House of Lords
Tuesday, 12 July 2011.
Prayers—read by the Lord Bishop of Chester.
Human Rights: Kashmir
My Lords, we recognise that there are human rights concerns in both Indian and Pakistan-administered Kashmir and we followed the widely reported violent unrest in lndian-administered Kashmir last year. Indian Prime Minister Singh has since said that human rights abuses by security forces in Kashmir would not be tolerated. We are following the work of the three interlocutors appointed to help resolve the situation in Indian-administered Kashmir.
I thank my noble friend for his response. Is he aware of the Amnesty International report, A Lawless Law, which gives horrific accounts of human rights abuses committed by the Indian forces in Kashmir? Draconian laws such as the Public Safety Act allow the authorities to arrest and detain people for up to two years, and in some cases up to 20 years. According to the report, some 16,000 people have been arrested under the Public Safety Act in Kashmir so far. Will the Minister or the Foreign Secretary raise the human rights abuses in Kashmir with their Indian counterparts at their next meeting?
We are of course aware of the Amnesty International report. As with human rights questions in any part of the world, we are concerned, as would be all responsible citizens and responsible countries. Our high commission officials have visited Kashmir and discussed the issue with human rights groups but I have to emphasise that it is not for the United Kingdom to prescribe solutions to these matters. That is for the Indian-administered authorities to deal with and it is for India and Pakistan together to find a lasting solution to the overarching issue of the Kashmir situation.
My Lords, is the Minister aware that a US-based international people’s tribunal on human rights and justice in Indian-administered Kashmir uncovered hundreds of mass graves and thousands of unidentified graves? Will Her Majesty’s Government support Amnesty International in its call for an independent and impartial inquiry into these mass graves? Will Her Majesty’s Government encourage both India and Pakistan in a dialogue where Kashmiris can also take part to resolve this outstanding issue?
We take the view that the three investigators appointed to help resolve the situation and look into these details must proceed with their work. We will clearly follow this very carefully and closely but it is a matter for investigation by the three appointees. That is what is now occurring.
That is of course something that we want to see but I repeat that it is really not for the UK to prescribe on the situation or to prescribe solutions. It is for India and Pakistan to find a lasting solution. Any support, help and encouragement from outside that the United Kingdom, or any other country, can give, we will certainly be ready to offer, but that lasting solution must come from the two countries concerned.
My Lords, the Minister has expressed his concern for breaches of human rights wherever they occur. Will he once again turn to the problems of the European Court of Human Rights, which has a backlog of more than 100,000 cases, and take the opportunity of the British presidency of the Committee of Ministers to do something about this appalling neglect of the symbol of human rights in Europe?
The noble Lord has boldly and bravely raised this question a number of times. It is one that I am ready to call to the attention of my colleagues and it has been noted. There is clearly a backlog problem; there may be other problems as well. Those are a matter for close concern.
My Lords, does my noble friend accept that the rule of law is completely within the ambit of the Commonwealth Ministerial Action Group, alongside democracy, and while Her Majesty’s Government may not have the leverage they seek through bilateral talks, they are able to address the issue through the forthcoming Commonwealth Heads of Government Meeting? Will my noble friend therefore seek to do so as he has great interest in the Commonwealth and leverage within it?
The precise agenda will be governed by CMAG collectively and by our Australian hosts at the Commonwealth Heads of Government Meeting, but all aspects of human rights abuse around the world are the concern of the Commonwealth, particularly those occurring in Commonwealth member countries. While I cannot guarantee that these matters will come to the fore, they are certainly something that we would like to see, along with all human rights issues, examined in an understanding way, recognising the sensitivities of particular situations such as this one, which is very sensitive indeed.
My Lords, the noble Lord will, I am sure, remember that many decades ago the people of Kashmir on both sides of the line of control were promised a referendum on self-determination. Can he tell us what has happened to that and whether any progress has been made?
I do not think that there has been progress. This is again a matter for the Indian and Pakistani authorities. My understanding is that, at the moment, there is no progress on that front. If I am wrong about that I will write to my noble friend.
Employment: Market and Coastal Towns
The Government are committed to increasing employment in all areas of the country, and national policy initiatives to boost growth and jobs apply, of course, to market and coastal towns. The rural economy growth review and the seaside resorts action plan are examples of current initiatives in support of that commitment, which will benefit market and coastal communities.
My Lords, I thank the noble Lord for that reply. Our market and coastal towns are the economic and service hub for many of us in rural England. Yet without the economies of scale and transport links of cities, our market towns too often become victims of market failure in employment, retail and housing. The protections in planning are now being weakened in the Localism Bill; and the regional development agencies, and with them the market and coastal towns initiative, are being abolished in the Public Bodies Bill. How will the local enterprise partnerships fill that gap when there is market failure in market towns, given that attracting inward investment is not in their remit? What about the many rural areas not covered by the LEPs?
My Lords, the noble Lord asks a number of questions. At this stage, let me say that our national policy initiatives to boost growth and jobs, which, as I have said, apply to market and coastal towns, include local enterprise partnerships, the regional growth fund, budget support for SMEs and measures in the Localism Bill. The important thing is that they can be applied to reflect the local context. Training and skills are also vital, and greater flexibility has been given to colleges and other training providers to offer the training that reflects the needs of the local labour market.
My Lords, would the Minister agree that the south-east corner of Kent has been and is a deprived area? Dover is frankly a disgrace as the place of entry to this country. My name is “of Sandwich”, so my heart is very close to that place, which will suffer tremendously with the closure of Pfizer. What are the Government going to do to help that part of the world, which for a very long time has been a deprived area from the point of view of trade?
Would my noble friend agree with me that SMEs are the backbone of economies in market towns and coastal resorts? Would it not be advantageous if the Government could put further pressure on the banks so they release funding for further expansion in these businesses?
My Lords, in the light of last week’s announcement that the Homes and Communities Agency will take over the majority of the regional development agency assets—those, at any rate, that have not been sold off in the current fire sale—will the Minister indicate whether there have been any discussions with that agency, and whether any guidance has been given on the need to ensure that some of those assets at least are deployed in the interests of coastal and market towns?
My Lords, I agree with the noble Lord’s point about the need for affordable housing, for instance. The Government are well aware of the need for affordable housing in rural, and indeed coastal, communities, and are looking to address this by returning decision-making powers to local councils, giving them greater control over the allocation and tenure of social housing.
My Lords, my noble friend the Minister mentioned local enterprise partnerships and local colleges and the importance of the skills agenda. Is he aware that in many cases local colleges are being excluded from local enterprise partnerships?
My Lords, would the Minister care to comment on the savage cuts in local authority spending for areas such as Blackpool in the north, where the reduction in public expenditure is far greater than the Government have made either in the south of England or in Civil Service and government spending?
My Lords, I know that the noble Baroness takes this issue very seriously. The Government are especially aware of some of the northern coastal towns—she mentioned one. A question was asked earlier about local enterprise partnerships. They now cover all northern coastal towns. As locally owned and genuine business civic partnerships, they are taking the strategic lead for economic growth and creating the right conditions for private sector growth along the coast, supported by budget measures to help small and medium-sized enterprises.
My Lords, I feel a bit frustrated by this Question, which is about coastal towns in England. Many of us are from the regions of the United Kingdom. Job creation is essential not only in coastal towns in England, as listed in the Question, but all over the country. Does the Minister agree?
My Lords, I am so glad that the noble Lord opposite has mentioned the United Kingdom. I am sure that the Question about England, although it may not embrace Wales, includes Wales. However, is it not true that the demise of many of our town centres, and of employment in the centres of market towns, is because of out-of-town shopping malls and large-scale shopping centres? What are the Government doing to regulate this move out of town, which is making the centres of our market and coastal towns most uninviting places?
My Lords, my noble friend makes an important point. Town centres are key to sustainable growth and local prosperity and are at the heart of neighbourhoods, giving communities easier access to shops and services. However, we must be clear that town- centre planning policy is not pro or anti supermarkets, and planning cannot seek to restrict lawful competition between retailers.
I thank my noble friend for her Answer. Does she agree that one of the worst things for bereaved, grieving families is to have to wait one, two or even three years for the inquest, and that that has an added cost to the NHS in all the stress and grief that those families naturally experience? Could my noble friend tell me why the Written Statement of 14 June to which she referred was silent on who would pick up the responsibility for overseeing what delays happen and why, and on what the criteria are for assessing what is an unreasonable delay?
The noble Baroness is absolutely right that this is a very difficult process for any family to go through, and anything that we can do to expedite inquests while holding them thoroughly is of key importance and should help the families. Section 16 of the Coroners and Justice Act 2009, which was introduced in response to the noble Baroness’s amendments, did place a duty on a senior coroner, when an investigation has not been completed within a year, to pass that information through and for there to be a register of that. As she knows, the plan is that the functions under that office will be transferred to the Lord Chancellor. This area will indeed be addressed. With the spotlight on military inquests and with the delays that used to occur, it is notable that things have improved enormously, so there is a lot to be said for getting things out into the open.
My Lords, my noble friend Lord Bach and I have been campaigning together on this issue, and I won the toss to explain how disturbed we are on these Benches. The Royal British Legion, which has campaigned tirelessly about the inadequacies of the coroners’ service, has been in touch with me about this matter. It is bitterly disappointed with the proposals outlined by the Secretary of State on 14 June, where he says that he intends to persist with the abolition of the office of chief coroner. Given the overwhelming support for the chief coroner across this House, led by the noble Baroness, Lady Finlay, during the passage of the Public Bodies Bill, and indeed the overwhelming support from all parties for the reforms to the Coroners and Justice Act 2009, why are the Government persistently denying bereaved Armed Forces families a reformed, effective and well led coronial system that would provide them with the respect and support they need when they are at their most vulnerable and are grieving?
As I have just mentioned, military inquests have improved over the past couple of years or so, and that is very welcome. The noble Baroness refers to the position of chief coroner and to the actions of the noble Baroness, Lady Finlay, in defending it. It was clear that there was great concern about this in your Lordships’ House. Many of the provisions in the Statement of 14 June were negotiated with concerned parties, including the noble Baroness, Lady Finlay. They move most of the functions to the Lord Chancellor and the Lord Chief Justice but the position of coroner has not been abolished. It will be reintroduced in the Public Bodies Bill in the Commons so that it is there as a backstop. If the transfer of responsibilities to the Lord Chancellor and the Lord Chief Justice does not work, the provision can be reverted to. However, I make the point that in our current economic situation it was not possible—
If you look around Europe at the moment you can understand why it is important that the Government take our economic situation seriously. We have transferred all the key responsibilities here to the Lord Chancellor and the Lord Chief Justice. I am sure that noble Lords will all hold us to account if that does not work.
Could the Government explain why the Statement, which I did not see before it went out and I did not know the contents of, did not contain a transparent costing to justify the abolition of the chief coroner? Why does the Statement contain the line,
“neither the judge nor any other individual will be responsible for the leadership, culture or behaviour of coroners”,—[Official Report, 14/6/11; col. WS 62.]
which makes it clear that the key recommendations of reviews by Dame Janet Smith, Luce and others that highlighted the reforms essential to the coroners system have effectively been abandoned?
I dispute what the noble Baroness says. The costings were done in 2009 and they stand. The problem about the proposals that came forward afterwards was that they talked about deferred costs, and we could not go down that route. I remind the noble Baroness, who would know this only too well, that the chief coroner was not going to be a panacea. The chief coroner could do what he or she could to persuade; they did not have statutory rights to interfere with coroners, who are independent judicial officers. They did not have that right any more than is currently the case. We all wish to improve the coroners’ system. There is a lot to be said for turning the spotlight on practices in different areas, as has happened with military inquests, and seeking to drive up standards that way.
My Lords, will the Minister explain why Governments get themselves into such a pickle? The idea that the amount spent on this is likely to disturb the economy of the country is ludicrous. The public can see that we spend millions on pointless referenda yet, on an issue that affects the whole country and for which there is widespread support right across the party front, the Government dig in unnecessarily. Can the Minister not take this back to her civil servants, make them see some sense and get what the public want in this area?
As my noble friend who is absent today often says, “To govern is to choose”. We all know the dire situation that the country is in but no one is suggesting that they short sell in Britain, unlike in Italy and Greece. That is worth bearing in mind when looking at this question. The Ministry of Justice, like all other areas in Whitehall, had to take its share of the cuts. It has had to make a 25 per cent cut in its budget. It was decided that, since most of these tasks could be transferred over and that was cost-neutral, that was what should be done. I point out again that, this having been addressed for military inquests, there have been the kind of improvements that noble Lords wish to see.
To ask Her Majesty’s Government whether they will suspend consideration of News Corporation’s bid for BSkyB until the conclusion of the police investigation into the involvement of News of the World journalists and those currently in positions of authority in News International in phone hacking.
My Lords, on 25 January the Culture Secretary said that he was minded to refer News Corporation’s proposed merger with BSkyB to the Competition Commission in the absence of any specific undertakings in lieu. News Corporation duly offered undertakings, on which the Culture Secretary has consulted. Yesterday, News Corporation withdrew these undertakings. The Secretary of State has therefore decided to refer the proposed merger to the Competition Commission. The commission can take up to eight months to report back.
My Lords, I thank the noble Baroness for that response, and should say that I have given her specific prior notice of my supplementary question, which is as follows. Every day we have fresh revelations of the appalling behaviour of News International, and today was no exception. The real question that the British public want to ask, and the question that I want to put specifically to the Minister, is: how and by whom will the test of whether News Corporation is a fit and proper company to own BSkyB be applied as part of the process of consideration of its bid?
My Lords, I am grateful to the noble Baroness for the prior notice of this question. She is absolutely right; it is important to realise that the fit and proper person test is not triggered simply by the proposed merger. Ofcom has an ongoing statutory duty to make certain that the holders of broadcasting licences are and remain fit and proper persons. This is a matter for Ofcom, which is taking its responsibility in this area very seriously and is already in touch with the relevant authorities. The Government have no role in its decisions. No doubt the Competition Commission will also want to consider whether Ofcom’s investigations raise any further points relevant to its assessment of the effect of the merger on plurality.
My Lords, are the Government entirely satisfied that their hands are now tied to the issue of media plurality, despite News Corporation’s failure to disclose its own nefarious activities? If so, does Section 67 of the Enterprise Act need urgent amendment? Might a way forward be to encourage Ofcom—there is no reason why it should not be so encouraged—to consider the fair and proper person test for continuing to hold a broadcasting licence under the Broadcasting Act 1990 as soon as the current investigations are sufficiently complete for it to form a view, and to delay a final decision on the acquisition until then?
My Lords, my noble friend makes some important points. I am sure that the Government will look at several amendments. The Secretary of State has returned this matter to the Competition Commission, and the review can take between 24 and 32 weeks, depending on the complexity of the case. The Competition Commission, confusingly for some, does not deal with actual competition. The European Union decided on 21 December 2010 that there was no competition problem. The Competition Commission’s decision, as my noble friend Lord Marks rightly says, will be based purely on plurality.
I am still puzzled by the timing of yesterday’s Statement. Were the undertakings offered by News International ever accepted by the Office of Fair Trading? If not, what was there to stop the Secretary of State at any time since 25 January referring the matter to the commission? Why did he wait until after the undertakings had been withdrawn to do so?
Because there were so many letters to him, the Secretary of State extended the period of consultation until Friday 8 March. He will be looking at all the answers. He is still looking at the answers. There will be quite a long delay. He does not know how long, but he does not want to be pushed into any quick decision because this is a very serious matter which everyone is quite rightly upset about.
My Lords, there seems to be a difficulty in this matter, because if the Competition Commission has to report within this relatively short time span, the prospect of the police investigation being finished in that time is zero, especially if we are to reach the conclusion of whatever prosecutions take place. Indeed, the judicial inquiry cannot do its work until after that process is completed, so it would be difficult for the inquiry by the Competition Commission to reach a balanced and wise conclusion because so much of the matter has to run on beyond that time. How will Ofcom take a view until the judicial matters are completed?
My Lords, the right reverend Prelate makes an extremely good point. At the moment there are six inquiries, including a police investigation and several others on which it is not possible to comment, that of the Home Affairs Select Committee and the two inquiries that the Prime Minister has announced. All those will have to be gone through. There is a timescale. As I said, the Competition Commission review will take between 24 and 32 weeks. Ofcom will then take a decision and make a recommendation to the Secretary of State, who will make the final decision.
Arrangement of Business
My Lords, our first business today is the Second Reading of a fast-track Bill, the Police (Detention and Bail) Bill. I understand that none of those down to speak at Second Reading propose to table amendments to the Bill. With the agreement of each of those speaking and with the agreement of the usual channels, I therefore propose that the remaining stages of the Bill be taken formally immediately after Second Reading, unless any noble Lord objects now or during the Second Reading debate. We will therefore proceed with the Second Reading and the remaining stages of the Police (Detention and Bail) Bill, followed by a further day in Committee of the whole House on the Localism Bill. As we have seen from the Annunciators, at a convenient point after 5.30 pm, my noble friend Lord Howe will repeat as a Statement an Urgent Question from the other place on the future of Southern Cross care homes. That will be followed immediately by my noble friend Lord Marland repeating a Statement on electricity market reform. We will end the day, I hope, with the notification of Royal Assent on the Police (Detention and Bail) Bill.
My Lords, since I have made a business statement, the noble Lord, Lord Campbell-Savours, is of course in order to ask a question on a different matter. I assure him that productive discussions are going ahead within the usual channels on just that matter.
Police (Detention and Bail) Bill
My Lords, I am sure noble Lords are aware of the circumstances in which this Bill comes to us from the other place. However, I will summarise the position in an effort to assist the House in its unavoidably brief examination of the Bill.
Since the Police and Criminal Evidence Act 1984, known almost universally as PACE, came into force in January 1986, it has placed an upper limit of 96 hours on the period of pre-charge detention for a person arrested on suspicion of having committed a non-terrorist offence, provided that detention past 36 hours is authorised by a magistrates’ court. That period of detention could be interrupted by one or more periods of bail, and detention time would run up to the time limit only when the person was in police detention; the clock would be paused during any period or periods of bail.
That understanding of the limits on detention was shattered last month when the High Court, sitting in Manchester, issued its written judgment in the Hookway case. The court held that, as a matter of statutory construction, the maximum period of 96 hours runs from the time that a person’s detention is first authorised and is not paused by a person’s release on bail. Once the police service had the opportunity to consider that judgment, alongside advice from some of the most eminent members of the Bar, it advised my right honourable friend the Home Secretary that the judgment posed major operational difficulties for it and that the judgment needed to be reversed at the first available opportunity.
Let me make it clear to the House that we had to wait until we had the written judgment, so that we could understand its scope, and had also tested with ACPO whether it could continue to protect the public, including victims and witnesses, within the detention and bail framework as redefined by the ruling. ACPO’s very clear advice on 30 June was that any mitigating action it might take could endure only in the short term. That is why my right honourable friend the Minister for Policing and Criminal Justice made an Oral Statement in the other place that very same day, setting out the issue and promising urgent legislation to give certainty to all those involved in the process of pre-charge detention and bail.
That urgent legislation is of course the Bill before us today.
My Lords, there have certainly been exchanges of correspondence with the Law Society. I am not sure whether that included the Bar Council, but the Law Society is certainly aware and has exchanged correspondence.
The Bill has only two clauses and a single effect: to return the law to where it was commonly understood to have been for the previous 25 years. I cannot emphasise strongly enough that all we are doing here is restoring the status quo ante. The Government are quite clear that the Bill in no way widens police powers. So that there is no doubt, it may assist the House if I say a little more about Clause 1, which contains the substantive provisions.
Subsection (1) of Clause 1 has the effect of making clear that all time limits and time periods in Part 4 of PACE are to be read as including time actually spent in detention and excluding time spent on bail. Those limits and periods include initial time limits under Section 41 of PACE, superintendents’ extensions under Section 42 and warrants of further detention under Sections 43 and 44.
Subsection (2) of Clause 1 amends Section 34(7) of PACE. That section provides that when a person returns to detention from bail, whether that return is previously arranged or is as a result of being arrested for breaching bail, the person is to be treated as having been arrested for the original offence and the remaining detention period will have deducted from it the time previously spent in detention. The amendment in subsection (2) makes clear that those calculations also exclude the time spent on bail.
Subsection (3) of Clause 1, as part of the Government’s wish to return the law to its previous position, gives the Bill retrospective effect. I realise that that may be a matter of concern to some of your Lordships as a matter of principle—I will come on to that. As your Lordships will have seen from the Explanatory Notes that accompany the Bill, the Government have considered very carefully the issue of retrospective effect. We have come to the firm conclusion that, if the Bill is to fulfil its objective of returning the law to the position that was commonly understood before the judgment of the High Court in Hookway, it must be expressed as always having had effect. That is because, as the many lawyers in your Lordships’ House will be aware, the Hookway judgment also had retrospective effect. If the Bill were not to apply to the past as well as the future, there would be very real questions as to the legality of many past detentions, both before and since the Hookway judgment.
My Lords, I wonder whether the noble Minister would help me. She says that we would be going back to detentions in the past, but she referred earlier to restoring the status quo. Well, the status quo of Mr Justice McCombe is right: it was an illegal situation, where people were detained illegally.
I can understand why my noble friend makes that point, but the purpose of this Bill is to restore the legislation that comes out of PACE to the understanding that has been exercised for the last 25 years as to the conditions that apply to detention and bail. My point about the need for the Bill to be retrospective is that we are seeking not to add new elements to the Bill but to restore what we believe was Parliament’s intention in passing it, and what certainly has been the understanding for the past 25 years of those who have been engaged in the legal processes from all sides, both lawyers and the police. I would therefore say to my noble friend that, if we were not to make this retrospective, there could be many thousands of claims for unlawful detention, and a similarly large number of claims that evidence gathered after 96 hours had elapsed was no longer admissible. That would be a thoroughly unsatisfactory state of affairs, which could tie up the courts and the police service for thousands of hours.
I would also point to the conclusions of Liberty on this issue, in paragraph 8 of a widely circulated briefing that it prepared on the Bill. Liberty commented:
“We do not believe that the proposals are retrospective in their nature as they do not seek retrospectively to create a criminal offence, sanction or other burden. They would not in our view … fall foul of Article 7 of the European Convention on Human Rights or the common law rule against retrospective penalties”.
I am also aware that the Constitution Committee of your Lordships’ House has commented that it is,
“concerned that asking Parliament to legislate in these highly unusual circumstances raises difficult issues of constitutional principle as regards both the separation of powers and the rule of law”.
While the Government are always attentive to the observations of the Committee, as I indicated in a letter to the Committee yesterday we do not see that the decision to legislate in advance of the outcome of the appeal to the Supreme Court raises any constitutional issues. The sovereignty of Parliament means that it is entirely open to Parliament to legislate at any time in response to a judgment of the superior courts.
I am also aware that, since the Hookway judgment, there has been some commentary from within the legal community—particularly from those acting on behalf of those suspected of an offence—which has sought to express concerns that the Hookway judgment is some sort of warning to the police that the courts will not put up with the way that they use pre-charge bail. We will take account of the wider issues of the way the police use bail, but in this particular case, nothing in the terms of the written judgment indicates that Mr Justice McCombe had any underlying concerns in relation to the operation of police bail; he seems to have reached his judgment purely on the basis of his interpretation of the statute.
