Lords Sitting of 17 January 1991

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Worcester.

Air Transport: Denied Boarding Compensation
Baroness Burton of Coventry Baroness Burton of Coventry asked Her Majesty's Government:
Whether they will list those civil aviation matters discussed at the meeting of the European Council of Transport Ministers held on 17th–18th December indicating agreements reached and action decided upon, with particular reference to proposals and progress relating to denied boarding compensation.
The Minister of State, Department of Transport (Lord Brabazon of Tara): My Lords, the Council of Ministers, meeting on 17th December, agreed regulations on air cargo liberalisation and denied boarding compensation. It also discussed a proposal for a quick acting "cease and desist" mechanism in the event of predatory behaviour by airlines. The Commission reported to the council on progress in negotiations on air transport with Norway and Sweden.
Baroness Burton of Coventry: My Lords, I thank the Minister for that detailed reply, indicating real progress at last which he has helped to bring about. Perhaps he can help the House a little further. Can he say something about the mechanism proposed for swift action should the airlines themselves seem to take predatory action?
Lord Brabazon of Tara: The council discussed the Commission's proposal for a quick acting "cease and desist" mechanism to stop a predatory practice while it investigates it to a short timetable. There is still work to be done on the proposal but in any event formal agreement could not be reached since the European Parliament had not given its opinion. The Government regard this proposal as a vital safeguard in a liberal aviation market.
Lord Clinton-Davis: My Lords, is the Minister aware that the House will be extremely pleased at the progress that was made at the last ministerial transport council, notably in the field of aviation and most particularly in relation to denied boarding compensation? Is he further aware of the other side of that equation; namely, that "no-shows" occasion the airlines a considerable amount of potential loss, which in itself leads to overbooking? Do the Government have any plans whatsoever to deal with penalties arising from no-shows or do they believe that the present situation must continue to obtain?
Lord Brabazon of Tara: My Lords, that is an important point. I understand that the Commission
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considered the problem of overbooking but found it impractical to do anything that would not have reduced the ability of passengers to switch bookings; and fares would have been likely to increase. The regulation as adopted should encourage airlines to sort out the problem for themselves.
Baroness Burton of Coventry: My Lords, does the Minister agree that the real answer is that the airlines themselves do not wish to do anything about either no-shows or overbooking and give as the reason that if one did that and others did not they would lose most valuable custom?
Lord Brabazon of Tara: My Lords, that may well be the case. Therefore, we welcome the regulation that has been achieved. It will provide compensation levels ranging from £52.50 to £210, depending on the length of the journey and the delay. Of course, airlines are free to offer higher levels.

Unemployment: Statistics
3.10 p.m.
Lord Donoughue Lord Donoughue asked Her Majesty's Government:
What is the latest monthly increase in people unemployed, what is the percentage unemployed, and how long the number has been rising.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater): My Lords, in the month to December seasonally adjusted unemployment in the United Kingdom increased by 80,400 to 6.5 per cent. of the workforce. Unemployment has been increasing in the United Kingdom since March 1990.
Lord Donoughue: My Lords, I thank the Minister for those sad statistics. Is he aware that that latest monthly increase is the fifth worst in the history of recorded unemployment? Bearing in mind that unemployment has been rising for nearly a year and is forecast to rise over the coming year to around 2.5 million, will he inform the House whether that policy of unemployment is in fact an incomes policy in disguise? If so, does he agree that it would be better to have an honest incomes policy, more fairly shared, in which the burden did not fall mainly on the unemployed?
Viscount Ullswater: My Lords, I cannot agree with the noble Lord's reading of the scenario. The figures must be seen in context. They do not detract from the Government's longer-term achievements in improving the performance of the labour market leading to increased employment, which is at a record level. The United Kingdom has one of the lowest rates of unemployment in the European Community.
Lord Barnett: My Lords, would it not be more honest of the Government to concede that no government can solve the problems of unemployment in this country while our relative unit wage costs are so much out of line with those of other countries in the European Community, whether or not we are in the exchange rate mechanism? Can he tell the House what plans the Government have to deal with that problem?
Viscount Ullswater: My Lords, I have a certain sympathy with what the noble Lord said. It is important that wage increases should be contained. Having said that, we have one of the lowest unemployment rates in the European Community. Unemployment is rising in most major industrialised countries, including the USA, Japan, Canada, Italy and France and, in the USA and Canada for instance, at a much steeper rate than in this country.
Lord Bruce of Donington: My Lords, is the Minister aware that my noble friend's Question is directed to figures relating to the unemployed? The figures given by the noble Viscount and provided by his department relate to people unemployed and in receipt of benefit. Is the Minister further aware that the working party set up under the auspices of the Bank of England reported that an additional 600,000 people are unemployed and ineligible for benefit? Therefore, the total number of people now unemployed—that is, in the real sense as distinct from the fiddled qualifications imposed by the Government—is almost 2.5 million.
Viscount Ullswater: My Lords, it is more useful to the House and to the country at large if the figures are consistent month to month. The seasonally adjusted unemployment series of figures gives a comparable assessment of trends over time.
Lord Dean of Beswick: My Lords, how many of the 80,000-plus people referred to by the Minister are from the manufacturing sector? Is it not the case that one of the most sinister aspects of the increase in unemployment is the continued reduction of our manufacturing base which is vital to our economic success?
Viscount Ullswater: My Lords, the number that the noble Lord seeks is 13,000. Of course, the number employed in manufacturing industries is higher than in June 1987. During the past three years manufacturing output has grown faster than GDP, although I must confess that we are expecting slower growth during the next couple of years.
Lord Molloy: My Lords, is the Minister aware that the figures and comparisons that he has given bring no succour or comfort to the British people who are unemployed? Is he further aware that many of the long-term unemployed are skilled craftsmen? With a little training their knowledge and skills might be suitable for other industries. Would it not be worthwhile for the Government to examine the proposition of using in other industries some of the skilled, long-term unemployed who are of great value to our nation?
Viscount Ullswater: My Lords, as regards the flow of people in and out of unemployment, many unemployed skilled people find work quickly. Approximately 300,000 per month leave the count. More than 25 per cent. of unemployed people leave within the first month and 56 per cent. leave within the first three months. It is a dynamic economy.
Baroness Turner of Camden: My Lords, does the Minister agree that there is a disappointing growth in unemployment in the South East as well as in the manufacturing sector to which my noble friend
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referred? What are the Government doing specifically about that problem? Many people in the South East have been persuaded to buy their own houses but with the growth of unemployment they will have great difficulty in retaining them. What specifically do the Government intend to do about that new area of unemployment?
Viscount Ullswater: My Lords, it is a fact that the regional pattern of the latest figures shows a larger increase in the South East than, for instance, in the North. However, I must remind the noble Baroness that during the past year the unemployment service has helped more than 1.5 million people to find work. In April last year my right honourable friend the Secretary of State announced a five-point job help package which is now in place.
Lord Dormand of Easington: My Lords, is it not now crystal clear that the main cause of rapidly increasing unemployment is high interest rates? As the Minister has said, unemployment has been increasing since March of last year. Is it not now manifest that the Government's single weapon of high interest rates is failing? Are the Government so bankrupt of ideas that they fail to take into consideration any of the many suggestions put forward from this side of the House?
Viscount Ullswater: My Lords, no; of course they take into consideration many ideas both from the opposite side of the House and from outside. That does not necessarily mean that those ideas are correct. The Government are, of course, committed to a substantial reduction in inflation during 1990–91 and they are working towards that.

Psychiatric Aftercare
3.19 p.m.
Lord Mottistone Lord Mottistone asked Her Majesty's Government:
Whether they have consulted local authorities and directors of social services about the practical implementation from April 1991 of the care programme for all patients discharged from psychiatric hospitals.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): My Lords, yes. We consulted social service directors, local authority associations, health authority managers and NHS professionals.
Lord Mottistone: My Lords, in view of the fact that more than 180,000 such patients were discharged in 1987–88, the vast majority of whom were discharged within one month of admission, can the Minister give the House the results of those consultations and say how the Government intend to deal with a vast number of people?
Baroness Hooper: My Lords, the care programme proposals were broadly welcomed by the local authorities. Their views were taken into account when drawing up the care programme guidance which was issued last September. Clearly they must have been

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aware of the figures quoted by my noble friend at that point and no specific obstacles to their implementation were raised in the course of the consultation.
Lord Ennals: My Lords, bearing in mind the Government's £20.2 million specific grant for mental illness and the local authorities' estimate that in order to provide residential and day care facilities, they need about £75 million per annum, how is the programme to be funded by local authorities? Is the department to make a specific grant to local authorities or will funds be transferred from health authorities to local authorities? Did the noble Baroness discuss funding when she had consultations with the local authorities associations?
Baroness Hooper: My Lords, the care programme approach has been reinforced by the new specific mental illness revenue grant and the authorisation of increased capital expenditure. That was certainly designed to meet the needs of discharged patients.
Lord Ennals: My Lords, where are the funds to come from for local authorities, bearing in mind the restraints on their public expenditure programmes, charge capping, and so on?
Baroness Hooper: My Lords, the funds will come from the normal source—the taxpayer.
Lord Thurlow: My Lords, does the Minister agree with the widespread public perception that in any circumstances there will be a critical shortfall in the number of community psychiatric nurses or social workers required for effective aftercare? Will the Government consider consulting with local authorities on the options for a crash programme of recruitment and training of such workers?
Baroness Hooper: My Lords, the key elements of the care programme approach are, as the noble Lord well knows, as follows; systematic arrangements for assessing the health and social care needs of patients to be discharged and the appointment of a key worker to ensure that the appropriate services are provided. Clearly the numbers of people necessary to implement that approach have been taken into account.
Lord Winstanley: My Lords, can the noble Baroness tell the House whether the necessary and proper number of hospital social workers will be in post by the date stated in the Question? Does she not agree that the advice and help of hospital social workers is essential before those patients are discharged? If there are no hospital social workers, then that help will not be available.
Baroness Hooper: My Lords, it is important; and care has been taken to ensure that adequate arrangements have been made after assessment for the discharge of patients.
Baroness Masham of Ilton: My Lords, does not one of the practical problems arise when the placement in the community breaks down and the psychiatric patients drift into homelessness and perhaps prison? Is the Minister content that the lines of communication between prison, social services and health departments are adequate?
Baroness Hooper: My Lords, every care has and is being taken to ensure that the community care programme approach works because it is important that it should do so. If the noble Baroness wishes to have a specific answer on the problem of homelessness, I should be delighted to reply to questions which she may table.
Lord Murray of Epping Forest: My Lords, when the Minister speaks of every care being taken, will she ensure that care is taken to discharge such persons from psychiatric hospitals at the rate at which they can be cared for in the community? As the noble Baroness, Lady Masham, said, too many patients are ending up in prison and on the streets. Surely there is a case for reviewing the speed of discharge of those patients from hospitals.
Baroness Hooper: My Lords, behind the whole policy is the need to have adequate arrangements, whether they be housing arrangements, the catering for social care needs and so on, before patients are discharged.
Lord Hankey: My Lords, will the Government accept that the release of all these people into the community without adequate arrangements being previously made is becoming a major matter for concern to the electorate?
Baroness Hooper: My Lords, the programme which we are discussing is to be implemented from April 1991. Therefore, we have held consultations and have made whatever arrangements may be necessary for the implementation in April 1991. We hope very much that the arrangements will mean that that approach to community care for discharged mentally ill patients is quite adequate.

Civil Aviation: South-East Runway Capacity
3.25 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
What action they are taking to secure the construction of an additional runway for the use of civil aircraft in the South East of England.
Lord Brabazon of Tara: My Lords, we have acted on the Civil Aviation Authority's advice on the need, in around 2005, for new runway capacity to serve the South East and the identification of airports where its provision may be feasible in air traffic control terms. We have established a working group to examine the wider implications of such development. The group has its first meeting on 1st February. We have initiated also a written consultation to ensure that the group has access to a wide range of views.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that reply. Can he give any indication to your Lordships as to when it is likely that a firm decision will be taken? Is he aware of the urgency of the matter because by 2005 British civil aviation undoubtedly will be in great difficulties through lack of adequate facilities in the South East and will lose

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traffic to Europe? Can my noble friend give some indication that the Government realise that this is a very urgent and important matter?
Lord Brabazon of Tara: My Lords, I am not able to give any indication of how long the group's work will take. Inevitably that will depend on the progress which it makes. It has a lot to do. We are fully seized of the need to press ahead but we have had to give careful thought to the group's terms of reference and membership and to consider the requests from the various bodies involved. There is no point in starting off on the wrong foot. We should simply lose time later.
Lord Whaddon: My Lords, does the noble Lord recall his generous response to my suggestion to him a couple of weeks ago that a representative or spokesman of general aviation should be included on any advisory body regarding a new runway? Has he made such an appointment? Does he not agree that the presence of an informed spokesman is far superior to any written submissions?
Lord Brabazon of Tara: My Lords, unfortunately it was not possible to accommodate all those who sought places on the group. We were not able to offer individual representation to the general or business aviation community. However, the Business Aircraft Users Association Ltd. and the General Aviation Manufacturers and Traders Association Ltd. have access to the group via their membership of the British Air Transport Association.
Lord Underhill: My Lords, as the responses to the public consultation, which I believe closes on 31st May, will be treated as input into the working group, will there be an opportunity for parliamentary or further public consultation on the working group's report, or will that be left to a public inquiry when a project is determined?
Secondly, the Secretary of State made quite clear when he replied to the CAA's original advice that the Government still adhere to the view that there should not be a second runway at either Stansted or Gatwick and that the working group is to consider only the eight sites designated by the CAA. Therefore, could consideration be given to the position of the Marinair project for a Thames Estuary airport? I make it quite clear that I am in no way tied to that project but it seems that that may alleviate some of the environmental problems.
Lord Brabazon of Tara: My Lords, in reply to the first of the noble Lord's questions, the report will be published. I am quite certain that there will be ample opportunity for parliamentary input into the findings of that report. It is almost certain that the results of the report will lead on to some form of recommendations for development which will need a public inquiry.
As regards Marinair, for the purposes of the CAA study we ruled out the development of an entirely new South East airport because we believed it to be unrealistic; in other words, a green field site. We were not convinced that there were grounds for regarding
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Marinair differently. However, there remains the possibility of something being added later to the working group's remit should proposals emerge which offer a practical way forward.
Lord Geddes: My Lords, would my noble friend agree that the purchase by the British Airports Authority of Southampton-Eastleigh Airport, on the one hand, and the recommendations by the CAA in its document CAP570 regarding runway capacity in the South East, on the other, are incompatible?
Lord Brabazon of Tara: No, my Lords. I do not agree with my noble friend's suggestion. The use of the runway at either Southampton or Bournemouth is one of the proposals to be considered by the working party. Regarding the ownership of Southampton Airport, that is not a matter under consideration at the moment. It is true that BAA has run Southampton Airport for some time.
Baroness Burton of Coventry: My Lords, is the Minister aware that when the working group was set up there was widespread disappointment among aviation interests, which believed that this was a method of preventing the Government from reaching any decision? Is he further aware that the rate of progress of work as designated by the working group means that it will be several years before we reach any further conclusion? Could the Government give any indication as to whether they intend to take a decision before 2005?
Lord Brabazon of Tara: My Lords, in the main I answered that question when replying to my noble friend Lord Boyd-Carpenter. The CAA identified the need for an additional runway somewhere in the South East around the year 2005. It is a difficult and sensitive matter to say from where that extra capacity should come. Most people agree that it is necessary but nobody wants it in their own backyard.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that the noble Lord, Lord Underhill, is quite wrong in suggesting that the CAA advice excludes either Gatwick or Stansted? On the contrary, both are dealt with very carefully in the review. Most opinion feels that it is right to complete Gatwick Airport, which was planned as a two-runway airport from its foundation.
Lord Brabazon of Tara: My Lords, I am not sure that I understood from the question of the noble Lord, Lord Underhill, that he specifically excluded a second runway at either Stansted or Gatwick. As I said, the need for a new runway to serve the South East has been confirmed. We cannot ignore that. Equally, we shall not ignore the environmental and other considerations which led to the views taken in 1985. The terms of reference of the working group are specifically directed to have regard to those views.
Lord Tordoff: My Lords, how far is the working group charged with considering the infrastructure on the ground? I am aware that the Chief Whip is indicating that the Statement is ready, but I would be glad if I could complete my question. Is the Minister aware that on the rail link to Stansted, which as yet is

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incomplete but shortly to be completed, the cost of a single ticket is to be £8 and at that price many people will find it unattractive to use that airport?
Lord Brabazon of Tara: My Lords, the latter part of the noble Lord's question strays from the Question on the Order Paper. However, the whole purpose of the working group is to look at the considerations which the Civil Aviation Authority did not look at. The CAA looked at the air traffic control considerations. The purpose of this working group is to look at such matters as environmental considerations, ground infrastructure, access etc.

Business
Lord Denham: My Lords, we have now spent 26 minutes on Question Time. The House is urgently awaiting the Statement that my noble friend the Leader of the House is about to make. The business announcement must come first.
It may be for the convenience of the House to know that the Committee stage of the Planning and Compensation Bill will be adjourned at 7 p.m. for about one hour, and that during the adjournment a Prayer to annul the Social Security Income Support (General and Transitional) Amendment Regulations 1990 will be taken.

The Gulf War
3.34 p.m.
The Lord Privy Seal (Lord Waddington): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Prime Minister on the initiation of hostilities in the Gulf in the small hours of this morning. The Statement is as follows:
"Aircraft of the multinational force began attacks on military targets in Iraq from around midnight Greenwich mean time. Several hundred aircraft were involved in the action, including a substantial number of RAF aircraft. The action was taken under the authority of UN Security Council Resolution 678 which authorises use of all necessary means, including force, after 15th January to bring about Iraq's withdrawal from Kuwait.
"The action was taken after extensive consultation with the principal governments represented in the multinational force and following direct discussion between President Bush and myself over a period of weeks. It was taken only after exhaustive diplomatic efforts through the UN, the EC, Arab governments and others to persuade Saddam Hussein to withdraw peacefully.
"The action is continuing. Attacks have been directed at Iraq's military capability, in particular airfields, aircraft, missile sites, nuclear and chemical facilities and other military targets. Reports so far received suggest that they have been successful. Allied aircraft losses have been low. I regret to inform the House that one RAF Tornado from
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later raids is reported missing. The instructions issued to our pilots and those of other forces are to avoid causing civilian casualties so far as possible.
"Our aims are clear and limited. They are those set out in the United Nations Security Council resolutions: to get Iraq out of Kuwait—all of Kuwait; to restore the legitimate government; to re-establish peace and security in the area; and to uphold the authority of the United Nations.
"Mr. Speaker, as I explained in the debate in the House of Commons on Tuesday, it is only with the greatest reluctance that we have come to the point of using force as authorised by the Security Council. We did so only after all peaceful means had failed and Saddam Hussein's intransigence left us no other course. We have no quarrel with the people of Iraq. We hope very much for a speedy end to hostilities. That will come about when Saddam Hussein withdraws totally and unconditionally from Kuwait. Our military action will continue until he comes to his senses and does so.
"Most of all, Mr. Speaker, our thoughts go to the men and women of our forces and their families who wait anxiously at home. They have our whole-hearted support and our prayers for their safe return."
3.38 p.m.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Lord for repeating the Statement of the Prime Minister. While everyone regrets the need for war, it is clear beyond doubt that the responsibility for this crisis rests squarely on the shoulders of Saddam Hussein, who triggered off the conflict when he invaded Kuwait on 2nd August. It is for him to decide now whether he is prepared to observe the United Nations resolutions and withdraw unconditionally from Kuwait, thus preventing further loss of life. As the Prime Minister says, action was taken under Resolution 678 and it is important to repeat that it was not taken until several efforts had been made to seek a solution by diplomatic means.
We welcome the information that the United Nations forces have thus far achieved what appears to be maximum success without great loss and that care has been taken to concentrate on military targets. We also note with regret the report that one British Tornado is missing.
We fully support the objectives listed in the Statement. We hope that the United Nations coalition's military aims can be achieved swiftly, that casualties among the forces can be kept low and that the concentration on military targets referred to in the Statement will also minimise casualties among the Iraqi civilian population.
Finally, as the Statement says, our thoughts are in the main with our forces and with their families here at home. They have our full and unqualified support. We know that they will do all they can to bring this war to an early end.
Lord Jenkins of Hillhead: My Lords, we are grateful to the noble Lord the Leader of the House for keeping us informed even though he and the Prime

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Minister do so with appropriate caution and necessary imprecision. Following our debate on Tuesday, I do not think that any further political words can help at this stage. Our thoughts are with our troops and their families; our hopes are for a speedy United Nations success and our sympathy is with all the victims.
Lord Waddington: My Lords, I am grateful to noble Lords for their remarks. Clearly, what has happened is the responsibility of Saddam Hussein who attacked a country without provocation. The action which has been taken has occurred only after great diplomatic efforts to avoid a conflict. It is of course too early to assess exactly how effective has been the action taken. But it is certainly true that the forces deployed have been urged to take all possible measures to minimise casualties among civilians and to concentrate on military targets. I share with noble Lords their good wishes to the families of those who are taking this action in the Gulf on behalf of the international community and on our behalf.
Lord Carver: My Lords, on behalf of the Cross-Bench Peers I wish to add a few words. Many of us have admired the skill, resolution and patience with which the Government, headed by a most impressive trio, have handled affairs within the past few weeks. We congratulate them on the way in which they have done so. That handling must have given great confidence to the soldiers, sailors and airmen in the Gulf to whom we should pay tribute for the patience and resolution with which they have faced a long period of anxious waiting—indeed, it has been a period of anxious waiting—also for their families. We would like to add to the tributes paid to the Armed Forces in the Gulf and to the skill that they have already displayed. Our thoughts are with them and their families.
Lord Waddington: My Lords, I am sure that we are all grateful to the noble and gallant Lord for the tribute which he has paid to our Armed Forces. This conflict has not been entered into lightly. The noble and gallant Lord is so right to emphasise what great care was taken and what great efforts were made to try to avoid conflict at all. The responsibility for it, as I have said, rests on the shoulders of one man.
The Lord Bishop of Worcester: My Lords, we are grateful for the Statement. From these Benches we are also grateful for the fact that two or three days ago Cardinal Basil Hume and my noble friend the most reverend Primate the Archbishop of Canterbury were called to 10 Downing Street to be privy to some of the possible developments. We, and all Members of your Lordships' House, are concerned that we be of good courage and pursue resolutely our objective so that we may bring about a speedy end to the conflict. I am sure that throughout the country we shall be saying prayers for the servicemen of many nations who are gathered in the Gulf and especially for our own and their families. Our prayers will also be offered for the 40 chaplains who are with the forces and seeking to do their duty as the men around them are under fire.
I wish to reassure your Lordships that clergy, ministers and their people in the parishes throughout
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this country will be standing by to help all those who suffer because of the trauma of war. We must support the distressed and help the afflicted and of course, no one would ever doubt that in this House. But I pray that we may look forward to the healing, bridge-building and peace-making which must be done with as much resolution as we are rightly applying to the completion of our task. I do not in any way suggest that there are grounds for shallow optimism. We would not want that. We want to be realistic. We must look forward to the end of this conflict and the work that has to be done afterwards.
The words of my noble friend the most reverend Primate are so recent in this House that they hardly need repeating. I pray that Her Majesty's Government, in doing everything to contain this conflict, will also avoid, as the most reverend Primate said, the bombing of any of the holy places of Islam. We must all take opportunities to be alongside moslem people in this country. Indeed the right reverend Prelate the Bishop of Bradford is taking great trouble over this matter in his own diocese. I hope that we shall do our utmost to avoid any way in which this conflict may be interpreted as holy war, as Saddam Hussein wants to interpret it. From these Benches we shall try to do our duty and do what noble Lords expect of us in our pastoral care of people.
Lord Waddington: My Lords, I am sure that all of us will join the right reverend Prelate in his prayers for a speedy end to this conflict. We shall also be praying for all those chaplains who are with our forces in the Gulf at the present time. Clearly, the right reverend Prelate is right in saying that when this is all over and after Saddam Hussein has withdrawn, there will be a big job of peace-making still to be carried out. We all heed the remarks of the most reverend Primate made the other day. I am quite sure that all those engaged on the allied side will heed his remarks about the holy places. None of us here and none of our forces wishes to turn this conflict into anything like a holy war.
3.47 p.m.
Lord Hatch of Lusby: My Lords, on consideration I believe that everyone in this House and in the country will accept that, whatever the differences of opinion as to the causes of this war, this is a tragic day in the history not only of this country but of humanity. Every one of us sends our best wishes to our fellow citizens serving in the Gulf, our sympathy to their families and also to the people of Iraq who are likely to suffer most.
As regards that part of the Statement made by the noble Lord the Leader of the House in which he laid down the war aims, if Saddam Hussein and his forces are either driven out of Kuwait or withdraw from that country, is it intended that at that moment hostilities will be brought to an end?
Lord Waddington: My Lords, we have always made it absolutely plain that this action is being taken in order to carry out the UN resolutions. When that mandate, given to the allies by the United Nations has been carried out, there will be no need for further hostilities. Clearly, we all heed what the noble Lord

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has said about his sympathy for the people of Iraq. One does have sympathy for them at this time because the conflict is none of their doing.
Earl Attlee: My Lords, on behalf of the Social Democrats, we would like to congratulate the Government for their short and succinct Statement and echo the remarks made by the other speakers. We, and I hope everyone in this House, will say prayers for our boys and girls who are now fighting in the Gulf.
Lord Waddington: My Lords, there is nothing that I can add in reply to the noble Earl except to thank him, as I have thanked other noble Lords, for the comments which have been made. I am sure that they will be greatly appreciated by our forces.

