that the Port of London Authority would have to approve detailed plans of the project before construction could start. It did not make any sense to duplicate this, and add to the promoters’ burden, by requiring plans also to be approved by the Environment Agency. In this case, the EA would be able to feed its comments into the PLA before the plans were approved by the PLA, which had a whole host of environmental obligations in addition to its conservation role. It can reasonably assume that the preconstruction approval process would have been even more complex, taken longer and been more expensive had the EA had full plan approval rights. I think that if one were to ask the promoters of the London Gateway port, they would say just how successful this regime has been. It has probably cost them a lot of money but it has happened a lot more quickly than it would otherwise have done.

7.30 pm

The draft regulations in the letter which the noble Baroness kindly sent to Peers yesterday do not make any difference to the case for this amendment. They implement what the CLG proposed in its consultation paper of 26 November 2012, and amend the schedule to the Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010. That schedule contained lists of consents and authorisations prescribed for the purposes of Section 150(1) of the Planning Act 2008, meaning the consents that can be disapplied by a DCO only with the agreement of the regulator concerned.

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There is a lot of shuffling between Part 1 of the Schedule and Part 2 concerning what is to be done in England and Wales and what is to be done in Wales only. I do not think that the House would want to hear from me on that tonight. However, the 16 consents removed from the England list are those that are either redundant or unlikely to apply to applications for development consents, so I suggest that this change will have little effect although it is clearly a useful tidying-up exercise.

Given the Government’s continuing commitment to major infrastructure projects—we hear good, welcome news from different Ministers on that on an almost weekly basis—I urge Ministers to take these points seriously. If the Minister cannot agree today to these amendments, perhaps we can have further discussions before Third Reading. I hope that the Minister will be able to come back with the Government’s own amendment before then.

I am sorry if this is taking a little time but I shall move on to Amendment 55, which concerns the timescale for the commencement of certification for the special parliamentary procedures reform. Again, this is something which we discussed in Committee but I remain concerned about when the right time is for this clause to come into effect. The reason for this amendment is that the Government have announced that the reform of SPP will apply only to projects where the applications were made after the Bill was introduced on 18 October 2012, and that the reform of certification requirements will apply only to applications that are made after the provision comes into force.

Two live applications are likely to be affected by the delayed introduction of Clauses 22 and 23, while further applications may be affected by the delayed introduction of Clause 21. This means that much needed infrastructure could suffer at least a year’s delay as that process is undertaken, despite Parliament having legislated for it to be removed. The two applications are, first, the Able marine energy park on Humberside, which I believe to be one of the proposed land ports for the development of offshore wind farms—farms which I suggest will be quite important within the next year or five in ensuring that we have enough electricity to keep the lights on—and, secondly, the proposed Fieldes Lock power station in Hertfordshire. Similar comments might apply there.

The rationale for not applying the changes to these projects is that they would allegedly be retrospective if they did apply, since the applications would have been made before the provisions of the Bill reducing SPP were known. There may be a bit of a misconception here, for three reasons. First, the intention to reform SPP was indicated on Budget Day last year, 21 March 2012. The infrastructure delivery update says at paragraph 5.1 that,

“the Government … will remove duplication in the consenting regime for major infrastructure development by bringing forward legislation to adjust the scope of Special Parliamentary Procedure”,

so they have had the best part of a year’s warning. Budget 2012 was delivered before the Fieldes Lock application was made and during the representation period for the Able marine energy park. It could not therefore be said that there was no knowledge of the changes as far as the interested parties were concerned.

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Secondly, the trigger for SPP to be invoked, according to Section 128 of the Planning Act 2008, is a future event in relation to these two cases: the making by a Minister of,

“An order granting development consent”,


“authorises the compulsory acquisition of land to which this section applies”.