Following a lot of discussion and some correspondence —indeed, I have had discussions with noble Lords in the House—I am aware of the concerns that have been expressed, including by Liberty, Justice, the Law Society and others, about excessive duration of police bail in some cases and about unduly onerous conditions attached to the bail. As my right honourable friend the Minister for Policing and Justice indicated in the other place, we are not able in this Bill to deal with any wider issues about the Police and Criminal Evidence Act. Moreover, it would be wrong to make changes to police bail in haste and without proper examination of the issues and consultation with the police, the Crown Prosecution Service, the legal profession and others. However, we will reflect carefully on the debates on the Bill, both in this House and in the other place. In relation to these concerns, it is our intention in autumn this year to consult on matters relating to bail more generally and to the conditions that apply to them.
I also point out, for those who may be concerned about this point, that anyone who is on pre-charge bail can challenge the conditions of their bail in their local magistrates' court. That is an important safeguard against any perceived abuse by the police of their powers to bail those under investigation.
I hope the House will be reassured that we are most certainly listening to people and intend to consult on those wider issues that have come to the forefront as a result of the legislation before us, but the urgent nature of this fast-track legislation means that there will be limited time today for debate on those wider issues. We will of course consider any observations that noble Lords make in that area in the course of our deliberations today and will come back to those at another time. The issue before us today is to correct the situation and restore to the police the powers required to protect the public properly. The Government believe that the Bill does that and no more. The other place agreed unanimously to the Bill when it considered it last Thursday. I beg to move.
My Lords, we on this side of the House support the legislation, which is needed to overturn the High Court ruling in the circumstances described by the noble Baroness. It is clear that the judgment causes serious problems for policing operations, for ongoing investigations, potentially for the delivery of justice and, most seriously of all, for the protection of victims and witnesses.
As the noble Baroness so lucidly explained, it had previously been assumed that releasing a suspect on bail effectively paused the detention clock. It was thought that the clock could then be restarted when the suspect answered police bail and was redetained, even if that point was later than 96 hours after the relevant time. The recent High Court ruling is that that is not the case under the precise wording of the Police and Criminal Evidence Act 1984. Instead, the maximum 96-hour period specified in that Act runs immediately from the relevant time and cannot, as has been common police practice, be suspended by releasing a suspect on bail and be restarted later beyond the 96 hours by redetaining the suspect. The detention clock continues to run even while the suspect is on bail.
Understandably, Parliament has always been concerned to ensure that emergency legislation should be brought only on the basis of very serious considerations, and is never to be done lightly but with a clear understanding of the risks involved. However, Parliament needs to balance that with the risk to the public and to justice if we do not legislate immediately. The situation apparently means that the police are unable to recall people from police bail if they have been bailed for more than four days unless the police have new evidence that allows them to rearrest. The situation also raises serious issues about the application of bail conditions, particularly in domestic violence cases, as those conditions can include important protection for the victim. Such conditions could include someone being prohibited from going to his ex-wife's workplace, the family home or the children's school. Some bail conditions are an extremely important part of protecting the safety of victims and witnesses; and if they cannot be enforced, protection is clearly at risk.
We therefore support rapid action but, unfortunately, rapid action has not entirely characterised the response of the Home Secretary. I noticed that, in her introductory remarks, the noble Baroness emphasised the written judgment. She will know that the oral judgment was given on 19 May and her officials were informed soon after that—certainly before the end of May. The Home Secretary has said that she had to wait for the written judgment, but that has not meant that the Home Office had to suspend any action and judgment of what advice should be given to Ministers until the written judgment was received.
It is now seven weeks from the original judgment, three weeks since the written judgment was put in place, and two weeks, apparently, since Ministers were informed. The gap alone between Home Office officials being informed of the written judgment, the written judgment being published and Ministers being told has put Ministers in a difficult position. Our first concern is about the initial delay before the Home Office received the written judgment. More work should have been done between the oral judgment and the written judgment, and once the written judgment arrived, advice should have been given very quickly to the Home Secretary and the Minister for Policing and Criminal Justice about the risks in this case.
My Lords, that is a very telling intervention from my noble friend. Surely that is the case. All I would say to the Minister is that I hope lessons will be learned from this matter.
Changing the law retrospectively is in general undesirable and creates great uncertainty. It threatens natural justice if people end up breaking up a law they did not know existed. In this case, my understanding is that the Government are seeking simply to restore the law to what we in Parliament thought it was, to what it had been intended by Parliament at the time to be and to what the police, the CPS and others have followed in good faith for many years.
I noted the intervention of the noble Lord, Lord Thomas of Gresford. Like the Minister, I also noted the comments of Liberty, which are worth emphasising. Liberty does not believe that the Government are seeking retrospectively to create a criminal offence, sanction or other burden, so it would not fall foul of Article 7 of the European Convention on Human Rights.
Is the noble Lord saying that he can envisage what Parliament meant many years ago, when a High Court judge has determined through the language used what was meant? If anybody disagrees with his interpretation, surely the appeal for which leave has been given should be pursued.
My Lords, of course we shall have to see the outcome of the appeal. I do not know whether the noble Lord has read Michael Zander’s piece on this, which refers back to the debates in Parliament 25 years ago. From my reading of the amendment moved by Clare Short for the Labour Opposition at the time and of the response given by the then Home Secretary—the noble Lord, Lord Hurd—it is apparent that Parliament’s view was pretty clear. In that case, I must endorse the interpretation given by the Minister.
The case for rapid action is clear and that is why we are not proposing amendments today. Equally, the case has raised some important points, both of principle and of detail, which I would be grateful if the noble Baroness would respond to. Some of the commentary since this case came to light has expressed concerns about the possibility of the use of endless police bail. There appear to be cases where people have been left on police bail, including with conditions, long after another suspect has confessed to the offence, or where investigations have run dry but action was not taken to end the bail arrangements. I welcome the Minister’s offer of an opportunity for a wider debate about the appropriateness and proportionality of different lengths of police bail and what safeguards are required.
There are also issues around the fact that the original 1984 legislation has been amended many times. It would be helpful if the Minister could say in the review whether she intends to look at the legislative context in which police bail is enacted, and whether she thinks that it might warrant a review of legislation as well as practice in the fullness of time.
It is also noticeable that in some of the comments that have been made, including those from Liberty, a proposal has been made that Parliament should consider a statutory time limit to restrict the total duration of police bail to no more than six months. I would be grateful if the noble Baroness would say whether that is also a matter that will be considered in the welcome review that she has announced this afternoon.
We have also benefited from the advice of your Lordships’ Select Committee on the Constitution, which drew to the attention of the House one feature of the Bill which the Select Committee felt touches on an issue of constitutional principle. Essentially, the High Court judgment that the Bill seeks to reverse is itself under appeal to the Supreme Court. The noble Lord, Lord Thomas of Gresford, referred to that point. The Select Committee says:
“We are concerned that asking Parliament to legislate in these highly unusual circumstances raises difficult issues of constitutional principle as regards both the separation of powers and the rule of law. We have noted the constitutionally important distinction between legislative and adjudicative functions before. We are concerned that, in the understandable rush to rectify a problem which the police have identified as being serious and urgent, insufficient time has been allowed for Parliament fully to consider the constitutional implications of what it is being asked to do”.
I know that the noble Baroness has responded very rapidly—and it is very welcome that she has done so—by saying that the Government see no constitutional impropriety in the present decision to legislate in advance of the outcome of the appeal to the Supreme Court. She went on to say that it is common ground that the sovereignty of Parliament means that it is competent to legislate at any time, in response to a judgment of a court. I do not disagree with her assessment of that matter, but it seems to me that the Select Committee has raised a number of very important points, which would warrant also being considered within the review that the noble Baroness has promised to undertake.
In supporting this Bill and the actions that she has announced today, I would ask that there be an element of public involvement and input into the review that she has announced. I would also suggest to her, through the usual channels, that it would be opportune if, perhaps in the autumn, we could have an opportunity to debate these matters in this House, possibly as part of an input into the review that she has promised.
My Lords, I do not want to detain the House by repeating in detail what has already been said. There was a slightly longer speakers list earlier, and it made me wonder how many Silks it took to give a Bill a Second Reading. It also made me note that perhaps as instructing solicitor I should be saying to some of my noble friends that I was briefing them to be as succinct as I know they can be, but in making that suggestion I do not want to pick on my noble friend who is left on the speakers list. It has been agreed that we will dispense with further steps and take them formally, so there will be no refreshers.
I thank the Minister also for her introduction, and I particularly welcome the prospect of consultation. I entirely agree with her that it would not be appropriate to proceed on a wider basis at this stage without a written judgment as distinct from notes taken by people other than the judge, so I welcome this way of going about matters.
I do not think that bail conditions and maximum periods are appropriate in emergency legislation. There are real issues here, but they are difficult and warrant a more measured approach. My initial instinct was that there might be a sunset clause, but again I do not think it would be appropriate for what, in non-technical language, is not a new issue. I hope that the timing of the consultation and wider debate, as the noble Lord has just suggested, will be such that if legislation is necessary—we cannot prejudge that without having the consultation—it might be able to piggyback on other Bills now before your Lordships. We know of the problems in bringing forward fresh legislation.
I am grateful to the Minister and her officials for the time spent briefing noble Lords before today’s debate. I understand that if it is not possible to reach the point of making a charge or deciding not to charge within 96 consecutive hours, the police are trying to look at what is new evidence. I am not making any allegations, but it is clear to me that this could well be open to abuse, so again on that basis I welcome the Bill. My noble friend has picked up the use of “status quo” and I have made a note to say that it is not the status quo; it is what everybody thought was the status quo. My A-level Latin many years ago is not adequate to put the whole lot in Latin, but I do not think the use of “status quo” is quite right. Similarly, on terminology, this Bill is not so much akin to retrospection as akin to rectification, and I support it.
My Lords, when the three political parties, Justice, Liberty and, of course, the House of Commons all agree that this Bill deserves support, I am not going to express a dissenting opinion. But I am going to express concerns about the constitutional issues raised by the way in which the Government have proceeded. Parliament is being asked to enact emergency legislation to overturn a decision of the High Court. High Court judges, no doubt regrettably, occasionally make decisions that are perceived to be of enormous detriment to the public interest. But in all previous cases where this happened, an appeal was brought in the hope and expectation that the Appellate Committee of your Lordships’ House, now the Supreme Court, would overturn the High Court judgment, and only if that legal remedy failed was emergency legislation brought forward.
There are good reasons why emergency legislation is contemplated only if the appeal process has been exhausted. First, if the appeal succeeds, the problem disappears and Parliament does not need to become involved. Secondly, if the appeal fails, the judgment of the Supreme Court provides a much more informed basis on which Ministers and Parliament can address all aspects of the issue. Thirdly, and not least, surely constitutional propriety requires that the law should be interpreted by judges, not by Parliament. I understand that to be the point of the interventions made by the noble Lord, Lord Thomas of Gresford. It is all very well to have Members of the House confidently asserting, as they did last week, that Mr Justice McCombe’s judgment was wrong and that the Bill merely returns the legal position to what it was. It is all very well to have the noble Baroness stating today that the Bill returns the law, as she put it, to the status quo ante, but I subscribe to the apparently old fashioned view that it is for the Supreme Court to determine what was the legal status quo. Indeed, this case is even more surprising, because we are engaged in this exercise notwithstanding the fact that there is an appeal; it is pending in the Supreme Court, listed to be heard on 25 July. I shall come back to the timetable in just a moment.
The Minister said this afternoon that the decision to legislate in advance of the outcome of that appeal raises no constitutional issue, because Parliament, of course, is sovereign and competent to legislate at any time. She made the same point in her very speedy response to the report of the Constitution Committee, of which I am a member. I am sure that all members of that committee will be extremely grateful to the Minister for the urgency and speed with which she addressed the issues that we raised; but is it really the Government’s position that no constitutional issue about the respective roles of the judiciary and Parliament is raised when emergency legislation is introduced to overturn a decision of a lower court which is pending appeal to the Supreme Court and when the emergency legislation is being brought forward on the basis that it simply restores the previous position, which has therefore, it is implicitly suggested, been misunderstood by the High Court judge?
Of course, I understand that we cannot now wait for 25 July, because the Supreme Court may, on 25 July or very soon thereafter, dismiss the appeal and by then Parliament will be in recess, but that does not remove my concern about what has happened in this case. The vice is that nobody asked the Supreme Court to hear and determine the appeal more speedily. Appeal courts regularly hear and determine appeals very speedily indeed when it is necessary to do so. The timetable in this case is as follows: Mr Justice McCombe gave his oral judgment as long ago as 19 May. He refused permission to appeal on 25 May and on the same day he certified a point of law which enabled an application to be made to the Supreme Court for leave to appeal. That is seven weeks ago. It was not until 21 June that an application was made to the Supreme Court by the Greater Manchester Police for permission to appeal. For reasons which I still do not understand, the Government appear to have been unaware of the crucial significance of this case until about 30 June, even though Professor Michael Zander published an article pointing out the concerns on 18 June—he must have been aware of the problem some days before that.
The Supreme Court granted permission to appeal and expedited the case so that it will be heard on 25 July, but I have made inquiries of the Supreme Court and been told that neither the Greater Manchester Police nor anyone else asked the Supreme Court to hear the appeal earlier than 25 July because of the urgency and the need for Parliament to consider emergency legislation if the appeal was not to be heard earlier than 25 July. I am also told by the Supreme Court that, if it had been asked, it would of course have considered trying to hear the case more speedily because of the need to do so. That is what should have happened in this case. As soon as the importance of the issues was understood and the possible need for emergency legislation was recognised, an application should have been made to the Supreme Court for it to hear the case last week or at the beginning of this week on the grounds that, if the appeal failed, then and only then would the Government need, or possibly need, to bring before Parliament emergency legislation. There would then have been time to consider the matter before the Summer Recess and after the appeal if it were unsuccessful.
As noble Lords will know, the Attorney-General may intervene in any court proceedings to protect the public interest. The Secretary of State does not appear to have asked the Attorney-General to apply to the Supreme Court to hear the case more urgently. If such a request was made, it certainly was not acted upon. I should emphasise that, although the Supreme Court has very helpfully given me the information that I have recounted to noble Lords—I am very grateful to Jenny Rowe, the chief executive, for that—the views that I express on these matters are mine alone.
My concern is that this Bill is a most unfortunate constitutional anomaly. Parliament should not normally be asked to consider emergency legislation to overturn a High Court judgment when there is a pending appeal on the very issue which is before the highest court in the land. That should not happen unless every effort has been made to persuade the Supreme Court to hear an even more urgent appeal.
There is simply no precedent that I am aware of, and understandably so, for what we are doing today—reversing a judgment of the High Court with retrospective effect on the basis that we are satisfied that we are restoring a status quo, even though a Supreme Court hearing is pending and no application has been made for it to hear the matter more speedily.
I have four questions for the Minister. First, is she aware of any previous occasion when emergency legislation has been brought forward to repeal the effect of a High Court decision without first appealing to the Appellate Committee, now the Supreme Court, and asking that court to hear the matter with considerable expedition? Secondly, can she explain why, before coming to Parliament, the Secretary of State apparently did not ask the Attorney-General to apply to the Supreme Court to hear this appeal with considerable expedition so that it could it take place early in July and so that, if it were dismissed, we would still have time if necessary to consider emergency legislation? Thirdly, what steps has the Secretary of State now taken to ensure that all police authorities—indeed, all other public authorities—know that if the High Court gives a judgment on a matter of public interest which causes general concern it is vital that it is communicated to central government without delay so that steps can urgently be taken, if appropriate, to ensure that an appeal is heard with great expedition? I ask that question—I do not attribute blame—because there appears to have been considerable delays in this case in communicating concerns from Greater Manchester through to Whitehall.
My fourth and final question is this: what is going to happen if the Supreme Court hears this appeal on 25 July and if the appeal succeeds? Will the Government then bring forward in the autumn a short Bill—even shorter than this one—to repeal this emergency legislation as entirely unnecessary and to remove from the statute book a most unfortunate constitutional anomaly?
My Lords, it is a great pleasure to follow the noble Lord, Lord Pannick, and I agree with everything he said. It may be that the answer to his final question is that Royal Assent should not be given to this Bill until we have the judgment of the Supreme Court, and then there could be no necessity for it to be repealed.
When the noble Lord was speaking I was reminded of the story of the acorn falling on the head of Chicken Licken, who informed Henny Penny, Goosey Lucy, Turkey Lurkey and others that the sky was falling in. Finally, they all told Foxy Loxy, who listened to their panic-stricken warnings and then ate the lot of them. Much emergency legislation is introduced like the fabled acorn. The Hookway case merely declared that the relevant legislation did not allow the police to save up unexpired periods of authorised detention and to use them to detain and question suspects pre-charge at any date in the future—and this is the important point—even though no fresh evidence had been obtained.
If this is what Parliament meant in passing the legislation, as Mr Justice McCombe has held in his complex judgment, which required to be in writing before it could be properly addressed, then it seems to me as a matter of policy a highly desirable result. If the police and the CPS advising the police do not consider that there is sufficient evidence to charge a person today, why should they be allowed to detain and question the suspect in six months’ time, he having been on police bail, on exactly the same evidence? It is lazy policing. Of course, if there is fresh evidence as a result of a more vigorous or deeper investigation—a matter of some topical relevance today—that is a different matter. In such a case, if there is fresh evidence, a power of arrest would arise and a person could be detained and questioned in relation to the whole case, including the fresh evidence.
The problem that arises in this case is that a suspect can be detained again at a later date—six months, or even more, later—and questioned when no further investigation has taken place. He is simply being questioned on what was in the past. If Mr Justice McCombe’s interpretation of the statutory provisions of what Parliament meant—which is what his judgment is and not what the noble Lord, Lord Hunt, thinks from reading an article in a magazine—is correct, then Manchester Police should continue with its appeal, for which, as your Lordships have learnt, it has obtained leave through a certificate that it is a matter of public importance.
The noble Lord, Lord Hunt, did not continue entirely with the Constitution Committee’s point, which the noble Lord, Lord Pannick, has also made, that Parliament would then have the benefit of a considered judgment from the Supreme Court to assist its deliberations if the appeal were allowed to go ahead. We would then know what the Supreme Court thinks about Mr Justice McCombe’s interpretation.
This simple Bill ensures that lazy and possibly oppressive policing can continue but it raises a much more important question: has the practice of indefinitely extending police bail become a genuine abuse? There is no statutory limit when a person is given bail pre-charge and invited to come back at a later date. In Committee on the Criminal Justice Bill of 2003, my noble friend Lord Dholakia moved an amendment to insert a provision that police bail should not extend more than 28 days, as had been recommended at that time by the Home Affairs Select Committee. He said that his amendment would limit the pre-charge period and that:
“The CPS will of course progress the case as fast as possible. However, we have concerns about the unlimited bail periods. Set deadlines go some way to ensure that matters are reviewed and less likely to drag on unnecessarily”.
The then Attorney-General, the noble and learned Lord, Lord Goldsmith, responded that pilots that had been carried out suggested,
“that in most cases a five-week period should be sufficient to enable charges to be brought”.—[Official Report, 14/7/03; col. 683-84.]
He thought extending police bail for about five weeks was appropriate. Consequently, on 29 October 2003, I moved an amendment on Report for a limit of 35 days —five times seven, taking the Attorney-General at his word. He said in response that he did not wish to have a statutory limit but that it would be better for guidance and instructions to be issued by the Director of Public Prosecutions and the Association of Chief Police Officers. Were such guidelines ever issued?
I am indebted to Mr Roger Windsor who has pursued this topic with freedom of information inquiries which reveal that in 2008, in three police areas alone out of 43—West Mercia, Sussex and Surrey—358 individuals spent more than nine months on police bail to which conditions were attached. I have supplied his findings to the Minister. I am also indebted to Mr Csoka QC of Lincoln Chambers in Manchester and Mr Joseph Kotrie-Monson for their views, which I have similarly passed on.
Not only are there no time limits in relation to how long the police can keep a suspect on police bail when no new evidence has emerged but there is no mechanism whereby the degree to which the police are acting with due expedition—or, worse, with bad faith—can be independently scrutinised. One wonders whether the cuts in funding for the police and CPS could be translated into restrictions on the liberty of those who have not been charged with any offence. The conditions that can be imposed on those bailed can include reporting, curfews, travel and residency restrictions. It is my own personal experience and that of others that conditional bail can last for months or even years with no sign of any activity by the police or the CPS. In other words, people can be given bail at the police station and are welcome to walk out of there subject to the restrictions but those can continue indefinitely without any possibility of seeing whether the police are carrying out their functions expeditiously.
When the Police and Criminal Evidence Act was enacted the police could bail only without conditions—there was merely a requirement to surrender on a future date. In 1995, after 10 years of PACE, the police were given the power to impose conditions. The use of those powers has now reached epidemic proportions. It is the experience of defence lawyers that conditional bail is used punitively against suspects who the police believe are criminals but against whom there is no or no sufficient evidence. The police can extrajudicially, by the grant of bail subject to conditions, curtail their liberty for an indefinite period. Additionally, those arrested for public order offences at political demonstrations are often bailed for inordinate periods with a condition; for example, not to enter Westminster or not to attend further demonstrations. Often no charges are ever brought. They have been subjected to a form of control order which is effectively outside the rule of law. This happened in 2009 with protesters planning a protest at the E.ON power station in Nottingham and the arrest, detention and bailing of protesters during the occupation of Fortnum & Mason on 26 March this year.
The simple solution is to bring in a legal framework which imposes time limits on pre-charge bail and gives a right to appeal. Defendants who are remanded in custody have the protection of custody time limits. Extensions of custody time limits—normally six months —can be granted only if there is a good and sufficient cause and the prosecution has acted with due expedition. It is a frequent case in court that the prosecution goes along and explains how its inquiries are going and why there has been a delay. There ought to be similar protection for those on police bail. Extensions of time could be granted by a district judge but only if the police show good and sufficient cause—that there are reasonable lines of inquiry which could not, with due expedition, have been completed within the initial time limits.
Such a system would protect not only the rights of a suspect but also the victim: a rape victim, for example, has the anxiety of waiting months to see whether a charge is to be brought. Time limits will prevent inefficiency, poor staffing or indecision from creating a culture of delay.
Unhappily, the acorn at the moment is too small and this Bill is too light to carry the burden of extensive amendments to deal with these problems. I am grateful to Mr Justice McCombe for leading Parliament to investigate this area and I am extremely grateful to the Minister for indicating that an urgent review will be carried out in the autumn into what is potentially a very considerable abuse of the system, which certainly Parliament never meant when it passed the legislation in 1985 or when it was considered at any later date.
My Lords, that was not the point I was making. The noble Lord asked me where I referred to the supposition in relation to putting it back to where Parliament thought it would be. I quoted from an article, which in turn quoted quite clearly from Hansard of the debates at the time. But that was not the point I was arguing.
I am grateful to the noble Lord for his explanation. I have made all the points that I wished to make. I look forward to the review. I look forward to participating in a parliamentary debate on that review and we can see whether this abuse, which I believe does exist, can be cured.
My Lords, I declare my usual registered interest as a former commissioner of police. I support this Bill for all the reasons that have been set out so comprehensively by the Minister. Since 1986 it has been widely recognised by the police, prosecutors, defence lawyers and the courts that time spent on bail does not count towards the maximum period of detention without charge.