Shard Bridge Bill
3.50 p.m.
Read a second time, and committed to an Unopposed Bill Committee.

Killingholme Generating Stations (Ancillary Powers) Bill [H.L.]
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Promoters of the Bill which originated in this House in the last Session of Parliament but did not receive the Royal Assent shall notwithstanding anything in the Standing Orders or practice of this House have leave to introduce the said Bill in the present Session and the petition for the Bill shall be deemed to have been deposited and all Standing Orders applicable thereto shall be deemed to have been complied with;
That the Bill shall be deposited in the office of the Clerk of the Parliaments not later than 5 o'clock on 22nd January next with a declaration annexed thereto signed by the agent concerned stating that the Bill is the same in every respect as the Bill at the last stage of the proceedings thereon in this House in the last Session of Parliament;
That the proceedings on the Bill shall in the present Session be pro forma only, in regard to every stage through which the Bill passed in the last Session of Parliament, and that no new fees shall be charged to such stages.—(The Chairman of Committees.)
On Question, Motion agreed to, and it was ordered that a message be sent to the Commons to acquaint them therewith.

New Roads and Street Works Bill [H.L.]
Lord. Brabazon of Tara: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage of the New Roads and Street Works Bill be marshalled and considered in the following order:

Clauses 1 to 5,

Schedule 1,

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Clause 6,

Schedule 2,

Clauses 24 and 25,

Clause 7,

Clause 26,

Clauses 8 and 9,

Clauses 27 and 28,

Clause 10,

Clause 29,

Clause 11,

Clauses 30 and 31,

Clause 12,

Clause 32,

Clause 13,

Clause 33,

Clause 14,

Clause 34,

Clause 15,

Clause 35,

Clause 16,

Clauses 36 and 37,

Clause 17,

Clause 39,

Clause 18,

Clause 40,

Clauses 19 to 21,

Clause 38,

Clauses 22 and 23,

Clauses 41 and 42,

Clause 99,

Clause 43,

Clause 100,

Clause 44,

Schedule 3,

Clause 101,

Clause 45,

Clause 102,

Clause 46,

Clause 103,

Clause 47,

Clause 104,

Clause 48,

Clause 105,

Clause 49,

Clause 106,

Clause 50,

Clause 107,

Clause 51,

Clause 108,

Clause 52,

Clause 109,

Clause 53,

Clause 110,

Clause 54,

Clause 111,

Clause 55,

Clause 112,

Clause 56,

Schedule 4,

Clause 113,

Schedule 6,

Clause 57,

Clause 114,

Clause 58,

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Clause 115,

Clause 59,

Clause 116,

Clause 60,

Clause 117,

Clause 61,

Clause 118,

Clause 62,

Clause 119,

Clause 63,

Clause 120,

Clause 64,

Clause 121,

Clause 65,

Clause 122,

Clause 66,

Clause 123,

Clause 67,

Clause 124,

Clause 68,

Clause 125,

Clause 69,

Clause 126,

Clause 70,

Clause 127,

Clause 71,

Clause 128,

Clause 72,

Clause 129,

Clause 73,

Clause 130,

Clause 74,

Clause 131,

Clause 75,

Clause 132,

Clause 76,

Clause 133,

Clause 77,

Clause 134,

Clause 78,

Clause 135,

Clause 79,

Clause 136,

Clause 80,

Clause 137,

Clause 81,

Clause 138,

Clause 82,

Clause 139,

Clause 83,

Clause 140,

Clause 84,

Clause 141,

Clause 85,

Clause 142,

Clause 86,

Clause 143,

Clause 87,

Clause 144,

Clause 88,

Clause 145,

Clause 89,

Clause 146,

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Clause 90,

Clause 147,

Clause 91,

Clause 148,

Clause 92,

Clause 149,

Clause 93,

Clause 150,

Clause 94,

Schedule 5,

Clause 151,

Schedule 7,

Clause 95,

Clause 152,

Clause 96,

Clause 153,

Clause 97,

Clause 154,

Clause 98,

Clause 155,

Clauses 156 to 158,

Schedule 8,

Schedule 9,

Clauses 159 to 161.—(Lord Brabazon of Tara.)

On Question, Motion agreed to.

Planning and Compensation Bill [H.L.]
3.51 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment (Baroness Blatch): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee. —(Baroness Blatch.)
Lord McIntosh of Haringey: My Lords, with great regret I have to tell the House that it is not the view of myself and my colleagues that the House should resolve itself into Committee on the Bill. The Bill has had a substantial history over a long period of time. It is largely based on a report of March 1989. It is no secret that the Bill was ready for its parliamentary passage in the 1989–90 Session but was withdrawn because of the pressure of parliamentary business. It came before the House for First Reading only in late November of last year and was given its Second Reading in December. Almost within days—certainly within a very few weeks of the first publication of a Bill of 121 pages—we were faced with two blocks of government amendments. They now number 208, covering 87 pages.
I wish to put it to the House that this is not the same Bill that we debated at Second Reading. It is an abuse of the procedures of this House that we should have a Second Reading about a totally different Bill and that we should be asked to go into Committee with this number of government amendments to their own Bill. It is not a matter of this House acting as a revising Chamber. The Bill comes before your Lordships before it goes to another place. It is surely the responsibility of the Government to make up their

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mind what they want in their own Bill and then print that Bill, have it debated at Second Reading and have it go through parliamentary procedures.
As matters stand, to a considerable extent we wasted our time at Second Reading. We wasted the time, which is unforgiveable, of all those who have the responsibility outside the House of looking at the Bill from a professional point of view in order to help us to improve it. Above all, we are wasting the time of Parliament by making it impossible for us to give proper consideration to the Bill. I suggest that the proper procedure would be for the Government not to pursue this Motion today. They should take back the Bill and put in their own amendments so that they have a Bill of which they are proud and which represents their considered view. They could then bring it before the House for First Reading, Second Reading, Committee and later stages.
If the Government will do that I shall give an undertaking that the Opposition will give the Bill the fullest, most careful and sympathetic consideration. It is a Bill with which we largely agree. Large parts of the Bill are uncontroversial. In the interests of proper legislation and in the interests of the prerogatives of this House the proper course is for the Government to take back the Bill and to withdraw the Motion.
Baroness Blatch: My Lords, first, I apologise unreservedly for the number of government amendments that have come forward since the Bill was originally printed. Secondly, I must inform the House of the action I have taken since those amendments came forward. It must be said that many of those amendments are technical, drafting amendments which simply put right the text of the Bill. At the time the number of amendments was known a final date was given on the amendments coming forward, which was well before Christmas. At every stage the text of the amendments, qualifying notes to the amendments and Notes on Clauses were sent to the noble Lord and his colleagues, to the noble Baroness, Lady Hylton-Foster, and her colleagues and to the noble Lord, Lord Tordoff, and his colleagues, as well as to my own colleagues. All noble Lords who spoke at Second Reading were notified in detail about those amendments.
In view of the action taken and in view of the large number of amendments which have subsequently come forward from noble Lords, I commend the Motion for the House to resolve itself into Committee on the Bill.
Lord Cledwyn of Penrhos: My Lords, I listened, as I always do, with care and respect to the noble Baroness who is very experienced in this field. We feel deeply dismayed that the Government have once again placed the House in a most difficult position. As noble Lords in all parts of the House realise, we have a great deal of experience of important Bills coming before this House on which large volumes of amendments are submitted at a very late stage. This is one of the worst cases, if not the worst, that I have come across. Eighty-seven pages of new amendments have been tabled at this stage.
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I should like to put some questions to the noble Baroness. As my noble friend reminded her, the Bill has been with the Government for well over 12 months. Why has there been this delay in changing the Bill? What is the reason? Can she explain why the Government have taken 12 months to make up their minds that changes of this dimension must be made? The noble Baroness told the House—it is a common enough ministerial comment—that the amendments are in the main technical. We know that many of them are technical. But what are the great issues of principle involved in the changes? The House will want to know that before it can agree to go into Committee.
Baroness Blatch: My Lords, I have had the closest contact on this Bill—written and verbal contact—with colleagues on all sides of the House and all that contact on these amendments was made well before Christmas. No amendment has come forward since then. It would have been common courtesy to have at least told me well before this moment of the grievance that has been harboured by noble Lords opposite. An open invitation to my office, to me and to my officials was extended to the noble Lord, Lord McIntosh, and to all other noble Lords who spoke in the Second Reading debate. I have had long and detailed correspondence with them on many of these amendments. As to qualifying the amendments, in addition to sending the amendments, the Notes on Clauses and qualifying notes, I also sent a list categorising the nature of the amendments and setting out whether they were technical amendments, whether they sought substantially to change the text or whether they dealt with only minor issues.
Having apologised unreservedly for the number of amendments, I believe that I have taken a number of steps which make it possible for the Bill to be discussed today. Therefore. I commend the Motion.
Lord McIntosh of Haringey: My Lords, I hope the House will note that in nothing that I said did I accuse the Minister of discourtesy. Not a single gesture or word did I use which accused her of discourtesy. She is absolutely right in saying that, once the Bill had been published and had received its Second Reading, she took every measure possible to inform my colleagues and I, and colleagues in other parts of the House, about the nature of the amendments and indeed to apologise for the number of amendments. However, that does not resolve the question.
I am sorry that the noble Baroness should feel that it is a discourtesy on our part to raise the matter now. We are not doing it on our own behalf; we are doing it on behalf of all those people in the country who are vitally interested in this Bill and are concerned that Parliament should give it proper consideration. It is one thing to inform the Official Opposition and to inform other opposition parties about the nature of amendments but quite another to allow all those in the planning profession, those involved in agriculture and with land ownership and those involved in the law—many important legal matters are involved in the Bill—to prepare amendments and to express their concerns on a Bill which does not represent the Government's thinking. It is on their behalf that I

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confirm that it would be wrong for the Government to pursue the matter now and that it would be right for them to present a Bill which represents their thinking. I make one last appeal to the Minister. I ask her not only on behalf of Parliament and this House but also on behalf of all those to whom we are responsible to think again and to consider taking back the Bill.
Lord Renton: My Lords, in view of what has been said by noble Lords on the Opposition Front Bench, I think that we should bear in mind that we are concerned with whether we should proceed with the first day's business on the Bill. The Government have set a modest target which so far as I understand it extends to Clause 16. Moreover, of the 109 amendments which have been set down, the great bulk of them have been tabled either by the Opposition or by noble Lords on the Back Benches on this side of the House. We have had since mid-December to consider what we want to do with the first 16 clauses of the Bill; we have decided and we know what we want to achieve. In the circumstances, I suggest that we get on and deal with the first day's proceedings on the Bill.
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD AYLESTONE In the Chair.]
4 p.m.
Lord Norrie Lord Norrie moved Amendment No. 1:
Before Clause 1, insert the following new clause:
("Assessment of Environmental Effects
.—(1) The Secretary of State may make regulations under subsection (2) below establishing standards, objectives or requirements regarding the assessment of the likely significant effects on the environment of any project, plan, programme or policy as defined in subsection (4) below prior to the relevant approval or consent under the provisions of the principal Act, and to ensure the implementation of any obligations of the United Kingdom under the Community Treaties or international agreement to which the United Kingdom is for the time being a party, relating to environmental assessment, or in relation to any relevant enactments.
(2) Without prejudice to the generality of subsection (1) above, regulations made under this subsection may—

(a) make provision for the assessment of the effects on the environment of any project, plan, programme or policy as required by any relevant obligations of the United Kingdom under the Community Treaties or international agreement to which the United Kingdom is for the time being a party, and/or as the Secretary of State considers necessary;

(b) specify which projects, plans, programmes or policies shall be submitted to environmental assessment;

(c) establish criteria and/or thresholds regarding the application of 2(a) and (b) above;

(d) establish minimum requirements and standards for environmental assessments, including information concerning environmental effects submitted to the relevant authority.

(3) The Secretary of State shall establish and maintain an Office of Environmental Assessment to—

(a) monitor and review the quality of all environmental assessments under the Town and Country Planning Acts, including information concerning environmental effects submitted to the relevant authority;

(b) require the relevant authority to ensure the adequate fulfilment of the requirements of this section.

(4) In this section—
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"project" means a development project;
"plan" means a local authority Structure, Local or Unitary Development Plan;
"programme" means a series or group of projects;
"policy" means any policy prepared by a relevant authority for the purposes of the Town and Country Planning Acts;
"environmental assessment" is the process of assessing the likely significant effects of a project, plan, programme or policy on the environment prior to the relevant approval or consent.").
The noble Lord said: In moving this amendment I make no apology for explaining the shortcomings of the present system of environmental assessment in some detail. As I said on Second Reading, I believe that the Government have missed a great opportunity in this Bill to move environmental assessment forward in an imaginative way. The proposed new clause, which is supported by Members on both sides of the Committee, would go a long way towards putting improvements in place.
Given the fact that the Government announced last September that there would be a "green minister" in each department, surely they must recognise the need to place the environment at the head of all decision-making. The best way to achieve that aim would be to improve environmental assessment across the board. We need consistent implementation, quality control and monitoring of EA across all sectors, from transport to forestry and from town and country planning to energy and agriculture. Such consistency is surely lacking at present, especially in the forestry and agricultural sphere. Indeed, implementation is decidedly limited. Ideally, we should have an independent agency to oversee the whole process. Such a system is successfully in place in the Netherlands and it is desperately needed here. However, the Bill addresses only the town and country planning system. Therefore we must confine ourselves to that aspect for the time being.
What then would the proposed new clause achieve? First, it would place EA firmly into primary legislation for the first time. Such a system as EA should, I believe, be implemented through more robust means than the very limited secondary legislation under the European Communities Act 1972, as is currently the case. However, more important is the fact that primary legislation would remove a strait-jacket which currently bedevils the application of EA.
Before I continue, I think that it is worth recalling the words of my noble friend in responding to the debate on Second Reading. She said:
"Existing regulations made under the European Communities Act 1972 fully implement the directive and require environmental assessments for projects likely to have significant effects on the environment. We consider that the procedures are generally working satisfactorily".—[Official Report, 27/11/90; col. 942.]
I believe I can show the Committee that in reality my noble friend's statement needs considerable qualification.
Under the European Communities Act 1972, regulations can be made only to implement directives strictly to the letter. The EA directive has two annexes specifying which projects may be subjected to EA,

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either on a mandatory or on a discretionary basis. But if a type of project does not appear in the list, EA cannot be made a requirement—even if it may have very significant effects upon the environment. That is the strait-jacket to which I referred.
The likelihood of significant environmental effects should, strictly speaking, be the test of whether EA is required. In fact, that is very much the spirit of the directive. However, implementation under the European Communities Act means that there are some projects which, even though they may have significant effects on the environment, are escaping the proper scrutiny which EA can bring.
Perhaps I may give the Committee some examples of the types of projects which are escaping the net. One type of project which has been omitted from the directive is that which concerns drinking water treatment plants. Waste water treatment plants are included in one of the annexes, but not drinking water plants. That is clearly an omission, but a series of applications in and around the Peak District National Park over the past few years have illustrated only too well that such developments are likely to have significant environmental effects, especially where sited in or close to sensitive environments such as national parks.
Such developments include the siting of covered reservoirs, lagoons, buildings, pipelines and service roads in open countryside. The Peak Park Joint Planning Board, not surprisingly, wanted EAs carried out on such proposals, but the Secretary of State ruled that EAs could not be required under the EC directive and the regulations. Of course they could not be; but if the Secretary of State had powers in primary legislation to make regulations to require EA where he considered it necessary, that would not be a problem. Indeed, it would provide just the flexibility that is needed. That is what the proposed new clause would achieve. I should add that we are not concerned only with drinking water treatment plants. The same is true of freshwater fish farms, golf courses, some leisure complexes and no doubt other types of development which are yet to come to light. The proposed new clause would provide the Secretary of State with the flexibility to tackle such anomalies as and when they arise.
We should not have to wait for amendments to the directive every time a problem occurs. That course of action may take years. After all, that is why the directive makes specific provision under Article 13 to allow member states to apply EA more widely or stringently than the directive. However, we are unable to take advantage of Article 13 in this country because the Secretary of State has no powers under the present regulations to allow us to do so. It requires a specific power in primary legislation to allow him to make the appropriate regulations, which would go beyond the provisions of the directive.
Perhaps I may now move on to deal with the need to extend EA beyond projects to plans, programmes and policies. I shall not detain the Committee for too long on this issue as I have made the argument on numerous occasions during the passage of the
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Environmental Protection Bill last year and on Second Reading. The proposed new clause would allow the Secretary of State to require EA for local authority forward plans or where he considers such an assessment to be necessary. Again, that is a discretionary power, but it is at the plan, programme and policy level that the likely siting of projects is determined. Therefore, there is every reason why such plans should be assessed for their environmental implications at the earliest stage.
Finally, I return to quality control. I know that my noble friend will say that her department has research in hand concerning the issue, but, as I mentioned in my opening remarks, we need significant proposals if we are to secure truly effective quality control and monitoring. Within the town and country planning system, and, indeed, outside it, many environmental statements are of very poor quality. While some are improving, I have to say that it is because of pressure from environmental organisations and not as a result of guidance from the Department of the Environment. It is interesting to note that a study last year by Manchester University showed that only one quarter of environmental statements sampled could be considered satisfactory. That is a terrible indictment. There clearly needs to be a system which ensures that the methods of assessment and the documentation come up to scratch.
The amendment would establish an office of environmental assessment to oversee the system under the Town and Country Planning Acts. It need not be a quango. It could be a small unit of officials within the Department of the Environment charged with overseeing and reviewing the EA procedures. I shall be interested to hear my noble friend's reaction to such a suggestion.
In summary, I see three main objectives of the new clause. The first is to place EA firmly in primary legislation and to close the loophole through which some projects are slipping. The second is to establish a small unit within the Department of the Environment to improve quality control. The third is to allow EA to be extended beyond projects to plans and programmes. I believe that I have shown that one would be hard put to say that the present regulations implement the directive fully. It is clear that EAs are not required for all projects likely to have a significant effect upon the environment. The current regulations prevent that. Neither does the evidence suggest that the procedures are working satisfactorily. That is why I am moving the amendment, which would give EA the priority that it deserves. I beg to move.
Lord Renton: My noble friend Lord Norrie has with his usual care and thoroughness explained the reasons for this important new clause, which I warmly support. It may be relevant to mention that it has been inspired by the Council for the Protection of Rural England. It is welcomed—I discovered this only this afternoon in a document that it sent to me, and may have sent to other Members of the Committee—by the Association of County Councils, which says:
"The principal need which the Association perceives therefore is for a new Statutory Body to make regulations

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requiring environmental assessment quite independently of the specific obligation imposed upon the United Kingdom Government by the Directive".
Two points arise on that statement. The first is that the association does not make clear what kind of new statutory body is required, but I agree with my noble friend that it does not need to be a new quango. It is something which should inevitably be part of the policy of the Secretary of State for the Environment and guided by his department. That is why it is said in the new clause that that should be the case.
Another point that arises out of that statement is that the association says that there should be an assessment,
"quite independently of the specific obligation imposed upon the UK Government by the Directive".
As I read the new clause, that is just what can be done. Subsection (1) is the relevant subsection. It provides that the Secretary of State in making regulations will establish standards and ensure the implementation of the obligation. But of course his standards can be independent of that obligation. The question then arises of who is to have the responsibility for making the environmental assessment referred to.
I must confess—I hope that it does not embarrass my noble friend or any Members of the Committee if I say this—that I have always been doubtful about requiring those who apply for planning permission for development to make their own environmental assessment because it will often be one-sided and incomplete. The right body to make the environmental assessment is the local planning authority, but it should do so in the light of the guidance laid down by the Secretary of State in accordance with the policy that he evolves. That is the right way to do it. That is what can be done under the new clause. That is all that I need add.
I should, however, like to invite the Committee's attention to one or two of the provisions. In doing so, I point out that the new clause goes a long way towards fulfilling the objectives outlined so ably yesterday by the noble Lord, Lord Ezra, when opening our debate on the environment. The method is different from the one he proposed, but it could potentially cover all the environmental factors which he and other noble Lords mentioned in our interesting debate yesterday.
If we look at the provisions of subsection (2) we find that they are wide, especially when we come to subsection (2) (d), which provides that regulations may:
"establish minimum requirements and standards for environmental assessments, including information concerning environmental effects submitted to the relevant authorities".
I hope that my noble friend the Minister will be able to give a sympathetic answer.
We have tabled the amendment at the start of the Bill because it should have that prominence. Admittedly, the first few clauses are concerned largely with the enforcement of a somewhat different matter from that covered by the first amendment, but I am sure that my noble friend has tabled it in the correct
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place. It is an overriding and important question. I hope that it will have plenty of support from both sides of the Committee.
4.15 p.m.
Baroness Nicol: We support the amendment. It is worth reminding ourselves of the history of environmental assessment which has got off to a slow start. The idea was first mooted in the Community in 1975. A proposal was made in 1980. In 1981, the idea was still being resisted strongly by the Government, although by that time Members of both sides of both Houses had begun to believe that it was a good thing. However, the Council went ahead and in 1985 the directive was issued, but with a three-year time lapse during which countries could implement it to their own satisfaction. I regret to say that the United Kingdom took until the very last day of the three years before the directive finally came into force in July 1988.
It is a success story, because since then we have all come to recognise the value of environmental assessment. In November 1989, the then Secretary of State, Mr. Patten, made an excellent speech to the 75th anniversary conference of the Royal Town Planning Institute. I should like to quote a little from his speech. He was launching an advisory booklet, which the noble Lord, Lord Renton, may be interested to see, although I am afraid I have been unable to obtain a copy. It is called Environmental Assessment— A Guide to the Procedures. Mr. Patten said:
"The real key to the success of environmental assessment will lie in the way in which it influences the very character of development proposals. Ideally developers should have the environmental implications of their projects in mind from the earliest days of preparing the scheme".
This seems to indicate that the Secretary of State at that time thought it right that developers should produce their own environmental assessments and submit them with their planning applications for the criticism or otherwise of the local authority. I am sure that that is the best way to go about it. He goes on to say:
"An environmental assessment which is prepared after the project has been designed can only be second best, even if adjustments are made to reduce any damage which might otherwise be done".
It is clear from that where the Secretary of State saw the production of the assessment in relation to the development. The rest of that speech, which was very long, reflects an appreciation of the values of environmental assessments. Clearly, it is time that this was reflected in primary legislation. As the noble Lord, Lord Norrie, pointed out, we are handicapped in the proper application of environmental assessment until we have it in primary legislation. He mentioned Article 13 of the directive which says:
"The provisions of this Directive shall not affect the right of Member States to lay down stricter rules regarding scope and procedure when assessing environmental effects".
However, as he said, we cannot make those rules while we rely on regulations. The amendment is therefore within the terms of the directive and would give substance to the Secretary of State's speech which I have just quoted.

