House of Lords
Monday, 7 July 2008.
The House met at half-past two: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Leicester.
Introduction: Lord Bates
Prisons: Time out of Cell
My Lords, time out of cell is an essential component of an effective regime. We will keep the matters addressed in the report under close review. The development of a new collation system and improved guidance will address some of the main concerns raised in the report.
My Lords, I thank the Minister for that encouraging reply. Does he accept that it is a serious situation when the Government’s own chief inspector says that the prisons are reporting that they get prisoners out of their cells, on average, 10 hours a day on a weekday, and it is not true? In fact, the chief inspector says that one-third of prisoners in local prisons are locked up for 22 hours a day in an overcrowded cell? Does the Minister agree with me that the chances of prisons being a rehabilitative experience in these circumstances are nil and that basically there are just too many people in prison who do not need to be there?
No, my Lords, I do not agree with all the points raised by the noble Baroness. Clearly, the high level of population in our prison estate at the moment presents considerable challenges to the Prison Service in relation to its programmes and in the activities that we wish prisoners to engage in, including employment. I agree with the noble Baroness that we must do more to make sure that the figures are as accurate as possible. However, she should not ignore the great progress that has also been made in investment in offender management and in employment programmes. The picture is not as bleak as the noble Baroness has suggested.
My Lords, the chief inspector reports that one in five young people in young offender institutions is out of their cell for less than two hours a day. What are the Government planning to do to address this situation in order to improve the lot of these young offenders?
My Lords, the priority in young offender institutions is the educational and work activities because of the impact that those can have in reducing reoffending in the future. That can sometimes have a knock-on impact on other activities. However, it is worth making the point that in terms of the investment in offender learning and skills, the average number of hours delivered per young person per week in YOIs has risen from seven hours in 2000 to 26.2 hours in 2006-07 in secure children’s homes, with similar additions in secure training centres.
My Lords, the noble Baroness, Lady Stern, raises an important question about curtailment within the prison regime. Who monitors the impact of such a policy? What is its effect on the rehabilitation of offenders, which is the primary objective of the Prison Service, and what is its effect on prisoners who suffer from poor mental health?
My Lords, we are indebted to Her Majesty’s chief inspector for her independent reports, which are an important tool to enable us to judge performance in the Prison Service. It is the responsibility of the Prison Service itself to look at the figures and make sure that they are being developed correctly. The new approach to that, starting this April, lays emphasis on audit by the area managers. On the general question, despite the challenges that that presents, in the past few years we have seen considerable additional investment in the kind of programmes referred to by the noble Lord.
My Lords, is my noble friend aware that the general public’s concern is not so much for the welfare of prisoners, who are, after all, volunteers in the justice system, but for the welfare of victims who are often thrust into the justice system through no fault of their own?
My Lords, I well understand the public’s concern to get the balance right, and we are getting that balance right within our prison establishment. Prison clearly needs to be used effectively for those offenders who need to be there, but while they are in prison it is important to ensure that activities, offender programmes and training are available in order to prevent reoffending in the future.
My Lords, given the dangers of time in cell for prisoners with poor mental health and those at risk of self harm, will the Government accept the recommendation of the chief inspector not only to increase time out of cell but to offer in-cell activities to provide mental stimulation and positive purpose?
My Lords, the right reverend Prelate is right to draw attention to the chief inspector's report in relation to in-cell activities. I understand that each prison governor carries out a risk assessment to determine the type of facilities that ought to be within the possession of a prisoner. Most prisoners are allowed educational material, books, magazines, newspapers and material related to in-cell hobbies. As for the mental health issue, the right reverend Prelate will know that my noble friend Lord Bradley is conducting a review of the impact on mental health of diversion, which is clearly critical to the point that he has just raised.
My Lords, two weeks ago, we debated the need for some outside scrutiny of the management of the prison system. Also some two weeks ago, the prisons and probation ombudsman resigned from a public inquiry into the treatment of a 17 year-old girl in prison because of undue interference from Prison Service headquarters. Is the Minister satisfied that Prison Service headquarters should so interfere with a public inquiry, which is, after all, a government remit?
My Lords, I do not think that it would be appropriate for me to respond to the specific point on that specific inquiry. However, I would say that we have mechanisms in place, including the post holder to whom the noble Lord referred and Her Majesty's inspector, both of which are very effective external mechanisms. In addition, we expect the Prison Service to have an effective monitoring service as well. I would also mention the independent monitoring boards which exist for each establishment and embrace volunteers from the local community, who have a very positive impact in ensuring that an outside light is shone within those establishments.
My Lords, the noble Lord may well know that the Blakey review has just come out with important recommendations. Prison establishments have clearly done much in recent years, including mandatory testing and discovering and looking at all the areas where drugs can be introduced into prisons. We understand that this is an important priority alongside the rehabilitative programmes, and we shall redouble our efforts in this area.
Crime: Insurance Fraud
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest: I am chairman of an insurance organisation and a former director of the British Insurance Brokers Association.
The Question was as follows:
To ask Her Majesty’s Government what support they are giving to the police and the insurance industry to tackle the increasing occurrence of insurance fraud.
My Lords, the recent cross-Whitehall fraud review led to the allocation of £29 million in new money over the next three years to establish the National Fraud Strategic Authority, a National Fraud Reporting Centre and a national lead force for fraud investigation. These developments will help provide support to the police and the insurance industry in their efforts to tackle insurance fraud.
My Lords, I will have to get back to the noble Lord in writing on the specifics of that. As he well knows—his interest in this area is well known and he has done some very useful work here—the whole aim of the authority is to drive forward a strategy; to assess the scale of the problem, and we appreciate that it is a huge problem; to set priority areas; and to work with stakeholders. It is an important unit. I mentioned the other three main areas where work is going on, and we should be able to establish two of them shortly.
My Lords, does the Minister agree that cash-for-crash scams—staged accidents—are on the increase, and that they are dangerous to the public and to the insurance companies? Does he believe that the new arrangements he has just announced can deal with this issue, particularly when criminal activity seems to be part of it?
My Lords, the noble Baroness raises a very important point. In these sorts of accidents people will, for example, fix their brake lights so that they do not actually show and then slam on their brakes in front of someone who runs into them, and then claim for fictitious passengers. The assessed cost of this over the past year is about £250 million. The measures we have put in place are tackling this. I also congratulate the insurance companies themselves; organisations such as the Insurance Fraud Bureau have had huge success. The fact that we have seen a slight reduction rather than an increase shows that the measures are working.
My Lords, perhaps I may follow up on that question. When a question on cash-for-crash was asked in another place last month, the Minister there said that it was a matter of concern that had to be monitored closely. In view of the scale of the problem, does the noble Lord agree that it is not just a question of monitoring, but that we need action by the police and by a combination of the police and the insurance companies to make drivers aware that these kinds of scams are increasingly common?
My Lords, the noble Lord is absolutely right. With the setting up of the National Fraud Reporting Centre—a powerful intelligence tool—what has been done by the industry itself and the fact that this sort of crime is now on the SOCA UK threat assessment, there is greater understanding of it. We are getting that message across, and I hope that that will make people more aware. The impact of some of the prosecutions taking place has been a reduction in the levels of this crime.
My Lords, I welcome my noble friend’s explanation of progress since the fraud review, while declaring an interest as a Minister involved in it. I suggest to him that, in answer to the noble Lord, Lord Sheikh, the strategic fraud authority will not need its own statutory powers because it is setting strategy, whereas implementing bodies such as the police and the prosecuting authorities have ample statutory power to implement it.
My Lords, my noble friend is absolutely right. That is why the Fraud Act, which came into force last year, was widely welcomed by the industry. However, I fear that I will still have to answer the noble Lord, Lord Sheikh, in writing as there may be other points to address.
My Lords, as I said a moment ago, we are now getting to grips with this. We have established that SOCA is looking at it in great detail. We have the reporting centre and the lead force—the City of London force—established, which is able to draw on all the expertise in this area, and the National Fraud Strategic Authority, as mentioned. We are seeing a reduction.
I am not saying that the Government do not take this seriously. Overall, fraud costs this nation about £13.9 billion a year across the whole gamut; it is absolutely appalling. I found it interesting when I lost some stuff and talked to the assessors. They said, “We might give you a bit more because you seem honest”, as if to say that an awful lot of the people do not seem honest. I was rather shocked by this. We take fraud seriously, and are doing a lot to confront it.
My Lords, to follow on from the noble Lord’s answer, does not the extra cost incurred by fraud fall on each and every one of us, in that we must pay higher insurance premiums? A lot of fraud is minor, about which people will sometimes boast. Is it not incumbent on each of us to say that we do not approve?
My Lords, I could not agree more. There is a feeling among some people that this somehow does not affect us—“Lucky old them for getting away with it”. It is criminal and should be addressed as such. We all pay; it adds between 5 and 8 per cent to all of our insurance policies.
Government: Devolved Administrations
My Lords, the Government have long-standing liaison arrangements with the devolved Administrations. We aim to adhere as closely as possible to the spirit of the Memorandum of Understanding governing relations with them, which stresses close co-operation and communication. The Joint Ministerial Committee, which met last month in plenary form for the first time since 2002, offers further opportunities for exchanges of information and views with devolved Ministers.
My Lords, I thank the noble Baroness the Leader of the House for that Answer. We hear in this House of strategic plans for England. To what extent is the noble Baroness satisfied that the devolved Administrations are able to share in these plans and, if they so desire, adopt them in Wales, Scotland and Northern Ireland? Is there sufficient funding available if they decide to take that step?
My Lords, on funding, I refer the noble Lord to Treasury documents that I have here and which I am happy to make available to him and to any other noble Lord. They go into great detail on how funding is allocated—not just through the Barnett formula but way beyond that; the noble Lord might find that useful.
On the general discussions, Ministers of the UK Government talk to the devolved Administrations in a whole range of ways; from phone calls and regular meetings to plans set out between the Leader of the House of Commons and the Administrations when looking at the draft legislative programme. They range across everything the noble Lord can think of, but are working, as far as we can see, quite effectively.
My Lords, the committee meets under the auspices of the Secretary of State for Wales. The Prime Minister has just asked him to undertake a series of meetings. I do not yet know how many there will be. That will depend partly on the agenda. This is part of trying to ensure that as we go forward with our colleagues in the devolved Administrations we do this properly. I understand that the minutes will not be published because they are part of the Cabinet sub-committee route. If I am wrong about that, I shall correct it.
My Lords, what is the Government’s current thinking on English devolution? Does the noble Baroness not see a danger that opportunistic parties might play on resentments if it is thought that English regions are being treated less favourably than the devolved nations?
My Lords, as the noble Lord will know, last July we published the sub-national economic development and regeneration review, the purpose of which was to think more strategically about an integrated regional strategy which looks at regional development agency work and the need to link it more closely to local authorities. We have consulted on those issues and I understand that we shall report in September. That may form part of legislation that will be introduced next year.
My Lords, does my noble friend accept that the devolved Administrations do not include just Scotland, Wales and Northern Ireland but the Greater London Authority, which has substantial devolved powers? Will she ask why Mayor Boris Johnson has abandoned his plan to hold an independent inquiry into the circumstances surrounding the departure of Deputy Mayor Ray Lewis? Is it because he is afraid of what such an inquiry might reveal? Will she ask him to think again?
My Lords, will the noble Baroness assist the House by placing in the Printed Paper Office copies of the record of any proceedings that may have taken place in the devolved Administrations on significant clauses in United Kingdom Bills which relate to Wales, Scotland or Northern Ireland?
My Lords, I think the noble Lord is asking whether we are able to give more information about the response that the devolved Administrations may have given to legislation which affects them. I hope that we do that when preparing Bills. We certainly do so in the pre-legislative scrutiny and on the Floor of the House. I shall certainly consider the matter because it is very important that those conversations take place. Suffice to say that legislation that reaches your Lordships' House which affects the devolved Administrations has been through that whole process. However, as I say, I am certainly happy to look at this.
My Lords, will the Minister clarify the situation with regard to the Crown territories? Are they informed of new legislation and new policies? Are they then allowed—as it sometimes seems—to pick and choose which ones they apply and which they do not, or is there clear guidance from the Ministry of Justice, which I think is responsible for this, on which ones they should implement and which they are allowed to opt out of?
My Lords, as the noble Lord would expect, the relations with the Crown territories are complicated, depending on which they are and what the relationship is. This process is often carried out through Orders in Council, and I have the privilege to be the president of the Privy Council. It would be better for the Ministry of Justice to set this out more clearly rather than my trying to give a detailed explanation of what happens from my memory of when I had responsibility for this area of policy. Of course, the Ministry of Justice talks appropriately to those Administrations about legislation that could, or would, affect them.
My Lords, the noble Baroness is right to raise that point. The current processes vary between the different Administrations. Taking Wales as an example, as it was the origin of the Question, there are bi-weekly telephone calls between the Ministers; weekly meetings between the Secretary of State for Wales and the First Minister in Wales; when legislation is proposed, there are opportunities for the Welsh Assembly to discuss the issues, if it so wishes; and there are ways in which we keep the dialogue going between officials all the time. It is an ongoing relationship with the different Administrations, depending upon which legislation will directly affect them. For our proposed programme, 14 out of 18 Bills will apply wholly or in part to Scotland, 17 out of 18 will apply wholly or in part to Wales and 13 out of 18 will apply wholly or in part to Northern Ireland.
Armed Forces: Procurement
My Lords, the defence procurement process provides our Armed Forces with the equipment and wider support that they need to conduct military operations worldwide. The department recognises that it must always continue to improve its performance, not least to reflect rapidly changing threats and the fast pace of technological change.
My Lords, I thank the Minister for that reply. In procurement for Afghanistan, why was there a shortage of helicopters and why were vehicles open to considerable danger? Is the position now satisfactorily sustained with regard not only to sufficient helicopters of each type but also to armoured vehicles that are resistant to roadside bombs?
My Lords, overall, we have spent £10 billion from the core budget on front-line equipment provision in the past three years. On top of that, £3.5 billion has been spent on urgent operational requirements. That has included upgrading our helicopters and making them safer, providing more protected vehicles and increasing protection for individuals. On helicopters, a number of initiatives have been taken. We are trying to concentrate one type of helicopter in one theatre in order to maximise what we can do and, over the past year, the number of flying hours of helicopters in Afghanistan has increased by 30 per cent. Improvements have been made. We have provided new types of protected vehicles, such as Mastiff, while others, such as Ridgeback, are on the way. It is not possible to protect all vehicles to the same extent and it is up to commanders on the ground to decide which kind of vehicle is appropriate for which operation.
My Lords, does my noble friend agree that, in the light of the recent French defence White Paper and President Sarkozy’s pronouncements on assuming the French presidency, there is enormous merit in co-ordinating defence procurement policy with our French colleagues and with others in the European Union the better to find savings and provide greater resources for British services?
My Lords, it is true that there is scope for co-operation on quite a number of projects. However, co-operation is not the universal answer, because it will work only if countries have similar requirements on similar timescales and have similar budgets available. We are co-operating with the United States and some of our European partners on a variety of projects but, as I say, it is not the universal answer.
My Lords, with the establishment of the shipbuilding joint venture, BAE is now increasingly the dominant supplier to all three services. While a prosperous and profitable BAE is in everybody’s interest and in the national interest, does the MoD operate any mechanism for some form of overriding financial rebate or similar, calculated on the totality of the huge annual overall MoD spend with BAE, as would apply in a similar private sector situation?
My Lords, we look at each contract separately. It is true that BAE has a significant role, not least because it has taken over some of the other companies, which were ripe for that at the time. We do not operate the overall approach described by the noble Lord, but significant improvements have been made in MoD assessment and its commercial position, not least by the appointment of the defence commercial director, which is a relatively new, but wise, development in the MoD.
My Lords, it is still early days for the Joint Strike Fighter. The STOVL version—the one in which we are interested—has made its first flight with a British pilot, although not in STOVL mode. Assessments are still going on. I have visited the people involved, who are making plans about production, but nothing is finalised and we will not have to make decisions until next year.
My Lords, the defence industrial strategy has been significant, not least in bringing about some of the changes that led to the formation of the VT Group in shipbuilding, which underpinned the carrier contract. We are pushing ahead with the defence industrial strategy mark 2, if you like. We have frequent discussions with industry about this and it is keen that we should not publish the strategy until we have completed the equipment examination that we are undertaking. However, we are not stopping work on this. We have had workshops with industry on such issues as the defence marketplace and operational sovereignty. The MoD and industry are working together closely in order to make our way forward to the publication of the new version.
My Lords, my noble friend said, when she answered a question about the Joint Strike Fighter, that it was “still early days”. I remember that in 2001 we came to an agreement with our friends in the United States to go ahead with the Joint Strike Fighter. Does not the phrase “still early days” for the project illustrate all too vividly the problem with defence procurement, which is the inordinate time that it takes to procure anything?
My Lords, I could not agree more. It takes an inordinate time to procure certain things, anyway. If you are talking about a new venture at the cutting edge of technological development, which the JSF certainly is, it is not surprising, once you get into the detail, that these things take so long. To the outsider, it is always amazing how long they take. The further you get inside, it is less surprising but still extremely frustrating. The time delays on a lot of decisions are among the problems that probably many occupants of my position have shared.
My Lords, with the leave of the House, my noble friend Lord Rooker will repeat a Statement on bovine TB at a convenient point around 7 pm. This may be a timely opportunity to remind the House of the guidance offered in the Companion that, although brief comments and questions from all quarters of the House are allowed, Statements should not be made the occasion for an immediate debate. Shorter interventions of course mean that there are opportunities for more noble Lords to pose questions to the Minister within the allotted 20 minutes.
Probate Services (Approved Bodies) Order 2008
Representation of the People (Amendment) Regulations 2008
Parliamentary Constituencies and Assembly Electoral Regions (Wales) (Amendment) Order 2008
European Parliament (Number of MEPs and Distribution between Electoral Regions) (United Kingdom and Gibraltar) Order 2008
My Lords, I beg to move the four Motions standing in my name on the Order Paper.
Moved, That the draft orders and regulations laid before the House on 9 and 11 June be approved. 22nd Report from the Joint Committee on Statutory Instruments, Considered in Grand Committee on 2 July.—(Lord Bach.)
On Question, Motions agreed to.
National Minimum Wage Regulations 1999 (Amendment) Regulations 2008
Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008
Companies (Reduction of Share Capital) Order 2008
Small Limited Liability Partnerships (Accounts) Regulations 2008
Large and Medium-sized Limited Liability Partnerships (Accounts) Regulations 2008
Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008
My Lords, I beg to move the six Motions standing on the Order Paper in the name of my noble friend Lady Vadera.
Moved, That the draft order and draft regulations laid before the House on 2, 4 and 9 June be approved. 21st and 22nd Reports from the Joint Committee on Statutory Instruments, Considered in Grand Committee on 2 July.—(Lord Bach.)
On Question, Motions agreed to.
Special Educational Needs (Information) Bill
Read a third time, and passed.
Housing and Regeneration Bill
Schedule 1 [The Homes and Communities Agency]:
1: Schedule 1, page 151, line 39, at end insert “by way of grant.
(2) Such payments may be made on such terms and conditions as the Secretary of State considers appropriate.”
The noble Baroness said: My Lords, this first group looks like a formidably long list of amendments but, in speaking to them, I hope to make logical sense of them all. I shall begin with Amendments Nos. 1 and 39, which are technical.
In the event that the Secretary of State makes grant payments, under Amendment No. 1, or loans, under Amendment No. 39, to the Homes and Communities Agency, those grant payments or loans will be on such terms and conditions as the Secretary of State considers appropriate. The terms and conditions are a matter for the Secretary of State and will reflect the overall strategic framework for the HCA. Setting out the detail in legislation would be inappropriate and would remove flexibility for the future and for changing circumstances.
Amendments Nos. 3 and 67 are, again, highly technical. The first part of Amendment No. 3 to paragraph 10 of Schedule 1 allows a committee of the HCA to delegate any function conferred on it to any of its sub-committees or to any staff of the HCA. This allows the HCA flexibility in delegating to its committees. The second part of the amendment to paragraph 10 works with the separate amendment to Clause 46 to ensure that the provisions in the Bill which enable the HCA to delegate its functions and appoint agents to exercise its functions on its behalf work correctly together. To explain further, the main aim of new subsection (3) proposed in Amendment No. 3 is to ensure that the power of the HCA to delegate its functions in paragraph 10 of Schedule 1 works with the power of the HCA to appoint agents to exercise functions on its behalf.
Noble Lords will appreciate that, as a statutory body, the HCA has both implied and certain specific powers to appoint agents; for example, under Clause 45. Those permit the agency, for example, to appoint agents for day-to-day activities, such as appointing a contractor to act as agent in the delivery of mail, in relation to selling land or in office administration. In these cases, there is no need for specific statutory authority for those implied powers. However, a specific statutory power to appoint an agent is given to the HCA in Clause 45, where it is permitted to appoint an urban development corporation to act as agent in relation to certain specified functions. Proposed new subsection (3) of the amendment to paragraph 10 of Schedule 1 ensures that Clause 45 is correctly interpreted so as not impliedly to limit the HCA’s ability to appoint agents for its day-to-day functions.
Amendment No. 67 to Clause 46 is also intended to ensure that no doubt is cast in relation to the extent of the HCA’s implied powers, and so it is proposed that subsections (3) and (4) are deleted. Basically, these technical amendments provide clarity on how the HCA’s delegation and agency powers will work.
Amendments Nos. 40, 41, 42, 65, 66, 70, 71, 72 and 86 are, again, technical and relate to the relationship between the HCA and its subsidiaries.
The principle of that relationship is as set out in Clause 44 as amended. We want to ensure that the HCA’s subsidiaries work within the same constraints as the HCA itself, to make certain that subsidiaries cannot do what the HCA cannot do and to ensure that the HCA cannot use its subsidiaries to circumvent any restrictions placed on it in statute. It is an unlikely scenario but one that we consider important for the Bill to cover. It is subject to an important qualification. To award some flexibility to subsidiaries, Amendment No. 40 provides that they can gain the consent of the Secretary of State to undertake activities that the HCA is precluded from undertaking. In the event that a subsidiary can illustrate that it has particular need or reason to undertake something the HCA might be prevented from doing in statute, it can do so, but only with the consent of the Secretary of State. We do not at present envisage any particular activities that would fall within this category but we think that it is appropriate to allow for future flexibility. For example, if the subsidiary wished to charge for activities which the HCA was not permitted to charge for, it would require the consent of the Secretary of State.
Amendments Nos. 40 and 42 ensure that when the HCA is subject to borrowing limits and any surplus funds direction, the borrowing limits and surplus funds of any subsidiaries are also taken into consideration. Amendment No. 40 provides that references to the HCA’s borrowing limit include any borrowings of its subsidiaries, which will prevent the HCA circumventing the financial limits imposed on it in Clause 26 through the use of subsidiaries. Equally, in circumstances where the Secretary of State is considering whether to give a direction as to the repayment of the surplus funds, Amendment No. 42 makes sure that any surplus funds being considered include those of all HCA subsidiaries.
Amendments Nos. 70 to 72 ensure that third parties dealing with subsidiaries of the HCA are extended the same protection as they would if they were dealing with the HCA itself, under Clause 56, on the validity of transactions. This means that all the protections afforded to third parties entering into a transaction with the HCA also apply to transactions with the HCA’s subsidiaries. Amendment No. 86 adds the definition set out in Clause 25(5) to the list of definitions at the end of Part 1.
To conclude on this group, these amendments ensure that subsidiaries of the HCA cannot do what the HCA cannot do and that the HCA cannot use them to circumvent any restrictions placed on it in statute, while allowing for some appropriately circumscribed flexibility through the consent of the Secretary of State.
I turn to the much shorter Amendment No. 69—I seem to have lost this amendment, so I shall move on to Amendments Nos. 73, 76 to 79, 199 and 201. These are technical or clarifying amendments to existing legislation to ensure that it will accurately reflect the world should this Bill be granted Royal Assent. I do not intend to take your Lordships through each of them line by line, but I shall highlight those of particular interest.