The judgment on 19 May in the case of Greater Manchester Police and Paul Hookway has caused serious problems for police operations. More importantly, it has caused very serious problems for the protection of witnesses and victims because of the doubt cast over bail restrictions, particularly in cases of domestic violence, stabbing, and intimidation on estates and in inner cities. Real concerns are being played out hourly, every day since this decision was made.
The police service is trying to manage the investigation of more than 80,000 people who are currently on police bail. I spoke yesterday eveningto Assistant Commissioner Lynne Owens of the Metropolitan Police, who has been tasked with managing the challenge of the impact of the court decision until Parliament decides to deal with emergency legislation—or otherwise. I wanted to be convinced that this was not just an inconvenience for the police service or the creation of further difficulty. After my discussion with Assistant Commissioner Owens, I was convinced.
It is 44 years since I joined the police service. I can think of no other court decision of this nature that has placed in jeopardy the accepted police procedure for dealing with prisoners, and no case that has had the impact of the scale or magnitude of this case. In London alone, 14,000 people are on bail, including 170 people suspected of murder and other grave offences. Given the position that the service is in at the moment, all those cases are incredibly difficult to manage, and I fear that police officers in custody suites up and down the country are being forced to take decisions whereby they do things that either stretch the credulity of the law or detain suspects longer than really necessary, putting witnesses and victims in jeopardy.
I accept all the concerns that have been quite properly raised by all the noble Lords who have spoken today, including concerns about the constitutional impact of this sort of legislation; concerns from the noble Lord, Lord Thomas of Gresford, about the whole operation of bail and police use of it; concerns about the absence of a sunset clause; and concerns about the chronology of actions by the Government and the Home Office in response to this decision. However, we are where we are. The police service needs the certainty and immediacy of the restoration of the law to the accepted position prior to the court decision on 19 May. I believe that the Bill before your Lordships' House will do that and no more; it does not extend police powers in any way, nor does the police service seek any extension of powers.
I accept that there are many other issues relating to bail that need to be discussed and thought through in a measured way, but today is clearly not the day for that measured debate. I am pleased that the Minister has reassured your Lordships' House that that debate will take place, but for today I hope your Lordships will accept that the police service has been left in a parlous state because of this decision. I hope that your Lordships will accept the necessity for the legislation and will support it today.
I shall add a footnote primarily to the speech made by the noble Lord, Lord Thomas of Gresford, just to give an example of the problems that arise simply as a consequence of police bail without conditions. I know of a clergyman who was arrested and then bailed and told that the police would probably not get back to him for a year. In this particular case, the clergyman was retired. Because of the particular nature of the potential allegation, he clearly could not exercise a ministry in retirement. He was told that it would be most likely a year before the police came back to him at all. That could well have been a serving minister. In many situations, I would have no alternative but to suspend a person in those circumstances for what could be a very long period, so even in the case of police bail without conditions, there are potentially very serious consequences, and in our media-sensitive age these consequences tend to be magnified.
I hope the Minister will say a little more about the review that she has promised, and assure us that it will be published and accompanied by a full set of facts and figures showing how the use of police bail has changed in recent years so that we can see the trends in this area. That said, I of course understand the need for the legislation, notwithstanding the constitutional issues so clearly stated by the noble Lord, Lord Pannick. However, the wider issues surrounding police bail now need urgent attention.
My Lords, I apologise to the House for intervening at this stage, but I went to the Government Whips Office yesterday, and I thought that I had put my name down. It has disputed that, but the Government are very wisely allowing me to speak.
The noble Lord, Lord Pannick, has eloquently raised some pertinent issues underlying the matters that we have to consider today, and I hope the Minister will be able to reply to those points. The noble Lord argued effectively that the Supreme Court should have had an opportunity to consider these matters, and I was very surprised to hear that no one asked the Supreme Court to meet more speedily. I note that the noble Lord spoke without any intervention from the Minister. I presume, therefore, that what he said is borne out. I will listen with great patience to what the Minister has to say.
Despite the questions that have been raised, and despite my own criticisms of the Bill, I remain in support of the Bill’s intentions and urgency. As we have heard, the Bill aims to re-enact the law as we have almost unanimously thought it was; and I, as a lawyer, join that number. I am always somewhat suspicious of emergency legislation because I believe that it puts a particular duty on Parliament to scrutinise it and its future in practice with extreme care. Whether or not there is a sunset clause, which I would support, it is incumbent on us to examine the Bill, or the Act as it unfolds in future. I hope the Government will respond positively to the suggested early consideration of these legislative provisions. If, in the future, there is a clear need for emergency legislation, does the Minister agree that the relevant departments—in this case, the Home Office, Ministers and civil servants—need to anticipate the problems and how they are going to react to them somewhat more effectively and speedily than has been illustrated here?
Mr Gareth Johnson, a Conservative in the other place, made a significant point about bail and the attitude adopted by the police, about which there is still a significant question mark. He argued that the police should not view the Bill as a green light to keep suspects on bail for an inordinate period before any decision on charging is made. I hope that the Minister can assure the House about this point, since the Law Society has also drawn attention to this matter. Whether or not we have a sunset clause, it is incumbent on us to examine this Bill with care. I hope that the Minister—who is in no way to blame for this parlous situation—will be able to reply to these points.
I refer to another important issue. In my view, it is essential with questions of this nature that the Bar Council and the Law Society are consulted forthwith. That has not happened here. Why not? Do the Government intend to consult them now? More importantly, is the Minister able to say that in future, if a situation of this kind arises, there is no doubt that they will be consulted immediately? It is not sufficient for there to be a mere exchange of correspondence; that is no answer to the major point that I raise.
My Lords, I support the Bill. I had not expected to be able to attend your Lordships’ House today but my diary changed, and I am grateful to the House for allowing me to speak in the gap. I shall be brief.
I, too, declare an interest in that I served in a senior rank in the police service in England for many years. The noble Lords, Lord Pannick and Lord Thomas of Gresford, kicked the Minister’s shins fairly resoundingly with regard to timing and wasting time. I think that we are all concerned about that point. The noble Lord, Lord Thomas, went on to lay it on pretty thick, if I may say so, regarding what he termed lazy and oppressive police conduct in setting bail. I will come back to that in a moment. I would hope that what he outlined is the exception rather than the rule, but I am concerned on those points.
The real point of the debate today is that we are where we are and the police have a substantial problem, as my noble friend Lord Condon has outlined. The provisions of PACE, as they were understood, are still being exercised on hundreds of occasions every single day. They are part of the necessary working practice of any charge room, sometimes called a “charge suite”. Without certainty in this area, that part of the work of the police will grind very slowly—perhaps even to a complete stop.
I am not particularly concerned about retrospection in this extant case. We are trying to put the legislation back to what was generally assumed, rather than bringing in a new set of circumstances that would then impede someone ab initio.
I am concerned that the Minister has, rightly, found it necessary to talk about the review that will look at excessive and onerous conditions of bail that are being set and have been set in the past—a point made by the noble Lord, Lord Thomas—and overdue duration. That has caused me concern for some time, and the review is timely and important. I look forward to a debate, probably in the autumn or shortly after Christmas, on that very point.
On the point that we are considering today, which is putting the world back to what it was assumed to be prior to 19 May, the Bill has my full support.
My Lords, this has been an interesting and thoughtful debate, particularly for those of us who are not qualified lawyers. As the Minister has said, until the recent Hookway case it had been widely accepted, not least by the police and the courts, that, while there is a maximum time of 96 hours for which an individual could be detained without charge, time spent on bail did not count towards that maximum permitted period. That has now changed following a decision by a district judge on 5 April, and noble Lords already know the chronology of events since then.
The written judgment of the judge in the High Court was received on 17 June, and appears to have resulted in a shortage of people sharing the view in his oral judgment that the consequences of his ruling,
“are not as severe as might be feared in impeding police investigations in the vast majority of cases”.
The effect of this Bill is to restore the position to what it had been understood to be by all concerned in relation to bail not counting towards the maximum period of detention without charge, prior to the decision by the judge on 19 May. We support the Bill. We cannot await the Supreme Court hearing on 25 July before determining whether legislation is needed as potentially witnesses and victims of crime and not least victims of domestic violence are at risk of harm if the period of time for which suspects can be bailed without charge, with appropriate conditions attached on which action can be taken if they are breached, is now severely limited.
The statement by the noble Lord, Lord Pannick, that the Supreme Court was not asked to hear the case earlier than the 25 July is very interesting indeed. I know the courts can move rapidly. In the 1970s there was an instance of the Court of Appeal sitting on a Sunday, just two days after the decision by the National Industrial Relations Court which led to the appeal. It would not appear that there is quite the same sense of urgency in relation to this case, maybe because of insurmountable problems or maybe because the appropriate question was not asked, despite its potentially devastating and immediate implications.
The High Court has now said that an interpretation of an Act of Parliament that has been universally accepted and applied by all concerned for the last 25 years, including the courts, is incorrect and that, as a result, powers in relation to bail without charge beyond 96 hours are effectively withdrawn and, even more significantly, with almost immediate effect. The situation that has now arisen, as the noble Lord, Lord Condon, has stated, is causing serious problems for policing and for the conduct of investigations as well as the delivery of justice. It also puts at risk the well-being and safety of victims and witnesses.
If the courts have now decided to interpret a law differently from the way in which it has been interpreted for the past 25 years, there must surely be a less disruptive and potentially less dangerous way of effecting that change.
This brings me to the Government’s actions in this case. The original decision by the district judge was made in early April this year, over three months ago. The single judge in the High Court gave his oral ruling on 19 May, which upheld that of the district judge. Bearing in mind the potential significance of the High Court ruling, why was no application made for the hearing to be before three judges, as I understand could have been the case, rather than allowing the decision to be made by a single judge?
Clearly, at that hearing on 19 May this case was recognised to be of real significance. Counsel representing the appellants made it clear to the court that the consequences of Mr Justice McCombe’s decision would be profound and likely to have a negative impact upon the criminal justice process. Regrettably the learned judge does not appear to have accepted that view.
Can the Minister tell us when officials of the Home Office became aware of the substance of the learned judge’s oral judgment and what steps if any they took to prepare for or challenge the consequences of his judgment? The Minister has asserted today that nothing could be done before the receipt of the written judgment. Like my noble friend Lord Hunt of Kings Heath, I find that surprising. Surely, as an interested party it was incumbent upon the Home Office to consider the consequences of the judgment immediately—whether it might be appropriate for it or the Crown Prosecution Service to intervene, and to further consider whether to apply for a stay to the judge, or ask the Supreme Court to hear the case as a matter of urgency. There was a strong issue of public interest at stake and I ask the Minister if any attempt was made to invite the Attorney-General to intervene on behalf of the public interest. I hope the Minister will be able to address these points in her reply.
While I appreciate that the effect of this Bill is to restore the situation to what everyone thought it was prior to 19 May, and by making it retrospective ensure that potentially a large number of people were not able to make a claim for damages for detention on the basis that they had been treated contrary to the law in the light of the judge’s decision, there is now a need to review and consider again the provisions in respect of bail.
Claims have been made that people have been bailed for excessive periods of time without charge, since there is no time limit on how long people can be bailed in these circumstances. It has been suggested that the lack of a time limit is not an incentive for the police to be as expeditious as they might. Whether there is any substance to these points, I do not know. However, the whole question of bail now needs to be reviewed, including, presumably, in light of the Human Rights Act, which was not in play 25 years ago. I hope the Minister will confirm what she said in her opening speech—namely, that this is what the Government intend to do and, therefore, that the Bill we are considering today may well prove to have a sunset clause. Will the Minister confirm that, if needed following the review, new legislation will be brought forward?
It is important that certainty of the understanding of the law in respect of bail without charge for the 25 years prior to 19 May is restored as a first step. On this side we shall support the Bill and, with it, this fast-track legislation.
My Lords, this has been a constructive debate. I welcome the support for the Bill from the opposition Front Bench. I am particularly grateful to the noble Lord, Lord Hunt of Kings Heath, for his remarks in his opening speech. He raised some issues that I shall touch on since they were also picked up by other Members of your Lordships’ House.
I shall reiterate something about the scope of the review of bail. This was raised not only by the noble Lord, Lord Hunt, but by the noble Lords, Lord Thomas of Gresford, Lord Clinton-Davis and Lord Dear, and the right reverend Prelate the Bishop of Chester. When we look at pre-charge bail later this year, it will be to consider the issues raised today, including the overall time limit. However, we will need to ground that review in evidence. At the moment, much of what we have heard is anecdotal. Therefore, any and all input to that review in advance of its terms of reference being drawn up will be welcome. I can tell your Lordships’ House and the wider community today that, further to the point raised by the noble Lord, Lord Hunt, about members of the public, there is a wide community of interest in this whole area. We would welcome, even before the autumn, any written submissions that will help us to set the terms of reference for that review, which will be wide and far-reaching. I hope it is of help to the House to know that.
I was asked about what legislation might follow. I say to the noble Lord, Lord Rosser, that it is a bit premature for me to identify any legislation that may come from the review. There might well be something, but until we see the terms of reference, have gathered that information and can see how to take the matter forward, it would be premature for me to say today what legislation might be needed.
A lot has been said about the Home Office and timeframe involved by several noble Lords, including the noble Lords, Lord Hunt of Kings Heath and Lord Pannick. I hope the House will bear with me but it might be helpful, since a lot of attention has been paid to this, if I read out for the record of the House the situation as regards the timeline. To set that in context, the wider consequences of the ruling could not be considered until the judge issued his written ruling, setting out the reasons for his decision. That judgment was issued on Friday 17 June. Most importantly, even at that stage, its wider consequences were not readily apparent. The judge himself reiterated his belief that the consequences would not be as severe as might be feared in impeding police investigations in the vast majority of cases. It was only as the complex ruling was examined early the following week by ACPO, the CPS and Home Office officials that the full consequences became apparent. However, I will, for the record of the House, read out the points in this whole process and those at which the Home Office—both officials and Ministers—was involved.
Can the noble Baroness explain why the Home Office was unable to understand the implications and importance of this decision on 17 June, when Professor Michael Zander was able to publish an article on this subject on 18 June and must, therefore, have understood the implications some time before that?
If the noble Lord will bear with me, I shall begin at the beginning and work my way through the timeline. Because we have had such a short debate, it is very important to put this on the record so that noble Lords have the full information. I will read it slowly because a lot of dates are involved.
On 5 April 2011, the district judge refused the Greater Manchester Police’s application for an extension to a warrant of further detention in the Hookway case. On 19 May, in a judicial review, Mr Justice McCombe, sitting alone at the Divisional Court in Manchester, upheld the district judge’s ruling in an oral judgment. I should point out that he sat alone because an early hearing was requested, but only one judge was available to sit; so the request was made—a point referred to by the noble Lord, Lord Rosser. On 25 May, the Greater Manchester Police sought initial views from Ann Whyte QC, who stated that the judgment may relate only to specific cases or warrants of further detention. Yet again, the legal advice was that this might have quite a discrete interpretation in terms of its wider implementation. The following day, 26 May, the Greater Manchester Police invited Home Office officials to become an interested party in an effort to seek leave to appeal to the Supreme Court and forwarded papers for consideration. The written judgment was not of course available at that point—26 May.
As I am reading this, I realise that it is all right for me—I have a piece of paper in front of me. For the purposes of clarity, when I have read this into the record I will also place it in the Library of the House.
On 17 June, the Greater Manchester Police, as we have heard, received the written judgment from the High Court and forwarded a copy to the Home Office on that day. That was a Friday. On Monday 20 June, the Greater Manchester Police and Home Office officials studied the written judgment, and the broad scope of the problems presented by the judgment first started to become apparent. Until that point, there had been some consideration—not only because of the QC’s opinion but because of the wording of the judge in his oral judgment—that this matter was not going to be as far reaching as it has subsequently proved.
It was on 20 June that the GMP and Home Office officials started to consider the written judgment. The next day, 21 June, the GMP invited ACPO representatives and the Home Office officials to meet to discuss the implications. Home Office officials agreed with ACPO to convene an urgent meeting to discuss the implications, which took place the following day. ACPO, the CPS and the Home Office officials met at the CPS’s headquarters. The full magnitude of potential difficulties then became quite apparent. The following day—we are talking about one day following the other—ACPO alerted the CPS chief executive, and ACPO issued notification of judgment to all chief constables. On 24 June, the ACPO lead met with the CPS director-general, and Home Office Ministers were informed at that point. ACPO commissioned advice from Clare Montgomery QC, and ACPO issued interim guidance to all chief constables. That was a Friday.
The following Monday, 27 June, Clare Montgomery QC’s advice was received in conference by ACPO, the CPS and Home Office officials. ACPO issued further guidance to all chief constables. ACPO commissioned forces to provide real-life examples of the impact of the ruling to support the case for urgent legislation. On 29 June, ACPO commissioned further legal advice from Steven Kovats QC. The following day, ACPO received that advice from the barrister and presented its case for urgent legislation to Home Office Ministers. On the same day, the Minister for Policing and Criminal Justice made an Oral Statement to the House of Commons on the need for urgent legislation. To pray in aid the words of ACPO lead Jim Barker-McCardle:
“It was only when ACPO received the written judgment on 17 June, and a number of senior people were able to spend some significant time considering the issue, that the seriousness of this became apparent. As the ACPO lead on this issue, I was not going to advise Ministers that the police service needed, in exceptional circumstances, fast-track legislation until I had satisfied myself first that the legislation was necessary and that the police service could not operate effectively in light of this judgment, beyond the very short term”.
I hope that that is helpful to the House and I am sorry if it is lengthy and detailed.
My Lords, perhaps I may assist my noble friend a little further. Neither the district judge nor Mr Hookway was represented at the hearing before Mr Justice McCombe, and there was a single counsel appearing for the Manchester police. It was clearly very low-key at that point; the respondents to this application were not even there.
My Lords, I am grateful to my noble friend for adding that information.
I hope that I have been able to allay some fears that the timeframe needed was a result of the Home Office—or, for that matter, anyone else—being dilatory. Had the judge’s and the initial QC’s advice not both indicated that this was not likely to be as far reaching as it subsequently turned out to be, I might accept some of the criticisms. However, the Government have acted as quickly as possible in the circumstances.
I understand that the GMP did ask the Supreme Court for an early hearing. I gather that it was initially given a date in the autumn and, when pressed, the date was brought forward to July. I will soon come on to some of the points that were made by the noble Lord, Lord Pannick.
I hope that I have satisfied noble Lords about the timeframe and the Government’s intentions with the wider issues that have been spoken to by noble Lords, including particularly my noble friend Lord Thomas of Gresford and the noble Lord, Lord Clinton-Davis, about the need for consultation and a fresh look at bail and its conditions. I can assure the noble Lord, Lord Clinton-Davis, that the Law Society and the Bar Council will, of course, be invited to take part in the consultation. We will make sure that all partners in this matter are fully engaged in the consultation, because I know that they will have a lot to contribute to this.
I am also very grateful to my noble friend Lady Hamwee, who, as ever, brings a very measured response to these matters. We have also heard from the noble Lords, Lord Condon and Lord Dear, who have had many years of experience in policing in this country. I was rather struck by the fact that the noble Lord, Lord Condon, in pointing out the operational difficulties that the police currently have to manage, said that no other court decision has had the scale and magnitude regarding operational policing as the one that is before the House tonight. I say to the noble Lord, Lord Dear, that, again, one of the things that always strikes me, having come from another place to your Lordships’ House in the not too distant past, is that the first-hand experience that noble Lords contribute to these debates is what not only makes them of a very high quality but helps to inform the way in which we legislate and proceed in these very difficult matters.
When the Association of Chief Police Officers presented us with clear evidence of the adverse impact of this judgment on the ability of the police to investigate offences and protect the public by enforcing bail conditions, we had a duty to act as a Government, and I believe we have quickly done so. From the debate, it was evident that your Lordships accept the need for fast-tracking this legislation, for the most part. If anything, this is one of those occasions when, notwithstanding the issues that noble Lords have raised, the House has acted and come together to make some progress and help resolve a very urgent problem.
The House would rightly have been sceptical had we sought to introduce a fast-track Bill on the back of an oral judgment, given that the judge in the Hookway case said at the time that the consequences would not be,
“as severe as might be feared in impeding police investigations in the vast majority of cases”.
We now know that assessment of the operational ramifications of the judgment to be misconceived but, as I explained, that became apparent only after the written judgment on 17 June.
Professor Michael Zander QC has been cited around the House. I understand that Michael Zander is someone whom noble Lords feel confident in citing because of his reputation in the field. I do not want to let go the opportunity to cite him myself. He said:
“The Home Office has been criticized for being a bit slow off the mark. But measured from the date when it received the transcript of the judgment, it dealt with the problem in a little over three weeks—which, as these things go, is not bad going”.
We have all prayed in aid Professor Zander; he sounds a pretty good sort of chap to me. I have not met him, but his judgment is clearly respected on all sides of the House.
My Lords, I do not doubt that for one moment. I shall cite him as often as possible on behalf of the Home Office.
I turn to the noble Lord, Lord Pannick, who talked about there being no precedent for the fast-track legislation in front of us. There is a precedent for this. A High Court judgment in July 2002 in the case of Hwez and Khadir held that the practice of granting temporary release, subject to restrictions, to people detained under the Immigration Acts was unlawful. The Government legislated to overturn that judgment in Section 67 of the Nationality, Immigration and Asylum Act 2002. Subsection (3) provides:
“This section shall be treated as always having had effect”.
The purpose was to avoid a situation where people subject to immigration controls who do not have leave to remain but who cannot lawfully be detained were left at large without there being any way of keeping track of them. Retrospection avoided the need to reassess the cases of persons on temporary admission on an individual basis.
As a member of the Constitution Committee, the noble Lord, Lord Pannick, has raised issues that replicate some of those that the Constitution Committee raised. I notice that the Constitution Committee may return to the issue after the Bill is enacted and the Supreme Court has heard the appeal by Greater Manchester Police. We will, naturally, consider carefully any further report that comes forward from the committee.
The noble Lord also asked what steps are now taken to ensure that police and public authorities report judgments to central government as soon as possible. There is an assumption there that the Greater Manchester Police should have acted quicker in alerting the Home Office to that judgment. As I pointed out in explaining the timeframe, we were aware and officials were engaged, but under a set of circumstances that was perhaps not quite clear to the House under the legal advice at the time. I do not disagree with the principle of what the noble Lord said. Timeliness is very important; lessons can always be learnt. We need to look forward to see things coming over the hill and not just wait to see what happens, when it is too late. That is my understanding of his question. I hope that I have satisfied him by outlining the timeline, but the general principle of what he asked, which is about the timeliness of information-sharing between agencies and authorities, is important, especially in issues as serious as this. I take his point; I know that, in the Home Office, we will endeavour to ensure that it is not overlooked.
On the question of the Supreme Court, although Mr Justice McCombe gave his judgment orally in May and certified the point of law, it was not possible for police counsel to prepare the appeal papers until the written judgment available on 17 June. As I have explained, an early hearing was requested but 25 July was allocated by the Supreme Court. An early date having been allocated, neither the GMP nor the Home Office believed that there was any prospect of an even earlier date being allocated.