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The second part of the amendment is seen as essential by most of those directly involved with environmental protection. The Nature Conservancy Council and its successor body which takes over on 1st April are both very much in support of the need for a body to collate, assess and advise on environmental assessment. They are concerned that at the moment they are only consulted on 60 to 70 per cent. of environmental statements. That is quite outside the spirit of the whole exercise. We are glad to support the amendment and hope that the Minister will look kindly upon it.
Lord Ross of Newport: I wish to add my support for the amendment. There has been a full debate and most of the briefs with which we have been supplied have been fully quoted. However, the present situation is obviously unsatisfactory. The noble Lord, Lord Renton, quoted from the brief that he received from the Association of County Councils and I wish to quote an earlier extract: "Our member authorities—" that is the local county councils—
"tell us from time to time of circumstances where it would clearly be logical for the local planning authority to demand an environmental assessment from an applicant, but where this is not possible because the development in question falls outside the strict terms of the legislation. When we [the ACC] ask Central Government to extend the Environmental Assessment Regulations to embrace additional categories of development, we are told that this cannot be done within the terms of the present primary legislation".
I know that a review is taking place at the moment and I suspect that we may be given that reply by the Minister. I hope that that will not be the end of it because this is an opportunity to write the requirement into legislation. I have very carefully read the amendment put forward by the CPRE and believe that it covers the position adequately although I know that the ACC has slightly different views. It does not set up a great bureaucratic body, as has been clearly pointed out.
I hope that the Government will be able to take the matter on board or at least give us the assurance that if they are not entirely satisfied, they will come back on Report with a provision that we can write into the Bill. It is wrong and unsatisfactory at the moment and this amendment is supported on all sides of the Committee.
The Duke of Atholl: I wish to ask either the movers or the Government a question about the amendment. Since it would precede Clause I, does it apply to Scotland as well as England and Wales or only to England and Wales?
Lord Nathan: I support the amendment and all that has been said about the desirability of incorporating provisions concerning environmental assessments into primary legislation, precisely for the reasons laid out for us by the noble Lord, Lord Norrie.
I refer to the formulation of the environmental statements and the poor quality to which reference has been made in so many cases. Some months ago a group of public spirited people got together with a view to forming the Institute of Environmental Assessment. They asked me to be chairman. In that context I have learned something of the practical
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problems that have been confronted. One of the difficulties is that there is no clear statement—apart from the excellent pamphlet to which the noble Baroness, Lady Nicol, referred—about the criteria, the methodology to be applied in the formulation of environmental assessments. Some assistance needs to be secured on that.
It must be remembered that these environmental statements in the ordinary course and particularly the extension of the application of environmental assessment as adopted and proposed by the noble Lord, Lord Norrie, are dealt with at least in the first instance by local authorities. As the position is, they do not receive a large number of planning applications with environmental statements. They do not have the experience and manpower to assess them.
In the short time during which the institute has been in existence we have found that it seems to fill the need felt by local authorities to have somebody to guide them on environmental statements which are presented to them, both as to the methodology that has been adopted and the quality of what is presented to them. We should remember that in many cases a local authority may have received only a couple of environmental statements during its existence and so the officers do not possess the experience to handle the situation.
It seems to me necessary that there should be a body that provides authoritative advice on the methodology in principle and also on whether the methodology applied to an environmental statement is appropriate and complete. I suggest that it is rather absurd that this should be done by an institute funded by public spirited private people rather than by government with whom the responsibility primarily lies. As has been mentioned, the Netherlands environmental assessment body has been commissioned and I have had the benefit of meeting and discussing the matter with its chairman and secretary general. There is no doubt that such a body serves a useful purpose.
It strikes me that in the case of this amendment, which I support both in practice and in principle, the Minister may feel that the idea of extending at this time environmental assessments to plans goes beyond the idea of environmental assessment in the directive. Perhaps we ought to restrict ourselves to getting environmental assessment procedures right in the context of the present requirement rather than extending it to plans and so on, although in the end that would be good. If that is so, it would be helpful if the Minister could say—as I hope she will—"Yes, we agree to the proposals set out in the amendment but we think that we should hold steady on that point".
The other matter concerns funding; there is always difficulty on proposals which involve further government expenditure. It seems to me that if the Minister feels that this is a sticking point, it would be well worth proceeding with the amendment on the basis of the developers paying the cost of the body and the advice which they receive from it, as suggested in

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the amendment. It is in respect of those matters that I support the amendment and I shall be extremely interested to hear the Minister's comments.
Lord Renton: Is this a good moment for me to answer a question put by my noble friend the Duke of Atholl? The answer is that, as tabled, the amendment does not apply to Scotland, but by one or two consequential amendments to Clause 55 that could be arranged.
4.30 p.m.
Lord Wade of Chorlton: First, I should like to say that I have tremendous sympathy with the thoughts of those who have brought forward this amendment. It is right and proper that all developments should be considered very sympathetically from the environmental point of view. We all have to live and see the environment, so it is one of the most essential considerations.
When planning authorities meet, they have a wide range of aspects that they have to consider in reaching their decisions. It is not just the environmental issues. As one of our friends in the other House said recently, you cannot put a ring-fence around all these issues. We have to consider homelessness and the need for houses, business, population changes and changing demographic structures in local communities. All these matters have to be considered by the planning authorities; and we know that they already consider environmental aspects, which is right and proper. But it would not be right to put this amendment into the Bill. I am sure that the Minister already makes it quite clear to planning authorities that environmental issues are important and have to be considered.
From my experience I know that environmental issues play a very important part in the decisions of planning authorities. They have the planning process to go through and all those concerned with the environment have the opportunity to voice their thoughts when these matters are considered in relation to local plans.
This amendment will not have a great impact on the environment. It will have a much greater impact on the cost of development. It will be another process to slow up development. When we had the Second Reading of this Bill, many noble Lords said that its importance was that it speeded up the planning process; yet in the first clause something is being brought forward which will slow up the process. Therefore, although I sympathise very much with the thoughts behind this amendment I cannot support it. I trust that my noble friend the Minister will not accept it because the Bill as it stands is the right and proper way to proceed.
Lord Skelmersdale: Before my noble friend who has just spoken rose I thought that, in the terms of 1066 and all That, we were in the process of agreeing that environmental impact assessments, especially for projects, was a phenomenon that had, so to speak, come to its time. As the noble Baroness, Lady Nicol, said, we have been creeping along on this for the past 15 years. There is no question about that. My noble
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friend Lord Wade says that planning authorities should consider environmental issues, but how on earth are they to do that unless they have the information upon which to carry out that task? I readily accept that they do this to the best of their ability at the moment, but it is only to the best of their ability.
I should like to see a scheme whereby there is a minimum sum for a project to attract an environmental impact assessment and that that should be statutory in primary legislation—almost certainly in this Bill. But where I find myself parting company with this amendment is in regard to plans and policy. The noble Lord, Lord Renton, would be the first to admit that the normal way of giving instructions from central government to local planning departments is by means of guidance and I do not think that we have yet reached a point where we can depart from that very necessary and very well-understood way of operating.
Lord Renton: I wonder whether my noble friend has perhaps overlooked the fact that there is a European directive requiring us to have something of that kind in our law. If that is so, is it not right that we should have something on the lines of this amendment which would enable it to become part of the law, with the Secretary of State issuing regulations in accordance with national policy?
Baroness Nicol: Perhaps I may give a small example of why we need the amendment. The directive as originally translated made an error. In relation to fish farming it referred only to salmon and not to trout. That was an error in translation but because that is how the directive came to us we are unable at the moment to change our own regulations in order to encompass trout farming when the National Rivers Authority, and any other body connected with the subject, requests that trout farms should be brought under the other legislation. We cannot do that as matters stand. That is just a small example of why we need primary legislation.
Lord Skelmersdale: I am not sure whether those words were addressed to me. Certainly the noble Baroness, Lady Nicol, was looking at me directly when she spoke. As I have already made clear to the Committee, I have absolutely no problem in attracting environmental impact assessments to projects, whether they are fish farming projects or any other projects, as long as they need planning consent in the first place; but I should need to know quite a lot more about the effects of the European directive and the subsidiary legislation under the Treaty of Rome to understand whether it is possible to divorce the project and programme parts of the amendment from the policy and plan parts of the amendment. However, I am sure that my noble friend on the Front Bench will be able to settle that question to the Committee's satisfaction.
Lord Wade of Chorlton: My noble friend asked me how it is possible to have an assessment without knowing the standards. My reply is that one of the systems for which I certainly have great respect is the electoral process. It may be that in some areas of the

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country, run by a certain type of authority representing a particular group of people, there are different ideas about the environment from those in other parts of the country. That is a right and proper system to have. The environment in a particular area will be decided by the people who live in it and those whom they elect as representatives. They will produce the sort of environment that is wanted. The position will not be the same everywhere, and that is right and proper. In some areas there will be different priorities and housing, business or shopping may be considered more important, while in other areas the feeling is different. It is right that people should be able to adapt to what is wanted in certain areas rather than have standards which are not right for everybody.
Lord Renton: Is my noble friend saying that a local planning authority, because it thinks that people in the area want it, can do something which is contrary to good environmental standards and, indeed, is in bread of what are rapidly becoming internationally accepted standards? Surely that would be very bad.
Baroness Blatch: It might be convenient for me to respond now to the comments that have been made. I start by congratulating my noble friends on tabling this new clause in such a way that we have started this Committee stage with an important debate on environmental issues. Environmental assessment is becoming a vital decision-making tool, designed to ensure that essential environmental information is in mind when decisions are made which are likely to have significant environmental effects. The Government have welcomed this development; we implemented the European directive on the subject more speedily and more fully than most other Community member states, and it remains a policy priority to ensure that these provisions operate, and should operate, effectively.
This new clause seeks to address a number of issues that have arisen since the regulations were made in 1988 under the powers provided by the European Communities Act 1972 for implementing Community obligations. The first such issue is the argument that the 1972 Act in some way inhibits proper provision for environmental impact assessment. I do not agree. The EC directive requires EIA for a very wide range of projects. It is true that some types of development which could have significant environmental effects are not mentioned in the directive, but they are few and far between. The custom is already growing for developers to provide environmental statements even when EIA is not formally required.
Many Members of the Committee have mentioned the need to require EIA for projects which are approved by the private Bill procedure. The Government have already accepted in principle the Joint Select Committee's recommendation that the Chamber's standing orders for private business should be amended to require EIA in appropriate cases. My department has been working with the Chamber authorities on the details. I understand that the Lord Chairman will be tabling an appropriate amendment to standing orders shortly.
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My noble friend Lord Norrie was concerned about installations and projects which are not covered by the directive. He gave the example of the treatment of drinking water in the Peak District Park. Wherever environmental impact assessment does not apply, the planning authority involved must still take all material considerations into account.
It has also been suggested that we are not fully meeting our international obligations with our present provisions. That is not so. The various EIA regulations fully implement the EC directive. The European Commission, which looks at member states' implementing provisions with a highly critical eye, accepts this. It has sought changes to the legislation of some other member states (including states with good environmental reputations like the Netherlands), but not of our legislation.
It is true that the Commission has queried the application of the directive in a number of individual cases, but in all of them we can show that we are abiding by the directive's letter and spirit. If it could be shown that we had failed to implement the directive in any particular way, Section 2(2) of the 1972 Act provides all the powers necessary to put the matter right.
There are suggestions that our legislation is insufficient to enable us to meet other existing or prospective international obligations relating to EIA. It is true that the European Commission is considering proposals for amending the existing directive. Should such amendments be adopted, the 1972 Act would enable their implementation. The only other international obligations which may arise in the immediate future are those under the convention on EIA in a transboundary context on which negotiations under the aegis of the United Nations Economic Commission for Europe are almost complete. I am advised that no legislation going beyond existing provisions would be necessary to meet the obligations arising under this convention.
Another set of arguments relates to the inadequacy of some environmental statements provided under the present regulations. To deal with this the new clause would enable the Secretary of State to establish minimum requirements and standards and would require him to establish an office of environmental assessment which would have to check all statements and see to it that those standards were complied with. This would be a recipe for wasteful duplication and delay. The delay would be caused by the mere fact of environmental statements having to be considered by a body separate from the decision-maker. The EIA office's work on assessing the document would involve similar analysis to that which planning officers already undertake. The country is not so well endowed with qualified staff as to be able to afford such duplication.
Of even more concern is the fact that if an environmental statement is only held to be valid if it complies with some statutory criteria, this would encourage litigation about the content of the statement. This would both add to delays and divert attention from the real issue, which is whether the

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proposal to which the environmental statement relates should go ahead. For these reasons we do not believe that the proposal in the new clause would work.
We do, of course, acknowledge that some environmental statements are inadequate. My noble friend Lord Norrie referred to the research which has been and is still being carried out at the environmental impact assessment centre at Manchester University. Although the research that my noble friend referred to was based on a small sample of cases, current research is likely to show that there is some inadequacy in this area.
However, in our view it is possible to secure improved quality without the review office proposed in the new clause. Our aim is that it should be generally recognised that authorities will not allow themselves to be fobbed off with inadequate or biased statements and that thorough, accurate and well balanced environmental statements will help them to come to a quick and well-informed conclusion about a proposal. In part it is for responsible developers and their consultants to set high standards. They will, I hope, be aided by the recently established Institute of Environmental Assessment and by the proposed association of environmental consultants. The Government can help by giving advice on good practice in the preparation of environmental statements. In that connection I have managed to obtain a copy of the document to which the noble Baroness, Lady Nicol, referred. I understand that there is a plentiful supply of copies of the document at Her Majesty's Stationery Office. I further understand that a reprint has already been ordered. Therefore, it will continue to be widely available. The White Paper, This Common Inheritance, indicated our intention to issue such guidance following some studies. We hope to be able to commission those studies soon.
The case for the new clause also reflects current interest in the possibility of extending the use of EIA, which currently applies to decisions about proposed development projects and to decisions about policies, plans and programmes. It is suggested that the enactment of the clause will make this extension easier to achieve. But this is by no means certain. Discussion of ways of taking environmental considerations into account in policy-making is still at an early stage. I believe the noble Lord, Lord Nathan, made that point.
The White Paper foreshadowed studies leading to the issue of guidance to Government departments. This work is well in hand. Also in hand are discussions within the European Community where the Commission is considering the possibility of a directive on the subject. In addition, the UN Economic Commission for Europe has established a task force on the application of EIA principles to policies, plans and programmes. My department is taking a full part in all these discussions. What has become clear so far is that the existing EIA procedures are not well adapted for application to decisions of this kind.
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Decisions on policies, plans and programmes are much less clear-cut—I believe my noble friend Lord Skelmersdale made that point—than decisions on projects and are often made in the context of much less formal procedures. At present it is simply impossible to say what statutory provisions, if any, will be needed. It is premature to make this provision.
I have noted that the new clause now before us is a revision of the one originally tabled by my noble friends which they were advised was too wide in scope for inclusion in this Bill. The revised clause is therefore necessarily limited to decisions made within the planning system. But EIA does of course go much wider, as the original clause recognised. Even if I were in a position to accept the principle of the clause, I would doubt the value of a provision limited to planning cases.
As I said at the start, the Government regard EIA as an important development, and one that we wish to see furthered. We share many of the objectives which it is argued this clause would achieve, but the clause itself would give rise to tangible disadvantages in the form of greater delay and bureaucracy.
I shall certainly study most carefully all that has been said in the debate. My door is open, as always, for any discussions that need to take place between the Committee and Report stages of the Bill. However, I hope that I have said enough to persuade my noble friends that we are tackling the problems which the new clause would address. I hope they will feel able to withdraw the amendment.
Lord Norrie: I thank the Minister for her lengthy reply. I, too, wish to study in detail what she has said. Will my noble friend spare time for further discussions before the next stage of the Bill?
Baroness Blatch: I gave a direct invitation for discussions. However, I must add that it goes without saying that such discussions are offered without prejudice or commitment.
Lord Norrie: I am grateful to my noble friend. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.45 p.m.
Lord Renton Lord Renton moved Amendment No. 2:
Before Clause 1, insert the following new clause:
("General duty of enforcement
. A local planning authority shall exercise its powers so as to ensure compliance with planning controls in their area.").
The noble Lord said: Amendment No. 2 is simplicity in itself. It needs no explanation. One has only to read the two lines of the amendment to realise that it is unimpeachable. However, the question is whether it is necessary—I am sure it is desirable—because we should not insert into statutes unnecessary clauses.
I should like to make a confession to the Committee. There was a committee, of which I had the honour to be chairman, which recommended that especially when you have rather detailed provisions in a Bill the intention of Parliament should be made clear by a general statement. Here we have a number of

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detailed provisions. I think there are 11 applying to England and Wales and about the same number relating to Scotland, although just here at this moment we are referring to England and Wales. Those 11 clauses refer to enforcement.
If it were clearly stated at the outset, as Amendment No. 2 says, that,
"A local planning authority shall exercise its powers so as to ensure compliance with planning controls in their area",
that would be a pointer to the intended effect of the more detailed provisions that follow. The matter is so simple, so plain, that I do not think I need say any more than that. I beg to move.
Lord Norrie: This is a most important amendment, and it underpins all of the Bill's welcome proposals to simplify and strengthen the enforcement of planning control. It is now widely recognised that there are problems with the current enforcement procedures. However, I suggest that these cannot all be put down to administrative or technical difficulties of the kind that this Bill is intended to reduce. Too often it is the reluctance of local authorities to take action, even when the necessary enforcement procedures are readily available, that brings the planning system into disrepute. No matter how gross the breach of planning control or how clear the evidence of abuse, there is no compulsion on a local authority to take any action, and too many authorities turn a blind eye to breaches of control.
I should like to give the Committee two examples of the problem that this amendment would reduce. Planning permission for limestone extraction at Coolscar Quarry in the Yorkshire Dales National Park was given on the express condition that its special limestone should be supplied principally to one company. Planning permission in such a sensitive site was only granted on the basis of this condition.
However, although it became clear in 1988 that the limestone being removed from the site was not being supplied to the company specified, enforcement action was not taken to enforce the conditions. Since enforcement action has not been taken, a quarry that would not have been given permission to supply ordinary stone has been able to do so in the heart of one our National Parks.
A second example concerns a dwelling known as Fallbrook House, granted planning permission in the green belt by Kirklees Metropolitan Council in 1981. Permission was only granted on condition that the dwelling was occupied by someone engaged in agriculture. In fact, a substantial dwelling was erected with bur bedrooms, a swimming pool, and a gymnasium set in landscaped gardens but no agricultural activity was carried out.
Lord McIntosh of Haringey: Is the noble Lord suggesting that no agricultural worker should be allowed to have a swimming pool or substantial grounds?
Lord Norrie: Not at all. But I think this may be going over the top. When considering an application to have the special condition removed, the Minister of Agriculture stated:
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"This type of property is far more luxurious than any farm worker could afford."
That probably answers the question from the noble Lord. Despite the absence of agricultural activity and the luxurious nature of the property, no enforcement action has been taken by the authority to ensure that the agricultural condition was met. The result is a substantial house in the green belt which would not otherwise have been given permission.
These are just two examples among the many problems that are being experienced across the country. My noble friend, who kindly wrote to me following the Second Reading, indicated in her letter that the Government did not think that the case for compulsory enforcement had been made out. However, she also appreciated that a problem exists. This amendment places a general duty on local authorities to take enforcement action. This is not an onerous task, but it will ensure that those authorities that are failing to meet up to the public standards expected of them actually toe the line. The ombudsman and the courts should take firm action against those who do not.
I urge my noble friend when she replies to accept this amendment as providing the balance between discretionary powers and compulsory enforcement that the Government desire. I am aware that the local authorities are keen to see a breach of planning controls made a criminal offence, and I have a great deal of sympathy with their intentions. However, setting aside the merits of the case for criminalisation, they must accept that greater powers to local authorities should also mean that they undertake to fulfil their enforcement obligations more fully.
This amendment would strengthen the backbone of local authorities in resisting the often subtle breaches of the planning system that can cause so much damage to our countryside. The creeping industrialisation of agricultural holdings, the improvement of barns and stables to desirable residences, and the growth of unauthorised activities alongside approved developments are all examples of problems being faced today across the countryside.
A duty to enforce planning controls would resist these trends. Importantly it would in the long run deter them from ever occurring, and thereby ease the workload on local authorities. It would encourage high standards all round, maximise the benefits of the Bill's other reforms to the enforcement provisions, and provide the boost in public confidence that the planning system urgently needs. I commend this amendment to the Committee.
Lord Airedale: We were told that this amendment was unimpeachable. I do not know about that. It does not even make up its mind whether a local planning authority is singular or plural.
Baroness Hollis of Heigham: We support this amendment. The Bill, following the Carnwath report, rightly seeks to make the planning process fairer, simpler, more predictable and more reputable, and that is why this clause, as the noble Lord, Lord Norrie, said, is so important. It seeks to achieve precisely that. It would make planning less whimsical, less arbitrary,

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because people would know that planning controls were being enforced. Carnwath, after all, has reminded us that a third of applicants were aware that they were committing a breach of planning law before being told so by the local authority, and that a half went ahead because they knew that planning permission would be refused.
This clause is the point at which the planning system and the legal system interact. As has already been said, local authorities would still retain their full discretion about planning judgments, especially with the additional tools of certificates of lawful use—one of the clauses in the Bill —and, if the amendment is agreed, with retrospective planning permission. Therefore, planning discretion would be retained, but what this amendment would do would be to seek to end discretion on legal grounds. That is that all would come within the law, and that it should apply equally to all.
The ombudsman has recognised—and Carnwath in his report has quoted him as saying—that the public should not be denied the protection of effective planning, whatever pressures local authorities are under. It is not an unacceptable imposition on local government. Already such a clause applies to the Control of Pollution Act 1974 regarding nuisances. It already applies to the Environmental Protection Act 1990 concerning litter.
It says, in other words, that local authorities retain proper discretion on planning controls and planning matters, but once that decision has been taken, the law should apply fairly to all. As the noble Lord, Lord Norrie, has said, if that is known, planning controls will stick, it will reinforce the standing of the local plan, it should reduce breaches of planning control, and help to restore to planning a proper integrity. I hope that the Minister will support the amendment.
Baroness Blatch: The effect of this amendment would be to place a general duty, as has been said, upon all planning authorities to exercise their development control powers, including their enforcement powers in Part VII of the Town and Country Planning Act 1990, so as to ensure compliance with planning controls in their area.
While the Government sympathise with the spirit in which this amendment has been tabled, we have concluded that it is unnecessary to impose on planning authorities any general duty of enforcement. The regime for enforcing planning control has traditionally, since 1948, been flexible and at the discretion of each local planning authority, subject to Ministerial guidance on planning control policy. We think this common-sense approach should be maintained. Its great advantage is that it enables each planning authority to tailor their response to a breach of control to suit the particular circumstances. Many suspected breaches of control are settled quite informally, by discussion between the owner or occupier of the land and the planning authority's enforcement officer, without a formal report to the planning committee.
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The development control system is complicated because it caters for an enormous range of development of land, and allows a reasonable degree of freedom (for example, by way of the permitted development rights provided in the General Development Order) for owners and occupiers of land to carry out small-scale development without the need to obtain planning permission.
If there is doubt whether planning permission is needed, it is usually resolved satisfactorily by discussion between the landowner or occupier and the planning authority. If an impasse is reached and unacceptable development is carried out, effective enforcement powers, which are being greatly strengthened by this Bill, are available to the planning authority.
In the Government's view, the present enforcement regime achieves a reasonable balance between the desirability of fostering acceptable development (even if it has been carried out without prior planning permission and has to be authorised retrospectively) and the need to maintain firm control over development which is plainly unacceptable. We think this is the most satisfactory approach, subject to the amendments that we are inviting the Committee to approve in Clauses 1 to 11 for England and Wales and Clauses 27 to 36 for Scotland.
We think that by using the words,
"so as to ensure compliance with planning controls in their area,"
the amendment would alter the balance of the present enforcement regime by creating a presumption that the planning authority should always consider taking enforcement action whenever a breach of planning control occurs, however minor or technical the breach might be in practice. That would impair the flexibility of the system. Some planning authorities might come under great pressure to take formal enforcement action even when discussion would resolve a planning control problem satisfactorily. It is important to remember that, on average, planning authorities now resolve 19 out of 20 practical enforcement problems without the need for formal enforcement action. Therefore, we should not interfere with that successful approach.
We appreciate the spirit in which the amendment has been tabled and we shall be issuing ministerial policy guidance about taking enforcement action following enactment of this Bill. We think that is the better approach rather than to impose a new and potentially onerous burden on all planning authorities. The issue here is flexibility of discretion for local planning authorities, with the firmness to act where it is appropriate to act, versus the rigidity of compulsion in every case.
I hope that with that explanation my noble friends will feel able not to press their amendment.
5 p.m.
Baroness Hollis of Heigham: Before the Minister sits down, perhaps I may ask her to comment on the amendment as it stands to ensure compliance with planning control, not enforcement; in other words, the