An order granting development consent is the order that is actually made, so this trigger applies only once an order has been made in response to an application rather than before that. In the case of Able marine, the decision on whether to make the order will be made on about 24 May, which is likely to be after this Bill receives Royal Assent. The decision on Fieldes Lock will be made after that. The trigger will therefore apply after that receipt of Royal Assent, so applying these reforms to these two cases would not be retrospective legislation.

Thirdly, the Fieldes Lock examination has not occurred yet, so there will be a full opportunity to consider the issues that would trigger SPP during that examination without any prejudice to any party. Although the Able marine examination has taken place, in fact it considered compulsory purchase issues at two hearings held in October where the bodies likely to trigger SPP made oral representations to the examining authority.

We have also received copies of some advice from the department on retrospective applications. The note I have says that,

“the Department took into account the potential for retrospective provisions to give rise to unfairness, and the need to mitigate this as far as reasonably possible. This included taking into account … the need to ensure that affected persons were given notice of the changes and given a further chance, where appropriate, to make representations. It balanced this against the need to remove barriers to growth and the desirability of avoiding delays in respect of Nationally Significant Infrastructure Projects”.

That is all very fine, but is there a document setting out how this balance was achieved and who said what to whom? Is it the result of any consultation or do we just have to take it from the Government that they know what is best? This is a very important matter. I conclude that that is a very conservative interpretation and approach to retrospective legislation. We have the experience of the Rookery South SPP, which took more than 500 days and effectively delayed the construction of that project. The one on the Humber is of particular concern because the DCO application was heavily opposed by Associated British Ports on competition grounds, resulting in the largest number of hearings so far for a DCO, so ABP can be expected to take full advantage of the current SPP route. This could probably take an awful lot longer than 500 days —maybe two years or even longer, if the Joint Committee decided to hear the case. Two years plus—is that a sensible time to rerun what is effectively a second-time-round planning application when there is a need for a shore base for an offshore wind farm? I should be very interested to hear what the Minister has to say in response. I beg to move.

Lord Jenkin of Roding: My Lords, I added my name to these amendments. The noble Lord, Lord Berkeley, has dealt with them so comprehensively that all I need to say is that I support them.

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Lord Ahmad of Wimbledon: My Lords, when we considered this amendment in Committee I indicated that the Government were taking a number of actions to expand and improve the one-stop-shop approach for nationally significant infrastructure consents. Overall, the responses to our recent consultation on proposals to expand and improve the one-stop-shop approach were positive. We are now taking forward a programme of work to deliver rapid implementation of these proposals. In response to the concerns of developers about the challenges of co-ordinating and aligning multiple consent application procedures for nationally significant infrastructure projects, we will be establishing a new consents service unit by April this year. We are also streamlining the list of prescribed consultees set out in legislation, reducing it by up to a third and streamlining the list of non-planning consents which sit outside the development consent process. Regulations implementing these changes have now been laid in Parliament. These changes are in addition to the five separate certificates and consents which are being removed from the Planning Act 2008 through clauses in this Bill.

We think that this approach provides applicants with additional support and service which they are looking for without watering down the protections that currently exist. While we recognise the appetite of some developers for all consents to be dealt with by the Planning Inspectorate, other bodies have highlighted the important role played by bodies such as the Environment Agency and Natural England in ensuring that adequate environmental protections are delivered.

Nationally significant infrastructure projects are by nature complex. We currently consider that the relevant consenting bodies, which hold a wide range of expertise on granting, monitoring and enforcing the various consents that are normally required, are well placed to make a judgment on a case by case basis, having regard to the updated guidance that we have issued about whether their consents should be dealt with as part of the development consent order process. We do not consider that it would be efficient to change that position as part of the current reforms. However, we remain in listening mode; we will review the operation of the current reforms and consider any further improvements to the way multiple consent applications are dealt with as part of a full review of the major infrastructure planning regime in 2014.

The proposals now being taken forward for the one-stop shop will deliver a much more efficient process for developers of infrastructure projects under the Planning Act. Despite the points made by the noble Lord, the Government’s position remains unchanged and at this stage, the Government do not intend to amend or repeal Section 150 of the Planning Act 2008.

