Commons Sitting of 20 June 2003

Preamble
The House met at half past Nine o'clock

PRAYERS
[SIR ALAN HASELHURST in the Chair]
The House being met, and the Speaker having leave of absence pursuant to paragraph (3) of Standing Order No. 3 (Deputy Speaker), SIR ALAN HASELHURST, The Deputy Chairman of Ways and Means, Proceeded to the Table.

Point of Order
9.34 am
Mr. Eric Forth: On a point of order, Mr. Deputy Speaker. Have you yet had a request from the Chancellor of the Exchequer to come to the House to explain the total confusion that now appears to reign in Government circles about the very important matter of tax? We heard on the wireless this morning the part-time Leader of the House and Secretary of State for Wales apparently intruding on the Chancellor's territory in seeking to sow confusion about tax. Surely it would help not only the House but the taxpayers of this country if the Chancellor were to be allowed to come to the House. If you have not already heard from him, can you confirm, were he even at this stage to request permission to make a statement today, that that would be procedurally possible, and that such a statement could be made at 11 o'clock, as is traditional? Can you confirm that so that we can all quiver in anticipation that this matter might be clarified?
Mr. Deputy Speaker (Sir Alan Haselhurst): No such request has been received, but it is possible to receive such requests until 10 o'clock, and the Chair will always be accommodating to a Minister seeking to make a statement to the House. I hope that that will prevent the right hon. Gentleman from quivering unduly for the rest of the morning.

Orders of the Day
  National Lottery (Funding of Endowments) Bill
  Not amended in the Standing Committee, considered.
  National Lottery (Funding of Endowments) Bill
    New Clause 1

      COMMENCEMENT
      `.—This Act shall come into force on such day as the Secretary of State may by order appoint.'.—[Mr. Chope.]
      Brought up, and read the First time.
      Mr. Christopher Chope: I beg to move, That the clause be read a Second time.
      Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to consider amendment No. 1, in clause 1, page 2, line 10, leave out subsection (9).
      Mr. Chope: In part, new clause 1 is a probing new clause. Paragraph 9 of the explanatory notes to the Bill states:
      "The Bill will commence immediately on Royal Assent."
      That is relatively unusual for a piece of legislation. The wording is normally in line with that in new clause 1, giving the Secretary of State the discretion to commence the Act as soon as he thinks fit, but normally not within two months of Royal Assent. I hope that my hon. Friend the Member for Mid-Norfolk (Mr. Simpson) will be able to comment on the fact that the wording in the Bill is different from the wording in the National Lottery (Amendment) Bill, which was considered by the House in the 2000–01 Session but which, sadly, had insufficient time to make progress to Royal Assent. I would like to ask my hon. Friend why he wishes to fetter the discretion of the Secretary of State on the issue of commencement, as the present wording does.
      My second reason for tabling the new clause is that, when I did so on Wednesday, I feared that the Government might in tend to commence the Act before the regulatory impact assessment had been published. On Wednesday, no such assessment had been published, and I wondered whether this was going to be a re-run of the situation that we had last week, when the regulatory impact assessment for the Fireworks Bill—which received its Second Reading on the same day as this Bill, 28 February 2003—had still not been published at the closing time for the submission of amendments on Report. In the case of the Fireworks Bill, the Minister told us:
      "I shall inform the House of the reason that the draft regulatory impact assessment was not published sooner. It had been produced, but the actual publication failed to take place due to an administrative oversight."—[Official Report, 13 June 2003; Vol. 406, c. 967.]
      Mr. Eric Forth: Does my hon. Friend think that this illustrates yet another undesirable trait in the attitude of the Government towards Bills and towards the House? Regulatory impact assessments are supposed to help all of us to assess the impact of a Bill. How can we be expected to

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      do that properly if they do not appear, or if they appear only at the last minute? Is this becoming a habit? If so, is it not time the House put its foot down?
      Mr. Chope: I fear that it is becoming a habit. In legal language, I was adducing what happened last week by way of similar fact evidence. Last week, I quoted from the foreword that the Prime Minister had written in 1998 to the paper on better regulation, in which he insisted—the Minister should listen to this—that the regulatory impact assessment process should be complied with to the letter by his ministerial team. It was not complied with by the Fireworks Bill team, nor has it been complied with in this case. No doubt we will find out whether that is also because of an administrative oversight.
      Last week, the Under-Secretary of State for Trade and Industry responsible for that Bill, the hon. Member for Welwyn Hatfield (Miss Johnson), who is to be congratulated on moving to another Department during the reshuffle to become Under-Secretary of State for Health, graciously apologised for Members not having more time to study the regulatory impact assessment. However, I was most surprised to find that there was no RIA for this Bill, as the Minister for Sport had said on Second Reading:
      "As the hon. Member for Mid-Norfolk said,"—
      I am sure my hon. Friend will bear this out, although, having read the Official Report, I am not sure that he said any such thing—
      "my Department has also prepared a regulatory impact assessment for the Bill that I will place in the Libraries of both Houses."—[Official Report, 28 February 2003; Vol. 400, c. 543.]
      On Monday, I asked the Library for a copy, only to be told that it had not yet been delivered. After prompting through a parliamentary question, the RIA was placed in the Library yesterday. There was, I am afraid to say, no apology for its being deposited late.
      The Minister, who I am pleased to see in his place, has not answered the question that I tabled yesterday as openly as he might. I asked
      "when the regulatory impact assessment was (a) prepared and (b) placed in the Library."
      He replied:
      "DCMS prepared a Regulatory Impact Assessment on the National Lottery (Funding of Endowments) Private Members Bill when it was first tabled. I said at the time of the Bill's Second Reading on 28 February 2003 that copies would be placed in the Libraries of both Houses, and this has now been done."—[Official Report, 19 June 2003; Vol. 407, c. 353W.]
      However, the Minister did not say, "This has been done today, almost four months after it was prepared." Nor did he take the opportunity presented by the question to apologise for the RIA being placed in the Library so late. I hope that we get an apology this morning.
      Another thing surprised me. When I read the RIA, I found that the Minister had signed it on 27 January.
      Mr. Forth: Oh!
      Mr. Chope: My right hon. Friend is right to exclaim, because we did not have the benefit of the RIA on Second Reading, which is what the Prime Minister says
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      should be the process, although we now know that it existed at that time. Almost five months later, it has reached the public domain.
      Mr. Forth: This is getting more and more worrying, I must admit. Notwithstanding my hon. Friend's analysis, is there anything in the RIA that is sufficiently damaging for it to be concealed? In other words, is it his assessment that there is either a Government conspiracy or a Government cock-up? There are so many of both that it is difficult to tell one from the other these days.
      Mr. Chope: I was not going to refer in detail to the RIA, but I should summarise my point: if my hon. Friend the Member for Mid-Norfolk and other Members had seen it on Second Reading and in Committee, they might have raised a lot more questions on the Bill's contents and the Government's intentions regarding the powers in it.
      The RIA should have been publicly available in time for Second Reading, as required by "Better Policy Making: A Guide To Regulatory Impact Assessment", issued by the Prime Minister in 1998 under his own foreword. There is a flow chart on page 10 of that document, which has 81 pages, so perhaps the Minister may be excused if he has not read it right through.
      Mr. Forth: He should have.
      9.45 am
      Mr. Chope: My right hon. Friend is, as always, rather unforgiving in these matters.
      That document was reissued by the regulatory impact unit in January 2003, and it makes it clear that an RIA should be sent to Parliament with the legislation. It is no good saying that this is a private Member's Bill, and that therefore everything is different, because paragraph 1.8 explicitly says:
      "In the case of Private Members' Bills which the Government is planning to support, or is not intending to oppose, you"—
      that is addressed to the Minister—
      "should produce an RIA by the date set down for Second Reading."
      That brings me to the question of the new clause: why is there a need for such haste in wanting commencement on the same day as Royal Assent when there has been such manifest tardiness and laxity from the Department in dealing with this matter? That point is reinforced by the situation relating to the issue of draft guidance. On Second Reading, the Minister referred to guidance that he intends to give the lottery distributors:
      "I can announce that, should the Bill proceed—I hope that it will"—
      as do I—
      "my Department will issue guidance to distributors on this matter, and that a draft of the guidance will be made available to peers during the Lords stages of the Bill."—[Official Report, 28 February 2003; Vol. 400, c. 542.]

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      I requested that such guidance be made available in advance of this debate, but yesterday the Minister replied to a question by saying:
      "The guidance is currently in the process of drafting, and we will want to consult distributors before finalising the text and making it available for parliamentary scrutiny."—[Official Report, 19 June 2003; Vol. 407, c. 354W.]
      Parliament is to play second fiddle to the distributors, which is thoroughly unsatisfactory, but it is clear from that answer that there has not yet been consultation with the distributors, because the draft has not been produced. However, the Minister said that it would be made available in time for consideration of the Bill in the other place.
      As we learned in last Friday's debate, the other place has to consider whether it wishes to amend the Bill pretty quickly, because if there are any amendments they must return to this House no later than 11 July if the Bill is not to be excluded from making further progress. The House will have no opportunity to consider private Members' legislation beyond that date, so time is short, but we are told by the Minister, who is so desperate to get the Bill on the statute book that he wants commencement immediately upon Royal Assent, that he has not even got round to completing the drafting of the guidance, which will be made available for parliamentary scrutiny in the other House, but not in this one.
      I asked the Minister and my hon. Friend the Member for Mid-Norfolk why the House cannot see such a draft. Surely we are entitled to that. Is the reason slackness or a cavalier approach on the part of the Minister? Most of all, and in respect of underlining the case for the new clause, what is the urgency behind the immediate commencement on Royal Assent when there has been so much tardiness over this aspect of the Bill?
      That brings me to amendment No. 1, which is extremely significant since it would remove the requirement that the Bill be retrospective by leaving out clause 1(9). Why does it need to be retrospective? I looked for guidance in the explanatory notes, which say:
      "Clause 1(9) provides for these amendments to have retrospective effect."
      That is all they say. They give no reason or further explanation as to why there should be retrospective effect. We as legislators should be nervous about Bills that seek to be retrospective. Retrospection offends against the basic principles of law making, and it should be used only in the most extreme and special circumstances.
      What was said about this aspect of the Bill on Second Reading? My hon. Friend the Member for Mid-Norfolk, who is the promoter of the Bill, said:
      "The Department for Culture, Media and Sport previously advised that distributors other than the Community Fund could fund endowments, and some distributing bodies have made such grants. The Bill would have retrospective effects, which are in clause 1(9)."
      I am not sure whether that answered the question that I have asked. I was none the wiser after reading my hon. Friend's statement. Was the Department for Culture, Media and Sport wrong to advise that distributors, other than the Community Fund, could fund endowments? Have endowments been made that are, unless validated retrospectively, ultra vires?
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      On Second Reading, my hon. Friend said:
      "At the moment, all lottery distributors are able to make grants to endowments but the Community Fund is not."—[Official Report, 28 February 2003; Vol. 400, c. 528–29.]
      If that is the situation, what is the problem? Why is there any need for the Bill to be retrospective? It is apparent from this Bill and its predecessor Bill that the people of Norfolk, and indeed the people of Dorset, are concerned to ensure that they can raise money to help carers, and they want to do that by means of an endowment. There has never been any suggestion that they have received an endowment that was ultra vires and that they now need to validate it retrospectively.
      On Second Reading, several references were made to endowments, such as the £200 million endowment to the National Endowment for Science, Technology and the Arts. I want to ask the Minister a direct question. Was that endowment ultra vires? Is clause 1(9) designed to validate that expenditure retrospectively? Was the New Opportunities Fund's £50 million payment to a 10-year endowment as part of the fair share initiative ultra vires? Was the £16 million Millennium Commission 10-year expendable endowment to the millennium seed bank ultra vires? What about the £100 million endowment fund of the Millennium Commission to ensure a permanent future for millennium awards? Is that ultra vires?
      On Second Reading, the Minister implied that nothing ultra vires had gone on. He said that the Bill
      "will ensure that charitable bodies are not put at a disadvantage in gaining access to lottery funding."—[Official Report, 28 February 2003; Vol. 400, c. 541.]
      That is fine. In my submission, there is no need for the Bill to be retrospective. The Minister used the expression "tidy up the legislation". That is the precedent that the Government have used on the latest draft of the proposed European constitution, which they say is a tidying-up exercise. We now find its origins in the Minister's comments on Second Reading of this Bill.
      I thought that all might be revealed by reading what was said about this issue in Committee. I must say that I was extremely disappointed to see that the Standing Committee on the Bill sat for only 22 minutes. With the greatest respect to my hon. Friend, I do not think that during those 22 minutes the key questions were asked and they were certainly not resolved.
      On Second Reading of the previous Bill, the hon. Member for Norwich, North (Dr. Gibson) said that
      "out of eight national lottery distributing bodies, only the charities board is prevented outright from granting endowments".—[Official Report, 23 March 2001; Vol. 365, c. 584.]
      The then Under-Secretary of State for Culture, Media and Sport, the hon. Member for Vauxhall (Kate Hoey), said that that Bill
      "would help to put the NLCB on the same footing as the other lottery distributors, enabling it to make grants towards endowments when it wished to do so."
      She went on to say:
      "Anyone who is against the Bill must say why the National Lottery Charities Board should be treated differently from the other lottery distributors under the current law."—[Official Report, 23 March 2001; Vol. 365, c. 619–20]

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      We must consider whether the Government are using this Bill as a device retrospectively to validate that which is at the moment ultra vires. If not, what is the purpose of clause 1(9)? I hope that the Minister will address these serious concerns.
      Mr. Keith Simpson: I welcome my hon. Friend's gimlet eye over the proceedings. I am sorry that he was unable to be with us for Second Reading. If I had known of his enthusiasm, I would certainly have asked him to serve on the Committee, but I understand that he has wider parliamentary duties. I hope that he will accept that there was no attempt on my part to ensure that the regulatory impact assessment was not available or hidden from hon. Members on Second Reading or in Committee. Like him, I believe that there should be transparency and openness, and that such documents should always be put in the public domain and preferably made available to colleagues before a debate.
      I note that new clause 1 has been tabled in a probing spirit. It would delay the commencement of the Bill following Royal Assent. As I understand it, although this is a common provision for which preparatory work may be needed, such as the drafting of any underpinning statutory instruments, it is not necessary in this Bill. No statutory instruments need to be prepared, and there is no other reason for delaying commencement when it is enacted.
      The Bill makes the proposed changes retrospective, because they are liable to throw doubt on powers that have already been exercised in good faith by distributors. My hon. Friend questioned that. Delaying commencement would lead to an unsatisfactory period of limbo, in which distributors who had reasonably believed they had the power to fund endowments might feel constrained no longer to exercise those powers until after commencement.
      Mr. Chope: I am intrigued by what my hon. Friend says. How does he square that with what is contained in paragraph 1 of the regulatory impact assessment, which says:
      "The stated view of the Department is that all Lottery distributors, with the exception of the Community Fund (the operating name of the National Lottery Charities Board, which gives grants to charities and the voluntary and community sector), are able to make grants to fund endowments."
      Mr. Simpson: That is an opinion. I shall link this issue with the points that my hon. Friend made about amendment No. 1, which would remove the retrospectivity provision. As he knows, in its current form the National Lottery etc. Act 1993 gives distributing bodies the power to distribute lottery money for meeting expenditure such as that covered by section 22 of that Act.
      The relevant provisions of the 1993 Act do not make explicit whether that power includes the power to fund endowments. It became obvious on Second Reading and in Committee—the Minister has also made it clear—that distributors other than the Community Fund have the power to fund endowments, and advice to that effect has been issued by the Department in the
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      past, both under the present Government and when we were in office. However, the position is by no means clear in the legislation. The intention of the Bill is to clarify the position for distributors generally, as well as ensuring that the Community Fund has the power to fund endowments.
      That said, it would be wrong in clarifying the position to cast doubt on the legality of previous grants made by other distributors to fund endowments, especially when that has been done in the light of advice by the Department and when no one has ever sought to challenge the lawfulness of doing so. That is the key point
      Mr. Chope: Surely the mere fact of making such provisions retrospective raises the spectre that existing endowments are indeed ultra vires. I take my hon. Friend's point, but if there is a need to clarify matters, why cannot that clarification apply in future, instead of being a retrospective validation?
      10 am
      Mr. Simpson: We are perhaps debating on the margins. There is no conspiracy at all. We want to clarify the position, and in no way are we raising the spectre that something was done illegally. I hope that my hon. Friend will accept that we are acting in good faith and not attempting to set a precedent, and that he will consider that and listen carefully to what I say. Obviously, I hope that he will also take into account what the Minister says, and I have no doubt that he will ask the Minister some probing questions.
      Mr. John Greenway: Having dealt with the original Bill for the Opposition two years ago, I am very glad to contribute today to what I hope will be a satisfactory conclusion of the Bill's consideration in the House and to congratulate my hon. Friend the Member for Mid-Norfolk (Mr. Simpson) on it.
      I listened with interest to what my hon. Friend the Member for Christchurch (Mr. Chope) had to say, and he has served a very useful purpose in reminding hon. Members who introduce private Members' Bills that we need to pay regard to regulatory impact assessments. As I am promoting the Ragwort Control Bill, which is due to be considered on Third Reading on 11 July, I have made a note to ensure that the regulatory impact assessment is published forthwith. My hon. Friend is exactly right to suggest that, even if the advice is that there is no reason to be concerned, it is still worth having.
      I agree totally with my hon. Friend the Member for Christchurch on the point about Royal Assent. We had hoped to put such a measure on the statute book two years ago, so I cannot see the point of any further delay. As my hon. Friend the Member for Mid-Norfolk says, there is no requirement for statutory instruments, so let us press on with the Bill and hope that it is dealt with expeditiously in the other place.
      My impression is that the very fact that we are making this change at all calls into question the legality of the advice, so retrospectivity is probably essential. Governments of all colours introduce Bills and the

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      House scrutinises them, but sometimes not with all the time available that we would like. That is a growing concern, but when it becomes clear something that has been done may not be absolutely correct, we have to take the advice of parliamentary counsel and make the change.
      I would simply say to my hon. Friend the Member for Christchurch that the original legislation was introduced by a Conservative Government, and if a small change needs to be made to put right what may have been an oversight by that Government, all Conservative Members have a duty to support my hon. Friend the Member for Mid-Norfolk and to reject the new clause.
      Bob Russell: I support the Bill as drafted. It was dealt with in Committee in 22 minutes, with cross-party support. I sincerely hope that the long debate that we have already had will not prevent the Bill from proceeding. It could and perhaps should have been passed two or three years ago. I congratulate the hon. Member for Mid-Norfolk (Mr. Simpson) on introducing the Bill and the Eastern Daily Press on supporting it, so I hope that the new clause will be rejected.
      The Minister for Sport (Mr. Richard Caborn): It would have been good if the hon. Member for Christchurch (Mr. Chope) had attended the debate on Second Reading and raised his concerns then, because the general approach to the Bill has been one of all-party support, as the hon. Member for Colchester (Bob Russell) said, and there was simply an oversight when the National Lottery etc. Act 1993 was originally put on the statute book. A general consensus has emerged to try to rectify that anomaly in the 1993 Act, so it is unfortunate that such a new clause, which throws doubt on that, has been tabled during the later stages of the Bill's consideration.
      May I say straight away that I apologise to the House for the fact that the regulatory impact assessment was not placed in the Library immediately after the debate on Second Reading? That was an administrative oversight. It is interesting that the right hon. Member for Bromley and Chislehurst (Mr. Forth) always finds a conspiracy or something similar when there has been an administrative oversight, but I will nevertheless ensure that my Department lives up to what the Prime Minister said about regulatory impact assessments in the future. We will try to hit those time targets because it is very important for the fullness of debate, whether on this or any other Bill, that those assessments are in the public domain, so that objective judgments and debate can take place on the Bills to which they refer.
      Mr. Chope: I am grateful to the right hon. Gentleman for that fulsome apology. Will he explain further why, considering that he signed the regulatory impact assessment on 27 January, it was not even available before the debate on Second Reading? Does he accept that it would have been much better if it had been available even before the debate on Second Reading?
      Mr. Caborn: The answer is yes. As I say, there was an administrative oversight. I do not think that the Bill was probed to a great extent in terms of its regulatory impact
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      assessment, but I acknowledge what the hon. Gentleman is saying. I reiterate that the regulatory impact assessments ought to be made available, and I shall try to ensure that my Department puts them in the public domain, so that they can inform the debates on Bills with cross-party support, such as this one, or on any other Bill. I give that assurance, and my Department will try to live up to that.
      I wish now to refer to new clause 1. I agree with the hon. Member for Mid-Norfolk (Mr. Simpson) that it is not necessary. As we said on Second Reading, there is a need to make progress with the Bill—it needs to be implemented as quickly as possible. New clause 1 would add nothing to it.
      On amendment No. 1 and retrospectivity, I wish to say that, on the basis of the Department's legal advice, the current legislation allows distributors other than the Community Fund to fund endowments. However, the Bill seeks to clarify the position of distributors generally. Distributors' existing powers could be called into question, so we believe it is right to confirm the legality of past grants to fund endowments. It is important to take this opportunity to reassure people and to ensure that things are watertight in that sense, as that produces good legislation. It would be wrong to allow the opportunity to bring surety to the situation to pass. We have taken that opportunity, but there is no doubt that all the legal advice obtained by my Department says that the actions taken to date are indeed proper.
      Mr. Chope: Will the Minister therefore speculate on what the situation would be if such retrospectivity were not included in the Bill? Is he saying that its inclusion makes no difference, or that it would put in jeopardy endowments that have already been set up? If so, which existing endowments would be questioned?
      Mr. Caborn: I am not going to speculate; it would be very foolish to start to do so. We are only trying to take advantage of the opportunity, which all parties want to take, to reassure people that all those decisions that have been made on endowments are indeed legal. We have no doubt that they are legal, but we want to take the opportunity to give that reassurance, and in my opinion it would be stupid not to take it.
      Mr. Greenway: Perhaps we could give the assurance in a slightly different way. Can the Minister confirm that to his knowledge there has never been any suggestion of a challenge as to the legality of the endowments that have been created? That is my understanding.
      Mr. Caborn: The hon. Gentleman is correct. There has been no challenge. Indeed, there has been no inference of a challenge. However, I reiterate that it would be foolish if we did not take the opportunity to reinforce the provision and reassure those who are distributing those funds.
      Mr. Chope: We have had a useful debate, as I think everyone who has participated in it has accepted. It is important to get on the record the reasoning of the Government and of my hon. Friend the Member for Mid-Norfolk (Mr. Simpson) in introducing a retrospective element. As I said earlier, to have a retrospective element in a Bill is exceptional; it should be

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      included only in exceptional circumstances. As the Minister has assured us that there have not been any challenges on the matter and we are not seeking to prevent someone from making a challenge, for example, in the courts, I beg to ask leave to withdraw the motion.
      Motion and clause, by leave, withdrawn.

    Clause 1

      FUNDING OF ENDOWMENTS
      Mr. Edward Leigh: I beg to move amendment No. 3, in page 1, line 6, after "expenditure', insert
      "as long as the value of funds spent on such endowments does not exceed 5 per cent of the value of total funds given to the Distribution Fund'.
      Mr. Deputy Speaker: With this it will be convenient to take the following amendments: No. 5, in page 2, line 6, at end insert—
      "(7A) After section 43D there is inserted the following section—
      "43E. The Comptroller and Auditor General may, with respect to any person in receipt of money under section 25, 25B, 41 or 43B where that money is paid for the purpose of establishing or contributing to an endowment, examine—

      (a) the accounts of that person so far as relating to the endowment,

      (b) any records relating to those accounts, and

      (c) any report of an auditor on those accounts.'.