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comments the Minister made about negotiations are entirely covered by the wording of the amendment. No one is seeking legal enforcement if it can be done by prior negotiation. What it does rule out is the possibility to turn a blind eye where this is regarded as improper by many members of the public.
Baroness Blatch: If this amendment finds it way on to the statute book "compliance" will mean compliance in every sense to the letter and will automatically invoke the full weight of this measure.
Lord Renton: This is an extraordinary situation. We spend weeks and weeks trying to get a planning law which meets the needs of the nation, and we have elaborate procedures for planning controls to be imposed by local planning authorities. Then what happens? My noble friend has made it perfectly clear that there is discretion and flexibility. Some people are made to obey the law; others are not. What is the purpose of Parliament?
However, I have no wish to create a situation which is either burdensome or bureaucratic. I was hoping merely to clarify the law. I also hoped there would be more respect for it in the way some branches of the public service, namely local authorities, carried out their duties to comply with the law and get others to do so. But if we want to continue with the present nonsensical situation, so be it. I shall withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 [Planning contravention notices]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 3:
Page 2, line 1, after ("may") insert:
("(a) require the person who is carrying out or has carried out the operations, or as the case may be is using the land for the purpose in question to carry out such steps as the authority may specify, or cease such activities as it considers it ought to cease, to secure compliance with planning control; or").
The noble Lord said: In rising to move Amendment No. 3 I am pleased to note that the noble Baroness, Lady Gardner, my noble friend Lady Castle and the noble Lord, Lord Ross, have agreed to have their Amendments (Amendments Nos. 19 to 21 and No. 12 respectively) grouped with this amendment. If I may, I shall speak to those amendments as well, because the intention behind all of them is similar.
All of us are aware—if we had not been aware before, the District Planning Officers' Society will have made sure we are aware by now—of the extent to which the planning process is still being flouted in many parts of the country by a small minority of persistent offenders who put planning law to scorn by using its weaknesses to erect buildings, demolish buildings, use land which should not be used for a purpose or in general to do things which are not in accordance with planning law, ought not to be within the planning law and they know are not in accordance with planning law.
I am sure that other noble Lords who have seen the evidence placed before them by the planning officers most affected by this flouting of the law—I say "most affected", but I suppose the neighbours are most
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affected and the planning officers have to try to deal with it—will want to give more graphic examples than I think it is appropriate for me to give. But there is no doubt that the law at present can be avoided for a number of years. Examples have been given of avoidance for periods of up to 10 or 15 years by those who are determined to do so and who use all the excuses available to them under existing planning legislation.
This Bill goes some way to dealing with that problem. It introduces in its early clauses the whole concept of planning contravention notices and makes provision for enforcement of conditions and injunctions restraining breaches of planning control. It provides that breach of an injunction restraining a breach of planning control shall itself be an offence. Those on the ground and those round the country who are concerned on a daily basis with the enforcement of planning law do not accept that the Government have gone far enough; indeed, they do not accept that the Carnwath Report went far enough in this matter. What they say—and I think there is strong argument in support of it—is that the breach of planning control itself, not the breach of the injunction, ought to be the offence. In that way we could get much more quickly to the offence and make sure something was done about it and that either the breach of planning law was not pursued or that the nuisance was removed at the very earliest stage, rather than wait for all the injunction procedures.
There are a number of ways of doing that. The noble Baroness, Lady Gardner, has tabled four amendments which involve introducing four new clauses into the Bill. Her amendments do indeed achieve the objective which she wants to achieve; in other words, they achieve what I want as well, which is that a person who initiates or carries out development so as to constitute a breach of planning control shall be guilty of an offence.
I suggest there are two difficulties about them and that my amendment is preferable in two respects. The first is that to my mind the noble Baroness's amendment sits somewhat uneasily beside Clauses 1 to 3, which provide an alternative method of enforcement. I do not think it right to leave the Government's proposal for enforcement alongside four new clauses providing an alternative method without indicating which of the two is preferable. The second one is more important. What is provided under the amendment of the noble Baroness, Lady Gardner, would be that unpleasant word "criminalisation". In other words, what happens is that the breach of planning control becomes a criminal offence and the offender is liable on summary conviction to a fine not exceeding £20,000.
I feel that we should always be chary of adding new offences to the criminal law. So far as possible we ought to look for civil remedies if they can be effectively introduced and enforced rather than add to the already long list of criminal offences. Therefore Amendment No. 3 proposes to introduce right at the outset into the Government's proposals, without taking away anything from them, the possibility that

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a local planning authority in a planning contravention notice may require the person who is carrying out the operations to cease such activities that the authority considers should cease in order to secure compliance with planning control. In other words, the effect of the breach of planning control comes home immediately to the offender. It can be dealt with immediately using the penalties and procedures already envisaged by the Government with their proposals in the Bill.
This is a difficult matter and I am not convinced that we yet have all the aspects of it right. Indeed, I feel sure that the noble Baroness, Lady Gardner, and my noble friend Lady Castle, will put forward an eloquent case for their own amendments. However, we must always seek some effective way —more effective than that which the Government have found so far—to deal with persistent and flagrant offenders who have made a monkey of planning laws in many parts of the country for a number of years now.
I believe that we all have the same aim. Together I hope that we shall find a way out of this mess and will be able to secure effective control of breaches of planning law. I beg to move.
5.15 p.m.
Baroness Gardner of Parkes: The Committee will not be surprised to hear that I prefer my amendments to those of the noble Lord, Lord McIntosh. I was interested to hear his remarks. He draws attention to the fact that it is a most delicate matter to assess exactly the wording that is required and not for one moment did I anticipate that the Government would insert the number of clauses that I suggest. It is a delicate matter and that is why I air this issue today. I believe that only the Government are in a position to determine the exact balance to be achieved.
Amendment No. 12 is an amendment supported by the Association of District Councils and the District Planning Officers' Society, although it has been tabled in my name. I am delighted that today I am supported by the noble Baroness, Lady Castle, and the noble Lord, Lord Ross. That amendment was not my first amendment. The first amendment tabled in my name was Amendment No. 19, which reflected my sentiments in my own words. There are differences between the two amendments, Amendments Nos. 12 and 19. For that reason I considered that they should both be tabled and remain on the Marshalled List to enable us to consider the relevant points.
For example, in the ADC amendment the broad question of development is covered whereas my amendment, Amendment No. 19, is more limited and covers only buildings. That is one of the points to be considered. Amendment No. 19 covers the point about written confirmation if permission is not required. One of the matters raised in the Carnwath Report concerns the difficulties encountered by magistrates. Since 1971 I have been a magistrate and know that magistrates have decided many much more difficult matters. I do not accept the argument that magistrates are incapable of considering these matters. However, it is a fact that they might enter
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what is described in the report as a grey area. If so, that grey area could surely be clarified by the planning authority should it be applied to and asked for clarification.
Let me give the Committee an example. Most people know that they can add a percentage (I think it is now 25 per cent.) to their house as permitted development. But that 25 per cent. is calculated as 25 per cent. from the date of 1948. Many people do not appreciate that someone might have added something in the 1950s and another person added more in the 1960s. Not for one moment do I propose that we should criminalise a situation in which those people have got into difficulty without realising it. However if those same people had applied to the council and asked whether something was permitted development and had received back written confirmation that it was permitted development, they would not be at risk.
I have been in a situation in which I have had to apply to the council in the area in which I live to ask whether or not something was a permitted development. I was not sure because it was a grey area. I believe that there must be an obligation on councils to give fairly rapid replies. On no account should there be a system which would hold up matters for a long time.
In that respect also some councils deal with only a small number of planning permissions. Westminster deals with 6,000 applications a year, which clearly is a major problem for that council. In a recent conversation with an enforcement officer at Westminster Council I heard that, as the situation now stands, one can put up a six-storey building which is in breach of planning control but not against the law in any way. However, if one were to put a sign on that building, that would be illegal. That officer cited cases in which a sign had been put on a building and it had taken between a year and 18 months before the case eventually came to court. The offence was proved. The maximum penalty available, which is difficult to obtain, is £400. The people who had put up the sign said that they had done quite well because they had made a million pounds out of the sign in the time in which it was up.
It is quite absurd to have a penalty that is too small. That is why my amendment suggests a penalty which I believe will be a deterrent. It is a figure that is quoted elsewhere in relation to these matters, so it is not out of line.
But why should a sign on a building be illegal while it is not illegal to put up a six-storey building? That is a nonsense. There are all kinds of buildings, including top floors and extensions, all around the City of Westminster and in Oxfordshire, which have gone up and not come down. People apply for retrospective planning permission, and even those who have supported or would have supported the original type of application find themselves confronted with something that has been built quite contrary to a permitted plan or any permission. Then, retrospectively, a planning authority which considers the matter is not allowed to take into account the fact that the building has already been constructed. It has to treat

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the application as though the site were bare and unused and must judge the application quite impartially.
That is why one of my amendments asks that council committees considering planning applications should be able to take into account as an adverse condition—this is not the matter of criminalisation but or e of the other amendments—the fact that someone has proceeded with his development prior to receiving any planning permission. It must be appreciated that at the moment people say, "I should like to put that building up but I do not think I shall get planning permission". As the noble Baroness, Lady Hollis, mentioned, one-third of such people (I think I am quoting the right figures) know that they should have planning permission and half of that one-third know that probably they would not receive it. My advice to any of those people would be to go ahead and build it. If the structure is up, it will probably never come down. If it does, it will probably have taken so long and gained so much that one will not really be in a bad way. Such people are flagrant in their behaviour because they know that there is no enforcement and that they will get away with it—
Lord McIntosh of Haringey: Perhaps the noble Baroness would care to rephrase her comment. She appeared almost to counsel people in favour of law breaking. Perhaps she would care to rephrase her advice by saying that she recognises that unless the law is improved they may get away with it. That is not quite the same as advising them to go ahead.
Baroness Gardner of Parkes: Perhaps my Australian phraseology is not quite right. However, as the law stands there is nothing illegal and nothing to stop people behaving in that way. Those who are blatant enough to go ahead appear to get away with it. Other people resent that and wonder why they should be bound to take others into consideration. When their planning application is considered their neighbours must be consulted. They may wonder why they should have that penalty placed upon them when others ignore the system and get away with it. That is the public's resentment at the present time.
I appreciate the point made by the noble Lord, Lord McIntosh, that it would be unfortunate if such actions became major criminal offences. I do not suggest that. I suggest that it should be discretionary and that local authorities should have the right to take action. After all, in cases of speeding usually the driver who is travelling at one mile an hour over the limit is pulled up and cautioned by the police but not brought before the magistrates. One must be deliberately and visibly speeding before one appears in a magistrates' court. Therefore, there is a discretion in bringing prosecutions.
The Carnwath Report makes several clear points. I wish to draw the Minister's attention to page 44, the heading of which is so appropriate for me. It is "Lack of Teeth". Chapter 4.1 states:
"There is widespread complaint that the penalties extracted for breaches of planning control are insufficient to offer a real deterrent to unlawful action".
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That is true. The report makes a further interesting point on page 53. It states:
"The position of the Association of District Councils, whose members bear the brunt of responsibility for enforcement, has changed during the course of this review".
The report goes on to state that the association was not originally in favour, and so forth. However, the important point is:
"the Committee stressed 'that this would provide a right to prosecute and not an obligation; local planning authorities should have the discretion to prosecute where necessary'".
The paragraph concluded that, unfortunately, the report from the ADC would not be available in time for the publication of the Carnwath Report. That is an important point. If the ADC report had been available, Carnwath might have been impressed by the arguments which have come out strongly and clearly in favour of making the actions a criminal offence and the report may have concluded differently. I support the report's statement that in terms of public perception of the system the symbolic effect of making the actions a criminal offence carries considerable weight.
I hope that the noble Lord, Lord McIntosh, will appreciate that I am trying to make the point that too many people think in the way that I described. That is the problem. I hope that other Members of the Committee will listen to the arguments that will be made. It is a serious matter and I hope that my noble friend will deal with it in that way.
Baroness Castle of Blackburn: I find myself in the ironic position of joining forces with the noble Baroness, Lady Gardner, and adding my name to Amendment No. 12. It is only 20 years since she and I were engaged in a battle to the death for the Blackburn seat. I was the sitting Labour MP and she was an extremely vivacious Conservative candidate. I could not help thinking that it was a funny old world.
I join in this erudite debate not because I am a planning expert but because I am one of the sufferers to whom all this elaborate legislation is intended to bring relief. I am at the receiving end of the activities of the determined minority of people who flagrantly defy the planning obligations of which they are well aware. There has been more than one such person in the beautiful area in which I live.
I shall not name names but there exists a notorious case. In this area of outstanding natural beauty a man is repeating—and getting away with it—the breaches of planning duty that he has got away with in other parts of the neighbourhood. My attention was first drawn to the matter when travelling clown a narrow country lane which enters a wood full of deer. I saw the most remarkable contraption in the form of a stone manorial-type entrance to a building which he claims is a barn. It gives access onto an already narrow and winding road which the authority has no intention of widening. We certainly do not want it to do so because it is part of the lovely, endemic, unspoilt character of the area. The eyesore is blazened every night with searchlights. Heaven knows what is supposed to be inside the barn, but if there are cows they will never get a moment's sleep.

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All of us who love this beautiful part of the Chiltern Hills, including those on the parish council, contacted the planning officer immediately. I have had much correspondence and many telephone conversations with this excellent man. He tells me, "Mrs. Castle, we are powerless. We are as furious as you about the activities of this man. He should have applied for planning permission even though it is an agricultural building because it is near a road and an improvement of access must be made". He applied for permission after the building and the monstrous entrance had been erected. Now a mobile home has appeared on the site. The local council knows perfectly well that to take action will take months, money, an extra levy on our wretched poll tax and the time of officers. Even then it may not succeed. I might tell Members of the Committee that this gentleman is an addict and makes a laughing stock of the authority. He takes legal advice and is told exactly what he can get away with under the current law.
When I knew that the Bill was beginning its progress through this Chamber I said, "This is my chance to lend my voice to try to have effective action taken at last for the sake of the people who are at the sharp end of the problem". Ought not we to listen to them? They have the job of meeting the fury of the local residents. They have the job of trying to enforce an inadequate law full of loopholes.
They are asking us to support Amendment No. 12. In fact, they drafted it. Why should we not listen to the planning officers of the district authorities? They care passionately about the beauties of our local areas and they want to defend them. However, they have their hands tied behind their backs by the inadequacies of the current law.
I do not believe that those inadequacies will be remedied in this respect by any amendment other than Amendment No. 12. I am astonished when it is said that we should not criminalise people. Last year I received a letter from the Department of the Environment saying that it had been decided to list my modest cottage because it is built in the traditional Chiltern flint and brick. It is an old hill farm cottage still with its old tiles. The department said that it was an excellent specimen of the traditional building of the area and so it had been decided to list it. However, I had the right to appeal. I wrote back and said, "Appeal? I am saying whoopee! I want to tie the hands of any philistine who may succeed to the place when I am dead. Please let me know what is involved and what are my duties." I was sent a list and I read with interest the following words:
"It is an offence to demolish, alter or extend a listed building without listed building consent".
The penalty can be a fine of unlimited amount or up to 12 months' imprisonment or both. I did not feel criminalised but I felt protected. What is the difference between applying that kind of attitude to a beautiful building and to the desecration of a beautiful part of a rural area?
I know that the penalties under these provisions are being altered in Schedule 2. Rather typically, instead
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of strengthening the protection against the flagrant violator of our planning intentions, the Government start to weaken the penalties for those who violate the listed building provisions. That is typical. However, that does not alter the fact that in amendments to Schedule 2 there is a repetition of the words that "it shall be an offence" and that the owner of the listed building "shall" do what he is told or "shall" suffer those penalties. That is quite right too. The word "shall" should be used also against people who are driving our district planning officers mad; people who are cocking a snook at us all and are laughing at the law makers—with every right to do so.
Our amendment still uses the word "may". We are still not being as tough in that case as we are with people who violate the listed building controls. We are saying "may". I have some well-meaning neighbours who, I am sure, have constructed a building without permission. I shall not tell on them, but one must discriminate.
Planning officers merely want a permissive power. They know who are the persistent culprits. I hope that the Committee this afternoon will send a message to those people: "This is the end of the road for you. You are not going to get away with it any more. We know who you are and if you move again, you will be committing an offence". We may then begin to have some effective planning law.
5.30 p.m.
Lord Ross of Newport: We have heard a very powerful speech from the noble Baroness, Lady Castle, with which I cannot compete. I put my name to the amendment of the noble Baroness, Lady Gardner of Parkes, because I was asked to do so by my local planning officer and I was sent a booklet which other Members of the Committee may have received.
I draw attention to what I believe is another typical breach of planning law; namely, the creation of caravan parks. For example, a man buys land fairly cheaply and then applies for permission to build a beautiful house in an area of outstanding natural beauty. That permission is refused. He then splits up the land into small pieces and starts to sell them off. Before long, mobile homes are put on to the land. There is a vivid description on the last page of the booklet of what has happened. I believe that that took place in Kent. It is still going on.
I must admit that having put my name to Amendment No. 12, I rather prefer Amendment No. 19 because that amendment states:
"It shall be an offence to construct buildings, to alter buildings or to change the use of land".
That is rather important and would cover the case of a man who wishes to split up the land and sell it off in small pieces. Why should that not be an offence? As the noble Baroness, Lady Castle, quite rightly said, if we who live in areas of considerable beauty in this country wish to build on to our houses, that must be done in a sympathetic style to that which already exists there. If it is stone, then stone must be used. If the building has a slate roof, the owner must go to

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great expense to obtain Welsh slates. And yet, one can look down the road and see that a house has been constructed, and it is then claimed that it is a barn. There was such a case in the newspapers the other day. I believe that the gentleman in question is in fact losing that case, thank goodness! However, that is hideous. Of course people living in that area have become very annoyed and the planning officer has become totally frustrated.
The noble Baroness, Lady Gardner, mentioned for sale boards. I must confess that I am an ex-estate agent. Actually, I was a chartered surveyor but every time I rose to my feet in the other place, Dennis Skinner would say, "another bloody estate agent". After the third occasion, I put my hand on his shoulder and said, "Actually, Dennis, I am a chartered surveyor". He said, "That's what I said, another bloody estate agent". After that, I gave up.
It is now an offence to have more than one for sale board on a property, as I understand it. That law is being obviously flouted. I am constantly seeing properties which have three or four boards and nobody seems to be doing anything about that. One prosecution was taken up earlier on and nothing has happened since. I accept totally that this Bill toughens up enforcement procedures which I very much welcome. However, I am worried that the authorities do not have sufficient enforcement officers to do the work. That is one of the problems.
The biggest way of getting round the law is to say that the property is to be an agricultural cottage. That is nonsense. We should be very careful indeed before giving planning consents to someone for a cottage for an agricultural worker or somebody who is retiring. I have some sympathy with that, but what happens when the retired farmer dies or the cottage is no longer required? Enormous pressure is put upon the planning authority to lift that clause. If it is not lifted then the place remains empty. Somebody then comes along and does such ridiculous things to the property that in the end the planning officer must recommend to the committee that permission may as well be given. I know that that happens time after time. That is a flagrant abuse.
I do not believe that the amendment in the name of the noble Lord, Lord McIntosh, is good enough because that refers to enforcement procedures and there will be no criminal offence. As I understand the position, if one goes against tree preservation orders and trees are pulled down—and not enough people are prosecuted in that respect—then that is a criminal offence and one can be fined or sent to prison. A farmer in Kent was sent to prison for that flagrant abuse. However, if one puts up a building, the enforcement notice procedure must be followed and that may take many months or even years. Therefore, we should grab this opportunity, deal with this flagrant abuse and write something into the Bill to make such abuse a criminal offence.
Lord Brightman: I should like to address Amendment No. 12 which I am disposed to support. I prefer it to Amendment No. 19 because it is more comprehensive. Amendment No. 12 provides that,
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"A person who initiates or carries out development so as to constitute a breach of planning control shall be guilty of an offence".
The Committee may feel that a person who deliberately flouts the planning law ought on that account to be liable to prosecution. Though I appreciate the objections adumbrated by the noble Lord, Lord McIntosh of Haringey, I am not inclined to accept those objections.
I invite the Committee to read paragraph 23(1) of the report by the District Planning Officers' Society, which states that making unauthorised development an immediately punishable offence would be a strong added deterrent to those who seek deliberately to flout the planning laws and make others suffer by their actions.
We have all heard dreadful stories of developers who deliberately defy planning controls. Such an act is a wrong against the public; it is therefore an act against which the public ought, in my opinion, to be protected by the criminal law. I invite the Committee to support Amendment No. 12.
Baroness Carnegy of Lour: I was not present at the Second Reading debate. I could not be in the House and did not take part. But I have been listening to this debate with great interest. Like the noble Baroness, Lady Castle, I too have been a sufferer both in the area where I live in Scotland and in London. I have suffered also as a councillor on a council other than the one which was the local planning authority when the decisions of the planning authority were breached and the district council would not do anything about it. I was the receiver of complaints.
I was glad to hear both my noble friend Lady Gardner of Parkes and the noble Lord, Lord McIntosh, indicate that these were probing amendments. It is an important issue but also a difficult one. The reason why it is difficult was brought out by my noble friend Lady Gardner when she pointed out that it is possible to be caught out by a mistake when, for example, altering a house without planning permission. One may not realise that planning permission is needed.
I have known many examples of people caught by an innocent mistake. It is only fair that one should have two bites at the cherry; that initially it should not be a criminal offence. The breach is first dealt with by the planning system and then, if one offends against an injunction, it becomes a criminal offence. That means one is brought to realise what one has done before going wrong.
To make breaching the planning law an automatic offence is too fierce and also very unfair on a number of people. That does not mean that the kind of example that I have known in Westminster recently is not something we want to stop. It is monstrous and should not be possible. But there is another way. I agree with the noble Lord, Lord McIntosh, that one should hesitate before creating an extra criminal offence. One should be quite sure that it is the right and only way.
I hope that my noble friend the Minister will read extremely carefully what has been said. She may then