I now turn to Amendment 55. I am grateful to the noble Lord for setting out the reasoning behind the amendment, which would provide for immediate commencement of the provisions in Clauses 21, 22 and 23. We have considered carefully the way in which the provisions covering the removal of certain consenting and certification requirements and the provisions on special parliamentary procedures should be introduced. We want to ensure the right balance is struck between the need to deliver infrastructure and the need to ensure that no one is prejudiced or treated unfairly by

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the changes we are proposing to introduce. Principles of fairness must surely be a prime consideration in any situation where it is proposed to compulsorily acquire land or property.

Unfairness might occur with the introduction of Clauses 21, 22 and 23 if provisions are not made to prevent such unfairness. This is because there will always be a number of applications at different stages in the process leading through to a development consent order under the Planning Act 2008. Some applications will have been submitted before this Bill was even introduced to Parliament for consideration. Some applications will be in the examination phase now. In some cases, the examination process will be complete and recommendations will be in the process of being prepared by the Planning Inspectorate, or a Secretary of State will be considering those recommendations before reaching a decision.

7.45 pm

The effect of this amendment would be immediate commencement, on Royal Assent, to any development consent order made after commencement. That could mean that there were bodies making representations on the basis that provisions on special parliamentary procedure, or the consent procedures affected by these clauses, would apply to an application as currently set out in the 2008 Act, but then finding that significant changes had been made as a result of this Bill. Given this situation, we think it important that there are transitional provisions in place to prevent unfairness as a result of introducing these provisions. With that in mind, we are proposing to commence these provisions by commencement order. This will include provisions to cover transitional arrangements for projects already in the system.

For example, the removal of the certification and consenting procedures set out in Clause 21, and the removal of the need for a separate certification process under Clause 22, will apply only to applications made after commencement and not to existing applications. In respect of changes to the special parliamentary procedure set out in Clauses 22 and 23, the commencement order will make it clear that the new provisions will not apply to applications submitted before the Bill was introduced to Parliament, and will also not apply in the case of applications where the public examination is completed before commencement.

We believe—the noble Lord, Lord Berkeley, also mentioned this—that our proposals on commencement should prevent unfairness in respect of projects that are already in the system. As noble Lords will no doubt be aware, the Planning Inspectorate has written to all interested parties where applications are going through the system so they are aware of what the Government are proposing on these matters. I know that some noble Lords—including the noble Lord himself—have expressed concern about existing applications still being subject to special parliamentary procedure as currently set out in the Planning Act and unable to benefit from our reforms. He mentioned certain cases, but it would not be appropriate for me to mention or discuss individual projects. However, I understand that there is currently just one infrastructure project where this will be the case.

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On balance, we consider that we have achieved a proportionate balance between fairness to those parties who might have expected special parliamentary procedure provisions to operate as currently set out in the Planning Act and the need to reform the way in which those procedures work as quickly as reasonably possible. Given these reassurances, I hope that the noble Lord, Lord Berkeley, will be minded to withdraw his amendment.

Lord Berkeley: Before the noble Lord sits down, I asked him whether he had any evidence of consultation or anything else on this balance between fairness to the affected people and the need to remove the barriers to growth and the desirability of avoiding delays in respect of nationally significant infrastructure projects. If he has, it would be good for us to have it—if not now, then before Third Reading.

Lord Ahmad of Wimbledon: If I may, I will write to the noble Lord about that.

Lord Berkeley: I am grateful to the Minister for his comprehensive answer. I shall certainly need to read very carefully what he said. I was pleased with some of his comments; the Government have moved a bit on this. Whether they moved enough for what I believe is right, I shall see when I read the debate. I am still surprised that the Environment Agency, in particular, would not be satisfied with a structure that was apparently successfully adopted for the London Gateway. I am grateful to the Minister for his comprehensive response and beg leave to withdraw the amendment.