Amendments Nos. 76, 77 and 78 and the second part of Amendment No. 79 relate to taxation legislation. The intention behind all tax-related consequential amendments is to ensure that the current tax position will be maintained once the new bodies come into being. The amendments do not impose new burdens or lift old ones; they simply reflect the changes in structure that this Bill will bring about. The first part of Amendment No. 79 relates to planning legislation. The Planning and Compulsory Purchase Act 2004 is clarified to provide that, where plan-making functions are conferred upon the HCA, these may not be conferred concurrently with the existing local planning authority. This amendment was withdrawn in Committee in response to a request from the noble Baroness, Lady Hamwee, who was concerned that passing it then might prejudice consideration of Clauses 13 and 14. They have now been discussed, and I bring the amendment back unchanged.
Amendments Nos. 73 and 75 refer to issues surrounding Crown land. They alter the scope of Crown exemption, reducing it in respect of the Welsh Ministers acting in the capacity of the residuary body for new towns in Wales. So they are tidying up amendments, but still very important.
I have now found my brief on Amendment No. 69. It is a simple amendment, which adds the regional development agencies to the list of bodies in Clause 53(1)(a). This means that the Secretary of State will be able to make a scheme for the transfer to the HCA of property, rights and liabilities from the RDAs to the HCA. In particular, the clause will allow for the transfer of the assets and liabilities of the Academy for Sustainable Communities from its host organisation, the Yorkshire and Humber Development Agency, to the HCA.
Amendments Nos. 82 and 84 are technical; they are intended to ensure that the HCA does not inadvertently act outside its powers while trying to comply with its duties. To clarify, where the HCA has statutory duties, it must carry them out whether or not they conflict with its objects. For example, the duty to hand over surplus funds to the Secretary of State under Clause 28(2) may not fit easily with the HCA’s objects, but it has to pay over the money regardless.
In this circumstance, the HCA is handing over surplus funds because the Secretary of State has directed it to do so and not, strictly speaking, for the purposes of its objects or for purposes incidental to them, as in Clause 4(2). If Clause 4(2) was applied to the duty imposed on the HCA by Clause 28(2), it would put the agency in an impossible position. Similarly, that duty might well cut across Clause 3, so falsifying Clause 4(5). Our amendment effectively confines Clause 4 to “pure” powers, as opposed to powers contained in duties. Amendment No. 84 adds the definition set out in Clause 59(2) to the list of definitions.
Amendments Nos. 102 and 103 concern the housing ombudsman. Clause 124 ensures that registered providers are required to be members of the housing ombudsman scheme in future, as registered social landlords are at present. Noble Lords will know how well the ombudsman does his job, which is to deal with individual complaints from housing association tenants when they cannot be resolved by the landlord.
At present, registered social landlords who cease to be registered are required to remain as members of the ombudsman scheme. The amendment ensures that the requirement to maintain membership of the ombudsman scheme will extend to bodies that have been de-registered by the regulator only if those bodies continue to own or manage publicly funded dwellings. If they cease to own or manage such properties, we do not think there is a need for them to be required to remain part of an ombudsman scheme.
Amendments Nos. 154 to 157 are consequential to tax legislation. They do not change policy; they simply ensure that the status quo is preserved in the new system. In particular, they ensure that tax benefits currently available to RSLs continue to be available in future to their successors—that is to say, non-profit providers of registered social housing. The amendments are technical and consequential but essential to ensure a smooth transition to the new system.
Amendments Nos. 151 and 153 simply ensure consistency through the Bill by adding a definition of a local housing authority. Previous drafts of the Bill had very few references to local housing authorities; hence the reference in Clause 114 included its own definition. We are now adding to the regulator certain requirements to consult representatives of local housing authorities, and it therefore seems sensible to include a single definition covering all the references.
I think the two final sub-groups will be particularly interesting to noble Lords—even more interesting than the ones I have just spoken to. I think that Members on both sides of the House will welcome them.
I have tabled Amendment Nos. 11 and 14 in response to an issue raised by the noble Lord, Lord Greaves, in Committee. He argued that commons are special places with a crucial role to play in the life of communities. He is quite right. He argued that they should be subject to special protection and that their role in community life should be cherished. He was quite right about that too.
It is against that background that a potential threat to the current protection for commons was identified where that land is acquired by agreement by the HCA. I am sorry that the noble Lord is not in his place for me to pay tribute to his vigilance and forensic skill in that respect. However, before addressing that issue, let me be clear that in cases where the agency compulsorily acquires any land forming part of an allotment, open space or common, the protection found in the Acquisition of Land Act 1981 will apply. This requires that, where a compulsory purchase of this land occurs, it must be subject to special parliamentary procedure, including a public inquiry and being brought before Parliament, unless certain exceptions apply. Commons are therefore subject to the highest form of protection in respect of acquisition by a compulsory purchase.
Following the undertaking of the noble Lord, Lord Bassam, to review the position, however, it has become clear that where the HCA acquired common land by agreement, there was a risk that the protection afforded to this land by the Commons Act 2006 could be overridden. The amendments ensure that the protections in that Act apply to the HCA. The first amendment is slightly technical. The definition of common land given in Clause 9(7) replicates the definition in the Acquisition of Land Act 1981. However, by referring to that Act directly in the Bill we can ensure that, if the 1981 definition is amended in future under powers in the Commons Act, the amended definition will apply equally to this legislation.
More substantially, we have removed Part 4 of Schedule 3. This brought forward the existing powers of the Urban Regeneration Agency and allowed the HCA, despite any other legislation, to use a common, open space or allotment in any way subject only to planning permission. Ordinarily, a developer wishing to use common land for a large-scale development without resort to powers of compulsory purchase will require the consent of the Secretary of State under Section 16 of the Commons Act 2006. Part 4 of Schedule 3 would have allowed the HCA to override that requirement. However, I assure noble Lords that it was never our intention that the HCA should be placed in a position superior to other developers in relation to common land, and we are happy to ensure that the HCA is subject to the same controls as any other developer should it want to develop common land acquired by agreement.
Finally, Amendments Nos. 98 and 99 in this group are on a slightly different subject. The noble Earl, Lord Onslow, raised this matter in Grand Committee, but unfortunately we could not debate it then. He is not in his place, but I should say that we were grateful to him for tabling his amendments in Grand Committee because they were originally proposed by the Joint Committee on Human Rights, of which he is a member. Both his amendments and mine are to Clause 110, which relates to information disclosure.
Briefly, Clause 110(1) provides that a public authority may disclose information to the regulator for a purpose connected with the regulator's functions. Subsection (2) provides a reciprocal disclosure power to the regulator, but stipulates that such a disclosure can be for a purpose connected with either the regulator's functions or the receiving public authority's functions. The Joint Committee is concerned that the information-sharing gateway provided by Clause 110 is too broad and might be incompatible with Article 8 of the European Convention on Human Rights. The Joint Committee recommended that the current test—that information is for a purpose connected with the regulator's functions or the public authority's functions—should be replaced with a necessity test that information may be shared only when it is necessary to perform those functions.
We do not share the Joint Committee’s concerns about the ECHR compatibility of Clause 110. In particular, it is important that we do not see the clause in isolation. Subsection (5) makes it clear that the powers provided by the clause are subject to any express restrictions on disclosure imposed by other enactments. Those enactments include the Data Protection Act, which already provides significant protections, and the Human Rights Act, to which the regulator, as a public authority, will be subject.
Notwithstanding that, it is right to address the Joint Committee’s concerns, which is the intention behind the amendments. If the House agrees, the amendments will ensure that a public authority may disclose information to the regulator only if the public authority thinks that the disclosure is necessary for a purpose connected with the regulator’s functions, and that the regulator may disclose information to a public authority only if the regulator thinks that the disclosure is necessary for a purpose connected with the regulator’s functions or with the public authority’s functions. The amendments will impose a necessity test on the sharing of information between the regulator and other public authorities, but this is consistent with the Joint Committee’s recommendations.
These government amendments are slightly different from the amendments that were recommended by the Joint Committee and which the noble Earl tabled previously. His amendments were rather more straightforward than mine. They would merely have inserted “which is necessary” into subsections (1) and (2). My amendments specify that the applicable test is whether the discloser of the information thinks that it is necessary. This extra detail is because we felt that the Bill should be specific about whose opinion the necessity test is based on. Unless we specify that, the clause could be open to a wide interpretation. Such ambiguity would be unhelpful to those who will have to operate the clause in practice and to the courts that may one day have to interpret it.
I hope that these amendments, together with the existing safeguards provided by the Data Protection Act and the Human Rights Act, will reassure noble Lords and the Joint Committee. I beg to move.
My Lords, any new readers would be quite baffled. I must thank the noble Baroness for responding to my noble friends Lord Greaves and Lady Miller of Chilthorne Domer, who also raised points that are covered in this group of amendments. Before I ask questions on the amendments, I should like to make a general point, which I will not make again despite the considerable number of government amendments still to come. These are technical amendments. Some of them respond to what happened at the previous stage, but most are tabled in order to get the Bill right.
The Bill spent a lot of time in the Commons and we spent nine days on it in Committee. We are now at the penultimate stage. I should like to make absolutely clear that I cast no blame at the door of the noble Baroness, but this possibly consolidates what I have noticed over the years; namely, that in June and July, the Government do not have the resources to deal with this sort of thing in the way that they should. There has always seemed to be a shortage of parliamentary counsel, which, no doubt, has been felt at earlier stages. It is a bit of a poor show that we get all this at this stage. I have said it now, got it off my chest and I will not say it again—well, not today.
Amendment No. 69 refers to regional development agencies. The Minister has given us one example of how the provision could be used. I suspect that that example is why we have the amendment, but it is much wider than the example and I would be grateful if she could tell the House whether the Government have anything else in mind that would require an amendment of this sort. Amendment No. 79 refers to planning. As the noble Baroness said, we were concerned about that at the previous stage. I do not oppose this amendment because, although I very much oppose the Government’s planning proposals, which we will come to in the next group, we do not seek to get rid of them entirely.
When I saw Amendment No. 82 I wrote, “Please translate”, which the Minister has done. I am also grateful to have had sight of the Minister’s speaking notes on these amendments, which have made life a great deal easier. Finally, Amendment No. 89, which would apply to Clause 69, states:
“The Secretary of State may by order make further provision in respect of a function … (which may, in particular, include provision for the function to cease to be exercisable)”.
I would be much happier if the amended clause simply stated that the Secretary of State could order a function to cease to be exercisable. That is what the Minister’s note, which was circulated to noble Lords last week, said. However, the amendment is wider and it is not clear whether the further provision referred to is yet another provision, whether it is covered by Clause 69(1), or whether something more is in mind. That is one example of a generality followed by a particularity, and it is the particularity that concerns the Government, but it is cast in a much wider context. Last week, the noble Baroness described me as cynical—inevitably, cynics like me will wonder about the wider intention.
My Lords, in accordance with the customs of the House, I remind noble Lords of the declarations of interest I made at Second Reading.
There is not much to say to this group of amendments except a general comment. The noble Baroness is correct to say that the amendments are largely technical. They indicate an increasing tendency to manage by legislation, although I am not sure that this Government are the exclusive progenitor of the practice; we all build on what our predecessors have done. The management of public bodies is more detailed and prescribed, and of course anyone working for such a body can always say, “Ah, but the law says this”. One of the side effects, of which this group is a classic example, is that the capacity for initiative is removed from people employed by something such as the Homes and Communities Agency. Increasingly, jobs in the local government sector are prescribed and defined in legislation. No doubt we have played a part in that, but it is a trend that we need to worry about. Jobs in the public service will become increasingly less worth doing and satisfying as the result of fewer opportunities for people to do things that really can help their communities because the law does not permit them and they dare not do anything without that permission.
My Lords, what can I say to the noble Baroness except that it is a fair cop? I would have much preferred not to have had to bring back so many technical amendments, but it is extremely important to get a Bill of this size and complexity right. I also address those remarks to the noble Lord, Lord Dixon-Smith. A great weight of responsibility will rest on the agency with its enormous funding powers and ability to take action, so I am grateful to noble Lords for helping to achieve that accuracy. Where possible I have made my speaking notes available to noble Lords opposite because it is a fair way to proceed when technical amendments are brought forward late. It is quite right and proper that they should form part of our scrutiny.
The noble Baroness put two questions to me. The Bill refers to all regional development agencies, but she has spotted that when we talked about the ASC we were just talking about the transfer from the Yorkshire and Humberside RDA, Yorkshire Forward—the grandfather body, as it were. The need to refer to all RDAs rather than just specify that one is, I understand, to avoid a hybrid Bill procedure and provide flexibility should transfers of property or other assets be required in the future. We have no plans to do that, but wish to ensure the necessary flexibility. I cannot add much to that explanation when we come to government Amendment No. 89. We are advised that flexibility is important here but, similarly, we have no plans to make use of it.
On Question, amendment agreed to.
2: Schedule 1, page 152, line 5, at end insert—
“( ) The HCA shall exercise any powers granted by order made under section 13 and described in section 14, only through the delegation of such powers to a committee; and such committee shall hold all its meetings within the area of the local planning authority in which the land described in the order made under section 13 is situated.”
The noble Baroness said: My Lords, this is a smaller but significant group of amendments dealing with the powers which the Government propose should be exercisable by the new Homes and Communities Agency in the area of planning, both in the making of plans and in dealing with planning applications. The group contains amendments from the noble Lord, Lord Dixon-Smith, and a number of amendments from the Minister, on which I shall comment after I have spoken to my amendments.
Amendment No. 2 seeks to provide that the HCA can exercise its powers only through a committee which holds its meetings in the area of the local planning authority in contention. If the HCA is to exercise planning powers, it will rapidly learn the importance of being seen not to be remote. Part of that includes physical and geographical accessibility so that people can get to meetings, hear the arguments and put their own case. I cannot emphasise enough the importance of hearing the arguments. Often people who have argued on one side of a case, even if they are not reconciled having heard the argument, at least have an understanding of why the other argument prevailed. My experience—now out of date—was that this was important for more than just the outcome of planning applications; it was the connection between local people and the local authority, about which many people were concerned.
Amendment No. 74 is a probing amendment and seeks to apply the local government access to meetings and information provisions to the planning activities of the HCA. If it is not correct that these provisions will apply, some of us will think that that shows particularly bad faith. I hope I am going to be told that I need not worry about it and that it is all there somewhere—but I could not find it. The first of the amendments was suggested to me by the Town and Country Planning Association.
Amendment No. 9 is rather different and concerns making assistance available to local planning authorities. In Committee, much was made of the need to provide planning expertise in different situations and the quite correct point that local planning authorities are very short of planners. The amendment would make the HCA a centre of excellence which would be available to local planning authorities. I may have mentioned at the previous stage that something like this was developing in London when I was a Member of the London Assembly—no doubt it is still going on—with the planners engaged by the GLA assisting the London boroughs, where there was less expertise in dealing with large-scale, complex applications.
Amendments Nos.17, 18 and 19 go to the heart of the Government’s proposals. In a Bill which, by and large, we on these Benches support, Clauses 13 and 14 are, frankly, offensive. They give the new agency powers that, admittedly, have been there in the background and used once by English Partnerships, the agency chaired by the noble Baroness, Lady Ford, but are now centre stage in the Government’s proposals for the HCA. Planning is central to local government, and I stress both “local” and “government”. The HCA, however desirable its objectives, is not a democratically elected Government. The Minister has done her very best to assure us about how rarely the powers will be used, but the more she does so, the more the argument boils down in my mind to whether they are really needed at all.
The Government keep saying that the powers would be used only in special circumstances. If that is so, I cannot see a justification for a blanket order. My Amendments Nos. 17, 18 and 19 would limit the Secretary of State’s order-making powers to particular purposes and particular kinds of development. That does not mean only a single purpose or kind of development; I have not narrowed it down as much as that. If the situation that the Government anticipate might have to be dealt with is so special, it must be possible to analyse it—after all, one needs to analyse a problem before offering a solution—as well as to define and articulate it, and to put it in an order designed for the purpose.
Amendments Nos. 193 and 196 would apply the affirmative procedure to these orders, not the negative one. Given the significance of what was proposed at the start of our proceedings, I thought that this must have been an oversight, but it appears not. The Government should justify each order, hence those amendments.
Amendment No. 25, a requirement for a public local inquiry, was put down at much the same time as the Government’s amendments were tabled. While I see the merit in building on old legislation that is still around, which could be useful, the Government’s amendments cover rather similar ground so I will not speak any longer to that amendment.
Amendment No. 26 would take out the new agency’s plan-making powers and leave it with development control powers—that is, powers to deal with planning applications. I find it hard to see why the HCA needs to be able to make plans. We have been told that there may be inconsistencies between plans for adjoining areas where a proposed development straddles a boundary, but the local development frameworks of both the planning authorities concerned, if that is the case, must comply with the regional spatial strategy. Could there be major inconsistencies? It seems unlikely. More to the point, how practicable is this? The local development document process is a long and complex one. Do the Government really envisage the new agency going through what we know local planning authorities have been struggling with since the 2007 Act imposed those provisions on them—provisions that may be rowed back when we see the Planning Bill?
Amendments Nos. 28, 29 and 30 to Clause 14 replicate my amendments to Clause 13, and Amendment No. 31 is consequential. Amendment No. 32 is a continuation of the argument; it would leave out paragraph (c) of Clause 14(6), which allows the Government to disapply any enactment in the case of the HCA. It is one thing, if the HCA has these new powers, for the Secretary of State to be able to modify enactments, as he can, or perhaps, using synonyms, to adjust or tweak them to fit the fact that the HCA, not a local planning authority, will be taking decisions, but in effect to rewrite planning legislation is quite another. Whatever assurances we are given about how this will just make sure that all the powers are in place, that is what Clause 14(6)(c) says. With regard to Amendment No. 33, so does Clause 14(8); that amendment is also consequential.
On the Government’s amendments, I again thank the Minister for responding so positively to the amendments of my noble friend Lord Greaves on private streets. Not many of us achieve excising parts of a Bill, certainly not at this stage. I acknowledge what the Government are proposing by way of local involvement; it is very important and I can see that time has been spent designing the provisions. But as the Minister knows, I do not accept the basic proposition that the HCA should have such extensive planning powers.
I have two questions for the Minister on her amendments. Is the statement of local involvement made on the basis that the Planning Bill acknowledges that the 2004 Act has not worked very well and those provisions are being rewritten? Or is it an addition to the statement of community involvement in the 2004 Act, which is still on the statute book? Secondly—and this is a comment rather than a question; this will not come as a surprise to the Minister as we have discussed it privately—the local authority may nominate a member of the committee, and that person may be a member or an officer of the local authority. Members of a planning committee are not there in a representative capacity. Any officer who is pitched into this situation by his local planning authority could not represent it and that, for him, might be a career-defining moment. I beg to move.
My Lords, Amendments Nos. 4 and 15 in my name are also in this group. I find myself at something of a procedural disadvantage. Under Report stage rules, I have no right to sum up at the end of the debate on this group. That might mean that then I have some difficulty, depending on what the Minister has said. I make that observation now because it also will depend on what the noble Baroness, Lady Hamwee, has to say at the end.
The Homes and Communities Agency is not a body to which we object in principle. As the Minister has explained, it is an amalgamation of the Housing Corporation and English Partnerships. Of course, the nigger in the woodpile, as the noble Baroness, Lady Hamwee, has already pointed out, is that it still incorporates what I call the hangover of the new towns legislation. If it were not for that, we would have little difficulty with the foundation of this agency. However, the historical hangover of those planning powers in this age of participation and consultation where everyone works together is a considerable anachronism and I do not like it.
Our two amendments were tabled with the express purpose of recognising at the start of the Bill that local planning authorities and local councils already have a major role to play in community development, reconstruction and the provision of social housing. I acknowledge the parts played by housing associations, ALMOs and so forth and acknowledge the funding arrangements that are made. However, the noble Baroness, Lady Hamwee, referred to the difficulties and complexities of the existing planning system and asked a perfectly reasonable question. If the Homes and Communities Agency has planning powers, will it be exempt from the effects of that system, or, more importantly and significantly, if it wishes to redesign the area for which it is given responsibility by the Secretary of State, how detailed will the planning process be that supervises it? If it has to go back to square one, requiring an adjustment of the regional spatial strategy, any planning gains in terms of time or anything else will completely fall by the wayside. We have difficulty with that.
Our approach is to ensure that the Homes and Communities Agency works with local authorities and local planners and takes them on board as part of its committee structure so that local communities have direct involvement. The weakness of the amendments proposed by the noble Baroness, Lady Hamwee, is that, without the direct involvement of local councils and planners, relationships on the ground may be fraught. The occasional examples of where that has happened in the past have not been encouraging.
I was somewhat interested when the noble Baroness, Lady Hamwee, said that the Homes and Communities Agency might become a source of planners for local authorities. I am afraid that I read the market rather the other way round. The Homes and Communities Agency is much more likely to take planners from local authorities than to act as a training ground for them. Of course, one has to acknowledge that pre-existing bodies will already have their own planning departments, but there is an eternal problem over the supply of planners. In my admittedly limited knowledge of planners, it is not that they would go from local authorities to the Homes and Communities Agency or vice versa, but that they would leave that sector altogether—and have done for the past few years—for the private sector. They become planning advisers or consultants and represent commercial interests in all sorts of ways because that is more profitable than working for either the Government or local authorities. Of course that particular pressure may disappear like a puff of dust in the wind. All noble Lords expect the housing market to return eventually, first, to stability and then to development. When that happens, the market for planning consultancy will increase. While I entirely accept that work needs to be done to ensure a greater supply of planners, the idea that the Homes and Communities Agency can lend them to local government is not likely to be realistic.
My two specific amendments require the Homes and Communities Agency to work through the planning system and co-operate with the relevant planning authorities and other agencies. I think that that is perfectly reasonable. The other amendment deals with Clause 13 and says that, following consultations with the local planning authorities and the Homes and Communities Agency, the Secretary of State may make the orders under Clause 13. Both amendments are directed at one specific point: to ensure that local authorities, not only in their planning capacity but, more importantly, in their much wider community capacity are directly involved from the start when there is any question of the Homes and Communities Agency being involved with planning powers.
I regard the retention of that power as an historical anachronism. I rather wish it was not there; I am wholly convinced that it is not necessary. The noble Baroness herself has said that it is intended to be used only in very exceptional circumstances. Given all the complications that we have added to the planning process since these mechanisms were last used, I find it difficult to envisage circumstances in which these powers might actually be used. Be that as it may, it is possible, given what happened at Committee stage, that the Minister will tell me that as a result of her amendments, mine are not necessary. That may well be. If they are not necessary, at least they are doing no harm and there should be no objection to putting them in the Bill. I await the Minister’s reply with interest. I think that that is enough for now.
My Lords, in welcoming my noble friend’s amendments, I would like to ask her two questions. Could I first say that I have considerable sympathy with Amendment No. 9, tabled by the noble Baroness, Lady Hamwee, to create more of a centre of excellence in planning and design skills? I look forward to my noble friend's comments on that proposal. In fact, my question bears on the same point. On my noble friend's Amendment No. 20, I would like to ask her whether the words,
“the effectiveness with which the functions of the local planning authority”
include good design—the local planning authority’s responsibility to ensure that the design is up to standard. Does “matters relevant to functions” in subsection (4)(b) of the new clause of her Amendment No. 34 again refer to the importance of good, high quality design?
My Lords, I support the amendments of the noble Baroness, Lady Hamwee, and my noble friend Lord Dixon-Smith. It is impossible to believe that social housing will appear in suitable quantity unless there is close co-operation. Any powers that put the HCA in the driving seat will therefore arouse resentment and will not be welcomed. During the passage of the Bill, I have not yet heard any evidence that anybody wants the HCA to, as they might express it, usurp the planning powers of any local authority. If you look at the market share of the HCA, its power rests on people knowing that it has money in its pocket; they go looking for that money to support an area of housing in which there is comparative market failure. However, that is only a relatively small proportion of the total housing market and of all matters that come before planning authorities.