      No. 4, in page 2, line 11, at end insert
      "Any endowment, or contribution to endowments, established by this bill is liable to be reclaimed by the Distribution Fund in the event that,

      (a) the recipient body of such funds ceases to exist, or

      (b) the function of the recipient body changes substantively.'.

      Mr. Leigh: May I start with amendment No. 5, which gives powers to the Comptroller and Auditor General to look at the accounts of endowments and any records relating to those accounts? I think that it is the most important amendment in the group. The House may remember that I am Chairman of the relevant parliamentary Committee, the Public Accounts Committee, and this amendment has been drafted with the help of the National Audit Office. I do not believe that it is contentious, and I hope that the promoter of the Bill, my hon. Friend the Member for Mid-Norfolk (Mr. Simpson), will accept it.
      I will to speak to my other amendments, Nos. 3 and 4, later. They are more probing, particularly amendment No. 3. Although it may be difficult to set any particular figure on the amount of cash to be distributed to endowment funds, it will provide a useful opportunity for my hon. Friend to give some reassurance on those matters.
      As I say, I do not think that amendment No. 5 is contentious. The Bill is only seeking to clarify something anyway—that lottery funding can be provided for endowments as well as to fund expenditure. All that I seek to do with amendment No. 5 is to ensure that adequate accountability arrangements are in place to match the new provisions.
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      My hon. Friend may know that the National Audit Office and the Public Accounts Committee continuously drive to ensure that more and more items of public expenditure—effectively, this is public expenditure—are brought under the purview of the NAO. As we seek to clarify matters and to put the Bill into statute, it is important that the NAO's powers should be clearly stated.
      I recognise that the Bill has cross-party support, but it is true to say that concerns have been raised during its passage about the value for money and accountability aspects of funding endowments. That is important territory for my Committee. It is what my Committee is all about: ensuring that we get value for money and accountability.
      It is true—I think that my hon. Friend the Member for Christchurch (Mr. Chope) referred to this—that some distributors have already made grants to fund endowments. The Millennium Commission has made a grant of £100 million, which is quite a large grant, to the Foundation for Social Entrepreneurs, which operates under the trading name UnLtd.
      The governance arrangements for the Millennium Commission endowment are complicated. Let me try to explain them briefly. For example, the millennium award trust deed requires the appointment of an independent protector of the endowment, whose fiduciary duty is to ensure the integrity of the administration of the trust and the propriety of its procedures. If necessary, his duty is to report matters of serious concern to the Millennium Commission, the Charity Commission and, where appropriate, the Secretary of State for Culture, Media and Sport.
      10.15 am
      Under the terms of the Millennium Commission's grant to UnLtd, the CAG has access to all documents that are necessary for his audit of the Millennium Commission, or its successor body. While his rights of access concerning grants have recently been put on a statutory basis with the coming into force of the order made under the Government Resources and Accounts Act 2000, which we took a lot of interest in and helped to push through the House of Commons, it is necessary to clarify statutory access to lottery endowments to ensure that all forms of funding are covered. We are trying to ensure that there is absolutely no doubt about the rights of access of the CAG, who operates on behalf of Parliament.
      I have taken advice on the matter, and the Minister can deal with the point when he sums up the debate, but I understand that the Bill's omission of accountability arrangements is not deliberate. I am confident that distributors of lottery money will apply to applications for endowments considerations similar to those that they would apply to grants of expenditure. I also understand that the Government will produce guidance for distributors on the factors to take into account when considering applications for endowment funding. However, the amendment ensures—this is why I believe that it is necessary—that all types of lottery funding are subject to the same scrutiny arrangements. Essentially, the aim is that the CAG's rights of access in relation to lottery grants should be extended to cover endowments. The money is raised from lottery players in the same

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      way, and the public surely will have an equal interest in knowing that it is spent properly and well. The CAG's access will provide that assurance.
      Let me sum up my argument by putting it in terms of questions and answers. It may be asked in summing up the debate: does not the CAG already audit lottery grants? It is true that he has rights of access in relation to lottery grants, but the Bill will expressly allow funding for endowments and my amendment seeks to clarify that the CAG has similar rights of access in relation to grants that are extended to endowments, so it is a tidying-up process.
      Why is the amendment necessary? We are on Report. When better for the whole House to take a view on the matter? Hon. Members raised value for money and accountability issues on Second Reading. Obviously, we followed those debates. This is important territory for the Public Accounts Committee and we are keen to take advantage of the opportunity afforded by Report to ensure that the right provisions are in place, rather than discover problems later.
      Another question might be: does not the CAG already have these powers? The amendment simply mirrors the clarity that the Bill seeks to provide, so as to ensure that adequate access provisions match new forms of funding. Just as the Bill is in effect a clarifying Bill, so my amendment is a clarifying amendment. Lastly, do the NAO and Public Accounts Committee have anything against funding endowments? In principle, we have no objection to funding endowments. There are both advantages and disadvantages, and those have been aired in the debates we have already had. The purpose of the amendment is simply to give the same clarity to both the funding and review arrangements, so that we can be assured that those issues have been adequately addressed.
      I hope that that fairly sums up amendment No. 5. I hope that the promoter of the Bill and the Minister can accept it. If the Minister does not accept it, I hope that he will give a good reason why.
      Amendment No. 3 would amend clause 1 by adding the phrase
      "as long as the value of funds spent on such endowments does not exceed 5 per cent of the value of total funds given to the Distribution Fund."
      As I said, this is really a probing amendment. I accept that it is very difficult to establish a figure—should it be 1 per cent., 2 per cent., 5 per cent., 10 per cent. or 20 per cent.? We simply do not know, but the amendment provides an opportunity for a short discussion of the safeguards in the Bill and of how such matters will be administered.
      On Second Reading, certain Members raised concerns about "technical matters", even though everybody supported the Bill; indeed, I support it and I am confident that it will soon pass into law. Those Members seemed confident that such technical matters would be thrashed out in Committee. My hon. Friend the Member for North-East Cambridgeshire (Mr. Moss) said:
      "On this side of the House, we will need reassurance on the technical issues that the Bill raises. However, we are confident that those can be teased out in Committee."—[Official Report, 28 February 2003; Vol. 400, c. 534.]
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      But as we heard from my hon. Friend the Member for Christchurch, the Committee lasted only 22 minutes, and no amendments were made. So this is another opportunity to tease out these technical matters and to receive reassurance.
      I have tabled such an amendment because putting some form of cap on the amount of money used for endowments provides a safeguard against future developments. I do not know how that could be achieved; if it cannot be done through the Bill, perhaps some form of policy guideline could be laid down. We have tried to obtain firm figures but it is difficult to do so. If the Community Fund is any indication, the evidence suggests that the number of charities applying for endowments is indeed small. An estimated 20 to 30 of 100,000 applications to the Community Fund were for endowments. However, although the total number may be small, the figures can be very large indeed. The same is true of the exposure for the future.
      The promoter of the Bill needs to explain to the House how he will provide for a safeguard to be put in place against possible future developments. We must be careful that the law does not allow any such endowments to get out of hand and be unavailable for scrutiny. As we know, there are of course risks involved in giving out endowments. They require large sums of money in advance to provide reasonable revenue for applicants in the longer term, as the Bill's promoter, my hon. Friend the Member for Mid-Norfolk, pointed out on Second Reading. Indeed, he was very fair about this issue. Hence a set amount of money is tied up or committed to a fund. If this got out of hand, less money could be available for other lottery grants in need of immediate funds. Setting some form of cap, or explaining how matters might develop in future, is a reasonable way, therefore, of providing a safeguard against that problem.
      Another problem associated with endowments is that they are vulnerable to interest rate fluctuations—a point made by my hon. Friend the Member for North-East Cambridgeshire on Second Reading. The National Endowment for Science, Technology and the Arts was cited in a previous debate as a good example for possible national lottery endowment funds to follow, given the similarity between it and various charities. NESTA was praised not only for its method of funding, but because of the freedom given to NESTA trustees from central Government interference.
      However, NESTA, which was in receipt of an endowment of some £200 million, found that the income that it was expecting—and probably spending—had declined because of low interest rates. It appealed to the Government for more money to put into the endowment fund. Given what subsequently transpired, perhaps it was not such a good example to cite. The nature of the stock market and the free market makes it hard to predict how interest rates will perform, and potentially puts limits on long-term planning for charities. Although there is no doubt that the Bill should become law—it is essentially a tidying-up process—it is certainly worth putting on the record the risks associated with endowments. It is therefore perhaps advisable to limit the amount going into them.

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      There is another important point: endowment funding could increase the perception gap between buyers of lottery tickets and good causes. Lottery sales are falling. In February, Camelot announced that sales for the weekend lotto game were the lowest ever. Last November, it announced that sales had fallen by 5 per cent. during the previous six months. Lotteries across the world often show initial signs of great success that soon trails off, so to a certain extent such a decline is to be expected. But as the hon. Member for Twickenham (Dr. Cable) said on Second Reading, another explanation might be that people do not see a clear link between the purchasing of tickets and the good causes that the lottery is supposed to help.
      That is why we have some concern about endowments; they break that clear link. Creating too many endowment funds could increase this tendency, so it would be sensible to cap them in some form. Whether that should be done through the Bill or through some other administrative procedure, I do not know; perhaps the Bill's promoter could explain that point. The hon. Member for Twickenham said on Second Reading that the perceived lack of a link
      "is a psychological danger and it should be addressed, although it is not a fundamental argument against the proposals."—[Official Report, 28 February 2003; Vol. 400, c. 535.]
      Like my hon. Friend the Member for North-East Cambridgeshire, the hon. Member for Twickenham raised an issue that, although not fundamental to the Bill, was important and should have been addressed. As we know, consideration in Committee was rather short, so today provides an opportunity to seek the reassurance that we need and desire.
      Several damning recent media reports have discussed how lottery money is given out. For example, in 2002 the national lottery gave £336,000 to the National Coalition of Anti-Deportation Campaigns, which is trying to prevent the deportation of asylum seekers after their applications have been processed by the Home Office. One can agree with that highly controversial decision, or not. I shall not comment on whether it was a good thing, but there was an immediate and massive outcry. That outcry was able to produce a change in policy, because there was no endowment and the matter was not tied up for a long time. If we have endowments, with no limit on how much can be put in, we will lose the immediate link between what is said in the press and how grants are distributed. Another notorious decision was that to give £295,000 to a Worcestershire charity for the breeding of guinea pigs in Peru.
      All such grants were given through conventional funding methods under current law. One advantage of non-endowment funding is that the lottery can respond to the public mood quickly. However many endowment policies there are, they will involve very large sums of money and it will not be possible to respond quickly. These policies are supposed to serve the public. For something that the public took issue with, it would be more embarrassing and awkward to terminate an endowment fund than to terminate short-term giving. Non-endowment funding is easier to withdraw, if the public express dissatisfaction with it.
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      I am sure that my hon. Friend the Member for Mid-Norfolk can address all those points, reassure the House that it will not be necessary to set a cap through the Bill, confirm that there will be a limited number of endowments, and confirm that the entire process will be handled with great care.
      Amendment No. 4 would insert the following provision:
      "Any endowment, or contribution to endowments, established by this bill is liable to be reclaimed by the Distribution Fund in the event that,

      (a) the recipient body of such funds ceases to exist, or

      (b) the function of the recipient body changes substantively."

      On Second Reading, my hon. Friend the Member for North-East Cambridgeshire asked what would happen to endowed lottery funds if the recipient body ceased to exist. In my own constituency, a charity did indeed go under—it was an ordinary charity that had nothing to do with the national lottery. Charities, and endowment funds, do get into difficulties. We therefore need an exit policy. It would be best to provide legal clarification so that the lottery distribution fund can claim back the money disbursed.
      The point of the Bill as a whole relates to legal uncertainty. Current legislation does not define what meeting expenditure means in respect of the powers of the distributing bodies. It is therefore reasonable to clarify the law as the Bill proposes. In the same way, including a right of the distribution fund to reclaim its money if a charity ceases to exist would provide greater legal transparency and clarity. That would seem to make sense, and I see no reason why anyone should argue with that point of view.
      10.30 am
      Section 28 of the Charities Act 1993 allows relevant bodies to investigate dormant charitable accounts, which might be some sort of safeguard. However, in view of the long-term nature of endowment funds, it is reasonable to imagine that a charity's function might change over time. It is important to ensure that the money is being used for exactly the purpose for which it was intended. Recent revelations that lottery funding is going to unpopular causes should not be repeated. An appeals panel reinstated two Surrey schoolboys who had been expelled after threatening to kill their teacher. The lottery gave £200,000 to the organisation giving the expelled boys advocacy—the community education network. My hon. Friend the shadow Secretary of State for Culture, Media and Sport called it
      "another blow to the credibility of the lottery".
      In another example, £350,000 was given to the Runnymede Trust—the think—tank that described the word "British" as racist.
      Those are controversial examples and I am sure that we are not going to get involved in providing endowments for such things. However, if something goes wrong with an endowment—if it is either unpopular or badly managed—surely we need some device to ensure that the moneys can return to the distribution fund. That is what my amendment is about.

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      Those are my three amendments. The first would provide reassurance that the Comptroller and Auditor General could become involved; the second would provide an opportunity to debate at what level the moneys distributed should be capped; and the third would ensure that moneys could, if there were a problem, be returned to the distribution fund.
      Mr. Keith Simpson: My hon. Friend the Member for Gainsborough (Mr. Leigh), from his formidable position as Chairman of the Public Accounts Committee, has outlined his amendments with clarity. I recall during my time as special adviser at the Ministry of Defence that the only Select Committee that truly alarmed the policy-making civil servants was the PAC. That body, together with the National Audit Office, is quite rightly regarded as the guardian of public expenditure. Given that my hon. Friend generally supports the Bill, I hope that we can view his amendments as probing amendments, and that we can answer some of his questions.
      I begin with amendment No. 5. As my hon. Friend pointed out, it would enable the Comptroller and Auditor General—and therefore the National Audit Office—to examine the accounts of any person in receipt of lottery moneys
      "for the purposes of establishing or contributing to an endowment".
      I note that it does not impose any restrictions on the circumstances in which such an examination could take place; nor does it expressly provide for the CAG's power to report to Parliament in respect of any examination that he undertakes.
      Mr. Leigh: That is unnecessary, because the Comptroller and Auditor General always reports to Parliament through the Public Accounts Committee. There is therefore no need to build that into statute.
      Mr. Simpson: I accept my hon. Friend's intervention.
      It is worth mentioning that the CAG is already the external auditor of distributing bodies, with wide-ranging powers to examine their books, documents or papers and to
      "carry out such examinations into the economy, efficiency or effectiveness with which the body has used its resources in discharging its Lottery distribution functions as he"
      the Comptroller and Auditor General "sees fit".
      In addition, I understand that the financial directions for lottery distributors require them to include as a mandatory condition of any lottery grant—whether to an endowment or not—a requirement that the recipient of grant provides regular progress reports and any further financial or other information that the distributor may require. That is right and proper. I believe that those two conditions provide the CAG with adequate scope to obtain information about the control and management of funds from lottery grant recipients. I also understand that the Minister is prepared to reflect further on the issue in respect of future lottery legislation and there is a forthcoming White Paper on lottery distribution. We are all in favour of that.
      I hope that, when he has heard my hon. Friend the Member for Ryedale (Mr. Greenway) and the Minister, my hon. Friend the Member for Gainsborough will be
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      convinced that the safeguards are adequate. I fully support my hon. Friend's intention and I certainly do not want to open up in respect of the Bill any area of doubt or vulnerability.
      Mr. Greenway: First, I welcome the intervention of my hon. Friend the Member for Gainsborough (Mr. Leigh), who has rightly reminded us in timely fashion that we need carefully to examine issues of accountability and transparency in respect of the distribution of lottery funds and the value for money that they achieve. As my hon. Friend the Member for Mid-Norfolk (Mr. Simpson) says, that matter has far wider ramifications than the changes that his Bill will introduce. We believe—it is the view of the official Opposition—that the matter should be addressed in detail in the forthcoming White Paper on proposed changes to the lottery.
      It is now time, some 10 years after its introduction, to review the standing of the lottery. On considered reflection of the findings, we should then introduce and implement the necessary changes. The issues should be examined across the board for the lottery as a whole. We need to examine whether further powers of accountability are necessary and how to implement them. I have no doubt that the Comptroller and Auditor General and the Public Accounts Committee will have important roles to play. However, I do not want to jeopardise the Bill today by introducing the changes in the amendments. As I said, the issues are more wide-ranging than the matters in the Bill.
      On amendment No. 3, my hon. Friend the Member for Gainsborough is right to draw attention to the fact that lottery funds are in much shorter supply than when the lottery first started. Indeed, in the charities sector more than others, more applicants are disappointed at being unable to secure the money that they want. However, the Bill does not fetter the discretion or flexibility of the funding body. If it transpires that endowments are not the best way of distributing the bulk of lottery funds made available to the distributor, endowments do not have to be made.
      Mr. Chope: Does my hon. Friend share my concern that we have not seen the draft guidance that the Minister intends to give to the distributing bodies? If we had that guidance before us today, it would give us a much clearer idea of the Government's intentions.
      Mr. Simpson: My hon. Friend makes a good point. Yes, he is right up to a point, but that does not mean that we should not approve the Bill. I am sure that the Minister and his officials will want to consult funding bodies, particularly the charities board, on that guidance. We are moving into a new area for the charities board, which has not previously been able to give money to endowments. My hon. Friend the Member for Gainsborough touched on another relevant issue: if people can see that their money is contributing to good causes, they are more likely to buy lottery tickets.
      Bob Russell: Is the hon. Gentleman seriously suggesting that people buy lottery tickets because a few pence go to good causes? My understanding has always been that people buy lottery tickets in the hope of becoming millionaires
      Mr. Greenway: Undoubtedly some people play the lottery in the hope of becoming a millionaire, but others are more realistic and recognise that their chances are around 14 million to one. They care where the money goes, and I am sure one of the reasons why lottery ticket sales have been falling is that people can see that too many of the proceeds are going to causes that the Government should fund out of public expenditure. People want the money to go to good causes.
      I can see the point that my hon. Friend the Member for Gainsborough is making. If money is given to an endowment, how can one ensure that it ends up with a good cause? The answer lies in the response that my hon. Friend the Member for Mid-Norfolk has had to his Bill. In Norfolk, it is hugely popular and that is because of the good causes that the endowments promise to support—small, local charities that, on their own, do not have the capacity or the ability to apply for a lottery grant individually. The endowments will be able to support them, and that is very pertinent, especially for projects that require revenue rather than capital expenditure. While my hon. Friend the Member for Gainsborough is right to remind us that we do not want too much of the Community Fund's money to go into endowments, I hope that those endowments that are funded will—through the charities that they support—encourage ticket purchases and increase sales.
      My hon. Friend referred to a comment made by my hon. Friend the Member for North-East Cambridgeshire (Mr. Moss) on Second Reading, when he asked what would happen if an endowment ceased to exist. From my experience of supporting lottery applications in my constituency, it is usual for the distributor to ensure, in the funding agreement, that any moneys that are not put to the purpose for which they were given are returned. Indeed, I have a problem in my constituency at the moment because the sports fund gave money to the Huntington stadium to build an athletics track that will have to be ripped up if it becomes the home of York City football club—of which I am the president—and if that happens, the money has to be repaid or a track has to be built somewhere else. The key is to ensure that the agreement deals with the problem that my hon. Friend raised. As my hon. Friend the Member for Christchurch pointed out, that means that the guidance to the funding bodies has to be right to ensure that that point is covered.
      The amendments that my hon. Friend the Member for Gainsborough has tabled raise three issues pertinent to the general management of the lottery. I hope that he will accept that those issues are not for the Bill before us today, which should proceed, without the amendments. I assure my hon. Friends who have raised concerns today that if I am involved in the scrutiny process of the changes in the lottery that the Government bring forward—as I hope to be—I will consider carefully the points that they have raised and ensure that they are properly debated. We need to strengthen the management of the lottery, because that will give it greater credibility and encourage confidence in it. That is the best way to increase ticket sales and therefore the support for good causes.
      Mr. Chope: My hon. Friend the Member for Gainsborough (Mr. Leigh) has made some excellent points in support of his amendments, so I do not wish to
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      speak at length. However, I wish to press the Minister to give us some more information about the likely policy for the distributing bodies, in the light of what has been said. If we do not hear about that until after the Bill goes to the other place, or reaches the statute book, we will be in the dark. The debate on the amendments gives the Minister a clear opportunity to explain exactly what the Government's policy is.
      I am conscious that many of my hon. Friends will not have had a chance to digest the import of the regulatory impact assessment, but paragraph 2 states:
      "The Community Fund has been unable to fund endowments under current statute and so the biggest potential impact is on this body. Whilst firm figures are difficult to ascertain, anecdotal evidence suggests that, to date, only a tiny proportion of charities have applied to the Community Fund for endowment funding (an estimated 20–30 out around 100,000 applications), and there is little evidence that this level of demand would increase if the Fund was given this power."
      10.45 am
      The limit in the amendment on the amount that could be given to endowments may fit in well with the guidance that the Government intend to give, but it would be helpful to have some assurance of that. The regulatory impact assessment continues:
      "In addition, at a time when Lottery income is falling, it is unlikely that applications for endowment funding would be considered a high priority for funding, compared to applications for revenue funding, for the reason highlighted above."
      A slight touch of Big Brother there. How does the Minister know that the independent distributing bodies will take such a view? How does he know that they will take that view in relation to non-charitable endowments? That is a legitimate area for concern, because more and more money from the lottery goes to non-charitable causes under the Government's so-called New Opportunities Fund. It would be ironic if, at a time when the Government are telling schools that they will have to forgo their capital expenditure programmes for the sake of revenue funding, the Government were encouraging the New Opportunities Fund to give capital endowments to educational establishments. Those policies would appear to be incompatible.
      I share the views expressed by my hon. Friends that the lottery is declining in popularity partly because it is a rip-off and a form of regressive taxation—as I have said in the past—and because people can see that their money is going to causes that they would not think of funding if a tin was shaken in front of them, even if they had just won on the premium bonds. That is probably why more people are turning to premium bonds.
      Bob Russell: Can the hon. Gentleman tell the House what is the minimum stake for a premium bond?
      Mr. Chope: I am sure that the hon. Gentleman knows that it is about £100. The average weekly spend on the lottery each week is more than £2, so people could save that money for a year. I must say that I have never bought a lottery ticket and have no present intention of doing so.
      Mr. Leigh: I agree that premium bonds are a much better investment. Does my hon. Friend know that a statistician has worked out that unless a person buys