Amendment 46B withdrawn.

House resumed.

Committee to begin again not before 7.49 pm.

Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013

Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013

Motion to Approve

7.50 pm

Moved By Viscount Younger of Leckie

That the draft order laid before the House on 24 January be approved.

Relevant Documents: 18th Report from the Joint Committee on Statutory Instruments, 26th Report from the Secondary Legislation Scrutiny Committee.

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie): My Lords, this order amends the rules on collective redundancies. It makes three changes. First, it reduces the current 90-day minimum period for 100 or more redundancies to 45 days. Secondly, it makes an equivalent change to the requirement to notify the Secretary of State in advance of the first dismissal taking effect. This period will also be reduced from 90 to 45 days. Thirdly, the order removes fixed-term contracts that have reached their agreed termination

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point from the obligation to consult the individuals affected. These changes will be complemented by guidance on how to consult, which is being developed by ACAS.

I shall set out the changes in context by explaining the current rules. The rules are set out in the Trade Union and Labour Relations (Consolidation) Act 1992 and implement a European directive on collective redundancies. The directive aims to protect employees in large-scale redundancies but not to prevent employers from taking necessary steps to restructure. However, UK legislation builds on the provisions in the directive by introducing minimum periods before the first dismissals can take effect. Where the employer is proposing 20 or more redundancies at a single establishment within a period of 90 days or less, no redundancy can occur until at least 30 days after the start of consultation where between 20 and 99 redundancies are proposed, and no redundancy can occur until at least 90 days after the start of the consultation where 100 or more redundancies are proposed. This does not affect individual notice periods. These do not begin until redundancy notices have been issued, which cannot happen until consultation is genuinely complete.

The 90-day minimum period looks long by comparison with other countries. There is no minimum period in the US, Japan, Australia or New Zealand. In addition, the European directive governing collective redundancy law does not mandate a minimum period. As a consequence, the picture across Europe is varied. For example, there is no minimum period in France or Germany. It is 30 days in Spain, Belgium and Ireland, one month in the Netherlands, and 45 days in Italy and Poland.

Collective redundancy obligations have been in place for 40 years and there have been no changes to the 90-day minimum period in that time. However, I doubt that anyone who retired 40 years ago would recognise today’s working environment. Modern communications technology has made consultation easier and faster to carry out. People have easier access to details about employment opportunities, and CVs can be created and sent out in a matter of hours. Although it was once common for people to spend their career in a single firm, nowadays careers are made up of jobs in a variety of organisations.

In 2011, the Government carried out a call for evidence on the collective redundancy regime as part of a wider review of employment law. We then consulted from July to September 2012. The evidence from both exercises identified a number of issues. Employers were concerned that the rules delayed their ability to respond to challenges and opportunities. A business may need to restructure because it is involved in a merger or acquisition, or it may gain a new contract that requires a change of product or process. Of course, a business may also fail. Whatever the reason, the ability to adapt can create a stronger business from which it might expand in future, and that may include the creation of new jobs. Alternatively, restructuring might simply be about assuring survival and salvaging some jobs rather than losing them all.

For employees, a particular issue was the impact on morale and productivity caused by uncertainty about their future. This affected everyone, not just those

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being consulted. The evidence suggested that concerns about protecting the rights of those who are ultimately made redundant can crowd out the interests of those who are not.

Trade unions were opposed to any change because they believed that it would reduce job protection and make employers more likely to make employees redundant. However, they also wanted to see an improvement in the quality of consultation so that employees were genuinely engaged in the outcome.

As a result, we identified three objectives for reform: first, improving engagement and therefore the quality of consultation; secondly, ensuring that employers can restructure effectively to respond to changing conditions; and, thirdly, balancing the interests of the employees made redundant with those who remain.