If the Government set up an agency over which they have, by virtue of the Bill’s language, close control, and use it to do things which will not be welcome to local authorities, whichever way you look at it the proceedings will fail. The intent of the Bill will not be met. The pledges and promises about the number of houses that we can expect over the next few years will not be fulfilled and there will be no improvement in the situation. I strongly believe that these overriding powers should not be in the Bill.
My Lords, I am afraid that I cannot support the noble Baroness’s amendment nor those of the noble Lord, although I articulated some sympathy with their sentiments in Committee. I have two or three important points to make. In the valuable debate we had in Committee, we all understood how strongly views were held on planning powers. I say to the noble Viscount that some evidence suggests that these planning powers have been used entirely benignly and in a positive way over the past five years. It is useful to remember that we are not putting in the Bill the kind of culture, organisation and wide, sweeping powers that we saw in the New Towns Act 1946. We do the Minister’s hard work and her amendments a disservice if we suggest that the HCA’s planning powers would be used in that way.
I remind noble Lords of the example that I used in Committee, when I explained that English Partnerships has had these powers throughout its existence. We no longer look to the old model of new towns or other urban development corporations, where an organisation was set up entirely detached from local democracy and local authorities. Rather, we should look to delivery vehicles set up in the past five years, such as the Milton Keynes Partnership—with a progressive, intelligent, local authority—which has been a joint venture between local authority members, English Partnership board members and members of the local community, who now comprise the local planning authority. That authority has an independent chair, a person with a strong Milton Keynes track record. Evidence for this can be found in the amount of high quality development infrastructure that has been delivered in Milton Keynes compared to the rather arid scene of 10 years earlier.
It is right to say that these powers will be used exceptionally. The Milton Keynes partnership committee was indeed an exception and was initiated after extensive consultation, not just with the local authority but with a range of stakeholders. Ministers were at pains to stress that, although the Milton Keynes partnership uses the planning powers of English Partnerships, it is by no means controlled or dominated by English Partnerships. That is the reality of the way in which we set up delivery vehicles in the 21st century. We do not look towards the development corporations that we had in the previous century. I am sure that my noble friend will underline that when she responds. The concessions that the Government have made in their amendments make it clear that this provision will be used only in exceptional circumstances, in an entirely benign way and with the full agreement and co-operation of the relevant local authority.
The advisory team on large applications comprises specialist planning practitioners and is a joint team consisting of members of the department and English Partnerships. It has worked closely with local authority colleagues across the country, where they have asked it to intervene to help them process large, complex applications because they simply did not have the necessary skills and expertise. The great news for local authority colleagues is that they do not have to pay anything for that specialist advice. This has been a marvellous innovation in facilitating developments that would not otherwise have been brought forward by local authorities that were minded to support them but simply did not have the range of expertise to do so. I gently chide the noble Lord, Lord Dixon-Smith, as I think there is definitely scope for the HCA to facilitate and to provide support in that way.
My Lords, I am grateful to all noble Lords who tabled these amendments. This has been an excellent debate, as it was in Committee. Although we consider that these amendments are not necessary, that does not mean that they are not important in prompting debate and enabling us to reconsider our response. I am also grateful for the contribution of my noble friend Lady Ford, who speaks with such clarity and authority; there is no substitute for practical experience. Although I shall do my best to persuade the House that we have responded to concerns with integrity and care—I accept that there are deep concerns about this issue—the fact that my noble friend was able to explain the circumstances under which exceptional powers are used in partnership was extremely helpful to everyone. The noble Viscount, Lord Eccles, also commented on the matter.
What we want the HCA to achieve—this is certainly true of the chief executive, Sir Bob Kerslake—could not be realised unless the entire organisation was completely committed to partnership with the agencies, especially local authorities, which will build the houses. The HCA’s task is to ensure that all parts of the complex system for planning, regeneration and housebuilding work in harmony and to the best effect. That is what we want the HCA to achieve. Therefore, I completely concur with everything that noble Lords have said across this range of amendments about the need for partnership and a close working relationship. As Bob Kerslake says, the HCA will be the best and closest partner for local authorities. I hope that I will exemplify that in my response to these amendments.
I completely understand the intention behind Amendment No. 2, in the name of the noble Baroness, Lady Hamwee. However, I cannot accept it because it would be too restrictive. Where the Secretary of State uses her powers to designate an area and confer planning functions on the HCA, the amendment would require it to exercise those functions by means of a committee. It specifies that the committee should meet in the local area within which any designated land lies. The noble Baroness spoke eloquently about the need to work closely with and listen to the local community, a matter that I shall return to when I discuss my amendments.
We believe that this amendment is too restrictive. The amendments that I will bring forward in respect of Clauses 13 and 14 provide that the HCA may set up a committee or sub-committee for the purpose of exercising planning functions, which would be a likely option. If it does so, it must inform every local authority for the designated area and invite them to suggest one or more candidates for membership of such a committee. However, I do not think that that is the only possibility or that we should stipulate in the Bill that it would be the only possibility for exercising functions.
The noble Baroness and I agree that it is important that the HCA, when acting as the local planning authority for a designated area, should be properly accountable to those living in and around that area. One way in which that might be achieved would be if the HCA exercised planning functions in meetings that were open to the public. When we come to the noble Baroness’s amendment that deals with that point, in relation to Schedule 8, I will undertake to consider it. I am happy to help that amendment along. However, this amendment would restrict the ability of the HCA to exercise its functions as it sees fit.
Amendment No. 4, tabled by the noble Lord, Lord Dixon-Smith, relates to working through the planning system. The noble Lord was eloquent in his concern and his conviction that the HCA will work only if it is within the planning system. He is right about that. We support everything that he says. In his attempt to ensure that the HCA works in partnership, he uses the term “co-operating”. The language does not matter so much as the intent and what is to be achieved. His amendment refers to co-operating with local authorities and any other body involved in any activities related to its objects. He argued that, without express provision that the HCA must work through the planning system, it could be used to circumvent the system and local opinion to drive through unwanted development that is not in accordance with the development plan. He also argued that, without a requirement in the Bill compelling the HCA to co-operate with local authorities and other groups already working towards the achievement of its objects, the agency will be a top-down leviathan with no knowledge of or sensitivity to local concerns.
I cannot agree. There are a number of ways of interpreting the difference between co-operation and partnership. Co-operation is a slightly lower test than partnership, but the effect would be the same. It is simply not the case that the Bill as drafted in any way enables the HCA to circumvent any part of the planning system. Even in the unlikely event that the Secretary of State designates an area and confers responsibility for preparing and maintaining all or part of the local development framework for the designated area on the HCA, that in no way exempts the HCA from having to go through the same process as any other local planning authority to amend the plans for the area, including consultation and examination in public. If it is involved with a development that requires planning permission, that must be applied for and obtained in the normal fashion. There are no short cuts for the HCA. I take the point made by the noble Baroness, Lady Hamwee, that this is a major undertaking. These plans are complex to make and amend. They will not be undertaken lightly. Nothing in the Bill in any way exempts the agency from abiding by the laws of the land, including on the development and use of land.
As for the HCA being centrally driven, it will work with local communities to determine the best way of delivering national objects locally. We have included the HCA as a body that will be a statutory partner authority for the local area agreement and local improvement targets. The agency will support local partners to deliver the new homes and regeneration projects that their communities need, which will have been identified at a local level. The agency will be working closely with local authorities and regional partners to identify the best way of delivering their priorities. The remainder of what I want to say about how this will work is best left until I address my amendments, because that will pick up the argument. If the noble Lord will forgive me, I will leave his amendment there.
Amendment No. 9, in the name of the noble Baroness, Lady Hamwee, is about the support that the HCA may provide to local planning authorities. The debate on that was quite lively. I am happy to give an assurance that the HCA will indeed share its planning knowledge and expertise with local planning authorities. I have said at different stages of the Bill that it is very much our intention that the HCA should become a one-stop shop for local partners who need to seek advice, guidance, skills or funding support. We have made provision for that in the Bill. For example, Clause 22 provides that the HCA may, with the consent of the Secretary of State, give financial assistance to any person. Clauses 41 to 43 and 47 empower the HCA to provide information services, advice, education, training, guidance and support services to those who need them, within its objects. To pick up the noble Baroness’s language, the HCA will indeed be a centre of excellence and will put its expertise at the disposal of local authorities.
It is worth highlighting the excellent work of the existing organisations that will make up the agency. They are already working to provide support and improve knowledge and skills. For example, the Advisory Team for Large Applications, ATLAS, provides an independent advisory service to local planning authorities. It works with local authorities and the private sector to deliver large-scale development. ATLAS is sponsored by my department and is hosted by English Partnerships, as part of the Planning Advisory Service. As my noble friend said, that service already does an excellent job in assisting planning authorities in practical ways. However, these services should not be restricted to planning authorities. The Housing Corporation’s good practice programme aims to encourage the development and testing of new ideas to generate and promote good practice in the delivery of social housing.
Within the centre of excellence is another resource of which I have great expectations: the Academy of Sustainable Communities. The academy has, for two or three years now, been applying itself to raising the skills and expectations of building communities, in terms not just of physical infrastructure but of what is needed in the social infrastructure of communities. The academy aims to inspire, motivate and influence people across many sectors to create sustainable communities. For example, its first priority was to work with schools. It works with people with leadership roles in the communities and with professionals. It will be a source of growing more planners. The academy is an exciting and innovative group of people. The HCA will be enriched, and it will enrich and expand its work, because of that. These are some of the tools currently at our disposal. I hope that they demonstrate our intentions for how the HCA will work to improve places and to grow the skills that we need.
Amendments Nos. 16, 21, 27, 35 to 38, 80, 81, 83, 85 and 192 are a group of miscellaneous government amendments. This is a sort of trailer for the more important amendments that I shall address in a minute. All these amendments are related and go some way towards responding to points raised by noble Lords in Grand Committee. The noble Lord, Lord Greaves, specifically asked for these amendments to be made. I gave him an undertaking to consider these clauses further, to determine whether they were necessary to the success of the HCA’s operations and to return to them on Report. It was a useful exercise because, after consideration, we decided that the clauses were not needed and, therefore, we now seek to remove them from the Bill.
I am keen to respond to noble Lords’ concerns about carrying forward all powers when they are no longer needed—we had an interesting debate on that in Committee—and so I hope that noble Lords will be pleased to hear that we have gone further still. We have removed the HCA’s ability to serve notices on local highway authorities requiring them, under Clause 21, to connect private streets to existing highways. When we considered the use of Clauses 15, 16 and 17, it became evident that the powers of Clause 21 were not necessary. If the HCA wants a private street to be connected to an existing highway, it should work in co-operation with the local authority. It should not have a power that could be viewed as riding roughshod over it.
Although Clause 21 is not directly linked to the amendments to Clauses 15 to 17, it raises similar issues, and I hope that these amendments demonstrate to your Lordships that we see the partnership between local authorities and the agency as being fundamental to the success of the agency. By removing these clauses, we are confirming our commitment to the fact that designation powers will be used only in rare circumstances and that, where the agency is involved in a development or regeneration project, it will work with the relevant local highways authority to ensure that roads are connected if the development requires it. The remaining amendments in this group are all consequential on the deletion of Clauses 15, 16, 17 and 21. They remove references to the clauses and so can be considered as housekeeping amendments.
Before I come to the major block of amendments in my name, I want to say a few words about Amendment No. 15, in the name of the noble Lord, Lord Dixon-Smith, concerning consultation with local government. This is an important issue, as I hope to show shortly, but I do not think that it is necessary to state in the Bill that the Secretary of State should consult the HCA. In practice, the Secretary of State will not possibly be able to designate an area out of the blue without the involvement of the HCA. She could not impose such resource-intensive work on the HCA without extensive planning, as that would jeopardise the HCA’s ability to deliver against its objects. I hope that that has provided an introduction to Amendments Nos. 20, 22, 23, 24, 34, 66 and 68 in my name, which go to the heart of noble Lords’ concerns about the designation power.
We have brought forward an important group of amendments in response to concerns raised in Committee about there being no explicit statement of partnership with local authorities in the Bill. We have also brought them forward to make it clear that the exceptional powers of designation will ensure a clear and central role for the respective local authority. I want to underline what the noble Lord, Lord Dixon-Smith, said: planning control is central to local government; it is one of its most important functions. I have said again and again that we regard the relationship between the HCA and local government as a vital partnership. However, because it was clear that noble Lords wanted a more explicit statement of that fact in the Bill, I have tabled these amendments, which amount to a substantial package of government amendments.
The amendments should also be seen alongside something even more recent: the protocol with the LGA, which was launched in draft at the LGA conference last week. The protocol makes it clear how firm our commitment is to the new agency working in partnership with local authorities. The draft protocol is timely, as has become even clearer in the past few days. It says:
“The aim will be to reflect the shared endeavour between councils and central government to secure more and better homes that are both affordable and in places where people want to live, to regenerate and renew our most deprived communities, and to build councils’ strategic capability to achieve these ends”.
That is a powerful and welcome statement of partnership.
Amendment No. 68 will require the HCA to consult such representatives of local government as it considers appropriate about how the HCA pursues its objects and to publish a statement describing how it proposes to do that. In Committee, the noble Lord, Lord Dixon-Smith, suggested that he wanted psychology in the Bill that would indicate the nature and warmth of the partnership. I hope that we have achieved that in this amendment.
I understand that some noble Lords think that the proposed new clause is rather far into the text. I have some sympathy with that view. The problem is that this is where logically it should sit. It does not belong after Clause 2 because, while it is about the HCA pursuing its objectives, we do not yet know how the HCA will be empowered to do that. In so far as the architecture of every Bill has logic, this new clause is logically in the right place. I hope that, given the LGA protocol, the clear statement and the other changes, noble Lords will be satisfied on this point. We go on to explain how the HCA will be empowered. Clauses 3 and 4 elaborate on that, as do Chapters 2 and 3. Chapter 4 sweeps up the rest, and so on. It was not a question of tacking it on at the back hoping that nobody would notice. Far from it—I wanted it to be something to celebrate. Its location makes no difference; it has the same meaning wherever it is. I hope that it meets the objectives of noble Lords.
I turn to the designation powers set out in Clause 13. I studied the concerns expressed by noble Lords regarding the Secretary of State’s powers, and I have tabled amendments that address the issues in three key respects. First, we have imposed a new standard, which the Secretary of State will have to meet in reaching a decision. Amendment No. 20 sets out in more detail when it would be appropriate for the HCA to be the local planning authority for the whole or part of the designated area. It provides that in determining,
“whether it is appropriate for the HCA to be the local planning authority”—
in relation to the designated area—
“the Secretary of State must … be satisfied that making the designation order is likely to improve the effectiveness with which the functions of the local planning authority … are discharged”.
My noble friend Lady Whitaker asked whether that would cover design. She will see that design is now expressed as an object, so it will certainly be part of the dialogue. In terms of effectiveness, it might mean that the area to be regenerated comes under more than one local planning authority, and the authorities find it challenging to co-ordinate their efforts. It might be that the regeneration objects are on a large-scale or a difficult site such that the local planning authority cannot deliver its ambitions for that site and maintain its level of service and core planning functions in the rest of the area.
That is a very important test. The amendment makes the Bill explicit that not only must the Secretary of State consider it appropriate that the HCA should be the local planning authority for the whole or any part of the area, but she should consider that the HCA is likely to make more effective the discharge of the planning functions in that area. We can cite the example Milton Keynes as satisfying that test. Taking these powers, should it happen, would be a serious step for the HCA. There would have to be a clear understanding that it would bring extra capacity and added benefit to any area in which the step is taken. It implies not that the powers will be used to punish less effective local planning authorities but that as a particular part of the consideration, the Secretary of State must be satisfied that giving a selection of planning functions to the HCA will improve things.
Secondly, we have responded to concerns that the Bill was not clear enough about the consultation process and the place of the local authority within it. Amendment No. 22 imposes additional obligations on the Secretary of State that must be carried out before making a designation order. On top of the requirement to consult every local authority and/or local planning authority in any part of whose area is to be included, the amendment requires the Secretary of State to publish a draft of the order, reasons for making it, including why it is more effective, and to consult more widely on the proposed designation order.
Amendment No. 24 adds the duty to consult not only local authorities but the representatives of the interests of local authorities—something about which noble Lords were concerned—in this case, the LGA, and people who live or carry on business in the proposed designated area. They are added to the list of statutory consultees. I hope that that will satisfy the noble Baroness, Lady Hamwee, who talked about listening closely to what people in the local area are saying. That gives the local government community as a whole— local authorities, but also those most likely to be affected by the making of a designation order—far greater ability to inform a decision whether to designate an area and the form any designation order may take.
The noble Baroness asked me how that sits alongside the statement of local involvement. It is an addition to the provision in the 2004 Act, so there will be a separate statement on that point. I know that the suggestion that the Secretary of State consult directly with members of the public on the issue, rather than through the local authority, is unusual, but the use of the powers will be exceptional, so the circumstances will be unusual. It therefore seems appropriate that the Secretary of State should carry out a full public consultation in the affected areas. Of course, that would not prohibit an affected local authority from conducting its own consultation.
We have also proposed in Amendment No. 34 a new clause to prepare and publish a statement of local involvement to set up the policy and make it clear how much it will involve the local authorities and relevant people affected by the designation order. That would be published after any designation order is made, but before the HCA could use any powers conferred on it.
Thirdly, we are making provision for the local authority to be part of the implementation process if a designation order is made. The new clause therefore also requires that where the HCA sets up a committee or sub-committee for the purpose of exercising functions conferred on it by a designation order or appoints a member to such a committee or sub-committee, it must inform every local authority for the designated area and invite the authority to suggest one or more candidates for membership. In practice, we expect that if the HCA ever has planning functions conferred on it, it will form a committee or sub-committee to exercise those functions. We further expect that if that happens, it will have members who will have been nominated by the affected local authorities.
The noble Baroness asked me about membership. I know that there is some pressure to set out the detail of how the committee and sub-committee might work, who might sit on them and in what numbers, but, given that in this whole process we want to enable local authorities to use their judgment, they should be left free to decide in the event how they do it. It would not be very sensible, given the possible permutations of sub-committees, committees, functions and so on, to lay down any hard and fast rules.
As I keep saying, we are here dealing with extraordinary circumstances. If the area is designated, we will certainly develop a robust code of practice and build on the experience of the Milton Keynes Partnership to address concerns about potential conflicts of interest, so there will be a clear code of practice to deal with the issues that the noble Baroness raised. We have examples—I will not go into them because this is a very long speaking note—of how that works. In Milton Keynes, for example, there are planning sub-committee standing orders that set references. The London Thames Gateway Development Corporation published a code of practice and terms of reference for the planning committee, and so on. I can provide noble Lords with a lot more detail. None of those examples will be an exact fit for the HCA being made into a local planning authority, but they give us some clear and reassuring ideas about how it could be managed in practice—we have some experience of success.
We are absolutely committed to working with and supporting local authorities, as the locally elected bodies, with their experience. We will ensure that the Homes and Communities Agency, should such a need arise, will have a full toolkit of powers to use. The Secretary of State’s designation order-making powers are part of ensuring that it has a full toolkit, should it need it.
I believe sincerely that the overall effect of the amendments is to give local authorities and local residents a great ability to shape any possible designation order, to allow them to influence the decision to designate and the functions to be conferred. If the decision is taken to continue the designation order, local authorities will now have a greater ability to influence how the functions conferred on the HCA may be exercised.
The amendments, which include those on the general requirement on the HCA to consult representatives of local government about how it pursues its objects and to publish a statement describing how it proposes to do that, amount to a substantial package. That and the protocol with the LGA make it clear how firm our commitment is. I am delighted to tell noble Lords that the LGA has publicly welcomed this substantial package, and I hope that noble Lords will welcome it, too.
In that context, I shall deal with the noble Baroness’s Amendments Nos. 17 to 19, 25, 26 and 28 to 33, which I hope she will see we have considered with equal care. Amendments Nos. 17 to 19 seek to remove the possibility of the Secretary of State determining that it is appropriate for the HCA to be the local planning authority for all permitted purposes and for all kinds of development. I understand what she is trying to do. She explained very clearly that she seeks to limit the HCA to being the local planning authority for specific permitted purposes for specific kinds of development. In fact, the amendments would not prevent the Secretary of State from determining that the HCA should be made the local planning authority for all permitted purposes for all kinds of development.
In order for the amendments to prevent him doing so, the noble Baroness would have to set out each purpose and each type of development in the designation order. That would make this about analysis and definition, as she said, but it would make things complex and rather unwieldy. It is right and proper that consideration should be given to each committed purpose and type of development. Full consideration would also have to be given to which functions should be conferred. However, the noble Baroness has made an interesting point, and I propose to return to this matter at Third Reading. I will think about her argument in the mean time.
I will not go into the detail of Amendment No. 25 and the question of a public inquiry, as I have tabled what I hope is a better alternative to a public inquiry, which is a much more limited option. I therefore hope to be able to chop half an hour from my speaking notes. I am sure that I will be incredibly popular if I do that.
Amendment No. 26 would exclude Part 2 of the Planning and Compulsory Purchase Act 2004 from the permitted purposes for which the HCA could be made the local planning authority. That would mean that the Secretary of State could not confer plan-making functions on the HCA. I know that the noble Baroness feels very strongly about that. First, I shall address her point that this is an extension to the powers that could be conferred on predecessor bodies. UDCs, which have only development control functions available to them, have encountered real difficulties in working within a local plan that for some reason is not up to the task of delivering regeneration. With these updated powers, we are simply trying to provide for that exceptional circumstance and to ensure that that avoidable situation is avoided in the future.
The local development framework, as the noble Baroness will know only too well, aims to put greater emphasis on the development needs of a local area. Where the existing development plan for a designated area provided an up-to-date and relevant framework for the regeneration of the type of development envisaged, there would be no point in conferring plan-making functions on the agency. There would be a point only where a local development plan is out of date or inadequate for the regeneration activities which the local area urgently needs and which the agency can help uniquely to take forward. It is really important that this positive function can be conferred on the agency, because the agency’s effectiveness will be limited without it. Again, we expect this function to be used extremely rarely. It will be conferred only where this is considered to be vital to the delivery of regeneration. This means that it will be used even less frequently because it will have to meet that condition as well. It might be appropriate where an area is designated which covers two or more local authority areas. Giving plan-making powers in that situation would enable the HCA to take a strategic and co-ordinated view of development prospects.
The amendment would restrict that, but in the event that it was made, it would now be subject to all the consultation procedures set out in the speaking note on the previous group. It will have safeguards, not least planned consultation but also parliamentary input, which should be sufficient to ensure that it will be conferred only where necessary and with appropriate constraints.
Amendment No. 32 would prevent the Secretary of State providing that any enactment relevant to the function to be conferred did not apply in the case of the HCA exercising local planning authority functions in a designated area. I am keen to maintain as much flexibility as possible in the Secretary of State’s powers, but I can understand why the noble Baroness has difficulties with this provision. I want to return to that matter at Third Reading.
Amendment No. 33 would remove the ability of the Secretary of State to amend by order the definition of “planning-related provisions” or “relevant functions”. The effect is to limit the functions that may be conferred to those set out in subsection (7), with the Secretary of State unable to amend them, except consequentially. I find it difficult to think of any circumstances in which the Secretary of State would want to amend these lists, other than consequentially. However, a new function might be created and the Secretary of State might wish to be able to confer it on the HCA, although even in those circumstances she could do so if the new function were to be created by primary legislation and an appropriate amendment were made to Clause 14(7). It is a wide power and the flexibility we sought to retain clearly concerns the noble Baroness even with the safeguard of any orders being made subject to affirmative resolution. I will also consider that issue further.