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      their lottery ticket in the last few seconds before the draw closes, they are more likely to die before the result is announced than they actually are to win? The chances of winning are infinitesimal.
      Mr. Chope: I agree; that is why, on the whole, few people with more intelligence—such as my hon. Friend, those who work alongside the Public Accounts Committee, the Comptroller and Auditor General's staff and people learned in mathematics and statistics—enter the lottery in the hope that they might win. Those who do take part may do so because they think the money is going to good causes. When they find that it is not, they may prefer to spend the money on local good causes.
      That is why our proposals to change the distribution system—another new fair deal that will be part of the Conservative manifesto at the next general election—will capture the public's imagination and will win support for our cause. That is the view in my constituency, which pays disproportionately into the lottery and gets very little benefit in terms of the funding of good causes.
      The figures show that money is increasingly being spent on the New Opportunities Fund—a substitute for Government expenditure—with less going to the Community Fund and to proper charitable causes. That is the main reason why the lottery is on the wane. However, I understand from the Government that there may yet be hope, as lottery tickets might be made available on the continent. We might be able to benefit from the regressive taxation of our continental neighbours going into the Government's coffers.
      Perhaps the Government have given up on using the New Opportunities Fund as a substitute for public expenditure and are going straight for the option presented by the new part-time Chancellor of the Exchequer and part-time Leader of the House, that of hiking up income tax.
      I hope that the Minister will respond to our serious concerns about the guidance to be given to the distributing bodies.
      Mr. Caborn: I am glad that the British public are more charitable than the two hon. Gentlemen who have just spoken. I am sure that many people play the lottery because of its charitable nature. In addition, ours is probably the most successful lottery in the world. The Conservative Government brought the lottery legislation on to the statute book in 1993. The Conservatives ought to be proud of that, and not seek to undermine the lottery as the two hon. Members have tried to do this morning. The vast majority of British people think that the lottery is a good institution that encapsulates a British spirit, and I think the two Members are somewhat out of kilter with the general public.
      It is unfortunate that amendment No. 5 has come a little late in the day, like our regulatory impact assessment. However, the amendment is important and merits consideration.The hon. Member for Mid-Norfolk (Mr. Simpson) has outlined the existing powers of the Comptroller and Auditor General over lottery distributing bodies, as well as the relevant mandatory terms and conditions for all lottery grant recipients. I share his view; there are many controls in place to ensure that the finances are used in the right way.
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      Nevertheless, we should reflect upon the amendment and I assure him that we will discuss the proposals further with the NAO in relation to any legislation that might emerge from my Department's White Paper on Lottery distribution. We take the amendment seriously and while I would take some convincing that we needed further controls, I assure him that we will consult the NAO before we publish the White Paper.
      Amendment No. 3 refers to a limit of 5 per cent. There is a danger with imposing such limits; we have done a quick calculation and nowhere near 5 per cent. is made up of endowments. I fear that putting such a ceiling in place gives something for people to aim for.
      We will be issuing the guidance notes to distributors, and these will be available in draft in advance of Second Reading in the Lords. They will be in the public domain and will form part of the public debate, while reflecting our debates as well. Some important points have been made on Second Reading, in Committee and now.
      The hon. Member for Gainsborough (Mr. Leigh) has concerns about how setting an arbitrary ceiling on the proportion of grants to endowments would work in practice. However, I hope that with the existing responsibilities of the distributors' accounting officers and the guidance that I have mentioned, he will be satisfied on this matter and will withdraw the amendment. I hope that what we put in the guidance notes will satisfy him.
      Amendment No. 4 concerns the recovery of funds. The amendment refers to an endowment being reclaimed "by the Distribution Fund", but that would go against charity law—which will govern all the endowments—in that the money should go back to the purpose for which it was originally given. However, the distributing body funds all good causes; therefore it would work against a particular good case if the money went back to the fund. In Committee, I said that I believed that there were sufficient controls through charity law and the lottery statute to enable the recovery of funds to endowments should the charity cease to operate or change its functions subsequently.
      Grants for permanent endowments can be made only to a registered charity. Ultimate responsibility for the conduct of a charity rests with the Charity Commission—which is tough by any standards—and the Attorney-General. Existing legislation governing charities requires them to use funds only for charitable purposes. If they fail to do that, or if funds are misappropriated or mishandled, not only will the lottery distributor need to consider what action to take as a result of the breach of the terms and conditions of the grant, the actions of the charity may, depending on the circumstances, amount to a criminal offence. That would almost certainly involve the Charity Commission, where the matter affected a charity in England and Wales, or the Inland Revenue in Scotland and Northern Ireland.
      Some draconian actions can be taken if people step out of line. If a charity ceased to exist, charity law would require that, after all debts and liabilities were settled, any remaining assets were applied to a similar charitable purpose to that of the organisation. That would be at variance to the amendment. The Charity Commission, the lottery distributor and, in certain circumstances, the Attorney-General, would be involved in this instance. I

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      believe that we have sufficient controls in place to ensure that money is used for the purposes for which it was given.
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      Mr. Leigh: I am grateful to the Minister for the way in which he has summed up the debate, particularly on amendment No. 5, which would give a right of access and control to the Comptroller and Auditor General. He intimated that, if I may read between the lines, it was too early for him to put that on the statute book and that he would need more advice. He said that he was happy for his officials to discuss with the National Audit Office how to obtain some such provision in statute, if not in this Bill, then in a future one. That is very positive.
      On amendment No. 3, the Minister repeated my point that we cannot really put a figure for a capping limit in the Bill. He accepted that there was a legitimate debate about that, however, and he will issue guidance. I am very happy with that.
      On amendment No. 4, the Minister took care to deal with the wide-ranging existing safeguards that ensure that if there is a problem with an endowment fund, the money could, apparently, return to the distribution funds.
      The Minister's summing up was very satisfactory. We have teased out some important elements of how the moneys will be protected in this important debate, and there will be accountability to Parliament. In the spirit of good will, I beg to ask leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Order for Third Reading read.
      11.1 am
      Mr. Keith Simpson: I beg to move, That the Bill be now read the Third time.
      As a number of Members have said, the Bill received all-party support on Second Reading on 28 February and in Committee on 6 May. I thank, in particular, my parliamentary colleagues from Norfolk, the hon. Member for Great Yarmouth (Mr. Wright), who is present, my right hon. Friend the Member for South-West Norfolk (Mrs. Shephard), my hon. Friends the Members for South Norfolk (Mr. Bacon) and for North-West Norfolk (Mr. Bellingham), the hon. Member for Norwich, North (Dr. Gibson), and the Secretary of State for Education and Skills, who represents Norwich, South. Their assistance has been positive and has undoubtedly helped the Bill's progress. I thank, too, my hon. Friends the Members for Gainsborough (Mr. Leigh) and for Christchurch (Mr. Chope) for pressing probing amendments constructively on Report. Both have given the Bill a fair wind, but they rightly teased out some points about the Bill itself and the national lottery in general.
      The Bill's purpose is to amend current lottery statute, as already amended by the National Lottery Act 1998. It is intended expressly to provide all distributors with the power to make grants to endowment funds, should they choose to do so. Current statute gives lottery
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      distributing bodies power to distribute lottery money for meeting expenditure of the types covered by sections 22 and 23 of the National Lottery etc. Act 1993. It does not, however, define what is meant by "for meeting expenditure" or contain any explicit reference to funding endowment funds. The Minister has confirmed that the wording was not the result of any deliberate intention to prevent distributors from giving grants to endowment funds.
      The Bill's content is straightforward. It amends those sections of the 1993 Act that refer to "for meeting expenditure" to make it clear that the terms include funding of endowments in each case. It also provides for the change to have retrospective effect. Some distributing bodies have made grants to endowments, and the Bill will ensure, as debated on Report, that those payments cannot be called into question.
      I shall speak briefly about the origins of the Bill. As a number of Members have said, it came directly from the fair county of Norfolk, and was born from the "We Care" 2000 appeal begun by our regional newspaper, the Eastern Daily Press. It is appropriate to be holding the Report stages and Third Reading of the Bill in the week after UK carers week. We all know the role that hundreds of thousands of carers undertake in our constituencies. Without their caring for their families and friends, there would be an enormous additional burden on our social services and the national health service. I pay tribute to the work of the 130,000 carers in Norfolk.
      The EDP's appeal had a target of £1 million, and it has reached £750,000., thanks to a £100,000 lottery grant. Efforts to secure that grant took about 18 months. The first bid was rejected because of an anomaly in wording, but the second was successful. That is great news, and the money will make a real impact. The money from the Community Fund will be used to help another 80 carers a year who support loved ones who are unable to look after themselves. It is a huge boost to the EDP appeal, which was set up nearly five years ago, with its ambitious target of raising £1 million, as a partnership between the newspaper and health professionals. One of the purposes behind the Bill is to enable the appeal to raise more money for carers. The money just received will be spread over two years. It becomes available at the end of July and will enable the purchase of domestic appliances, power packs for wheelchairs, swivel seats and computers to loan to carers in Norfolk. We are very grateful for that.
      I hope that the Bill will help many similar charitable bodies that want to establish a secure funding base for their work. The benefits of the Bill are that it will clarify the powers of all distributors, put the Community Fund on the same legal footing as other distributors in being able to fund endowments should it choose to do so, and, perhaps most importantly, benefit charities such as "We Care" that want to apply for lottery funding, enabling them to manage their resources more strategically and with more secure future funding.
      We have debated the benefits of endowment funds. There is no doubt that there is both an upside and a downside. The crucial point is that the Bill provides permissive, not mandatory, power for distributors. It will ultimately be up to distributors to determine how to treat applications for grants to endowment funds against other calls for lottery funding. As was rightly

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      said on Report, we must make certain that that is not abused. The Minister has assured us that his Department intends to assist distributors by issuing guidance on that, should the Bill be enacted. Draft guidance will be placed in the Libraries of both Houses shortly, in time for the Bill's introduction in the House of Lords.
      As the Bill provides a permissive power for lottery distributors, it will have no impact on central or local government expenditure or manpower. Nor will there be any regulatory cost to business or the voluntary sector. The measure is intended to assist charities and other good causes by helping them to manage their funding more effectively.
      Legislation relating to the national lottery is reserved to the UK Parliament, but I understand that the Bill has attracted the support of the devolved Administrations.
      Finally, it was remiss of me earlier not to thank my hon. Friend the Member for Ryedale (Mr. Greenway) for his positive and enthusiastic support this morning from the Front Bench.
      I commend the Bill to the House.
      11.8 am
      Mr. Anthony D. Wright (Great Yarmouth): I will speak for only a couple of minutes because I am aware that other Members have equally important Bills to discuss this morning. I want only to congratulate the hon. Member for Mid-Norfolk (Mr. Simpson), and to offer congratulations, too, to my hon. Friend the Member for Norwich, North (Dr. Gibson), who tried to promote the Bill two or three years ago. We all know the history of why it did not pass then. It is pleasing that the Bill has support on both sides of the House. The project has certainly united political parties in Norfolk.
      The probing amendments that were tabled today needed discussion, and I hope that the Bill will proceed with all speed so that charities such as the "We Care" appeal in Norfolk, which has already helped many hundreds of my constituents as well as many other people across Norfolk, can gain more money through endowments and achieve much more throughout the country.
      Once again, I congratulate the hon. Member for Mid-Norfolk and hope that the Bill proceeds with all haste.
      11.10 am
      Mr. Greenway: I want only to congratulate my hon. Friend the Member for Mid-Norfolk (Mr. Simpson) on the progress of the Bill and to express the hope that it will be well received in the other place. I thank him for his kind remarks.
      I genuinely believe that the way that lottery funds are distributed and the good causes that they are seen to support are vital ingredients in managing a successful national lottery. My hon. Friend's Bill contributes to that process, especially in the county of Norfolk.
      May I ask the House to be kind enough to excuse me so that I can return to my constituency, where, this afternoon, I am visiting a project that has just received funding from—believe it or not—the national lottery and the Foundation for Sport and the Arts? I am going
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      to see the new sporty pavilion in all its glory and shall leave the Opposition Front Bench in the capable hands of my hon. Friend the Member for Cotswold (Mr. Clifton-Brown), who, in fact, originally came from Norfolk.
      Once again, my congratulations to my hon. Friend the Member for Mid-Norfolk, and I hope that all right hon. and hon. Members have a happy weekend.
      11.11 am
      Mr. Chope: I wish my hon. Friend the Member for Ryedale (Mr. Greenway) Godspeed and a safe journey to his destination. My constituents will look at his constituents with some envy and ask, "Why can't we get a decent share of the money that is being distributed from the lottery?"
      I, too, congratulate my hon. Friend the Member for Mid-Norfolk (Mr. Simpson) on having steered the Bill to Third Reading. Although I was slightly critical of him for not having asked more questions in Committee, I understand the reason and forgive him. I think that he wanted to curtail the Committee stage so that he could ensure that his Bill was heard first today. Strategist that he is, he has succeeded in doing that, although the tactics were not necessarily to all our liking. However, we have had a chance today to examine some of the issues that would have been considered in Committee and the Bill is none the worse for that.
      Mr. Forth: This is the second Friday running when it would appear that Standing Committees have not done a satisfactory job of examining Bills and that responsibility has fallen to the House on Report. Although that is perfectly acceptable in procedural terms, does my hon. Friend agree that it is time that members of Standing Committees, especially those for private Members' Bills, bucked up their ideas and did a rather better job?
      Mr. Chope: I agree. One of the problems is that the members of such Standing Committees are often closely associated with the promoter of the Bill and their motivation is solidarity with the promoter rather than the desire to scrutinise the Bill. Indeed, often Members who might want to scrutinise the Bill are not invited to serve on the Standing Committee—although I am not sure whether that happened in this case. As long as we are able to consider matters properly on Report, however, we shall hold debates such as today's.
      I expressed concern about the use of lottery funds for non-charitable causes. Although I do not object to the Bill, and indeed I warmly congratulate my hon. Friend the Member for Mid-Norfolk on getting it to this stage, in my view it would have been better if it did not contain the power for endowments to be made to non-charitable causes.
      Charities can be controlled. If they fall into desuetude and are no longer able to fulfil their charitable objects or the trustees resign, the Charity Commission can intervene to put matters right and any remaining funds can be properly distributed. The situation is not the same for some other bodies, which may be solely dependent on grant funding direct from the Government. In addition, they may also receive funding from the New Opportunities Fund. My hon. Friend the

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      Member for Maldon and East Chelmsford (Mr. Whittingdale), who is an Opposition spokesman on such issues, has expressed grave concern about the abuse of such funding.
      At a time when the national lottery is under pressure, fewer tickets are being sold and there is less income, it is ironic that a greater proportion of its profits are being steered towards substituting for Government funding rather than to hard-pressed charities. The best thing that the Government could do for the lottery would be to insist that it concentrate on helping charities; it should not prop up Government programmes as it has done in the past.
      My hon. Friend the Member for Gainsborough (Mr. Leigh) gave some examples of the abuse of lottery funds, so I shall not repeat them, but I am sure that there will be further examples, not just in the Daily Mail but in other newspapers. Every time one of those cases arises, it reduces people's interest in buying lottery tickets.
      We are reaching the stage where, in desperation, the lottery body is encouraging sales of instant tickets, such as scratchcards, especially to young people, where they can see immediately whether they have won. That is in breach of all the principles that underpin gambling controls. Furthermore, it is well established that the narrower the time gap between gambling one's money and getting the result, the more likely it is to lead to compulsive gambling. Buying a lottery ticket in advance or buying a premium bond gives people longer anticipation of winning and more excitement, but if one buys a scratchcard at the tobacconist, one can see whether one has won within seconds and the temptation is then to buy another ticket. Addictive gamblers will go on and on buying, trying to cover their losses. The lottery raises an increasing proportion of its income from that type of sale rather than the traditional sales that were envisaged by John Major.
      Mr. Forth: Does my hon. Friend agree that the whole concept of instant gratification is very much a new Labour one? It is very much in line with the Government's whole philosophy, whereas long-term solid investment is a Conservative concept.
      Mr. Chope: I wholly agree with my right hon. Friend. He puts the point succinctly, powerfully and persuasively. It is a good way to distinguish the approach of the Opposition from that of the Government. Instant gratification and compulsive gambling go together—they are the hallmarks of new Labour. The Conservatives take a longer view, which is why we are such supporters of charities. That is why we want to encourage the distribution of lottery funds to local charities, to get more local involvement. That is why the idea in Norfolk, of a local charitable endowment fund, is so excellent, although it would be easier to raise money for that charitable endowment if people who bought lottery tickets in Norfolk knew that their money would go directly to good causes in their county rather than being diluted among good and not-so-good causes in other parts of the country.
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      I have reservations about the fact that the endowment powers will extend beyond charities, but I am pleased about their extension to charities. Once again, I congratulate my hon. Friend the Member for Mid-Norfolk on what he has achieved.
      11.19 am
      Mr. Caborn: I congratulate the hon. Member for Mid-Norfolk (Mr. Simpson) on piloting the Bill through the House so effectively. However, I am disappointed that the hon. Member for Christchurch (Mr. Chope) used what I consider to be an extremely good Bill as a platform from which to launch an anti-lottery tirade. Some of the drivel that he brought out about addiction, gambling, and the uses to which the lottery is put was totally unfounded. He should reflect on the speech that he has just made and see what damage he has done to the lottery, which I believe has been accepted across all parties in the House and across the country as a good institution. The vast majority of its expenditure enhances the quality of life of communities throughout this country, and to that extent the lottery—which, after all, was brought into being by a Conservative Government—is to be commended and deserves all-party support. The theme of the hon. Gentleman's contribution, and of others like it, is not well founded and does tremendous damage to the good causes that the lottery supports.
      Mr. Chope: Does the Minister dispute the fact that a higher proportion of lottery income is now coming from scratchcards; that scratchcards are sold principally to young people; and that scratchcard sales have been condemned by experts, who are of the opinion that the purchase of such cards is more likely to lead to compulsive gambling than the traditional lottery ticket?
      Mr. Caborn: This morning's debate is not a discussion on the lottery. However, if the hon. Gentleman wants a debate about the lottery, let me point out that any lottery, wherever it is in the world, eventually has to branch out from the lotto. Our national lottery derives about 80 per cent. of its income from lotto—the highest percentage of any lottery in the world. Sales for the lotto part of any lottery—such as the lotto that was launched here by the 1993 legislation—initially rise, then plateau out and start to decline. It is necessary to refresh lotteries continually, by changing the portfolio of games, and that may include the introduction of scratchcards. The hon. Gentleman spoke disparagingly about selling tickets for our lottery throughout Europe. That is another means of refreshing a lottery. As he knows, we are looking at the question of funding part of our Olympic bid through the lottery, and we intend to seek the House's permission to support the Olympic bid in that way.
      The structure of lotteries must change. If they do not change, they die. Ticket sales in this country have been declining. Unfortunately, the trend has been accelerated by speeches of the type that the hon. Gentleman made this morning. Lotteries must change or die. He may sit there smirking, but a lot of people who are enjoying a better quality of life now because of the lottery would not subscribe to his comments this morning.

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      The Government endorse the principles behind the Bill and welcome the cross-party support that has been evident during its passage to date. I can confirm that I do not believe it was the deliberate intention, when the National Lottery etc. Act 1993 was originally drafted, to prevent distributors from awarding grants to establish or augment endowment funds. This is an unfortunate state of affairs, which the Bill is intended to rectify.
      The Bill is modest and—it says in my notes—uncontroversial. It has been slightly more controversial than we expected first thing this morning, but it is overall an uncontroversial Bill, as befits a private Member's Bill, and I believe its provisions will be helpful not only in clarifying the legal position of all distributing bodies to fund endowments, but in assisting charitable bodies to manage their funds more effectively. I emphasise again to the hon. Members who have been probing this morning that endowments can be dispensed to charitable organisations only.
      The lottery brings enormous benefits to charitable and community groups throughout the country and overseas. The Bill will enhance the impact of the lottery on the voluntary sector in this country.
      It is entirely appropriate that the debate takes place in the week after UK carers week. The Community Fund has played a key role in supporting the work of carers and carers week, contrary to some extent to what has been said this morning. [Interruption.] I hope that the right hon. Member for Bromley and Chislehurst (Mr. Forth) and the hon. Member for Christchurch will listen. They have been criticising the lottery, but I hope they will have the courtesy to listen—but obviously not.
      Last week, the Community Fund announced that since 1995, it has given nearly 3,000—[Interruption.] I thank the hon. Gentlemen very much for their attention. I am trying to put the record straight on the work of the Community Fund. Since 1995, it has given nearly 3,000 grants, worth more than £200 million, to enable carers to provide sustained health and social care to more than 16 million disabled, frail, long-term ill and socially isolated children and adults. Those impressive figures demonstrate the central role played by the lottery in transforming communities throughout the United Kingdom, countering some of the myths that have been created and perpetrated today and all too frequently in some of the newspapers, which the hon. Member for Gainsborough (Mr. Leigh) referred to, and other negative media attention.
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      The Bill also fits in well with a key theme emerging from my Department's review of lottery distribution: that distributors should strive to be more responsive to the needs and priorities of local communities and others. Giving distributors express powers to fund endowments will give them more flexibility in responding to the needs of applicants and will help give charitable organisations more flexibility to manage their resources. I hope we shall be in a position to publish a White Paper outlining our proposals for the future of lottery distribution next month. I urge all hon. Members present, together with charities and the voluntary sector, to play a full part in the consultation on our proposals, because it is our intention to ensure that the lottery is responding to the needs of their communities, and that more ownership is taken of the decisions made.
      To conclude, I welcome the Bill as a useful piece of legislation and I am grateful to the hon. Member for Mid-Norfolk for piloting it through the House. It will clarify the powers of all distributors to fund endowments, should they choose to do so, and put charities on an equal footing with other grant applicants in accessing lottery funding for endowments. I am therefore happy to offer the Government's support for the Bill.
      11.28 am
      Mr. Keith Simpson: With the leave of the House, Mr. Deputy Speaker.
      I shall be very brief. I thank the Minister for his very positive approach, and that of his Department and his officials, throughout every stage of the Bill's passage so far. I am very grateful. I know that it is in the interests of his Department, but it is also of wider interest. This private Member's Bill, with all-party support, helps to change an anomaly in the 1993 Act. It will be of benefit to tens of thousands of people throughout the country. It will have no impact on public expenditure.
      I think that, to address the line of argument advanced by my hon. Friend the Member for Christchurch (Mr. Chope), the Bill may not provide instant gratification, but as a former Whip, I believe in anticipatory gratification, because that is the way to persuade people to do something or not to do something. I therefore commend the Bill to the House and hope that it has a trouble-free passage in the other place.
      Question put and agreed to.
      Bill accordingly read the Third time, and passed.

High Hedges (No.2) Bill
Not amended in the Standing Committee, considered.
High Hedges (No.2) Bill
  New Clause 3

    ADOPTION OF PROVISIONS BY RELEVANT AUTHORITIES
    (1)The provisions of sections 1 to 23 only apply to the area of a relevant authority if the authority has so resolved.
    If a relevant authority resolves to apply those sections to their area—

    (a) those sections are to have effect there on and after a date specified in the resolution ("the commencement date"), which must be at least three months after the passing of the resolution, and

    the relevant authority must cause a notice to be published, in two consecutive weeks ending at least two months before the commencement date, in a local newspaper circulating in their area.

    A notice published under subsection (2)(b) must—

    (a) state that the resolution has been passed,

    (b) give the commencement date, and

    (c) set out the general effect of those sections.'.—[Mr. Chope.]