On the minimum period and the treatment of fixed-term employees in the order, as I have said our consultation identified a number of problems with the current 90-day period. Employers considered that the 90 days prolonged consultation beyond the point at which it was constructive. Most told us that meaningful consultation usually lasts only 30 to 45 days. Genuinely viable alternatives to employer proposals were either hard to find or quickly identified.

A second major concern was the effect on staff. This was described by one leading trade association as leaving employees in a “state of paralysis” and,

“unmotivated on a day-to-day basis”.

In addition, the prolonged uncertainty hampered the retention of skilled staff. Investors, suppliers, customers and lenders were also affected.

We considered these responses carefully and decided that, 40 years after it was first introduced, it was appropriate to reduce the 90-day minimum to 45 days. This is a statutory minimum, which means that companies are entirely able to extend the period.

I remind the House why employers need to consult. Consultation improves communication and engagement. It ensures that employees feel included in what is happening. It allows them to get used to the idea of change. It allows employees to identify alternative options that the employer might have overlooked. It allows them to ask questions and consider their own personal options. For all these reasons, good employers take employee consultation seriously.

We are not changing the requirement that employers consult on ways of avoiding, reducing or mitigating proposed redundancies, nor are we changing the need to demonstrate that the consultation has been meaningful. The consultation might have to last longer than the minimum period if the employer is to do this, or the employer might decide that a longer period is necessary because it makes sense for them and their workforce. We have also retained the level of punitive penalty that can be made to employees who have not been consulted appropriately. This can be up to 90 days’ pay per affected employee.

The 45-day period, though, will introduce increased flexibility for the employer, who can carry out meaningful consultation quickly. It will also have benefits for the employee. Individuals who have found a new job quickly

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will be able to accept a job offer and leave with a redundancy payment. Employees who are part of the consultation but who end up being retained get reassurance sooner, and individuals who lose their job can begin to plan for and get help with their future.

On the change relating to fixed-term employees, our consultation identified confusion over whether the ending of a fixed-term contract at the agreed point of expiry triggered an obligation to consult. For example, if an employer had more than 20 fixed-term contracts coming to an end within a 90-day period, employers were not clear whether they needed to consult. This has proved particularly difficult for the higher education sector, where the cycles of academic funding mean the routine use of fixed-term appointments related to the academic year. Universities can end up carrying out multiple consultations about appointments where no one is any doubt that they are limited.

As a result, we have decided to take advantage of the provision in the directive that allows member states to exclude fixed-term contracts that have reached their agreed point of expiry. This would mean that in my earlier example there would be no obligation to consult. Where, however, the employer seeks to terminate the contract early and on grounds of redundancy, consultation is still required if the thresholds are met.

Finally, we have asked the Advisory, Conciliation and Arbitration Service—ACAS—to produce guidance, and ACAS is working with employers and employee representatives to develop its content. When it is complete, it will represent the agreed approach between employers and unions.

I anticipate that noble Lords might want to be apprised of the guidance document. With this in mind, I have already prepared a letter to send out to all your Lordships. This guidance is an important part of the overall package of change. Consultation showed us that statutory solutions were neither desirable nor achievable for all the difficulties arising with the collective redundancy rules. The guidance emphasises the importance of looking after employees. What employers do and how they treat employees in difficult circumstances is crucial to the future success of their businesses. Good practice suggests: first, maintaining a constructive ongoing relationship with employee representatives; secondly, having a plan for restructuring; and, finally, having recognised procedures for handling redundancies.

In the last 40 years we have seen a revolution in the working environment, and as a result our labour market has changed significantly. Modern communications mean that things happen faster and more easily. Individuals move more regularly from one job to another and, to remain competitive in global markets, businesses must respond effectively to commercial pressures.

The changes this order will make—

Lord Lea of Crondall: My Lords, I think the Minister said that this is his final point and that he is about to sit down. Is he really going to sit down before telling us what is clearly in the impact assessment: that policy option 2—the 45 days—means a reduction in output, and costs for employers, through making employees redundant more quickly, of £230 million per annum? For employees, there is,

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“the reduction in the amount of time paid by their current employer, and therefore in the pay received. We expect this reduction in pay to total £252m per annum across all affected employees”.