I am conscious of wearying the House, but I have come to the last amendments in this important group. Amendments Nos. 193 and 196 propose that any designation order should be made by affirmative resolution. The noble Baroness has argued that the very exceptional nature of these powers suggests that they should be the most powerful instrument available for scrutiny. I am not entirely persuaded by the argument, but I am inclined to take it away in the context of today’s debate and what other noble Lords have said around the Chamber about the designated powers.
I know that I have spoken for a very long time, but I hope that I have answered most points that were raised. I do not think that I have anything else to say on any of these amendments.
My Lords, I am very grateful to all noble Lords who have shown such perception and care about these provisions. If noble Lords will bear with me, I shall deal with a few points in the order of my notes rather than the order of importance. On Amendment No. 9, clearly I did not make myself clear enough to the noble Lord, Lord Dixon-Smith. I am seeking to keep people as consultants in the public sector, not to the use the HCA as a training ground. I do not intend to push this matter further. I also am very grateful to the noble Viscount. To the noble Baroness, Lady Ford, I say that I do not dispute that there could be benign intent. Noble Lords in this Chamber are angels, but I cannot think of an amendment which says that this will apply only when everyone’s intentions are benign.
The Milton Keynes example has been prayed in aid frequently because it is the only example available, but it is not one that can be applied directly to all the circumstances. It was a partnership which the local authority was happy to join; it was not an imposition and, indeed, it was an exception. Moreover, I think that my amendments are consistent with the comments of the noble Baroness, Lady Ford, even though she said that she did not agree with them.
On Amendment No. 4, I understand why the noble Lord, Lord Dixon-Smith, would like to see these important notions spelt out, but they are more about the how than the what, and this clause is about the what. The noble Lord, Lord Rooker, once paid me the compliment of saying that I was not a lawyer—he meant that I was not a barrister—but I have a lawyer’s mind, which sees things progressing in sequence in the way described by the Minister. This amendment talks about the HCA working “through the planning system”, but we could not have had more assurances that that is the case. I liked the Minister’s comment that co-operation is of a lesser order than partnership. I am a little embarrassed and I am not arguing against the noble Lord, but I think his concerns are addressed.
I do not want to take too much time. I agree that the protocol with the local government world through the LGA is important, but it does not address the basic premise of whether it is right philosophically for an agency to take these planning powers. The comment that, in the past, urban development corporations have had difficulties when plans are not up to the mark should be answered by the HCA’s ability, along with everyone else, to make representations during the construction of development plans and their modifications.
The noble Baroness has offered to consider so many of my amendments that it would not be appropriate for me to seek to take them further today. Although time is quite short, I hope that there will be an opportunity for us to discuss what the Government might bring forward, and I do not give any undertakings about not dividing the House in a week’s time. A discussion about how we take these notions forward could cover one or two of the points that at this stage the noble Baroness has rejected. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3: Schedule 1, page 153, line 9, at end insert—
“(2) Any such committee may delegate any function conferred on it to any sub-committee of the committee or to any staff of the HCA.
(3) See also section 45 (agency arrangements of the HCA with urban development corporations).”
On Question, amendment agreed to.
Clause 2 [Objects]:
[Amendment No. 4 not moved.]
5: Clause 2, page 1, line 11, after “supply” insert “, accessibility”
The noble Lord said: My Lords, Amendments Nos. 5 and 6 are very simple. The clause deals with the quality and supply of housing, and states at line 11 on page 1,
“to improve the supply and quality of housing in England”.
We thought to bring back again the issue of accessibility. One tends to think of accessibility as something achieved on foot, by bicycle or in a car, but of course the really significant issue here is access for people who are handicapped. Regrettably, this is a very difficult issue and it is vital to those affected by it. Amendment No. 6 deals with inclusiveness. If the amendment were agreed to, line 3 on page 2 of the Bill would read,
“to support in other ways the creation, regeneration or development of inclusive communities”.
Inclusiveness would include the handicapped and all aspects of the community, particularly the disadvantaged.
These are important qualifications; there is no doubt about that. I suspect that the Minister will say, “Of course we are going to do that”. All too often, despite the intent generally being there, this subject gets forgotten about. This is a problem because it affects a relatively limited section of the community. It is easier to acknowledge it in the breach than it is to do so in fact.
We return, to a degree, to the question of housing design, on which the Minister has conceded. Inclusiveness and access become important particularly when redeveloping areas of the country, and accessibility in particular is very expensive if you are trying to do something with existing housing. It is perfectly easy with regard to new development but if the need is not clearly driven into the minds of redevelopers from the start, it is possible that, simply on the grounds of economy, it will not be implemented, however good the intention.
These two very small amendments would improve that provision in the Bill. I beg to move.
My Lords, I have a great deal of sympathy with the spirit of the amendments tabled by the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart. At Second Reading, I drew attention—at col. 83 of Hansard on 28 April—to some highlights of briefing that had been provided to certainly a number of us and perhaps to all of us by RADAR, Care and Repair England and the Habinteg Housing Association pointing out some pretty shameful facts about the inaccessibility of so much housing and the entirely unsatisfactory conditions in which too many disabled people are still expected to live.
I know that the Government are very serious in their intentions to do very much better in this regard. They have, of course, made their commitment that by 2011 all public housing will be built to lifetime home standards. I hope that my noble friend may be able to say something about the Government’s intentions in regard to other housing—not public housing but housing that is provided privately on the commercial market, although that may be outside the direct remit of the Homes and Communities Agency and this Bill. If she did say something, the House would appreciate that. She may also reasonably say—I do not know—that disability discrimination legislation will enable us cumulatively to make an impact on this problem. As the noble Lord, Lord Dixon-Smith, suggested, accessibility is a very important subset of the broader principle of good design, which we are about to debate. I endorse the spirit in which the noble Lord has tabled and moved the amendment. I look forward to a constructive response from the Minister.
My Lords, I also support the amendment. I was not sure how important it was until I had lunch earlier today with people from the housebuilding industry. Some of them said that, in these straitened times, when several housebuilders are going to the wall and difficulties prevail, we will have to rein in some of the regulation that has cluttered the housing system. In particular, they drew attention to the fact that the accessibility standards of lifetime homes were being imposed upon new buildings. I had not quite appreciated that the Homes and Communities Agency may find itself under pressure, if not to renege on the progress we have made so far, not to make rapid progress to the final stages of incorporating all the lifetime home standards into new developments. This sent a shudder through me.
Accessibility is a key issue. We must make all homes in the future accessible not only to people with disabilities but to all kinds of families in all stages of life. Making the home an easier place to live in is a key part of design which adds little to the cost of each home, although it does add something. This essential ingredient could now be jeopardised by the straitened times in which the house-building industry finds itself. Strengthening the arm of the Homes and Communities Agency to resist any diminution in the existing strength of feeling for greater accessibility would be of great significance. Suddenly I have realised the importance of the amendment and I give it my heartiest support.
My Lords, I associate these Benches with all the previous remarks. I hope the Minister will assure the House that her Amendment No. 7, which adds the objective of good design, not only covers aesthetics, which are very important, but extends to all the other elements of design, including accessibility.
My Lords, it is obvious that the House is united in the view that this is an issue of serious importance. It is certainly close to my heart. I argued in Committee that we have an ageing population. By definition, that means that we will have more people living longer with greater disabilities and we have to accommodate and plan for that in the most positive and proactive way.
Two of the ways in which we conceive the HCA working will address this issue. First, the HCA already has the object to improve the supply and quality of housing in England with a view to meeting the needs of people living in England. It could not be much clearer than that. It certainly goes wide enough to account for issues of accessibility. How can we interpret the notion of need unless we think about people whose needs are different and have to be met? Secondly, design includes matters such as accessibility. One of my particular preoccupations has been that we tend to think of accessible housing and housing for disabled people as having no design function, whereas we should be piloting the highest standards of design for people who have difficulty in accessing their homes, furniture and so on. So, yes, design includes accessibility.
The HCA will be focused on ensuring that the various needs of a diverse community are catered for by providing housing of different tenors and types, now and in the future. That means more accessible housing and more family housing; it means sustainable housing. Another thing about the way the HCA will work is that, like the Housing Corporation, it will respond to what local authorities tell it are their local needs. We have a cross-government public service agreement, which identifies four vulnerable groups in the community who have particular needs, not least for accommodation. One of those groups is people with learning difficulties; another is care leavers. We are looking to ensure that the Housing Corporation and the HCA, when it makes its allocations in discussion with local authorities, are well aware of the needs of these groups of vulnerable people.
We have ways and means of meeting needs, but I understand what the noble Lord has said. I am reluctant to single out a strand of housing that would entail a specific object being placed on the agency, no matter how much we all think it is important; it is not entirely wise to emphasise one particular type of housing in primary legislation. The Bill is trying to enable the HCA to meet all its challenges with sufficient flexibility.
The noble Lord, Lord Best, has raised the issue of lifetime homes. He knows how committed he and I are to making that a reality in the timescales that we have given. We have made a commitment that by 2011 all public sector-funded homes will be developed as lifetime homes, and we will work with the industry to ensure that all homes are built to that standard by 2013.
I know that the housing market is in difficult times. Frankly, though, one of the arguments I would put to the housebuilders is that there is a market for homes for elderly people, who have proportionally far more wealth than they have had before, with the equity in their existing homes, but who do not move home because choices are not available to them. I say to those housebuilders: think about that market, and about the social homes you could build that would appeal to people who at the moment are stuck in larger, inappropriate houses. I do not buy the argument that this is not an economic benefit to housebuilders themselves.
Having said that, I will take the argument away and think some more about it. I cannot promise to come back with a solution at Third Reading, but I have heard what the House has said. I will think about whether there is some way that we can accommodate the principle.
I cannot say the same for inclusive housing, I am afraid, because it raises other major issues—not least that the HCA will simply not be doing its job if it is not conscious of the need to build inclusive communities, and that means communities that work. Communities work only if they offer a home and an environment to people who have a diverse variety of needs, such as we all know our society contains. It will be a requirement upon the HCA to succeed in doing that, and it will work closely with local authorities to achieve it. We all want to see confident and cohesive communities. The HCA will be subject to appropriate equality duties as well, and it will have to comply with the DDA.
The other problem I have with the term “inclusive” is that it can mean a lot of very different things. It would be a challenge, to say the least, to arrive at a definition that satisfied everyone. I hope that noble Lords will accept that I am doing my best and listening closely to what they are saying about accessible homes, but I cannot promise to take the “inclusive” amendment away.
My Lords, I appreciate what my noble friend has just said, but she placed her emphasis on the Government’s intentions with regard to the provision of new housing. Will she say a little more about the Government’s thinking about the upgrading of existing homes? I understand that when the Government have fulfilled their pledge of increasing disabled facilities grants by 31 per cent, they will still be spending only £166 million on those grants. That does not take us very far, given the scale of the problem—particularly if, as I understand it, the concomitant duty on local authorities to provide funding is to be relaxed. The HCA will have important responsibilities with regard to regeneration, and perhaps therefore to the upgrading of existing houses. Will the Minister say what powers and resources it will be able to use for that purpose?
My Lords, I do not like to interrupt noble Lords when they are in full flow, but I ought to draw attention to paragraph 7.134 of the Companion, which governs how we respond on Report. We should not really make further interventions once the Minister has sat down. Questions should be asked only for elucidation.
My Lords, I was very grateful to the noble Lord, Lord Howarth, when he first intervened; the second time, I regret to say that it caused my eyebrows to twitch. Anyway, it was good to have his support and to know that we also have the support of RADAR. I was very grateful to the noble Lord, Lord Best, for his remarks on lifetime homes, particularly regarding the immediate pressure which appears to be coming from the industry to relax our standards for what is, as I think we all hope and pray, no more than a relatively short-term difficulty. I am sure we would all agree that, however long this problem in the housing market lasts, it will be too long. Even if it goes on longer than any of us would like, I see no reason why we should not continue to aim to set very high standards, particularly in this area. As the Minister said, so many people now live in a handicapped way in homes that are simply unsuitable because there is no way for them to go anywhere else.
I am aware that lifetime homes will be taken care of, when it comes to building new homes, in a relatively short timescale. But if we do not keep this in our mind whenever renovations and redevelopment of existing housing are undertaken, we will miss a golden opportunity and might inadvertently condemn some people to problems which they would rather avoid. After all, it is not a question of making every door in a house wheelchair-accessible, but of making the house and perhaps the ground floor wheelchair-accessible, if not upstairs. This is not an unreasonable ambition.
I am most grateful to the Minister for what she had to say. I accept the problem of emphasising only one aspect, but if you do not continue to mention the smaller aspects, it is all too easy to neglect them. I look forward to hearing what the Minister has to say if she writes to me. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
7: Clause 2, page 2, line 5, after “development” insert “and good design”
The noble Baroness said: My Lords, I am delighted to bring forward this amendment. We have spoken about design during the passage of the Bill; we had excellent debates on it on Second Reading and in Committee. This amendment is in response to the argument that has commanded support across the House. It is a small but significant amendment which puts good design at the heart of what the agency will be seeking to achieve and firmly in the right context.
There were some other suggestions from noble Lords about how design should best be addressed in the Bill. We resisted having a design champion on the board for some of the reasons I set out in Committee concerning the potential risks of placing responsibility in a single pair of hands or of cutting across the work of other bodies such as CABE. Nor have I taken the route suggested in Committee by my noble friend Lord Howarth to relate the concept of design to the design quality of housing. There is no problem with that approach in itself, but the effect would be to restrict references to design in the Bill to housing. In addition, the HCA may well be delivering various forms of infrastructure, community facilities, open spaces or many other types of development, in all of which I hope design will be very important.
There were other proposals before us in Committee, and I have considered each of them. We have come to the conclusion that design is best addressed in the objects of the agency and in the context of sustainable development. That approach places design firmly at the heart of the agency’s approach, and deals with it in terms of sustainable development, which is the correct approach. By doing that, especially putting it in the objects of the agency, we recognise its importance. It also means that the powers available to the agency can be used for the purposes of good design or for purposes incidental to it. I am delighted to have heard that our design stakeholders, such as RIBA, have warmly welcomed this amendment.
Placing design in the context of sustainable development links the topic to planning policy statement 1, Delivering Sustainable Development, which already states that:
“Good design ensures attractive, usable, durable and adaptable places and is a key in achieving sustainable development”.
Surely, in that context, we want to capture design in this Bill and those are the principles that will underpin the development of sustainable communities where people want to live.
The amendment puts design in a central role in the Bill for the agency, and will stress its importance in all aspects of the agency’s work, not just housing. I hope noble Lords will feel that this will have achieved all that they wanted to achieve in the debates that we had, and I beg to move.
My Lords, what can I say? What can we all say to my noble friend but “Thank you”? She is adding to the objects of the HCA an explicit object that it shall contribute to the achievement of good design in England. She accepted the essential spirit and purpose of a number of amendments that we debated in Grand Committee. It was important that there was all-party support for the spirit and purpose of those amendments. I particularly appreciate the support of my noble friend Lady Whitaker. She is, by herself, worth an army.
This is a civilised and proper thing that the Government are doing, which will improve the quality of life in this country. I absolutely accept what my noble friend just said—that it is greatly preferable that this duty and the benefits that will flow from it should not be confined to housing and individual buildings but cover development, which the HCA is able to influence more broadly, so that the spaces between and around buildings will be of better design, the infrastructure that we develop will be better designed and the whole process of regeneration will be characterised by a commitment to good design.
It may be a statement of the obvious that we ought to be committed to good design, but by writing it explicitly into the legislation, we have very valuably gone beyond the relatively vague and generalised terms that were already in the Bill such as quality and well-being. That there will be a statutory duty for the HCA to promote good design will make all the difference. Amid the welter of other duties and pressures that will be on the HCA, design might have fallen by the wayside. Indeed, notwithstanding the positive commitment and substantial achievements of the Housing Corporation and English Partnerships in relation to design in recent years, there is a longer melancholy history of a failure to pay sufficient attention to good design. The HCA will now have fully to heed best practice, the best advice that it can obtain from CABE, the professional institutes, academia and the best practitioners, and from the DCLG itself.
The key, as we noted in Grand Committee—the noble Baroness, Lady Hamwee, made this point powerfully—is that there should be an understanding of the nature of good design and a commitment to it deeply imbued in the institutional culture of the HCA. I still think that it would be no bad thing if one of the members of the board of the HCA had experience and capacity in design matters. However, what will matter infinitely more is the leadership given to the HCA by its chief executive, Sir Bob Kerslake. There is every indication that he will personally take this responsibility very seriously indeed, and I look forward to the newly appointed chair, Robert Napier, doing likewise.
I have a handful of questions to ask my noble friend. If she cannot answer them today perhaps she will write to us before Third Reading.
What means does the department expect the HCA actually to use to promote good design, and what will the department itself be doing alongside to support the normalisation of good design and to create a supportive context?
What will the department's wider strategy be? We know and welcome very much that the Secretary of State, Hazel Blears, has told CABE that she wants people to live in beautiful homes, but I emphasise, as my noble friend just did, that design goes well beyond questions of aesthetics. We are not looking to the DCLG, and certainly not to the HCA, to be a kind of central taste police. There are many matters other than aesthetics entailed in good design. We talked just in the last debate about the importance of lifetime homes, accessibility and adaptability. There is also the requirement that new homes and new buildings should be carbon-neutral in a certain space of time. There is also much experience with such familiar concepts as designing out crime and ensuring that provision of transport services and facilities does not dehumanise communities.
I have some specific questions for my noble friend. Do the Government intend to introduce minimum space standards? If they themselves do not do so, will they endorse the HCA if it introduces minimum space standards in those areas that it can control? Does she expect that the Government will make building regulations more substantial and better able themselves to promote good design, and do more to ensure that building regulations are taken seriously and are well enforced? Will the Government seek to generalise the use of the Building for Life standards? What is now the state of the Government's thinking on new design quality metrics, which were adumbrated in the Green Paper, and a possible design quality assurance scheme, which would enable developments to proceed faster if they met certain criteria of design?
How does my noble friend expect CABE to relate to the HCA? It is particularly important that CABE should be able to offer its expertise and judgment because, after all, we will never achieve good design by formulaic methods or bureaucratic devices. What is the Government's thinking now on housing and planning delivery grant and whether it should reward quality as well as quantity in the provision of new homes? Do the Government intend energetically to use their influence to ensure that design review facilities and pre-application discussion are available appropriately throughout the country and, at the other end of the process—this was the subject of an amendment that we debated in Committee—will the Government encourage the HCA itself to use “post-occupancy analysis”? That rather forbidding jargon term actually means asking people who will live in these homes whether they consider that their homes are well designed.
What do the Government intend to do about education and training? Will they work with the Department for Innovation, Universities and Skills and with the Higher Education Funding Council for England as well as with those in RIBA, in the RTPI and in the Urban Design Alliance who are seeking to develop a common foundation curriculum for students who are going to become architects, surveyors, planners, highway engineers and landscape designers, so that all of them should be educated in good design and should at least speak a common language and understand each other? I remind the House of my declaration of interest as an honorary fellow of RIBA.
My noble friend spoke very helpfully just now about the Academy for Sustainable Communities and the work that it is expected to do to remedy the deficiencies of skills. She has told us, in one of the helpful pieces of correspondence which she sent to Members of the Committee, about the funding that will be available for the Academy for Sustainable Communities from 2008-09 to 2010-11. It would certainly be helpful if she could say rather more about the expectations that the Government have of the academy.
Does my noble friend expect the Homes and Communities Agency to report in its annual report on what it has done in the previous year and what it plans to do in the following year in fulfilment of its statutory object to contribute to the achievement of good design in England? How will the DCLG monitor the overall performance of the HCA in regard to its design responsibilities, in a sensible relationship of course, without breathing down its neck and second-guessing it all the time? How will it satisfy itself that the HCA will fulfil our best hopes for design?
We can shortly return to some of these themes and issues in the Planning Bill. Meanwhile, I welcome the amendment. It will lead to better design, directly in social housing and more indirectly through the HCA’s influence on the volume housebuilders, where it is assembling land and is a key player in regeneration. Not only homes but all sorts of buildings will be better designed on land that the HCA makes available. The amendment means that the lives of many people will be improved in the years ahead.
My Lords, I, too, welcome the amendment. I take slight issue with one aspect of what my noble friend Lord Howarth said. He listed a whole range of organisations on whose advice the Homes and Communities Agency should rely: CABE, the professions and so on. Later, he mentioned “post-occupancy analysis”. I have no idea what that is, but I suspect that it is a question of asking people what is wrong with new developments after they are in them; they will be quick to tell you. In supporting the amendment, I say to the noble Lord that I hope that the Homes and Communities Agency talks to real people from time to time, before it listens to architects and a whole range of other professionals who, although no doubt well intentioned, do not always get it right. We do not have to look much further than the current arguments around Robin Hood Gardens in London, where almost every eminent architect has rolled up to say what a marvellous place it is, and, almost without exception, every resident has said that it is a living hell. In not being too unkind to the professions, I gently suggest—no, I insist—that we tell the Homes and Communities Agency to listen to real people before, not after, the event.
My Lords, in welcoming the amendment, I put myself into the minds of the HCA management and address their need always to get their priorities right, and to know what they can and cannot do. Bearing in mind that one person’s good design is another’s white elephant, it is probably quite good to be cautious. The wording of the amendment is, happily, quite cautious; if I were part of the HCA management, I could live with it. They contribute to the achievement of sustainable development and good design in England. That is a limited duty, and I would be happy to find it so were I involved in the HCA.
My Lords, I am grateful for the welcome that the amendment has received. One of the first things that Sir Bob Kerslake should do when setting up the committee, or Joint Committee—perhaps with CABE—is to read your Lordships’ debate. He will find an agenda for his first meeting and some important principles for how he and the agency should best proceed to make a success of this challenging new agenda.
It is a new agenda: it is the first time that we have ever required a public agency to address design issues in this way. That is important and quite radical. The HCA is a new organisation. I cannot second-guess how it will work, nor would I want to. I can only pledge that it will work as closely as possible with CLG and CABE. We look forward to the inspiration that it will offer the department in raising our own already high standards in the attention and priority we give design in all our work, whether it is new build, new development or regeneration.
If the noble Lord will forgive me, I will not answer his detailed questions this evening, although I could. It would be better to write to him and set out the full responses his questions deserve. They are complex, and cross more than just my department; for example, on education and training. I hope that the noble Lord will forgive me, but I assure him that yet another letter is coming his way.
On Question, amendment agreed to.
8: Clause 2, page 2, line 7, at end insert—
“( ) In assessing the needs of people living in England in accordance with subsection (1), the HCA shall balance the needs for affordable housing in urban and non-urban communities.”
The noble Earl said: My Lords, I remind the House of my declarations of interest made at earlier stages of the Bill, including being a councillor involved in planning and a landlord of rental accommodation.
The amendment deals with the viability of rural areas, and the balance of the needs of urban and non-urban areas. There was widespread recognition from all parts of the Chamber during the Second Reading, and in Grand Committee, that rural areas have not received their fair share of resources, and that the concentration of effort has been directed towards urban areas. This is supported by recent House of Commons Library figures, which found that London and other cities now receive up to twice as much per head from the Government as their rural counterparts.
The result has been that, of the total housing stock in urban areas, 23 per cent—nearly one in four—is social housing, while in rural areas, only 5 per cent—one in 20—is social housing. These figures come from the Government’s Affordable Rural Housing Commission’s report. A Defra report on population trends in rural areas found that the population in rural districts has risen eight times faster than in urban areas. Furthermore, the Halifax review in 2007 found that the average price of housing in rural areas was £30,000 more expensive than in urban areas, while the average earnings were £5,000 lower. Those seeking housing in rural areas have the raw end of the deal; the cards are stacked against them. To get a roof over their heads, many are forced to move out of their rural areas to towns and cities, doing untold damage to community cohesion in rural areas.
With this background in mind, my noble friend Lord Dixon-Smith and I tabled two amendments in Committee. The first concerned the composition of the board. I argued that there must be representation on the board from those organisations operating at the coal face. In order to address the present imbalance for rural housing, I argued that there should be a champion for rural housing on the board. In response, the noble Baroness, Lady Andrews, said that she was,
“not in favour of a single champion for rural areas”,
and that she hoped that,
“the board will achieve that by having a genuine mix of experience, so rural areas will not need a separate champion because they will be championed by the board”.—[Official Report, 13/5/08; col. GC 271.]