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say that the Government will look harder at what is in the Bill and see whether there is a better way. I hope that none of the amendments will be pressed this evening, and that out of all the arguments will come a better solution.
5.45 p.m.
Baroness Blatch: Clause 1 implements Recommendation No. 2 of the Carnwath Report substantially along the lines recommended in the report, as was pointed out by the noble Lord, Lord McIntosh. The new contravention notice will enable planning authorities, when they suspect—that is an important word —a breach of control on land in their area to obtain information about it; and, if practicable, to secure co-operation from the person responsible for the suspected breach without recourse to any formal enforcement action. It is meant to be a fairly informal preliminary process, in advance of any decision as to whether formal enforcement action is expedient in the circumstances.
Amendment No. 3 would take the contravention notice process into the realm of formal enforcement action by enabling the planning authority to require remedial steps to be taken. There are a number of objections to this proposal. First, it would fundamentally alter the essentially preliminary nature of the contravention notice. We think that that would greatly reduce the likelihood that the recipient of the notice would be willing to discuss matters with the planning authority. Secondly, by requiring it to be remedied, it appears to prejudge the question whether what is taking place on the land amounts to unlawful development. There is no right of appeal to the Secretary of State against a planning contravention notice so the recipient has no opportunity to contest the planning authority's suspicion that a breach of planning control may have occurred. We therefore think that a remedial requirement would be unacceptable as part of this procedure.
Thirdly, if the recipient of the contravention notice carried out the requirements specified in the notice as a result of the new paragraph (a) and it was subsequently found that no breach of planning control had occurred, it would be reasonable to expect the recipient of the notice to be entitled to seek financial compensation from the planning authority for any loss he had incurred. We are extremely reluctant to complicate what is intended to be a relatively straightforward and informal process with provisions for the payment of compensation when it is found that no unlawful development has taken place.
I turn to the amendments tabled by my noble friend Lady Gardner. I listened to the debate very carefully, and I promise my noble friend Lady Carnegy that I shall certainly read with great interest during the period between now and Report stage all that has been said to these amendments. First, it needs to be said that, when the Carnwath Report was being compiled, evidence was taken from the Association of District Councils. I believe my noble friend misquoted when she mentioned the Association of District Councils. In fact it was the District Planning Officers' Society
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which produced the report to which my noble friend referred. But, even if there is another report from the ADC about which I do not know, the ADC was nevertheless consulted. If Members of the Committee will turn to page 92 of the report they will see that not only the ADC but also the District Planning Officers' Society were consulted. Whether Professor Carnwath changed his mind in the light of that information I am not able to say.
Many of the examples given were very serious. I am tempted to ask why planning officers who were asking for these matters to be made criminal offences were not taking the very action to which the noble Baroness, Lady Castle, referred. It is not powers and more law that are required. It is for planning officers to use the powers that are at their disposal.
I can almost hear my noble friend Lord Renton saying, "A moment ago we fought off an amendment that would require local planning officers to use the powers at their disposal". But we should continue to have regard to the very people who unwittingly, innocently, inoffensively do something very minor to their house. Someone may install in the wall at the side of his house a window for which he was not aware he needed planning permission. When it is reported by a neighbour or found out by one means or another a planning officer may go along and have a quiet word with the householder. The planning officer could invite him to apply for proper planning permission, to cease the practice or to remedy the situation. All that informal process is possible without making the offence automatically a criminal one.
The amendment would introduce a new Section 171E into the 1990 Act making it an offence for a person to initiate or carry out development constituting a breach of planning control. There would be a maximum summary penalty of £20,000 and provision that the court shall, in determining the amount of any fine, have regard to any financial benefit accruing or likely to accrue from the offence. A person charged with this offence would be specifically prohibited from raising in his defence to any prosecution the contention that planning permission should be granted for the development in breach of planning control.
These are heavy-handed provisions. They would fundamentally alter the present balance of the development control system and remove its essential flexibility. For the first time it would immediately become a criminal offence to carry out any development, however trivial or minor, in breach of planning control. We understand my noble friend's reason for tabling this amendment. It clearly represents the views of many members of planning committees in some district councils and representatives of professional planning officers in those councils. They consider that it is essential to make this fundamental change.
I expect that we have all seen the report of the District Planning Officers' Society to which I referred a moment ago, making unauthorised development an offence. The report cogently states the arguments in favour of this amendment and supports them with

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some case studies illustrating the shortcomings of the present enforcement system. We also understand the seriousness with which the amendment has been supported. We certainly do not condone breaches of control or excuse a developer's behaviour in those case studies. But we think that the District Planning Officers' Society has not demonstrated the need for so fundamental a change.
I remind Members of the Committee that, after thorough and independent examination, Mr. Robert Carnwath QC recommended against criminalisation in his report Enforcing Planning Control. Members of the Committee will judge for themselves the strength of the opposing arguments. The Government's view is that, as with the positive recommendations made in his report, Mr. Carnwath's negative recommendation on this issue should be accepted. We are strengthened in this view by the knowledge that other professional bodies whose opinions we respect as much as those of the District Planning Officers' Society do not support criminalisation.
For example, we understand that the Royal Town Planning Institute, the Royal Institution of Chartered Surveyors, the Law Society and the Local Government and Planning Bar Association, all oppose criminalisation. Their views are based on their members' experience of the practical operation of planning control throughout the country.
We cannot accept that even the most minor building operation, change of use or technical breach of planning control, should be open to prosecution in the magistrates' courts. Frankly, it is no use for the planning officers' society to say that planning authorities would be careful to limit prosecutions to the most serious and clear-cut offences. The fact is that any development carried out in breach of planning control would be a criminal offence in every case. Some planning authorities might choose to set an example by prosecuting minor or trivial offences. There appears to be nothing in the amendment to prevent the bringing of a private prosecution.
Do we really want to set neighbours against each other it the magistrates' courts over such matters as a window put in the wrong place in the side of a house or a boundary wall which has been built too high? Do we want to see a prosecution for setting up an innocuous business in somebody's home? In the 'presentation of this amendment by my noble friend I detected her desire to have some flexibility in these matters. It is possible that we can discuss flexibility further.
Magistrates' courts would have to decide whether a breach of planning control had occurred. That would involve them in a highly complex and legalistic area of legislation. The present enforcement system is careful to avoid giving this jurisdiction to magistrates. Instead, whether a breach of planning control has occurred is usually decided on an enforcement appeal to the Secretary of State where a planning inspector can take a decision consistent with judicial authority and case law. If that decision is defective, an appeal to the High Court can be made under Section 289 of the 1990 Act. That system ensures a degree of consistency
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in decisions of this kind which I suspect that magistrates' courts would find difficult to achieve. We should not forget the problems that the courts had with a similar jurisdiction before it was transferred to the Secretary of State by the Caravan Sites and Control of Development Act 1960.
Although the Government cannot accept this amendment, the enforcement provisions in Clauses 1 to 11 and 27 to 36 of the Bill are evidence of our determination positively to strengthen and improve the present enforcement system so that criminalisation in every case is not necessary. For some breaches of control the new injunctions provided in England and Wales by Clause 3 will provide the most effective remedy. For other cases where an activity must be halted at once the improved stop notice provisions in Clause 9 will provide the means. When a planning condition is ignored, the breach of condition notice procedure contained in Clause 2 will be immediately available. When anyone refuses to carry out the requirements of an enforcement notice or ignores the prohibition in a stop notice, the exceptional summary maximum penalties in Clauses 8 and 9 signal clearly to the courts that Parliament regards these as potentially most serious offences.
I appreciate that my noble friend's amendment will not detract from the new powers that we are proposing for planning authorities. Criminalisation would be an addition to our proposals. There is a vital distinction between my noble friend's and the Government's approach on this issue. We prefer to give planning authorities a selective remedy for each enforcement problem based on the practical experience of planning control which Mr. Carnwath has distilled in his report. Instead of approaching planning control on the basis that whenever a breach occurs the person involved is a potential criminal, we prefer to give planning authorities a complete and effective enforcement tool kit from which they can choose the right tool to deal with the particular breach of control.
It is a pragmatic and cost-effective approach to the enormous range of planning control issues which local authorities face. I hope that my noble friend is persuaded that the Government's carefully considered and comprehensive approach deserves her support. In our view similar arguments apply to Amendment No. 19. While I understand my noble friend's intention regarding Amendment No. 20, in the Government's view its effect is entirely unsatisfactory and illogical. It is a fundamental principle of our land law that anything lawful may be done on land. It is a fact of life that lawful development may benefit some neighbours and disadvantage others. But subject to their having a remedy under the general law such as for breach of covenant or nuisance, those neighbours have no claims against the owner.
The amendment appears to change that but only for retrospective permission. That is an illogical distinction. Whether or not the application is retrospective the planning authority should follow the same consideration process. If as a result of that process a decision on planning merits is acceptable for the development whether proposed or already carried

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out, no question of compensating neighbours of the development should arise under planning law. We regret that we cannot accept Amendment No. 21 because it would require planning authorities to take into account, in determining retrospective planning applications, a matter which is not a material planning consideration; namely, the mere fact that the application was not made before the development was carried out.
Section 70 of the 1990 Act specifies the considerations which the planning authority has to take into account when determining whether to grant planning permission. These are the provisions of the development plan so far as it is material to the application, and to any other material considerations which are construed as meaning any other material planning considerations. We see no good reason why the fact of retrospection should be a material consideration. It is not directly relevant to the decision on planning merits. It would be particularly harsh to take account of retrospection where someone genuinely did not realise that planning permission was required or that they had been professionally advised that planning permission was not needed and had acted on that advice. In that respect, we should bear in mind that some development without planning permission proves acceptable and should not be penalised. With that rather lengthy explanation, I hope that Members of the Committee will be able to withdraw their amendments.
Baroness Gardner of Parkes: I wish to clarify that point because I think we are at cross-purposes. I quoted from the Carnwath Report and not from that of the District Planning Officers' Society. I referred the noble Baroness to page 53 which discusses paragraph 2.3. That concerns the position of the Association of District Councils. When my noble friend thought I was referring simply to the district planning officers, that was not so. Mr. Carnwath was saying that unfortunately the report from the Association of District Councils was not available in time for him to take it into consideration.
It is the Association of District Councils in addition to the District Planning Officers' Society that now feels so strongly. I discussed these matters with the Association of Metropolitan Authorities. It is concerned with making these matters a criminal offence for everyone no matter how minor. That is the most sensitive issue. I shall read very carefully what my noble friend has said. I hope that there will be some point of compromise regarding the persons referred to throughout this debate who are flagrantly going ahead and doing what they wish without any thought. There should be consideration of that. I do not understand the point the noble Baroness was making in reply to Amendment No. 21. Her answer did not make sense to me. It seemed to contradict what had been said on the other matters.
I shall study her answers very carefully. I warn her, however, that I shall probably come back to the matter at the next stage. A number of noble Lords telephoned me today to say that, because they felt so
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strongly about the matter, they would have made a point of coming to vote had the intention been to call a Division. I assured them that I did not want them to travel long distances to do that when I felt that the issue had to be considered in much more detail. From that point of view I am happy to leave the issues raised by my amendments until the next stage.
6 p.m.
Lord Ross of Newport: Perhaps I may encourage the noble Baroness, Lady Gardner of Parkes, to do exactly that. I hope she will not yet throw in the towel. At the meeting with the Minister perhaps some way can be devised by which those who flagrantly breach planning can be prosecuted. No one wants to pick up the minnows. There must be a way in which they can be protected. Someone who has innocently done something should not be prosecuted. But I am convinced that the threat of prosecution and serious fines would stop these people doing what they are doing.
I recognise at once that the Government have gone a long way to improve enforcement procedures but such people could still spin them out. I have been told by my noble friend Lord Tordoff that a case involving a caravan site has been with the Minister for two years. The case has still not been decided. Such cases make people furious. If someone is told straight away that the matter will go to court there is a chance of stopping most of these flagrant breaches. I am not satisfied by the reply and I hope that more can be done.
Lord McIntosh of Haringey: Three distinct points of view have been expressed in this debate: one was mine—I think I was probably on my own in that regard. Another was the point of view eloquently expressed by noble Lords whose names are attached to Amendment No. 12 and indeed by the noble and learned Lord, Lord Brightman; and the third was the Government's point of view. They cannot all be right. I ask whether any of them is right.
I do not think that we have yet got to the bottom of the matter. We have not solved the problem of the difference between flagrant offenders and unwitting offenders. It is not solved by including the word "knowingly". I suggest to the Minister that ignorance of the law is no excuse. To say that something was done "unwittingly" is not a suitable defence for a breach of the law. I do not think "flagrantly" works because it does not mean anything very much. I see the noble and learned Lord, Lord Brightman, nodding. Therefore I do not think that anything about the offender should bring down the increased penalties which I believe all of us—at any rate all those who put down amendments—are convinced are necessary.
My noble friend Lady Hollis has just suggested that the nature of the offence should be considered and that the word "irreversible" ought to be brought into the provision. Perhaps we should be looking for a way of providing more rapid penalties for breaches which are irreversible rather than looking at the nature of the person committing the offence. That matter should be looked at between now and the next stage of the Bill.

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I am certainly not satisfied that the Government's procedures are good enough. Nor am I satisfied that it is wrong to do what we do in Amendment No. 3, which is to jump straight from the planning contravention notice to the power to cause the wrong to be put right. The procedure proposed by the Government of forcing the planning authority to go through the additional stage of an injunction and making breach of the injunction the only offence will slow matters down and will make it impossible to have effective; enforcement in serious cases. I do not think that the arguments used against my amendment were on the whole satisfactory. I understand the point that the planning contravention notice is meant to be of a preliminary nature, but there are occasions in planning law and in contravention of planning controls when there is no time for investigations of a preliminary nature. Something will have to be done and some way will have to be found to put that right.
On the basis that we do not yet have the ideal solution, and bearing in mind that there is a printing error in my amendment—there is an additional "it" in the penultimate line—I think it right to ask leave to withdraw the amendment. It is a matter on which I should 'very much like to talk to ministers and to the department before we reach the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
Lord Coleraine Lord Coleraine moved Amendment No. 5:
Page 2, line 34, leave out ("may") and insert ("shall").
The noble Lord said: In moving this amendment, to which the noble Lord, Lord McIntosh, has added his name, I shall speak also to Amendment No. 7 in the name of my noble friend Lady Blatch, which is among the other amendments grouped with this amendment. I say at the outset that the amendments tabled in my name have been so tabled with the assistance and briefing of the Law Society of England.
With this amendment we are still dealing with planning contravention notices. What is proposed to be the new Section 171C(4) of the principal Act provide; that the planning contravention notice may give notice of a time and place at which a person on whom the notice is served may come and talk to the planning authority and make representations about the notice which will be considered by the authority. Why is it permissive and not mandatory? The Carnwath Report suggested that it should be a mandatory part of a planning contravention notice.
At Second Reading my noble friend the Minister described the intentions behind the new planning contravention notice in the following way:
"the new planning contravention notice … is meant to encourage developers and authorities to talk to each other in the early stages of the process; so that instead of formal enforcement action having to be taken when communications fail, there is a real prospect of initiating discussion which results in agreement on how land is to be developed".— [Official Report, 27/11/90; col. 907.]
I should have thought that that was a clear reason for making the provision mandatory.
The Law Society takes the view that if a local planning authority initiates a planning contravention notice procedure, it should be obliged to pursue that procedure to its logical end and to offer a meeting with the person on whom the notice is served so that the person may make formal representations. The planning contravention notice procedure is designed to prevent what is at present a somewhat cumbersome enforcement procedure. It seems illogical for this provision to give the planning authority discretion as opposed to a duty.
The Law Society has been concerned about the penalty provisions provided for planning contravention notices. It believes that it would be a good idea for there to be some form of daily penalty. It is therefore with some interest that I shall listen to what my noble friend says when she moves Amendment No. 7.
I am neither a criminal lawyer nor practised in magistrates' court proceedings but I ask my noble friend whether Amendment No. 7 would allow a planning authority, every day after the expiration of 14 days, to serve a separate summons in order to produce a daily penalty by some back-door way. If that is not the effect, what is the effect intended to be? If that is the intended effect, it seems to me to be a very cumbersome procedure.
I should like to ask my noble friend whether there is some theoretical failing in the procedures. I see from the proposed new Section 171E(2) that it will be a defence for a person who is charged with an offence, in the case of a failure to provide information, to say that information which he did not hold at a certain time,
"was not reasonably accessible to him".
There are possible difficulties here because it may be that, during the 14 days allowed, the person on whom the notice is served will not have the required information. Let us suppose, for example, that he obtains it 14 days later when the authority is about to initiate proceedings against him. In such circumstances he would have committed an offence because he would not have any time or leeway under the provision in which to inform the authority that he has the required information. Such a situation would arise when the person did not obtain the information until almost immediately before the authority took proceedings against him.
I turn now to Amendment No. 8, tabled in the name of my noble friend Lord Stanley of Alderley. I understand that if Amendment No. 7 is successful, he will not be able to move his amendment. However, his amendment is a good one, or at least it would have been a good one. If the government amendment is accepted, it is all the more important that the 14-day period to which it refers should be extended to 28 days at the next stage of the Bill's proceedings. I support the spirit behind my noble friend's amendment. A 14-day period in which to obtain information is quite unsatisfactory and insufficient. I beg to move Amendment No. 5.
Lord Stanley of Alderley: There are two amendments tabled in my name in this grouping; namely,

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Amendments Nos. 8 and 11. For the convenience of the Committee I shall deal first with Amendment No. 8. As my noble friend said, Clause 1 introduces the concept of planning contravention notices, by means of which local planning authorities may oblige owners and occupiers of land to inform them about the uses of the land where it appears to the local planning authority that there may have been a breach of planning control.
As the clause stands, if a person fails to comply with the notice within 14 days he will be guilty of an offence and a penalty at level 3 will apply. As has been said, 14 days seems to me to be very severe. For example, people may be away on holiday—not that farmers have holidays, but I believe that other people do these days. The amendment would allow the period of 28 days in which to comply with the request. I should tell my noble friend that I understand that Amendment No. 7 refers to a 14-day period. However, I remind her that there is a precedent for 28 days, in that the enforcement notices requiring a breach of planning control to be remedied provide for a period of 28 days.
I should like now to speak to Amendment No. 11. Again, as the clause stands, a person charged with failing to comply with a planning contravention notice can plead that he took all reasonable measures to comply with the requirement or that the information required was not reasonably accessible to him. However, there is no defence available to him if he could not reasonably have been expected to respond to the requirement. For example, a person who is seriously ill may be taken to hospital just before the notice is served. The amendment provides that such a person may plead that he had a reasonable excuse. There is a precedent for this in Section 11 of the Wildlife and Countryside Act, which seems to be engraved upon my soul and which provides that you must clear snares every day unless a reasonable excuse can be given for not doing so.
6.15 p.m.
Lord Carmichael of Kelvingrove: I should like to express my support for the amendment of the noble Lord, Lord Coleraine. I also have in this grouping an amendment concerning Clause 27 which applies the same arguments to the Scottish section of the Bill. We have received representations from the Law Society of Scotland in the matter. The society considers that it is proper that those who receive planning contravention notices should be told when and where they can either offer to rectify the contravention or make representations about it. The content should not be left to the discretion of the planning authority as this could easily result in bindings contrary to what we would all consider to be natural justice; in other words, the unjustified imposition of controls without due process of law being observed. I know that there are always arguments about the words "may" and "shall", but in this case it is not the delaying form of words used in Committee in another place; it is a genuine attempt to improve the law. I support this group of amendments.
Lord Airedale: My only concern is with Amendment No. 5. In subsection (4) we have the
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contrast between the words "may" in line 1 and "shall" in the penultimate line, although they are both dealing with the same thing. The penultimate line reads:
"The authority shall give him an opportunity to make … representations at that time and place".
Those words refer back to "a time and place" in line 2 of the subsection. What sense is there in having a contrast between the words "may" and "shall" in two parts of the same subsection when they both refer to the same matter? I believe that the draftsman has nodded off for once and that he meant to use the same word in both cases. It would have been better to have inserted the word "shall" in line 1 so as to bring it into line with the wording at the end of the subsection.
Baroness Blatch: Amendment No. 5 in the name of my noble friend Lord Coleraine makes minor changes to the provisions of subsection (4) in the new Section 171C of the 1990 Act. I shall set aside the specific question which has just been asked because I believe that my noble friend will probably wish to say something on the detailed text of the amendment.
Amendment No. 12A would make it obligatory for the planning authority, whenever it serves a contravention notice, to give the recipient notification of a time and place at which the matters specified in paragraphs (a) and (b) of the subsection will be considered by the authority. That is not what we intend in the contravention notice procedure. Its purpose is to provide planning authorities with a reasonable measure of flexibility in deciding how the recipient of a contravention notice should be required to respond to it. It may not always be appropriate for the planning authority to require a response from the recipient of a notice in the terms for which subsection (4) provides. For example, the recipient may already have made a planning application (as in paragraph (a) of subsection (4)) which the authority has refused; and the purpose of the notice is to obtain an essential item of information to enable the authority to consider whether enforcement action is expedient. We prefer to leave such matters to the planning authority's discretion in each case, because it is best placed to decide how a recipient of a notice should be required to respond to it.
Amendments Nos. 7 and 13, which are government amendments, are designed to improve the offence provisions in the new Section 171 D of the 1990 Act and the new Section 83D of the 1972 Scottish Act so that the planning authority will be able to prosecute more effectively in the court of summary jurisdiction for any failure to comply with a requirement of the new planning contravention notice. The revised subsection (1) has broadly the same effect as the existing subsection (1) as far as the end of paragraph (a) of the subsection. That creates an offence where the person upon whom the new planning contravention notice has been served fails to comply with any requirement of the notice after the end of the 14-day period starting with the day upon which the planning authority served the notice upon that person.
In answer to the question asked by my noble friend Lord Coleraine, Amendment No. 7 allows the