Are the Government trying to get this measure through while hiding that information, or does the Minister think that I have somehow misunderstood that information? Does he not think that that loss of pay of £252 million is mere chicken feed?

Viscount Younger of Leckie: I thank the noble Lord for his intervention. I was just about to finish my opening speech, and there would have been the opportunity for replies. I am, however, very happy indeed to address that concern. The figure that we have is actually higher. It is £300 million, which is the saving that would be made in the reduction to 45 days. Let me try to address and explain where we get that figure from. It is based upon the number of people being made redundant as a result of collective redundancies involving 100 or more people. It is based on UK-specific European Restructuring Monitor data, and 96,000 people were involved. I will not go into the specific details. I am delighted to furnish the noble Lord with the specifics, but if we take the median weekly pay and multiply it up it comes, if I can reassure him, to £300 million. It is purely based upon the amount that is not paid out to employees because of the reduction to 45 days.

The changes—

Lord Lea of Crondall: The clarification is not complete. The Minister is using the figure of £290 million or £300 million. That is classed as a benefit, if you wish. I gave the figures under the section of costs. Under benefits, the benefit to employers is the,

“reduction in wage costs by allowing large scale redundancies to take place more quickly. We currently estimate this to be in the region of £290m per annum”.

I repeat my question: if this is a benefit and the only benefit to employees is a reduction in periods of uncertainty and a possible reduction in stress, is that not rather like saying that if you are on death row for capital punishment it is more motivating to make it quick?

Viscount Younger of Leckie: I would not take that track at all. I was merely making the point that if the consultation period is reduced from 90 to 45 days, there is obviously a reduction in costs in terms of the salaries that are paid out to employees who are made redundant more quickly if that is the case. Equally, another figure could be included, because employees might move on more quickly anyway. The answer is that I am more than happy to give the noble Lord, who clearly understands this exercise by this issue, a full answer in writing and to give the figure in more depth, but the £300 million figure is the one that we have.

Lord Watson of Invergowrie: Further to the point raised by my noble friend Lord Lea, the impact assessment says about benefits, particularly at this stage, that the current estimate of the reduction in wage costs

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would be £290 million at what is termed Option 2(a)—a reduction to 30 days. It says that a reduction to 45 days would make the impact lower,

“but it is not possible to quantify the difference”.

I ask the Minister why not. If it is possible to calculate a ceiling of £290 million from roughly reducing the period from 90 days to 30, which is two-thirds, why is not possible to say what the effect is of reducing that period from 90 days to 45, which of course is a 50% reduction? It seems to me that if you can do one, you must be able to do the other.

Viscount Younger of Leckie: As I say, I will address this question in much more depth later, but let me give a slightly extended answer to the question on pay. The committee argues that employees are unlikely to be predisposed to viewing the new regime favourably because the impact assessment assesses that the changes would mean a reduction in pay across affected employees of £250 million per annum. This does not mean that the individuals lose out on this money. This is the amount of money that the current employer will not pay to affected employees. In practice, employees will almost certainly move to other employment, which is the point that I made earlier.

The Government acknowledge that the proposed changes could result in a small increase in the number of employees seeking jobseeker’s allowance, but we do not see a direct link between the length of the consultation period and the amount of time an individual will take to find a new job. Each case is different. There are many other factors here, including the point at which an individual starts job hunting. The Government can see a considerable advantage for the employee in the new regime, because it proffers certainty sooner, which is the point that I made earlier, not only for those who end up losing their jobs but for those who remain. It is important to remember that the individuals remaining are typically more significant in number than those who depart.

In conclusion, the changes that this order will make are needed to ensure that the statutory framework remains up to date, so I ask noble Lords to consider this instrument.