The noble Lord, Lord Best, suggested that the HCA should be required to consult a number of organisations whose interests should be represented. The Minister assured the Committee that the HCA would fully consult with a wide range of interested organisations. We are happy to accept those assurances.
Later in Grand Committee, we tabled an amendment that required that,
“the HCA shall take particular account of the viability of rural communities”.
The amendment’s sentiment was widely supported, and there was general agreement over the concerns for rural communities.
However, in responding, the noble Lord, Lord Bassam, said that he did not like the wording of the amendment as it required the HCA to pay particular attention to rural areas rather than take a more rounded approach to all areas. He added that recently more funds had been allocated to rural districts for social housing and that he,
“would expect that to continue over into the new agency”.—[Official Report, 3/06/08; col. GC 14.]
While I concede that there has been an improvement recently, I hope that he will concede that as the Bill stands there is no guarantee that this improvement will continue.
The noble Baroness, Lady Andrews, wrote a very helpful letter to all Members of the Committee with two pages devoted to this rural issue. In it she said:
“I wanted to take this opportunity to reiterate the Government’s absolute commitment to the importance of ensuring the viability of our rural communities. I wanted in particular to emphasise the importance my Department attaches to the issue of rural housing”.
She also said that she,
“must continue to resist making specific reference to rural communities on the face of the Bill, as I would not wish to specifically raise the needs of rural communities above all other communities in England”.
This very much echoed what the noble Lord, Lord Bassam, said in Committee. Therefore, we have to decide whether we can accept the Minister’s assurances that rural areas will receive a fair crack of the whip in future years. I have to say that we on these Benches remain sceptical. After all, the Minister’s own department’s report from the Affordable Rural Housing Commission highlighted the crisis in rural housing in 2004. Yet, four years later, there is still only 5 per cent of affordable housing in rural areas as a percentage of the total housing stock.
I also remind the House that the noble Baroness, Lady Dean, who recently headed the Housing Corporation—I am sorry that she is not in her place—said at Second Reading:
“It is essential that, somewhere within the new system, there is something ensuring that rural housing is not forgotten. It would be so easy to forget it”.—[Official Report, 28/04/08; col. 59.]
That provision should, presumably, be included in the new Housing Bill. We on these Benches agree with the noble Baroness. Therefore, we have tabled this amendment, which states that,
“the HCA shall balance the needs for affordable housing in urban and non-urban communities”.
Noble Lords will see that in response to the Minister’s letter we have removed the requirement specifically to raise the needs of rural communities above those of all other communities. The amendment leaves it up to the HCA to decide how best to balance the needs for affordable housing in urban and non-urban areas. I hope that the Minister will feel able to accept it. I beg to move.
My Lords, I have great sympathy for the case that was so ably made in Committee and this evening. I do not think anyone disputes that there is an urgent need to provide more affordable urban housing. The case can also be made that there is an urgent need to provide affordable housing in non-urban communities. The stance you adopt on the issue depends on your background, where you live and the area that you have represented as a politician. Many areas in my former constituency and on Tyneside, where I was born, could also make out a very good case for special treatment.
The Government’s response to the amendment in Committee was sympathetic and I have no doubt that it will be reiterated tonight. They said that the body that will have responsibility for this matter will be best able to judge the appropriate balance in this regard. The noble Earl properly made the case for the housing needs of rural communities to be taken into account. However, he ought to ask himself why they appear to have greater needs than urban areas in that regard. It is a sad fact that much of the housing that was provided by previous Labour and Conservative Governments and by Labour and Conservative county councils was sold off to people who were desperate for housing. The building of affordable council housing in the 1940s, 1950s and 1960s was the salvation of those people. They were grateful for the opportunity to live in that housing as they were able to rent affordable homes in nice areas. However, they were especially grateful to the Government who at the end of the 1970s and the beginning of the 1980s gave them the right to buy. Initially, I did not think much of people who, having been grateful to local and national government for providing them with a council house, then bought that home. However, I realised that it was a once-in-a-lifetime opportunity for many people to buy a house. They took that opportunity and repaid those who gave them the right to buy by supporting them politically. However, 30 years later there is a price to be paid in rural and urban areas for allowing that housing to be bought. The Minister and her colleagues will have to try to repair the damage caused to affordable housing, which was dealt that body blow some 30 years ago.
I sympathise with those who live in rural areas and have difficulty finding homes, but it is a matter of joining the queue in this regard. There are such queues all over the place, although not where I live in Loughton—the noble Lord, Lord Dixon-Smith, knows Loughton better than me—which is a salubrious, well-heeled area. It has council housing, although I have not traced which Government were responsible for providing it. There is affordable housing all over the place. Having been the chairman of a housing committee, I know that trying to ensure that the housing that is available goes to those who need it is a thankless task. I anticipate that the Minister will say that the HCA will be the best body to judge this matter, bearing in mind its responsibility to treat fairly all those who need homes. I would not complain if it decided that most of the housing should be built in rural areas, as that would mean housing would be provided in the places where it considered there was greatest need, and that is where it should be provided. I congratulate the noble Earl on his compassion in raising this issue. However, I believe that we should not include a specific provision in the Bill but rather should trust the highly qualified people who will be appointed—none of whom I know, of course—to provide housing for all those in need wherever they may live.
My Lords, I have lived and worked in rural areas for well over 50 years and have spoken about rural housing and asked Questions in your Lordships' House on a good many occasions. I initiated a debate on the Duke of Edinburgh’s special inquiry committee into rural housing quite a number of years ago. I therefore strongly welcome this amendment, and I am delighted that its wording contains a reference to balance between rural and urban areas. I ask the Government to look at it extremely carefully. I do not think it is sufficient just to rely on trust. All government policies are supposed to be rural-proofed, and this is an area where that is particularly needed.
My Lords, I draw noble Lords’ attention to another point. We are in discussions about eco-towns. It is not always right to think in terms of houses going where people need them. It is sometimes difficult to find places and opportunities to build houses where people need them immediately, but that does not go against the provision of more affordable housing because nowadays people move about. If there are better opportunities to provide the houses in places where people do not yet live, those houses will be best provided. I am sure that one aspect of what will happen in the market is that people will move to the houses because they will find good reasons to live somewhere other than where they started. In our society as a whole, the number of people who live in a different place from where they started is rising every year.
My Lords, I support the amendment tabled by the noble Earl, Lord Cathcart. It is great to have another champion of rural housing in your Lordships' House alongside the noble Lord, Lord Hylton, who has been a champion of rural housing for all these years. I should know because I was secretary to the Duke of Edinburgh’s inquiry in 1976, which reported on this matter. The noble Lord spoke shortly after we reported on that issue.
Why should rural housing get a special mention in the duties placed upon the HCA? For the past 34 years, not least from your Lordships' House but from other quarters as well, the Housing Corporation has been constantly reminded that this small corner of the total housing picture deserves some special, extra attention. The noble Lord, Lord Graham of Edmonton, made the important point that the right to buy has had a special influence in rural areas. People have bought their homes in rural areas to a greater degree than in urban areas. I could take noble Lords to a very pleasant village in Dorset that had 17 council houses on its edge. They have all now been sold and there are no social housing homes in that village. The right to buy can wipe out all the social housing in certain places. The constant reminder to the HCA that this is a part of the scene that needs a bit of attention is important.
The new agency brings together the powerful English Partnerships and the extra powers from the Department for Communities and Local Government, almost all of which concern urban issues; for example, the Thames Gateway, urban development companies, the regeneration agenda and the housing market renewal pathfinders in the north. Those are all urban issues. Rural housing has already been a difficult part of the housing scene to hang on to. There is a danger of it being watered down unless there is a reminder that it is part of the duties that the Homes and Communities Agency must take into account.
My Lords, I had a problem with this amendment in the previous stage because of the phrase “in particular”. I used the term “balance” then. I am pleased to see that that notion has been taken forward in this amendment. In Committee, I was persuaded by the descriptions given by the noble Lord, Lord Best, of the difficulties of achieving housing in rural areas. I think he mentioned Cerne Abbas then. He might have roamed around the whole of Dorset; I do not know whether it is the same Dorset village. Over the years, I have slowly been coming to the realisation that it is necessary to pay—I shall use the term—particular attention to achieving housing in rural areas because, in some ways, it is much more difficult. It is not just a question of numbers here or there. Ensuring the success of rural communities is a major objective. As the debate has gone on, that qualitative distinction of rural areas has been brought out.
This is not intended as a cavil but like, I dare say, many noble Lords, I am more urban than I am rural, but I am probably suburban. That may be a bit middle-aged and boring, but an awful lot of people live in the suburbs. Many of them are pretty good places. When the noble Earl sums up, I hope he can assure me that suburban is within his term “urban”.
During the previous stage, the noble Lord, Lord Bassam, said that the predecessor amendment was unnecessary, and he may be about to say something similar today, but I hope he will address whether it is wrong.
My Lords, I am not able to support the noble Earl’s amendment, but not because I do not think the spirit of what he described is right. We all understand that the fragility of services in rural communities has a direct relationship to the critical mass of hamlets and villages, and the inability to maintain basic services—education, local schools and so on—is critically dependant on the provision of proper housing and housing for young families. We all understand how difficult it is for young families to be able to stay near grandparents and to have the kind of social network that would come from being able to access to affordable or market housing close to where they grew up. My objection to the amendment is that, as it stands, I do not think it achieves what the noble Earl would like to do.
In Committee and today, we have talked a lot about the need to respect local authorities’ say-so over the plans in their area. One of their particular responsibilities is to express the housing need in their area and the Homes and Communities Agency responds to that. That has always been the way in which the national affordable housing programme has been invested over the years. We cannot on the one hand say it is for local authorities to articulate that and for the HCA to respond and on the other hand say that the HCA is to do that. As I read the noble Earl’s amendment—and he may correct me if I am wrong—it would not achieve the intention he sets out, however much support there is for it around the House.
My Lords, I support the amendment. Indeed, I had a great deal of sympathy with the similar amendment tabled in Grand Committee. I will not rehearse the statistics; we heard ample statistics in Grand Committee on the extent to which rural communities have different growth trajectories for social housing and those statistics are on the record. I shall make two or three simple points on why the availability of more affordable housing in rural communities is a matter of concern and why, therefore, it should be addressed through this amendment.
First, the principle is simple. There are people who either choose to live outside cities or simply cannot afford to live in cities, but that does not mean that they should not have a voice. There is the idea of being part of a community. Indeed, we now have the Department for Communities and Local Government. The idea of communities is at the heart of what this Government believe should be a tool for regeneration, for reinvigoration and for making people have shared endeavour and shared purpose. Therefore, it is extremely important that those people should have a voice, although they may well be small in number and are not for whatever reason—whether choice or affordability—part of the larger urban or suburban landscape. However, because of the unfortunate figures and the changes in trends on the amount of social housing available, those people are losing their voice.
Secondly, democracy is part of the shared endeavour. The noble Baroness, Lady Ford, rightly argued that there should be local decisions and so on, but you can diminish democracy. The HCA will have considerable powers and resources. Should there be in the Bill a duty on the HCA to take account of rural communities? That democratic voice would be far more to the forefront if the amendment were made. It is as simple as that.
We go for champions in other areas of life. We recognise the need for ethnic minorities and women to be represented on boards and so on. Ideally, I would have liked to see a champion, but I accept that that is not where we are. Even if we do not have a champion to speak for rural communities, the amendment would concentrate peoples’ minds, not necessarily when they are making clear-cut decisions on the allocation of resources and so on, but when they are making decisions in the grey area where there are conflicting priorities—and there are many priorities. That is when such a duty would make a difference. It would be assessable, because we would be able to see the extent to which rural aspects had been brought to the fore.
Finally, on something more topical in relation to what the Prime Minister said today in Japan at the G8 summit, we are considering exhortations that we need to live more environmentally coherent lives—for example, that we need to conserve energy and, more recently, the supply of food. We will achieve those longer-term environmental objectives only if we recognise that a lot of the policies that we undertake today will impact on those objectives. We should make provision for smaller numbers of people from minority groups who choose to live near where they were born or where their parents live—not people such as me who have come from half way across the world, or my siblings, but people who want to be within 15 miles of where they were born when they die. It is important to recognise that the longer-term environmental objectives that we want to achieve may well be served by giving voice to those people and catering for their needs. That objective may well be among the intentions of the noble Baroness, but it is not in the Bill and it would be most helpful to see it there.
My Lords, this has been one of those extraordinary debates where we have gone from the local to the global. We have scaled the history of housing with input from my noble friend, who talked about the long-term impact of council house sales, and we heard heartfelt pleas from the noble Earl, Lord Cathcart, for people who live in rural communities. He added his important voice to a debate that has continued in your Lordships’ House for some decades. We have benefited from the contribution of the noble Lord, Lord Best, who has great experience in this field.
We are talking about the creation of the HCA, an important agency, to address many of these issues. As the noble Earl reminded us, this issue has caught our attention at all stages of our important deliberations on the Bill. The observation of the noble Lord, Lord Best, on the rural community in Dorset reminded me of my rural roots. I mentioned previously that I grew up on a rural council estate in Great Bentley. Much of that estate of some 50 houses and bungalows was sold off as part of the right-to-buy process. Most of those homes were built for people working on the land just after the war and for people who worked in offices and factories in Colchester or Clacton. Those homes provided an important service for lower-income earners. I well understand the issue raised by the noble Earl, Lord Cathcart.
The noble Earl’s earlier amendment used the term “particular”. At the end of our deliberations in Committee, there was an understanding, best enunciated by the noble Baroness, Lady Hamwee, that “particular” did not work well in the context of the noble Earl’s amendment. I carefully read this amendment, which asks that,
“the HCA shall balance the needs for affordable housing in urban and non-urban communities”.
The amendment does not make precise reference to rural communities; it describes anything that is not urban as “non-urban” and it talks about balancing the needs. I have difficulty with the amendment, because the call to balance could arguably end up as some imbalance. There is a problem with the wording. I do not know how much the noble Earl tested out the amendment before tabling it, but there are technical difficulties in what he is trying, understandably, to achieve.
I want further to address the issues before I conclude my comments, because some things are worth putting on the record. I entirely agree that more affordable homes need to be built in communities that most need them. There is undoubtedly a backlog of need in some rural communities for the very reason that the noble Lord, Lord Best, enunciated. Others have also given voice to that. There is no question but that one of the central tasks of the new Homes and Communities Agency will be to deliver more affordable housing where that need is greatest. The agency will focus on delivering more new affordable homes across all tenures, in mixed and sustainable communities, and it will drive and invest in regeneration and revitalising existing communities.
To do this, the HCA will support local partners that will deliver the new homes and regeneration projects and it will provide advice and support for innovative new approaches to delivery—for example, through new local housing companies or community land trusts, which have had a great deal of support during our discussions. It will also help to drive more effective joint working with the emerging private sector partners. In taking over the affordable housing programme from the Housing Corporation, it will secure the delivery of 70,000 new affordable homes per year by 2010-11. In the current market conditions, this role becomes ever more important and the agency’s ability to act innovatively and in partnership to respond to new challenges becomes vital.
Therefore, the noble Earl’s concerns will be met by the new agency focusing on delivering affordable housing across all our communities. The amendment is not essential to ensure that; the Bill’s clauses are already clear on this point. Indeed, with its reference to housing needs assessment, the amendment seems unhelpfully to require the HCA to replicate functions already carried out by local authorities, so there is also a difficulty with it in that respect. Local authorities are already required to undertake housing needs assessments and it would be an unnecessary waste of resources to require the HCA to carry out a similar exercise. Indeed, local authorities are far better able to assess the housing needs in their area than a national agency such as the HCA. I imagine that, with his background experience in a rural local authority, the noble Earl would appreciate that more than most.
The other issue raised by the amendment is the importance of affordable housing in both urban and non-urban communities. I have already explained that the agency will work with local authorities across the country, supporting rural and urban authorities in meeting the needs of their communities. Local authorities will identify those needs and the agency will have the resources to help to meet them where it is practical for it to do so.
As we have said many times before, we see the agency as being local authorities’ best delivery partner. To help to strengthen that message, the draft protocol between the HCA and local authorities—I am sure that the noble Earl has seen it—demonstrates the commitment of both central government and the LGA to working together to meet today’s and the future’s housing and regeneration challenges.
I know that the House takes this issue seriously. As I think was acknowledged in my noble friend’s letter, at earlier stages we set out in some detail exactly how government are responding to challenges in rural areas and how the Homes and Communities Agency will help local authorities to respond to the needs of their communities in the rural context.
I extend an offer to noble Lords to hear in more detail about the work of the agency at a meeting on this important issue with the chief executive designate, Sir Bob Kerslake, and the chair designate, Robert Napier. I think that noble Lords would find it helpful to have the opportunity to discuss what the agency can do in practice and to raise any concerns that they have. My noble friend Lady Andrews and I will be happy to arrange that discussion and more than happy to ensure that colleagues who are particularly exercised by the import of rural communities take part in it. I know that Sir Bob Kerslake recognises that the agency will have a key role in supporting rural communities, including focusing on the provision of affordable rural housing. I know also that he has met Matthew Taylor MP to discuss his review of the rural economy and affordable housing and that he has seen, and commented on, his draft report. He also recently met the All-Party Group on Rural Affordable Housing and intends to meet the Rural Housing Advisory Group on Thursday this week. Therefore, much is going on with regard to this policy area. Of course, the Rural Housing Advisory Group will act as an advisory body to the HCA to ensure that rural housing issues are seen very much as part of its focus and remit.
As I said at the outset, I do not think that the amendment works entirely well. There are technical problems with it and I do not think that it would work as well as the noble Earl might wish. I know that he is pressing his case and that he has a lot of support in your Lordships’ House. I hope that I have reassured him but I place one final commitment on the record. If the noble Earl will withdraw the amendment this evening, we will be happy to have further discussions with him to see whether we can meet his concerns and those of others before we return to debate the Bill at Third Reading.
There is a genuine problem with the amendment and I am not sure that it is the most appropriate way to deal with this issue. However, we are certainly happy to explore it further because there is clearly a consensus that we need to ensure that the HCA focuses not just on urban areas, although that has never been our intention. We need to ensure that the HCA is understood to have the widest possible remit and that it addresses the real concerns relating to rural poverty and, as some have seen it, the rundown of the provision of affordable housing in some rural communities. I have given some fairly firm commitments and I hope that the noble Earl will be able to withdraw his amendment. We are happy to continue discussion on this issue before Third Reading.
My Lords, that was a useful debate and I thank all—or nearly all—Members for their support. The noble Lord, Lord Best, asked why rural housing should get a special mention. I think that that was a rhetorical question because he then went on to explain exactly why it should get a special mention. In the same vein, the noble Lord, Lord Graham, asked why there was a greater need for help in rural as opposed to urban communities. I listened carefully to his contribution but I could not make up my mind about it. At times, he seemed to support the amendment and at others he seemed to speak against it.
I shall tell the House why rural communities need greater help. In the five years from 2001 to 2005, the Commission for Rural Communities highlighted a gap, in that the amount of affordable housing built in predominantly rural districts increased by only 3 per cent compared with 22 per cent in predominantly urban districts. That is why rural areas have been falling behind and why in future there needs to be a balance between the urban and rural areas.
The noble Baroness, Lady Hamwee, asked whether suburbia was included in urban or non-urban areas. The point is that it is up to you. You can decide whether it is urban or suburban; it has to be one or the other. In the earlier letter to which I referred, the noble Baroness, Lady Andrews, tried to confuse the matter slightly by asking about district and coastal towns. Rather than trying to be precise in this amendment by putting in “rural” and having that same ball batted back at me, I thought that we would refer to “urban and non-urban communities”. The board of the HCA has to balance what it will do between urban and non-urban areas. It is up to it, so it is not confusing at all. The Minister said that he had a problem with the word “balance”, but it is up to the HCA to work out how to balance needs.
I do not buy the Minister’s argument that there is a technical problem. The problem is that non-urban areas desperately need a better balance of resources. They have not had that for a number of years—I shall not specify the number. The balance needs to be redressed. The amendment is not trying to be prescriptive by saying that for every £4 spent in urban areas we must spend £1 in rural areas or that for every four houses built in urban areas we must build one in a rural area. It says that it is up to the HCA board to balance the needs for affordable housing in urban and non-urban areas. It is for the HCA to work it out.
The noble Lord, Lord Bassam, kindly offered a promise of a talk. He did not promise anything for the Bill. Whereas a talk might be valuable, we really need something—
My Lords, perhaps I was being Delphic, but when I referred to a discussion I did not mean about nothing. It was to see whether there was some substance with which to aid the process. The offer was that; it was not to talk about nothing. I am happy to discuss wording with the noble Earl.
My Lords, I take that to mean that the Minister will discuss doing something of substance with the words of the amendment, such as including “rural housing”, “balancing rural housing”, or whatever words are required. I suggested in Committee that the Minister should do that but nothing was done then, so it does no harm to test the opinion of the House.
Clause 6 [Powers for regeneration, development or effective use of land]:
[Amendment No. 9 not moved.]
10: After Clause 8, insert the following new Clause—
Before exercising its powers under sections 5 to 8, the HCA shall—
(a) assess fully the risk of flooding to any new development;(b) assess fully the impact of any new development on downstream risks;(c) ensure that any new development is flood resilient and resistant.”
The noble Earl said: My Lords, the amendment requires the HCA to assess the risk of flooding to any new development and the impact that any new development may have on downstream risks. In addition, where there is a risk of flooding for any new development, the HCA must ensure that it is flood-resilient and resistant.
Since the Bill was drafted at the end of last year, we have had not only the interim Pitt review on flooding but the final Pitt report. Pitt reported to Defra, but it seems to me that in the interests of joined-up thinking there should be some reference to flooding in the Bill. There were nearly 400 government amendments to the Bill during its passage through the other place, and there must be about 300 government amendments so far in this House. Although I looked through the raft of government amendments produced on Report—more than 150—I could find no reference to flooding. I find that surprising.
It seems to me to be common sense that if we are going to build 3 million new homes during the next 12 years, the Bill should require the HCA to carry out some sort of flood assessment before deciding where and how to build new developments, given that a proportion of the total will undoubtedly be built in areas at risk of flooding. Pitt devotes 100 pages—section 3—to improve planning and reduce the risk of flooding and its impact, which has a direct bearing on the work to be carried out by the HCA. It seems only sensible to include a provision devoted to that in the Bill. We had hoped that it would be a government amendment.
The amendment comes in three parts. First, it requires that the HCA shall,
“assess fully the risk of flooding to any new development”.
Secondly, it requires that the HCA,
“assess fully the impact of any new development on downstream risks”.
Thirdly, where any new development takes place where there is a risk of flooding, the HCA is required to ensure that the design of the development is flood-resilient and resistant.
That third part recognises that a proportion of all future developments may well be on flood plains, but, where that is the case, although there is a risk of flooding, it is important that development is carried out in such a way that it increases the resilience and resistance to flooding and thus reduces the damage from it, should it occur.
In response to the debate on the subject in Committee, the noble Baroness, Lady Andrews, said that the Environment Agency worked closely with local authorities, which must do the flood assessment with it, and that that cannot be the job of the HCA. I beg to differ: it is very much the job of the HCA to carry out flood assessment when deciding on future developments. For example, the Bill gives specific powers for the HCA to become a local planning authority. In such an instance, it will be the HCA, not the local authority, who will have to work closely with the Environment Agency in assessing flood risks.
In one year alone, 21 major planning applications were approved by local authorities against the Environment Agency's advice. It is only common sense that the HCA should be aware of and be required to make flood assessments before coming to any decisions on future developments. I beg to move.