    Brought up, and read the First time.
    11.29 am
    Mr. Christopher Chope: I beg to move, That the clause be read a Second time.
    Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss the following amendments: No 88, in clause 15, line 6, leave out subsection (2).
    No. 89, in line 9, leave out 'under section 18 or 20'.
    No. 45, in page 14, line 25, leave out clause 20.
    Mr. Chope: So that hon. Members can follow the argument, I should explain that "relevant authority" is defined in clause 1 as the local authority in whose area the land on which the high hedge stands is situated. The new clause would give discretion to local authorities to consider whether they wished to opt in to the regulatory regime set out in detail in the Bill. It is modelled on an important precedent in sections 2 to 9 of the Noise Act 1996, which deal with a nuisance issue.
    Lawrie Quinn: I am following the hon. Gentleman's argument closely. Is it not the case that the problems to which noise regulations apply occur principally in urban areas? An advert in a newspaper in an urban area with a particular circulation might not work as well in rural areas such as mine, where high hedges often give rise to problems with near neighbours, sometimes with violent consequences. Such problems form a large part of my work load, and the idea of publishing in a newspaper might not apply so clearly to a rural area.
    Mr. Chope: I do not agree. The provision in the 1996 Act applies to all areas. Complaints about noise are much more frequent than complaints about high hedges. Local authorities and their residents are much more concerned about noise. I do not know whether that is reflected in the hon. Gentleman's postbag, but my postbag contains many letters on noise. Much of last Friday's debate on fireworks centred around noise and
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    the antisocial behaviour of people who use fireworks in a way not intended by the manufacturer. Unlike the hon. Gentleman, I think that the noise issue affects all local authority areas, as does the nuisance caused by high hedges. What could be more reasonable than having an active local debate, generated through the columns of local newspapers, involving councillors and council tax payers, on whether a local authority should opt into the Bill's provisions?
    Bob Russell: What is the hon. Gentleman's view if the offending landowner is the local authority? A local authority might not want to opt in to the provisions if action could be taken against it.
    Mr. Chope: The hon. Gentleman makes a good point. We will have the opportunity to discuss local authorities as judges in their own cause. Without anticipating that amendment, however, I can say that the import of it is to ensure that if a person complains about a hedge situated on land over which the local authority has control, he or she would be able to ask the Local Government Association to request an alternative local authority to adjudicate on the matter so that we would not have the problem of local authorities being judges in their own cause.
    It would be reasonable for a local authority, when considering whether to apply the principles and regulatory regime of the Bill to its own circumstances, to take into account its own resources. Christchurch local authority is unable to afford to maintain the trees in its ownership as it would wish. It says that it can no longer afford to carry out the trimming work that is necessary. Last year, it could not even afford to water the plants that local residents had planted as part of the "Britain in Bloom" competition. If local authorities are under such extreme financial pressure, surely they should be given the responsibility, and the accountability that goes with it, to decide whether to opt in to an expensive regulatory regime. I can sum up my enthusiasm for the new clause as being in line with all those aficionados of the new localism, a cause with which I naturally empathise. It is only the most centralising dirigiste enthusiasts who would wish to oppose it.
    The new clause is born out of my concern about the new financial burdens that keep being placed on local authorities. My local authority recently said that it will inevitably have to increase council tax again next year because of additional burdens placed on it by the Government. If, instead of forcing local authorities to accept those burdens, we and the Government gave local authorities the discretion over whether to take on such burdens, it would make things much easier for the Government, who could say, "Well, your local authority has decided to take on these burdens and the costs will have to be borne locally." It would also be much easier for local people because they would be able to say, "Well, why can't we just get our local authority to carry out its existing responsibilities with proper regard for what is prudent and sensible?"
    Lawrie Quinn: The hon. Gentleman talks eloquently about the concerns of local authorities. What discussion has he had with the LGA and his local authority?
    Mr. Chope: I have had discussions with the LGA in the past about the issue of burdens. As a vice-president of the LGA, which I am proud to be, I am also very much aware of the concerns that it has expressed about, I think, this Bill—but if not this Bill, certainly about others—and the additional burdens that are imposed. The Government have accepted that as a result of the burdens principle, they should reimburse local authorities for the additional costs incurred because of new regulatory burdens that are placed on them. The problem, as I said on Second Reading and, I think, in the debate on the money resolution, is that the money that the Government say they will make available to discharge local authorities' financial burden is not distributed to authorities on a pro rata basis proportionate to their actual costs.
    Mr. Tony Clarke: Is the hon. Gentleman suggesting that there are other financial burdens for local authorities that should be scrapped? For instance, should local authorities cease to adjudicate over tree preservation orders? Surely those are an expense, but that is an important duty. There is certainly a parallel between a local authority adjudicating over a tree preservation order and adjudicating on whether a hedge is, or is not, a nuisance.
    Mr. Chope: The hon. Gentleman makes an important point. An amendment has been tabled on tree preservation orders, which we will have a chance to discuss later. The Bill as currently drafted—I am sure that the hon. Gentleman is on top of the detail—would give a local authority the power to intervene. If there was a complaint, and that complaint was decided in favour of the complainant, it would have the effect of totally overruling and superseding any tree preservation order that was already in existence.
    That concern has been expressed to me, because, as the hon. Gentleman says, local authorities are given responsibilities and powers in relation to tree preservation orders. The local authority, of course, is accountable to local people, and it initially decides which trees or groups of trees will be subject to tree preservation orders. As I understand it, the local authority has absolute discretion to change, draw up or otherwise alter a tree preservation order. In introducing the new clause, I am not suggesting that the powers and responsibilities that local authorities have in relation to tree preservation orders should in any way be circumscribed. Indeed, the new clause would enhance both the responsibility and the discretion of local authorities.
    Without the new clause, the financial and administrative burden of the legislation will fall on all local authorities disproportionately. Some of those with the greatest burdens will receive no help at all. The Government said in the regulatory impact assessment or the guidance that any shortfall would be made up out of general grant. The question arising from that, however, is whether that grant will be new money, which is most unlikely. Even if that were the case, will that money be such as to enable a local authority such as East Dorset district council, which does not receive formula funding grant, to be reimbursed for the costs imposed by the Bill? I have raised that issue on several occasions, and the Minister seems to answer that it will not. The people of East Dorset will therefore find themselves funding 100 per cent. of the burden themselves.
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    How will such money made available by the Government reach a council that is protected by a floor against loss of grant, which would otherwise operate? The answer is that it would not. There are many councils in Dorset that currently receive more grant than they strictly should, and are protected by what is described as a floor against further loss of grant. If there is some notional increase in grant distributed to them as a result of the Government saying, "We will meet the additional costs of local authorities," it will go into the pot but it will not result in a local authority that is already on the floor receiving any more money. I use this argument on the basis that it is prudent in this world that, if once bitten, to be twice shy.
    That issue has arisen in the context of concessionary fares. The new burden under which every local authority shall provide free bus passes for half-price off-peak travel for the over-60s had a disproportionate impact in my constituency. Local authority areas in which the bus journeys are longer and therefore more expensive got no special treatment, local authorities with above average numbers of pensioners got no special treatment, local authorities not in receipt of revenue support grant got no special treatment, and local authorities losing grant under the Government's redistribution from south to north again got no special treatment.
    Lawrie Quinn: I was beginning to fear that the hon. Gentleman had strayed on to the bus when we should really be sitting on the hedge. Has he studied clause 13(3) and (4), which explain that an authority's expenses would be recoverable? Is he saying that he feels that local authorities would not be able to recover such expenses, as envisaged in the Bill?
    Mr. Chope: I am saying that because of what is in the regulatory impact assessment and the draft guidance produced by the Minister. I do not know whether the hon. Gentleman has had a chance to look at the draft guidance, but what that and the regulatory impact assessment make clear is that any shortfall will be funded out of general revenue support grant. As he knows, as he is probably more expert on this subject than anyone in the Chamber, revenue support grant is distributed according to a formula, so for a council such as East Dorset, which does not receive anything, being told that it will be reimbursed through a grant formula rather than through a specific grant is no consolation.
    I have tried to find a means of putting forward an amendment that would give the Government the power and the duty to reimburse the local authority for the actual costs incurred. Last week I tried to table such an amendment to the Fireworks Bill, but it was not found to be in order. It therefore occurred to me that one way of meeting the same problem would be to give local authorities the responsibility and power to opt out of the Bill if they wanted to do so. Under the Bill, as has been accepted in almost every contribution to the debates, some local authorities will receive many more complaints than others, either because they have more hedges or because they have more antisocial and antagonistic residents. Those authorities will not be able to recover all the fee income to meet their costs. In addition, they will have the burden of appeals.
    Residents of certain authorities are wrongly deemed to be able to pay because of the value of their houses. An enormous amount of anxiety exists among people, far

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    greater than that about hedges, about how they will be able to pay their increased council tax bills this year. Only today, as some Members may have had a chance to see this morning, one of our great national newspapers, the Daily Express, in a leading article, headed, "Put a cap on unfair tax", states:
    "Council tax, which has risen by more than 20 per cent. in some local authorities, has been dubbed Britain's unfairest tax after it was revealed that it is hitting the poor and middle classes much harder than the rich."
    There is also an article on page 6 of the same newspaper headed, "Unfairest tax: War on the Middle Classes". My new clause is intended to mitigate the impact of further additions to that unfair tax flowing directly from the regulation in the Bill.
    11.45 am
    Bob Russell: Did the hon. Gentleman attempt to table this amendment in Committee? In fact, was he a member of the Committee?
    Mr. Chope: As the hon. Gentleman knows, the amendment was not debated in Committee, and I do not think that the Committee went on for much more than half an hour. I was appointed a member of the Committee, and when the date for the Committee had been set, I wrote to the promoter of the Bill to say that because of a long-standing speaking engagement, which was fixed last autumn, I was not able to attend on that day. I do not think that he referred to that at the time of the Committee sitting, but I am sure that he accepts that that was the reason why I could not be present.
    When I returned from that speaking engagement, I must admit that I was amazed to find that the Committee proceedings were all over. I had expected the Committee to meet on a second occasion to consider the Bill in the detail that had been anticipated when the matter was discussed on Second Reading. That did not, however, materialise.
    This issue goes to the heart of the matter, and it is also relevant in the context of a letter that I received from one of my constituents, part of which I shall share with the House. My constituent is a pensioner and she says:
    "We are too old to be able to cut the hedge back and we do not have the money, thanks to your increase in Council Tax, to pay someone to do it for us. So have a thought for your elderly constituents. I would have thought your best bet would be to bring in a law forbidding long builders lorries and rubbish to be parked in front gardens, lowering the tone in what was was once a very nice area to live in but is no more."
    She then goes on to discuss the Bill. She is concerned that she does not have enough money to have her hedge cut, because of the high council tax. The Bill's consequences, without the inclusion of the new clause, would be that her council tax would go up even more, ironically resulting in people being less able to pay for the pruning of their high hedges than they are at present. I am sure that is not what the Bill's promoter intends.
    Mr. Charles Hendry: I am sympathetic to my hon. Friend's constituents' position, but does that justify those people casting into darkness and depriving of light people whose whole lives have been ruined and blighted by such hedges?
    Mr. Chope: The two issues are not incompatible. My hon. Friend has followed the burden of my argument,
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    which is that—as with the noise legislation—a local authority could decide, in response to pressure from my hon. Friend as a constituency Member or from other people, to incorporate within its standing orders the provisions of the regulatory regime to be set up under the Bill. That would then be the policy of the council. Alternatively, it could choose not to do that because of the costs that would be involved and the fact that it would have to increase the council tax. That might be counter-productive, as in the example that I have described.
    We know that this is not just an academic issue. I am sorry, but I do not recall whether my hon. Friend was involved in the proceedings on the Noise Act 1996 but, when it was considered in the House, the issue was how many local authorities would take up the option that it presented. In the end, not many did, because they realised that it would be quite expensive. If my hon. Friend believes, like me and our party, in localism and local responsibility, he will surely accept that we should be big enough in the House to give each local authority responsibility for deciding whether it wants to opt in in relation to this issue.
    The draft guidance to local authorities has been mentioned, and it was issued last week. It is made up of 220 paragraphs. Paragraph 2 states:
    "The Act does not specify which department within the council should carry out this function … such as planning or environmental health … It is for each council to decide which part of their organisation should be responsible for administering high hedge complaints."
    Why not let councils decide whether they wish to take this burden on? As I have already said, the issue was flagged up in earlier debates on the Bill and my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) also raised it at column 88 on 7 April when he spoke from the Opposition Front Bench on the money resolution.
    Mrs. Patsy Calton: I confess that I am puzzled. The hon. Gentleman has explained why he was unable to attend the Standing Committee, and I understand that. However, I do not understand why the Committee did not have the benefit of these 100 or so amendments. If this is such an important issue, will he explain why these points were not made in Committee?
    Mr. Chope: I am not sure that I understand the hon. Lady's argument. I flagged up these issues on Second Reading, as did my hon. Friend the Member for Runnymede and Weybridge and several other hon. Members, including one from the Liberal Democrat Benches. We referred to the Bill's rough edges. My hon. Friend the Member for Mole Valley (Sir Paul Beresford), whose constituency covers part of the Guildford local authority area, covered these points on Second Reading. The Bill's promoter assured us that these issues would be addressed in Committee. They were not: the Committee sat at 2.30 pm on 7 May and by 3.9 pm had finished considering all the clauses without anything being said about funding. These issues were not discussed because no one on the Committee chose to discuss them. If the hon. Lady is suggesting that I should have broken a speaking engagement to which I had agreed in the autumn of last year, so that I could attend

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    the first of what I expected to be several Committee sittings at a time and place about which I had not been consulted, I think she is being rather unreasonable.
    Mrs. Calton: I think I made it quite clear that I was not questioning the reason that the hon. Gentleman gave for not being able to attend the Committee. I merely said that 100 or so amendments have been tabled and that I do not understand why none of them were tabled before the Committee stage—if not by the hon. Gentleman then by members of his party.
    Mr. Deputy Speaker: Order. Such speculation is wholly outwith the scope of new clause 3. I urge the hon. Gentleman to stay within the bounds of the new clause.
    Mr. Chope: I am grateful, Mr. Deputy Speaker. However, may I just put on the record that 34 of the amendments have been tabled by the hon. Member for Hendon (Mr. Dismore) who is a sponsor of the Bill? He has accepted that he is sponsoring a Bill that is imperfect in 34 respects by the time that it reaches Report. Why did he not do something about that in Committee or at an earlier stage when he must have been involved in the drafting? That is a rhetorical question, Mr. Deputy Speaker, but I hope that the hon. Lady will intervene on the hon. Gentleman when he, no doubt, joins this important debate.
    In the debate on the money resolution, my hon. Friend the Member for Runnymede and Weybridge said:
    "What is certain is that there will be a cost to local authorities. As the Licensing Bill shows us, if local authorities are to be given new duties and responsibilities, they must have funding to ensure that they can discharge them properly. Will the Minister tell the House how the net costs to local authorities will be met, so as to ensure that the money actually reaches the authorities that are doing the work and dealing with the disputes?"
    He then referred to what I had said on Second Reading. He was very much on to the point. In the same debate, he added:
    "The critical issues are whether the Government will provide adequate funding to local authorities and how the Government are going to distribute that funding between local authorities—in other words, whether the permissive power that the Bill's money clauses give the Secretary of State to expend moneys, where it creates additional burdens, will be translated into the real distribution of hard, as opposed to notional, cash sums to the local authorities."
    He went on to say:
    "A number of issues remain unresolved. We look forward to debating and, I hope, resolving many of them in Committee."—[Official Report, 7 April 2003; Vol. 403, c. 90.]
    Unfortunately, that did not happen.
    12 noon
    The concerns were not confined to those being expressed by my hon. Friend the Member for Runnymede and Weybridge. Concerns were also flagged up by the hon. Member for Mansfield (Mr. Meale), the previous Minister responsible for this subject, who said:
    "I am also worried that not enough regard is being paid to the amount of money that will have to be made available for local authorities to make a case for funds when they have many cases with which to deal. I represent an urban authority that does not
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    have many cases, and they can be dealt with under the procedure. However, the cost to a local authority in a rural community could be enormous. I hope that my hon. Friend"—
    he was referring to the promoter of the Bill—
    "will consider including in one of the new standard spending assessments the ability for local authorities that have a definite case to bid for funds. Money has been tweaked in the SSA to help local authorities to bid for extra money to deal with the problem of large areas of floodplains that have been built on so that they can do the work before disaster occurs."—[Official Report,7 April 2003; Vol. 403, c. 91.]
    Mr. Patrick McLoughlin: I support the overall aims of the Bill, and the terror that this problem can bring to people's lives has been explained in the previous debate. My hon. Friend is making a point that is causing me concern, however. As a former local government Minister, he will have had many representations about the support that local authorities are given. This year, Derbyshire Dales district council was given only an extra £32,000, when every other council in Derbyshire was given more than £500,000 in extra rate support grant. I am very concerned about that, and I hope that the Minister will be able to reassure the House on this matter.
    Mr. Chope: My hon. Friend makes a point with which almost every hon. Member is familiar. He has made it repeatedly, yet the Government have never come back with a satisfactory response as to why they are discriminating against that council in this way. Like my hon. Friend, I support some of the principles of the Bill. That is why I supported it on Second Reading. As the hon. Member for Ealing, North (Mr. Pound) knows, I expressed reservations at that time, but I took at face value his expression of a desire to improve the Bill and his willingness to listen to representations and to act upon them. I had hoped that when the Bill came back on Report, it would have been a better Bill. In particular, I had hoped that the issue of how the additional costs were to be funded by hard-pressed local authorities would have been dealt with satisfactorily by the Minister. I know that we now have a new Minister responsible for these issues, and I hope that she will be able to get her substantial intellect around the problem and deliver a solution for us.
    During the debate on the money resolution, I put forward what I described as a constructive suggestion, saying:
    "I hope that the Minister can respond constructively to those concerns so that the mood on the Standing Committee will be positive. He said that he does not necessarily believe in consensus, but if the Bill is to have the support of local authorities, the Government have to spell out clearly the basis on which the reimbursement of costs will be made."
    The Minister then said:
    "Many of the issues that hon. Members have raised are worthy of further exploration in Committee. Based on the evidence, we believe that the statements in the regulatory impact assessment on costs to local authorities and appeal authorities, and the assumptions in the assessment on the cost of subsequent appeals, are correct."
    He went on:
    "Any shortfall in our calculations will be covered by the Office of the Deputy Prime Minister under the new burdens principle and through a system that has yet to be determined but which will embrace both elements of the financial regime for local authorities.

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    I take the point about the difference in the impact on rural and urban authorities, or on urban and suburban authorities. That difference will have to be reflected in any assumptions that are made in the financial regime."—[Official Report, 7 April 2003; Vol. 403, c. 93–95.]
    On the basis of that statement by the Minister, I had hoped—and, indeed, expected—that the Bill would by now have been amended to reflect those concerns. As we know, however, that did not happen in Committee.
    So we are left with the fall-back position in paragraph 25 of the full regulatory impact assessment, which states:
    "Local authorities will be able to charge complainants a fee for determining these complaints, the level of which will be set in regulations. If this does not reflect the full economic cost to authorities of administering the system, resources will be transferred into the revenue support grant settlement to cover the shortfall."
    As I have already made clear, that is not good enough. That is a good reason why local authorities should be given the power to opt out if they so wish.
    Amendments Nos. 88 and 89 cover the parliamentary scrutiny regime that should apply to regulations prescribing local authority fees and other regulatory powers under the Bill. Amendment No. 88 would leave out clause 15(2) and amendment No. 89 would amend line 9 of that clause, removing the words
    "under section 18 or 20".
    Effectively, that would require that the regulations be subject to the affirmative resolution procedure. I think and hope that the House accepts the fact that there is a strong case for that, particularly in the light of the concerns expressed by me and others on the funding of the Bill.
    The regulations would extend not only to the powers under clause 4 but to the appeals procedure. Clause 8(2) sets out an extensive range of regulations that may be made by the appeal authority, which is either the Secretary of State or the National Assembly for Wales.
    Those two amendments are nothing like as important as amendment No. 45, which would leave out clause 20. I regard it as highly significant, and I hope that the promoter accepts it, as that would allay many concerns. What would clause 20 do? Paragraph 34 of the explanatory notes says:
    "Clause 20 gives the Secretary of State and the National Assembly for Wales power to extend the scope of complaints covered by the Bill (under clause 1) and to alter the definition of "high hedge' (in clause 2) through regulations. This is necessary in case experience shows that the Bill does not cover particular problems with high hedges."
    I ask the House to note the emphasis on extending the Bill's ambit by regulations that cannot be amended. That, effectively, is what we are being asked to sign up to under clause 20.
    The definition of "high hedge" could be changed by clause 20 to cover deciduous as well as evergreen trees and single trees of any type. It could also extend the scope of complaints under clause 1 in respect of the range of those who can complain and the matters about which they can make a complaint. Is it any wonder that the clause has set the alarm bells ringing?
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    My hon. Friend the Member for Runnymede and Weybridge, speaking from the Front Bench in the money resolution debate, said that clause 20
    "could have a significant impact on the cost of the Bill".
    He added:
    "I am alarmed that the kernel of the Bill—the definition of a high hedge—could be changed subsequently by secondary legislation."
    I share his concerns, and I hope that my hon. Friend the Member for Cotswold (Mr. Clifton-Brown), who sits on our Front Bench, shares them as well.
    In response to those concerns, the Minister said:
    "I will not be tempted down the route of a debate on clause 20 on definition and scope. Those issues can and should be investigated further in Committee."—[Official Report, 7 April 2003; Vol. 403, c. 87–95.]
    Having regard to the history of the matter, it will not surprise you to know, Mr. Deputy Speaker, that they were not. All that happened is that in the 39-minute Committee proceedings, the hon. Member for Ealing, North admitted that clause 20
    "would allow us, for instance, to include deciduous or individual trees at a later date."—[Official Report, Standing Committee F, 7 May 2003; c. 5.]
    The hon. Member for Colchester (Bob Russell) made clear his impatience, as he wants the Bill to extend to single trees.
    Mr. Stephen Pound: I apologise for interrupting the hon. Gentleman in mid-flow, but may I make an addendum to that remark? Any such amendment would have to be subject to affirmative resolution of both Houses of Parliament. It could not just happen at the flick of a switch or the snap of a finger.
    Mr. Chope: I accept that point, but is it good enough that legislation can be introduced to define a hedge as any single tree, or any deciduous plant or tree, through a resolution that may be passed after a 90-minute debate in the House and which cannot be amended? That is totally unacceptable. Such a change would transform the Bill's aspect and the mischief that it is designed to address. I cannot understand why the hon. Member for Ealing, North is insisting on keeping clause 20 in the Bill. I had hoped that he would respond to the concerns expressed about that wide-ranging definition.
    I do not need to go into further detail about every type of tree that could be the subject of a change to the definition. Every morning, as we come into the car park in New Palace Yard, we see an excellent pleached lime hedge, which is more than 6 ft high. Under the powers in clause 20, an order could be made requiring that hedge to be chopped down to 6 ft.
    Bob Russell: Does the hon. Gentleman agree that there would first have to be a complainant? A neighbour would have to complain about the hedge or a single tree. If such an order were approved by the local authority, an aggrieved person would have an appeal mechanism. The position is not quite as clear cut as he suggests.
    Mr. Chope: I agree that that procedure would be available. Inherent in what the hon. Gentleman says is that every person who has a single tree in his garden in an urban, semi-urban or even rural environment could be subject to an order if his neighbour changed and disliked that tree because it was blocking his view, causing loss of light or was overhanging his own garden. Some people prefer a desert landscape or a concrete jungle: this is a subjective matter. The hassle involved for the landowner or occupier and for the local authority in fielding and responding to complaints and dealing with the appeals that flow from them is a prodigious burden.
    Mr. Frank Field: Had we planted a hedge at the beginning of the hon. Gentleman's speech, we would probably not now be able to see him from this side of the Chamber. There is a third Bill on the Order Paper today that concerns his constituents and those of other hon. Members. It is the Pensions (Winding-up) Bill, and we want to know where the Government stand on it. Will he bear that in mind in contributing to the debate on this Bill?
    Mr. Chope: The right hon. Gentleman makes an extremely important point. Like me, he will know that this Bill could have been put first on the Order Paper for 4 July. Given its complexity and contentiousness, why did the promoter not put it on the Order Paper for 4 July? The right hon. Gentleman may share my suspicions and scepticism, but I suspect that the hon. Member for Ealing, North was told to put it on second today, because it was thought that that would preclude or minimise the House's opportunity to discuss the important issues that are raised in the Pensions (Winding-up) Bill, which is promoted by the right hon. Gentleman. He knows as well as I do that, as a matter of procedure, if a Bill has been through Committee its promoter has the right to insert it in front of one that is already on the Order Paper.
    Intially, I could not understand why the promoter of this Bill would choose to put it second for Report stage rather than first, as he could have done on 4 July. It then occurred to me that there was some monkey business, which is now becoming apparent. We were given warning of that by the large number of amendments tabled by a sponsor of this Bill, the hon. Member for Hendon.
    I do not know whether we will reach the Pensions (Winding-up) Bill. I hope that the substantive issues it contains will he debated. I regret the fact that the previous Bill on pensions was—
    Mr. Deputy Speaker: Order. I think that we should try to keep the monkeys out of this and return to the new clause.
    Mr. Chope: I am grateful to you, Mr. Deputy Speaker. The point has been made, and it is a very important one too.
    12.15 pm
    In conclusion, if clause 20 is not removed, the Bill could have a more dramatic impact on the English landscape than the combined effects of the great storm,
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    Dutch elm disease and the Luftwaffe's bombing. No tree, bush or shrub—whether single or in a group, or in a city, town, suburb or the countryside—will be safe from being cut down to size—2 m—on the complaint of any individual attracted to a desert or concrete landscape. It would be a veritable end to Britain's green and pleasant land, produced by regulations that could not be amended. That is why I hope that the promoter will accept the new clause.
    Mr. Pound: I deeply regret the coda to the contribution made by the hon. Member for Christchurch (Mr. Chope). As one who has been proud to serve in Her Majesty's armed forces, I think that any association, by any hon. Member, with the depredations of a foreign power is unacceptable, and I am sure that, on reflection, he will think and realise that his comments were slightly hyperbolic and to be regretted. However, I wish to put that aside and to refer specifically to this small group of amendments.
    I have been assured by hon. Members on both sides of the House that, just as the nation wants this legislation, just as the 10,000 victims want this legislation, just as the 4,000 members of Hedgeline want this legislation and just as the 1,000 people who have written to me—I have the letters here—want this legislation, the House supports it. I have to say, to use an expression of which the shadow Leader of the House would recognise the provenance, it seems as though some people are supporting the Bill as the rope supports the hanging man.
    I prefer to be charitable and to view the new clause and amendments as an honest and conscientious attempt to make a better Bill. This is fifth occasion that the Bill has come before the House, so this is probably the most scrutinised legislation in parliamentary history. I could speak for long, but out of respect for my right hon. Friend the Member for Birkenhead (Mr. Field), I will try to be as brief and concise as possible, even though it goes against my every instinct.
    New clause 3 is an opt-out clause, under which the Bill would apply only to those areas that local authorities chose. If the issue that we are addressing today were a local problem in one or two areas, that would be entirely appropriate—no one would have any problem with it—but this is a national problem. The Bill would not even apply to Northern Ireland, yet I have had scores of letters from people there who want this legislation.
    I have received letters, cards, e-mails—I have a box of them with me—and visits, even from people in Highcliffe in the constituency of the hon. Member for Christchurch. I have received any number of letters. We cannot simply say that this is a matter of permissive legislation that local authorities may or may not adopt. I remind the House that the extensive consultation with the Local Government Association has at no stage thrown up any wish from local authorities to have an opt-out option.
    The right hon. Member for Suffolk, Coastal (Mr. Gummer), whose name appears on some of the amendments today, introduced the Noise Act 1996, but it did not work and had to be amended by antisocial behaviour legislation. The deletion of the requirement to adopt the 1996 promissory aspect has had to be addressed because it simply did not work. The point that