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planning authority to charge for the day or days upon which the failure to comply continues. That gives the authority an essential flexibility to take account of the day, or days, upon which an offence is committed. It is not intended to create a separate offence on each day of the period on which the failure continues which can be separately charged.
The new subsection (1A) provides that the planning authority, when it lays an information in the court for an offence under subsection (1), may charge that the offence occurred on a particular day, or during any longer period of time it may select, in which the alleged non-compliance with the planning contravention notice Las continued. Subsection (1A) also provides that, following conviction of a first offence under subsection (1), a person may be convicted of a second offence, or subsequent offences, under that subsection by reference to any period of time following the preceding conviction for such an offence. I commend these two amendments to the Committee.
My noble friend's first amendment, Amendment No. 8, would extend from 14 days to 28 days the period within which the recipient of the new planning contravention notice must comply with any requirement of the notice if he is not to be liable to prosecution for an offence under Section 171D(1). We appreciate that a 14-day period is a relatively short period for this purpose. It was chosen because it is recommended by Mr. Robert Carnwath in his report. We have taken the view all along that this is a package of measures, and we have been as faithful to the report as possible.
I have to say that, while I understand my noble friend's reasons for proposing a longer period, it would build into this new contravention notice procedure the kind of delay that we are determined to avoid. Once a planning authority suspects that a breach of planning control is taking place, it is imperative that it is enabled to investigate it quickly and efficiently before deciding what formal enforcement action (if any) is expedient. Possible delay should not be part of that procedure from the very moment at which it starts to operate.
My noble friend's second amendment (Amendment No. 11) would add a new defence for a person prosecuted for failing to comply with a requirement of a planning contravention notice; namely, that the person prosecuted,
"had a reasonable excuse for failing to comply with the requirements",
of the notice. That would be in addition to the defence provisions already provided by Section 171D(2). Those provisions are that the person charged took all reasonable measures to comply with the requirement of the notice; or that he failed to provide the required information because it was not reasonably accessible to him.
We believe that the defence provisions already in new Section 171D(2) are apt and reasonable in the circumstances of this new offence. A defence provision based on a "reasonable excuse" for failing to comply with the notice would open the door to the raising of ingenious and plausible excuses which are more
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suitable to a plea in mitigation of the offence rather than a defence against conviction. The amendment, if accepted, would signal to the magistrates' courts that the offence was a trivial matter. I hope that it will not be pressed.
Baroness Hollis of Heigham: Before other noble Lords respond to the amendments they have tabled, perhaps I may ask the Minister's views on Amendments Nos. 10 and 16 which are not grouped with these amendments but which, nonetheless, if Amendment No. 7 is accepted would be cut across and obviated. Amendments Nos. 10 and 16 have the simplicity of introducing the "cab meter" principle of fines, given the clear nature of the offence. It would mean that for subsequent offences it would not be necessary to return to the magistrates' court for a retrial but merely for the application of the penalty. In that context, does the Minister care to comment on Amendments Nos. 10 and 16?
Baroness Blatch: It was always my desire to take Amendments Nos. 10 and 16 with the others. It was not my choice not to do so. The noble Baroness is of course right. There is a linkage. The amendments are not being discussed at the moment, but I am happy to respond to them if it is the Committee's wish that I do SO.
Baroness Hollis of Heigham: It is.
Lord Airedale: Has the Minister said anything about "may" and "shall" which are the sole topics of Amendment No. 5?
Baroness Blatch: The noble Lord is querying an amendment tabled by someone else. It is not a government amendment. Nevertheless in the course of speaking to the amendments I said that it may be possible that planning permission had been received. The "shall" referred to a different aspect of the matter altogether. "May" and "shall" are appropriate. They are not inconsistent one with the other.
As the noble Baroness has pointed out, Amendments Nos. 10 and 16 are related to government Amendment No. 7. We appreciate why Amendment No. 10 has been tabled. It is clearly necessary, when a person has already been convicted for the offence for which the new Section 171D provides, that the conviction for any subsequent offence should have regard to each day on which that second or subsequent offence is committed. We think, however, that the Government's amendment (Amendment No. 7) effectively achieves the result which the noble Lord seeks to achieve by his amendment. The Government's amendment enables any second or subsequent offence to be charged
"by reference to any day or longer period of time".
That means that the planning authority, in laying an information in the magistrates' court in relation to this offence, will be able to charge in respect of the day or days on which the offence was committed, following a previous conviction.
The same considerations apply to Amendment No. 16 to Clause 2. We propose a corresponding amendment which will achieve the same results.
Lord Coleraine: Is my noble friend saying that each day will be a separate offence?
Baroness Hollis of Heigham: It can be.
Baroness Blatch: The flexibility exists so that it could be.
Lord Monson: With regard to Amendment No. 8, will the Minister confirm that if a person is on holiday, as instanced by the noble Lord, Lord Stanley, a planning contravention notice cannot be served upon him? Must the notice be served in person or is it necessary merely to send it through the post? It makes a great deal of difference. If it is to be served in person, the Minister's reply answers the point. If it is merely to be sent through the post, when someone may be away, the noble Lord, Lord Stanley, still has a good case.
Baroness Blatch: I was expecting to be caught out long before this. I am sure that this will not be the first time. I cannot say what happens if it is not possible to find the person within the 14 days. However it looks as though I may well have an answer before I sit down. I am advised that the practical answer is that the person who cannot comply through illness should notify the planning authority, which will be able to exercise discretion whether to prosecute in those cases. We would not expect an authority to prosecute someone who is genuinely unable to reply through sickness, being on holiday or being unavailable within the 14 days.
Lord Stanley of Alderley: My noble friend Lord Coleraine may wish to conclude, but perhaps I might say just two things about the two amendments to which I spoke. My noble friend's last remark confuses me. If that is her attitude, I do not know why she does not accept the 28 days. I am not the least bit happy with the philosophy that the Committee must slavishly follow the report. If that is the case, I suggest that we all go home.
Baroness Blatch: Perhaps my noble friend will allow me now that I have the benefit of advice on the point of when a person is unobtainable. We say that where the person is obtainable there should be a speedy reaction to the problem. There are clearly occasions when someone may be unobtainable. It may be for days, weeks or even months. Action could not be taken until the person was available to be pursued. I do not believe that it is confusing. The firmness and speediness of the action is catered for in the Bill. The flexibility to defer if the person is unobtainable also exists.
Lord Stanley of Alderley: I shall have to read the Bill to see where it says that. My other point relates to Amendment No. 11 and the reasonable defence. I cannot understand why that reasonable defence is not appropriate in the Bill when it is appropriate in other Acts of Parliament. Are we going to now take it out of other Acts of Parliament? I cannot see the difference. However I shall look carefully at my noble friend's remarks and decide what to do when we reach Report.
Lord Coleraine: I am grateful to my noble friend for answering the textual criticisms made by the noble
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Lord, Lord Airedale, especially after having suggested that I do so. I should have been in grave difficulty in doing as well as the noble Baroness did.
I am not happy with the reply that we received on Amendment No. 5, but I shall read what my noble friend said. She suggested that Carnwath was to be taken as one bundle, or that was the effect of her remark. In Amendment No. 5 she is departing from what Carnwath recommended, which was that it should be obligatory on the planning authority to include this provision in the notices.
The noble Lord, Lord Carmichael, referred to pressures of natural justice. I should not go so far as to suggest that natural justice comes into the matter at all but it is desirable that the provisions should be mandatory because anyone who does not find himself presented with the opportunity to address the planning authority will feel that he has been denied justice. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
[Amendment No. 6 had been withdrawn from the Marshalled List.]
The Deputy Chairman of Committees (Baroness Cox): I must point out that if Amendment No. 7 is agreed to, I shall be unable to call either Amendment No. 8 or Amendment No. 10.
Baroness Blatch Baroness Blatch moved Amendment No. 7:
Page 3, line 16, leave out from ("If") to end of line 25 and insert ("at any time after the end of the period of fourteen days beginning with the day on which a planning contravention notice has been served on any person, he has not complied with any requirement of the notice, he shall be guilty of an offence.
(1A) An offence under subsection (1) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under that subsection by reference to any period of time following the preceding conviction for such an offence.").
On Question, amendment agreed to.
[Amendment No. 8 not moved.]
[Amendment No. 9 had been withdrawn from the Marshalled List.]
[Amendments Nos. 10 and 11 not moved.]
Clause 1, as amended, agreed to.
[Amendment No. 12 not moved.]
Clause 27 [Planning contravention notices]:
[Amendment No. 12A not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 13:
Page 32, line 28, leave out from ("If") to end of line 37 and insert ("at any time after the end of the period of fourteen days beginning with the day on which a planning contravention notice has been served on any person, he has not complied with any requirement of the notice, he shall be guilty of an offence.
(1A) An offence under subsection (1) of this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under that subsection by reference to any period of time following the preceding conviction for such an
On Question, amendment agreed to.
Clause 27, as amended, agreed to.
Clause 2 [Enforcement of conditions]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 14
Page 4, line 37, at end insert:
("6A) If a magistrates' court is satisfied that a person responsible is in breach of a notice under subsection (6) above, the court may make an order requiring the person to comply with the notice within a time specified in the order.").
The noble Lord said: I listened with great interest to the Minister saying a few moments ago that she treated the Carnwath Report as a package and that the Government sought to implement the package so far as possible. Amendment No. 14 introduces a Carnwath recommendation which the Government have not proposed. I assume therefore that on mature consideration the Government will wish to accept our amendment. In it we strengthen the breach of condition notice so that we can give magistrates the power to order those who contravene a planning condition to comply with the breach of condition notice. The analogy that we use is the abatement of noise procedure in Part III of the Public Health Act 1936. That will be fresh in the memories of Members of the Committee who took part in the debates on the Environmental Protection Bill.
In his review, Mr. Carnwath took the view that magistrates should have the power to reinforce the breach of condition notice. As the clause stands, magistrates only have the power to impose penalties for non-compliance with a notice. We believe that it is important that there should be the power to enforce the conditions rather than the cruder power of imposing penalties of non-compliance. In the light of the Minister's earlier statements, I hope that she will see fit t D agree to the amendment. I beg to move.
The Lord Advocate (Lord Fraser of Carmyllie): The noble Baroness will not see fit and I regret that neither will I. While we appreciate that Amendment No. 14 is based on a suggestion in the Carnwath Report, we have concluded that it is not necessary to include in Section 187A an order-making power for the magistrates' court on the lines of the amendment. If someone continues, in breach of a breach of condition notice, he can be prosecuted for a second and any subsequent offence until he complies with the notice. In an extreme case of non-compliance, the planning authority could seek an injunction in the High Court or county court using its new power in Clause 3 of the Bill.
We also think that it would be unsatisfactory to create what would amount to a dual jurisdiction for enforcing the breach of condition notice which would be likely to result if the magistrates' court had the power to make an order. Any such order might in practice conflict with the requirement specified by the planning authority in the breach of condition notice.
On balance, we think it best to maintain the normal approach to enforcement offences where the court's jurisdiction is kept to the imposition of a penalty which the court considers appropriate to the gravity of the offence. We believe that it would be very unsatisfactory for the court to issue an order in addition to the breach of condition notice itself. It
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would bring the court directly into the enforcement process, instead of leaving enforcement to the planning authority which knows the details of the planning permission it has granted and what is needed to secure compliance with it. I hope with that explanation the noble Lord will feel that he can
withdraw the amendment.
Lord McIntosh of Haringey: I have some sympathy with the argument that it is for the planning authority to be responsible for enforcement and for the court to be responsible for penalties. Certainly I do not propose to press the amendment solely on those general grounds. I find it a little strange that the noble and learned Lord the Lord Advocate suggests that the conditions imposed by the magistrates' court should differ from or be in conflict with the conditions imposed by the local planning authority. I should have thought it would be easy for that authority to make it clear to the court what conditions are required to be imposed. It would be quite an exceptional case if the magistrates were unable or unwilling to follow the guidance given to them by the local planning authority in terms of the conditions.
In the amendment we sought a short cut to avoid a to-ing and fro-ing between the courts, the planning authority and the person infringing planning conditions. I should still have thought that our procedure was simpler than the repetitive offence which is proposed by the Government. However, I shall read carefully what the noble and learned Lord the Lord Advocate said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: I must point out that if Amendment No. 15 is agreed to, I shall be unable to call Amendment No. 16.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 15:
Page 4, line 43, leave out from ("offence") to end of line 47 and insert:
("(8A) An offence under subsection (8) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under that subsection by reference to any period of time following the preceding conviction for such an offence.").
The noble and learned Lord said: The purpose of the two government Amendments No. 15 for England and Wales and No. 17 for Scotland is to improve the offence provisions in the new Section 187A of the 1990 Act and the new Section 87AA of the Scottish 1972 Act so that the planning authority will be able to prosecute more effectively in the court of summary jurisdiction where the person responsible is in breach of the new breach of condition notice.
These amendments closely follow the approach which the Committee has already considered in corresponding amendments to the offence provisions in Clauses 1 and 27. The new subsection (8A), removes any doubt that the planning authority, when it lays an information in the court for an offence under subsection (8), may charge that the offence occurred

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on a particular day or during any longer period of time for which the person responsible has allegedly breached the notice.
Subsection (8A) also provides that, following conviction of a first offence under subsection (8), a person may be convicted of a second offence or subsequent offences under that subsection by reference to any period of time following the preceding conviction for such an offence. These amendments are necessary to enable planning authorities to prosecute effectively for a breach of the new notice. In view of what was said earlier during previous debates, I am sure that this will be welcome. I beg to move.
On Question, amendment agreed to.
[Amendment No. 16 not moved.]
Clause 2, as amended, agreed to.
Clause 28 [Enforcement of conditions]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 17:
Page 34, line 6, leave out from ("offence") to end of line 10 and insert: ("(8A) An offence under subsection (8) of this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under that subsection by reference to any period of time following the preceding conviction for such an offence.").
On Question, amendment agreed to.
Clause 28, as amended, agreed to.
Clause 3 [Injunctions restraining breaches of planning control]:
[Amendments Nos. 17A to 17F not moved.]
Lord Ross of Newport Lord Ross of Newport moved Amendment No. 18:
Page 5, line 24, at end insert:
("Undertaking in damages: public interest.
187C. Where a local planning authority applies for an interlocutory injunction in pursuance of proceedings under section 187B above the court shall only require the authority to give an undertaking in damages where the defendant shows that it is in the public interest for the court to require such an undertaking.").
The noble Lord said: A contested action for an injunction can take some time to be heard. In the meantime, the damaging operation or use can continue until the case is finally dealt with unless the applicant has obtained an interlocutory injunction to stop the operation or use pending trial.
However, in the vast majority of cases a court will require an applicant for an interlocutory injunction to give an undertaking that if it grants the application he will pay the defendant damages if the main action fails. This could be loss of profits etc. over a year that in some cases could exceed £1 million. Thus councils are wary of taking action, because through no fault of theirs the case may fail at trial and they would be liable for substantial damages. At present courts do not require undertakings from the Crown where proceedings are brought to enforce the law. Recently this principle has been extended to local authorities, but very cautiously.
This amendment would not bar a court from requiring an undertaking in every case. There may be cases where the public interest requires an authority to compensate someone against whom it brings proceedings for an injunction. But the burden should be on the defendant to show that an undertaking is really necessary. I beg to move.
Viscount Astor: I regret that we cannot accept this amendment. I understand that the present practice in regard to the grant of an interlocutory injunction is to give the court a discretion when to require an undertaking from the party to whom an injunction is granted. An undertaking can be required even in a case where the defendant is not present; for example, on an ex parte application. This procedure enables the court to strike what it regards as the fair balance between the interest of the plaintiff and the interest of the defendant, depending on the circumstances of each case, when judgment is given.
This amendment would fetter the discretion of the court and remove the court's discretion to protect a defendant's interest on an ex parte application. It would also reverse the present burden of proof in injunctive proceedings which is on the plaintiff to show why an undertaking should not be given.
I appreciate why the noble Lord is concerned to protect the interest of the local planning authority in injunctive proceedings by this amendment. On reflection, I hope he may conclude that the effect of the amendment is to go too far in that direction and to expose the defendant to an unfair risk. It is important that this new injunctive procedure in the planning Bill should be seen to operate fairly and should not, unlike other similar procedures, fetter the court's discretion in these matters. Therefore, I hope the noble Lord will not pursue his amendment.
Lord Ross of Newport: I am sure that the Minister will be relieved to know that I do not intend to pursue this amendment. I am a little sorry about the response, although I half expected it. I think that we are both delving into legal matters about which I am not experienced and I suspect that he is not either. This is an attempt to encourage local authorities not to be put off and to take out injunctions where it is necessary that they should do so. Having been involved with a local authority, I can remember so often getting legal advice saying "We may not do this" and "We should not proceed on that". I think it is one of the reasons why they would never proceed, if they could possibly avoid it, with compulsory purchase orders. But I have to accept that reply, and no doubt my advisers will take a look at it and see whether it is worth while coming back again. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 3 shall stand part of the Bill?
Viscount Bledisloe: Am I in order in inquiring of the Minister whether there is a drafting error in subsection (2) of the new section? Subsection (1) provides that a

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local authority can make an application for an injunction when it thinks it appropriate to do so. Subsection (2) provides that on an application,
"the court may grant such an injunction as they think appropriate for the purpose of restraining the breach".
I believe I am right in saying that a court is singular and surely, nonetheless, what is intended is that it should be at the court's discretion as to what it thinks is appropriate and not at the local planning authority's. At the moment, the "they" applies to the local planning authority, and I should be fairly horrified to think that the court had to grant an injunction which the local planning authority thought was appropriate. I hope that I have spoken slowly enough to receive an answer to that unfair and unworried question.
Viscount Astor: We believe that the clause is correct, but we shall look at it and take counsel's advice.
Clause 3 agreed to.
[Ammdments Nos. 18A to 21 not moved.]
6.45 p.m.
Clause 4 [Time limits on enforcement action]:
Lord Coleraine Lord Coleraine moved Amendment No. 22:
Page 6, line 28, leave out ("or purported to take").
The noble Lord said: Clause 4 deals with time limits on enforcement actions and it seeks to insert a new Section 171B into the principal Act. There are four subsections. Under the first of the two subsections, breaches of certain planning controls are made free from enforcement action after the end of a period of four years, and by subsection (3) other breaches of planning control are free of enforcement action after 10 years.
It is when we come to subsection (4) that a query arises. Subsection (4) provides that the preceding subsections do not prevent:
"(b) making further enforcement action in respect of any breach c f planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach".
The point of my amendment, which is to strike out "or purported to take", is to find out what these words are supposed to mean and if they are meaningless to persuade my noble friend that they should be removed from the Bill.
To go back to the new Section 171A, this states in subsection (2):
"For the purposes of this Act—

(a) the issue of an enforcement notice … or

(b) the service of a breach of condition notice …

constitutes taking enforcement action".
That seems to me to be perfectly clear. I do not see how you can have the purported issue of a purported enforcement notice or the purported service of a breach of condition notice. These words should be removed from the Bill and I shall be very interested to hear what my noble friend has to say. I beg to move.
Viscount Astor: The purpose of including the words which the amendment proposes to omit is to deal with
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the situation where the planning authority has issued an enforcement notice but it has proved to be invalid for some reason. For example, the result of an enforcement appeal to the Secretary of State may be that the notice is quashed because it proves to be fundamentally defective. In these circumstances, we think it is appropriate for the planning authority to have a further opportunity to issue a notice which is not defective or deficient in any respect.
We propose in paragraph (b) of subsection (4) that there should be a period of four years, running from the date on which purported enforcement action was taken, during which the planning authority would be able to take further enforcement action in respect of the same breach of planning control.
We think that this is a necessary safeguard, which should be included in the time-limits provisions, to enable planning authorities to take enforcement action in the circumstances I have described. Without a provision on these lines, a planning authority could be prevented from taking enforcement action by a deficiency in the first notice it issues. I hope therefore that my noble friend will accept that the words he wishes to omit should remain in subsection (4)(b) of new Section 171B.
Lord Coleraine: I shall consider what my noble friend has said with my advisers before deciding what to do with the measure. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 23:
Page 6, line 29, at end insert:
("(5) For the purposes of subsection (1) above, the Secretary of State shall, after consulting such persons as appear to it to be concerned, issue regulations specifying the circumstances in which operations are to be regarded as substantially completed.").
The noble Baroness said: I shall be brief. The point of Amendment No. 23 is to discover what the words "substantially completed" may mean. Clause 172 of the recodified Act refers to all breaches of planning control as being immune after four years from the date of the breach. In this Bill there is a useful separation between a change of use, for which an instant breach is clear cut, and a development which may occur over a period of time. In the latter case the phrase "substantially completed" applies. I believe that local authorities would find it helpful if the Secretary of State were to issue guidance after appropriate consultation. Will the Minister indicate whether that will follow? I beg to move.
Lord McIntosh of Haringey: I drafted Amendment No. 23 which has been ably moved by my noble friend. I should make it clear that the use of the word "it" with reference to the Secretary of State is deliberate. This implies no disrespect to Mr. Michael Heseltine who is an old friend of mine. However, I believe the time has come when we should make a deliberate attempt to remove sexist language from our legislation. That is the intention of the amendment.
There are a number of alternative ways of achieving that objective. It has been suggested that we should

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use the words "he or she" on every occasion. I believe that would be extremely clumsy. The other alternative is to use the words s(he) or s/he. I do not find that alternative very attractive either. Whenever possible we use the plural rather than the singular in order to avoid sexist language in our writing. I hope that we have got away from using sexist language in our informal language as far as possible.
I suggest that there is a good precedent to be found in a number of states in the United States of America where the word "it" is used when referring to the Secretary of State. As is frequently pointed out, the Secretary of State is an office and not a particular person. When Mrs. Margaret Thatcher was Secretary of State for Education, it was not incongruous to refer to the Secretary of State as "he" or "him". No one thought that that was peculiar as one was referring not to an individual but to an office of state.
It is also the case that in legislation the word "person" is used to refer not only to an individual but also to an organisation or a company. That organisation or company is referred to as "him" or "he". We are just as far away from rational thinking when we use the word "person" when referring to the Secretary of State or any other individual. If we wish to abolish sexist language from legislation, it seems that the word "it" is a logical and rational term to use when referring to a person or to a Secretary of State. That may seem a strange innovation to the Committee, but I believe it would rapidly become accepted and would cause no difficulty whatever. It would free us from the quite unnecessary and damaging charge of sexism in our language.
Viscount Astor: I understand that the word "it" is an attempt to use non-sexist language. However, I am sure the noble Lord knows that this is unnecessary because the provisions of Section 6 of the Interpretation Act 1978 state that:
"unless the contrary intention appears, words importing the masculine gender include the feminine",
that is, the masculine embraces the feminine.
Lord McIntosh of Haringey: That is exactly what I am objecting to and that is why we are introducing this provision.
Viscount Astor: First, I must say that I am delighted, being of the masculine gender, to be able to embrace the feminine. The reference to "substantially completed"—that is, substantially completed by the end of the four-year "immunity" period following the date on which the operations started—is taken directly from the recommendation in the Carnwath Report on which the revised provisions for statutory time limits on enforcement action by the planning authority are based. We think this is a reasonable approach, bearing in mind the variety of circumstances with which planning authorities will be dealing. The question whether particular operations have been substantially completed will be—as is usual in planning jurisdiction—"a matter of fact and degree" for planning authorities, and the Secretary of State on appeal, to decide.
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We appreciate the noble Lord's wish to help planning authorities by having a more precise definition specified in regulations made by the Secretary of State; but we seriously doubt whether any such regulations could satisfactorily define what is meant by "substantially completed". If it would be helpful, we would be prepared to consider issuing guidance in a DoE and Welsh Office circular, following enactment of the Bill, about the intention of these provisions, giving some indication of what is meant by the words "substantially completed". We would consult interested organisations, including the local authorities' associations, about any such guidance. I hope therefore that the noble Lord will not press for a regulation-making power on this point as we see immense practical difficulties in that approach.
Baroness Hollis of Heigham: I thank the Minister for that extremely helpful response which we welcome. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 29 agreed to.
Clause 5 [Enforcement notices]:
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 24:
Page 6, line 37, leave out from beginning to end of line 45 and insert:

("(1) Where it appears to the local planning authority that there has been a breach of planning control they may—

(a) issue a notice (in this Act referred to as an "enforcement notice") or

(b) grant planning permission, either unconditionally or subject to such conditions as they think fit.

(2) Where an enforcement notice is issued it shall be served —")

The noble Baroness said: This is a rather more substantial amendment. The concern of the Bill throughout—this was also the theme of the Carnwath Report—is to bring all development activity, including desirable activity, within the framework of planning law. For all such activity the proposers must seek and obtain authorisation. At the moment the only tool that planning authorities can use is the enforcement procedure. That was designed to regulate the undesirable and unacceptable. Now local authorities have to use it for acceptable but unauthorised activities. We do not have any other method of progress.
We seek a mode of bringing within the planning framework those who are law abiding enough to seek both planning permission and pay fees. It seems sensible therefore to introduce a non-punitive way of making the planning system apply fairly to all. That is a move that Carnwath desires. The amendment covers not only an enforcement notice but also retrospective planning permission. I hope the Minister will accept the amendment. I beg to move.
Baroness Blatch: As we understand it, this amendment is intended to provide planning authorities with two alternative procedures for dealing with what appears to them to be a breach of control. While we can appreciate why authorities might, in some

1317
circumstances, be willing to proceed at once to grant planning permission for the breach of control, there appear to be two serious objections to this proposal.
First, by granting permission, they would effectively be pre-judging the important question whether, in fact and in law, a breach of planning control had actually taken place. In effect, they would be by-passing the appeal provisions in Section 174 of the 1990 Act, which enable the recipient of an enforcement notice to appeal to the Secretary of State against it, on the ground that what is alleged in the notice does not constitute a breach of control. We think the appeal provisions are an essential safeguard in the enforcement process; and it would be unfair to the recipient of a planning permission, granted by virtue of the proposed subsection (1)(b), in the proposed amendment, to be deprived of the opportunity of arguing that no planning permission was in fact needed. This would be particularly so in the case where the authority decided to impose onerous conditions on its grant of planning permission and later sought to enforce those conditions.
Secondly, the amendment appears to assume that the planning authority would always be able to identify the breach of control correctly. However, as the Committee will know, it is sometimes very difficult to be sure about exactly what is taking place unlawfully on any particular site, especially if it takes place behind closed doors. We think this would be too haphazard a foundation on which to base any grant of planning permission. For avoidance of doubt, I must distinguish this from the "deemed planning application" in Section 177 of the 1990 Act. That procedure is different from what is proposed in the amendment because the "deemed application" arises directly from the allegation made by the planning authority in the enforcement notice.
We think that what is proposed in the amendment is bound to result in unfairness to recipients of a grant of planning permission in these circumstances; and we seriously doubt whether planning authorities would be able to grant well-founded planning permissions of this kind. And, even if we are mistaken in this, there appears to be no requirement for the recipient of the permission to implement it. I hope that the noble Baroness will not press her amendment.
Baroness Hollis of Heigham: I find this a slightly curious reversal of roles. We are asking for a more relaxed attitude and the Minister is pressing for a more stringent attitude. There is a point of substance here. All we have is a somewhat punitive way of controlling things that, as I say, may be desirable but for which, so far, planning permission has not been sought. I think that there is a point of substance here. With the permission of the Committee I should like to withdraw the amendment, but we may wish to return to it at Report stage.
Amendment, by leave, withdrawn.
Viscount Astor: I beg to move that the House be resumed. In moving this Motion, perhaps I may suggest that the Committee stage begins again not before 8 p.m.
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Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Security
7.1 p.m.
Lord Waddington: My Lords, with the leave of the House, I would like to make a Statement about security. A number of steps are being taken to tighten arrangements in the present circumstances, and the situation will be continuously under review. My right honourable friend the Lord President of the Council announced in another place earlier this afternoon that one of these steps would be the wearing of passes by everyone within the precincts of the House, including Members except when in Chamber.
In the light of the decision of another place, I believe it is right for me as Leader of your Lordships' House to take the same step; that is that everyone within the precincts of this House, including ourselves, except when we are in this Chamber, should wear a photographic security pass.
I should stress to your Lordships that this is a temporary measure during the present emergency. It has of course been agreed through the usual channels; but it is without prejudice to any decisions on security ultimately to be taken through the Administration and Offices Committees. I should tell the House that I have asked my noble and learned friend the Lord Chancellor, the Clerk of the Parliaments and Black Rod to ensure that their staff comply with this decision.
I now come to the mechanics. Most of your Lordships will already have a photographic pass. If you do not have one, the Pass Office will remain open late tonight, and will be open tomorrow and on Monday, to issue new passes. The police manning all entry points into the Palace will from tomorrow morning be checking the passes of all those who come in and issuing pass holders with clear plastic slips to which will be attached either a chain (so that the pass can be worn around one's neck) or a lapel clip.
I need hardly repeat that I devoutly hope that the need for this measure will recede very quickly.
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Lord the Leader of the House for announcing these measures, which we certainly support and which we hope the whole House will support. In these sad days it is important that security in the Palace of Westminster be maintained at the maximum. We recognise that this may be only a temporary measure which, in the course of time, if things go the way we all want, will be relaxed.
I understand that the mechanics will be subject to all sorts of instructions from Black Rod and others. Perhaps the noble Lord could just tell us whether we are required to wear these photographic passes—of course we all have passes in our pockets when we come in. Shall we have to show these passes, as it were, on the outside rather than showing them when we are requested to?