My Lords, I shall be extremely brief. I had the pleasure and privilege of going to the conference arranged by the Association of British Insurers. I am not sure whether either of the Ministers present were there on that occasion, but the noble Lord, Lord Rooker, was sitting immediately in front of me, for which I gave him extremely good marks and with whom I exchanged an occasional word.
Anyone who was there would have been aware of the nature of the unhappiness, not with God or the flooding arrangements, but with the degree of human suffering that occurs as a consequence of flooding. I simply say to the government Front Bench that, were there not to be a sympathetic response to the amendment moved by my noble friend Lord Cathcart, a lot of people at that conference would wonder whether the Government were as serious as they suggested.
My Lords, at the previous stage, my noble friend Lord Greaves said that the important words were “resilient” and “resistant”. That is right. It seems that, increasingly, we will have to plan to adapt to flooding and be resilient to it because it cannot be wholly avoided.
I would say that the HCA’s work on flooding would need to go rather wider than I read the amendment. It now seems to be generally accepted that it is important, when we are talking about flooding from rivers, to allow—to use layman’s terms—for a river to expand and to leave space for that. That is also the case when laying permeable hard surfaces in a development. I distinguish between the two because, in a sense, this is a development that is not a development. That is the point.
Moreover—this is very much an urban reaction—this is not only about flooding as we know it but about the lack of capacity in our sewerage systems to deal particularly with the rather different monsoon-type weather that we get now, with its very heavy bursts of rain rather than the more gentle sort that fills up the aquifers and keeps us all happy through every season. This is hugely important. I am sure that the noble Lord, Lord Bassam, who looks as though he is about to respond, will tell us that the HCA must carry out these barrier assessments as well as lots of other things, but an acknowledgment of it all would certainly be appropriate.
My Lords, simply and briefly, when the HCA brings forward developments, it will obviously have to go through the planning system and then engage as part of the statutory consultation process where appropriate. In the exceptional circumstances in which it had to use its own planning powers, it would still be doing so within the overall framework of the Town and Country Planning Acts and would have to go through exactly the same process, so the fact that it was using those powers in exceptional circumstances would not exempt it—far from it—from having to go through the statutory consultation with the Environment Agency.
In addition, I reassure noble Lords that, following the flooding of New Orleans two or three years ago, the board of English Partnerships immediately instructed officials to review all our land holdings and carry out a detailed flood risk assessment, not because we needed to statutorily but because we felt that it was correct in the circumstances to ensure that we fully understood the risks associated with the land holdings that we were stewarding on behalf of government. If we had needed to take action at that time, we would most certainly have done so.
My Lords, the amendment is almost the same as the one that noble Lords opposite tabled in Committee. I know that the noble Earl will be a little disappointed, but my response in general will be pretty much the same as the one that we gave then. That is not because I do not recognise the importance of the issues. I certainly acknowledge the real distress that flooding has caused people in many communities in the past few years when places have become susceptible to it. The noble Lord, Lord Brooke, valuably reminded us of that. Some people are still in straitened circumstances as a product of some of the floods last year, so we are all very conscious of these issues. We should be reassured by the words of the noble Baroness, Lady Ford, who obviously acted quickly following the New Orleans floods to ensure that her own organisation at least tried to analyse and understand the essential impacts within the context of our own housing.
The amendment would require the Homes and Communities Agency, prior to undertaking any activities in relation to land, regeneration, development or infrastructure, to carry out various assessments of flood risks. No one can dispute the importance of proper consideration of flood prevention and reduction measures. As the noble Baroness, Lady Ford, said, that work continues and has renewed importance. The noble Baroness, Lady Hamwee, echoed that. Last summer’s events vividly reminded us of that and brought the point home.
The amendment seeks to take the issue of flooding outside the normal planning and development control process. I question whether there is wisdom to that. The noble Earl, Lord Cathcart, referred to the HCA as a planning authority, but we need to remind ourselves that it is such an authority only in rare and exceptional circumstances. It would not be sound to put planning within its remit. The proper place for considerations such as these is within the planning regime. We will have the opportunity to debate this when the Planning Bill comes to your Lordships’ House later this month.
Indeed, guidance now states that it is obligatory to consult the Environment Agency on planning applications in flood risk areas, and the Government will intervene where councils ignore the agency’s advice on major developments. The Environment Agency is the body that must work with local authorities, which must carry out flood risk assessments. That is not the proper job of the HCA; it is not within its realm of competence. The amendment would in a sense transport that competence into the HCA, but that is not its primary purpose. The planning system already provides for what the amendment sets out. Noble Lords will remember that we have always maintained that the HCA will be subject to the planning regime in the same way in which any other body is.
More generally, the noble Earl referred to the Pitt review. We welcome the review, which will make a significant contribution to managing future flood risks in England and Wales. It is for government properly to consider the recommendations in full, as the Secretary of State for the Environment made clear in his Statement to the House. To that effect, a full implementation plan will be published this autumn. It is right that we consider the review’s recommendations seriously and respond fully in the autumn rather than give what some might consider to be a knee-jerk response to proposed amendments to the Bill, although I do not deny the good spirit in which the amendment has been tabled.
We are, as ever, happy to have further discussions with noble Lords opposite because this is a technical issue as much as a human one. There are technical issues to be considered, but putting this into the Bill, as the noble Earl suggests, is not the right way to address the problems that have arisen in the past few years. There will always be a case for some building on flood plains. I think that some 10 per cent of all developments are built on flood-plain areas. It is important that proper measures of resilience are put in place, as the noble Baroness, Lady Hamwee, made clear, to ensure that residents who occupy those homes are provided with proper protection.
I am grateful to the noble Earl for his amendment, but it is not the right way in which to approach the issue. I believe that we have got right the planning context of the issue. We are happy to facilitate discussions in more detail on the Pitt review with those who are leading for the Opposition, but we should not amend the Bill in the way in which noble Lords opposite have suggested. The amendment would not add anything, and could in some ways question the way in which the planning regime should properly work, which would be very unwise.
My Lords, the noble Lord says that the amendment would require the HCA to carry out flood assessments for any development. That is exactly what it would require the HCA to do. All the amendment says is that the HCA must,
“assess fully the risk of flooding to any new development”.
We hope that that is already done, but the noble Lord should try telling that to the 5,000 people who still cannot get back into their houses.
The amendment then says that the HCA must,
“assess fully the impact of any new development on downstream risks”.
The Bill is in front of us. The aim is to build 3 million new houses by 2020. There is nothing in the Bill about flooding, which we are told will affect more of us as the years go by because of climate change. We know that a good percentage of these new homes will be built in flood risk areas on flood plains. There should be something in the Bill. The Minister also says that the Government will intervene when local authorities go against environmental advice. Flooding happened 21 times in one year, yet the developments continued. This is a very important issue. We are running out of good areas on which to build new housing and will rely more on flood plains because they are an easy option.
My Lords, in the past, we have had problems with flooding and we are told by everyone that they will not go away. The more we build, the more flooding problems we will have. This Bill deals with 3 million new homes in England. That is how the past and future marry. We will be building a great deal more houses and there is nothing in this Bill on flooding and flood assessments. I am slightly reassured that the Minister, or perhaps it was the noble Baroness, Lady Ford, said that if the HCA takes over any planning it will be required to do flood assessments in the normal course of events. It would have to do flood assessments anyway because that is what the planner is required to do.
I am disappointed that the Minister is unable to accept this amendment, but I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 9 [Acquisition of land]:
11: Clause 9, page 4, line 30, leave out from ““common”” to end of line 33 and insert “has the meaning given by section 19(4) of the Acquisition of Land Act 1981 (c. 67),”
On Question, amendment agreed to.
My Lords, with permission, I will repeat a Statement made in the other place by my right honourable friend the Secretary of State for Environment, Food and Rural Affairs. The Statement is as follows:
“Mr Speaker, I wish to make a Statement about the Government’s plans for tackling bovine TB in England. In doing so, I thank the EFRA Select Committee both for its comprehensive and thoughtful report and for allowing me additional time to respond to it, which I have now done. I am also grateful to Professor Bourne and the members of the Independent Scientific Group for their thorough scientific study.
“Bovine TB is not a new problem. For over 70 years, successive Governments have implemented cattle controls based on surveillance, testing and slaughter of reactors. These have been designed to protect public health, to reduce the economic impact of the disease on farmers and, more recently, to comply with our obligations under European legislation.
“By the mid-1970s, the incidence of TB in cattle had reached an all-time low. However, since the 1980s, disease incidence has increased again, with a significant rise following the 2001 foot and mouth epidemic. Last year, nearly 3,200 new TB incidents were recorded and 18,543 reactor cattle were slaughtered in England.
“Bovine TB is a serious problem, particularly in the south-west and the Midlands. Although over 90 per cent of herds are TB free at any one time and some significant cattle farming areas are largely without the disease, I know from listening to farmers living with it just how difficult it is. For those who are most seriously affected, the economic and human consequences are simply devastating. That is why we should take the right decisions to help.
“Bovine TB is transmitted between cattle, and between cattle and badgers, but what has dominated debate is whether badger culling could be effective in controlling the disease. The 10-year randomised badger culling trial, overseen by the Independent Scientific Group on Cattle TB—the ISG—culled some 11,000 badgers to discover what impact that would have. The ISG’s final report, published last year, concluded that reactive culling—killing badgers in areas where there had been local TB breakdowns—made the problem worse and that proactive culling, which means taking an area of about 100 square kilometres and repeatedly culling badgers over a number of years, produced only marginal benefits because, although TB was reduced in the area, it increased outside because of the disturbance and movement of badgers.
“While scientists agree that a prolonged and effective cull over even larger areas—some 250 to 300 square kilometres—could reduce the incidence of bovine TB, the ISG’s judgment was that the practicality and cost of delivering a cull on this scale meant that badger culling could not meaningfully contribute to the future control of cattle TB.
“Having listened carefully to a wide range of views from scientists, from farming, veterinary and wildlife organisations, and from many others, and having considered all the evidence, I have decided that while such a cull might work, it might also not work. It could end up making the disease worse if it was not sustained over time or delivered effectively, and public opposition, including the unwillingness of some landowners to take part, would render this more difficult.
“I do not think that it would be right to take this risk. Therefore, and in line with the advice that I have received from the Independent Scientific Group, our policy will be not to issue any licences to farmers to cull badgers for TB control, although we remain open to the possibility of revisiting this policy under exceptional circumstances or if new scientific evidence were to become available.
“This has been a very difficult decision to take and I know that some farmers who are affected will be disappointed and angry. We all want the same thing, which is to beat this terrible disease. But I have had to reach a view about what will be effective in doing so, guided by the science and practicality of delivering a cull. Having made a commitment to farmers and others that I will take a decision, I believe that, now that it has been made, we need to put all our efforts into working together to take action that can work in all affected areas.
“I have therefore also decided to make vaccination a priority as recommended by the Select Committee. Effective vaccines could in future provide a viable way of tackling disease in both badgers and cattle. We have invested £18 million in the past 10 years in vaccine development, which has delivered good results, including providing evidence that vaccinating young calves is effective, making progress towards developing a test to differentiate infected from vaccinated cattle, showing that injectable BCG can protect badgers and developing oral badger vaccine baits.
“I now intend to increase significantly our spending on vaccines by putting £20 million into this over the next three years to strengthen our chances of successfully developing them. I will also provide additional funding to set up and run a practical project to prepare for deploying vaccines in the future.
“It could be some time before an oral vaccine for badgers, or a cattle vaccine, becomes available, so for now we must reduce the spread of the disease and try to prevent it from becoming established in new areas. We have cattle controls in place to tackle TB and have strengthened them in recent years with the introduction of pre-movement testing and the targeted use of the more sensitive gamma interferon test. But the action that individual farmers take, in particular to deal with the risk of importing disease into their herd, will also remain critical.
“Disease control is not just a matter for the Government, notwithstanding the considerable cost. Farmers have the main interest—the burden of controls falls most heavily on them—and they must be involved in working out how we go forward. It would be possible to tighten cattle measures still further, as recommended in the Independent Scientific Group report, but this would come at a high cost and whether it would be worth while is as much, if not more, a question for the industry as it is for the Government. There is a choice to be made.
“That is why I have also decided to set up a bovine TB partnership group with the industry to develop a joint plan for tackling bovine TB. We will discuss with the industry who should be on the group and how it should work, and I want to get started as quickly as possible. The group will have full access to information on the TB budget and will be able to make recommendations about its use. It will be able to propose further practical steps to tackle the disease, including whether, for example, there should be tighter cattle controls. It will help to reach decisions about the injectable vaccine deployment project and it will be able to look at ways of helping farmers to manage the impact of living under disease restrictions, such as by providing incentives for biosecurity or maximising the opportunities to market their cattle by looking again at the restrictions around red markets and encouraging the establishment of more exempt and approved finishing units. I am prepared to make additional funding available to support such initiatives if the group makes a strong case for doing so.
“The House is united in its determination to overcome bovine TB and, as much as we would all wish it, there is no quick or easy way of doing so. Our best chance is to work together and therefore I hope that the industry will respond to the proposals that I have made so that we can get on with it”.
My Lords, that concludes the Statement.
My Lords, I thank the Minister for repeating the Statement made earlier in another place. Three months ago, the Minister told this House that the report of the Environment, Food and Rural Affairs Select Committee that outlined the need to address the reservoir of TB in badgers was “absolutely first class”. Today he has announced that the Government are ignoring its central recommendations. What has changed? Certainly not the increasing evidence of the devastating impact of bovine TB.
The figures are alarming. In 1997, 3,963 cattle were slaughtered under bovine TB control measures. Last year, that figure had risen to over 28,000. Will the Minister confirm that, on current trends, over 40,000 cattle will be slaughtered this year? All this comes at great cost not only to farmers but to the taxpayer, who has borne costs now exceeding £600 million since 1997. As the Minister has previously acknowledged, the cost is unsustainable. What is his forecast for expenditure on bovine TB control measures over the current Comprehensive Spending Review period? In the absence of any new estimate, can we assume that the 2004 Defra paper, Preparing for a New GB Strategy on Bovine Tuberculosis, is still accurate and that costs to the taxpayer will rise to over £300 million per annum by 2012-13?
The Opposition have consistently called for a comprehensive package of measures to tackle this dreadful disease. Simply targeting badgers is not the solution, but even Professor Bourne has said that the disease cannot be eradicated without addressing infection in wildlife, which is, after all, responsible for the majority of TB breakdowns. However, it is clear that the Government are pinning their hopes on a vaccine. We have been here before. In 1998, the Government set out their five-point plan, one point of which was developing a vaccine. In 2005, the five-point plan was updated and the search for a vaccine “actively continued”. Of course we welcome the extra resources on vaccine development, but can the Minister give the House any indication of when an oral vaccine for badgers or a cattle vaccine might become available? What happens in the mean time?
I want briefly to give the Minister an opportunity to answer some of the questions that the Secretary of State in another place ducked. Is he satisfied that pre-movement testing is cost-effective and that farmers are not moving stock without tests? What steps are being taken to examine other factors, such as the role of maize and possible trace element deficiencies in the spread of TB? Does he believe that the current frequency of testing is adequate, especially in areas adjacent to infected areas? Has he discussed this Statement with the European Commission to see whether it believes that it has any hope of success, or are we at risk of infraction proceedings?
Is nothing to be done to rid the badger population of TB, because badgers with TB die a painful and prolonged death? The decision to ignore the clear role of badgers goes against not only the demands of farmers and the recommendation of the Select Committee but the advice of Sir David King and even the evidence collected by the ISG. Did not that evidence show clearly that the removal of badgers in hotspot areas was associated with a reduction in the number of TB breakdowns by 23 per cent and has not the continued monitoring of those areas since the final report now shown a reduction of some 53 per cent?
The Statement failed to mention the polymerase chain reaction test. Would not the suggested areas in north Devon have been an opportunity to validate the use of the PCR test to establish whether setts contain infected animals? If it could be shown that removal was primarily of infected animals, would that not make it more acceptable and in the interests of badgers as well as cattle? PCR may not be 100 per cent accurate, but neither is the test that is used as the basis to slaughter tens of thousands of cattle.
To conclude, surely it is in the interests of a healthy badger population as well as a healthy cattle population that we tackle this disease from all angles. It is clear from the Statement today that the Government are not prepared to do so.
My Lords, I apologise for missing the start of the Statement, which caught me quite by surprise. I thank the Minister for repeating the Statement because I know that this is a difficult subject. It is unfortunate if we make too many comments about the Government not understanding the problem or doing virtually nothing. I understand the problem and I know that the Minister has listened to many farmers on the subject, which is a matter that has aroused a great deal of anger within the industry.
The noble Lord, Lord Taylor, said that we always talk about bovine TB as if badgers do not suffer with the disease and are just carriers. Of course that is not the case; indeed, one of the issues is that most people would say that a cull would be unfair on badgers. The problem, of course, is that as bovine TB spreads through the hotspots, the badger population itself is more likely to contract TB. Happily, I come from an area without TB and we have badgers mixing with cattle quite happily. However, if bovine TB turns up, it will not be just cattle that suffer; the badger population will, too.
The Minister talked about the vaccine process. Many of us have heard about the progress that is being made. I understand that, because of the science behind it, the process is a long, slow and laborious one that needs to be done in methodical way. Is there any indication of when we will be able to start field-trialling injectable TB vaccine for cattle and oral vaccine for badgers?
The Minister has now stated again that no further cull will be undertaken, against the advice put forward by EFRA. The problem with a cull is that, if it is not handled properly, you might well get a spread of disease. The Minister will groan when I say this, but we have had a problem culling grey squirrels. When you wipe out a large proportion of the population and leave just a few, you find that those few grey squirrels move off into areas that they have not entered before looking for other squirrels. That behaviour spreads squirrel pox and of course there is a problem with TB being spread in the same manner. However, we should take into account the fact that mapping the spread of bovine TB into new areas over the past 10 years has shown that there has been a gradual increase.
The Statement says that the Government will take new evidence into consideration. However, as they have decided not to undertake any culling, what basis would that new evidence have? I note that there is to be a targeted cull in Wales, which is, of course, a devolved matter for the Welsh. I hope that as much scientific information as possible can be taken from the Welsh experience.
Like the Minister and everyone who has dealt with farmers over the past few years, I understand the anger that farmers feel about this. Having your whole herd annihilated by a disease that you think could be preventable has a devastating effect. The bovine TB partnership could be a useful tool—it could act as a halfway house between the Government and farmers, especially because a number of farmers might, after the Government’s decision, decide to take the law into their own hands, which would be an unfortunate consequence of the Statement.
My Lords, I am grateful to noble Lords for those responses. I confirm the trends that were referred to. I cannot estimate the cost of this. As I have repeatedly said, this is the single biggest disease that we deal with and it costs Defra some £80 million to £90 million a year. That is taxpayers’ expenditure and it is our cost—it is the cost on farmers. I cannot estimate what the cost will be in 2012-13 because I do not know whether the disease will continue to spread as it is currently doing.
The noble Lord, Lord Taylor, asked about vaccines. The earliest projected date for the widespread use of a BCG cattle vaccine is mid to late 2015. The earliest projected date for the widespread use of a badger vaccine is 2014 for oral badger vaccines; injectable BCG badger vaccines may be available in 2010 but they are not expected to be widely used because of the cost and practical issues involved. One has to ask, “Who will pay for it?”. The taxpayer will not do so.
It is illegal to vaccinate cattle against TB. Therefore, European Union rules and law have to be changed. When we have a vaccine that seems to work—one that is efficacious—we will make proposals to the EU. These things are not just around the corner.
I come to the second set of questions from the noble Lord, Lord Taylor. He listed a series of questions that he said that the Secretary of State had refused to answer and he expected me to answer them. Frankly, I will not do that; I simply will not do so. He was wrong on one count: the Secretary of State indicated in answer to a question this afternoon that he discussed the issue and informed the EU commissioner this morning. I have nothing further to add to what the Secretary of State said.
My Lords, I am grateful to the Minister for repeating the Statement. I declare my interest as a partner in a small mixed farm, where we have 18 or 19 beef cattle. Does the Minister agree that the accuracy of testing is vital? Will the agony felt by farmers, who may lose their valuable stock, not be ratcheted up by doubts? What will the Government do to ensure that testing is done accurately and by skilled people? That is very important. He mentioned the EU. Negotiations there take a long time. Does he agree that now is the time to start opening negotiations with the EU to get the rules changed? We cannot proceed with the vaccination until the rules have been changed and we want to be able to proceed as soon as the vaccine is passed.
The Minister mentioned the bovine TB partnership group. Will he ask his right honourable friend to ensure that pure and applied scientists—veterinary surgeons and medical practitioners who have a lot of experience with TB—are incorporated into the group? We have heard about stress from the perturbation of badgers. Does he agree that there is also stress with moving cattle and mixing cattle in new herds? A lot of herds have been wiped out by TB and the cattle have been replaced because there is no other way of maintaining the countryside, as steep hillsides and so on have to be grazed. Is there no way in which cattle can be kept on the ground that they are already on? If they are obviously ill, they should be disposed of, but if they are not ill, they could be kept there until such time as they are ill, to save bringing on to farms new animals and infecting them.
My Lords, I cannot answer all the noble Countess’s questions. On her last point, as was said in the other place, this is not a question of moving cattle on and off farms—closed herds are going down where no cattle are being moved. There has to be a reason for that. The Secretary of State made it clear that there would be wide discussion of membership of the partnership group. He said that we will approach the European Union only after we have a vaccine that works. Tests are conducted by skilled people but the fact is that they are not 100 per cent anyway. That is part of the issue. We are using gamma interferon more, but that gives a different result because it looks at the potential of the disease earlier than the skin test does; one is therefore looking at the age of the disease, perhaps, in the cattle at a different time. We are using that test, which is more expensive. Neither test is 100 per cent perfect.
My Lords, will the animal health laboratory at Pirbright be involved? If so, will it be made absolutely clear that enough money must be properly invested so that we do not have a repeat of the fiasco that occurred over foot and mouth? I must declare an interest: I am a landowner, I have cattle on my property and I am vice-president of the Surrey county agricultural show. Will the noble Lord please make sure that there is no repeat of the Pirbright incompetence over foot and mouth?
My Lords, it is for the noble Earl to ask his own questions but that is an incredibly unfair one. Pirbright has nothing to do with TB. The Veterinary Laboratories Agency at Weybridge is the reference laboratory for TB; that is where the work goes on. Pirbright is a world reference laboratory for foot and mouth and other diseases. So far as I know, it is not involved in TB, although there may be some ancillary work. The main work is at the Veterinary Laboratories Agency, which is a Defra executive agency; it is under the control of Defra, unlike Pirbright, which is not a Defra laboratory.
My Lords, I have previously declared my interest as the owner of a dairy herd that has suffered severely from bovine TB, which is very prevalent where I live in east Somerset. I confess that I found reading the Statement extremely depressing in view of the huge cost to the taxpayer and the serious losses falling on farming—not just dairy but also beef and maybe sheep, too. Why has no consideration apparently been given to serious and rigorous culling in isolated, compact areas such as the Isle of Wight or the west of Cornwall, which is surrounded by sea on three—if not more—sides? Other areas may be found, such as land surrounded by motorways or water barriers. What thought has been given to that? Why is the experience of Ireland, which has conducted extensive and rigorous badger culling, not relevant to England when it has markedly reduced TB in cattle? I support what has been said about Wales and I hope that some useful lessons will be learnt from there. On vaccination, my understanding—I am quite likely wrong—is that several continental countries have been vaccinating their cattle for years. The result of that may well be that there is a low level of TB infection in the whole of their cattle population. I do not know the answer; perhaps the Minister does. It has taken us 10 years not to find a suitable vaccine. That is 10 years too long and I hope that something can be learnt from the continental experience.
My Lords, I could be completely wrong, but I do not think we have anything to learn from the continental experience because the Continent does not have bovine TB. It is almost unique to the United Kingdom, although Scotland and parts of northern England are virtually exempt. As the Statement said, it is very much a regionalised issue. No one on the Continent is vaccinating cattle against TB. It would be illegal if such were the case. It is only in the UK and the Republic of Ireland where serious issues of bovine TB arise. Other areas have had the disease, New Zealand in particular, but that was a wildlife issue thought to be related to the possum, so it was a different situation. I do not think we have anything to learn about vaccination.