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    I am making is that councils throughout the land are dealing with this issue at the moment with one hand tied behind their backs. They need to have the power; it is not a pick-and-mix option.
    No part of what the hon. Member for Christchurch grandiosely described as this green and pleasant land is not suffering from the problem. We cannot simply pepper the power around the nation. I would strongly resist any move to adopt new clause 3, and I am sorry to have to say that, because the Bill has been discussed at so many levels that we have pared it down so that it is at its most workable and least confused.
    As the hon. Member for Christchurch said, amendment No. 45 would remove the power in clause 20 to extend the scope of complaints. I repeat the point that I made in an intervention. Clause 20 is absolutely crucial in order for a quick response to be made. It is in the interests of moving out of the straitjacket of legislation, accepting that we may have to consider other things in future. Subject to the affirmative resolution of both Houses, the provision could be extended. Things change. We cannot legislate for ever, much as we wish we could. Surely it is in keeping with the generosity of spirit and the emotions of new localism that the hon. Gentleman spoke about to allow some scope for change, if it is needed. I assure the House that we would not have someone writing the measure on the back of an envelope and saying, "The Act has now changed." The regulations would be discussed at length in both Houses. That is a recognition of the sensitivities concerned.
    The issue of finance has been addressed before and will be addressed again, but briefly the revenue support grant settlement as delineated in the money resolution debated in the House on 7 April clearly identifies new money to meet the costs. I repeat that local authorities are at this moment having to devote officer time to resolving a problem, when they do not have the legislation to deal with it finally, or the funding and resources to pay for those officers. Those officers are having to address a problem that they can do nothing about.
    Ultimately, the measure will be self-funding—there will be a charge. We know that. In accordance with the money resolution, additional money will be made available if needed. That is not a problem. Like every hon. Member, I weep for Derbyshire and the revenue support grant settlement for the district council in the constituency of the hon. Member for West Derbyshire (Mr. McLoughlin)—but that is not the point. That is a subject for another debate.
    Today, we are not loading new duties on local government without giving them the means, mechanism and finance to perform them. In fact, we will be saving local authorities money, because can there be anything more frustrating than having to devote hours and hours of officer time to a problem that has no solution?
    I reluctantly request that the hon. Member for Christchurch reconsiders his amendments. I know that my hon. Friend the Minister will speak to amendments Nos. 88 and 89. With great respect, I ask the hon.
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    Gentleman to reconsider new clause 3, as I do not think that it is in the spirit of the Bill. Equally, I do not think that amendment No. 45 is necessary.
    Mr. Edward Leigh: I respect what the hon. Member for Ealing, North (Mr. Pound) is trying to do and he will be relieved to hear that my remarks will be fairly brief, but I want to make one simple point. We may have similar views on many matters but we represent very different constituencies. I am prepared to accept—I am not going to second-guess him—that high hedges are a major problem in the London borough of Ealing, but he should know that I represent a constituency that is 600 square miles. That is about the same size as Greater London. There are about 72 parliamentary constituencies in Greater London. I have one of the smaller electorates in the country. I probably have, let us say, 30,000 council tax payers spread over 600 square miles.
    I accept that, in urban areas—it can be sorted out by the local authorities, which know best—there are some extremely careless, unpleasant or perhaps poor people who allow Leylandii to grow around small suburban or urban gardens, which cuts out the light of their neighbours and causes them enormous distress. I personally believe that we need some enabling legislation to help local authorities to deal with that. In total, there may be a large number of disputes—perhaps 10,000 around the country—but compared with the total number of properties in the country that is relatively small.
    I am still happy, if we want to make progress today in terms of compromise and accepting amendments, to have a Bill that addressed that problem and allowed local authorities, if they so wished, to deal with the very small number of people who allow Leylandii to grow to 30, 40 or 50 ft, which is absurd.
    Let me describe why this provision is important, and why local authorities are best equipped to decide whether they want to get involved in this process. As I have said, my constituency is very different from certain others. I took care to go to the Lincolnshire show, which was held yesterday and was attended by 30,000 mainly rural people. I did a bit of vox pop and asked some local councillors and people whom I happened to meet about the Bill. When I described some of the clauses and what it tries to achieve, everybody whom I talked to was horrified.
    There are thousands of miles of hedges in my constituency. The hon. Member for Ealing, North may find this difficult to understand, but in the lane outside my house—along which perhaps one car or tractor an hour passes—there are hedges not just 2 m high, but 3 m or even 4 m high. They have been left there by the farmer for environmental reasons. I realise that the hon. Gentleman wants to restrict the provision to evergreen shrubs, but I can assure him that because of the amount of planting going on and the growth of hedges, we are talking about a completely different environment in the country. It is a great pity, therefore, that we could not reach a compromise on this issue, whereby local authorities have some ability to decide what to do to solve the problem. After all, they know best what is going on in their area.

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    As I said, my constituency is very different; it is completely rural, with hundreds of miles of hedges. I would venture to suggest that this is much less of a problem in a district such as West Lindsey, in Lincolnshire, than in the London borough of Ealing, even in the villages and suburban areas. In 20 years as a Member of this House, I have had to deal with just one bad problem—when I visited a suburban location in which somebody had grown a hedge. I can recollect receiving no more than one or two letters on this subject in that time.
    Mr. Tony Clarke: Does the hon. Gentleman—I speak as somebody who has the largest constituency in mainland Britain, which includes some 92,000 constituents, rural and urban—accept that this is a problem in both an urban and a rural setting? My constituency has three local authorities—a borough council, a district council and a county council—and many parish councils. I have received letters from all parts of that constituency. People recognise that visits to the garden centre are not necessarily decided on the basis of one's postcode. People buy these offensive plants irrespective of where they live, and the plants cause nuisance to their neighbours, irrespective of where they live. Life cannot be easily divided up into rural and urban; this problem affects people throughout the land, irrespective of the nature of the constituency in which they live.
    Mr. Leigh: That is a perfectly fair point. I do not want to take an absolutist point of view. Someone who lives near me in the middle of completely rural location has grown huge evergreen cedars—I do not know why—all around his house. That upsets nobody because all that surrounds his house is fields. Of course, such trees could cause a problem in rural areas in certain circumstances. That is why it is best for local authorities, which know the areas concerned best, to make a considered judgment as to whether there is a problem. I accept that many local authorities cover a mixed area, rural and suburban; it is for them to take that decision.
    Bob Russell: Does the hon. Gentleman agree, however, that if no neighbour is complaining about the high trees around the house of the constituent to whom he has just referred, there is no problem? The Bill does not in any way attack the hedgerows of our wonderful countryside; in fact, many of us would like more hedgerows. The hon. Gentleman should address the point: we are talking about inappropriate trees and hedges in inappropriate locations.
    Mr. Leigh: As I said, I am not taking an absolutist view—I am simply trying to explain the differences. [Interruption.] I note that the hon. Member for Ealing, North, the Bill's promoter, has returned; unfortunately, through no fault of his own he had to leave the Chamber for a moment. I said a few moments ago that I am genuinely trying to seek a compromise. I accept that safeguards are already built into the Bill, but they do not go far enough. I would refer the hon. Member for Colchester (Bob Russell) to a local authority such as my own. It is starved of resources—whichever party is in power—and is trying to make provision for more and
    more services laid on it by the Government. It has to
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    deliver those services over an area of 600 square miles with only 30,000 council tax payers. Now we are talking about placing yet another duty on such authorities.
    12.30 pm
    Frankly, 2 m is far too low. In my constituency, it is nothing. It is just a tiny shrub of a hedge. Even in the suburban areas where the gardens are much bigger, hedges regularly grow way above 2 m. If the Bill's sponsor were prepared to accept my amendment, which would increase the height to 4 m; if local authorities could have some input; if we could restrict the measures to conifers, I would happily pass the Bill. The hon. Member for Ealing, North is the Bill's sponsor and he can do what he likes, but if he is unprepared to compromise, I tell him that the Bill will cause problems for relatively cash-strapped rural authorities such as my own. People will make use of the Bill when it becomes law and extra burdens will be placed on my local authority. What will happen then?
    We are told in the regulatory impact assessment that local authorities will incur costs for determining complaints and enforcing remedial action. It says that responses to consultation suggested that officers' time would cost an average £35 to £40 per hour, and that it would take around eight hours to investigate a complaint and decide whether to require the owner to carry out remedial works. I am prepared to accept that that may cause no problem in a London borough such as Ealing. Such authorities are much larger and much richer in their rate support base. I have no doubt that the London borough of Ealing could take it all in its stride.
    By contrast, when I checked last week, I found that over the whole 600 square miles of West Lindsey, the authority was so strapped for cash that at one stage it did not have even one planning enforcement officer—not one for all of 600 square miles. Let us forget about hedges for a moment. People could be building extensions without permission, flouting existing planning law, yet not a single officer was employed by the local authority to deal with the problem. The regulatory impact assessment says that it will cost only about £35 or £40 an hour, but in some wards in my constituency, the average wage is as low as £10,000 to £12,000 a year. It is a highly rural area with people living on low wages, with a cash-strapped local authority unable to employ—for a time at least—a single planning enforcement officer, and now even more duties are going to be laid on the local authority.
    Let me tell the hon. Member for Ealing, North that this is not a wrecking or unreasonable amendment: it is all about town and country. I accept what the hon. Gentleman says about the problem of restricting the Bill to certain areas in the country. I accept that in an area such as my own, there may be isolated cases of gardens being much bigger than in London, even in suburban areas, but why not let the local authority decide?
    It is estimated that the average cost will be about £280 to £320 per case. That is nothing for London boroughs, but a much greater burden on authorities such as West Lindsey. The regulatory impact assessment states that the consultation respondents agreed that there was backlog of existing problem cases to be dealt with in the short term and that no one could improve on the

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    estimate that 10,000 such cases would remain to be determined. Fair enough. That just shows that we need some sort of legislation.
    I support that view. There could be 10,000 cases of the worst kind in the country as a whole. There are about 400 local authorities in the country. Plucking a figure out of the sky, there could be 10, 20 or 30 bad cases in my local district. The local authority might be able to cope with it: I do not know, but we should let it decide. Do we not all believe in local democracy? I do not understand why, if the hon. Member for Ealing, North believes that there is a problem in Lincolnshire, he cannot allow Lincolnshire local authorities the chance to determine what they want to do about it.
    The regulatory impact assessment also states that local authorities will also be involved in appeals against their decisions, submitting statements and commenting on representations from the parties. I do not know how many people are employed in a London borough such as Ealing—many hundreds, I suspect. How many are employed in a small district authority? Perhaps 100 in total, but they have to determine all the huge paraphernalia of existing Government laws, regulations and so forth. The regulatory impact assessment says that staff will largely draw on existing material and that they will spend no more than three to four hours on each case. Based on an estimated appeal rate of 2,000 cases every three years, that suggests total costs ranging from £210,000 to £320,000. It also says that local authorities will be able to charge complainants a fee for determining these complaints. That is fair enough, and such burdens can be easily borne by urban and London borough authorities, but it is a different story for rural local authorities.
    If a hedge owner does not comply with a local authority's orders, we are told in the regulatory impact assessment that the authority will be able to enforce remedial action by prosecuting the hedge owner. Again, that will be no problem in London boroughs, but I do not know how we will cope with it in West Lindsey, which recently did not have a single enforcement officer. It also says that any unpaid expenses arising from the local authority using its default powers to carry out the work it specified in the remedial notice will be registered as a local land charge.
    I have made my point, and I hope that the hon. Member for Ealing, North will be able to accept it in a spirit of compromise. I dearly wish that we could amend the Bill today so that we can attack those awful people who allow their trees to grow to such a height and who do not care about others. However, I know one person in a neighbouring constituency who has a problem with leylandii at the bottom of his garden, but he cannot afford to cut them down. He is not a nasty person and he does not want to cut off anybody's light, but he simply cannot afford to cut the trees down. That is often a problem in rural or semi-rural areas. People are not being unreasonable: they cannot afford to take remedial action. The local authority could take a balanced view and decide to opt in or opt out. I hope that in a spirit of
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    compromise the Bill's promoter will feel able to accept the new clause. or at least some of the other amendments that we will consider today.
    Mr. Geoffrey Clifton-Brown: The Opposition recognise that high hedges can be a significant problem. We already know that some 10,000 complaints have been made and need to be dealt with. Therefore, in principle, we welcome some form of legislation on the subject. As the hon. Member for Ealing, North (Mr. Pound) has already said, this is one of the most scrutinised Bills in parliamentary history. Its origins go back to even before my hon. Friend the Member for Solihull (Mr. Taylor) introduced his Bill on the issue, on which this Bill is largely based, when the hon. Member for Coventry, South (Mr. Cunningham) introduced a similar Bill.
    In principle, we want to see the Bill on the statute book, but we hope for some signs of flexibility from the promoter of the Bill. Nobody would want the Bill to be so all-encompassing as to catch individual trees. If the Bill remains as drafted, it would be relatively easy to introduce a statutory instrument under it, but that is an inflexible procedure. Statutory instruments are debated for one and a half hours, after which they are either accepted or not, and they cannot be amended. I would therefore be very wary of accepting a Bill that could lead to catching an individual tree, especially a deciduous tree. That would be unfortunate.
    I hope that the Bill makes progress this morning. I hope that the promoter will be flexible, especially on the amendments about evergreens, to which I have appended my name. We will certainly need good will on both sides of the House—I note that the hon. Member for Hendon (Mr. Dismore), who is a sponsor of the Bill, has tabled many amendments—if the Bill is to make progress in the next couple of hours.
    The Parliamentary Under-Secretary of State, Office of the Deputy Prime Minister (Yvette Cooper): As a new arrival at the Office of the Deputy Prime Minister, I welcome the opportunity to support the Bill promoted by my hon. Friend the Member for Ealing, North (Mr. Pound), and to take the opportunity to address some of the important points raised in the debate.
    On new clause 3, I say to the hon. Member for Gainsborough (Mr. Leigh) that I do not see why one area of the country would be immune from the problem of high hedges. I recognise his points about differences in certain areas, but every kind of authority will contain people with neighbours who have hedges. Hedges as glorious as those he described would not restrict people's reasonable enjoyment of their property and gardens, and would not be covered by the Bill.
    On funding, the Government will bear the cost of additional burdens not covered by fees through the general grant.
    Mr. Leigh: The Under-Secretary is trying to be reasonable, and I am trying to give her a flavour of what could happen in rural villages. As I have said, 2 m, or 6 ft, around a house in a rural village is nothing. There may be hundreds of miles of hedges of over 6 ft around houses in such villages. The local authority will have no

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    choice as to whether it is dragged into the process, because difficult people will start to complain about their neighbours' hedges. Frankly, we should not be addressing that; we should be addressing people who are growing leylandii of up to 60 ft in urban locations. We should have a narrow Bill to deal with that.
    Yvette Cooper: The hon. Gentleman is aware that the nature of the problem depends on the environment and the circumstances. It is not simply a question of the height of the hedge, but about whether it is a barrier to light or access and whether it affects the reasonable enjoyment of the property. I agree that it would be inappropriate to have a completely open-ended measure, but the Bill has appropriate safeguards.
    I can tell the hon. Member for Christchurch (Mr. Chope) that the money will be paid through the general grant; all county, district, metropolitan and unitary authorities receive the general grant. Changes have been made to the revenue support grant that may address and make outdated some of his concerns.
    Mr. Chope: I realise that this is a new brief for the Under-Secretary, but is she saying that the actual expenditure incurred by any local authority in pursuance of the Bill would be met by the Government on an indemnity basis, or would there be a general distribution of grant, as with concessionary fares?
    Yvette Cooper: We would need to follow the established procedures for assessing the financial burdens imposed on local authorities by new initiatives, as we do in a number of different areas.
    Amendments Nos. 88 and 89 would turn regulations on maximum fees and appeals procedures from the negative to the affirmative procedure. I assure the House that the negative procedure is standard for such measures, whether they are planning or tree preservation appeals, and the procedure provides safeguards.
    On amendment No. 45, which would delete clause 20, I understand the legitimate concern to ensure that there is proper parliamentary scrutiny of changes. I can assure hon. Members that the Government have no intention of using the clause at this stage and we do not see evidence that there will be a need to extend the Bill.
    It is appropriate to respond to the concerns that have been raised about the possibility of loopholes emerging in future, given how long it has taken to get the Bill this far. The Bill contains safeguards; it must deal with high hedges, and with complainants whose reasonable enjoyment of their property is being undermined. Its measures are proportionate, and it is important that they should be so.
    I must ask hon. Members to recognise the strength of feeling on this matter and the number of people whose lives and enjoyment of their property are seriously blighted by these problems. I ask hon. Members to allow the Bill to proceed and to let us, as politicians, try to solve the problems genuinely brought to us by constituents. I ask them to recognise the safeguards and the assurances that I have given, and I ask that the new clause be withdrawn.
    12.45 pm
    Mr. Chope: This has been a good debate, but I am disappointed that the Minister cannot assure us that the actual costs incurred by local authorities in meeting the burdens imposed by the Bill will be met by Government grant. In the absence of that, why not give local authorities discretion on whether to sign up to the Bill's procedures? She has not explained why it is all right for the Government to allow local authorities discretion on whether to operate the Noise Act 1996, which arguably relates to a problem affecting many more people than high hedge nuisance does. As recently as 20 May, another Minister said, in a debate on clause 47 of the Anti-Social Behaviour Bill:
    "Many local authorities have found that they do not want to provide such a service. We could argue all day about whether they were right to decide that … As I said, we are freeing up local authorities from the requirement to provide the service described."—[Official Report, Standing Committee G, 20 May 2003; c. 379.]
    In other words, they are being given discretion to provide the service if they wish to. If that applies to noise legislation, why cannot it apply to high hedge legislation?
    I wholly endorse what my hon. Friend the Member for Gainsborough (Mr. Leigh) said about trying to make progress and achieve compromise and flexibility. Both he and I were present last Friday when the House saw what can happen when there is flexibility and compromise. They are, indeed, what the whole mediation system written into the Bill is all about. We are trying to get the owners of high hedges and their neighbours to come to terms and resolve these matters amicably. I should have hoped that we could apply the same principle to the proceedings of the House.
    If the Government have no intention of applying clause 20 to single trees, why cannot it be excluded? That would be no big deal, surely. If the Government can extend discretion to local authorities on noise legislation, why cannot they do so for this Bill? Again, it would be no big deal. Why should such issues block progress on the Bill'? I repeat the appeal made by my hon. Friend the Member for Gainsborough for reason, compromise and flexibility. With those, we could make much faster progress.
    Question put, That the clause be read a Second time:—
    The House divided: Ayes 1, Noes 34.

    Division No. 242]

    [12:48 pm

    AYES

    Wilkinson, John

    Tellers for the Ayes:

    Mr. Christopher Chope and

    Mr. Edward Leigh

    NOES

    Ainger, Nick

    Fitzpatrick, Jim

    Banks, Tony

    Gardiner, Barry

    Barnes, Harry

    Gerrard, Neil

    Brooke, Mrs Annette L.

    Harris, Dr. Evan (Oxford W & Abingdon)

    Byers, rh Stephen

    Calton, Mrs Patsy

    Hendry, Charles

    Clarke, rh Kenneth (Rushcliffe)

    Hill, Keith (Streatham)

    Clarke, Tony (Northampton S)

    Holmes, Paul

    Cohen, Harry

    Laing, Mrs Eleanor

    Cooper, Yvette

    Lazarowicz, Mark

    Davey, Edward (Kingston)

    Linton, Martin

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    McNulty, Tony

    Vis, Dr. Rudi

    Maples, John

    Ward, Claire

    Osborne, Sandra (Ayr)

    Wicks, Malcolm

    Quinn, Lawrie

    Wright, Anthony D. (Gt Yarmouth)

    Russell, Bob (Colchester)

    Soley, Clive

    Stanley, rh Sir John

    Tellers for the Noes:

    Sutcliffe, Gerry

    Mr. Andrew Dismore and

    Taylor, John (Solihull)

    Mr. Stephen Pound

    Question accordingly negatived.