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What will happen to spouses when they come here, because spouses also have their own passes? Will they be required to wear them on the outside of their dress, or suit, rather than carrying them in their pockets or bag? Maybe these are purely questions of mechanics, but we should all be interested if the noble Lord the Leader of the House can help us on this. Obviously we accept what has happened, and we on our side will do everything we can to co-operate with the noble Lord in what he is proposing.
Baroness Seear: My Lords, we on these Benches would like to say briefly that of course we understand and accept the need for these regulations, and we shall comply with them in every way. The details of how, when and where we wear the passes can no doubt be dealt with through the usual channels.
Lord Waddington; My Lords, it clearly would be convenient if people, when they approach the precincts, actually have the passes in a place where they can readily be seen by the people who are going to check them, but the requirement is that they should have these passes. That is the requirement. I understand that spouses have passes now, and it certainly would be correct if spouses who now have these passes do, from now on, have them in their possession and available for checking on their arrival at the Palace of Westminster.
7.5 p.m.
Lord Boyd-Carpenter: My Lords, on that point, can my noble friend say whether spouses who do not possess a pass should apply for them, and how and when?
Lord Waddington: My Lords, certainly I would urge spouses who do not already have passes to apply for them. I mentioned to your Lordships that the Pass Office would be open tonight, all day tomorrow and on Monday and thereafter so that there should be ample opportunity for spouses to obtain the passes. Obviously it will take a day or two for the new system to be run in—I fully understand that—but we must make it as easy as possible for all those who are going to have the responsibility for checking. That might mean that people carrying out their duty are not known to us at this time and do not know the Members of this House in the way the regular staff do.
Lord Williams of Elvel: My Lords, I am sorry to press the noble Lord and I do not mean to be unco-operative, I just want to try to understand what the Statement means. If we are going to be issued with clear plastic slips to which will be attached either a chain so that the pass can be worn around one's neck or a lapel clip, does this mean that Members of this House will be, in a sense, obliged to actually make use of these plastic slips and wear the pass round the neck, or in their lapels, so that it can be seen instead of having it in the side pocket?
It is really quite important because we have to send out some sort of notice to everybody. I am sure that Black Rod will be sending out notices to this effect, but I should be grateful if the noble Lord could
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possibly answer this point. If it is too detailed for him, I am happy to say that we shall co-operate in every way.
Lord Waddington: My Lords, I think the requirement should be that people should wear them, but nobody is going to criticise anybody who has forgotten to put it round his neck and then produces it immediately he is asked to do so. I think that really is the right answer to that particular point.
Lord Allenby of Megiddo: My Lords, while I welcome anything that tightens security, may I ask the Leader of the House to consider the danger of people, including Peers, walking out of the Palace of Westminster with these passes round their necks and making themselves vulnerable targets on the streets outside?
Lord Waddington: My Lords, the noble Lord has raised an important point. Nobody is encouraging people to wander round the streets of London wearing these passes.
Earl Russell: My Lords, like everyone else, I am in entire sympathy with these provisions. I should like to ask for clarification about the procedure for our occasional guests.
Lord Waddington: My Lords, the Statement I have made tonight does not actually affect guests. Noble Lords will be responsible for their guests, who will have to be checked as they are at the present time. I think it would be unrealistic to suggest that every time anybody wanted to bring a guest into the Palace of Westminster he, or she, should be provided with the sort of pass I am talking about.
Baroness Seear: My Lords, there is one other point that I did not raise. When people ask to visit the House as guests and to hear the debates, what are we to do about them?
Lord Waddington; My Lords, this is not covered in the Statement. Obviously discussions are going on as to how we may be able to deal with a number of security matters. Obviously one of those involves access to the Galleries in this House and the other place. However, I do not think that I should go into that tonight. I am really confining myself to this question of passes to help your Lordships so that we can get the new system run in as quickly as possible over the weekend.

Income Support (General and Transitional) Amendment Regulations 1990
7.10 p.m.
Earl Russell Earl Russell rose to move, That an humble Address be presented to Her Majesty praying that the regulations [S.I. 1990, No. 2324] be annulled.
The noble Earl said: My Lords, I owe an apology to anyone in this House whom I may have inconvenienced by putting this matter on the Order Paper before Christmas and then taking it off again. I did so because the report of the Joint Committee on

1321
Statutory Instruments was not available, and since the report has in the event turned out to be an extremely helpful one, it was worth waiting to get it. Perhaps one lesson to be learnt from this is that we should not debate these regulations—and this should be remembered by all parties—until the report of the Joint Committee is available. But I shall say, before my noble kinsman says it for me, I entirely understand that when I say "all parties", that means me too.
Another point arises from that. It is a pity that sometimes regulations under the negative procedure come into force before the expiration of praying time. I originally chose the earlier date in order to do it before the regulations came into force. It is a mistake that thy should be in force before the House has the opportunity to consider them.
I hasten to assure your Lordships there is no question whatever of dividing the House. I am raising this mater in order to refer to some small points, to which I hope it is possible the Government may pay attention, and to raise some fairly big general questions of principle which seem to me to arise from these regulations and which we shall have to consider in future.
These regulations provide for those who have been unemployed for two years and have been refused other offers of help to be sent on Restart courses. If they refuse to go on these courses, they are to lose 40 per cent. of their income support. These regulations have also been considered by the Social Security Advisory Committee, and they have had some misgivings which are worth taking seriously. The advisory committee recommended exception for good cause. To that the Government have responded, but they have responded to it by the rather unfortunate method of choosing to define "good cause" by total enumeration. Everyone who has ever had to listen to excuses knows you cannot define good cause by total enumeration.
The Joint Committee on Statutory Instruments has drawn further attention to the drafting of these good cause provisions. In Regulation 3(5)(a) (i) they have drawn attention to the use of the word "may" rather than "might". This is not just a linguistic error because it has the effect of changing the meaning of the regulation. It refers to people providing assistance to someone whose life may have been endangered. For example, it does not cover the situation where people are called by an alarm on the ground that someone's life is in danger but the alarm turns out not to be justified. When rescuers come in good faith they should not be penalised if in the end they turn out not to be needed.
It is also apparently the case that people who attend court as witnesses when not actually under subpoena do not have this allowed as a good cause for not attending a Restart course. I understand there is precedent for that provision, but in a parliament which is not entirely bound by precedent when making law, that does not necessarily make it any better. This is something which I think ought to cause us some anxiety.
There are a number of good causes that all of us can think of which are not specified here. For example, if you are robbed of all your money on the way to the Restart course and you end up telling the story to the police instead of attending the course, that does not appear to be allowed as a good cause, and in regulations drafted without any provision for amelioration by an adjudication officer that seems to me to be unfortunate.
There is the further point that the disqualification is to happen instantly; there is not going to be a suspension of disqualification from benefit until the matter is considered by an adjudication officer. This was something to which the Social Security Advisory Committee drew attention in paragraph 24 of its report. As they said, 40 per cent. is a substantial cut in the income of a person on income support. Deprivations have been known to be made in error and to be reversed on appeal. Would it not be better, as the Social Security Advisory Committee recommended, to defer disqualification until an adjudication officer has had the ability to consider it?
I should also like to press my noble kinsman quite closely on the question of duration of deprivation of benefit. I understand the Secretary of State says it is not to be above five weeks. In paragraph 28 of its report the Social Security Advisory Committee seems to think that it could, under the empowering legislation, legitimately last for 26 weeks. First, I should like to know how long it will last; secondly, how long it may last; and, thirdly, whether an adjudication officer can review the length of time during which it lasts.
Another ground for misgiving about the regulations is the effect on the Restart scheme. If my noble kinsman has looked at the pamphlet which was written by Anthea Zeman for the Centre for Policy Studies, he might find some quite serious arguments against the course the Government have employed. Anthea Zeman said:
"The more closely Restart works with training and industry, the clearer it becomes that it is useless to induce people into work or training when they are not in a state in which employers and tutors would want them".
The Secretary of State recommends Restart on the grounds that for someone who has been unemployed it builds his confidence and motivation. I am not entirely convinced that a 40 per cent. disentitlement to benefit achieves that effect. The bigger questions are ones of principle where to some extent there is a conflict of right and right. I accept what the Social Security Advisory Committee say: this is not an entirely new departure; it has already been done for Restart interviews; but since we are part of a sovereign parliament and not a court of common law, the fact that it has been done before does not necessarily mean we should accept its remit.
I am inclined to agree with Mr. Frank Field in the notion of an implied contract between the state and the unemployed. The unemployed should look for work and the state are bound to maintain, encourage and help them in doing so. I do not think I can bring myself to the point of arguing that the able-bodied and

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able-minded have a right to live indefinitely off the state without trying to get themselves employed, so the use of an inducement to get them to go on the Restart course is not necessarily improper. The use of the financial penalty is not necessarily improper. But if that is one principle, it is not the only one.
Last summer, in the course of the passage of the Social Security Bill, the noble Lord, Lord Boyd-Carpenter, asked me to state my priorities. I said my top priority was that nobody in this country should be reduced to starvation. In this business it is very tempting to have more than one top priority, but when I said that was my top priority I meant it. How does this measure up to that test?
I know that it is not a total disentitlement to benefit. It is a 40 per cent. disentitlement to benefit, which leaves those concerned with £22 a week. I am not certain that I can accept that as subsistence level, particularly since we have to consider the effect that it may have on the social fund entitlement; for example, whether it will put them at the back of the social fund queue.
We should consider that not everybody who has been unemployed for two years—those are the people with whom we are dealing—is necessarily entirely reasonable. Such an experience does not encourage reasonableness. So even if one says that it is reasonable that those people should go on a Restart course, it does not follow that they will all do so. We have to consider what will happen to those who do not. If 40 per cent. disentitlement is imposed on them, what will they do? I do not accept that they can live on £22 a week.
What are their options? They may turn to crime. I understand that to keep someone in one of Her Majesty's prisons costs the state £15,000 a year. I do not believe that that is a good option.
They may beg, of course. On 11th December, when we debated the vagrancy Acts, the noble Earl, Lord Ferrers, said that all the social security provisions which were available nowadays were designed to make begging unnecessary. That is a good objective. I do not know how this measure stands up to it. It should also be remembered that begging is something to which there are two parties. It is not exactly a market, but there is a supply as well as a demand. For many people a readiness to give to beggars depends in part on whether one believes that there is a fully adequate social security provision available for them without it. For my part, if this measure goes through I shall be more ready to give to beggars than I was before. Does that meet the test of the noble Earl, Lord Ferrers?
The third possibility is that they starve. That is not acceptable. So far as I know no one has starved in public in this country since 1649 and it is not time to start again.
We have here a conflict between right and right. The Utopian solution would be to raise the level of benefit above subsistence level. A partial disentitlement could then happen without people being lowered below subsistence level. I know what the Treasury
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would say to such a proposal and I am not certain that I could argue it down. I said that it was the Utopian solution.
Since it is Utopian, we might consider the further alternative of using the carrot instead of the stick and that there might be a small extra benefit perhaps for those who attend such courses. I should like the Government to consider whether that might be a better possibility.
I should like them also to tell the House something about the circumstances in which they feel entitled to disentitle people to benefit. They have done it rather a lot recently. There were the 16 and 17 year-olds and there were the students. Now there are those who do not go on Restart courses. Next it will be single parents who do not name the child's father. How many more times will the Government act in this way?
I believe that they should spell out the general circumstances in which they feel that disentitlement is in order and the principles under which they think it is justified. I ask my noble kinsman that question and should like to know the answer. I beg to move.
Moved, That an Humble Address be presented to Her Majesty praying that the regulations [S.I. 1990, No. 2324] be annulled.—(Earl Russell.)
Lord Carter: My Lords, the House will be grateful to the noble Earl, who has performed a service in drawing our attention to these regulations. I have very little to add to the powerful arguments that he presented. When I read the regulations, I could not help but wonder if they were not yet another step along the road toward the American system of Workfare.
I think it is fair to ask whether coercion is the best way to make a success of Restart. There is a curious omission in paragraph 4, which is the "good cause" paragraph. It completely omits as a good cause for non-attendance on a Restart course the fact that one is engaged in a job search or preparation course run by another agency. It might be a course which is much more appropriate than a Restart course. I should like the Minister to give his comments on that point when he replies.
Let us consider the response of the Secretary of State to the report of the Social Security Advisory Committee. It says on page 1 in paragraph 4:
"The Restart course assesses a person's skills and experience, builds his confidence and motivation, and points him in a direction best able to lead him back to work".
When I read that passage I could not help but wonder how it squared with the report of the psychological service which found that nearly 20 per cent. of participants thought that their course had been of no use or of limited use in helping them to gain employment. Reporting in February this year, the OPCS found that one third of those who had attended a Restart course thought that it was "poor". I cannot help but feel that the Government would be better employed in improving the content and quality of Restart courses rather than in introducing these coercive regulations.

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On a slightly broader note, I point out that the aims of Restart as set out on page 13 of the report of the Social Security Advisory Committee are to:
"identify individual needs; create a desire to change; identify and overcome barriers to change; give people confidence to act; present the options for the way forward; and introduce action planning".
When I read that I wondered whether Mr. Major, Mr. Hurd and Mr. Heseltine had perhaps recently been on a Restart course.
The Joint Committee on Statutory Instruments has drawn attention to defective drafting. I was struck by several remarks in the departmental memorandum in response to the letter sent by the joint committee on 5th December. There is the matter of the printer's error which has been corrected by an erratum slip. I wondered whether anyone any longer proof-reads regulations. There is, for instance, the question of "may" or "might". The department admits that on reflection a different wording would have been preferable and says that an amendment will be made at a suitable opportunity.
Then there is the use of the word "protection", which, as the advisory committee pointed out, was introduced into the regulation without previously having been mentioned. Again the department has to admit that the words which were included in an earlier draft had inadvertently not been deleted. It says that:
"This oversight is however regretted and the offending words will be deleted at the next suitable opportunity".
It seems to me that there has been some fairly careless drafting in some extremely important regulations.
I said that I would be brief and so I conclude. These regulations do nothing to encourage unemployed people to believe that Restart will help them. I fear that they are just another example of the exercise of power by coercion rather than persuasion which sadly has become the hallmark of the Government's policy.
7.30 p.m.
The Lord Bishop of Worcester: My Lords, his case has been extremely well marshalled by the noble Earl, Lord Russell. I have little to add. I have been approached by those in the social services about this matter of the withdrawal of income support from people who refuse to go on a Restart course.
As is my custom, I go round the Restart courses in my diocese. On one occasion I was ushered into a room in which were waiting some 20 or 30 long-term unemployed people. I discovered that among these were some who could sadly be called unemployable. If they were about 18 years of age and had been unemployed for two years they suffered from a sense of lack of self-worth. Many were very often chain smokers and overweight. But there were also some whom one would have to describe as inadequate, as well as others who had mental illness. Very often they had dependants and responsibilities. There were single parent; too, fathers or mothers. Therefore, the operation of this blanket scheme is unfair and unworkable because it is impossible to carry out the suggested changes outlined within five days. Furthermore, when people attend courses reluctantly and without commitment they spoil them for others.
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When they have to leave dependent children it costs more to put those children into care than to allow the parents to stay at home to look after them.
I am in no way advocating that spongers, to use an ugly word, should be supported. We do not want them in our society. We want appropriate ways of getting them on to the staircase towards work if possible. There is an adjudication service, but I advocate that the whole system should be turned on its head. Instead of having the blanket scheme whereby those who refuse to attend a Restart course are immediately deprived of 40 per cent. of their income, I should prefer to see the long-term unemployed interviewed and adjudicated before the deprivation is made. Often those in question are fairly helpless as regards filling in forms and fighting back on their own behalf. It is important to know where the adjudicators are to be placed. Will the people in Worcester be subject to adjudicators in Blackpool? We need a local element in the adjudication of a person's situation and needs.
My experience shows that the system envisaged in the Act is too much of a blanket system and takes no account of the individual's needs and inadequacies. I should prefer to see the system turned on its head; that is, the adjudication taking place before the recommendation to the Restart course. That would be more successful, more relevant and more appropriate. I hope that the matter can be reconsidered by the Government because it affects those at the bottom of the heap in our society. Someone has to speak for them and, therefore, I have stayed to speak on their behalf tonight.
7.34 p.m.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, the regulations are directed towards those who have been employed for more than two years. In reply to the right reverend Prelate, I stress that the mentally ill and single parents are not required to be available for employment as a condition of entitlement to benefit. Therefore, their failure to attend a course does not subject them to the sanction. They would only volunteer to attend a Restart course so the sanction does not apply.
The regulations amend the Income Support (General) Regulations and the Income Support (Transitional) Regulations to provide that in certain circumstances where a person has been notified of a Restart course and failed to attend or to complete the course he or she will suffer a reduction in their income support applicable amount. Up to now attendance at Restart courses has been voluntary.
It is normally at a Restart interview that an individual will be identified as able to benefit from such a course and invited to attend. Most courses are full-time and last for one week. A typical course will contain 10 to 15 people. I am pleased to note that the right reverend Prelate has taken the trouble to visit courses and bring us the benefit of his experience.
Courses are designed to help those hardest hit by unemployment. They aim to build confidence and restore motivation, identify strengths and skills and

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provide guidance to the individual on how to set out a plan of action to get back into work. The expectation is not that a person should leave a course and go straight into employment, although it is encouraging when that happens. Rather it is designed to put a person back on the road to finding work. For many that will mean undergoing a period of training, while others will join a Jobclub. Restart is not seen as training.
Since their introduction in July 1986 Restart courses have helped 190,000 unemployed people and the programme is being expanded and improved. Experience has shown that many claimants start the course with low, even negative expectations but complete it having received practical and realistic help which leaves them with a far more positive outlook. I cannot comment on the survey mentioned by the noble Lord, Lord Carter. He said that 20 per cent. were dissatisfied with the courses, implying that 80 per cent. were satisfied. However, it is significant that our recent survey found that 90 per cent. of those who completed a course felt more confident about finding work, while 86 per cent. found that it helped them to decide what steps they should take to find work. The Restart programme has a proven record of success.
The Restart courses are professionally run. The course model was designed by psychologists in conjunction with organisations experienced in helping unemployed people. Courses are delivered by tutors according to a detailed contract specification agreed with and monitored by the employment service. Tutors are not employees of the employment service but receive a tutor's guide setting out the standards of service expected of them. A careful selection process is undertaken at the Restart interview stage and only those claimants who are deemed to be likely to benefit from a Restart course will actually be referred to one. The regulations provide that those who have been out of work for at least two years will be subject to the benefit sanction if they fail to attend or to complete the course. After two years a person should have attended at least three Restart interviews at which he or she will have received expert advice and counselling. Where the sanction is applied it is 40 per cent. and in some cases 20 per cent. of personal income support for each week in which there is a failure to attend. Since most Restart courses last for a week the sanction will usually be for one week only. The figure of 40 per cent. is well established within income support. The most that a person can lose from current benefit rates is £14·70 a week. Our aim has been to apply what we believe to be a sufficient sanction for non-attendance on a Restart course without very good reason.
I turn to paragraph 4 of the regulations. I should like to assure the House that we have taken every step to ensure that someone with good grounds for failing to attend the course will be exempted from the sanction. For that reason a number of circumstances have been written into the regulations guaranteeing exemption for those who, for instance, may be ill, caring for a member of the family, encountering severe travelling difficulties or attending an emergency. As
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my noble kinsman Lord Russell will know, a domestic emergency is included; that would cover the case mentioned by him. The noble Lord, Lord Carter, asked what would happen if the claimant wished to secure work through a different course. Claimants will be referred to the Restart course on a mandatory basis only if they decline all other offers from the employment service. Therefore, the case that the noble Lord had in mind does not apply.
Those are the circumstances which we believe any good employer would accept as giving an employee good reason for non-attendance at work.
The Government welcome the acceptance by a majority of the Social Security Advisory Committee of the principle of requiring selected longer-term unemployed persons to attend a Restart course. As my noble kinsman said, the committee made three recommendations in its report: first, that no suspension of benefit be made pending an adjudication officer's decision; secondly, that an adjudication officer be allowed discretion, through a good cause provision, to exempt anyone from the sanction; thirdly, that the adjudication officer be given discretion in the fixing of the period during which the sanction is to apply. While we are grateful to the committee for its report, we are unable to accept those recommendations.
Occasions when the benefit is reduced on the basis of a partial suspension of benefit rather than an adjudication officer's decision will be rare. That is because we have built into the regulations a period of time to allow for the adjudication process. There may be odd occasions when it is necessary for an administrative decision to be made partially withholding benefit. That fits in with current practice in other areas of income support administration and is essential in our view to prevent loss to the taxpayer.
Perhaps I may explain again the point about the adjudication officer in a little more detail. Sanction for failure to attend or complete a Restart course has a built-in delay but does not take effect until a fortnight or so after non-attendance. That allows the adjudication officer time to reach a decision as to whether the sanction applies. If the sanction is not applied in the week which the regulations specify, it cannot be applied at all.
As regards the point made by the right reverend Prelate about the physical situation of the adjudication officer, decisions will obviously be made by adjudication officers in the DSS local offices. The right reverend Prelate will know that there are some 400 local offices throughout the country so that there is always one relatively proximate to the individual involved. Therefore, that adjudication officer will have local knowledge.
I have already explained that the regulations cover a wide range of circumstances, which we feel certain will cover those with a genuine reason for not attending or failing to complete a course. We wish to stress the unity of the Restart course. Failure to attend part of the course undermines the value of the entire course. For that reason it is appropriate to maintain

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the sanction on a week-by-week basis; in other words, failure to attend in a week or any part of a week brings about a sanction for a week. Income support is a weekly benefit and there would be serious administrative complications in trying to apply sanctions for a period less than a full week.
My noble kinsman pressed me on the question of duration. I repeat that it lasts for one week in each week that there is a failure to attend or complete a Restart course. Courses are usually for one week and cannot be longer than five weeks.
I now turn to a point made by both my noble kinsman and the right reverend Prelate. They both sought for the carrot approach rather than the stick approach. We feel that financial inducement to encourage attendance may lead to unwanted side effects. We do not feel that it would be fair on claimants with more recent work experience who volunteered for a course. Further, some claimants may decline other offers of help from the employment service simply to gain a place on the Restart course.
On the general question of entitlement raised by my noble kinsman, perhaps I may give another example; namely, an unemployed man on income support who, without good cause, neglects to avail himself of a reasonable opportunity of employment. The amount of benefit to which he is entitled is reduced. The amount of deduction is 40 per cent. or 20 per cent. of the personal allowance. I do not believe that it would be fair to the taxpayer or the contributory benefit fund if that were not the case. I have no qualms about that.
The Government are convinced that these regulations will assist in improving the prospects of the long-term unemployed and can only be to their ultimate advantage. I commend them to the House.
7.45 p.m.
Earl Russell: My Lords, I thank my noble kinsman for that reply. I take up only a few points from it. I recognise that the mentally ill are not required to attend such courses. However, that can only apply to the mentally ill if diagnosed. Not everyone is diagnosed. Even among those who may not be diagnosed there is a wide variation in levels of mental good health, particularly among those who have been subjected to the rather trying experience of two years' unemployment. I accept the truth of what my noble kinsman says but am not entirely sure of its adequacy.
On the subject of duration, I am glad to hear about the restriction to one week. However, I notice the word "usually" for one week only. I am not quite clear as to what is the significance of that word "usually".
Lord Henley: My Lords, usually the course lasts for one week, which is why I said "usually" one week. As I said, the course could last up to five weeks.
Earl Russell: My Lords, is my noble kinsman giving a firm undertaking that the disentitlement lasts no longer than the course for which the person failed to turn up?
Lord Henley: My Lords, the disentitlement lasts for each course which he refuses to undertake.
Earl Russell: My Lords, that slightly allays misgivings. I hope that it will not be used in the way in which the French Government used to use conscription. A person was conscripted. If he was a pacifist, he refused and was imprisoned. He was released and then immediately called up again. I hope that no such idea is in the Government's mind.
On the subject of good cause, my noble kinsman listed examples and said "for instance". However, my point about the good cause provision is that it does not allow him to say "for instance". It is those good causes and no others. Perhaps I may take an example in my own memory. One night I was about to take my wife out to dinner and somebody was run over immediately in front of me. I spent one hour and a half with my coat under his head keeping his cut head out of the road and waiting to tell the story to the police. When I got home I convinced my wife that I had good cause for being an hour and a half late. However, I could not have convinced an adjudication officer under these provisions.
Lord Henley: My Lords, my noble kinsman is quite wrong because paragraph 4(h) makes the exception:
"the claimant was providing assistance in response to an emergency".
I should have thought that that was exactly what my noble kinsman would have been doing by putting his coat under the head of the poor chap who had been run over by a car.
Earl Russell: My Lords, I have read that provision a good many times. I am glad to hear how my noble kinsman reads it. I must admit that my understanding is that that provision is confined to members of professional rescue services and would have applied only to the ambulance service and police.
Lord Henley: My Lords, we are all reasonable people and I hope that this provision will not be interpreted in a strictly legalistic manner, as the courts might do. The words there are perfectly straightforward and do not seem to imply that it must be in response to an official emergency. Paragraph 4(f), which refers to the claimant being involved in the manning or launching of a lifeboat or the performance of a duty as a part-time fireman, is very specific but the case which the noble Earl puts forward is surely one where the claimant is providing assistance in response to an emergency.
Earl Russell: My Lords, what is being illustrated by what is rapidly degenerating into a Punch and Judy show is that, by trying to define good cause by this process of total enumeration, the Government have let themselves in for a good deal of litigation which I fear may be rather expensive. I believe that that is rather unwise of them.
My main anxiety is on the question of disentitlement. I accept what my noble kinsman says regarding the case for a sanction. But I shall ask him one question, and something follows from the answer. Does he accept that £22 a week is a subsistence level? If he says yes, I should like to see that case justified with figures. If he says no, I should like to hear him argue even for unreasonable behaviour that people

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should be reduced below subsistence level, because I for my part cannot do it. Nevertheless, I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
Viscount Long: I beg to move that the House do now adjourn during pleasure until eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The sitting was suspended from 7.51 to 8 p.m.]