The noble Lord also asked why the Secretary of State did not ask the Attorney-General to hear the case earlier in the public interest. The Secretary of State was made aware that the GMP was appealing to the Supreme Court for an expedited hearing. Subsequently the police also requested that the court stay the effect of the Hookway judgment. The court gave an expedited hearing date of 25 July, which, as I have said, is earlier than the original date. The Home Secretary felt there was no reason to think that government intervention would make that hearing even earlier. That is the case and I do not think that I can add any more to that. Clearly the Home Secretary did not feel it appropriate to approach the Attorney-General because a concession had already been given with the date agreed for the hearing.
The noble Baroness is being very patient indeed. We do not have a Committee stage on this Bill, so I hope she will excuse me if I press her slightly on this. Does she agree in principle that it is highly desirable, before emergency legislation is brought before Parliament, that every step is taken to try to ensure that the Supreme Court is asked to hear a case with very considerable expedition so as to avoid emergency legislation if at all possible?
I do know whether or not the Supreme Court, in bringing forward the date to July, was made aware of the date on which Parliament was sitting. The Home Office was clearly actively involved in these things, but of course the GMP was approaching the court, not the Home Office. I cannot specifically answer the particular point raised by the noble Lord, but I will endeavour to find out for him.
I can only reiterate the point that I made in my opening remarks. I know that this is a matter for the Constitution Committee, but we really do not believe that we are undermining the constitutional separation of powers by asking Parliament to legislate to reverse the effect of a High Court decision in advance of the issue having been decided by the Supreme Court. As has already been pointed out, had we waited we would have been in recess when that determination was made. The House will not return until September. We have already heard about the urgency of the need to take action in this matter, particularly from the noble Lords, Lord Condon and Lord Dear; nor has the point been lost on us in our discussions with ACPO that these are really serious matters.
The daily problem of the management of bail and offenders and the impact on victims of crime have rightly been pointed out by the opposition Front Bench, particularly in certain circumstances; the noble Lord, Lord Rosser, raised the question of domestic violence and people going back into the same area where they have previously committed a crime. These are very serious operational matters for the police to have to contend with.
Picking up on points raised around the House, I hope this is something we shall deal with when we have the consultation on bail and bail conditions. The police are between a rock and a hard place at the moment in trying to manage this. They are doing incredibly well, but as has been pointed out they can manage this only in the short term. If we were to ask them to manage it throughout July and August and well into September, before this House could come back to this issue, some of the cases that would come to the attention of your Lordships, and through the legal profession, would give cause for concern, not because of the police deliberately doing things that perhaps are outwith their powers but because of the very difficult position that they are in in having to manage these matters even now.
It remains to be seen whether Greater Manchester Police proceed with their appeal once this Bill is enacted—although I understand that it is their current intention to do so—and if so, what view the Supreme Court will take. The Constitution Committee may well want to consider this legislation in the light of that judgment, whatever it may be, and may well return to this later in the year. We will of course study that and carefully consider any report on the broader issue.
Members have touched on the matter of a sunset clause, although I noted that this has not been pressed particularly hard, and I am grateful for noble Lords’ understanding of it. Given that the Bill does no more than restore the law on the calculation of the detention clock to the position that it was commonly understood to be in 25 years prior to the Hookway judgment, we see no case for a sunset clause in this instance. Indeed, this is one of those instances in which a sunset clause could well have an adverse effect, in that it would perpetuate the very uncertainty about the proper interpretation of part 4 of PACE, which we are seeking to address in passing this Bill.
Finally, let me respond to the point raised by my noble friend Lord Thomas, and touched on by other noble Lords, on the wider issues involving bail and the consultation that we are going to put in place. No hard evidence has been received, but sufficient concern has been expressed from so many quarters that we need to get this right. Examination cannot be rushed; there needs to be an ordinary process, including consultation with the police, the CPS, and legal practitioners. Noble Lords have indicated that there is an understanding in the House that we could not include that in the Bill before the House today. I welcome support from all sides of the House for the Bill.
Bill read a second time.
Police (Detention and Bail) Bill
Committee and Remaining Stages
House resumed. Bill reported without amendment. Report and Third Reading agreed without debate. Bill passed.
Committee (7th Day)
Relevant documents: 15th and 16th Reports from the Delegated Powers Committee.
Clause 95 : Duty to co-operate in relation to planning of sustainable development
147FJ: Clause 95, page 72, line 14, after “authority,” insert—
“(b) a marine plan authority, or”
My Lords, we now move on to an important clause of the Bill, which provides the “Duty to co-operate in relation to planning of sustainable development”. The duty applies to,
“a local planning authority, … a county council in England ... or … a body, or other person, that is … of a prescribed description”.
I should say that, as well as moving Amendment 147FJ, I shall speak to a number of other amendments in my name in this group. They all refer to Clause 95, which will insert new Section 33A into the Planning and Compulsory Purchase Act 2004.
Amendment 147FJ would add “a marine plan authority” to the list of bodies that are under a duty to co-operate. I understand that through regulations the Government intend to give this duty to the Marine Management Organisation, which is the marine plan authority for a great deal of the British seas—essentially, the inshore and offshore seas of England. The term “marine plan authority” is used in the Marine and Coastal Access Act 2009, so it seems sensible to use the same wording here. Subsection (3) of new Section 33A, inserted by Clause 95, lists the activities to which the duty to co-operate applies, which include,
“the preparation of marine plans”.
It is therefore sensible to add “a marine plan authority” to the list of authorities that are under a duty to co-operate.
Amendment 147FK probes what is meant by the third group of bodies to which the duty applies—
“a body, or other person … of a prescribed description”.
Presumably if the Government wish to prescribe people, they must have an idea of who it is they wish to prescribe by description. I want to probe the Government on who they think these bodies will be, at least in the short run.
Amendment 147GA refers to local enterprise partnerships. As we know, these are new bodies which over the past year have sprung into life in most places, although not quite everywhere yet. They are to be responsible for co-operation between local planning authorities and local businesses in the absence of regional planning bodies. The regional planning structure is being dismantled and local enterprise partnerships are taking its place. People have different views on how successful they will be, but that is not the point of the amendment. It suggests that, first, the partnerships should be subject to the duty because strategic planning is what they are supposed to be doing, albeit in general over smaller areas than the regions, and therefore they ought to be included in the legislation. They are also ideal bodies to take a lead in co-operation—in fact, they are all we are going to have—by agreement with local authorities and other named bodies.
If we are going to put LEPs in the Bill, they need to be defined. I am not sure that the Government have officially defined them, so I suggest a definition in the words,
“a partnership of local authorities and businesses in an area, that has been approved of by the Secretary of State”.
That seems a reasonable description of what they are.
The next three amendments refer to the “activities”, as the Bill calls them, to which the duty of co-operation applies. These are the “preparation” of development plan documents, of other local development documents —of course, quite a few of the documents that go in the local plan are not classified as development plan documents as such—and of marine plans. The Bill suggests that the duty of co-operation should apply to the “preparation” of these documents; I have tabled amendments to add the words “and implementation” after “preparation” in every case. Surely the duty of and need for co-operation do not end with the publication of a plan but continue, given that people have to continue to co-operate in a constructive and sensible way in order to carry out what the plan is putting forward. Otherwise, those parts of the plan that require co-operation across boundaries—which presumably will be required, because what is the point of co-operating on producing the plan otherwise?—will be more difficult to achieve.
Amendment 147HE suggests that the duty to co-operate should apply to the preparation and implementation of documents which are not planning documents under planning laws, but which,
“affect the development or use of land and associated activities”.
We have only got to begin to think that there will presumably still be co-operation—perhaps across the LEP areas or county areas or other ad hoc areas—on producing housing documents, which may be more or less strategic housing plans. For example, housing authorities in east Lancashire and across Lancashire will continue to meet, work together and co-operate in this way. It seems sensible that, when this is happening, the duty of co-operation should apply to them. Leisure and tourism facilities, for example, very often require planning and a lot of work across local authority areas or across much larger areas than local authorities, particularly where there are relatively small districts.
I shall miss out one or two of my amendments in the interest of getting on. Amendment 147HM would add to the list of what is a “strategic matter” under subsection (4) of new section 33A. My proposed new subsection (4)(c) would add,
“development or use of land that is of potential strategic importance”.
My proposed new subsection (4)(d) would add,
“development or use of land that is necessary in order to meet the needs of a planning area but cannot be accommodated within that planning area”.
Those are the provisions that I wish to add to the Bill.
In the first of those proposed new paragraphs, the reference to “potential strategic importance” is important, because there may well be development proposals put forward for land which is of potential strategic importance, but the particular proposals being put forward cannot, by their nature, be considered to be strategic. They may just be ordinary planning applications, but the land itself ought, perhaps, to be reserved for more strategic purposes and therefore the co-operation should extend to the consideration of development proposals which, although not strategic in themselves, might involve land which is potentially strategic. That should, at the very least, be discussed and considered.
My second proposed new paragraph would apply where the needs of a local planning authority could not reasonably be met within the authority’s area but could perhaps be met within that of a neighbouring authority. This is certainly the case in small districts which might, for example, be having great difficulty finding new industrial land whereas a district next door might have quite a lot. Planning in those circumstances should take place jointly—it may be for housing, an industrial or commercial development, leisure facilities or even a shopping centre. Such development needs to be looked at across an economic area. If the LEPs are supposed to represent economic areas—it is arguable whether all of them do—it is across those economic areas that such developments and facilities ought to be considered. Natural economic areas may well be larger than the planning areas and in many cases they will be.
The Bill sets out definitions, including the meaning of “planning area”. Amendment 147HN would define “planning documents”, which are not defined in the Bill. The amendment would remedy this omission. The amendment provides that “planning documents” would mean all,
“documents that set out policies … relating to the development and use of land, the English inshore region or the English offshore region”,
under a number of enactments. The list of those enactments in the amendment may not be complete, but the principle of setting them out is sensible.
Amendment 147HQ would strengthen the duty imposed on all the persons and bodies that have to co-operate. The duty to co-operate was strengthened in the House of Commons before the Bill came here, but there is quite a considerable body of opinion that it needs strengthening even further. New Section 33A(6) states:
“The engagement required of a person … includes, in particular … considering whether to consult on and prepare, and enter into and publish, agreements on joint approaches to the undertaking of activities within subsection (3)”—
which relates to the preparation of development plan documents et cetera. The amendment would strengthen the provision so that the paragraph would read,
“to consult on and prepare, and, where appropriate … publish, agreements on joint arrangements”.
In other words, the duty would be not just to consider whether to bother consulting but to actually get on and do it.
Amendment 147JA would place a similar duty on local planning authorities to get on with it, rather than just “consider” producing joint planning documents where appropriate. The word “consider” seems too weak, so I hope that the Government will look at different ways in which they can perhaps strengthen the duty.
Amendment 147N takes us back to statutory guidance and regulations. This may be getting fairly tedious, but there is a great deal in the Bill which is probably not necessary. Here again, we have the Secretary of State bossing people in great detail on how to co-operate. People know how to co-operate. They may not always do it, but if they are under a duty to do so, they will probably get on with it.
The alternative way of dealing with these matters is in Amendment 147P, which suggests that the Secretary of State can intervene, but only if he receives a complaint that one of the bodies that must co-operate is not doing so. This is a better approach. Instead of laying down in great detail how people should do things, in a very rigid, top-down and bossy way, it would provide a fall-back power whereby, if co-operation was not taking place and was clearly not working, the Secretary of State could intervene. This would provide an incentive to change behaviour. It is a failsafe, but it is a better way of doing it. Above all, it leaves open the opportunity for people in an area to co-operate in a way that is most appropriate for that area, providing a lot of innovation and best practice. If authorities simply have to do it in exactly the way the Secretary of State sets out in great detail, innovation and best practice will never take place.
Amendment 147R seeks to amend the Marine and Coastal Access Act 2009 to include a duty to co-operate in that Act. If it is necessary to amend the Planning and Compulsory Purchase Act 2004 for terrestrial planning to include a duty to co-operate in that Act, then surely it is necessary and sensible to do the same in the Marine and Coastal Access Act in relation to marine planning. When the Marine Management Organisation is preparing a marine plan, under this amendment it must have regard to the duty to co-operate set out in the new Section 33A of the Planning and Compulsory Purchase Act 2004. When a person is carrying out an independent investigation into a marine plan under the Marine and Coastal Access Act, the person must determine whether the MMO complied with that new section of that Act.
In many ways these are technical amendments but they will substantially improve, strengthen and make much clearer this part of the Bill. I beg to move.
My Lords, the noble Lord, as usual, has been very assiduous in his amendments. I am grateful to him for tabling, in particular, Amendment 147FK. I declare an interest as chair of English Heritage.
The noble Lord asked the Minister what would be included in the list of bodies referred to in proposed new Section 33A(1)(c). We think it might be bodies such as English Heritage. The Bill raises a serious issue. Obviously, we all understand the need for local authorities to be obliged to assist each other in agreeing cross-border planning strategies, but it is not clear why the loss of the regional spatial strategies gives rise to the need for national bodies such as English Heritage to be obliged to provide advice and information.
Of course, English Heritage and many other bodies—but particularly English Heritage—give advice and assistance to local authorities in the planning system. It is one of our core responsibilities with which we are rightly charged but, as a national body which, like others, may be subject to this duty, we are now concerned that a responsibility may have been written into the law which would oblige English Heritage to advise and assist the 433 local authorities in England in a manner—this is very important—that would commit incalculable and open-ended resources. Clearly this is not what the Government intend but it is what the present clause, as we understand it, threatens to do. It would make us liable, without condition, to be dragged to every council table in the land.
As chair of English Heritage, I am concerned about how this might unbalance the priorities already set by Parliament and the Government. I suspect that the Minister will also be concerned about this possibility. Like the noble Lord, Lord Greaves, I ask the Minister for clarity on how this new burden will be met and qualified and whether he can explain what need this new obligation is now fulfilling. Indeed, what are the bodies not doing now that they should be doing?
I apologise in advance to the Minister because I may not be able to stay for the winding up of this debate, but I shall certainly read Hansard tomorrow with interest.
My Lords, in speaking to my Amendment 147H to this section of Bill, I want to emphasise the importance of local businesses in the community. I do not need to say much about the struggle that many local businesses have now, and have had for quite some time, to cope with trading conditions and other matters as this is highlighted, both nationally and locally, on an increasingly frequent basis. In this particular amendment, I am supported by the Federation of Small Businesses and many other business organisations and businesses generally.
Noble Lords will note that my amendment refers to local businesses and to the Government’s introduction of local enterprise partnerships, as referred to by my noble friend Lord Greaves a moment ago. Local enterprise partnerships are intended to sustain and invigorate businesses and the business community at local level. LEPs, as they are known, are there to fulfil that role but a key part of an LEP’s role is to ensure that small businesses have a voice. On this aspect, it is concerning that small businesses are not adequately represented on LEPs everywhere in the country. My information comes from the FSB, to which I referred, the Association of Convenience Stores and also work that I have done directly contacting businesses all throughout regions in the country. The feedback I get is somewhat patchy. Small businesses have a reasonable role in some areas and not much at all in others. I wish to highlight that strongly this afternoon. I hope that the Government will take it on board increasingly as time goes on.
Looking also at the wider aspect, on regional planning we previously had RDAs but, with the different situation we face and organisation now in place, there is a need in the Bill for clarity on how a new, sub-national approach will work. We are looking for a duty recognising the importance of business input into strategic planning and infrastructure policy by requiring local authorities to have regard to the strategic direction by the aforementioned LEPs. It is encouraging that the Minister stated on Report that the Government intend to identify LEPs as bodies that must be taken into account, and other words to that effect.
My amendment looks for more explicit elucidation of the role of LEPs within the Bill, with a formal recognition of them. There will therefore be greater clarity and a strengthening of their position and standing.
My Lords, I speak to my Amendment 147M. At Second Reading, I expressed my concerns about the proposed duty to co-operate as a replacement for regional strategies. As I then said, I am not particularly enamoured with the whole idea of regions. Particularly in the south-west, where I come from, the region was far too large to be of any real relevance to people on the ground and their lives.
As I am sure we all recognise, we need some form of supralocal planning framework to deal with a whole range of issues for which it cannot and should not be left to each and every local planning authority to come up with the answer all on their own. These issues include areas such as flood defence, where water management in the upstream can impact on flooding and water quality in downstream communities. Equally, unless cross-boundary issues are addressed, pure localism could lead to fragmentation of landscapes and ecosystems. The recent national environment White Paper introduced the concept of nature improvement areas, ecological networks and local nature partnerships to rival or possibly complement local enterprise partnerships. All of these are likely to be transboundary concepts in their application.
Some form of supralocal planning is also needed for a strategic approach to renewable energy. While it is important that all local authorities work towards their own solutions for producing 15 or even 20 per cent of their energy requirements from renewable resources—many of which can be built as small, local ventures—each local authority will have different constraints and opportunities for taking different routes towards whatever technology is most suitable for their area. It will be important for everyone to see the bigger picture.
Supralocal planning will be about more than just the larger sub-regional infrastructure projects; more than just where to site bad-neighbour developments such as waste disposal facilities or even large housing developments. I am not so worried about local authorities co-operating—they always have co-operated and they always will. I do not see any real need for compulsion or threats. What they need, in my view, is a framework which sets out what they need to co-operate on—as I have already explained, this is probably wider than many councillors might assume. They need a framework that sets out who should be involved and most importantly, who should lead; the outputs and outcomes; and furthermore, having co-operated, how the results should be incorporated into local plans and local transport plans and the application of the community infrastructure levy. In that context I refer to my twin amendment on this subject under the CIL clauses, Amendment 148ZZBA, to which I speak in my current remarks.
These amendments require unitary or upper-tier authorities to prepare strategic infrastructure assessments in consultation with planning authorities and other strategic infrastructure providers, including local enterprise partnerships and local nature partnerships. I believe we need to specify these assessments as a necessary result of the duty to co-operate. It is only in this way that the duty would have a clear output that would harness the expertise and capacity of unitary and upper-tier authorities in matching investment with growth and provide a consistent framework to inform sub-regional and local plans.
I want to pause for a minute on the words “consistent framework” because I believe they are vital for any country that wishes to remain progressive. I spoke at Second Reading on the dangers of uncertainty within the planning system as a result of this Bill for everyone from businesses, through service providers to environmentalists. They all need some form of consistent framework within which to work, plan and to risk their money through investment. We cannot expect businessmen to invest and house builders to build or, for that matter, environmentalists and landscape aficionados to protect what matters if they are all working in a fog of uncertainty. If each development case has to start from scratch, only delays and increased frustration will result. I believe my amendments give clarity as to where the leadership should lie, so efforts can focus immediately on getting on with the work of strategic planning rather than risking delays because no prime mover is identified in the legislation. Obviously, it is platitudinous to say that delays are the enemy of progress but I do not believe that we can afford delays in the current economic climate. Rather, we need a coherent sense of purpose with a simple reference document as a guide for local plans and new neighbourhood plans. I believe my amendments achieve that.
My Lords, scattered among this vast group of amendments are four amendments of mine. The Committee will be relieved that I do not need to speak for very long on them since one of them, Amendment 147R on the marine planning side, has already been spoken to by the noble Lord, Lord Greaves, and I endorse everything he said. The other three relate to the area to which the noble Lord, Lord Cameron of Dillington, has just spoken. Amendments 148G, 148J and 148K try to sharpen up the requirement to co-operate. Much like the noble Lord, Lord Cameron, I have particular issues in mind where clearly a development, as distinct from a very high-level strategic approach, will be of interest to more than one local authority and may well be of interest to local and national authorities. I declare an interest, for example, in relation to climate change adaptation as I am a member of the Environment Agency Board. Clearly, flood arrangements need to apply to the whole catchment area, wherever the political boundaries may fall, and there may be an involvement in that of national bodies such as the Environment Agency or Natural England. On climate change mitigation, major renewable energy projects may well involve more than one authority, either because of the location of the plant itself and its connections, whether it is a wind turbine or a biogas plant or whatever, or because there are visual effects thereof which impinge on other local authority areas.
I would hope that the requirement for local authorities to co-operate will be pinned down a little more than is currently the case. My proposals to amend the new section proposed in Clause 95 would give a general subsection (1) duty to co-operate, and a clearer purpose to that, making a specific reference to sustainable development. They would also ensure that the requirement in proposed new subsection (6) to consider a “joint approach”, very much along the lines of the joint framework to which the noble Lord, Lord Cameron, referred, and “joint local development documents”, became a compulsory requirement.
I know that some local authorities are not particularly keen on those provisions being in that form in the Bill and say that they will co-operate the whole time. Regrettably, that has not always been the case in relation to flood defence provisions or to renewable energy projects, when different local authorities may have reached different conclusions coming from different angles. So it is important that the Bill itself puts a requirement so that, as far as possible—and this is mildly framed—they reach a consistent and compatible approach to these matters. This needs to be seen in the wider context of sustainable development, which the Committee debated the other night, when I was unfortunately not able to be here. If we tighten this up a little bit, there will be an extra nudge to local authorities to co-operate and take a more coherent and sensible approach to planning and projects within their areas. I therefore commend these amendments and hope that the Government can at least take the spirit of them on board.
My Lords, I listened with great care to the remarks of my noble friend Lady Andrews, who is no longer in her place, because I have an interest— I think that the appropriate adjective would be an historic interest—in the subject that she raised, the position of English Heritage. I served as a commissioner of English Heritage for four years, having been appointed by the noble Lord, Lord Jenkin, and removed by Mr Nicholas Ridley in due course, no doubt for good reasons. My noble friend certainly has a point about not encumbering some organisations with heavy statutory responsibilities.
On the other hand, some agencies need to be involved from the outset in the kind of strategic approach adumbrated in the Bill, and in rather broader terms in the amendment moved by the noble Lord, Lord Greaves. I have in mind, for example, the Highways Agency, which in my experience is not one of the more co-operative government agencies when it comes to its dealings with local government, or the Environment Agency or the Homes and Communities Agency. They have a better track record but, as the noble Lord, Lord Cameron, pointed out implicitly in his reference to environmental matters, they clearly have a key role to play in the development of a joint approach.
I join in inviting the Minister, in replying, to indicate the kind of bodies, though not necessarily adumbrating all of them, that might be included in proposed new Section 33A(1)(c) of the Planning and Compulsory Purchase Act 2004 under,
“prescribed or of a prescribed description”.
It would be helpful to have an indication, though not necessarily on the face of the Bill, as obviously we may need to add or change the description over time.
I also take on board the point about local enterprise partnerships made by the noble Lord, Lord Cotter, when speaking to his amendments. It is not clear to me that they have much power in any event, as presently constituted, but they should certainly be involved in consultations. Whether it is useful to have a duty to co-operate on bodies that may not have the power to do very much is perhaps arguable, but the point is worth exploring, and perhaps the Minister could enlarge a little on the role envisaged for local enterprise partnerships generally and in relation to the position under the Bill, if not today then as a matter for further consideration.
I applaud the noble Lord, Lord Greaves, for most of his amendments, which seem to open up the duty to co-operate in a constructive way. As a former chairman of the Local Government Association, I wish I could subscribe to the view that local authorities co-operate as a matter of course; it is not necessarily the case, as one or two noble Lords have mentioned. It is essential that there is something to make the duty to co-operate actually stick. I cited at Second Reading, I believe, the instance of the district council of Stevenage and its inability to secure land for housing because it is a very tightly constrained built-up authority from an adjoining authority. There was simply no way in which it could break through in the present situation. Where regional spatial strategies have gone, there is no mechanism to compel that degree of co-operation. The noble Lord, Lord McKenzie, may refer to a case closer to his heart and locality, and I am sure other noble Lords could equally cite examples of that kind.