  New Clause 6

    COMPLAINT WHERE RELEVANT AUTHORITY IS OWNER OR OCCUPIER OF LAND
    "If a complaint under this Act is brought in respect of land of which a "relevant authority" is the owner or occupier it shall be referred forthwith by that authority to the Local Government Association which shall nominate another local authority to consider the complaint.'.—[Mr. Chope.]
    Brought up, and read the First time.
    Mr. Chope: I beg to move, that the clause be read a Second time.
    Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to take the following amendments: No. 12, in clause 4, page 3, line 2, at end insert—
    "() for the purposes of this section, reasonable steps shall include at least one meeting with the owner or occupier of the adjoining land on which the hedge is situated, unless that person has refused to meet or the complainant has reasonable grounds to fear for his personal safety if such a meeting was to be held.'
    No. 81, in page 3, line 2, at end insert—
    "() For the purposes of this section reasonable steps shall include at least one meeting with the owner or occupier of the neighbouring land and an offer to share any costs of reducing the height of the hedges'.
    No. 13, in page 3, line 9, at end insert—
    "() for the purposes of this section, in deciding whether a hedge is having an adverse effect, the authority shall have regard to—

    (a) the height of the hedge when viewed from the complainant's property;

    (b) the distance the hedge is situated from domestic buildings on the complainant's property;

    (c) the length of time the hedge has been growing;

    (d) whether the complainant was first in occupation before or after the planting of the hedge;

    (e) whether the area is urban, suburban or rural;

    (f) the likely cost of remedial action;

    (g) the means of the owner or occupier of the neighbouring land;

    (h) for how long the owner or occupier of the neighbouring land has been owner or occupier.'.

    No. 37, in page 3, line 9, at end insert—
    '() The authority must, when acting under subsection (3), take into consideration all matters appearing to them to be relevant, including in particular (so far as appearing to be relevant)—

    (a) the extent to which the high hedge in question is capable of affording (or, if reduced in height, would still be capable of affording) privacy to an occupier of the neighbouring land,

    (b) the extent to which that hedge contributes (or, if reducer in height, would still contribute) to the amenity of the neighbourhood, and

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    (c) any legal obligation (whether imposed by or under any enactment or otherwise) relating to that hedge.'.

    No. 96, in page 3, line 9, at end insert—
    "() The authority must when acting under subsection (3) take into consideration all matters appearing to them to be relevant, including in particular any guidance issued by the Secretary of State or the National Assembly for Wales'.
    No. 82, in page 3, line 35, leave out subsection (7) and insert
    "A fee determined under subsection (1)(b) shall cover the reasonably foreseeable costs to be incurred by the authority in considering the complaint'.
    No. 97, in page 3, line 36, leave out from "1(b)' to end of line 38 and insert
    "shall be refunded to such extent as it exceeds the reasonable costs incurred by the authority in considering the complaint'.
    1 pm
    Mr. Chope: What an extraordinary state of affairs! Barely 40 people, including yourself, Madam Deputy Speaker, are in the House for such an important piece of legislation. Let us hope that we can make some progress even with such a small number of hon. Members.
    Mr. Eric Forth: My hon. Friend should explain that, including the Speaker and Deputy Speakers, there are 659 Members of Parliament—or, sadly, 658 as we speak. In spite of some of the claims made about the importance of Bills—not least this one—fewer than 40 Members of Parliament out of 658 deem it sufficiently important to be here today to make legislation.
    Mr. Chope: Absolutely. That is especially pertinent if, as we are told, so many representations have been made to hon. Members on both sides of the House by constituents who are anxious about high hedges. The number present is probably an indication of the interest in the Bill overall and the extent to which hon. Members take their constituents seriously on this subject.
    Bob Russell: The hon. Gentleman is far more knowledgeable than I am about the democratic processes of this esteemed House, but does he agree that the Order Paper clearly states that the Bill was not amended in Standing Committee? Is that not an indication that perhaps there was a consensus on the Bill and that it received all-party support?
    Mr. Chope: Is the hon. Gentleman accusing his colleagues and Labour Members of being naïve in their reading of the Order Paper for assuming that a Bill that was not amended in a Committee that lasted for 39 minutes would sail through? Any hon. Member could see the number of amendments—35, I think—that had been tabled by the hon. Member for Hendon (Mr. Dismore). If that did not alert them to the fact that something controversial would be discussed today, I do not know what would have done. Other amendments have also been tabled. The hon. Member for Colchester (Bob Russell) cannot excuse the behaviour of all those who are not here by saying that they were duped into

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    thinking that there was no need to attend. At least the hon. Gentleman was not duped—he was on the Committee and did not dupe himself—
    Madam Deputy Speaker: Order. The hon. Gentleman has responded to the intervention. Perhaps he could now address the new clause.
    Mr. Chope: Absolutely, Madam Deputy Speaker.
    The new clause deals with an issue raised by, I think, the hon. Member for Scarborough and Whitby (Lawrie Quinn). I am sorry that he is no longer in the Chamber. The problem is not new—it was debated when we considered on Report the Bill promoted by my hon. Friend the Member for Solihull (Mr. Taylor) in the last Parliament—so it is especially disappointing that it is left in the air and not resolved.
    Paragraph 136 of the draft guidance—about a council as a party to the complaint—states:
    "There are no special procedures laid down in the Act for dealing with complaints in which the council is directly involved as one of the parties. The hedge might, for example, be on land owned by the council."
    The guidance continues:
    "It is important that the process for deciding such complaints is seen to be fair and impartial. Councils should, therefore, consider setting up internal procedures to ensure that the complaint is considered by a committee or officers who do not have responsibility for managing the land or trees in question. This should avoid any potential conflict of interest."
    I do not think that that goes far enough, because what we are talking about is justice being seen to be done. If the local authority is a party to the proceedings and the respondent to the complaint, how can a complainant believe that his complaint is being given just consideration if the local authority deals with it itself, rather than referring it, as the new clause suggests, to another local authority? The draft guidance continues:
    "If someone believes that the council have not handled their complaint properly, they can refer the matter to the local government ombudsman".
    I am afraid that, again, that is no solution. I know from dealing with the local government ombudsman on behalf of my constituents that that is a long-drawn-out process and no proper compensation is payable at the end. Would it not be much easier for the local authorities to proceed along the lines suggested in new clause 6?
    That brings me to the next amendment in the group, amendment No. 12, which was tabled by the hon. Member for Hendon. I think that it is the first amendment in his name that we have had the chance to debate today. It states that reasonable steps shall be taken, and sets out what those reasonable steps shall include. I have supported that amendment. I note that it is tabled by a sponsor of the Bill, and I therefore hope that the hon. Gentleman will explain why it was not incorporated in the Bill at the outset, and failing that, why it was not incorporated in the Bill in Committee.
    Amendment No. 81 was prompted by a letter that I received from a member of the public in response to the previous occasion on which we discussed this issue in the House. That member of the public recited to me the successful conclusion of a dispute that she had with a neighbour about a high hedge. She said that, eventually,
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    they decided that the costs of reducing the size of the high hedge should be shared between the neighbour on whose land the high hedge was situated and herself, the complainant. She reported to me that that had been done, and that she was pleased. The amendment would therefore add to the pressure on people to resolve these differences privately and in a consensual way.
    Amendment No. 13 is another amendment tabled by the hon. Member for Hendon that I, too, support. It repeats the wording in the previous Bill. Why was this caveat taken out of the previous Bill? It was suggested earlier that this subject had been subjected to a great deal of scrutiny in the House. We will not make progress, however, if the reasonable caveats and requirements contained in an earlier Bill are not contained in a subsequent Bill. Normally, the history of private Members' Bills has been that as they proceed through the iterative process they become more reasonable and more confined to the key mischief that they try to address rather than drifting further away from the point. Amendment No. 13 should therefore commend itself to the House, as it requires that a new subsection should be inserted in clause 4, providing that
    "for the purposes of this section, in deciding whether a hedge is having an adverse effect, the authority shall have regard to … the height of the hedge when viewed from the complainant's property … the distance the hedge is situated from domestic buildings on the complainant's property … the length of time the hedge has been growing … whether the complainant was first in occupation before or after the planting of the hedge … whether the area is urban, suburban or rural … the likely cost of remedial action … the means of the owner or occupier of the neighbouring land … for how long the owner or occupier of the neighbouring land has been owner or occupier."
    I hope that everyone in the House will think that that is eminently reasonable and should not have been excluded from this Bill. I am glad that the hon. Member for Hendon agrees with me on that.
    Mr. Clifton-Brown: Does my hon. Friend accept that the Bill has survived by the closest possible shave? If it had received one less vote in a previous Division, it would have fallen. I appeal again—I am sure that my hon. Friend will join me—for some flexibility from the promoter so that we can make progress. If we have no flexibility, it might be very difficult for the Bill to make progress this morning.
    Mr. Chope: I endorse my hon. Friend's remarks. He said that the Bill could have fallen, but I am glad that it did not. The previous Bill fell because there was not a quorum and some of the Members who were involved that day were unjustly accused of "talking it out". That is not what happened; there was no quorum. This time, there has been a quorum and I hope that the Bill's promoter took the opportunity to reflect in the previous Division on whether he wishes it to reach the statute book. If he does, the people of good will in the Chamber could enable that to happen. Unless there is the flexibility and compromise that we witnessed last week in the proceedings on the Fireworks Bill, I do not think that the Bill will reach the statute book. We are trying to impress on our constituents the need to mediate and to be reasonable. If we do not show such reasonableness ourselves, I am not sure that we are setting a very good example.
    Amendment No. 37 says:

    659
    "The authority must, when acting under subsection (3), take into consideration all matters appearing to them to be relevant, including in particular (so far as appearing to be relevant)—

    (a) the extent to which the high hedge in question is capable of affording (or, if reduced in height, would still be capable, of affording) privacy to an occupier of the neighbouring land,

    (b) the extent to which that hedge contributes (or, if reduced in height, would still contribute) to the amenity of the neighbourhood, and

    (c) any legal obligation (whether imposed by or under any enactment or otherwise) relating to that hedge.."

    Those words appear verbatim in clause 4(4) of the previous Bill. Why were they removed?
    I shall embellish the debate on this amendment by illustrating it with a particular case from Highcliffe in my constituency. The owner of a property with a south-facing garden has been there for about 40 years. To the south boundary of that property was a bungalow, but the site was redeveloped and the bungalow was replaced with a two-storey block of flats. The planning authority made it a requirement that the flats should be situated a specific distance away from the other property's southern boundary, but they were built 20 ft closer to that boundary than they should have been. Instead of rigidly enforcing that planning requirement, the local authority said a screen should be built to protect the owner of the other property from the flats.
    The screen was never planted, so the owner planted one instead. He has kept it trimmed but it is much higher than 2 m. It needs to be that high to afford him privacy from those on the first floor of the flats who overlook his garden. I spoke to the owner of the house last weekend, and I know that his wife—who is in hospital recovering from a slight stroke—would be extremely pleased to know that this proposal had been accepted by the promoter of the Bill. She would be even more pleased could she be assured that the Bill would not be retrospective in respect of cases such as hers. We shall discuss the amendment that deals with that in due course. Each of these safeguards is born out of the real-life experience of ordinary people. That has been reflected in my postbag, in the context both of this Bill and of its predecessor.
    1.15 pm
    Amendment No. 96 states:
    "The authority must when acting under subsection (3) take into consideration all matters appearing to them to be relevant, including in particular any guidance issued by the Secretary of State or the National Assembly for Wales".
    I would have thought that that was a common-sense requirement to place upon a local authority, but the draft of the guidance that I have seen so far leaves much to be desired. I shall not go into detail on that because I am sure that we want to make as much progress as possible.
    Amendments Nos. 82 and 97 address the issue of fees. They provide a fallback position in the event of the amendments in the previous group not being accepted by the promoter. Amendment No. 82 would provide that
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    "A fee determined under subsection W(1)(b) shall cover the reasonably foreseeable costs to be incurred by the authority in considering the complaint."
    Amendment No. 97 would ensure that, if there were any excess income as a result of that, compared with the actual reasonable costs incurred by the authority in considering the complaint, there should be a refund. That seems eminently sensible, but unless we have a system for ensuring that the costs incurred by the local authorities can be met by the people who are causing those costs, we shall effectively be saying that everyone should pay a higher council tax to accommodate this regulatory requirement. For the reasons that I set out earlier, I do not think that that would be right. Having cantered briefly through the amendments, I hope that new clause 6, in particular, will find favour with the promoter, because its provisions would resolve the issue of a local authority being the judge in its own cause.
    Bob Russell: The problem with amendments being grouped together is that they are like a good rustic historic hedge: to remove one or two of the species would be to damage the whole. The promoter of the Bill should seriously consider the new clause relating to a local authority being both offender and judge. I am grateful to my hon. Friend the Member for Montgomeryshire (Lembit Öpik) for drawing to my attention a problem caused by Powys county council, which has planted a row of high trees 140 m long in front of Dyfnant terrace and Rock terrace on the B4518 at Llanidloes. It is probably not pronounced like that, but I have done my best. I am sure that there will be other examples of the trees or high hedges that are causing a problem to a complainant or group of complainants being on land owned by a county council, district council or borough council. The promoter of the Bill must in fairness address the question of how people who have a complaint against their local authority in those circumstances can get the matter resolved to their satisfaction. Surely the local authority cannot be judge and jury in cases involving its own property.
    Mr. Leigh: I shall speak briefly, if I may, to amendments Nos. 13, 37 and 96. I particularly commend amendment No. 13, tabled by the hon. Member for Hendon (Mr. Dismore), which is eminently sensible. I hope that, in a spirit of compromise, the promoter will accept it, because it would answer a few of my concerns about rural areas.
    The amendment would allow local authorities to be far more responsive to local conditions, and they would not have to consider only the height of the hedge. As I have pointed out, 2 m is not a great height and if the proposal went into statute local authorities would be able to take account of
    "the height of the hedge when viewed from the complainant's property"
    in considering larger gardens in rural areas. The issue could be considered in the round, and the local authority could get some idea of whether the hedge was blocking out light and, on the face of it, causing a major nuisance to the complainant.

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    If the amendment were passed, the local authority could consider
    "the distance the hedge is situated from domestic buildings on the complainant's property".
    If someone complained to the local authority, an officer could make a brief visit to a rural garden and say to the complainant, "I'm sorry, but I am not prepared to take up the case on your behalf with all the attendant costs and difficulty as there is a large garden involved. The hedge may be over 2 m, but, objectively, it simply should not cause you any problem. The time for which it has been growing is reasonable." Local authorities could also consider
    "whether the complainant was first in occupation before or after the planting of the hedge."
    That is a good point.
    May I illustrate my argument with a constituency example? My constituency has a large number of fairly old-fashioned modern developments, if I may put it that way, comprising bungalows with fairly large gardens that were put up in the '50s, '60s and '70s. Under the new guidelines, particularly those laid down by the Office of the Deputy Prime Minister, there has been a dramatic increase in the density of new housing in rural areas—in particular, in Wragby in my constituency. That is partly because the cost of the land is rising and partly because modern couples who are buying new houses apparently do not want larger gardens. Another reason is that, under planning policy guidance note 3, I think, the ODPM is giving developers an open gate to increase the density of housing in rural areas dramatically.
    In my constituency, there are many hedges more than 2 m high growing at the end of the fairly large gardens of those rows of bungalows, which once had arable fields beyond them. That is typical of the edges of villages in my constituency, where people were concerned about pesticides and fertilisers in the fields beyond, so they allowed their hedges to grow. New developments are growing up on the edges of the villages. Few bungalows are going up, but large numbers of two-storey houses are being built very densely and right up to the hedge line.
    I constantly hear that complaint, often from elderly people who are without great resources. They reluctantly accept that they do not have any right to a view and that the estate is going up because it is in the planning guidelines so they will have to put up with it. However, they are already pretty upset that the corner of the house on the edge of the estate is right up against the hedge.
    If the amendment is not passed and if the local authority is unable to take some cognisance of
    "whether the complainant was first in occupation before or after the planting of the hedge"
    and unable to have regard to
    "the height of the hedge when viewed from the complainant's property",
    what will happen in respect of the bungalow, which has been up 20 or 30 years, and the person who has lived there, allowing his hedge to grow, who may now be a pensioner whose children were brought up in the constituency? Suddenly a new house is built and the occupier who moves in issues a complaint. His new house is right up against the hedge line, and he
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    complains to the local authority that the hedge should be cut down. If the local authority were to act on that, it would be an unfair imposition on a constituent who has happily enjoyed his bungalow and hedge for 20, 30 or even 40 years.
    I refer to that problem constantly, and I wish we could have a Bill that took it into account. Amendment No. 13 tabled by the hon. Member for Hendon is excellent, no doubt because it was in the previous Bill and was probably drawn up by Government draftsmen. If accepted, it would take account of the likely cost of remedial action and the means of the owner or occupier of the neighbouring land. That would help my pensioner constituent living in a bungalow, and some cognisance could be taken of his means.
    The amendment would require the local authority to take into consideration
    "for how long the owner or occupier of the neighbouring land has been owner or occupier".
    That would also help to solve the problem of someone moving into a modern housing estate and immediately issuing a complaint. Some of the other amendments similarly give local authorities greater scope to consider the complaint in the round, to take a common-sense view and to come up with sensible and objective action.
    In a sensible, moderate world in which people try to come to an agreement, how could anyone argue with the wording of amendment No. 37? It says:
    "The authority must, when acting under subsection (3), take into consideration all matters appearing to them to be relevant"
    such as
    "the extent to which the high hedge in question is capable of affording … privacy"
    and
    "the extent to which that hedge contributes (or, if reduced in height, would still contribute) to the amenity of the neighbourhood".
    These are sensible amendments. I shall stop there, because I am sure that the promoter will say that he is prepared to accept them and make progress on the Bill.
    Mr. Andrew Dismore: The reasons why I proposed amendments Nos. 12 and 13 are similar to those given by the hon. Members for Christchurch (Mr. Chope) and for Gainsborough (Mr. Leigh). I support the Bill, as my hon. Friend the Member for Ealing, North (Mr. Pound) knows, which is why I agreed to sponsor it. However, whenever we sponsor a Bill, there are always issues to raise, either to get assurances or to move the debate on a little. My amendments may be technically flawed, but that does not mean that they do not address issues that should be considered.
    Amendment No. 12 tries to deal with the problem of ensuring that people talk to each other to try to solve their differences before they end up having to use the complaints procedure. It is important that, whenever possible, people find an amicable solution to these serious disputes. If people meet face to face, perhaps

    663
    with the help of a mediator, many of these problems can be resolved without the lengthy process outlined in the Bill.
    Bob Russell: Given that the hon. Gentleman is a sponsor and supporter of the Bill, has he discussed these amendments with the promoter? Is the promoter happy with what the hon. Gentleman is proposing?
    Ms. Dismore: The promoter will speak for himself shortly. I shall certainly not put words into his mouth. I am sure that he agrees with the principles behind my amendments, but whether he thinks they should be in the Bill, we will no doubt find out when he responds to the debate.
    On amendment No. 12, with the best will in the world, these disputes can get somewhat heated, and occasionally downright dangerous—we have seen some terrible stories in the newspapers recently. Although I am a great believer in the art of mediation to try to get people to resolve their difference; in a friendly way, sometimes the recipient of the complaint refuses to have anything to do with the process and puts the proverbial two fingers up to the complainant saying, "Do your worst." Alternatively, things can get out of hand and people suffer violence. There has been a case like that in the past week.
    Mr. Leigh: I particularly warmly welcome amendment No. 12, which I did not have a chance to mention. I am not sure whether the publicity reached southern England, so hon. Members may not know that, last week, someone in Lincoln was shot dead because of a dispute over a hedge in a urban area, so any provision, such as amendment No. 12, to resolve such disputes amicably would be very welcome.
    1.30 pm
    Mr. Dismore: I am grateful to the hon. Gentleman for his intervention, because that is precisely the case to which I was tangentially referring.
    Although efforts definitely need to be made to bring people together through mediation, frankly, there are times when mediation will not work, either because the recipient of the complaint flatly refuses to have anything to do with the mediation, or because tempers have got so heated that things can be made worse, rather than better, by such meetings. However, it is far preferable to make progress through sensible discussions.
    The hon. Member for Gainsborough also referred to amendment No. 13, which I tabled, and he is right to say that we are going over old ground I remember debating such things on previous occasions when we have considered such legislation in previous years. The purpose of amendment No. 13 is to set out the sort of things that any reasonable local authority would bear in mind when considering those disputes.
    In earlier debates, we have heard about the risk of local authorities adopting either a rather hard-headed approach or a rather lax approach. Assuming that we agree that some parameters should be laid down, amendment No. 13 sets out the sort of issues that should
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    be considered. To build on some of the comments made in earlier discussions, it is important that we reflect on whether the hedge under consideration is situated in an urban, suburban or rural area. I know from my own constituency, which is suburban, that one can occasionally find circumstances in which a hedge that has significant and impinging effects might not cause any problem at all if it were in a rural area, and some interesting points were made about that earlier in the debate.
    It is also very important to bear in mind which came first—the complainant or the hedge. If someone moves into a property where the hedge is already growing, that is a very important fact because they either bought or rented the property in the knowledge that the hedge was already there. Obviously, that could affect property values.
    The amendment very much speaks for itself. It has been ably introduced by the hon. Member for Christchurch, rather than by myself, and I cannot add a great deal to the debate other than to say that there are some important factors that need to be taken into account.
    Mr. Pound: I am sure I cannot be the only hon. Member who sometimes wonders what sort of impression we give to people who watch our debates. We seem to be discussing ever more abstruse issues when people are dying. The problem that we are trying to address is not in dispute, yet we seem to be conducting some sort of stately quadrille in a world of "what ifs?" and "what mays?". Some people outside the House would think that we are in dereliction of our duties to those people in whose name we sit in this place.
    I am, by nature, someone who is flexible and emollient, and I should like nothing more than to be able to give a warm welcome to a great many of the amendments under consideration, but on this fifth introduction of a high hedges Bill, virtually all room for flexibility has long gone. I am not suggesting that we are adhering to a rigid code that does not allow flexibility—merely that the debates have been debated, the discussions have been discussed and the amendments have been incorporated. We now have a stripped down, pared down Bill that works with local authorities, Hedgeline and the police. It works.
    What is more important than any hon. Member's personal opinions and views, as expressed today, is what we do for the people of this country in whose name we sit in the House. It is vital that we address this need. Until a few seconds ago, I have been involved in negotiations in a desperate attempt to meet some of the concerns that have been well expressed by the hon. Member for Christchurch (Mr. Chope) and by my hon. Friend the Member for Hendon (Mr. Dismore).
    I seem to recall that new clause 6 was tabled as an amendment to the Bill that was introduced by the hon. Member for Solihull (Mr. Taylor). It would create a strong and slightly suffocating additional bureaucracy. The draft guidance that the Office of the Deputy Prime Minister has already placed in the Library advises local authorities on the erection of Chinese walls, or invisible walls within the local authority. Local authorities currently investigate aspects within their remit. They do so quite efficiently. Were they not to do so, the sanction