Amendment to the Motion

Moved by Lord Young of Norwood Green

To move, as an amendment to the above motion, at end to insert “but that this House regrets that the draft Order will have an adverse impact on employees in a situation which will fundamentally affect their livelihood and future career opportunities”.

Lord Young of Norwood Green: My Lords, we regard this as yet another ill-founded government proposal to attack workers’ rights. The Government’s own figures, over which we have had a little exchange, estimate that this change represents a net loss of £252 million—or, on the same page, £290 million; I am a bit baffled by the two different sets of figures on page 2 of the

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impact assessment. Similarly, page 3 of the impact assessment does not quite seem to grasp the nature of what is happening. It says, first, that there will be a,

“possible short-term increase in employment tribunal claims relating to consultation in redundancy situations”.

I can go along with that. It then says that there will be a,

“possible very small increase in job seeker’s allowance claims”.

Well, I do not know quite how that can be justified. That to me almost seems an anecdotal assessment rather than anything based on evidence. When I listen to the Minister say that in practice employees move to other jobs, I only wish that that were the case in 2013. Of course some will, but for many this is going to be a very challenging and difficult situation, with no guarantee that the employee will move to another job, given the current levels of unemployment, which are running at very high rates in various parts of the country. So I do not believe that that is a fair statement of the situation.

The stated purpose, as we heard the Minister say, is to bring this up to date and create a simple, understandable process that promotes quality consultation and will allow the parties to engage in consultation that is best suited to their circumstances, improve business flexibility to restructure effectively and reduce business burdens. “Flexibility” is the term used by the Government to justify the steady erosion of employee rights. From our perspective, it is part of a “hire and fire at will” philosophy and goes along with the myth that the UK’s employment laws are somehow ossified. However, according to the OECD, which I notice was quoted in the report of the Secondary Legislation Scrutiny Committee, the UK already has one of the most flexible labour markets in the world.

The Government’s aim, they say, is to simplify the system for employers. The Minister told us that the EU minimum requirement is 30 days, so I am unclear how a reduction to 45 days will necessarily simplify the situation or provide greater clarity. My question to the Minister is simple. It is the age-old question of, “What about the workers?”. Many of them have given their working lives to the company. They have served and worked loyally. They surely deserve maximum consideration and consultation. The Minister said that it was about survival of the companies. I take his mind back to the situation in 2008 when we had a lot of companies going on short time. There was a huge amount of co-operation, with workers accepting in that situation that they could move to a three-day week. They made sure that there was training involved and so on. The logic that less consultation will somehow be better eludes me. Workers fully understand the importance of the survival of companies, but they want a fair deal. This change does not give them that.

If there is a high degree of confusion about the current rules, the call for evidence highlighted that the lack of certainty and agreed understanding about the consultation process has driven negative behaviour by both employers and employee representatives. I would say that, given a fair opportunity, employee representatives will respond positively. This implies that there is a need for greater guidance for employers

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from BIS on the consultation process, not a change in the rules. I was interested to read on page 10 of the impact assessment:

“Some UK employers have argued that the current regime for collective redundancy consultation is harming their competitiveness on a global level. They state that it is much quicker to restructure in other, competitor, nations, both within the EU and beyond. However, further discussion in focus groups with employers suggests this is not a universal view, and that in fact many view the process as easier in the UK than the rest of the EU. Table 2 shows that, compared to the main competitor nations across Europe and globally, the UK has a much higher requirement for minimum periods before large-scale redundancies can take effect. However, the table does not tell the whole story. Some of the competitor nations listed (including France and Germany) rely on strict enforcement and monitoring regimes to ensure minimum standards of consultation where the UK relies on minimum periods before redundancies can take effect”.

That is an interesting and important qualification.

According to the Government, a significant number of respondents to the consultation called for a statutory code of practice in order to clarify the rules, but the Government rejected this out of hand. Why? Because it did not fit with their agenda. Can the Minister answer that question when he responds?