Of course, this is not simply a question of housing. Other issues require co-operation across boundaries that may not readily be secured. The question arises: how is development to be secured? What powers need to be vested in the Secretary of State or some other body to adjudicate where authorities may have had long discussions, with or without their other partners, and nevertheless failed to reach an agreement? It cannot simply be left to that. Amendment 147P, which the noble Lord, Lord Greaves, has introduced, may offer a way forward, provided that at the end of the day a decision can emerge from some source.
Finally, I refer to the definition, again in Clause 95(1), of what constitutes a planning authority. I am not sure whether, for example, the new body in Greater Manchester—the Greater Manchester Combined Authority—would qualify in those terms as a planning authority. It might, but there may well be examples in future of authorities combining for some purposes, and it would be helpful if there were some flexibility to ensure that such bodies could be brought within the ambit of the clause. We should consider whether the clause needs to be redrafted at this stage or whether it can be left to new Clause 33A(1)(c), which refers to,
“a body, or other person, that is prescribed”—
in other words, that one deals with these on a case-by-case basis. That would be a suitable alternative.
Nevertheless, new structures may emerge at the sub-regional level, to which the noble Lord, Lord Cameron, has referred. They may need a specific reference either in the Bill or subsequently. We need to acknowledge them, extend to them the duty to co-operate, and make it enforceable or in some way justiciable. I hope the Minister will take the sense that many noble Lords have spoken. The Bill is reasonable but it would be improved by most of the amendments that the noble Lord, Lord Greaves, and other noble Lords have tabled on the duty.
I will get around to addressing my amendments in a moment. First, I want to say how much I agree with the noble Lord, Lord Beecham, and my noble friend Lord Greaves that there seems to be some need in this section for an ability to knock heads together. My brother first got involved in local politics when, in the local village, there was an ancient wall with a fast-growing young sycamore next to it. At the same moment, the owner of the wall was served with a notice to repair the wall where the tree was knocking it down and a tree preservation order on the tree. I will leave it to noble Lords to guess which party was in control of the district council at the time. It is hard enough to get a council to co-operate with itself, let alone two councils, particularly in the example that the noble Lord, Lord Beecham, gave of Stevenage, where what is being asked of one council it really does not want to give and the residents do not want it to give. In those circumstances, some higher ability to make the process happen is important.
I have two questions to ask my noble friend on the Front Bench. First, I do not expect him to answer immediately, but how on earth are we going to finish this Bill in the time allotted? Looking at the time that we will take discussing neighbourhood planning, all the bits on housing and all the other bits, how can we accomplish all that is to come in in effect two and a bit days? It just does not seem possible. It must have consequences for how late the House sits. It may well have consequences for what days the House sits on. Thursday appears to be available if we stretch things a bit. I do not know, but it no longer seems possible to fit it into the time that we are supposed to be fitting it into, and I would like the Government to come clean with us as to how we are going to solve this conundrum. My noble friend might come back after the Statement with a long cape and a top hat and pull the proverbial rabbit out of it. Short of that, a plain answer from him via my noble friend the Chief Whip will be much appreciated.
Lastly, I hope my noble friend will not be troubled by my two amendments. Their purpose is to draw attention to the question of how, under this Bill, you have to pick a particular place to install a facility if you want to establish a network. It does not matter much where. It will affect only one local authority, but there is a choice of several local authorities into which it could go. Two examples come to mind. One is a rail head for the transfer of freight from road to rail and vice versa. You can probably put that in quite a number of places on the network, but how are you going to decide where to put it? For a pure road transport network, given current regulations, you need to develop places where lorry drivers can sleep overnight. Again, you have a wide choice along the motorway network of where these things should be. You have to produce several of them. They are quite big facilities these days. They are not just a field with some tarmac in it. They have to be secure, they have to be lit and they will have other facilities; but how are you going to decide where on the network these areas get put? It is important for the national network that these things exist, but local authorities will have to co-operate in deciding where they should be. I see nothing in the definition of “strategic”, at the bottom of page 72, that allows such matters to be included in this part of the Bill.
My Lords, we have Amendments 147FKA, 147HZA, 147HCA and 147HF in this group, which I will speak to in a moment. I will start with the question put by the noble Lord, Lord Lucas: how are we going to finish this Bill in time? I am sure the official answer will be that it depends on the usual channels and that it is not up to the Minister. However, given what we have to do, I reiterate the noble Lord’s point, which I know is shared by other noble Lords.
Our amendments are concerned with the duty to co-operate. We acknowledge that government amendments in the other place have improved the provisions, which have benefited from the input of the TCPI in particular. Notwithstanding this, we do not see the end result as providing a proper substitute for effective strategic planning for England. Many planning issues play out on a scale beyond local authority boundaries—the noble Lord, Lord Cameron of Dillington, and my noble friend Lord Whitty talked about housing, climate, biodiversity and key infrastructure issues, and the noble Lord, Lord Lucas, made a point about networks. I would say, without seeking to bring them back, whatever the difficulties with regional spatial strategies, they did provide a route to resolving these issues strategically. Is not the fundamental difficulty that the duty to co-operate will not deal with the hard issues that local authorities fall out over, particularly housing? My noble friend Lord Beecham instanced such a situation. This is an issue because there is at best a weak incentive for local planning authorities and others to comply with the duty, which is why I support the attempt of the noble Lord, Lord Greaves, in Amendment 147P to get a quasi-appeal process embedded in the arrangements.
Compliance with the duty is tested when the Planning Inspectorate takes a view on whether the local development plan is sound. It is therefore judged in retrospect. Will the Minister say more about how it is all to work? Take housing, for example. One local authority may have a need for housing that it cannot accommodate within its boundaries but which it believes could be provided in a neighbouring authority. That is not a unique situation; it is certainly one that we face locally in Luton. There might be genuine engagement around the issue but a difference of view about whether the needs should be met. The local authority with capacity might choose to accommodate the housing need of another adjoining local planning authority, or it might wish to use the capacity for a form of development that would not particularly help the restricted authority.
Is the independent examination required by Section 20 of the 2004 Act going to take a view on whether the outcome of the engagement is fair, reasonable or the most appropriate, or is it simply going to take a view on whether there has been an engagement but no meeting of minds, with the duty nevertheless satisfied? Is it not the case that there will be no mechanism in law that can require one local authority to take housing pressures generated by a neighbour? I accept the point that has been made that in many cases local authorities readily co-operate and these issues will not arise in practice, but that is not the case universally. There are real issues that the Government have to answer regarding the duty to co-operate.
We know that there is no spatial boundary and no clear relationship with LEPs, a point that has been raised by a couple of noble Lords. There is no list of key issues that co-operation should include, no key plan or outcome of the suggested co-operation. Our approach will be to support all the amendments that address these shortcomings wholly or in part, and I believe that that is the thrust of pretty much every amendment in this group, particularly those promulgated by the noble Lord, Lord Greaves.
On our own amendments, Amendment 147FKA requires an integrated transport authority and marine plan authority to be specifically included as persons to whom the duty to co-operate applies. This is a probing amendment to inquire whether there is any update of the draft list of public bodies that by order will be subject to that duty. ITAs are included on the list, as is the Marine Management Organisation, a point addressed by the noble Lord, Lord Greaves. I presume, as he outlined, that the latter covers a marine plan authority. What will the position be after the demise of PCTs, which are included in the draft list? Will GP consortia be included in it?
Amendment 147HCA adds to the activities that must be the subject of constructive engagement. They include the local transport plan and the preparation of joint infrastructure planning guidance as well as other activities that support sustainable development. Amendment 147HF expands on the requirements for the preparation of joint infrastructure planning guidance, how it should proceed and what it is to cover. Amendment 147HZA further qualifies that the active engagement should be with the objective of achieving sustainable development, consistent with the ethos that we are seeking to embed within the Bill.
I am conscious that the Minister might argue that a lot of these matters are going to be fleshed out in the NPPF. When we debated this last week, though, there was no enthusiasm for the Government to make this a statutory document. It is therefore just guidance, and anyway the NPPF is not supposed to contain anything like the level of detail necessary to ensure effective strategic co-operation. Generic planning policy does not amount to a spatial plan that shows where things go and how they relate to each other.
On the amendments in this group, we support the noble Lord, Lord Greaves, in his Amendments 147FJ and 147FK, my noble friend Lord Whitty in Amendment 147G and the noble Lord, Lord Greaves, in his Amendment 147GA as well as his Amendments 147HA, 147HB and 147HC, expanding the activities to not only the preparation but the implementation of development plans. As I said earlier, we support the noble Lord’s amendment that seeks to put in place a right for someone to make representations to the Secretary of State if someone is considered not to be complying with the duty to co-operate; I think it is Amendment 147P.
We support the amendment of the noble Lord, Lord Cameron of Dillington, that raises the issue of strategic infrastructure assessment, reinforcing the point that there are many issues that simply cannot be settled in bilateral or slightly expanded discussions and arrangements between individual authorities. There are more amendments in this group that we would support; I will not flesh them out in detail, given the time, but I have indicated the thrust of the amendments that we support.
I believe that my noble friend Lady Andrews has raised an important question about English Heritage but also more generally about what that duty would entail. The noble Lord, Lord Cotter, has focused on small business and LEPs. My noble friend Lord Beecham touched on the point that at the moment LEPs are a bit of an amorphous arrangement. It is not very clear what their status is—are they an incorporated body or an unincorporated body? The extent to which they are actually a person in law is also not clear. These matters would be helped if that were made clearer. The noble Lord, Lord Cameron, mentioned issues of CIL, which we will come on to shortly and hopefully have an interesting debate on.
My Lords, I begin by thanking my noble friend Lord Lucas for raising the whole question of rabbits out of hats. I think that the answer was given to him by the noble Lord, Lord McKenzie of Luton: a question of time is a question for the usual channels. They will indeed ensure that we achieve our aspirations for the Bill—I am certainly determined to do so. The way that the Committee has dealt with this enormous group of amendments is extremely encouraging and suggests that we will be able to meet our task, and I thank noble Lords for agreeing to this grouping.
This is an important part of the Bill. The duty to co-operate will require local councils and other bodies to work together actively and on an on-going basis to ensure that strategic issues are effectively addressed in local and marine plans. The duty will be a key element of the Government’s proposals for strategic planning once the regional strategies are abolished. The noble Lord, Lord McKenzie, pointed to the fact that some issues are on a substantial scale and the region seems the most likely vehicle for their discussion. From my own experience, which is similar to his as we both live on the borders of regions, one of the most difficult aspects of planning on a regional basis in my part of the world was the very fact that the prime focus of economic activity in the area—namely, Peterborough—was in a different region, and the construction of a road between Boston and Peterborough required an enormous amount of convoluted negotiations in order to achieve this objective. In my view, and I have expressed this in debate before, large units create much more inflexible boundaries than do small, active units and this duty to co-operate ensures that the appropriate level of scale can be brought to bear on any particular aspect of planning strategy.
These authorities will be working alongside incentives such as the New Homes Bonus and the reformed Community Infrastructure, as has been said. It will act as a strong driver to change the behaviour of councils and other bodies. We have worked closely with a wide range of external bodies whose advice and expert guidance has helped us shape the duty that we are debating today.
As I move through the amendments and the comments made in the debate, I will do my best to answer the various points. Amendment 147FK seeks to remove the enabling power to prescribe bodies that will be subject to the duty to co-operate. That would just leave local and county councils as bodies that are subject to the duty. We believe this is not enough to achieve the degree of co-operation that is needed to ensure that local and marine plans address strategic matters effectively. Bodies such as the Environment Agency and the Homes and Communities Agency play a critical role on strategic issues and that is why we intend to prescribe them along with others which have an important contribution to make.
As I have mentioned, the list of prescribed bodies will include, for example, the Environment Agency, Natural England, the Home and Communities Agency and the integrated transport authorities. The draft regulations have been placed in the House Library and we will be consulting on them during the summer. I might say in her absence to the noble Baroness, Lady Andrews, that we all appreciate the work of English Heritage but it has an ongoing engagement with local authorities on the whole issue of the preservation of heritage and historic buildings. The expectation under this Bill is that this duty should be applied in a reasonable and proportionate way but should be part and parcel of the existing ongoing relationship between these national bodies and the local authorities concerned.
The noble Lord, Lord Beecham, asked about the Greater Manchester Combined Authority, which we jointly saw through in the Moses Room one afternoon. In effect, each of the local authorities is indeed a planning authority. The Greater Manchester Combined Authority does not have powers as a planning authority but, because it is combining in its activities, it can serve as an exemplar of a duty to co-operate. Indeed, it is a very fine example of that activity. The list is in the House Library and we intend to consult on the regulations over the summer months.
Amendments 147FJ, 147FL and 147FKA seek to add marine planning authorities on the face of the Bill. Amendment 147FK also seeks to add integrated transport authorities but I have covered that point. Amendment 147R seeks to amend the Marine and Coastal Access Act 2009, with which my noble friend Lord Greaves and I were intimately involved, to ensure that the Marine Management Organisation has regard to the duty to co-operate when preparing marine plans. It would also require the Marine Management Organisation to demonstrate compliance with the duty as part of the independent investigation process for marine plans. I can assure my noble friend Lord Greaves and, although the noble Lord, Lord Whitty, is not in his place at the moment, I would like to reassure him, too, that the duty to co-operate will indeed include the marine areas for coastal authorities.
We appreciate the importance of co-operation in relation to preparing marine plans and they are included in the activities on which co-operation is expected under the duty. That builds on current practice where the MMO has consulted widely, including with local councils and organisations like the Environment Agency in preparing the East Inshore and East Offshore Plans. The noble Lord, Lord Cameron of Dillington, will understand that there is a duty under the Flood and Water Management Act, which we considered fairly recently, for co-operation, not only within local authorities but with the Environment Agency, to make sure that proper flood plans are prepared. This is another example of this system working in practice.
We appreciate the important role of the MMO and integrated transport authorities under the duty to co-operate and that is why we have included them in the list of bodies that will be subject to the duty. As a result, Amendments 147FJ, 147FL and 147FKA are unnecessary. With regard to Amendment 147R, the first part of the amendment is also unnecessary because Clause 95 already applies marine planning. It would also require the MMO to demonstrate compliance with the duty as part of the independent investigation process. This process works very differently from the independent examination procedure for local plans, not least because of the inability to make any binding proposals. Therefore, we do not consider this amendment would assist in ensuring compliance with the duty.
Turning to sustainable development, which was mentioned by a number of noble Lords, Amendment 147G seeks to ensure that the preparation of local plans and related activities enables the planning of sustainable development. Amendment 147HZA aims to ensure that the engagement between councils and other bodies will achieve sustainable development. We share a commitment to sustainable development which underlies these. The Planning and Compulsory Purchase Act 2004 includes a duty on councils preparing local plans to contribute to the achievement of sustainable development. That is why we have included sustainable development in the heading of Clause 95 and put it at the heart of strategic matters that we expect to be addressed in local plans.
The duty to co-operate will ensure that councils and other bodies plan for sustainable development by engaging actively and on an ongoing basis on strategic planning matters as they prepare local plans. We think this addresses the concerns but we will look again at it and see whether we have gone far enough.
On the activities that are covered by the duty to co-operate, the noble Lord, Lord McKenzie of Luton, mentioned housing especially as being a big issue. We are going on to discuss housing in the next group of amendments. Amendments 147HA, 147HB and 147HC seek to extend the scope of activities to which the duty applies to include the implementation of local and marine plans as well as their preparation. We appreciate and share the desire to ensure that the strategic priorities of local and marine plans are implemented but we believe that the requirement to co-operate on the preparation of plans is a powerful one. These plans set up-to-date frameworks, which will be implemented by councils through the development management system and the delivery of sites in their ownership. Plans will also set the framework for the investment priorities of other bodies, which will be set out in their corporate plans. The amendment is therefore considered unnecessary.
Amendment 147HE seeks to ensure that the scope of activities on which co-operation is required is not limited to planning documents, and that it also includes documents that affect the development and use of land. Amendment 147HCA seeks to add local transport plans and joint infrastructure planning guidance to the list of activities to which the duty applies. The duty to co-operate covers local development documents, which, under Section 17(3) of the 2004 Act, include all documents that set out the authority’s policies relating to the development and use of land in its area. This may include transport, infrastructure and a range of other strategic issues. These amendments are therefore unnecessary.
Amendment 147HD seeks to narrow the scope of activities to be covered by the duty to co-operate. It is important to ensure that the scope is sufficiently broad to cover activities that could reasonably be considered to prepare the way for local and marine plans.
We now come on to LEPs. There was an interesting challenge from the noble Lord, Lord Greaves, who asked: what is the definition of an LEP? LEPs are described thus in the draft local planning regulations:
“An LEP is recognised by the Secretary of State”.
I suppose that is a succinct and self-referential description of an LEP. I am sure all noble Lords will recognise one when they come across one.
What an LEP does is a subject for another debate altogether. However, it is well worth saying that it brings these local authorities, working together under a duty to co-operate in general terms, together with the local business community for the benefit of that community’s development in all the ways that we wish to see—economic, social and environmental. That, really, is what an LEP does.
My Lords, what I am describing is exactly the vehicle through which power is exercised—the duty to co-operate and the construction of local plans. That is exactly what we are engaged in. The interface between the LEP and this process is important. We may have accidentally entered into something that elaborates, I hope, on the force of the Government’s argument in this area. My noble friend Lord Cotter was a little concerned that the membership of the boards of LEPs was perhaps not fully representative. We are not telling LEPs who they should put on their boards, but we expect board members to be drawn from a breadth of experience—from small enterprises through to large businesses and representing key sectors in their areas. My experience of the LEP that covers my area seems to bear this out through the individuals who have got involved and engaged with it.
It is appreciated that the aim of the amendments in this group is to ensure effective co-operation on local economic development issues. We share that objective but believe that it is better to give LEPs the space to innovate, rather than to impose a national statutory model on them. Effective co-operation on economic development issues can be achieved through an enabling power, which requires bodies that are subject to the duty to have regard to the activities of other bodies when preparing their local plans and related activities. We intend to prescribe local enterprise partnerships, which will represent local business interests in local planning regulations, for this purpose. We have placed the draft regulations in the House Library and will consult on them later this month. The approach that we are taking will support growth and strengthen local economic co-operation under the duty, but it will leave LEPs the freedom to innovate and work flexibly.
I hear what my noble friend says with interest. First, will he reflect on having just described LEPs as representing business interests? Surely the whole purpose of LEPs is that they are a partnership between business and local authorities, and therefore represent both those interests, not just one of them. Secondly, could he explain how merely putting a duty on LEPs to co-operate and promote co-operation amounts to a rigid national statutory framework?
I am sorry if I misled the Committee. I am well aware that LEPs are joint bodies, representing the interests of local government and business. I think that is what I described earlier. If the syntax of what I just said implied that that was not the case, I withdraw that. However, I think I said that we intend to prescribe local enterprise partnerships, which will represent local business interests in local planning regulations for this purpose. My point is that they represent business interests as well as community interests.
There are several amendments that I would loosely describe under the heading “Engagement under the duty to co-operate”. They include Amendments 147J, 147K, 147HP, 147HQ and 147JA. They seek to strengthen the engagement required under the duty to co-operate by requiring actions, rather than giving councils and bodies the flexibility to consider whether to undertake these actions. I refer again to the contribution of the noble Lord, Lord Cameron of Dillington. The key point is that strategic planning needs to be flexible to allow councils to decide how to co-operate effectively. This will depend on the issues that they face. As I have already described and as the noble Lord himself said, flood and water management requires a totally different combination of interests from, say, highways or housing policy, which are founded in different ways. That is the great advantage of this structure. Prescribing a specific outcome, such as a joint infrastructure assessment, would not allow for the flexibility that is needed to make this an effective vehicle.
Moving on, Amendments 147L and 147M address similar concerns about engagement. They seek to establish a specific document—a joint strategic infrastructure assessment—to be produced as evidence of effective engagement under the duty. Amendment 147HF addresses similar joint infrastructure planning guidance, which it implies should be included in the activities to which the duty applies. It sets specific requirements in terms of the purpose and content of these documents. The amendment seeks the involvement of councils that are part of a local enterprise partnership and requires that the objective of the bodies preparing these documents should be the achievement of sustainable development.
We share the objective of having a duty to co-operate that will ensure effective co-operation by councils and other bodies. However, strategic planning is not a one-size-fits-all approach. It needs to be a flexible process led by councils that allows them to respond to particular issues and local circumstances. Flexibility is essential to allow them to decide how best to work to serve their local communities, businesses and interested parties. We agree that strategic infrastructure plays a critical role in supporting the delivery of economic growth and housing, and that is why we have included it in the Bill.
Clause 95 requires councils to consider whether to work jointly on policies and activities related to strategic cross-boundary and county issues. It gives local planning authorities and county councils flexibility on how to fulfil this responsibility, rather than forcing them to produce specific documents. That strikes the right balance by ensuring that co-operation will result in effective local plans and by strengthening accountability to local communities, businesses and interested parties.
Councils that are part of a local enterprise partnership will already be subject to the duty to co-operate, and there is no need to refer to them separately. I have received assistance for the noble Lord, Lord Beecham, on the functions of LEPs. We do not want to be precise on their roles or functions. They should follow local priorities that they and their communities consider important. We want LEPs to leave development proposals to local enterprise. That is their task and their role. They are not public bodies and are not reliant on grant funding, but they provide a forum and an agency to start up funding, if that is part and parcel of the proposals. LEPs are therefore facilitators rather than providers, if I may describe them in that way.
Amendment 147J would also remove the requirement on councils and other bodies to consult on agreements on joint working approaches. However, we believe that this is an important element of co-operation in local planning that will allow all the relevant parties to suggest the most effective ways of working.
A number of amendments in the group seek to describe strategic matters, and would delete the reference to sustainable development and focus on development that impacts on at least two planning areas and projects forming part of a strategic network. Amendment 147HM focuses on development needs that cannot be accommodated within one planning area and the development of potential strategic importance. One might say that the issue of the housing requirements of Stevenage that the noble Lord, Lord McKenzie, brought to our attention is relevant.
It is appreciated that there are many ways in which strategic matters could be defined for the purpose of the duty to co-operate. We recognise that the concern behind these amendments is to ensure that the duty effectively captures strategic matters that affect more than one authority. We share this concern but believe that the duty should capture strategic matters in a way that is flexible and allows councils to respond to particular local circumstances. We wish to retain the reference to sustainable development because of the importance that we attach to it, as I highlighted earlier.
Some concern was expressed about statutory guidance. Amendment 147N deletes the requirement on councils and other bodies to have regard to any guidance that the Secretary of State may issue about how the duty to co-operate should be complied with. Such guidance, should the Secretary of State decide that it is necessary, will be important in helping councils and other bodies to understand how to discharge their responsibilities under the duty to co-operate. It will therefore be important that they have regard to it.