    665
    of the reference to the local government ombudsman or the National Assembly for Wales would be more than sanction enough.
    With amendments Nos. 12 and 81, I have much sympathy. They are in line with the approach mentioned in the leaflet entitled "Over the Garden Hedge". I am anxious not to limit the area in which the local authority can operate. My hon. Friend the Member for Hendon recognises that discussion and mediation are the ideal solution. I think that, in 85 per cent. of cases that local authorities are concerned with, that works but we must allow local authorities flexibility to take account of the particular circumstances of individual cases. Of course, it is best if there is a meeting between the parties before a complaint is made to the local authority but we cannot tie the local authority's hands on what they can or cannot consider.
    I was tempted by amendment No. 37. The hon. Member for Christchurch makes a powerful case. His amendments to the Bill that was introduced by the hon. Member for Solihull moved in a slightly different direction. On that occasion, he wanted to expand the list of factors to be considered because he felt that it was restrictive. However, in the interests of good governance and good service to the people whom we represent and of emollience, and recognising the strength of feeling on the Opposition Benches, my hon. Friend the Minister has assured me that there is sympathy on the Government Front Bench for the acceptance of amendment No. 37, as hon. Members will shortly hear.
    In the interests of expedience, I finish by saying that, with the exception of amendment No. 37, with which I have much sympathy and which I am happy to support, I urge my hon. Friends and Opposition Members not to press the amendments.
    Yvette Cooper: May I briefly respond to the points that have been raised? On new clause 6, clearly I agree that decisions must be fair and impartial. The guidance explains that local authorities will need to set up internal walls. That is the kind of thing that local authorities already do. Suppose the council wants to knock down a tree that is subject to a tree preservation order, or suppose social services has a stake in a planning application, it is a standard approach to set up internal walls. There are checks on local authorities to ensure that they are fair and follow due process, whether it be through the appeals system or the process to judicial review.
    On amendments Nos. 82 and 97 and the way in which fees are set, it is appropriate that we have proper consultation on the level of the maximum fee, rather than requiring that the fee should be set at the full cost for the local authority of considering the complaint. We would take account of all those considerations in the consultation and in setting the maximum fee. We have already said that we would make good the shortfall through the revenue support grant. Otherwise, it should be up to the local authority to decide whether to set a fee within the framework of that maximum, as set out in regulations.
    666
    On amendments Nos. 12 and 81, there is a problem with setting that kind of thing out in the Bill. They set out too much detail about the meetings that need to take place. They do not take account, for example, of someone who is disabled or other problems that may make meetings difficult. That matter is properly dealt with through guidance.
    I have a lot of sympathy with the aim of amendments Nos. 13, 37 and 96, which attempt to set out all sorts of issues that should be considered by local authorities. As we pointed out in the draft guidance, local authorities should consider such issues in taking decisions on an individual case. My concern about amendment No. 13 is that, in listing the factors that must be considered, it would make it very difficult for local authorities to consider anything not on the list. On amendment No. 96, because the guidance is published, if a judicial review were undertaken, for example, it would in any case be appropriate for the courts to take into account any guidance. So local authorities would take account of the guidance in making decisions. However, I recognise that the House is concerned—
    Mr. Leigh: I am somewhat amused by the Minister's comments about amendment No. 13. I see no reason why any reasonable person cannot accept that amendment, which was tabled by one of her hon. Friends. She intimated that there are various extra factors that a local authority might want to consider, but what are they? Perhaps she could advise us.
    Yvette Cooper: The truth is that such problems often arise in respect of legislation. When we want local authorities to take account of the factors that might be relevant in a particular circumstance, it is sometimes difficult to anticipate, as the legislation passes through this House, what all of those factors might be. If we could think of them in advance we could add them to the legislation, which would make matters easier.
    Mr. Leigh: Unfortunately, the Minister is unable to help us in respect of the other factors that local authorities should consider. If she reads the amendment, she will discover that it says,
    "the authority shall have regard to",
    not that it shall "only" have regard to; it is not an exclusive amendment. My hon. Friend the Member for Christchurch (Mr. Chope) and I are both barristers; we do attempt to understand legislation. If the legislation were amended in this way, it would not force local authorities to consider only those points mentioned in the amendment. Given the way in which it is drafted, why is she opposing it?
    Yvette Cooper: The hon. Gentleman will be aware that we often have debates such as this on a wide variety of legislation, particularly in Committee. Attempts to ensure that particular factors are taken into account can often become constraints on other factors being taken into account as well. Let us consider the difference in the wording of amendment Nos. 13 and 37. The latter states that an authority must take into account
    "all matters appearing … to be relevant, including in particular"—

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    and then proceeds to list some specific factors. The use of the word "including", by contrast with the provision of a comprehensive list, makes it is easier to avoid future problems, whereby local authorities are unable to take into account matters that they consider relevant because of the legislation's drafting. I agree with the hon. Gentleman that this is a drafting issue, and the drafting of amendment No. 37 has advantages over that of amendment No. 13. For that reason, the Government are happy to support acceptance of amendment No. 37, which would provide greater safeguards in respect of the privacy of the occupier of the neighbouring land, and the extent to which a hedge contributes to the amenity of the neighbourhood, by including such safeguards in the Bill as well as in the guidance.
    I urge the Members concerned to withdraw the other amendments, but the Government are certainly happy to support acceptance of amendment No. 37.
    Mr. Chope: I suppose that we should be grateful for small mercies, and indeed I am, but let us examine the facts. A version of amendment No. 37 was actually included in the previous Bill. Why was it removed, and why have we had this debate about it? The Bill's promoter and the Minister have accepted the underlying principle at the last minute, as a result of an amendment, tabled in my name, that is identical to the original version. I am delighted that the amendment will be accepted, but I am disappointed with the argument that the Minister deployed. Having listened to her comments and to those of my hon. Friend the Member for Gainsborough (Mr. Leigh), I have no doubt that my hon. Friend is right. If we cannot make the Minister see our point of view, that is all the more disappointing.
    New clause 6 is about justice being seen to be done. It may well be that the authority in the London borough of Ealing is so large and employs so many people that one can have a meaningful description of different departments—Chinese walls, and so on—dealing with a complicated issue. However, the borough of Christchurch would be lucky if it could afford one tree officer and there are probably only a handful of people in the planning department. A system in which the council is on one side of the argument and a complainant on the other—the complainant would likely view the council as judge in its own court, but the council has only 24 elected members and we also have to take into account their various roles as chairmen and others on regulatory and scrutiny committees—would not work.
    1.45 pm
    What is so unreasonable about new clause 6? Why cannot it be accepted? If the Government or the sponsor will not accept it, I hope that the House will in the Division that we shall shortly have. The hon. Member for Ealing, North (Mr. Pound) says that the Bill has been much discussed before and that iterative process has removed the room for flexibility. Unfortunately, the iterative process has not improved the Bill as it should have done and as I still hope that it can be. I shall say no more now, because we want to make as much progress as possible.
    Question put, That the clause be read a Second time:—
    The House divided: Ayes 1, Noes 35.

    Division No.243

    [1.46 pm

    AYES

    Wilkinson, John

    Tellers for the Ayes:

    Mr. Christopher Chope and

    Mr. Edward Leigh

    NOES

    Banks, Tony

    Laing, Mrs Eleanor

    Barnes, Harry

    Lazarowicz, Mark

    Bottomley, Peter (Worthing W)

    McNulty, Tony

    Bottomley, rh Virginia (SW Surrey)

    McWalter, Tony

    Mandelson, rh Peter

    Brake, Tom (Carshalton)

    Maples, John

    Brooke, Mrs Annette L

    Osborne, Sandra (Ayr)

    Byers, rh Stephen

    Quinn, Lawrie

    Calton, Mrs Patsy

    Russell, Bob (Colchester)

    Clarke, Tony (Northampton S)

    Stanley, rh Sir John

    Cohen, Harry

    Sutcliffe, Gerry

    Cooper, Yvette

    Taylor, John (Solihull)

    Davey, Edward (Kingston)

    Vis, Dr. Rudi

    Fitzpatrick, Jim

    Ward, Claire

    Gardiner, Barry

    Wicks, Malcolm

    Harman, rh Ms Harriet

    Wright, Anthony D. (Gt Yarmouth)

    Harris, Dr. Evan (Oxford W & Abingdon)

    Hendry, Charles

    Tellers for the Noes:

    Hill, Keith (Streatham)

    Mr. Andrew Dismore and

    Holmes, Paul

    Mr. Stephen Pound

    Question accordingly negatived.

  Clause 1

    COMPLAINTS TO WHICH THIS ACT APPLIES
    Mr. Chope: I beg to move amendment No. 49, in clause 1, page 1, line 7, after 'by', insert
    `for an unreasonable obstruction of light caused by'.
    Madam Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 50 in page 1, line 13, after 'by', insert
    'an unreasonable obstruction of light caused by'.
    No. 87 in page 1, line 17, after the first 'of, insert
    `the obstruction of light caused by'.
    No. 43 in page 1, line 20, at end insert—
    "() This Act does not apply to hedges more than 10 metres from the complainants house.'.
    No. 46 in clause 2, page 2, line 14, leave out 'or access'.
    No. 47 in clause 2, page 2, line 19, leave out 'or access'.
    No. 48 in clause 3, page 2, line 31, leave out subsection 31.
    No. 90 in clause 4, page 2, line 38, at end insert—
    "(1 A) The authority shall dismiss a complaint if the height of the hedge in metres is less than
    D/2+2,
    where D is the distance in metres between the hedge and the nearest outside window wall of the complainant's property'.
    No. 52 in clause 4, page 3, line 3, leave out subsection (3) and insert—
    `(3) If the authority do not so decide, they must decide—

    (a) whether the complainant's reasonable enjoyment of the domestic property specified in the complaint is being affected by an unreasonable obstruction of light caused by a high hedge so specified; and

    (b) if so, what action (if any) should be required to be taken in relation to that hedge, in pursuance of a remedial notice under section 5, with a view to remedying any such obstruction or preventing its recurrence.'.

    No. 84 in clause 4, page 3, line 4, after `whether', insert
    'the obstruction of light caused by'.
    No. 85 in clause 5, page 4, line 4, after the second `that', insert
    `the obstruction of light caused by'.
    No. 86 in clause 5, page 4, line 36, after `of, insert
    `the obstruction of light caused by'.
    I should draw the attention of the House to a misprint in amendment No. 48, which should end with a reference to subsection (3).
    Mr. Chope: In moving the amendment and speaking to the consequential—
    Mr. Forth: Before my hon. Friend proceeds, may I ask whether he is impressed with the consistency of support for the Bill? We have seen two Divisions in which 35 out of 658 MPs have exhibited their support for the Bill. Does that degree of support give my hon. Friend any encouragement that the Bill should proceed, or does he think that perhaps it indicates that a degree of caution on the part of the House would be appropriate?
    Madam Deputy Speaker: Order. The hon. Gentleman is in the process of moving the amendment.
    Mr. Chope: I shall not respond to my right hon. Friend, who makes his point clearly.
    Amendments Nos. 49, 50, 87, 52, 84 and 86 deal with objectivity and try to restore to the Bill the degree of objectivity that was in the previous Bill on this subject. This goes back to my point on the previous group; if we are to an iterative legislative process to try to produce the best Bill, it is disappointing if the Bill in question leaves out many of the safeguards in a previous Bill.
    2 pm
    Objectivity is fundamental to the tests in the Bill and good regulation. On Second Reading, I expressed concern that the Bill no longer had an objective test of whether there was an unacceptable loss of light as a result of a high hedge and that the test had become more subjective on whether the hedge itself had an impact on a particular person. I said:
    "That is a recipe for disastrous law-making."
    670
    So I believe it to be. I expressed the hope that, in light of statements made by the hon. Member for Ealing, North (Mr. Pound), objective tests would be introduced in Committee. I reminded him that whether his Bill would obtain a Second Reading was in the balance because of shortage of time, and I went on to say that
    "if it does get a Second Reading, I hope that the hon. Gentleman will accept that that has happened only because of the indulgence of hon. Members who have severe and serious reservations about it and wish the Bill to be substantially altered in Committee."
    What did the hon. Gentleman himself say about objectivity on Second Reading? He said:
    "Objectivity is a key component of the Bill, which is written specifically to ensure that a series of objective criteria can be used as a template involving the Building Research Establishment and various other groups."
    Referring to my hon. Friend the Member for Mole Valley (Sir Paul Beresford), who is not in his place I fear, but who support; the amendments, the hon. Gentleman added:
    "I hope that he will come to see that the objective criteria in the Bill will address precisely the issues that he is raising." —[Official Report, 28 March 2003; Vol. 402, c. 625–32.]
    The amendments are intended to insert in the Bill the objectivity that is currently lacking and that was not incorporated in Committee, much to my disappointment. I can best illustrate the point by referring to paragraphs 121 to 124 of the draft guidance, which relate to the blocking of views. The guidance says:
    "A tall hedge can block out an eyesore or someone's cherished view … The value that is placed on an individual outlook is very personal. In addition, nc-one has a right to a particular view … Nevertheless, factors that might be taken into account include the extent of the view and whether it is near or distant. For example, the effect might be more severe if the property would, without the hedge, look out onto open countryside than if the hedge blocks a narrow gap between other properties that leads down to the sea. The circumstances of the complainant could also be relevant."
    That introduces a subjective test, based on the circumstances of the complainant. It continues:
    "The loss of view because of the hedge would probably be felt more by a person with limited mobility who is tied to the house than by someone who is out at work for most of the day."
    The guidance seems to be saying that if a property is occupied by somebody who is out at work most of the day and there is a hedge next door, that hedge may remain, but if the house is then sold to someone who has limited mobility, the council could order the hedge to be cut down, not because the hedge or the owner have changed, but because the neighbour has changed from being someone who goes to work to someone who is confined to home. Surely it must alarm serious legislators to introduce such a ludicrous, subjective test, removing all predictability and objectivity from the law.
    Paragraph 124 says, and if hon. Members have not read it they should:
    "In addition, consideration might be given to whether the particular view could be obstructed by future development, including development within the curtillage of a dwellinghouse that is permitted under the Town and Country Planning (General Permitted Development) Order 1995. This could allow someone to build an extension to their home (up to a certain size) or to erect a ridge-roofed summerhouse in their garden up to 4 metres high, without needing to get express permission from the council."
    That introduces the extraordinary scenario in which a hedge 3 ft high could be ordered to be chopped down and the person who owned the land on which it had

    671
    stood could erect a ridge-roofed summer-house of 4 m. In other words, it would be 1 m higher than the hedge had been, thereby putting the person who had complained more into the shade and out of the sun than they were before. If the hon. Member for Ealing, North really wants to legislate on such a basis, I am amazed. When he really addresses the implications of including in the Bill a test as subjective as that of whether people's view is blocked, I hope that he will recognise that it is long-established in our common law that no one has a right to a view and that the measure is going much too far.
    Amendment No. 43 would restrict the Bill so that it did not apply to hedges more than 10 m from the complainant's house. It was tabled by my hon. Friend the Member for Gainsborough (Mr. Leigh) so I shall not comment further on it. Amendments Nos. 46 and 47 would limit the Bill, rather as the Bill that we discussed earlier was limited.
    Amendment No. 90 is similar to one that we debated earlier. It is reasonable for us to challenge the promoter of the Bill on how the objective test that he proposes would be assessed. The material for such an assessment has, fortunately, been prepared for us by the Building Research Establishment, in a document drawn up in anticipation of a previous Bill. The amendment proposes that one way of assessing objectivity would be to require an authority to
    "dismiss a complaint if the height of the hedge in metres is less than D/2+2, where D is the distance in metres between the hedge and the nearest outside window wall of the complainant's property".
    Despite the need to make as rapid progress as possible, I must express my disappointment that, following the good arguments deployed on the issue in April 2001, the promoter of the Bill has not accepted that objective test. I hope that he will be minded to consider the error of his ways and incorporate such a test in the measure.
    The Government asked the Building Research Establishment and the Tree Advice Trust to look into the impact of evergreen hedges on loss of light to buildings and gardens, and to devise a method for calculating the height that a hedge should be so as to avoid the obstruction of light. They undertook that work, which was paid for by the Government, to try to produce an objective test for use in adjudicating on hedge disputes between neighbours. Guidelines were produced, including the procedure for calculating hedge height, and I am greatly disappointed that, after all that hard work, they are not being included in the measure.
    I hope that the promoter of the Bill will accept the amendments in the spirit in which they were tabled, which was to try to introduce objective tests and fairness to the Bill.
    Mr. Leigh: I hope that the promoter of the Bill will give some credence to my arguments for amendment No. 43, that the Act
    "does not apply to hedges more than 10 metres from the complainants house".
    I should certainly be prepared to accept a compromise; the distance could be 10 m, 15 m or a bit more. I simply wanted to make the point that we need some element of
    672
    compromise in the case of large, more rural gardens. Local authorities should not be put to the expense of having to deal with a large number of complaints where the hedge is a long distance from the complainant's property and could not obstruct his light. However, I am quite prepared to argue about whether the distance should be 10, 15 or even 20 m. I am simply trying to exclude the larger, more rural and suburban gardens from the Bill's provisions.
    I very much hope that the promoter might accept amendment No. 49. At the moment the Bill would apply a purely subjective test. The Bill applies to a complaint from someone who
    "alleges that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge",
    so a complainant merely needs to tell the local authority, "My enjoyment of my property is being affected by the height of that hedge". No other explanation is required. There is no need to state distances or make a reference to light. Surely it is not impossible to accept this important amendment, which would simply put in the Bill the very clear requirement that the complainant must allege that his reasonable enjoyment of the property is being adversely affected by
    "an unreasonable obstruction of light caused by"
    the height of a high hedge situated on land owned or occupied by another person.
    Thus amendment No. 49 goes to the heart of what we are trying to achieve in this series of amendments, which we had very much hoped to get through today; it would have made the passage of the Bill possible. We could have had a very narrow Bill to deal with the enormous leylandii trees. Instead we have a large Bill—large and wide-ranging in terms of private Member's legislation—which would put a severe burden on local authorities, based on an entirely subjective test. I very much hope, even at this late stage, that the promoter may at least be prepared to accept amendment No. 49.
    Mr. Pound: I assure the hon. Member for Christchurch (Mr. Chope) that his 3 ft tall nightmare will not come true. Nothing anywhere in the Bill talks about anything below 2 m being cut down.
    I wish to address the substantive point. I hope that you will allow me, Madam Deputy Speaker, to speak principally to amendment No. 49, as the remaining amendments in the group are consequential on that. As I commented in Committee, nothing—very few things in life, anyway—would have made me happier than to arrive at a mechanistic, subjective test that we could use: a formula, an equation, that would work. 1 shall now draw attention to one way in which the Bill has changed following consultation. Sadly for Opposition Members, the change has taken place in the opposite direction from that in which they are rowing.
    The final report of the Building Research Establishment clearly demonstrated that no one calculation method could cover every situation adequately. In addition, Hedgeline, to which credit should be paid, which represents at least 4,000 people adversely affected by this problem, is concerned that a large number of its members live next door to hedges that are already lower than the heights that the BRE guideline would have specified. In drafting the Bill, I