The Secretary of State read out some figures in the other place about what has happened in the Republic of Ireland, as culling has been used. These show that the incidence has gone up and down. The point he made is that there is no direct link. As to the noble Lord’s initial question, the Secretary of State fully considered all the issues, what was said by the people to whom he had spoken and the written reports about culling in hot spots. He was not prepared to countenance that on the grounds of practicality and because the science did not support it.
My Lords, could my noble friend confirm that public acceptability was introduced as a criterion in determining policy and, if so, why? He will remember that when he was a Minister in the department way back in the 1990s when the Government were dealing with BSE, the criterion was purely science driven with recognition of a risk assessment. Surely science and a risk assessment is a better way of dealing with these issues than introducing the concept of public acceptability, which is extremely woolly.
My Lords, I agree with what my noble friend said about science. The analogy with BSE does not quite square. Even today, we still do not know the incubation period of new variant CJD. That is why many of the BSE controls are still in force. It is a supreme public health issue on which the precautionary principle weighs incredibly hard.
On bovine TB, the milk was always used because it was pasteurised—Louis Pasteur gave us the answer—but in early 2006 it was decided at European Union level that the milk of reactors could not be used. The carcass meat goes into the food chain minus the lesions. That is a fact and there is no new announcement in respect of that. My right honourable friend also took into account other matters put to him by the public.
My Lords, I lived through the virtual elimination of TB and was involved in searching the countryside for TB-free cattle. It was eliminated county by county. Indeed, we used to go up to Castle Douglas in Scotland to get TB-free heifers. I had a badger sett on my smallholding in the 1980s, but there was no TB around and so I did not tell anyone that I had it. But the situation now is totally different.
The deputy chief vet in Ireland says that its culling policy saves up to 15,000 cattle a year at present and he challenges some of the decisions that have been made this side of the border. I do not expect the Minister to give the show away, but is there a difference of opinion between government vets and Defra?
My Lords, the Secretary of State received veterinary advice from experts within Defra, who advised him that without addressing the reservoir of infection in badgers it would not be possible to eradicate bovine TB in endemic areas. The Secretary of State took this into account alongside other considerations when reaching his decision not to allow licences to be issued to cull badgers.
My Lords, the Statement repeated by my noble friend says that bovine TB is transmitted between cattle and between cattle and badgers. Is it not correct that it is also transmitted between badgers? It goes on to say that what has dominated the debate is whether badger culling would be effective in controlling the disease. Surely what has dominated it is whether this problem can be solved by tackling the disease solely in cattle and not in both cattle and badgers.
In deciding not to issue any licences to cull badgers for TB control, why have the Government dismissed the recommendations of the EFRA Select Committee in another place, together with the scientific evidence of a more practical control area put forward by the ISG report and the advice of the scientific adviser at the time, Sir David King?
Everyone accepts that vaccination will be the answer, but a vaccine has always been years away and is more a function of time than money. My noble friend is aware of the frustration felt in livestock areas at the paucity of progress in tackling TB. I speak as a dairy farmer in Cheshire. I am, fortunately, not under any disease control restriction, but a near neighbour two miles away is one of the 1,826 new herd test breakdowns between January and April this year, with confirmed premises 15 per cent up on last year’s figure. Surely the pre-movement regime should eliminate all cattle-to-cattle transmission.
The Statement refers to risk management. Can my noble friend state who is taking the risk in the countryside? A judicial review case is pending on the discriminating and unfair system of tabular evaluation, yet the Holstein-Friesian cattle society put forward a reasoned, independently assessable schedule of value. Why has this system not been accepted? The number of false positives taken under the gamma interferon blood test has also caused extreme distress to livestock families because the cost of error falls on the farmer. I fear many farmers may well say that it is not right for them to take this risk.
My Lords, my noble friend asked too many questions for me to answer in the time available. I cannot say anything about compensation because of the judicial review that is under way. My right honourable friend in the other place made it clear that he was grateful to the EFRA Select Committee for its report. He also made it abundantly clear that he took the view that, from a practical point of view, a culling operation would not succeed and could make matters even worse.
My noble friend is quite right that badger-to-badger transfer takes place in large setts with more badgers and more food. Living in crowded conditions was how human beings caught TB in the first place. Badger-to-cattle transmission is heavy; I understand that it accounts for about 70 per cent to 80 per cent of cases and that cattle-to-cattle transmission accounts for about 10 per cent of cases. It is difficult to be precise. Of course, if you have a closed herd, you have a real problem if it contracts TB.
My Lords, am I wrong in recalling that, in his valedictory address at the most recent Parliamentary and Scientific Committee lunch, the previous chief scientific adviser to the Government urged a badger cull, and am I right in inferring from what my noble friend Lord Taylor of Holbeach said that the successor agrees with his predecessor?
My Lords, I gather the noble Lord was talking about the government chief scientific advisers. Sir David King’s view was much maligned because he agreed with the conclusions of the independent scientific group; I heard him saying to Professor Bourne, alongside whom he was sitting, that he agreed with him. He went on to say, however, that he thought that in the circumstances a widespread regulated cull could make a significant contribution to the reduction of TB, and that was the advice he gave the Government. Just before we received the ISG report, the former Secretary of State, David Miliband, asked Sir David to give us a view. He put together a group of independent people who had not been involved in the studies over the year, and they gave us a view and a report that was published last year, regrettably later than intended because of foot and mouth delays. I do not know the views of Sir David’s successor, although I understand that he disagrees with his predecessor.
Mesothelioma Lump Sum Payments (Conditions and Amounts) Regulations 2008
rose to move, That the draft regulations laid before the House on 23 June be approved.
The noble Lord said: My Lords, it is a requirement that I confirm to the House that these provisions are compatible with the European Convention on Human Rights. I am happy to do so.
These regulations are made under Part 4 of the Child Maintenance and Other Payments Act 2008, and they provide the conditions that must apply before a lump-sum payment under the mesothelioma scheme 2008 can be awarded.
During the debate in Grand Committee on the Child Maintenance and Other Payments Bill, the noble Lord, Lord Skelmersdale, was keen that we debate the regulations coming out of what was then Clause 44, dealing with the conditions of entitlement, as well as having a debate on Clause 43, dealing with lump-sum payments, which the Bill already provided for. The debate on these regulations deals with both lump-sum payments and conditions of entitlement.
The Pneumoconiosis etc. (Workers’ Compensation) Act 1979 currently provides lump-sum compensation payments to sufferers of certain dust-related diseases, or their dependants, who are unable to pursue civil action because their former employers have ceased to carry on business. Mesothelioma is one of the diseases covered by the 1979 Act; it is a fatal disease caused by exposure to asbestos. It is a sad fact that it is now the most common cause of work-related death. It is estimated that one out of every 100 men born between 1940 and 1950 will die of the disease.
Some sufferers of mesothelioma are not entitled to a lump-sum payment under the 1979 Act because, for instance, they were not directly exposed to asbestos in the workplace but were exposed through a relative who worked with asbestos. Part 4 of the Child Maintenance and Other Payments Act 2008 introduces a new scheme that breaks the link to workplace exposure to asbestos, and provides up-front financial support within around six weeks to those people who are not currently eligible for help from the Government.
The amount of money that will be paid as a lump sum under the new scheme to a person with mesothelioma is set out in Regulation 5 and table 1 in the schedule to these regulations. The amount paid will vary for different people, based on the age at which they were diagnosed with the disease. Those diagnosed earlier in life will receive more. It is estimated that up to 600 people who do not currently receive help from the Government will receive, on average, £10,000 each during the first two years of operation of the new scheme.
While no amount of money will ever compensate individuals and families for the suffering and loss caused by mesothelioma, those who are suffering deserve some form of monetary compensation. It is essential that the sufferer should receive some level of compensation before it is too late. That is why we will pay more to sufferers in life, to encourage them to claim in life. A claim can, however, be made by dependants after the death of the person with mesothelioma if that person did not make a claim in life. Regulation 5 and table 2 in the schedule provide for those payments. The amount awarded to a dependant depends on the age of their relative at the time of their death from mesothelioma.
Regulation 4 makes it a condition of entitlement to a lump-sum payment that a person must have been exposed to asbestos in the UK. It is not right to extend responsibilities to those who were exposed abroad only, with different work practices and regulatory regimes for asbestos handling.
The Act specifies that if a person receives certain payments from elsewhere for their mesothelioma, they will not qualify for a payment under the 2008 Act. Regulation 2 specifies further payments from elsewhere that, if applicable, will mean that a person is not entitled to a lump-sum payment from the new mesothelioma scheme. It is right that people are not compensated twice for the same condition so, if they have received another payment, they will not receive one from the 2008 Act. I should clarify, however, that if a lump-sum payment under the new mesothelioma scheme, or the 1979 Act, is made in error and is liable to be made, Regulation 3 provides that that erroneous payment will not prevent a second award of a lump-sum payment to which a person may be properly entitled.
For the sake of completeness, I should add that if a lump-sum payment is made under the new mesothelioma scheme and it is subsequently discovered that a higher payment under the 1979 Act was appropriate, Regulation 6 provides for a balancing payment to be made so that overall the person receives the higher amount.
As noble Lords will know, the scheme is self-financing. It is being financed by recovering payments made under the 1979 Act and, eventually, payments made under the new 2008 Act from any civil damages that may be awarded later. That device also means that people are not compensated twice for the same condition but, in addition, uniquely provides the funding for the much-needed scheme. Because the 2008 Act is self-financing, the level of payments for the first two years will be what can be afforded out of the recoveries from civil damages. We estimate that by the third year of the operation of the 2008 Act, we will be making payments at the same level as those of the 1979 Act. Once that happens, I am happy to say that the level of payments will then be uprated in line with those of the 1979 Act. A person with mesothelioma will then receive exactly the same amount, whether they receive it from the 1979 Act or the 2008 Act.
Overall, the regulations provide for the scheme to be as simple as possible: simple for people to understand, simple to make a claim, and simple for administrators so payments can be made within six weeks of a claim being made. Lung cancer nurse specialists across the country have been sent copies of our leaflet Help and Advice for People with Mesothelioma, which we have asked them to give to people newly diagnosed with the disease. The leaflet gives advice on claiming help from the Department for Work and Pensions as well as claiming compensation from employers. To receive a payment from the DWP, a person must complete an application form and send proof of a diagnosis of diffuse mesothelioma. Provided that the person was exposed to asbestos in the UK and they have not already received a payment from elsewhere in respect of their mesothelioma, they will receive a payment.
I am sure we all agree that no amount of money will ever compensate these sufferers or their families. However, the regulations will help us ensure that people receive a lump-sum payment quickly and, wherever possible, in life. I commend the regulations to noble Lords and ask approval to implement them.
Moved, That the draft regulations laid before the House on 23 June be approved. 23rd report from the Joint Committee on Statutory Instruments.—(Lord McKenzie of Luton.)
My Lords, the House will be most grateful to the Minister for introducing the order so fully and caringly. I accept his original implied criticism that I brought this debate upon myself and upon the House. I would add, though, that I have had more than a little help from around your Lordships’ House in so doing.
Mesothelioma is, as he almost said, a particularly horrible form of cancer, almost invariably caused by the inhalation of asbestos fibres. It has been compensated for, if necessary by the state, for many years under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, which, through annual uprating orders, has provided a certain level of compensation to sufferers of certain dust-related diseases who are unable to pursue a civil claim because their former employers have gone out of business. Clearly, it would be quite wrong for such people to receive compensation through the courts from insurance companies, which remain liable for the years in which premiums are paid, even though that may no longer be paid at the time of the claim. At least, I believe that to be the case, and I should be grateful if the Minister would confirm this. Whether I am right or wrong, double compensation was prevented by the Social Security (Recovery of Benefits) Act 1997.
More recently, as the Minister said, we have had the Child Maintenance and Other Payments Act, which came on to the statute book earlier this year, and from which these regulations flow. This extended the scheme away from employment and covers any United Kingdom sufferer of mesothelioma, which may have been caused by workmen in a private house removing asbestos so carelessly as to cause the owner to inhale asbestos fibres. He will be eligible for a payment, provided he has not received compensation under either the 1979 or the 1997 Acts.
The regulations provide for how and when a claim must be made. I understand that some 600 people stand to benefit from a payment of £10,000 over the next two years. The department is to be congratulated on combining the claim for this payment with the one for industrial benefits.
However, there are some serious questions to be asked. First, my research threw up a curious anomaly, which I had not registered before. According to the Finnish Institute of Occupational Health, of seven European countries, we have the highest incidence of mesothelioma, at 39 per million people, while the lowest is in Germany, with only 16 per million. Can the Minister tell me why this is?
When will the sufferers, who will receive this new benefit within six weeks of application, start to receive the payment? It is clear that this will depend on the amount of advertising that the department undertakes. I believe that only a press release is currently contemplated, but I noted that the Minister said that this was to be issued to lung cancer centres around the country. Is he confident that that will be sufficient? Will the press release be sent to GPs’ surgeries and put on jobcentre and public library notice boards? Whatever the answer to these questions, as long as the Government keep their promises, we most certainly approve the order, as we did the policy on Second Reading of the Child Maintenance and Other Payments Act.
My Lords, I, too, welcome this new mesothelioma scheme, which, as the Minister said, is expected to help up to 600 people who do not currently receive help from the Government, with a payment estimated at £10,000 during the first two years of the scheme’s operation.
My two questions are very much like those of the noble Lord, Lord Skelmersdale. I was struck by the note in the Explanatory Memorandum that a press release was to be issued. That did not seem to me to be enough. Would it not be worth mounting a press advertising campaign to ensure that everyone entitled to claim has the opportunity to do so? However, I, too, noted the Minister’s further explanation of how this would be sent to lung cancer centres.
My second question relates to the same part of the Explanatory Memorandum, where it tells us that the department’s leaflet, Help and Advice for People with Mesothelioma, will be updated by early 2009 to contain references to the new scheme. Why will it take so long? Surely a new leaflet should be made available by the end of this summer at the latest.
My Lords, I am most grateful for the support for these measures from both opposition Benches. I shall try and deal with the points raised.
I am afraid I do not have to hand the comparison with the Finnish occupational health data, but I shall see what the department has and will revert to that. However, these are often very long latency diseases; we are dealing now with the consequences of exposure decades ago—40 years or sometimes even longer.
Indeed, my Lords. My point was that one has to look at the industrial conditions that prevailed at the time, not now. However, I will see what information I can get for the noble Lord.
Both the noble Baroness and the noble Lord asked whether the publicity we are putting out will be enough. The key thing is to reach people at the point of diagnosis so that they know that they can contact the DWP. They are invariably advised to contact a lawyer to seek civil compensation as well. As I explained in my opening remarks, that happens routinely at the moment. I am sure that more can be done, and I am happy to take back the message about doing things more generally and centrally.
The noble Lord asked whether one could be compensated for this only once. The answer is yes. As I explained, and I think he is aware, we are funding this through compensation recovery. Typically, in a civil claim, the compensators deduct from that the benefit paid by the state. This is putting the onus back on them.
I cannot tell the noble Baroness off the top of my head why it is taking so long to update the literature, but I will have it looked into. We want to do this as quickly as we can. We are confident that there are effective means by which to reach people who are diagnosed with this terrible disease so that we can help them to the fullest extent possible. I hope that that satisfies noble Lords.
On Question, Motion agreed to.
Social Security (Students Responsible for Children or Young Persons) Amendment Regulations 2008
rose to move, That the draft regulations laid before the House on 14 May be approved.
The noble Lord said: My Lords, these regulations are being introduced for jobseeker’s allowance and income support so that single students with children will be entitled to claim the appropriate benefit during the summer vacation of their course.
Benefit provision is not usually available for full-time students during an advanced course of education because they are funded through educational maintenance channels. It is available during the summer vacation for certain students with children. This includes couples with children, where both members of the couple are full-time students. They can claim jobseeker’s allowance or income support during the summer vacation of their course, provided they meet all other conditions of entitlement for the benefits. There is presently no such provision for single students with children or a dependent young person to claim jobseeker’s allowance during the summer vacation.
Single students with children aged under 16 can claim income support throughout their course of study on the basis of being a lone parent. Once their child reaches the age of 16, they are not classed as a lone parent and cannot claim income support. In contrast, couples who are both full-time students and have a dependent child or young person are entitled to claim income support in specific circumstances during the summer vacation.
By making this change to the jobseeker’s allowance and income support regulations, we will remove disparity of treatment between single and couple students and we will prevent putting the children of single students at risk of child poverty. This change removes the present discriminatory effect of these regulations and is compatible with the European Convention on Human Rights.
I hope noble Lords will support the regulations and agree that the changes are worth while and necessary to ensure that all students with children have the same opportunity to claim jobseeker’s allowance or income support during the summer vacation of their course. I beg to move.
Moved, That the draft regulations laid before the House on 14 May be approved. 20th report from the Joint Committee on Statutory Instruments.—(Lord McKenzie of Luton.)
My Lords, I regret that I cannot be quite as quick as the Minister has been in responding to what he has said. None the less, we are again grateful to him for explaining the regulations to us. They add another exception to the jobseeker’s allowance rules as far as students with children and young persons are concerned. From now on, they will also be deemed available for work during vacations and will therefore be able to claim jobseeker’s allowance, even though they may be unavailable for work.
Rather curiously, the regulations also allow the vacationing student with a child or young person to claim income support. I may have got my ideas in a slight muddle, but I should be grateful if the Minister could tell me how this juxtaposition will work. Has the general rule that no two benefits can be claimed for the same reason been broken, or is it just the additional child income support that is claimable? Or is it to be one or the other? During our discussions on the Pensions Bill, the Minister uttered the expression “it isn't fair” more than once. I am afraid that he will say it again in response to my comment that the Government are set to miss their target on the number attending university courses. Rather than half the young adult population attending such courses, new figures from the DIUS tell us that the proportion in higher education has scarcely risen over the past eight years—39.8 per cent of 18 to 30 year-olds were at university eight years ago compared with 39.2 per cent in 1999-2000. At that rate, it will take more than a century to achieve the Government's objective. In any event, thousands are not suitable for such courses, so how was the target arrived at?
I suppose that the regulations will help a little in encouraging some students either to start or continue at university, which cannot be a bad thing. But how many of them does the Minister anticipate taking up jobseeker’s allowance with or without income support? By how much will the 39.8 figure rise? Does the Minister anticipate any of them actually coming into employment during their vacations? The Minister must surely agree that all Jobcentre Plus operational staff and decision-makers must be made aware of the changes made by these regulations. How does he intend to achieve that? Indeed, given that the regulations are an anti-discrimination measure pointed out by an appeals tribunal because student couples with the care of children and young persons already get the advantages now being given to single students in the same position, has the Minister calculated how many student couples under the existing regime have been able to start or continue their studies?
My last thoughts on the regulations, welcome as they will be for some, is that the new deal for young people is not very successful. Frank Field MP even went so far as to describe it as “woeful,” no doubt because half of them end up back on benefit within the year—the so-called revolving door syndrome. The regulations will do nothing to help the situation. Indeed, they will make it slightly worse, so how do the Government intend to correct that depressing fact?
My Lords, from these Benches we welcome this change to the student regulations, which removes the discriminatory element in jobseeker’s allowance and income support available during the summer vacation so that single people who are students with responsibility for a child or young person are not treated differently from student couples in the same circumstances.
I have three questions for the Minister. First, as the noble Lord, Lord Skelmersdale, said, will all Jobcentre Plus frontline staff be issued with guidance and training to ensure that the change can be made available to students as soon as possible? Secondly, will Jobcentre Plus contact university welfare services to notify them of the change? Thirdly, will the changes be made in time for students to take advantage of them for the upcoming summer vacation?
My Lords, I thank the noble Baroness and the noble Lord for their contributions. The noble Lord, Lord Skelmersdale, was fairly wide ranging in his contribution. It went somewhat outside the bounds of the specific and, I hope, welcome regulation that we are dealing with tonight. He asked about duplication of benefits. Most single students will claim income support if they have a child. If they are not able to claim income support, they can now claim jobseeker's allowance provided that they meet all the conditions for the benefit, but it is not a duplication of benefit. They cannot have both.
The noble Lord asked about conditions for claiming jobseeker's allowance. Claimants need to be available for work to claim jobseeker’s allowance during a vacation, which is an important condition. They obviously need to meet the other normal conditions of entitlement. He referred to the new deal for young people. We could debate that endlessly, but if you look at the data you will see that the new deal for young people, together with other labour market policies and economic policies of the Government, have meant that youth long-term unemployment is at an all-time low and has dropped dramatically, so the new deal has worked for young people. It is right that the new deal is refreshed, which is why the focus is now on a flexible new deal which focuses much more individually on the needs and support of the young and not-so young, particularly in matching the skills that they need. But I do not accept the criticism that the new deal for young people has not worked.
The noble Lord asked how many student couples have benefited from the current arrangements.
My Lords, again, I do not have the data to hand. I will see what is available from the DWP and write to the noble Lord. In terms of the provisions before us, we believe that the number of students who will be affected by this change is very small. The number of single students receiving a parental grant for the academic year 2006 was 16,200. That figure was used in the Social Security Commissioner's decision. Information from the labour market survey on the number of full-time students with responsibility for a child or young person is under 10,000 and is therefore not reported because it is likely to be unreliable. It is estimated that the numbers for which this change will apply is small at less than 0.1 per cent of all single students with responsibility for a child or young person.
The noble Baroness, Lady Thomas, asked whether all Jobcentre Plus staff will know what is happening. The answer is yes. They will be provided with information and support. On whether Jobcentre Plus staff will contact university welfare staff, the answer is yes. Student unions are already aware of the change. She asked whether the changes will be available for this summer vacation and the answer, I am pleased to say, is also yes. I hope that that has dealt with the relevant points noble Lords have made. Again, I commend the regulations to the House.
On Question, Motion agreed to.
Financial Assistance Scheme (Miscellaneous Amendments) Regulations 2008
rose to move, That the draft regulations laid before the House on 18 June be approved.
The noble Lord said: My Lords, noble Lords will recall that the Financial Assistance Scheme, or FAS, offers help to certain people whose defined benefit occupational pension schemes have not provided them with the pension that they were expecting. The draft regulations before us contain further changes to bring about the reforms to the FAS that we announced last December. Noble Lords will recall considering regulations to bring in some of the changes in May and those are now being implemented. In those regulations, we included measures which would raise the assistance level from 80 to 90 per cent, and begin payments from an individual’s normal retirement age rather than age 65. I am pleased to say that increased FAS payments at 90 per cent began to be made on 21 June and we have made 1,257 top-up payments at the 90 per cent level as at the end of June. In the draft regulations now before the House, we include some significant measures which could not be included in the previous set because the policy needed more time in development and consideration.
On the early payments for those members unable to work due to ill health, the draft regulations provide for ill-health payments for members of FAS qualifying schemes, where the FAS scheme manager is satisfied that those members are not able to work due to ill health and are likely to continue to be unable to do so until their normal retirement age. The ill-health payments can be made from five years before the member’s normal retirement age, so that, for example, where the NRA is 62, eligibility would begin from age 57. We continue to discuss with stakeholders issues around the ill-health provision, but it is important that we get this enhancement to the FAS in place as soon as we can in order to get help to those affected.
On extending the FAS to members of schemes which wound up underfunded with a solvent employer, the draft regulations also include provisions to make members of certain pension schemes with solvent employers eligible for FAS. Our intention here is to enable pension schemes that started winding up with a solvent employer after 1 January 1997 but before the employer was required to meet the full buy-out cost to qualify for the FAS.