Amendment 147P makes provision for representations to be made to the Secretary of State regarding compliance with the duty to co-operate and provides the Secretary of State with very broad powers of direction. A linked amendment, Amendment 148ZZZZBA, removes the sanction of failing the local plan examination if an inspector finds that a council has not complied sufficiently with the duty. We do not think that this approach is proportionate. The requirement for compliance with the duty to co-operate when making local plans is coupled with a powerful sanction. If councils cannot demonstrate that they have satisfactorily complied with the duty, their local plans may not pass the independent examination. In addition, local planning regulations will require councils to report progress on compliance against the duty to co-operate. This strikes the right balance. We do not think that the direction-making powers proposed are necessary—nor would they be consistent with our aspirations for localism.
To take the Stevenage situation again as an example—there will be others—one authority may say, “We are not going to have housing in our borough to accommodate you”. There are two distinct points of view, and there is no real sanction. If a plan does not get approved, that suits the authority that wants to keep the status quo. Therefore, there is no recourse for the Stevenages of this world in that situation. Is that not the problem? There will be no co-operation and no plan, and there will be no solution to the problems that one of the authorities might have.
The process of co-operative working actually requires co-operation and a sense of shared purpose in serving the communities that the local authorities represent. There may well be tensions. There may well be situations where there is difficulty in seeking agreement. The law will place on local authorities a duty to seek to resolve these differences. If they show that they have not considered the outcomes of a co-operative process in formulating their local plans, those plans will be rejected. There is, therefore, gentle coercion. However, as with all circumstances where power is being devolved down to local authorities, the public interest is being vested in those democratically elected bodies—namely, the local authorities concerned. That is the purpose of this legislation. I do not need to lecture the noble Lord, Lord Beecham, on the virtues of democracy and the accountability that comes with it. What is missing is the sense that Whitehall is looming large over the whole process and is seeking to put pressure to achieve a particular outcome through this process. It is important to emphasise that.
The noble Lord has been generous in speaking to all the amendments, but I want to be clear on the housing issue that the noble Lord, Lord Beecham, described. We have a similar issue in Luton. One authority with a desperate need for affordable housing that cannot be accommodated within the borough may look across the boundary and see opportunities there, but the other authority may take the view, “We don’t want any of this affordable housing encroaching upon our villages”. How is that situation to be resolved? You might have one authority that has genuinely gone through a consultation exercise, has taken a view, and has said, “We don’t want that form of housing here”. Another authority may have a desperate need for that housing. When the soundness of the plan is due to be judged, will the inspector involved just see whether or not the processes and so on have complied with what is required under the co-operation duty, or will there be some value judgment that the inspector can make, and say, “In all the circumstances, this was an outrageous position for you to take, and you have therefore not complied with the duty to co-operate”?
It may be easier to consider the detail of the point that the noble Lord has raised when we come to discuss the next series of amendments. In general terms, there will be evaluations not just of the outcome of the local plan but of the way in which evidence has been collected together in order to provide that plan. That is perhaps a safeguard that we might have. We will have an opportunity to talk about housing in particular, so I hope that the noble Lord will forgive me if I seek to move on—I have been talking a long time, but there were a lot of amendments.
In winding up, let me deal with Amendment 147HN, which seeks to define planning documents by referring to town and country planning and marine planning legislation. However, the term “planning documents” is not used in the provision. As it stands, the duty covers all local planning authority documents that set out their policies in relation to the development and use of land. It also covers marine plans. This amendment is therefore unnecessary.
Amendment 147LA, which seeks to require the bodies subject to the duty to co-operate to have regard to the activities of prescribed bodies, is also unnecessary as this is already provided for in Clause 95, in new Section 33A(2)(b).
I now come to an exciting point in bold type that says that Amendment 147Q addresses a typographical error in Clause 95. We are happy to accept this amendment when it is moved by the noble Lord. I hope that noble Lords will remind me when that particular amendment is called.
I will close by saying that I am satisfied that the duty to co-operate will ensure that local councils, county councils and other bodies work together in the spirit of constructive and active dialogue. That will maximise effective working in the preparation of local and marine plans in relation to strategic cross-boundary issues and county matters. With these reassurances, I hope that the noble Lords are willing to withdraw the amendments.
My Lords, perhaps the solution to the difficulty of the noble Lord, Lord McKenzie of Luton, is to reach back into the history of local government and reinstate single combat between neighbouring chiefs, who would then be seen to be earning their salaries at least.
In that great Gladstonian oration that we have just heard, I missed the answer to my question. How does the wording in Clause 95 permit the duty to cover the sort of situation that I was discussing, where there is a national network to be looked after and it needs to be discovered where the burden of that falls between various local authorities? I do not see how that is dealt with. I would be happy if the noble Lord would write to me between now and Report.
My Lords, I thank the Minister for the great care that he has taken in responding to these amendments. We might get on a bit quicker on one or two of them if the people providing him with his briefings understood that, often in Committee in this House, we put down “leave out” amendments in order to find out what things mean and how they will work, rather than delete them. We are not actually always trying to get rid of them. I realise that sometimes they have to guess which it is, but that is the case.
There is a difference of approach. Some of us would like to have a much clearer high-level duty placed on local authorities and other bodies and far less detailed regulations on how to do it. Some of us would like to rely on that, rather than have a weaker duty and then masses of detailed regulations. The duty to co-operate is a classic case of that. On the central issue of whether the duty in this part of the Bill is as strong as it needs to be, some further discussion will be required before we are finished with the Bill. There is a feeling in quite a bit of the Committee that perhaps it would be a good thing if we could find ways of strengthening the duty a bit further without resulting in even more reams of detailed rules and regulations. I hope that the Minister would be open to discussion of that, in so far as we are able to have discussions over the summer.
On that basis, I thank the Minister and everybody who took part in this debate, and I beg leave to withdraw Amendment 147FJ.
Amendment 147FJ withdrawn.
Amendments A147FK to A147P not moved.
147Q: Clause 95, page 73, line 38, leave out “(1)(b)” and insert “(1)(c)”
Amendment 147Q agreed.
Amendment 147R not moved.
Clause 95, as amended, agreed.
Southern Cross Care Homes
My Lords, I shall now repeat as a Statement the response given earlier today by my honourable friend the Minister for Care Services to an Urgent Question tabled in another place on Southern Cross Healthcare. The response was as follows.
“As the House will be aware, Southern Cross has been working with its landlords and lenders to agree a restructuring process to secure a viable way forward for the future. The Government have made clear, as I set out to the House on 16 June, that our overriding concern is the welfare and safety of the 31,000 residents in Southern Cross’s care, and we expect all parties to work together to secure a consensual, solvent restructuring of the business that meets their collective responsibility to secure the welfare and care of those residents.
When I last updated the House on 16 June, Southern Cross, its landlords and its lenders had announced the previous day an agreement to work through, over a period of four months, arrangements for a consensual, solvent restructuring. Yesterday’s announcement was one step in that ongoing process, and discussions continue to resolve the remaining steps.
I know that there has been some concern about what yesterday’s statement may mean, and that residents and their families—as well as staff—are anxious to know what will happen. Let me repeat the assurance I have given to this House before: whatever the outcome, no one will find themselves homeless or without care. We will not stand by and let that happen. We have worked and will continue to work with the Association of Directors of Adult Social Services, the Local Government Association, the Care Quality Commission and others to ensure that there is an effective response to any potential disruption to the continuity of care, and that all residents are protected. A consensual restructuring that assures a smooth transition to new arrangements will mean that those contingency arrangements will not be needed, and that is what we want to see.
Let me reassure the House on some of the questions that I know honourable Members may have. First, yesterday’s announcement—which stated that at the end of the restructuring process the Southern Cross corporate entity would cease to exist—has no effect on the provision of care or the operation of care homes. Southern Cross remains in operation, and will continue to operate all its care homes until any transfer to new operators takes place.
Secondly, the transfer of care homes to alternative operators will be a managed process that ensures the continuity of services. Yesterday’s statement makes clear that care home staff will transfer on their current terms, and the service that residents receive should be unaffected by the transfer. All parties involved in the negotiations have given a clear commitment that continuity of care will be paramount in this process. Local authorities are already working to ensure that they can assist in the smooth transfer of arrangements of homes in their area, and the department has been working with ADASS and the LGA to support that.
Thirdly, no transfer will take place without the new operator being approved and registered by the Care Quality Commission. There has been speculation that companies with no experience in the care sector will take over the running of homes. That will not happen. Alternative operators will need to be reputable and experienced companies which are able to satisfy the CQC that they are capable of delivering high quality care and meeting all regulatory standards. The CQC will not drop its standards in ensuring that requirements are met. I understand that each of Southern Cross’s landlords are settling their arrangements as to which care home operator to work with, and that is an essential part of the discussions that are ongoing. That will cover all landlords, so that there is a clear way forward for all homes.
Finally, I can assure the House that the Care Quality Commission has been working with Southern Cross, landlords and other stakeholders for several months to ensure the smooth transition of services and has processes to deal with re-registration and undertake the essential checks needed as a priority. It is having ongoing conversations with Southern Cross, landlords and other providers on the timing of applications.
Our priority as a Government is to ensure that the current problems with Southern Cross are resolved and that a sustainable way forward can be secured. But as the Prime Minister has previously stated to the House, we are also clear that we will take action for the future to ensure there is proper oversight of the social care market. The Health and Social Care Bill allows us to extend to social care—if we decide that it is needed—the financial regulatory regime we are putting in place in the NHS. However, regulation is not the only solution. We will approach this in a measured way and as part of wider reform in the social care market to ensure that we do not face a similar problem in future.
I said that yesterday’s statement from Southern Cross was one step in an ongoing process over the coming weeks and months. Until all future arrangements are settled, Southern Cross will continue to operate and provide care in all its care homes. It is only at the end of the process, when all transfer arrangements have been completed, that Southern Cross as an entity will cease to exist. By then, all homes will have a clear plan for future operation and for the continuity of services into the future.
What we now want to see is a swift conclusion to these important discussions, to offer reassurance and certainty to residents and their families. I want to reassure the House that the Department of Health has been and remains fully engaged, and senior officials are in daily contact with all the parties to ensure that the interests of residents are at the forefront of all discussions. The Government will continue to keep close contact with all involved in the process, and I will continue to keep the House informed”.
My Lords, that concludes the Statement.
My Lords, I thank the Minister for repeating the Statement. Although we had a discussion about Southern Cross two weeks ago, it is an ongoing sorry tale which seems to get worse by the day for the residents, their families and the staff of Southern Cross. I think the Minister will accept that Southern Cross’s announcement yesterday that the responsibility for managing the 752 homes will pass back to the 80 landlords who own them will almost certainly cause a vacuum that is bound to be the source of great uncertainty and anxiety among residents and their families.
I am reassured that the Government are very active on the matter, but there are questions that we need to have answered. Southern Cross is not being informative and there are things that we need to know about the situation. My questions concern what happens next and how the Government will manage this difficult situation. Can the Government publish a list of all 80 landlords? I have read in the media rumours that some landlords still have to be identified. Yesterday, it was further announced that control of 250 of the homes would be handed back to their landlords immediately. What does immediately mean? Does it mean tomorrow? What will happen? What is the process?
The House needs to know which homes those are and who is running them. Is a list available? It is certainly not available on the Southern Cross website. It is also likely that many of the landlords will have little or no experience of running care homes. For example, does the Minister have any information on the intentions of property-owning companies such as London & Regional, which owns 90 Southern Cross homes, or Prestbury, which owns 21? In the previous Statement in the House, the Minister assured the House, as he has again, that the Association of Directors of Adult Social Services is trying to support its members, who will have a key role in ensuring that the new operating companies are able to provide good quality care and that they know how to perform financial stress tests to ensure that their business models are sound. What support and assistance are the Government providing to ADASS?
I read from my press cuts that Downing Street has said that public money will be used to ensure that those in the homes can stay. Is that true and how would it be achieved? Would money be made available through local authorities? If the Government intend to provide additional resources, they will need to do so to hard-pressed local authorities if they are expected to help. What advice are the Government giving to local authorities if the property company or landlord for any of the home-owning companies is offshore?
I am reassured that new operators taking control of the homes will need to be registered with the Care Quality Commission and that plans are in place to ensure that that happens, but given the pressure on the CQC, I wonder how it will be able to achieve that within the timescales that we seem to be facing. Will the Government make more resources available to the CQC to deal with that worsening situation?
What can the Minister tell the House about the terms and conditions of the 44,000 employees of Southern Cross? Does the Minister know how many homes are likely to close? What is the timetable for such closures likely to be? What will happen to those residents? We know that, for the very old and very vulnerable, a move such as that can result in their death or hospitalisation. That is an extremely distressing matter.
Turning to the care home sector more generally, it would seem that although Southern Cross is definitely the most urgent, it is not alone in the sector in its struggles. The UK’s second largest care home provider, Four Seasons Healthcare, has amassed debts of £730 million that have to be repaid by September 2012. What will happen to the Lloyds properties, as this landlord is in administration? NHP, which owns 250 homes, is at a standstill with its bondholder. Indeed, my honourable friend John Speller MP, in his question in another place to the Secretary of State for Business, Innovation and Skills, pointed out that it is not just old people we are talking about here. For example, Craegmoor provides residential care services for adults with mental health problems or learning disabilities. It has 3,300 places, 174 care homes and a debt of £37.8 million. Care Principles provides similar services. It has 450 places in 17 care homes and secure hospitals; its debt is £45.77 million. Care UK runs care homes and services for the elderly. It has 3,100 places in 57 homes and a debt of £127 million.
Clearly these problems have to be addressed. I do not expect the Minister to answer questions about those homes. However, I am asking the Minister whether there is a plan and, if so, what is it? It seems to me that Southern Cross is actually the beginning of this process and solving its problems may not be sufficient.
My Lords, I am grateful to the noble Baroness for her comments and questions. She asked a number of the latter. I hope I can answer most of them. It is important to appreciate that this is a managed process. The announcement that the Government made last month of a four-month restructuring window still applies, and we are at the first major stage of that process. Therefore, anxieties about the welfare of residents are misplaced because this is not a case of the collapse of Southern Cross. It is still very much a managed and solvent restructuring that is going on.
The noble Baroness asked me about the landlords. It is not for the Government to liaise with all the landlords directly but they are all represented on the restructuring committee, working to develop a plan for the future. Local authorities and the CQC will link as necessary with all the landlords as they take through their plans for the future management of homes. I am advised that the CQC understands that the Southern Cross landlords’ committee wants the handover of care home properties to take place at the end of September. The CQC is co-ordinating its activities to ensure that regulation does not prevent the handover across England. I hope that reassures the noble Baroness that nothing is going to happen tomorrow. It is very much part of a planned and structured process.
The noble Baroness asked about care homes that were in debt. Many companies, in all sectors, may have some degree of debt, quite obviously—this is a normal part of business, not necessarily a concern. We are clear that Southern Cross’s particular business model—not owning but leasing nearly all its properties—is a unique model and that is what has given rise to its particular problems.
The noble Baroness asked about the consequences of the landlords taking back their properties. The department is very clear that it expects all parties to maintain service continuity and quality of care while the restructuring process is ongoing. Our principal concern, as I have said, is for the safety and well-being of the residents. CQC will pay particular attention to any care homes where there is a concern that quality may be at risk or inadequate. It does have the resources to do this. It has indicated that there is not a problem in that sense. CQC has regular dialogue with Southern Cross at corporate level in addition to the attention it gives to individual services. We have emphasised to CQC the importance of ensuring that Southern Cross homes continue to comply with regulations and safety and quality requirements. Of course, we expect CQC to take the necessary action if it finds, for example, that staff reductions are affecting safety and quality of services.
The noble Baroness asked about government money for Southern Cross. Southern Cross is not asking for a bailout. It is looking to resolve its problems and it is for the company, its landlords and those with an interest in the business to put in place a plan that stabilises ownership and operation of the care homes. That process is happening and we must let it continue.
A number of providers that will acquire Southern Cross homes are already registered with the CQC as care providers in their own right, such as Four Seasons. There are established processes in place to allow these providers to extend their current registration to take on additional care homes. That process, assuming that it occurs, is relatively straightforward. Providers who are not known to or registered with the CQC will require a full application that will be subject to full scrutiny and a determination of fitness to provide the service. This cannot be a case of companies registered overseas suddenly becoming care home operators—that will not happen. Any new operator must demonstrate that they are fit and proper people to conduct this type of business and prove that to the CQC. Each landlord will be required to ensure that it has arrangements with a reputable and capable operator which can meet the CQC’s requirements. This is what the companies are now resolving as restructuring discussions continue.
It is also important to emphasise that while the CQC is committed to ensuring continuity of care, it will not lower the regulatory bar or reduce the rigour of registration. CQC’s principal concern is the safety of service users and it will not compromise on the standards that are required. At the same time, we expect that local authorities will ensure that any transfer or new arrangement to provide care for residents takes place smoothly and with continuity of care for service users assured. We are talking to the Association of Directors of Adult Social Services, the Local Government Association and, of course, the CQC, as I have mentioned, to ensure that robust local arrangements are in place.
Finally, the noble Baroness asked about the staff and their legal position. This is not a matter that the department can comment on directly, but staff are protected by the relevant employment law. I understand that Southern Cross has undertaken in a letter to care staff that they will be transferred under their existing terms to new operators under TUPE. That is our understanding of the position.
My Lords, first, I wish to return to the issue that I raised with the Minister on 16 June when we last discussed this matter: the inequalities in geographical distribution of the problem. In particular, will help be given to local authorities in the north-east, where Southern Cross was the major provider? There are not vast numbers of other providers and the problem is far more acute because there is no surplus residential care into which people can be quickly fitted.
Secondly, will the department put in place a monitoring programme for all the residents of Southern Cross, to be carried out over the next two years to monitor the welfare of the individuals who are in the midst of this crisis? The noble Baroness, Lady Thornton, mentioned a fact that has been borne out by research over many years, which is that when people in residential care are subject to stress of this kind it has a very detrimental effect on their health. I wonder whether, in the midst of this, the Government might take that duty upon themselves.
My clear understanding is that many homes will continue in operation with the same staff, and that the residents of those homes will therefore not be required to move. We hope most earnestly that no resident of any Southern Cross care home will be required to move. I am not aware of the precise situation in the north-east of England, but my noble friend’s comments suggest to me that there is no undue cause for concern in that part of the country. The plan certainly would be, as far as possible, to maintain the residents in their current homes, and they should notice no difference in the quality of care that they are receiving.
To the extent that residents are required to move—and as I have said, we hope that that will not be necessary—yes, of course there will have to be a process of monitoring the welfare of those people in those circumstances. The duty to do that falls primarily on local authorities, where they are the commissioner of the care, but I have absolutely no doubt that the CQC will wish to add to that oversight. I believe that it is too soon to speculate—because we are not sufficiently far down the restructuring process—on the extent to which residents will be disrupted, but the number of homes that do not in the end prove viable as businesses will emerge in due course.
My Lords, first, I noticed that the noble Earl did not respond to the question asked by my noble friend on the publication of the names of the property companies that stand behind many of these homes. Will a special regime be introduced by the CQC of random unannounced visits for homes managed by property companies? It is important that we get an assurance that it will carry out random unannounced visits as against other forms of visits which are possible. Secondly, given that Regulation 13 of the CQC registration regulations 2009 requires a service provider to,
“take all reasonable steps to carry on the regulated activity in such a manner as to ensure the financial viability”,
of the operation, who then is going to monitor compliance with Regulation 13? Should we not now have—set and enshrined in some regulatory arrangement —some authority given the power to seek to secure compliance, or are we simply going to leave it to an offence, as the noble Earl has referred to in an Answer he has given to me, whereby no one is actually monitoring these matters?
First of all, the CQC is an independent body; it is not under the jurisdiction of Ministers, and it must be free to organise itself as it sees fit. I cannot undertake on its behalf that it will perform random unannounced visits. It does, however, do that as a matter of course, and it generally does so on a risk-based basis so it would surprise me if, where the CQC saw that there was an enhanced risk to residents, it did not make it its business to perform inspections. Looking ahead into the medium term, should the Health and Social Care Bill pass through Parliament, as the Government propose, local HealthWatch will be in a position to enter and view care homes, as LINks are at the moment, but I believe that HealthWatch will be, in most areas at least, in a better position to undertake such inspections on a random basis.
The financial liability will of course not be the province of HealthWatch, but any concerns about the welfare of residents would be subject to the powers of HealthWatch to refer up to HealthWatch England, and in so doing, through HealthWatch England to the CQC. The financial viability of care homes is of course a live issue. I have commented on this in the past, and we are certainly considering whether Clause 57 of the Health and Social Care Bill could be used to extend the regulatory regime that we are proposing for the NHS to care homes. That is something that we will need to discuss because it would amount to a regulatory burden on care homes. Nevertheless, I do not belittle the issue. My ministerial colleagues in the Department for Business, Innovation and Skills are looking at the issue of private bodies that provide publicly funded services and whether there are implications in the sense that the noble Lord has indicated.
My Lords, has the Minister considered the legal question of fraudulent trading, which seems to be apposite not only to the case of Southern Cross, but indeed—according to the comments made by the noble Baroness, Lady Thornton—to other care companies as well? Does the Minister recollect that exactly 50 years ago, in a case called Wellfield, this House, sitting in its judicial capacity, defined fraudulent trading as a situation where the directors of a company continue trading, knowing that there is a risk that debts will not be able to be cleared as they arise? Bearing in mind that as far as Southern Cross is concerned, many months ago, it announced that it would not be able to pay its tax liabilities, nor indeed to pay more than 70 per cent of the rents due to lessors, would it not seem that there was a clear breach of what is now Section 993 of the Companies Act 2006?
My Lords, my advice is that Southern Cross is not insolvent in either sense of the word. Its assets, I am told, exceed its liabilities, and it is able to meet its commitments as they fall due, thanks to the agreement reached between the company, its landlords and its bankers. The process announced on 15 June is the key to this: the company’s restructuring committee is developing a plan to stabilise the ownership and operation of Southern Cross care homes. We expect, as I have said, that there will be an orderly process of reassigning homes to landlords and new operators. That process will take place between now and October, during which time continuity of care will be maintained. Nothing that I have said changes the outlook for the medium term, and I believe that we can say, and that the company can say, that insolvency is not an issue at present.
My Lords, for all the assurances that the Minister has given, and for all his obvious sensitivity to the issues that many residents face, the truth remains that a lot of people in these care homes feel themselves at present to be in an extremely vulnerable position. In these circumstances, does he feel that the level of salary and bonuses that some directors have is appropriate, and would he like to comment, in the light of what he said earlier about financial implications, on whether or not that is an area that in future he would feel needs to be examined more carefully?
I am grateful to the right reverend Prelate. I do not think any of us feels comfortable if the directors of struggling companies take substantial bonuses. I have to say that I do not have a briefing on whether the directors of Southern Cross have taken substantial bonuses in recent months, but I shall make it my business to try to ascertain that. But of course the right reverend Prelate is right to say that we must be clear that the stability of care homes, looking after frail, vulnerable, elderly people, should not be put at risk by mismanagement. I am afraid that Southern Cross has been a story of mismanagement since it was established in its present form.
My Lords, my noble friend Lady Thornton referred to the fact that the owners of many of these properties are offshore companies. Is the Minister comfortable with the fact that according to a claim by the GMB union, some 336 of these care homes—just under half the total—are owned by companies outside the UK, with 325 of them registered in tax havens? Does the Minister agree, as I asked yesterday of his ministerial colleague about the Statement on the White Paper on public service reform, that the high proportion of residential care places managed by Southern Cross—some 18 per cent of the total of places, with roughly a further 18 per cent managed by another five companies—does not represent diversity of provision and increases the risk of things going seriously wrong on a large scale, as has happened in this case? Does that not lead to the possible conclusion that to talk about diversifying without any indication of a limit on the number of places that might be operated in a field like this needs to be rethought?