    673
    have accepted that the height and light guidelines cannot be regarded as providing a remedy by proxy for all problems associated with high hedges, and that some extension of the grounds of complaint beyond light obstruction is justified.
    The hon. Member for Gainsborough (Mr. Leigh) referred to someone making a complaint about their loss of amenity or light. The clause that specifically excludes frivolous and vexatious complaints was crafted precisely with that thought in mind. The solution that has been adopted is to allow people to complain to their local authority under the Bill if their reasonable enjoyment of their property has been adversely affected by a high hedge. That seems to me to offer the flexibility that hon. Gentlemen have been asking for, within the context of defining the problem. It includes obstruction of daylight and sunlight, jointly and as separate issues, as well as loss of view. In addition, someone in a small garden might feel that they were being unduly closed in.
    I would have loved to accept more amendments than I have been able to, but the amendment is in fact an amendment of an amendment, because the original BRE proposals, as discussed in Committee, have been changed and brought back to the Floor of the House in a far better form: a form that everyone that we have consulted supports. On that basis, I most respectfully urge those who tabled the amendments to consider those outside this place who at the moment have no solution to their problems, and consider whether it might be appropriate to withdraw, or not press, the amendments.
    Yvette Cooper: I support my hon. Friend in urging the hon. Member for Christchurch (Mr. Chope) to withdraw the amendment. The group of amendments would unduly restrict the Bill. It is true that a hedge could be 10 m away, but it could also be 30 or 40 m high. Equally, it would be slightly surreal to include the formula D/2+2 in the Bill. It is clearly right that there should be fair standards for judging individual cases, but the guidance will do that. It would be inappropriate to restrict the Bill in the way that the amendments would do.
    2.15 pm
    Mr. Chope: That is a disappointing response. Effectively, the guidance introduces a subjective test instead of the objectivity that the Bill's promoter promised us on Second reading. There is revised tree advice and BRE guidance. Why not rely on that? It is available to the promoter, but there is no suggestion that it should be incorporated into the Bill. Indeed, the references to BRE guidance are relegated to a small part of the overall guidance, which puts greater emphasis on the particular circumstances of any individual resident.
    There may have been a slip of the tongue in my example of a hedge having to be cut down when I referred to 3 ft rather than 3 m. I did not want to amend the Bill to put the height into feet because I thought that some people might regard that as trivial and unnecessary and I wanted to table serious amendments for debate. It is no surprise that I lapsed back into thinking in terms of feet, however, because that is how I usually think of such measurements. The fact that I mentioned 3 ft rather than 3 m does not alter my point that a hedge might have to be reduced to 2 m but could be replaced by a building with a roof of 4 m high under planning regulations.
    674
    It is a great disappointment to me that the objective tests contained in the Bill promoted by my hon. Friend the Member for Solihull (Mr. Taylor) have been removed and replaced with the subjective tests, which offend against all good legislation. However, I am keen—even if no one else—to make progress so that we can discuss the next group of amendments. If we are wedded to the iterative process, there will come a time—indeed, I think I promised this to some constituents—when I introduce a private Member's Bill, and it may well be on this subject, although I would confine it to the very limited circumstances and mischief that need to be addressed. This Bill's provisions are disproportionate to the problem. To enable me to draft the Bill that I may promote, it will be useful to discuss the next group of amendments. In light of that, I beg to ask leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Mr. Chope: I beg to move amendment No. 91, line 7, after 'on', insert 'adjoining'.
    Madam Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 77, in page 1, leave out lines 9 to 20.
    No. 2, in page 1, leave out lines 9 to 22.
    No. 92, in page 1, line 14, after 'on', insert 'adjoining'.
    No. 55, in page 1, line 20, at end insert—
    `No complaint shall be made under this Act in relation to a high hedge by the owner or occupier of a domestic property if that property was constructed after the hedge was established.'.
    No. 71, in page 1, line 20, at end insert—
    `This Act shall not apply to any land situated within a conservation area'.
    No. 60, in page 1, line 20, at end insert—
    `() Nothing in this Act shall apply to a hedge growing in a National Park'.
    No. 62, in page 1, line 20, at end insert—
    '() Nothing in this Act shall apply to a hedge growing in a cemetery or burial ground'.
    No. 68, in page 1, lime 20, at end insert—
    `() This Act shall not apply to any land situated within a rural area'.
    No. 70, in page 1, line 20, at end insert—
    `() This Act shall not apply to any tree which is protected by a tree preservation order'.
    No. 59, in page 1, line 20, at end insert—
    `() Nothing in this Act shall apply to a hedge growing in public open space'.
    No. 61, in page 1, line 20, at end insert—
    `() Nothing in this Act shall apply to a hedge growing within the curtilage of a school or other educational establishment'.
    No. 58, in page 1, line 20, at end insert—
    `() Nothing in this Act shall apply to a hedge situated within 3 metres of any public highway.'.
    No. 51, in page 1, line 22, leave out subsection (4).
    No. 41, in page 1, line 22, at end insert—
    `() This Act shall only apply to hedges which were planted or otherwise came into existence after the commencement of the Act.'.
    No. 3, in page 2, line 6, at end insert—
    `or prospective owner or occupier.'.
    No. 69, in page 2, line 12, at end insert—
    "'rural area" means any ward or postcode sector which is outside a settlement of 10,000 or more people'.
    No. 8, in clause 3, page 2, line 27, leave out 'wholly or mainly'.
    Mr. Chope: By inserting the word "adjoining", the Bill would apply only to complainants with hedges in properties adjoining them. It would reduce its scope and extent and remove a big concern and alarm that was flagged up in the brief Committee stage. There are many amendments, and I shall endeavour to get through them as quickly as possible.
    Amendment No. 77 would restrict the right to complain to owners or occupiers of properties that are in occupation and are not empty. Again, that amendment is supported by the hon. Member for Hendon (Mr. Dismore), and his amendment No. 92 is in similar terms.
    Amendment No. 55 is important and would require that no complaint should be entertained if the complainant's property was constructed after the hedge was established. Similarly, under amendment No. 41, the Act
    "shall only apply to hedges which were planted or otherwise came into existence after the commencement of the Act."
    Introducing retrospectivity is most unhealthy. Were this a planning Bill, for example, it would not operate retrospectively: that which had already been built could be left where it was, which is exactly what happened under the Town and Country Planning Act 1947. That is a standard principle of planning law.
    When I discussed the Bill with Baroness Gardner of Parkes, she reminded me of an example in south Buckinghamshire where a specific planning condition had been placed on the development of a property on the basis that a new hedge could not be planted that would reach above a specified height—I think that her example was 3 m. That applied, however, to hedges in the future rather than hedges that are already in existence. That is the nature of good legislation and good regulation, and the power to take such action already existed under planning law. Powers also exist through the use of covenants, which have been used effectively as a means of ensuring that high hedges are not grown in the future on estates being developed, whether in urban areas or in the countryside.
    Amendment No. 71 would exclude application of the Bill to any land in a conservation area. That is important because at the moment tree preservation orders automatically apply to trees in conservation areas. Under the Bill, that legitimate control over those trees would be removed, which should cause a great deal of concern. People who buy properties in conservation areas, which are designated by local authorities in their discretion, might suddenly find that, under the Bill, trees that in their view add to the amenity of the neighbourhood and the value of their homes could be ordered to be chopped down without their even being notified about it. Interestingly, in relation to any
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    complaint being raised, the guidance to local authorities is that the matter should be kept quiet and not publicised. By contrast, were there an application to reduce in size a tree in a conservation area or prune it in any way, neighbours who were directly affected would have to be notified.
    Amendment No. 60 would exclude the application of the Bill to national parks. Again, I would have thought that a sensible proposal. I do not yet have to declare an interest in relation to that, because the New Forest national park has not yet been designated, although it is apparently the Government's intention to do so.
    Amendment No. 62 would restrict the ambit of the Bill so that it would not apply to cemeteries or burial grounds. That is a significant issue, as we know that many ancient cemeteries and burial grounds have well-established yew trees, some of which are up to 40 ft high. Those may result in neighbouring gardens being put in the shade, and not being able to get the evening sun or even the midday sun. Are we really saying, however, that those yews, which are part of the English heritage, could be ordered to be cut down to 2 m on the complaint of somebody living nearby?
    Amendment No. 59 would likewise restrict the ambit of the Bill so that it would not cover trees or hedges growing in public open space.
    Amendments Nos. 68 and 69 certainly deserve consideration by the House. They would restrict the Bill's ambit so that it did not cover rural areas. I asked the Library to supply me with a legislative definition of a rural area, but there is no such definition. I understand that the Government are working on one and have promised to produce it by the autumn. In the meantime, the best definition is that in amendment No. 69. If the Bill's application were restricted so that it did not apply to rural areas, our concerns would be reduced considerably.
    Mr. Forth rose—
    Mr. Chope: I know that the amendment would not deal with my right hon. Friend's constituency, as probably none of it is made up of postcodes inside a rural area.
    Mr. Forth: Many of the other amendments in the group probably would have a bearing on my constituency, but I am a bit anxious when I hear my hon. Friend say candidly to the House that this amendment may not contain a satisfactory definition of what is at its kernel. He is almost asking us to take on trust something as important as the definition of a rural area. Is he satisfied that the definition that we have or might have would not give rise to unacceptable anomalies on the borders between rural and adjoining areas? Can he give me that assurance?
    Mr. Chope: I cannot give my right hon. Friend that assurance, because despite having considered the issues carefully, I accept that I have not dealt with the borders between rural and urban areas. Indeed, he has identified a further lacuna in the Bill. It would not cover cases in which the complainant is in one local authority area and the trees and hedges about which he is complaining are in another.
    Mr. Clifton-Brown: My hon. Friend is now dealing with a whole new sector of the Bill, so I ask him to think

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    carefully about these amendments. He knows, as I do, that there are many problems with high hedges in rural areas. In an effort to get the Bill through this morning, I hope that he will consider not pressing these amendments.
    Mr. Chope: I have not yet even come to all the amendments. I do not think the prospects of the Bill making progress this morning are terribly great, but it is possible that it will be reconsidered on 4 July and, if its proceedings are not completed then, on 11 July. I hope that my hon. Friend will be present in the House on the occasions when we can consider this and other groups of amendments further. People might think that the Bill is lost because we have not reached all the groups of amendments today, but that is largely the result of the fact that it appeared on the Order Paper immediately after another Bill, the consideration of which we knew would take some time.
    Mr. Clifton-Brown: My hon. Friend has raised a number of very important points this morning. I urge the Bill's promoter and the authorities in the House seriously to consider listing the Bill so it can be debated on another Friday. I hope that it will become an Act.
    Mr. Chope: My hon. Friend's sentiments are shared by my hon. Friend the Member for Gainsborough (Mr. Leigh) and myself. That is why we were disappointed that the Bill was not set down for a day on which it could have appeared first on the Order Paper. It would have appeared first if it had been put down for debate on 4 July.
    Amendment No. 70 deals with tree preservation orders. I do not think that the Bill should override them. If it is thought that a tree that is subject to a tree preservation order should be chopped down, the first thing to do should be to go to the local authority and get permission to cut it down or prune it under the tree preservation order legislation.
    Amendment No. 61 proposes that the provisions should not apply to any hedge growing in the curtilage of a school. This is relevant to the issue of peeping toms, and to schools that grow hedges in order to stop people looking at schoolchildren in a state of semi-undress.
    Time is running out, but I am sure that we shall have time to come back to this issue on 4 July.
    It being half-past Two o'clock, the debate stood adjourned.
    Debate to be resumed on Friday 4 July.

Remaining Private Members' Bills

  PENSIONS (WINDING-UP) BILL
  Order for Second Reading read.
  Hon. Members: Object.
  Madam Deputy Speaker (Sylvia Heal): Objection taken. Second Reading what day?
  Mr. Frank Field: As the Government have objected and blocked the Bill going into Committee, I shall bring it back on 11 July, when I hope that they will have had second thoughts, following pressure from the electorate.
  To be read a Second time on Friday 11 July.

  HOUSING (OVERCROWDING) BILL
  Order for Second Reading read.
  Hon. Members: Object.
  To be read a Second time on Friday 11 July.

  HEALTH AND SAFETY AT WORK (OFFENCES) BILL
  Order read for resuming adjourned debate on Question, That the Bill be now read a Second time.
  Hon. Members: Object.
  Debate to be resumed on Friday 11 July.

  FOOD COLOURING AND ADDITIVES BILL
  Order for Second Reading read.
  Hon. Members: Object.
  To be read a Second time on Friday 11 July.

  TELECOMMUNICATIONS MASTS (RAILWAYS) BILL
  Order for Second Reading read.
  Hon. Members: Object.
  To be read a Second time on Friday 4 July.

  EQUALITY BILL [LORDS]
  Order for Second Reading read.
  Hon. Members: Object.
  To be read a Second time on Friday 4 July.

  LOCAL COMMUNITIES SUSTAINABILITY BILL
  Order for Second Reading read.
  Hon. Members: Object.
  To be read a Second time on Friday 4 July.

  CROWN EMPLOYMENT (NATIONALITY) BILL
  Order for Second Reading read.
  Hon. Members: Object.
  To be read a Second time on Friday 4 July.

  GOVERNMENT POWERS (LIMITATIONS) BILL
  Order for Second Reading read.
  Hon. Members: Object.
  To be read a Second time on Friday 4 July.
  2.33 pm
  Mr. Andrew Dismore: On a point of order, Madam Deputy Speaker. Is there any way in which Hansard could record the fact that the objections to my Crown Employment (Nationality) Bill, and to the Health and Safety at Work (Offences) Bill were made by the part-time shadow Leader of the House, as he shuttles back and forth between that position and his part-time position on the Back Benches?
  Madam Deputy Speaker: Objections are valid, from whatever quarter of the House, and from whichever individual, they come.

Hallmarking
Motion made, and Question proposed, That this House do now adjourn.—[Jim Fitzpatrick.]
2.34 pm
Mr. Mark Lazarowicz: I begin by congratulating the Under-Secretary of State for Trade and Industry, my hon. Friend the Member for Bradford, South (Mr. Sutcliffe), on his appointment as Minister with responsibility for consumer affairs. I believe that this could be his first appearance in the Chamber in that capacity, and I wish him well in his new post, as I am sure that other hon. Members here today will.
My interest in the future of hallmarking arises from concerns raised with me by the Edinburgh assay office in the heart of my constituency, which is one of four such offices in the UK. The others are in London, Birmingham and Sheffield. Between them, they continue a tradition and legal obligation that has lasted 600 or 700 years—that gold, silver or platinum articles may not be legally described as such unless they are hallmarked by an independent agency to show who made them and what their precious metal content is.
The concern raised with me by the office in my constituency is now being raised by all four offices: for many years, the European Commission has been considering the introduction of legislation to harmonise the market in such items"in the interest, it says, of promoting freer trade in the Community. That is a worthwhile ambition, but it is important to emphasise the fact that harmonisation should maintain or enhance the consumer protection standards that we in the UK and other member states enjoy in this area. Harmonisation should not weaken or jeopardise those standards. Hallmarkers and the craft and jewellery industry are concerned that the hallmarking proposals before the Commission could threaten those high consumer protection standards.
When the European Commission presented a draft directive in 1993, the UK opposed it. The measure could not proceed because few member states actively supported it, and it has languished, for lack of active interest. However, there are strong indications from the trade that the Italian Government, who will hold the European presidency from 1 July to the end of the year, appear determined to revive progress on the directive and committed to achieving harmonisation that would dispense with the high customer assurance provided to the consumer by the hallmarking system operated in the UK.
Italy is one of four member states that use only a manufacturer's mark to certify the quality of gold or silver items—that mark is uncertified by any third party—whereas five have voluntary hallmarking schemes. Six member states, which comprise the greater number and include the UK, have compulsory hallmarking regimes. The core problem with the draft directive lies in annexe III, which, reflecting the Italian position, allows manufacturers or their representatives to claim conformity with the proposals and that the item in question is properly hallmarked by the use of a manufacturer's mark applied by the manufacturer without verification by an external agency.

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The concern involves not only items produced in the EU, but the fact that the system would make it easier to import from third countries outside the EU gold and silver items that have no proper independent verification. That could include imports from countries where there has been much systematic fraud over a number of years.
Precious metals are not used in their pure form for jewellery, silverware and so on. They are used in alloys, and not even an expert can tell by sight or touch what the precious metal content of such an alloy is. If an expert cannot tell, the ordinary consumer certainly cannot—so customers risk being deceived, which is why it is important to have some guarantee of quality. The key to the debate is whether that guarantee is best provided by the manufacturer, his representative, or an independent third party with no commercial interest in the article. Of course, the latter position applies in the UK. I am told that last year, under the hallmarking system, the four assay officers between them identified and rejected more than 66,000 items that were below the standard claimed for them.
The Edinburgh assay office has drawn my attention to evidence from other countries that should make us reluctant to move away from the current system of compulsory and independent hallmarking. Finland abandoned its compulsory hallmarking system at the end of 2001, since when investigations into the market as it has now developed have shown that cases of serious swindling have increased, and cases of low fineness, in which the proportion of precious metal is found to be less than was claimed are now much more serious than before the abolition of compulsory hallmarking.
In Denmark, where a similar situation applies, a survey showed that 3 per cent. of goods marked by manufacturers were substandard. If the same percentage were applied to the total number of articles marked in the UK each year, 1.5 million substandard articles would be offered for sale each year, as opposed to the 66,000 that were found to be substandard last year.
Given the nature of precious metals, even small reductions in fineness of an item of gold or silver jewellery can, if made tens of thousands or even millions of times, result in large sums of money being wrongfully retained by the people who have incorrectly stated the proportion of precious metal in those articles.
There is also powerful evidence from outside Europe. In the United States of America, studies were carried out in a county in New Jersey, which found that over a four-month period in which random tests were carried out, two thirds of the articles tested did not meet the Federal Trade Commission's carating standards. A similar investigation showed that eight stores in Florida had been charged with such behaviour. In Princeton, a large variety of chains, rings, charms and earrings were tested, almost all of which responded to magnetic testing, which showed that they were not what they were claimed to be. Those items were stamped as products of Italy or Thailand. That problem is rife in many parts of the USA.
Interestingly, I am told by the Edinburgh assay office that checks carried out on the jewellery purchased by 8,000 consumers in India showed that 4,800 of them—60 per cent.—had substandard fineness of gold and
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silver. It is not surprising that many countries that currently do not have an independent hallmarking system, including China and India, are showing interest in introducing such a system in their countries.
A couple of years Ago, the Department of Trade and Industry carried out a survey into the UK jewellery sector. It examined the hallmarking system and came to the view that the present system has a neutral impact on UK competitiveness. As a result of that, the Department held a series of meetings, which resulted in a declaration of intent by the British Hallmarking Council, the British Jewellers Association, the National Association of Goldsmiths, the assay offices and the local authority trading standards body, in which they stated that a single market for precious metals in the European Union was desirable. That wide range of organisations also thought that the hallmarking of articles sold in the UK must be given the same protection as is given by the present independent system, so that people can have the same confidence in it. For that reason, the proposals in the draft directive—specifically those in the third annexe, to which I referred—were totally unacceptable to that wide range of organisations, drawn from retailers, producers, independent agencies and local authorities.
I want to highlight a third issue that is of particular importance to Edinburgh, to my constituency, of course, because the assay office is located there, and to the rest of Scotland. Acceptance of a directive in anything resembling its present form would probably lead to the eventual closure of the Scottish assay office and end the existence of the Scottish hallmark, which is particularly sought after by tourists—especially those from the USA, Canada and Japan—as well as by consumers from this country.
Besides the almost certain loss of most, if not all, of the 40 jobs in the Edinburgh assay office, there would be other serious consequences, which would have a much wider impact. For example, I am told that a national retailer, John Lewis, has launched and promoted a range of hallmarked silverware in Scottish branches and its sales have increased by 40 per cent. as a result.
In addition to sales lost to the Scottish economy, the closure of the Edinburgh assay office would end the funding that it provides to art colleges in Scotland, to promoting design and craft skills and to staging major exhibitions at a number of galleries in Scotland. I understand that the assay offices in England also offer such support for the wider community. All that would be put at risk, and could be terminated very quickly, if the current independent hallmarking system were to end in this country.
My hon. Friend the Minister will know that I recently asked a number of parliamentary questions on this subject, and I greatly welcome the assurances that I was given in answers by the then Minister, who has now moved to another Department. The positive response from my hon. Friend's predecessor was a tribute to the campaign of those concerned about the future of the industry, and, of course, to the many Members of Parliament on both sides of the House who have supported my early-day motion on the subject. I hope that my hon. Friend will reiterate the commitment given by his predecessor, but also that he will be able to take that commitment further.

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As hallmarking is one of those issues subject to majority voting in the European Union, it may not be enough for the UK—to put it in the terms used in the answer to my question last month—simply not to support the draft directive. I would ask the Minister for a commitment to go further, positively to oppose the draft directive if it is introduced in Brussels, and to take every step that he can to ensure that any move to reintroduce that directive is blocked in the EU institutions.
Finally, it would be helpful to myself and those who are also interested in the issue if my hon. Friend would tell us what is his information about the support for, or dissent from, the draft directive in its present form among member states. There have been rumours that the member states that will join the EU next year have been told by some sources in the European Commission that they must give up independent hallmarking as part of the process of joining the EU. I hope that those rumours are unfounded. I am sure that my hon. Friend would agree that if they are not, that would be a totally wrong position for the Commission to take. I look forward to his reassurance today, or at a later date, that those rumours are unfounded and that the British Government would resist any such move.
My hon. Friend the Minister, and the House, will know that I am a strong supporter of British membership of the EU. Of course, to be a supporter does not mean that one does not fight vigorously for the interests of one's constituency and one's country, as I am sure my hon. Friend will agree. This is one such example. The adoption of the draft directive would mean less protection for consumers, extra costs for manufacturers and Governments and, if imports with lower safeguards were let in unchecked, it would undermine the tried and trusted British hallmarking system.
I welcome the Government's statements to date on the issue, and I invite my hon. Friend the Minister to reiterate their opposition to the draft directive and to commit the Government to pursue that opposition in the most vigorous manner open to them.
2.49 pm
The Minister for Employment Relations, Competition and Consumers (Mr. Gerry Sutcliffe): I thank my hon. Friend the Member for Edinburgh, North and Leith (Mr. Lazarowicz) for his kind remarks about my elevation to the post of Minister for Employment Relations, Competition and Consumers. Nine years ago, I made my maiden speech in the House. Some of the thoughts that ran through my mind then are running through my mind now. That is why I am pleased to be with my hon. Friends the Members for Poplar and Canning Town (Jim Fitzpatrick) and for Scarborough and Whitby (Lawrie Quinn), who are supporting me in the venture of answering this Adjournment debate.
It is an important debate and I congratulate my hon. Friend the Member for Edinburgh, North and Leith on securing it. As he said, the Edinburgh assay office is located in his constituency. He has a keen interest in the proposed EU directive on hallmarking and the effect it may have on hallmarking in the United Kingdom. The
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Scottish hallmark, which is a castle—I have a document here that shows how wonderful it is—is viewed as important both to the Scottish jewellery trade and to tourism in the area.
The UK has had a system of compulsory hallmarking since about 1300. It is the UK's oldest form of consumer protection. In the UK, the testing and marking of items of gold, silver and platinum are done by four independent assay offices, which are located in London, Birmingham, Sheffield and Edinburgh. That ensures that they conform to legal standards of purity; offers UK consumers a guarantee that goods are what they claim to be; and provides a high level of consumer protection. The system has worked well for the UK.
Last year, the Italians announced that they wished to revive the draft EU directive on hallmarking during their presidency in the second half of this year. The directive aims to harmonise practices across the European Union, allowing the free movement of articles of precious metal. It offers a choice of three ways of marking items of precious metal: marking by manufacturers to standards regulated by an accredited quality assurance scheme in annexe II; marking by manufacturers making a declaration of conformity in annexe III; and third-party marking by independent bodies, which is roughly equivalent to the UK's system of hallmarking by the assay offices, in annexe IV.
Although the Italians have scheduled a Council working group for July, they still have not made any formal proposal on the directive, and the starting point is likely to be the existing draft directive that was last discussed in 1996. In 1995, it was debated by Committees in both Houses of Parliament, which decided that it was unsound because annexe III lacked sufficient safeguards. At that time, the UK formed part of a blocking minority that would have been able to veto the directive had it been voted on in the Council of Ministers. In the event, however, no vote was taken, as member states were unable to reach a common position.
When the subject was raised again last November, it was clear that, in the intervening years, things had changed in other member states. In the past few years, more states that previously operated a third-party marking system have moved to a manufacturer marking system. That has left compulsory third-party hallmarking states such as the UK in even more of a minority. Other member states that were formerly opposed to the directive, such as Germany, have also indicated that they are ready to consider it again.
When the Italians raised the prospect of resurrecting the draft directive, officials in the Department looked again at the evidence, consulting stakeholders, including trade associations such as the British Jewellers Association, representing manufacturers, and the National Association of Goldsmiths, representing retailers; some manufacturers and retailers; assay offices; the British Hallmarking Council; trading standards and consumer organisations.
At that stage, it became clear that there was still little support for a change to the UK system. The UK system is self-financing—manufacturers and importers pay the assay offices to have their goods checked and hallmarked—and ensures that all articles are independently checked and marked, whether they are from a UK manufacturer or abroad, creating a level

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playing field for all jewellery sold in the UK. That gives the consumer a guarantee that the items that they are buying are what they say they are. It also means that enforcement agencies are able more easily to spot items that are on the market illegally, keeping enforcement costs down.
It is true that a number of larger manufacturers would change to a manufacturer marking system were the draft directive to be adopted, but even they accept that the current system works well, and that there could be enforcement problems under the proposed directive.
As my hon. Friend has asked me about it, I want to make the Government's position clear. While the directive would not do away with the UK's system of independent marking by assay offices, it would permit three different systems of testing precious metals to run alongside each other. Those would offer different levels of protection against fraud, which would effectively weaken the level of protection enjoyed by the consumer, which we could not and would not support.
After re-examining the evidence and talking to stakeholders, it also became clear that there is no real support in the UK for changing a system that has worked well for more than 700 years. Any formal proposal on the directive put forward by the Italians is likely to be based on the same draft that could not be agreed to last time. My predecessor as Minister with responsibility for the consumer, my hon. Friend the Member for Welwyn Hatfield (Miss Johnson), announced on 12 June that if the Italians revive the hallmarking directive in its current form, the Government will not support it. I can assure the industry, consumers and my hon. Friend the Member for Edinburgh, North and Leith that I share those concerns about the directive and strongly support retention of the UK system. I am pleased to say that, following oral questions in the other place yesterday, we also enjoy unanimous, cross-party support from their lordships on this issue.
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I know that my hon. Friend is particularly concerned about the future of the Scottish hallmark. Under the directive, the use of assay office marks, which identify where an item has been marked, will no longer be compulsory; instead, an "E" mark, showing that an item has been marked in the European Union, will be used. However, there is nothing in the directive to prohibit marks such as the Edinburgh Assay Office "castle" mark being used in addition "E" marks. I hope that that has reassured my hon. Friend about the future of assay office marks, should we be unsuccessful in stopping the hallmarking directive. I reiterate that, of course, the Government do not support the directive.
I note my hon. Friend's concern that the Commission has applied pressure on the accession states to give up independent hallmarking systems. Although it is true that this may have been suggested in 1995—the year in which the draft directive was last discussed—when there may have been some expectation that it would form part of the acquis communautaire, I am not aware of such a suggestion having been made in recent years, and nor would I expect the Commission to do any such thing. I agree that such a move would be totally unacceptable, and we will monitor the situation. It is perhaps worth noting that although the accession states cannot vote following any forthcoming discussions on this issue, they are permitted to be present and to speak. That will make it difficult for other member states to ignore their views.
I should like to reassure my hon. Friend that the UK Government have no intention of altering a hallmarking system that has served the UK so well for so long. We understand the level of concern expressed in the UK by industry and consumers, and we shall not be supporting the directive.
Question put and agreed to.
Adjourned accordingly at three minutes to Three o'clock.