I heard what the Minister said about fixed-term contracts. I have less to quarrel with on that front because there is some genuine need for clarification there.

A further reason for the change given in the impact assessment is to,

“increase the likelihood of agreement between employers and employees’ representatives”,

and to,

“increase employee buy-in to the decision-making process”.

Again, however, the Secondary Legislation Scrutiny Committee is highly sceptical of this argument, stating in its report:

“It is not obvious from the evidence presented by BIS that the changes are likely either to promote agreement between employers and employees’ representatives, or to gain greater employee support for the process”.

It concludes that the change requires special attention from Parliament on the grounds that:

“The evidence provided by BIS does little to inspire confidence that these other objectives will be achieved”.

8.15 pm

Large-scale redundancies have a big impact on local communities, as I have said. Halving the amount of time required before an employer can make employees redundant halves the amount of time that those employees have to find a new job. It also possibly reduces the amount of time in which they can explore redeployment and retraining opportunities. It also reduces the time and ability of a labour market in a local authority to absorb those job losses, and it has significant implications for local authorities, which will need to provide for a sudden increase in those out of work in their area.

This legislation will not make any positive contribution to employment. The Government ought to be stimulating the economy so that we get more growth and, hopefully, diminish redundancies. The Government ought to be seeking ways to encourage consultation, retraining and redeployment. If they really wanted to help the situation further, they could also go some way towards redressing the deficiencies in management training to which I have drawn attention in previous debates. The

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Chartered Institute of Personnel and Development points out that, still, only one in five managers receives any training at all. On those grounds, I beg to move.

Baroness Turner of Camden: My Lords, I rise to support my noble friend, who has expressed regret. I, too, regret this decision. I am not surprised that there is trade union opposition to it; I would be surprised if there were not. It seems to me that this decision affects not just individual workers but families as well. If this takes place where 100 employees are involved, this means that we are talking about larger companies. This may very well be in places where there has been substantial unemployment because of the decline of manufacturing industry in many areas—a decline for which we should of course thank previous Conservative Administrations, in particular the Thatcher Administration. There are many places where manufacturing industry provided the local population with jobs over a long period, but this is no longer the case, and individuals who face redundancy in such circumstances need a longer period to adjust to that redundancy and to find alternative work.

The Government say that we have a flexible workforce, as though this is something to be very proud of. I am rather suspicious of that view because it indicates that some of the employment rights that we have worked for over the years are in danger. The Government support the disappearance of some of these rights on the grounds that it makes for a more flexible workforce. I do not support that view at all. It is regrettable that the Government are moving down this path. We shall have to look very carefully at the way it operates, and the Government have said that they will watch to see how it pans out. It is not likely to be welcomed by the workforces when they discover that they suddenly do not have the period to adjust to redundancy that they once had. That is entirely regrettable.

Moreover, we could well be entering a situation in some of these areas where more workers enter into benefits, to the discomfort of the Government, who wanted to get people off benefits but who then of course talk about the taxpayer having to bear the brunt of benefit claimants. What else do they expect if they are making it easier for workers to be dismissed? I regret this decision by the Government, and I hope that my colleagues will also regret it.

Lord Monks: My Lords, I, too, rise to support the regret Motion that has been moved by my noble friend Lord Young. The present rules on the period necessary for consultation are designed, in part at least, to provide an opportunity for employers and unions to explore alternatives to redundancy. These alternatives could be short-time working or transfers to growing parts of the business. They could be used to help those workers who are to be made redundant to find alternative work with another employer.

If the minimum period is to be cut in half, these opportunities are inevitably reduced. Staff will be laid off more quickly. The wages bill of an employer will be cut correspondingly. However, the cost, as has been demonstrated by my noble friend Lord Lea, will be met by those who are being made redundant. The

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impact assessment makes it absolutely crystal clear that this is a straight transfer from employees to their employer and, as my noble friend Lady Turner has just reminded us, to the state, too, if people go into unemployment more quickly than would otherwise be the case.