I think the noble Lord and I are at one in wanting to see diversity of provision. The restructuring that I suspect we are likely to see emerge from this will result in just that, as a matter of fact. It appears that Southern Cross is to be split into a number of smaller enterprises, and that in itself should, we hope, lead not only to a more diverse arrangement but a more secure one. However, I do not take issue with the thrust of the noble Lord’s remarks at all.
On the issue of the ownership of some of these care homes, our concern as Ministers is not so much where the shareholdings lie as on whether that in itself has implications for the quality of the care that residents receive. I am not aware that that has been a factor. As long as the ownership of these care homes is legal and we are not seeing tax evasion as opposed to tax avoidance, to an extent it is not an issue for the Government. But it is something that is likely to be examined quite closely as the restructuring takes place.
My Lords, I welcome the way in which the Minister’s Statement has given reassurance to those in care homes and their families. It is immensely important that we continue to do that. There is, however, a further area of reassurance that I hope the Minister will be able to say something about. We have reassured staff through TUPE that perhaps there is some protection for their terms and conditions, but speculation in the press today suggests that the cost of care in these homes might rise significantly because of a period of underinvestment. I hope that we can at least monitor any such rises to ensure that they are gradual rather than sudden and therefore financially debilitating.
My Lords, the noble Lord, Lord Sutherland, makes a very good point. The advice I have been given is that during the restructuring process, the cost of care should not be a factor. While local authorities may have to revise their budgets, that should not result in disruption for residents.
My Lords, does my noble friend agree that most of the landlords of these care homes were the former operators themselves, and therefore the transfer of registration by the CQC will be a very smooth process? However, we will end up with a few homes where the landlords might not want to take them back. Should we not have contingency plans for local authorities to rent such premises on a temporary basis until a permanent solution is found?
My noble friend is quite right to say that it is indeed possible that landlords may not wish to take the properties back, but in that scenario it has been agreed that those landlords will look to partner with a reputable care home operator. So it might well be that a care home will join a consortium run by one of the major care home operators which is now in discussions.
My Lords, the Minister said that Southern Cross’s business model was unique, but surely it is not since so many care homes have been following the Opco/Propco model. Does the Minister therefore agree that it was possibly not just mismanagement that was responsible for this situation, but the fact that the business model which worked in the good times—the previous owners did very well out of it—is not working now? As the noble Baroness, Lady Thornton, said, several care homes are in difficulties. Does the noble Earl think that the cuts that are being made might have a role to play as well? Have the Government made a full analysis of the dire situation in the care home sector?
Clearly, my Lords, before the Government produce a White Paper on social care a thorough analysis will be done, and we have the Law Commission report that will guide us in part. Southern Cross developed a business model that worked during times of increasing prosperity, when property values were buoyant and occupancy levels were similar, but it entered into contracts with its landlords which are proving unsustainable in the present climate. Demand for residential care is reducing generally. Not only are councils purchasing fewer care home places, but people are also opting for greater personalisation and more innovative approaches to providing care services, including being looked after at home. My advice is that the Southern Cross business model is unique. That may be—the noble Lord has considerable knowledge in this area—an overstatement and perhaps there are some care homes which are similarly structured, but it is certainly the largest and most significant model of its kind that we are aware of. From the advice I have received, I do not think we should be unduly concerned that other instances on a par with Southern Cross are likely to occur.
My Lords, I welcome the Government’s decision to prioritise sustainability because the demise of Southern Cross is a stark example of the dangers to sustainability of overly aggressive financial engineering: too much debt, too many unwise property deals and too many gullible banks; in short, too much avarice and not enough prudence. As the Government contemplate how best to regulate the financial aspects of this industry, how will they ensure that the new operators of Southern Cross care homes will be financially sustainable?
My Lords, we are reverting to the question asked by the noble Lord, Lord Campbell-Savours. The CQC already has some duties to ensure that the care homes it registers are able financially to sustain their business, as well as simply providing a quality service. But this is clearly an issue that needs to be looked at. As I have mentioned, we are taking powers in the Health and Social Care Bill which potentially could see the care-home sector subject to the kind of financial regulation that we are applying to the NHS. This is a work in progress.
Electricity Market Reform
My Lords, with the leave of the House, I shall now repeat a Statement made in the other place by my right honourable friend the Secretary of State for Energy and Climate Change. The Statement is as follows.
“With permission, Mr Speaker, I would like to make a Statement on the reform of the electricity market.
Since privatisation in 1990, our electricity market has served us well, delivering reliable, affordable electricity, but in the years ahead we face unprecedented challenges. The existing market was not designed to meet them. Over the next decade, around a quarter of our existing power stations will close, threatening the security of our energy supplies. Some £110 billion of investment is needed to replace them and to upgrade the grid. That is twice the rate of investment of the last decade and the equivalent of 20 new power stations. At the same time, demand for electricity could double over the next 40 years as the population increases and we increasingly turn to electricity for heat and transport. We also face ambitious carbon emission and renewable energy targets, as we seek to build a cleaner energy future for Britain and the world.
In order to achieve our goals we need to take decisive action now to increase low-carbon electricity generation, including nuclear, renewable energy and carbon capture and storage. None of these challenges can be met for free. We will have to pay to secure reliable, clean electricity for the future and we cannot ignore the long-term trends in electricity prices. Increases in wholesale costs and in the carbon price are likely to lead to higher bills in the future, even without factoring in the huge investment needed in new infrastructure. So it is vital that we put in place market arrangements that deliver this investment as cost-effectively as possible. The current electricity market is simply not up to the job. It cannot deliver investment at the scale and the pace we need.
Without reform, our reserve capacity—the power plants we can call on when demand surges—will fall to uncomfortable levels. We would face a much higher risk of blackouts by the end of this decade. We would also be locked into a worrying reliance on fossil fuel imports, putting us at risk of rising and volatile prices. Consumers could end up paying even more. That is why I am putting before the House today a series of measures to reform the electricity market, diversifying our generation mix and boosting investment in secure, sustainable and home-grown, low-carbon technologies. There are five key elements to our reforms.
First, the Chancellor announced in the Budget a new carbon price floor to put a fairer price on carbon, reduce uncertainty for investors and provide a stronger incentive to invest in low-carbon generation now.
Secondly, we will send a clearer message that low-carbon electricity is a key part of our future energy mix. We will introduce a new system of long-term contracts in order to remove uncertainty for both investors and consumers and to make low-carbon energy more attractive. Contracts for difference will be introduced for all forms of low-carbon generation, lowering the cost of capital and allowing clean technologies with high up-front and low long-run costs to compete fairly against traditional unabated fossil fuels. This will build on the carbon price floor, providing the additional clarity and certainty that investors need.
Thirdly, we will introduce an emissions performance standard to send a clear regulatory signal on the amount of carbon new fossil-fuel power stations can emit. This will reinforce the requirement that no new coal-fired power stations are built without carbon capture and storage, while ensuring that vital investment in gas can take place. CCS is a key part of our plan to decarbonise electricity generation. It is the only technology that can potentially reduce emissions from fossil-fuel-fired power stations by as much as 90 per cent.
Fourthly, to ensure security of supply in the future we will introduce a new contracting framework for capacity, changing the way we secure our back-up electricity. This capacity mechanism could mean centrally procuring capacity which is set aside from the market and used only when it is needed, or it could mean a market-wide mechanism, in which all providers offering reliable capacity are rewarded. Under both options, we plan to ensure fair and equivalent treatment between all the ways of achieving what we want—demand response, storage, interconnection with our European partners and extra generation. Shifting or cutting demand for electricity is likely to be more cost-effective than simply building more and more power plants. It complements our work to drive down demand through energy efficiency measures such as the Green Deal and smart meters.
Fifthly, we will put in place transitional arrangements to ensure that there is no hiatus in investment while the new system is being set up, and we will create new institutional arrangements to deliver the reform package.
Together, these reforms will tackle the immense challenges facing the electricity market. They will put in place the framework to deliver the capacity and demand-side response we need in order to guarantee future security of supply. They will encourage investment in proven low-carbon generation technologies and they will give investors confidence that there will be a market for electricity generated with commercial carbon capture and storage, confidence that will drive investment in both demonstration and commercial CCS plants.
Six energy companies supply around 99 per cent of customers in the UK. Alongside action by Ofgem to improve liquidity, these reforms will boost competition within the market and make the UK a magnet for low-carbon investment, generating jobs and growth. This will help energy-intensive industries. However, we are also committed to bringing forward a package of measures to ensure our continued international competitiveness.
Finally, the reforms I have set out today will achieve our aims at least cost to the consumer, with bills for households and businesses likely to be lower and less volatile over the period up to 2030 than if we had left this market as it is. They will enable us to build a flexible, responsive electricity system, one powered by a diverse and secure range of low-carbon sources en route to a cleaner, greener future, insuring us against fossil fuel price shocks, ending 25 years of policy dithering and keeping the lights on and the bills down.
Alongside the electricity market reforms, I am also publishing today the renewables road map. For too long, discussion about renewable energy has focused on barriers. Now, for the first time, we have set out a detailed step-by-step plan to overcome those obstacles. The road map sets out a comprehensive action plan to accelerate the UK’s deployment and use of renewable energy. It puts us on a path to increase our renewable energy consumption fourfold by 2020 while driving down the cost over time. Growth on that kind of scale will be challenging, but necessary. The road map identifies eight technologies that have the greatest potential for the UK, such as offshore wind, where we have abundant natural resource and already have the world’s largest market.
Subject to further value-for-money assessment, the department is setting aside up to £30 million over the next four years to support technology development programmes to improve the efficiency and reduce the costs of offshore wind. With industry, we are setting up a task force to drive the work to achieve cost-competitive offshore wind. The recently published microgeneration strategy also outlines the actions that the Government are taking to tackle the non-financial barriers which could prevent microgeneration from realising its full potential. Together, the renewables road map and the microgeneration strategy will reduce costs for consumers and enable mature renewables to compete against other low-carbon technologies in the longer term.
I am also publishing today the final report of the Ofgem review. The review reaffirms the Government’s commitment to a strong, independent regulator, able to give confidence to investors, protect consumers and help meet our energy and climate targets. The summary of conclusions was published in May; this final report provides further detail on how the Government will seek to strengthen the regulatory framework.
The package of reforms that I have announced today will yield the biggest transformation of the market since privatisation. They will create an enduring framework for future investment and secure our electricity supplies for the future. They will provide our consumers with the best deal possible, help us meet our ambitious carbon targets and put us at the forefront of low-carbon technological development, ready to lead the world in the next energy revolution. I commend the Statement to the House”.
My Lords, that concludes the Statement.
My Lords, I thank the Minister for repeating the Statement. We welcome the fact that Chris Huhne, the Secretary of State, is seeking to address the matter and agrees with his predecessor on the need for reform. We should recognise that he has come a long way on this issue. He no longer describes nuclear as a “failed technology”, but says that it is an essential part of the UK getting off the “oil hook”, accepting its role as part of the energy mix for energy security. I am still unclear on the Government’s position on subsidy for nuclear. Chris Huhne has mentioned on many occasions that there will be no subsidy, but that seems to be interpreted as no subsidy that is different from that for other low-carbon generation.
In his December Statement, the Secretary of State said:
“We have a once-in-a-generation chance to rebuild our electricity market, rebuild investor confidence and rebuild our power stations … this will be a seismic shift, securing investment in cleaner, greener power and delivering secure, affordable and low-carbon energy for decades to come”.—[Official Report, Commons, 16/12/10; col. 1066.]
We agree that that is what this reform should deliver, although I would have put greater emphasis on affordability. That is why this Statement and the legislation that will follow are so important. If we were to get this wrong now, it would be a missed opportunity and would bind future generations to costly and ineffective measures.
So what do we expect from this reform? First, the consumer must be at the heart of any reform. We have to reconcile the interrelated aims of energy affordability to protect the consumer, decarbonisation to protect the environment, and energy security to protect both the consumer and the economy. The Government have recognised that the current energy market structure will not deliver investment in new low-carbon technology and provide the additional capacity that is needed to meet our carbon reduction targets. We welcome that acceptance, because it is clear that fundamental change is necessary to meet these targets, secure energy supply and encourage investment. We will want to be reassured that these proposals add up to a responsible and realistic package that will deliver those interrelated aims
I regret that, to date, despite our seeking to be very constructive with the Government, we consider that they have fallen short in their stated aim to be the “greenest Government ever”. Every time that one firm announces a price increase, the Secretary of State’s advice is to shop around and change energy supplier. We can do that only so many times as one after another company puts up its prices. For the sake of the economy, business and domestic consumers cannot continue paying ever higher prices.
The Energy and Climate Change Committee in the other place has recommended that any reforms need to be accompanied by,
“sound social policy to protect vulnerable consumers”.
Given that the Government have pulled all government-funded energy efficiency programmes, can the Minister say anything today about how these reforms will help both business and domestic energy consumers with their ever-increasing bills?
The Minister’s comment in the Statement that bills for households and businesses are,
“likely to be lower and less volatile over the period … than if we had left the market as it is”,
really is not good enough. If, as predicted, consumers are going to be asked to pay more to deliver this programme, we need to give them far greater certainty. I ask the Minister and his colleagues to reflect on that.
Another concern is that recent ill-judged government intervention in the energy market has already led to a hiatus in energy investment and uncertainty across all sectors. I do not want to labour the point today as we will debate on Thursday the solar feed-in tariffs fiasco that has destabilised the solar sector and sent shockwaves through other renewable sectors, but there are other issues which have had an impact on investment. Companies, including RWE, are considering pulling out of the UK because of the uncertainty caused by the Government on investment. That has been underlined by the Pew Environment Group’s report showing the UK slumping from fifth to 13th in a global ranking of countries for green investment. Constraints on the green investment bank have led the CBI deputy director-general, John Cridland, to say that the bank,
“certainly won't work if it needs the Treasury's permission to blow its nose”.
The Energy Bill seems to have disappeared into a black hole in the other place; it will not even have its final stages before the recess. To date, the Government’s track record is not as good as we would want it to be. In all our interests, with the White Paper before us today, the Government cannot afford to get this wrong.
As the Minister has acknowledged on many occasions, we want to be supportive, and I always approach these issues constructively. We will support measures that achieve the Government’s stated aims and benefit the consumer and the economy. The Government will want to satisfy some key tests if reform is to work. A new market needs to be greener but also create confidence, clarity and certainty for industry; make room for innovation in emerging energy solutions; provide a good deal for both domestic and business consumers as users and taxpayers; and deliver the necessary investment in the UK energy sector for security of supply.
The document before us today is quite lengthy, as are the associated documents published by the Government. They propose a mixed bag of measures. I am not sure that I yet fully understand how they will work together to give us the policy structure that we need to achieve our objectives.
For example, the Energy and Climate Change Committee in the other place considers that the level at which the emissions performance standard has been set,
“would have no material impact and is therefore pointless”.
Since that report was published, have the Government been able to take note of those concerns and make any adjustments before the final White Paper was published today?
The carbon price floor was introduced by the Budget independently of these proposals. DECC seems now to understand the impact of what is seen as a tax grab on industry, thereby potentially exporting businesses and their emissions overseas. What action will the Government take to ensure that this does not disadvantage British business, and what discussions on these issues has the Minister had with organisations representing intensive energy users in industry in the UK?
I certainly welcome the Government’s acceptance that their message that low-carbon electricity is a key part of our future energy mix has not been clear enough and that action will be taken to remedy this. I look forward to further announcements on the detail. As he will appreciate, the renewables road map, to which he referred, can work only if investors can have confidence in the Government’s ambitions.
The detail in the Government’s plans regarding the ongoing consultation on the capacity mechanism and the contract for difference will be crucial. These are complex issues and the devil will be in the detail.
The transitional arrangements to ensure that there is no hiatus in investments while this new system is set up are welcome, but, as I have already said to the Minister, there is a hiatus now and transitional arrangements are urgently needed to restore confidence in the market. Perhaps the Minister could say something about the timing of the transitional arrangements. That would be very helpful.
Our existing “big six” energy companies will undoubtedly need to help to provide our new energy generation, but we need to free up the suffocating oligopoly which stifles real competition from new energy investors. Today’s announcement and publication of the documents is welcome and part of an ongoing process. However, to identify the problems is easy—we have discussed them in your Lordships’ House and the other place on many occasions—but the challenge is to meet the objectives. We will continue to play our part in that.
My Lords, I am very grateful to the noble Baroness for her comments. She rightly said that meeting the challenge is very difficult. The previous Government found it very difficult. I am happy to say that we have played our modest part by encouraging six new nuclear power stations, setting out a road map and introducing a series of measures that will regenerate the energy and electricity supply market—which, as I said earlier, has not happened for 20 years. We have inherited a legacy of inactivity. It is a major structural problem; it is not one that we welcome, but we in this Government intend to get our hands on it and deal with it.
I note the noble Baroness’s point about nuclear subsidy. I shall continue to remind her that we have always said there will be no subsidy for nuclear other than that available to wider technologies. The wider technologies obtain a subsidy and nuclear is now part of that.
On the noble Baroness’s comment about bills, it is fair to say that bills have risen and are going to rise. I go to my petrol pump and find it costs me £1.33 to fill my car—no, I am sorry, it costs me £1.33 per litre. That is more than £1.33 to fill the car—it is about £1,033. Bills are rising outside our control because we are reliant on fossil fuels and oil coming from different shores, rather than the wonderful security in which a number of noble Lords, including my noble friend Lord Lawson, were able to bathe—an oil supply from our own sources. When you invest in a new infrastructure which needs £110 billion there will be bill increases on the horizon. Do we want to do this? Of course we do not—we want to keep bills as low as possible and to reduce them—and the plans we have set out will enable us to recover that position and to not see the same exponential rises that we have had of late.
The noble Baroness referred to feed-in tariffs, doubtless with the solar photo voltaic debate that will take place on Thursday in mind. Do we think it right that the Government should prioritise billions of pounds to support an industry which is not necessarily climatically suited to this country? The Government have to make tough decisions; they have to establish value for money for the taxpayer when deciding where to allocate funds to support developing technologies. The current Government, of which I am proud to be part, do not consider that this technology requires the same degree of support. The industry is becoming mature and the cost of equipment is coming down dramatically and we have therefore taken a view on it.
The noble Baroness referred to RWE. I believe that RWE is less certain of its future in its home country than it is here. It has various jurisdictional issues in terms of the future of its own nuclear industry that present it with far-reaching problems beyond our shores.
The Government have committed to the green investment bank and we have allocated funds to it. You cannot just click your fingers and establish a funding bank overnight, but in 12 months we have got to grips with the issue and it is well on the path.
We have consulted on the issue of EPS but we have not changed fundamentally what we set out to do. It is important that we have standards for companies that do not comply with a reduced performance format. That is the long-stop part of regulation which will set a clear regulatory path of where people can perform in energy supply.
Clearly we need to take into consideration the energy-intensive industries and we are consulting with them at the moment. We will announce a package of support for them to encourage them towards lower carbon usage. They are major employers in the country and major international exporters. It is important that we recognise that in any regulation we introduce, and at the end of the year we will announce a package of measures to support that.
I hope that that explanation goes a long way towards answering a number of the excellent points made by the noble Baroness. I have a feeling that there will be some more excellent points in a moment.
My Lords, this is a most extraordinary Alice through the Looking Glass Statement. Is my noble friend the Minister not aware that almost every single assertion in it is the precise reverse of the truth? Is he not aware that if renewable energy was genuinely cheaper than conventional carbon-based energy, there would be no need for this plethora of measures? Is he not aware that every single energy expert, from Ofgem to all the independent experts in the universities, Professor Dieter Helm and so on, has said that the Government’s policies will lead to a substantial increase in electricity prices?
My noble friend mentioned 2030. Is he not aware that the Treasury has estimated that the carbon floor price alone will lead to an increase in electricity prices of between 60 and 70 per cent by 2030, to the great detriment of the consumer, British industry and the British economy, which—goodness knows—is in a fragile condition as it is? On this issue, the Government’s policies are not the solution but the problem.
It is always a joy to hear my noble friend—as indeed he is. Let me quote him back a figure on prices. Is he not aware that electricity prices went up 18 per cent in one week? Forget 60 per cent in the time span he is talking about; they have gone up 18 per cent in one week. Why? Because we have been reliant on fossil fuels imported from other countries, with no control over security of supply.
With due deference to his great knowledge and to his great achievements as an Energy Minister and in the Treasury, he must be aware that there has been no investment in the energy infrastructure of this country in the past 20 years. The Government of which he was part and the previous Government were part of that. He must at least give credit for the fact that we are about to embark upon a massive investment and that, in order to establish an investment, you have to set out a pathway on which people have clarity for their investment.
My noble friend has quoted various institutions to me, and I would like to make him aware that we have consulted and discussed this with every energy supplier in the country and with a wide range of people. By and large, as much as one can possibly tell, this has been universally applauded by the industry and those who are seeking to invest. We may be proven wrong but, at the moment, it is all looking quite good.
The Minister has to take some credit for making another stab at market reform. It is not the first one for 20 years; there were two in the late 1990s—the NETA and BETTA reforms—so he is wrong to say that nothing has taken place in this matter. However, those reforms are now out of date. We need reassurance for investors and I think that, to an extent, we will get that from this document. However, I am not sure whether the social dimension and the cost to the consumer will necessarily be given equal weight.
The emission performance standards rely heavily on carbon capture and storage being realised—taken out of the laboratory, on to the factory floor, produced and then adapted for use in power stations with turbines in excess of 400 megawatts—but that seems to be a long way away. I worry that, come 2015 when we have the large plant directive, we will deny ourselves access to coal-fired power stations and will not have CCS available by that time. We could, therefore, well have a dash for gas on the scale that we had in the 1990s, with all the price implications that the Minister has already stated. When does the Minister expect carbon capture and storage to be available to British power generators, and particularly to the coal-fired industries? Unless we get that assurance, this will be, in large measure, a pipe-dream of the Government. I say that more in sorrow than in anger. We need to have a clearer indication of when we are likely to get carbon capture and storage. My inclination is that it will not come before 2020 at the earliest.
The noble Lord, Lord O’Neill of Clackmannan, is an expert in his field. He also knows that I am responsible at the moment for leading the negotiation on carbon capture and storage. I am delighted to make the Statement in your Lordships’ House because it withdrew me from the negotiation process where we are in something called lock-in at the moment. I will not venture to suggest the outcome of the negotiations. They are extremely determined and it is a very complex programme. At the moment, we have three energy providers and me in one room at different times trying to bottom out where we can get to. I have been set the task of achieving this in operation by 2016. We may or may not get there. I am not going to predict one way or the other because it is a quantum leap. We must not underestimate the extent of that.
The noble Lord is quite right that a number of our energy policies are predicated on carbon capture and storage—but by no means all of it. The fact is that the EPS provides for gas. As my noble friend Lord Lawson would ask me to say, gas is fundamental to the future. I completely support his view on that. It is much less carbon intensive, will be fundamental to our electricity generation going forward and will be a large proportion of it.