The Government would expect trustees to recover any debt they can from the employer before turning to the FAS for assistance. Given this, the regulations require the employer to have paid any debt to the scheme at the start of winding up, or to have had no debt to pay on wind-up. Following the consultation, we have included a provision to allow the FAS scheme manager discretion to treat the debt as having been paid where an appropriate portion was paid. Our intention here is to provide for schemes where, for example, the employer paid a significant majority of the debt owed but where the trustees did not consider it worth while to pursue the remaining debt to be included. We think that it is right to expect schemes first to pursue any debt owed by the employer before coming to the FAS for assistance. But where trustees have taken reasonable steps to secure the recovery of the debt, this gives the FAS scheme manager appropriate flexibility to include such schemes.
As for whether the Pension Protection Fund will be more closely involved in developing the new FAS arrangements, I mentioned that further regulations will be necessary to bring in the remainder of the changes to the FAS announced in December. One of those remaining changes concerns the transfer of assets from FAS qualifying schemes to the Government. In order for that process to be as efficient as possible, these draft regulations contain provisions for the PPF to provide advice, and to be involved in the process of managing schemes through the wind-up process and on to a stage where they are in a position to hand over their assets. I hope noble Lords will agree that the expertise that the PPF has built up since its inception will be invaluable in this task.
Given that the FAS will take in the assets of pension schemes that have not annuitised, we have included a measure in these draft regulations that allows the FAS scheme manager to direct pension scheme trustees in order to protect the value of the scheme assets. This is similar to an existing PPF power.
We have also included measures to speed up the process of making initial FAS payments—that is, payments made before the final FAS payment position is known—by removing the need for trustees to apply for them. The draft regulations retain the FAS scheme manager’s discretion to make initial payments but without the need for a request from the trustees to trigger consideration. We are also reducing the period allowed in existing regulations for trustees to supply scheme data from six months to three months. In addition, they would introduce appropriate timescales for producing information concerning the new ill-health payments.
Finally, the regulations include removing the option to apply for reinstatement into the state additional pension for those eligible for FAS. This will mean that any person qualifying for FAS will no longer meet the conditions for reinstatement into the state additional pension. The aim is to simplify matters by removing a step that not only delays the winding-up process but also offers uncertain outcomes for members. We are replacing this uncertainty with a guaranteed amount. Where someone has, before the commencement of the provisions, been offered the opportunity to be reinstated by their scheme, they will still be able to select this option.
I hope we can agree that the Government have so far made good on the promises made in the December announcement, with more than 1,200 people already being paid assistance to 90 per cent of the pension that they were expecting. With this second set of regulations we are maintaining the momentum to deliver key elements of the reforms to the benefit of many pension scheme members. Later this year, we intend to consult on further draft regulations to deliver the full package of changes. In addition, to support the changes we intend to make through regulations, we have tabled amendments to primary legislation through the current Pensions Bill. In my view, these draft regulations are compatible with the European Convention on Human Rights. I therefore commend them to the Committee.
Moved, That the draft regulations laid before the House on 18 June be approved. 23rd report from the Joint Committee on Statutory Instruments.—(Lord McKenzie of Luton.)
My Lords, this is the first opportunity that we have been given to debate these regulations, which are particularly important as the sooner payments get to the recipients, the better off they will be, especially as they will have been waiting years for their badly needed payments. Some will even have died. It is no recompense that their family may get some of their award.
These complicated regulations are stage two in a multipronged series to give effect to the expansion of the FAS announced by Written Ministerial Statement on 17 December last year, as the Minister said. It had taken five long years to bring the Government, kicking and screaming, to that point. The Explanatory Notes say in paragraph 7.3:
“From its inception the FAS has received significant public interest”.
That is a masterly understatement. I congratulate whoever drafted that sentence.
Unlike my noble friend Lord Taylor of Holbeach on the first set of these regulations, I will not chronicle the sorry history of the FAS from the Parliamentary Ombudsman’s report through to the action in the courts that brought the Government to that point. Suffice it to say that the amount of money that is now to be expended on the scheme—some £2.9 billion in net present-value terms—is a great deal better than the original proposal. However, will the Minister admit that this is a gross figure? Because all pensions count as taxable income, can he say what the figure is expected to be net of income tax at the current rates of 20 and 40 per cent? As I am dealing with general points, I suggested months ago that it would be both sensible and cost-saving to give the FAS over to be run by the PPF. Now that these regulations involve the PPF to a large extent, why will not the Secretary of State follow my advice?
As for the improvements made by the regulations, the biggest by far is the early payment of pension to those who retired sick before their normal retirement age. Many schemes taken over by the FAS will have paid pensions from that point, but the regulations propose that pension will be paid only from five years before a qualifying member's normal retirement age. Since the FAS rules only permit normal retirement age to be between 60 and 65 no matter what the ages actually were in the original pension scheme, the earliest that ill-health or early retirement benefits can be paid is at age 55, even though, as I said, the retirement may have been much earlier and the original pension scheme may have allowed pension to be paid from that earlier date. Why did the Government come to the decision that they have? Was it to save money, or for some other reason?
The Explanatory Notes give me the impression that this may—just may—be an interim decision. None the less, I am glad that these regulations cover it now, because the afflicted people are inevitably in straitened financial circumstances and may even have died before receiving anything at all. It is small recompense that their relatives may get a reduced amount. I would assume, too, that many are on state benefits of one sort or another. What does the Minister believe is the net cost of this provision? Also, can he tell me a little more about how the interim payments will work? There is great interest in this from the Pensions Action Group.
The regulations also allow certain schemes backed by solvent employers that started to wind up before 1997, before the employer was required to fund the full buy-out cost. Why was this date chosen?
As the Minister mentioned, the Government are now to take on the residual assets of pension schemes that come into the FAS. This was proposed by the Andrew Young review, and I can readily understand why. It is especially important that those assets are not run down prior to the schemes being accepted into the FAS. It is equally important that information held by the trustees should be given promptly to the FAS, especially when pension or ill health payments are already in payment before the scheme is accepted into the FAS. I approve of introducing timescales for this. Incidentally, I hope that such payments made from, say, the age of 45 will not be terminated by the Secretary of State.
Lastly, although I cannot find it in these regulations, I understand that FAS payments are to be increased not by earnings or even inflation but by 2.5 per cent annually. Can the Minister tell me whether this means an annual FAS uprating order, like the mesothelioma one, or will it be part of the general uprating order? I have made the point before that it would be sensible for all regularly updated benefits to be included in a single uprating order. Can the Minister tell me whether any serious consideration has been given to this, or must I live with the off-the-cuff answer that he has given me previously?
My Lords, it was at short notice that this business was slipped in last Thursday afternoon for discussion today, particularly given the long and sorry history of the Financial Assistance Scheme. I know that the Minister is busy, but he has the resources of the department behind him. Those of us on the opposition Benches, who are obviously also dealing actively with the Pensions Bill, find it hard work to have things done at such short notice. I know that the Government clearly want to get this done before the Recess, but the Recess dates have been known for many months.
As the Explanatory Memorandum makes clear, this set of regulations makes,
“provision for further elements of the package announced in December 2007”—
as the Minister said—
“such as early access to assistance on ill health grounds. There will be further Regulations to deliver the remaining parts of the package to move the FAS scheme to a position where assistance payments are calculated on a basis which is broadly comparable to that of the Pension Protection Fund”.
In normal circumstances, ill-health payments—or what would have been early retirement due to ill health—would have been subject to the rules and guidelines of individual schemes and trustee discretion. Why have the Government opted for an arbitrary figure? All I could see in the Explanatory Memorandum was that they think it is “appropriate”. The arbitrary figure of five years before normal retirement age could leave some very ill people worse off. Actuarial reductions would not be made in all cases under normal circumstances in those schemes. The House will therefore see that FAS members could be worse off under the current proposals.
A model of how a compensation package should be administered in the form of the Pension Protection Fund was noted in the Explanatory Memorandum. It will pay 100 per cent of benefits to any existing ill-health pensioners—there is probably none in the FAS yet. In the PPF, however, individuals can choose to draw that compensation before normal pension age. They must be at least 50, and payments are actuarially reduced to take account of the fact that compensation will be paid for longer. That is the case even where a person claims their pension early on ill-health grounds. Last year, a parliamentary Answer explained how this works: once the PPF has assumed responsibility for a scheme, any scheme member may take early payment of their compensation from age 50 subject to actuarial reduction.
Surely the FAS is also a compensation scheme, and there must be a strong case for it operating on similar grounds. What would be the cost of treating people retiring early through ill health in exactly the same way regardless of whether they are covered by the FAS or the PPF?
I am also grateful to that superb campaigner on behalf of all pensioners, Dr Ros Altman, for one or two further questions. First—the Minister touched on this—what is now the position of solvent employer schemes? In particular, how many will not qualify? Specifically, is the Desmond scheme in Northern Ireland now included?
Secondly, the annuity factors used by the Financial Assistance Scheme to convert transfers out of the scheme into equivalent pensions do not appear to have reflected the pensions being given up. The Government Actuary’s Department has used factors which seem to result in the assumed scheme pension being higher than it would actually have been. Therefore the FAS payments are lower. This may seem a technical point, but it could cost seriously ill people real money.
Moreover, why are the Government refusing to backdate payments for those who have already been ill for many years, only making payments from 2008 or when notified, whichever is later? The FAS seems to be taking the hardest line possible against such people. These are issues of ill health, which lies at the centre of this regulation.
Finally, why on earth has it taken so long to begin bringing together the administration of the Pension Protection Fund and that of the Financial Assistance Scheme? We on these Benches have been calling for that since the first Pensions Bill in 2004. We did not see the case for separate bodies then, and the dismal record of incompetence and delay by those administering the Financial Assistance Scheme since then has proved us right. These are enabling provisions. What will happen to bring the administration together, and when?
My Lords, I think I just discerned support for these regulations in all of that.
The noble Lord, Lord Oakeshott, is absolutely right that I should have covered the short notice in my opening remarks; I apologise. As he recognised, we want to get this through before the Summer Recess, so that we can begin to make the ill-health payments, in particular, as quickly as possible. I acknowledge that it is not always easy for the Opposition to deal with such matters quickly.
The noble Lord, Lord Skelmersdale, asked about costs and whether they were gross or net. They are gross costs: gross of tax and benefits. A net figure would be a discount of a quarter to a third of that gross figure; that is a ballpark figure. He also asked how interim payments would work for FAS ill-health claims. Interim payments on the grounds of ill health work in the same way as initial payments for FAS. They are appropriate when schemes have not completed wind-up and the final figures are not known. He also asked about annual upratings and FAS being increased by 2.5 per cent. These things are not included in the social security benefit order, so it is not in an uprating order. The 2.5 per cent he referred to relates to the cap on indexation, an outstanding issue that we will look at in later regulation.
Both noble Lords asked why the period for ill-health payments was five years. We understand, as noble Lords have done, that campaigners have called for more generous ill-health provision. We are sympathetic to campaigners’ concerns about ill-health benefits in a small number of particularly difficult cases. We continue to work closely with them to see if we can resolve the issues.
My Lords, the draft provisions provide for claims within five years of the normal retirement age. This goes beyond the commitment provided in December 2007 to provide help to members over 60; we have done more than we committed to at the time. This approach ensures that all members who meet the ill-health qualifying conditions have an opportunity to receive early, reduced ill-health payments in the five years before their normal retirement age. As I said, as part of the consultation we invited representations on behalf of any members who are unable to work due to ill health and who are not covered by our extended proposals. The noble Lord, Lord Skelmersdale, asked me about the full buy-out cost. I missed the full import of his question. Perhaps he will take the opportunity to ask it again when I have tried to deal with some of the other points that he raised.
The noble Lord, Lord Oakeshott, referred to annuity factors. They are used in the FAS to calculate the amount of annuity a member could have received if they had not taken their share of remaining scheme funds in some other way, such as a transfer value or a lump sum during wind-up. The factors seek to approximate as closely as possible the amount of annuity that the trustees could have purchased under bulk annuity terms for that amount of funds, so they need to be kept under regular review and updated as necessary to ensure that they are broadly in line with market rates. The Government Actuary’s Department recently produced revised draft factors, and we consulted the pensions industry before using them.
The noble Lord, Lord Oakeshott, also asked about the Desmond scheme. There are two kinds of situation here. One concerns solvent employers with schemes that are not fully funded, which arise from issues around buy-out arrangements and whether a full buy-out cost had to be applied. These regulations deal with those situations. The Desmond situation is where the employer has become insolvent but the wind-up of the scheme started later than April 2005. We need to deal with that in primary legislation and the relevant provisions are, or will be, in the Bill which we are discussing with great joy. We have identified three schemes in this latter category. Many more schemes were identified in the former category. I cannot put my hands on the relevant figure, but I am happy to write to the noble Lord, if that will help.
Both noble Lords asked why the PPF’s provisions could not be adopted more fully sooner. I remind them of the sequence of events. Andrew Young’s report charted the way forward for us. Part of his remit was to look at engagement with the PPF. Greater engagement with the PPF needs to be undertaken to see what expanded role it might undertake. We have given a power for it to provide advice. I hope that I have dealt with everything apart from the full buy-out cost, which the noble Lord raised. I missed the full import of his question. I hope that he will ask it again and I shall see whether I can help.
My Lords, the noble Lord did not answer my point regarding payments which were already being made for ill-health retirement from schemes before they were taken over by the FAS. There must be some. I hope that such payments will not be terminated by the scheme if they are already in payment. That is a rather more important question than the one about lump-sum payments.
My Lords, I can confirm that that is the position. If ill-health payments are being provided by the scheme, this measure would not disturb any of that. I hope that that reassures the noble Lord. I ask noble Lords to support the Motion.
On Question, Motion agreed to.
Housing and Regeneration Bill
Consideration of amendments on Report resumed.
Clause 10 [Restrictions on disposal of land]:
12: Clause 10, page 4, line 40, at end insert “either generally or in respect of a specific disposal”
The noble Baroness said: My Lords, this amendment would add to the clause concerning restrictions on the disposal of land a reference to a general or a specific consent from the Secretary of State. In Grand Committee, we were told about the general consent which applies in the case of local authorities. The very helpful and long compendium letter which the Minister sent to interested Peers described this process. I will not read it out. However, I have requested that the Minister reads it into the record. If I were to do that, it would not carry quite the same weight. That is my reason for tabling this amendment. The points are important and should be on the record. I beg to move.
My Lords, my Amendment No. 13 is grouped with this amendment. It relates to a subject that we debated fairly thoroughly in Grand Committee. We got what I would call a reluctant no, but very often what a community could pay for a bit of land is considerably less than its value on the commercial market. That is a reality. We have to be sure that there is flexibility so that where there is a real gain to the community there is some way of dealing with that situation. We thought we ought to repeat this amendment at this stage to see if we can persuade the Minister that a slightly more positive attitude to it would be helpful.
My Lords, I hope the Minister can clarify a couple of points for me. The nature of urban regeneration is that a large proportion of time is spent assembling land for projects. Sometimes that can be just as tricky and complex with very small parcels of land as it is with much larger sites. My experience was that from time to time English Partnerships disposed of land at less than top whack for good reasons. Sometimes it was part of a land swap with a developer where it was advantageous to the public purse to dispose of a particular bit of land at less than best consideration because the swap was more valuable in the great scheme of things. Sometimes we were disposing of a community-related asset that was a legacy from the old new towns. Sometimes we were dealing with a ransom strip. I shall not go into huge detail, but there is a range of circumstances where it is important that the accounting officer of the organisation can make a judgment, particularly over small parcels of land or parcels of land that are part of a land swap. It is important that he retains the flexibility to do that within the general Secretary of State consent, which is how we have operated in the past.
Can the Minister reassure me that we are not overdoing this and that not every single, tiny parcel of land that might be part of a swap or be otherwise disposed of or brought into a project at less than best consideration now requires the Secretary of State’s consent? I understand that the powers delegated to the accounting officer of the organisation go up to £20 million only and everything above that goes to the department and on to the Treasury in the normal way. I would have thought that in the normal course of events the accounting officer could reach that judgment within an overall direction from the Secretary of State. I would be grateful for some clarification—if not this evening, in writing—because as a result of the amendments that have been accepted, we now have a sensible regime, but if we go any further we could end up unintentionally fettering the organisation in a practical way.
My Lords, the noble Baroness has invited me to put on the record our response, and I am happy to do that. We are committed to developing a general consent to make clear the circumstances under which the Homes and Communities Agency may sell land at less than best consideration without first obtaining the Secretary of State’s consent for that transaction. Officials are currently developing that, so it may be published for further discussion, but I am happy to do my best to set out here what it is likely to cover and again to state that I will share a draft with noble Lords when it is published for discussion in the near future.
As noble Lords will know, the extent to which the Homes and Communities Agency should be able to make decisions regarding the disposal of land at less than best consideration has been the subject of extensive debate during the passage of the Bill. It is our view that, in the majority of cases, the agency should be empowered to dispose of land in the manner that best enables it to pursue its objects. We accept that this may not always mean selling land for the highest price, but we also accept that there must be appropriate and adequate safeguards in place to protect the public purse. The Bill currently contains a provision at Clause 10 precluding the Homes and Communities Agency selling land at less than best consideration without permission from the Secretary of State, but it also contains a provision at Clause 50 empowering the Secretary of State to give consent in general or specific terms. These provisions mirror those that apply to English Partnerships.
As I have said, we intend to publish for discussion with stakeholders a document setting out the Secretary of State’s general consent to the Homes and Communities Agency for the disposal of land at less than best consideration. That document will set out the general circumstances in which we suggest that the Homes and Communities Agency could dispose of land at less than best consideration. For any disposal of land that did not meet the terms set out in the final version of that document—the general consent—the Homes and Communities Agency would have to obtain the Secretary of State’s specific consent. It will set out, at a high level, the circumstances in which the disposal of land for less than best consideration would not require the specific consent of the Secretary of State.
The draft consent will set out a series of tests that deal with the public benefit and seek to protect the public purse as follows: first, any disposal at less than best consideration must meet the objects of the agency which incorporate a public benefit test; secondly, undervalue land sales must meet the value-for-money tests set out in Managing Public Money and the Green Book, which, as noble Lords will know, are Treasury publications that explain how accounting officers can take account of wider benefits when judging whether they are achieving value for money; thirdly, the disposal must not constitute state aid under Article 87 of the treaty of the European Union. This requirement would require the agency to either dispose of the land under an open and unconditional bidding procedure or rely on an existing exemption or approval which incorporates a public interest test.
To provide further protection for the public purse, the draft also places a limit on the maximum size of the unrestricted value of any transaction that the agency may undertake in these circumstances without seeking permission from the Secretary of State. We are considering a limit of £40 million for sales conducted through competitive tender and a limit of £5 million for single-tender sales. These limits are thought likely to capture about 10 per cent of the Homes and Communities Agency’s land sales.
Drafting the consent in this general way inevitably raises comparisons with the general consent available to local authorities when they wish to dispose of land at less than best consideration. This is not a fair comparison. Local authorities are required to seek consent from the Secretary of State when the difference between the restricted and unrestricted value of land sales is greater than £2 million. This means that if local authorities wanted to sell land worth £4 million for £1 million, they would have to obtain the Secretary of State’s consent. The HCA would not have to do that. However, if a local authority wished to sell land valued at £42 million for £40 million, it would be able to do so under the terms of its general consent. The HCA would have to seek the Secretary of State’s specific consent.
The monetary values for the HCA are likely to be higher because it is expected frequently to be engaging in large-value land transactions and its staff will have extensive experience and expertise in this field. Also, we are leaning towards total transaction values for the HCA, whereby for local authorities the difference between the figure that they could have obtained for the land and the figure they accept would determine whether they had to obtain the Secretary of State’s specific consent. As for local authorities, cases that do not fall within the general consent will need to be referred to the Secretary of State for a specific decision.
In general terms, a monetary value that can be attached to a wider public benefit—for example, a right to repurchase land for the selling local authority—should be included within the assessment. If the value attached to such wider benefits when added to the monetary value received gives a total equivalent to the best consideration which can reasonably be obtained, then no consent is required. If, even after including the value attached to wider benefits, the total does not reflect the best consideration which can reasonably be obtained, the specific consent of the Secretary of State will be needed. This will also be the case when it is not possible accurately to allocate a value to a wider public benefit, which we accept will sometimes happen. In those circumstances, it is entirely appropriate for the Secretary of State to make an assessment in order to ensure the appropriate use of public funds. The debate in Committee at times seemed to equate a requirement to seek consent with a prohibition. That is clearly not the case; the requirement to seek consent is in fact a means of ensuring a proper assessment of the facts of a particular case.
I hope that noble Lords see that this renders their Amendment No. 13 unnecessary. The amendment seeks to place in the Bill an obligation on the Secretary of State, when considering whether to give consent to the HCA to dispose of land for less than best consideration, to take into account the benefit to the community when such a disposal takes place. Of course, she will, but she will also take into account the cost to the community of selling the land for a lower value than could reasonably have been obtained. I hope that noble Lords are satisfied and that Amendment No. 13 will not be moved. I trust that the noble Baroness is also satisfied by the response that I have given and that she will withdraw Amendment No. 12.
My noble friend Lady Ford asked a question, to which the response is simply as follows. The powers that we seek to put in the Bill are similar to those that were in legislation governing English Partnerships. I assume that for those powers the same arrangements will pertain in relation to disposals of the sort to which she referred.
A question arose about consulting on the limits. The answer is that we are consulting on the limits of £40 million and £5 million in a general-consent approach. I hope that that answers a point that has clearly disturbed noble Lords.
My Lords, I do not know and I do not think that I will know in the time that it takes to get a note from the Box to the Dispatch Box. However, if the noble Baroness will be satisfied with me giving her an answer outside the Chamber, I shall be more than happy to oblige.
My Lords, perhaps I should speak very slowly as I am not sure that everything is winging its way quickly to the Minister. Of course, what I requested—the information that we had been circulated with—was put on to the record, so, to that extent, I am satisfied. He could not see the expression of the noble Baroness, Lady Ford, as he described some of the contents and, in particular, the limits. However, as he said, this is a draft that is being worked on for consultation and I think that he has already had a pretty hefty hint about some of the response to that consultation.
My Lords, I had gathered that the subject of limits had caused a frisson of excitement, and that is why we thought it was useful to add the point about consultation on the limits. I am sure that that was appreciated. At present, we do not have a worked-out timetable but we will consider it as a matter of urgency.
My Lords, I am glad that I asked for that point to be covered. The House and, more particularly, those outside have benefited from the very practical contribution of the noble Baroness, Lady Ford. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
Schedule 3 [Main powers in relation to land of the HCA]:
14: Schedule 3, page 166, line 27, leave out paragraph 27
On Question, amendment agreed to.
Clause 13 [Power of Secretary of State to make designation orders]:
[Amendment No. 15 not moved.]
16: Clause 13, page 5, line 20, leave out from beginning to “it” in line 21
On Question, amendment agreed to.
[Amendments Nos. 17 to 19 not moved.]
20: Clause 13, page 5, line 25, at end insert—
“( ) In deciding whether it is appropriate for the HCA to be the local planning authority as mentioned in subsection (1)(b), the Secretary of State must, in particular, be satisfied that making the designation order is likely to improve the effectiveness with which the functions of the local planning authority for the area or part are discharged.”
21: Clause 13, page 5, line 26, leave out subsections (3) and (4)
22: Clause 13, page 5, line 39, leave out “, consult” and insert “—
(a) publish—(i) a draft of the order, and(ii) the Secretary of State’s reasons for making the order, and(b) consult the persons mentioned in subsection (5A).(5A) The persons are”
23: Clause 13, page 6, line 2, leave out “and”
24: Clause 13, page 6, line 4, at end insert—
“(c) such persons which appear to the Secretary of State to represent the interests of local authorities as the Secretary of State considers appropriate, and(d) persons who reside or carry on business in the proposed designated area.”
On Question, amendments agreed to.
[Amendments Nos. 25 and 26 not moved.]
Clause 14 [The HCA as the local planning authority]:
27: Clause 14, page 6, line 33, leave out from “order” to “may” in line 34
On Question, amendment agreed to.
[Amendments Nos. 28 to 33 not moved.]