My Lords, I generally welcome this Statement and the reforms that are there, in two areas particularly. We have often said in the House that if we had a proper carbon price that managed, in the jargon, to internalise the externalities of the cost of carbon we could then just let the market get on with it. Unfortunately, the EU ETS has not managed to deliver on that sufficiently. I understand that we only have a carbon price floor here for electricity generators. At least that is a move in that way.
I also particularly welcome the emissions performance standard. I have argued for that for ages and could never understand why, if we have emissions standards for cars and various other implements that we buy, we do not have them for the largest energy users such as power stations as well. I am not so concerned by a short-term dash for gas as long as that supply is diverse rather than concentrated in terms of our energy security.
I want to ask the Minister two things. He is absolutely right that the real risk to pricing is fossil fuels but it is also to a degree market concentration. How will these reforms make sure that there is less concentration of market power in the energy industry and how are we going to make sure that there are new entrants that can grow substantially to challenge that existing power? In terms of the market mechanisms, is he confident that there will be enough liquidity in the markets to make sure that these contracts for difference and that whole mechanism will work, so that we are able to deliver the policy objectives as he wants?
My noble friend Lord Teverson has always asked the apposite question. First, we want to get away from the language of a “dash for gas”. Gas will be fundamentally important. We are not dashing for it. We have to make sure that we separate the price of oil and gas. Gas is now a very competitive energy product, as we have noticed in the USA where shale gas has been discovered. We do not want to call it a dash for gas. It is long-term support for gas.
As to the market mechanism, Ofgem will be tasked with bringing liquidity into the market as the regulator. It has got to show some teeth in generating regulation. You get there by people generating their own electricity and feeding into the market on the one hand, and on the other requiring less from the electricity providers by having energy-saving products such as the Green Deal and smart meters—part of the programme that we have been pretty unified in wanting to adopt.
My Lords, I will be quite short but can my noble friend answer one or two questions? First, we have waited a long time for this Statement. As I understand it, the reforms will require legislation. When are we likely to see the Bill? Secondly, he referred to the various forms of energy generation but I am a bit disappointed that we have in this White Paper a framework for renewables when we also need a framework for nuclear—my noble friend will realise that the Select Committee is currently looking at this. While I welcome the regular statement that is put out by Ministers on the importance of nuclear, there is huge doubt at the moment about what is going to happen after what they call the interim date of 2025. This is certainly affecting the idea of any investment for the future.
Finally, my noble friend referred to the need for new institutions to administer the FIT with contracts for difference, and also the new capacity payments. Can he give us a little more indication of what form those institutions might take? They are clearly going to perform a very important role in the new market structure that the White Paper foreshadows.
As ever, the noble Lord, Lord Jenkin, knows the subject. I am slightly disappointed that he does not believe that there is a nuclear framework. We announced that there are to be six new nuclear power stations and reaffirmed that announcement two weeks ago and the sites where they will be located. Realistically, there are a number of issues in terms of the balance sheets of some of the companies wanting to invest—as we have seen from the fall-out in Germany. Having spoken with EDF, Iberdrola and others this week, I know that they are very committed to the cause of the nuclear framework.
As to when the legislation will happen, we are obviously hoping that it will start at the end of this year. There are some timing issues, even with getting the first Energy Bill back to this House—as we all know. The legislation issue will be difficult because there is a certain logjam in the other place.
On who will operate and regulate the supply, this will largely be Ofgem, which will have greater teeth. As we are running a little bit out of time, I am happy to discuss at a later time with the noble Lord the various component parts of that rather than going into it now—if he is happy for me to do so.
My Lords, I want to ask one question, relating to the position of the devolved Administrations, particularly Scotland. The renewable obligations are executively devolved to Scotland and that has enabled the Scottish Executive—now the Scottish Government—to shape that as they wish. What role does the noble Lord anticipate that the Scottish Government will be able to play in the new feed-in tariffs with contracts for difference? What will be the relationship between the Scottish Government and the new institutions that he talked about?
Naturally, we work very closely with the devolved Governments. We are all travelling down the same path. However, HM Treasury, rather than the Scottish Government, will be responsible for the renewable heat incentive funding. That is in the spirit of the union, I think.
My Lords, this extremely important White Paper sets out to introduce the reforms, if one can call them that, which the Government consider are necessary if they are to meet their targets for extremely high-cost, heavily subsidised renewable energy. I hope we will get the chance to debate it.
I have just one question for now. The Statement mentions offshore wind on three occasions but makes no mention of onshore wind. Can we take it that the Government are lowering their sights with regard to onshore wind and, it is to be hoped, abandoning their targets altogether? It is a deeply unpopular form of renewable energy, it bitterly divides local communities and it is destroying some of our finest countryside.
I do not think my noble friend can take that from our Statement. The reality is that onshore wind does divide communities—my noble friend puts his finger on it—and it therefore becomes an issue for local communities to decide through the local planning process whether they want it. A large number of local communities in Scotland are embracing onshore wind whereas a number of communities in this country—I am sure my noble friend Lord Reay’s community is one of them—do not want to embrace it. The reality is that the Government have a target. Two-thirds of that target for onshore wind is either met or is in the process of being met so there is a very limited amount of headroom. Our real push is to get offshore wind up to the target we wish to achieve.
My Lords, I hesitate to intervene but there is one thing I need to say and one question I need to ask. We should stop worrying too much about cost. I have said this before but I have seen farm tractor diesel prices rise by well over 4,000 per cent since I started in business. That has been vexing occasionally. It is always difficult to put up with rising costs but we live in a different world. This is an evolution in costs over a similar period. If we can keep the costs down below that sort of increase we shall have done very well indeed. That is a harsh reality which my noble friend Lord Lawson may find uncomfortable. However, when he was Chancellor of the Exchequer, he may have had something to do with what has happened.
The Minister is essentially setting out a programme through until 2030. The difficulty is that the major infrastructure investment he requires will consist in many instances of projects which will still be running in 2050, by which time we shall have to have a carbon-free, or virtually carbon-free, energy industry. There will still be one or two essential uses. What is the Minister going to do if he finds that the 10 per cent of the carbon which still has to be emitted in a coal-fired power station is incompatible with the 2050 target when he is committing a 40-year investment? That is what it will be if he gets someone to build a CCS power station today.
My noble friend Lord Dixon-Smith asked me what I would do in 2050 if we had not reached our targets. By my calculation I will be about 90 so I will either get on the plane to Switzerland or I will not worry about it because I will not have my marbles to worry about it.
On a serious note, it is very impressive that all of us in this Room are thinking about the next generation and the supply of electricity and how we are going to get to it. I take issue slightly, but not with the sentiment, that we have to stop thinking about prices. We have to think about prices. It is absolutely fundamental that we find ways of keeping the country competitive with the rest of Europe, as we are at the moment in terms of our prices, and that electricity and energy are affordable to the people of this country. However, I think the fundamental point my noble friend is making is that prices are going to go up, they do go up and they have gone up. It is a fact of life, unfortunately, but it is incumbent on government to ensure that the cost to the people of this country is as low as possible and is mitigated as much as possible.
Committee (7th Day) (Continued)
148: After Clause 95, insert the following new Clause—
“Local development: survey of area
(1) Section 13 of the Planning and Compulsory Purchase Act 2004 (survey of area) is amended as follows.
(2) After subsection (3) insert—
“(3A) The local planning authority shall undertake and publish a numerical assessment of the level of housing need and demand for all age groups in its area, together with its proposals for addressing such need and demand including plans relating to the provision of housing across all types and tenures.””
My Lords, localism and the Localism Bill present many opportunities for people of all backgrounds and all ages to be involved in local decision-making and developing their neighbourhoods. I declare an interest as heading up a think tank, ILC-UK, which looks at the impact of demographic change on all our lives. Some of the research ILC-UK carried out showed that opportunities in the Bill may benefit only those who already enjoy an advantageous position in society and may not adequately protect and demonstrate the needs of those who are marginalised, particularly older people. Given that much of the development of new homes and communities is going to depend on neighbourhood development plans, which will be voted in by the local population, there is a danger that these plans may not adequately reflect the needs and wishes of marginalised groups in the local population.
Amendment 148 therefore seeks to strengthen the requirement for local authorities to produce adequate assessments of the housing needs of their local population. If they are to do this, it is essential that they have robust social and demographic data—they are certainly not going to make informed decisions about future housing provision without those data.
Section 13 of the Planning and Compulsory Purchase Act 2004 lists what councils should look for when producing housing need assessments. It states that an authority must keep under review matters that are likely,
“to affect the development of their area or the planning of its development”,
“the size, composition and distribution of the population of the area”.
However, this piece of legislation has had very limited impact—indeed, in some cases it has sadly been completely ignored. One example of the failure to assess adequately the demand for new homes at a local level relates to the housing needs of older people.
I will quote two examples that were outlined in a recent report by the National Housing Federation. The Audit Commission’s review in 2010 of a sample of 112 local authorities’ financial plans showed that only 10 per cent made any estimate of the financial impact of provision for increasing numbers of older people despite a rapidly ageing population, as I think everyone will acknowledge. In October 2010, the National Housing Federation surveyed local councils on older people’s housing strategies—153 councils responded to the survey but 32 per cent of them had neither a strategy nor plans to develop one. This is partly because in many cases local councils do not include in their plans the need for retirement housing, even though the ageing population is rapidly expanding. Certainly the largest provider of retirement accommodation in the country, McCarthy and Stone, believes that is the case. Fulfilling the need for retirement housing would be a very good way of getting underused housing vacated for the use of the younger generations who are having great difficulty in getting on the housing ladder, but in order to do that we have to provide specialist housing for older people.
Localism will rely on the correct evidence base being in place, so it is essential that councils are required to produce those data. Without strong guidance provided by central government, the examples quoted here show that local authorities will continue to struggle to produce robust housing needs data. Amendment 148 seeks to address that problem. I beg to move.
My Lords, we have Amendments 148ZZA and 148ZZZBA in this group, but they are consistent with the amendment moved by the noble Baroness, Lady Greengross, which we support. They have been proposed to us jointly by Shelter, the TCPA and the National Housing Federation. These amendments would help to ensure that local authorities produce a robust and public assessment of housing needs to inform local plans. Amendment 148ZZA requires housing needs to be addressed in the local development scheme, while under Amendment 148ZZZBA the LPAs must regularly survey their areas and publicise the results.
Local plans must integrate land use planning, housing strategies and delivery. While the national planning policy framework, when it appears, may help to promote this objective, we think that this issue is too important to leave to regulations and guidance. All local authorities should be required to undertake a strategic assessment of housing need and demand to provide the necessary evidence to inform the development of housing strategies and planning policies for their areas—the points raised by the noble Baroness cover this—and the needs of an elderly population that is growing older.
The information should be key to determining the amount of housing required, including affordable housing and housing specifically designed for people with care and support needs and in allocating a sufficient amount of land to meet and identify housing requirements. Bodies such as Shelter, the TCPA and the National Housing Federation have welcomed a more localised approach to planning and see the reforms to the planning system as an opportunity to allow local people to play a more active role in shaping development in their area by helping to shape local plans and hold their local authority to account.
In order to enable local people to play a more active role, it is vital that they have access to data that give them as full a picture as possible of the housing situation in their area and enable them to assess their local authority’s performance. Through local authorities setting out clearly in the local plans how they plan to address housing need, local people will be far better placed to hold their local authority to account on the success that they have achieved. Without clear aspirations being set, local people are likely to find it difficult to assess how well their local authority is performing.
The importance of providing access to good local data was outlined in the Conservative Party’s Open Source Planning paper, which sets out that in developing their local plans, councils will be expected to ensure as a minimum,
“the provision of good data by the local planning authority to the electors in the neighbourhoods, so that they can develop their vision for their community on a well-informed basis … this will need to include analysis by the council of the likely need for housing and for affordable housing for local people in each neighbourhood”.
The introduction of more consistent data sets will also allow local authorities greater opportunities to increase integrated working across areas such as sharing back office staff. That would be particularly useful in some areas of local housing planning, but varying data sets would make the practicalities of joint working more difficult. This will help to deliver the aims of a more localised system by ensuring that local people are able to play an effective role in shaping local plans and holding their local authority to account while enabling local authorities to work together more efficiently.
In Committee in the other place, the Minister stated that the Government would require from local authorities,
“an absolutely clear, transparent, robust numerical assessment of housing need”.—[Official Report, Commons, Localism Bill Committee, 17/2/11; col. 637.]
However, he argued that Section 13 of the Planning and Compulsory Purchase Act 2004 already outlined the necessary duty. In fact, with respect, Section 13 does not consider a critical element of housing need, or other needs, which is a forward projection of future need and demand. In the absence of such a clear duty, it would be easy for some local authorities to look narrowly to immediately presenting housing need and to avoid responsibilities, especially to the next generation and to the wider housing market. It is on that basis that I propose these amendments and support the amendment of the noble Baroness, Lady Greengross.
My Lords, forgive me if I am wrong, but I thought that all councils were already required to make a housing needs assessment under the existing PPS3. If that is the case, I am not sure what the amendments will add other than to make councils do their job better.
My Lords, I give qualified support to Amendment 148 in the name of my noble friend Lady Greengross and to Amendments 148ZZZA and 148ZZZBA tabled by the noble Lord, Lord McKenzie. My support is qualified because the words,
“the local planning authority must”,
are not popular in local government circles. I would find it hard to be entirely supportive of extra obligations being placed by central government on local authorities, but I am supportive because noble Lords are absolutely right that collecting local data on housing markets and making them available, not least to any neighbourhood preparing a neighbourhood plan, as well as to the local authority preparing its local development plan, is more than just good practice; it is essential if housing providers are to meet local needs and demands.
To take the example of the area of interest to the noble Baroness, Lady Greengross, if the local authority’s assessment shows that many thousands of family houses are occupied by one older person or an elderly couple, with the certainty that all those occupiers will grow older in years to come, clear signals can be given to private house builders and housing associations that there is a big market for attractive, manageable, economical apartments that are tailor-made for older people to buy or rent.
I give full backing to the intention behind these amendments and hope that their objective of getting local authorities to do what they should can be fulfilled, not least through the national planning policy framework, even if that objective is not accomplished by a new obligation on local authorities.
I hesitate to express a slightly different point of view as a vice-president of the Local Government Association from our esteemed president, but I am not quite as reluctant as he is to see this kind of duty, as proposed by the noble Baroness, Lady Greengross, and my noble friend Lord McKenzie, incorporated into the law, particularly given the state of the housing market in general and the huge unmet demand for housing, particularly affordable housing. It is important that all authorities recognise that there is a need to promote the provision of more accommodation. It is noticeable that since the disappearance of the regional spatial strategy, something like 200,000 houses it is estimated will no longer be built that would have been built had those plans been progressed.
I add one further dimension to the prescription from the noble Lord, Lord Best, for encouraging new building. I entirely agree with him that it is very desirable for private builders and housing associations to help to cater for the needs of an increasingly ageing population and indeed others. To that I would add local authorities themselves. That might be something that they would appreciate. Perhaps as a quid pro quo for having the extra responsibility of drawing up plans for affordable housing, the fact that they might actually be able to provide some themselves might be an additional incentive. I hope that sweetener will persuade the noble Lord, Lord Best, that his qualification might safely be abandoned.
My Lords, I support the principles of the amendment proposed by the noble Baroness, Lady Greengross. A whole section of this Bill later on in Part 6 deals with social housing and changes many of the existing arrangements for tenure, what the local authority is obliged to provide and tenants’ rights. Some of them I support and some of them I strongly oppose. However, the whole point of a social housing strategy is that it relates to the totality of the housing need in the area. Unless there is a provision somewhere in this Bill, such as the provision suggested by this and related amendments, dealing with social housing in the abstract is nonsense.
All forms of housing tenure are in crisis. We know that a lot of people who would have got a mortgage by the age of 30 now can no longer get a mortgage until their late 30s or even into their 40s. More and more people are having to rent in the private sector and are being delayed in setting up an independent household. We know that the rate of household formation is growing because of various developments in society, but it is growing at twice the rate of new build housing. We therefore have to have an holistic approach to housing need, area by area. If we are not going to achieve the targets through the regional spatial strategies, which I admit were a bit Stalinist in their approach, we have to ensure that the local authorities themselves take responsibility for looking at housing need in their areas and assessing it against their private sector development plans and the social housing that they and the housing associations in their areas can provide.
Somewhere in this Bill we need to tell local authorities that part of their responsibility from now on must be assessing total housing need against costs, against price and against demographic trends. That is not covered by the 2004 Act in sufficient detail. Given what I would regard as something close to a crisis in the housing market in all forms of tenure, I think it would be appropriate for us to set that out in the Act. Then, when we consider the social housing provisions, we can set them against a requirement for every local authority to assess needs, supply, demand, price, and demographic and employment changes, and to set its social housing targets and provision against that background. Unless we do that, social housing is isolated and is a residual form of housing based on what is already there. It does not relate to the needs of the totality of the community in which local authorities operate. If the Government are prepared to accept the noble Baroness’s amendment here, they need to say that at least somewhere in this Bill, and we need to ensure that local authorities behave accordingly.
My Lords, this has been a very useful debate. I do not think that the Committee is very far apart on the essential importance of housing and making housing one of the key ingredients of the planning process. I thank the noble Baroness, Lady Greengross, for the typically intelligent and sensitive way in which she introduced her Amendment 148 and led the group.
The amendments that we are considering include those of the noble Lord, Lord McKenzie, which seek this numerical assessment by a local authority of current and projected housing needs, the balance of affordable housing and proposals for addressing those needs in local development schemes, which are the documents setting out the programme and timetable for producing plans. Also required is the publication of annual reports of the matters reviewed and the changes proposed to implement local plans, and the publication of a review of a range of environmental, social and economic issues specified in the Planning and Compulsory Purchase Act 2004 prior to preparing its local plan. As I said, I do not think that we are a million miles away on the objectives.
I hope that I will be able to satisfy the Committee that the provision in the Bill is adequate and will achieve what we are all seeking to do. I fully agree that local authorities should understand and plan for the differing housing needs of people of all ages in their area, including the elderly population, families with children and people in need of affordable housing. Affordable housing plays an important role in creating sustainable communities and our economy. Good quality housing for people in later life can promote health, well-being and independence and reduce the need for costly care. From what they have said, I think that almost all noble Lords would support the efficacy of extra care housing, as advocated by the noble Lord, Lord Best, in meeting a targeted need in this way. Strong strategy provisions already exist in the Planning and Compulsory Purchase Act 2004, as noble Lords have said. Section 13 of the Act requires local planning authorities to keep under review matters that affect the development of their area, including the size, composition and distribution of the population in the area. This is a strong starting position from which to plan effectively for the needs of different groups of people.
National planning policy in this area is well understood and accepted. We intend to strengthen policy in the review that we are undertaking. As my noble friend Lord Cathcart said, planning policy statement 3 and its associated detailed guidance on strategic housing market assessment make it clear that local authority plans should be informed by a robust evidence base of housing need and demand in its area for market and affordable housing.
The noble Lord, Lord Whitty, is right: local authorities must look at housing policy in its totality—I think he used the word “holistic”. Local authority plans should consider a range of issues including demographic trends and the accommodation requirements of specific groups, particularly families with children, older people and disabled people. Section 19 of the Planning and Compulsory Purchase Act requires local planning authorities to have regard to national policy when preparing development plans in their area. The requirement to monitor and report annually on the implementation of their housing policy already exists in Regulation 48(7) of the 2004 regulations for local plans. Councils,
“must specify the number of dwellings built in the … area”.
Regulation 48(6) makes it clear that this number is,
“net additional dwellings in any part of the area of the authority”.
That is a long-standing arrangement that councils agree with and which we are not changing. However, we want to strengthen the arrangement further and already propose to include a requirement to report on affordable housing as part of our new streamlined regulations, which were placed in the House Library this week for information. We want local authorities to be held to account for their performance by their communities, and the Bill will remove top-down involvement by Government as councils will publish information direct to the public in the interests of transparency and accountability.
I am sorry, my Lords, my notes here say that it was placed in the House Library this week for information. Indeed, I think that I referred earlier to draft regulations that have been placed in the Library this week for the information of noble Lords. I hope that that will inform this debate. We are going on to debate housing, though probably not this evening, so noble Lords will have an opportunity to swot up on those.
The noble Baroness, Lady Greengross, mentioned neighbourhood planning. She wanted to know how it would protect minority groups. Neighbourhood plans will be tested at an independent examination and must have regard to the national policy and be in line with strategic elements of the local plan. Everyone has the right to be heard at the examination, and human rights issues can be considered.
I come to the point made before we broke by the noble Lord, Lord McKenzie, about two authorities with some tension trying to deal with an issue that was affecting their neighbourhoods. Compliance with the duty to co-operate is assessed through the independent examination of draft local plans, and failure to demonstrate satisfactory compliance risks the local plan failing the examination. Having no local plan means that councils lose control of how their area will develop. This disfranchises their constituents, who will hold them to account, as I said in my previous comments.
I would like to correct something that I said. When I said that the draft regulations had been put in the Library this week, I meant last week. Unfortunately, we are all suffering from a slight sense of jet lag as the Bill is moving with such rapidity through the House.
The noble Lord, Lord Beecham, mentioned the low housing build. I am sure that noble Lords opposite will reflect on the fact that this extends back into the period of the previous Administration. We must remember that the market for housing has suffered for reasons entirely unconnected with planning. However, the experience is that numbers in regional plans did not provide a reliable indication of the number of homes actually being built. We know that indicative planning at the regional level for housing need caused huge stress within the system.
We will shortly be publishing the new national planning policy framework, which reviews all national planning policy. I know that my ministerial colleagues understand and take seriously ensuring that the new policy framework makes clear the need for local authorities to understand the housing needs of all people in their area and to monitor the effectiveness of their policies. We will shortly be consulting on the draft of the framework, and will listen to all the views on this and other areas to ensure that the policy is as strong as it can be. I hope that that encourages the noble Baroness and that she will feel free to withdraw her amendment.
Before the noble Baroness answers, can I thank the Minister for alerting us to the regulations which have been posted in the Library? It is very difficult to keep abreast of what is going on in this Bill. We had some government amendments tabled yesterday of which we had no prior notice and it does not help an expeditious focus on the Bill.
Those, together with the NPPF, as soon as we get it, will reassure us on some of these points, although we would like to see this obligation embodied in primary legislation on the face of the Bill. My noble friend Lord Whitty encapsulated a debate which we will have more intensely in due course about the problems and challenges in respect of housing in the UK at the moment. Regional spatial strategies are not necessarily flavour of the month but, if you look at the record, there were years when they were beginning to deliver. If you look at 2007-08, we had the highest levels of house building for something like 20 years, just as that process was beginning to get under way.
I am grateful for the support of other noble Lords who have spoken and I am still unclear about the central issue of when you have a dispute between neighbouring authorities over housing provision and how, in terms of the examination of the plan and whether that plan is sound, those judgments will be made. I reiterate the point so that the noble Lord might reflect on it and possibly write in due course, certainly before Report. If you have two authorities which are at odds and take a different view, does the examination of the plan have to take a view as to which of those two authorities might be the most reasonable in their approach and therefore influence the outcome, or is that process in terms of co-operation just looking at whether each party played the game?
One of the things the Bill provides for, as we have just discussed in Clause 95, is the duty to co-operate. It is not a light thing; it is a duty. I mentioned in the précis I gave in response to the noble Lord that there are sanctions against authorities whereby they run the risk of thei