Planning and Compensation Bill
House again in Committee on Clause 5.
Baroness David Baroness David moved Amendment No. 25:
Page 6, line 46, leave out ("on the owner and").
The noble Baroness said: In moving this amendment I shall speak also to Amendments Nos. 26 and 27. They are very modest amendments but quite important when speaking about enforcement. If they were accepted I believe that they would be a positive help. Amendment No. 25 seeks to remove a difficulty frequently encountered in enforcement; namely, that the courts have tended to take a very strict view of the service requirements of an enforcement notice. Even minor errors on the face of a notice have stopped enforcement action. One of the difficulties most frequently encountered is a specification which is properly described as "owner, occupier or interested person". That difficulty is most commonly experienced in leasehold areas such as Greater Manchester where the recipient of a request for information is often confused as to who is the legal owner.
For example, it is quite common for a long leaseholder to describe the freehold owner of the reversion as the owner. It would be helpful therefore if this clause made it clear that it was unnecessary for the owner etc. to be identified in the notice so long as the requirements as to service were satisfied. The notice should not be invalidated by a misdescription of this kind. There is a problem here. It is similar to the situation of the drivers of vehicles when they are stopped. There needs to be a little flexibility and responsibility. These are helpful amendments. They suggest a solution to this little problem. I hope that the amendments are acceptable to the Government. I beg to move.
Baroness Blatch: It may be helpful if I remind the Committee about the present approach to service of a copy of an enforcement notice on an owner of the land specified in the notice and of the provisions for appeal to the Secretary of State against a notice.
It is a fundamental and long-standing requirement that a copy of an enforcement notice be served on the owner and the occupier of the land. The owner and occupier, assuming that they are not the same person, will almost always be the people with the main interest in the land. Section 174 of the 1990 Act enables,
"A person having an interest in the land to which an enforcement notice relates",
to appeal against it to the Secretary of State. So that the owners of the land may be alerted to the possible
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need to appeal against a notice, we think it would be surprising if the planning authority were not required to serve a copy of the notice on the owner without any qualification about the practicability of service. However, this ground of appeal is subject to the discretionary provisions in Section 176(5) of the 1990 Act (which are not being amended by the Bill) enabling the Secretary of State to disregard the failure to serve a required person with a copy of an enforcement notice if neither the appellant nor that person has been substantially prejudiced by the failure. So defective service may not prove fatal to an enforcement notice.
We naturally recognise that planning authorities sometimes have difficulty in establishing the identity and whereabouts of the owner of a parcel of land. This is especially so in cases where the owner is living abroad and appears not to have left the management of the land in an agent's hands. But Section 329 of the Act already provides various ways in which a notice or document may be served on a required person. For example, it may be left at the person's,
"usual or last known place of abode"
or it may be sent by recorded delivery to that address. In the last resort, if the owner's name cannot be ascertained, Section 329(2) of the 1990 Act provides for the notice to be served by affixing it conspicuously to some object on the land. In our view, these provisions achieve a reasonable balance between the need to inform owners that an enforcement notice has been issued and the need to avoid imposing too onerous a service obligation on the planning authority. We would be reluctant to alter this balance without convincing evidence that it is seriously hampering planning authorities in taking enforcement action.
On Amendment No. 26, we appreciate why the noble Baroness would like to include a statutory provision on the lines of the proposed subsection (2A) in Section 173 of the 1990 Act so that a notice could not be invalid because of a failure to serve a copy of it on the owner of the land when all the other service requirements have been satisfied. But we think this would go too far in the direction of relaxing the present requirement. I have already mentioned that it is a ground of appeal to the Secretary of State that a notice was not correctly served. And I understand that when an appeal is made on this ground it is quite usual for the Secretary of State or a planning inspector not to quash an enforcement notice because it is found that the failure to serve a copy on a required person has not substantially prejudiced that person. Again, these provisions achieve a careful balance between opposing interests and we would be reluctant to alter it, especially as the Carnwath Report has not recommended any change in this respect. With that explanation I hope that the noble Baroness will not press the amendment.
Baroness David: I thank the Minister for that lengthy reply, read at great speed. There is certainly no doubt that it will have to be read to be understood properly. As usual, the matter is infinitely more complicated than one imagined. I shall discuss the

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issue with my noble friend and decide whether it is worth returning at a later stage with another proposal. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments- Nos. 26 and 27 not moved.]
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 27A:
Page 7, line 31, leave out ("removing or alleviating any") and insert ("restoring or minimising any loss or").
The noble Lord said: In moving this amendment I hope that it will be convenient to the Committee to consider also Amendment No. 27C. Amendment No. 27A appears to be just a drafting amendment but it is one which may be of considerable help in interpreting the Act when it is passed. The amendment seeks to remove the words "removing or alleviating any" and to insert the words, "restoring or minimising any loss or". I am advised by the Law Society of Scotland, whose representatives spend a great deal of time in the courts, that the wording suggested would be easier to interpret than the words "removing or alleviating any". Those words are not easy to understand. The amendment is not changing the sense of the subject at all but: merely making it easier to understand and providing a more straightforward definition. I beg to move.
Baroness Blatch: The noble Lord did not press very hard for the change in Amendments Nos. 27A and 27C. We think the proposed reference to "restoring or minimising any loss" is no real improvement on the existing words which were introduced in 1981. The expression "removing or alleviating any injury to amenity" is now well known and we see no justification for the proposed change. I hope that the noble Lord will not press the amendment.
Lord Carmichael of Kelvingrove: I am disappointed by that answer. The amendment was suggested by the Law Society. I am sure that it did not put the amendment forward lightly. It must have found certair ambiguities when trying to define "removing or alleviating". I did not press the matter hard because I thought the case was obvious. I wonder whether the noble Baroness or the noble and learned Lord the Lord Advocate knows whether there has been discussion of the matter before the courts. The amendment is not important enough to press but it seems to my layman's mind a reasonable amendment. Until the Lord Advocate has time to reconsider it, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 27B:
Page 8, line 36, leave out ("may") and insert ("shall").
The noble Lord said: This is a "may" and "shall" amendment. It seeks to render it mandatory on a planning authority to withdraw a notice which serves no useful purpose. There is no reason why an enforcement notice which serves no useful purpose should be withdrawn only at the discretion of the planning authority. It is surely in the interests of clarity for all concerned that planning authorities
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should be obliged to withdraw notices that no longer serve the purpose they were intended to. It would be a help to those involved in the planning procedure if the matter were made compulsory. I beg to move.
Baroness Blatch: Amendments Nos. 27B and 27D pose yet again the arguments about rigidity versus flexibility. We would prefer to leave the planning authority with discretion about whether to withdraw an enforcement notice if it no longer serves any useful purpose. That power can be exercised only after the prior notification process specified in subsection (5). The discretion will enable the planning authority to make its decision in the light of representations to it.
Lord McIntosh of Haringey: Can the Minister give us an example of a case where a local planning authority will wish to retain a notice when it serves no useful purpose?
Baroness Blatch: I do not wish to spend my time giving examples. All I am saying is that if there is any occasion when a planning authority can usefully use discretion, it is better to have discretion. Where it is appropriate the planning authority will exercise its power accordingly.
Lord Carmichael of Kelvingrove: I am sorry that the noble Baroness is again unable to help us. I cannot understand why there should be discretion. There is either a case or there is not a case for a notice. If there is no case for a notice, it should be withdrawn. If the time has passed for the notice to be valid, it should be withdrawn.
This seems to be the old story of the words being in the Bill and of everyone being afraid of the possible repercussions if they are changed. If notices are no longer valid, why should not the person involved be told that a notice has been withdrawn? I hope that the noble Baroness will feel aggrieved about the matter and will take it back to her department. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clause 30 [Enforcement notices]:
[Amendments Nos. 27C and 27D not moved.]
Clause 30 agreed to.
Clause 6 [Appeal against enforcement notice]:
8.15 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 28:
Page 9, line 8, after ("For") insert ("section 174(1) (persons entitled to appeal), and").
The noble Lord said: In moving this amendment I should like to speak also to Amendments Nos. 30 and 34. I understand that the amendment has been grouped with Amendment No. 31 A in the name of the noble Lord, Lord Coleraine.
With these amendments we are concerned with the range of people who are entitled to appeal against an enforcement notice. In England at any rate the principal Act gives a right of appeal to a person having an interest in the land to which the notice relates—in other words, a relevant occupier. The amendments

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suggest that that is an inadequate definition for a number of reasons. We suggest that the alternative ought to be persons,
"whose interests are materially affected by the notice".
It is important that those who have an interest in the land should have a right to appeal, but under the legislation if people do not have an interest in the land but have a material interest that ought to give them the right to appeal.
For example, there are those who could be prosecuted for failing to comply with a notice. That group of people can go further than those who have an interest in the land. There are those who can be prosecuted when an appeal is withdrawn. There again, they do not have an interest in the land but they could be materially affected and ought to have a right to appeal. Where the interest in the land is with the husband or with one spouse, there could be the other spouse's interest. That would be covered by the phrase "materially affected" but is not covered by the phrase "interest in the land". There is also a whole group of people who occupy land by virtue of an unwritten licence—it is sometimes called a bare licence. They could certainly be affected by the decision on an enforcement notice. They ought to have the right to appeal.
When we are seeking to tidy up the legislation we should make the enforcement procedures as comprehensible as possible. At the same time we ought to see to it that they are fair. The present provision, with the wider implications which it brings of interest in land, is not adequately reflected by the old definition of an interest in the land. I suggest that the wording I have proposed is superior and I hope that the Government will feel sympathetic to it. I beg to move.
Lord Coleraine: What worries me about the noble Lord's amendment is that it will widen the net to a large extent. The people with the interests to which he is referring cannot be defined. Anyone might claim to have an interest in an enforcement notice. I am interested in the bare licensee—the occupier—to whom the noble Lord referred. The rights of an occupier without a licence in writing have over the years tended to be diminished. The occupier is quite often a caravan occupier. In the past the law was more favourable in this regard than it is now. The Law Society has records of a council member who represented someone who occupied land in this way for 19 years without any licence in writing. In that case it was able to persuade the court to hear him. I daresay that the issue of interest in land came up. It is a difficult concept.
People who have to deal with enforcement notices are not able to deal satisfactorily with the definition of interest in land, which is extremely complicated. We feel that the best way out of this difficulty is to restore the law to what it was at one time in the past and allow an occupier to have the right, notwithstanding that his licence to occupy is not in writing.
Baroness Blatch: Amendment Nos. 28, 30 and 34 tabled in the name of the noble Lord, Lord McIntosh
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of Haringey, would vary the provisions of the present subsection (1) of Section 174 of the 1990 Act and provisions of the Scottish Act which confer the right of appeal to the Secretary of State against an enforcement notice on,
"a person having an interest in the land",
to which the notice relates or "a relevant occupier", whether or not a copy of the notice has been served on him. A "relevant occupier" is defined as a person who on the date on which the enforcement notice is issued occupies the related land by virtue of a licence in writing and continues so to occupy the land when the appeal is brought. The amendments would confer the right of appeal on a person on whom a notice is served or any other persons whose interests are "materially affected" by the notice, thus extending the right of appeal, as my noble friend Lord Coleraine said, beyond the scope of the present provisions in Section 174(1).
Because the effect of an enforcement notice will be suspended by submitting a valid appeal to the Secretary of State against the notice, it is important that the scope of the right of appeal is carefully defined so as to include anyone who has an interest in the land which he should be able to safeguard by submitting an appeal. We think that the present provisions of Section 174(1) achieve this aim. In particular they have included, since they were last amended in 1984, a person who occupies the land by virtue of a written licence; in other words, someone who is lawfully on the land.
The effect of Amendments Nos. 30 and 34 would be to confer the appeal right on,
"any other persons whose interests are materially affected by a notice".
The expression appears to include people who have no interest in the land; for example, squatters or trespassers. We do not think that this would be acceptable. The lawful owner or occupier of land should not be put at risk that someone who has no right to occupy the land is enabled to appeal against an enforcement notice.
Amendment No. 31A tabled in the name of my noble friend Lord Coleraine would remove the reference to occupation of the land by virtue of a licence in writing. We think that that would result in the same problems of extending the right of appeal unwarrantably which I have already mentioned. Although I understand that the Law Society has suggested this amendment, I regret that we cannot accept it. Again, it would mean that someone who has no right to be on the land could have the right of appeal. I hope that these amendments will not be pressed.
Lord Coleraine: My noble friend has drawn the distinction between someone who has the right to occupy the land by virtue of a licence in writing and a squatter. However, there is the intermediate stage where someone is occupying the land in question with permission but without any licence in writing. Such a person may not be able to obtain a licence. For example, a person may be trying to obtain a squatter's title, which is not the same as occupying the land as a

1337
squatter. In such circumstances the person will not want to go to the owner and disclose the fact that he needs a licence in writing.
There is a category of occupier where the person is a licensee who has permission but who does not have the relevant licence. Such a person should be protected in the way suggested by the amendment. However, I have heard what my noble friend has said. I shall take her thoughts away with me and consider them with the aid of my advisers.
Lord McIntosh of Haringey: I should make clear at once that I do not intend to press these amendments. However, I am quite dissatisfied with the Minister's reply. When she says that my wording could give rights of appeal to squatters, she has a case and it is possible that the "materially affected" wording which I use in the amendments is inadequate. Nevertheless, I gave four specific examples where someone who does not have an interest in the land and who is not a relevant occupier according to the terms of the legislation still has an interest which ought to be protected by a right to appeal.
Perhaps I may repeat those four cases and invite the Minister to respond to them to see whether we receive a more satisfactory answer than we have received thus far. I shall repeat them slowly so that the Minister can obtain advice upon them if necessary. The first example is the case of those who can be prosecuted for failing to comply with an enforcement notice. Surely such people should have a right to appeal. What proposals do the Government have to protect them?
The second case concerns those who would be exposed to prosecution when an appeal by a person qualified to do so is withdrawn at a stage when the period for compliance with the notice has expired. Those people are affected and could be exposed to prosecution even though they do not have an interest in the land.
Thirdly, there is the case where there is a wife's interest which is not an interest in the land but an interest through her husband's interest in the land; or, indeed, it could be a husband's interest through his wife's interest in the land. There again, there could be a material interest which ought to be protected but which does not appear to be protected under the existing wording. Without going into issues such as the position of squatters, I believe that the latter interest ought to be protected. The fourth case is that suggested by the noble Lord, Lord Coleraine. I refer to the interest of those with an unwritten licence. In my view the Committee is entitled to specific answers to those four points of which notice was given at least 10 minutes ago.
Baroness Blatch: I think that that was a rather fast 10 minutes; in fact, I do not think that such notice was given 10 minutes ago. However, many interesting points have been raised about specific categories. I believe that some of them would extend the scope wider than the Government would wish but, as with other amendments which we have discussed today, I shall read carefully what the noble Lord said and
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consider his remarks between now and the Report stage. Perhaps we could meet during that time to discuss these issues.
Lord McIntosh of Haringey: I am grateful to the Minister. I believe that we could make progress in the matter and that it would be in the interests of better legislation if we did so. I add the issue of criminalisation to the list of those matters which will undoubtedly grow and which I shall want to discuss with Ministers before the Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 29 had been withdrawn from the Marshalled List.]
[Amendment No. 30 not moved.]
Baroness Nicol Baroness Nicol moved Amendment No. 31:
Page 9, line 12, after ("(a)") insert ("where a planning application has been submitted for the development within 28 days of the enforcement notice being served").
The noble Baroness said: Appeals against enforcement notices are frequently used as a means of delay because an appeal immediately suspends enforcement action. The Council for the Protection of Rural England, which supports this amendment, points out that 80 per cent. of enforcement notices are appealed against compared with 32 per cent. in respect of planning applications. Of that 80 per cent., 40 per cent. are ultimately withdrawn. There is obviously a great waste of the time of the local authority and of the Department of the Environment. That fact was confirmed by the Chief Planning Inspector in her report for 1986–87—what a comfort it is to be able to say "her" report rather than "his" report.
In 1987–88 the Department of the Environment estimated that the cost of enforcement appeal work was £2.3 million. The effect of the amendment would be to ensure that more decisions are made on the basis of a planning application rather than an enforcement appeal. That must be in the interests of the planning system in the long run; it should also reduce the appeal workload. I beg to move.
Baroness Blatch: We believe that this proposal would be difficult to operate satisfactorily in practice. The present right of appeal on planning grounds against an enforcement notice has operated satisfactorily since its introduction in 1960. An enforcement notice appeal also includes what is called a "deemed planning application", to which the noble Baroness referred, so that if planning permission is to be granted in the appeal decision it is granted on the basis of a planning application submitted to the Secretary of State instead of being submitted to the planning authority. A fee is payable to the Secretary of State for this application on the same basis as a planning application fee would be payable to the local authority for the development involved in the appeal. These provisions are logical and usually operate satisfactorily.
If an appellant who wishes to submit an appeal on ground (a) also had to submit a planning application to the local authority within the proposed 28-day time limit, it would be most confusing for everyone

1339
concerned with the appeal. Presumably the planning authority would be processing this application at the same time as my department was processing the appeal. The planning authority's decision might be given during the appeal process or it might not. In either event, the appellant would have to deal with both sets of proceedings simultaneously and would presumably want the appeal to be delayed if there was any chance that the planning authority would grant permission for the development. Any such delay is most unsatisfactory in any enforcement appeal. It is much better in practice for the question of a grant of planning permission to be dealt with as part and parcel of the enforcement appeal process, as at present. There is no disadvantage to the planning authority in the present procedure: it is always asked for its counter-representations to any appeal on ground (a) so that its views on whether permission ought to be granted for the development in the notice are taken into account in the appeal decision.
We are remedying that unsatisfactory situation by the provisions which are included in Clause 6(3). Subsection (3) inserts a new subsection (5A) in Section 177 of the 1990 Act. That new subsection (5A) effectively provides that, where an appeal is made on ground (a) and no "deemed planning application" fee is paid by the appellant within a specified period, the appeal on ground (a) and the deemed application are to lapse at the end of that period. We intend that period to be 28 days, coincidentally the same period of time as in the amendment. We believe that that remedy, which was recommended in the Carnwath Report, is a more effective and satisfactory means of dealing with that minor difficulty than the amendment would be. I hope the noble Baroness will not pursue the amendments.
8.30 p.m.
Baroness Nicol: I find it difficult to understand why the Minister believes that the present situation is in any way satisfactory. However, I should like to consider what she said about new subsection (5A). I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 31A not moved.]
Lord Coleraine Lord Coleraine moved Amendment No. 32:
Page 10, line 26, at end insert:
("(4C) Where in accordance with subsection (4A) above an order is made that an enforcement notice shall have effect, then if on final determination of the proceedings the enforcement notice is quashed, compensation may be awarded to the appellant for any damage or loss that has been incurred as a result of the said order." ").
The noble Lord said: This is an important amendment, but I am glad to be able to deal with it shortly at this stage. Under Section 289 of the 1990 Act, either the planning authority or the appellant may appeal on a point of law to the High Court in an enforcement notice appeal against the Secretary of State's decision. The Government's proposal is that where there is such an appeal to the High Court the court should have power to order the enforcement notice to be of no effect, to have effect, or to have
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partial effect pending a final determination of the proceedings and any subsequent re-hearing and determination by the Secretary of State.
The amendment proposes that should the High Court make an order that an enforcement notice should take effect, and should the appeal succeed and the enforcement notice be shown to be a nullity, then the appellant who will have been wrongly deprived of the use of his land, and possibly of his livelihood, during what may be a long period, should be compensated for the loss suffered during that period of deprivation. It is a simple matter of fairness. I beg to move.
Baroness Blatch: As some of your Lordships will have noticed, this is a complex situation which needs further examination because it also involves the proposed order-making powers of the High Court and the Court of Appeal. It requires consultation with my noble and learned friend the Lord Chancellor, and so at this stage I am unable to accept Amendment No. 32. I can consult my noble and learned friend the Lord Chancellor and perhaps even my noble friend between now and Report stage and report back.
Lord Coleraine: I should feel much happier were my noble friend able to indicate some general sympathy with what I propose in the amendment. Since I tabled the amendment I have become aware that it is, in a sense, defective in that the present procedures are not that the High Court may order the enforcement notice to take effect, but that, owing to a preceding amendment to the Bill, which will no doubt be passed, the onus is now on the appellant to apply to the High Court for the enforcement notice to be not enforced.
I can understand the reason for that, but it creates a certain hiatus between the date upon which the enforcement notice comes into force under the Government's proposals, and—
Baroness Blatch: I wonder whether I may intervene. I may be able to help my noble friend. I have a long explanation in response to the amendment. We have sympathy with the principle being pursued by the amendment. I propose to give my noble friend the full text of what would have been my response to discuss with his advisers. That may save time this evening. There would then be an opportunity to understand the technical difficulties and why we should like to meet the principle that is of concern to my noble friend.
Lord Coleraine: I am grateful to my noble friend for her offer. I should say just one thing about the position created by the Bill, which is that the provisions of Clause 6(2) are that the enforcement notice is to be of no effect until the appeal is withdrawn or:
"the expiry of the period within which a further appeal may be brought against the decision of the Secretary of State".
I am sure that when my noble friend considers the general tenor of the amendment, she will take account of the fact that as things stand at the moment, as I read the Bill, the appellant will be criminalised between the date upon which the enforcement notice comes into effect under the new clause and the date when the appellant can appeal to the High Court, which will be later, and the date upon which that appeal is heard by

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the High Court, which will be considerably later. I am sure that my noble friend will take that point into account when she considers the whole picture. In view of her kind offer which I gratefully accept, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 33 had been withdrawn from the Marshaled List.]
Clause 6 agreed to.
Clause 31 [Appeal against enforcement notice]:
[Amendment No. 34 not moved.]
Clause 31 agreed to.
Clauses 7 and 32 agreed to.
Clause 8 [Offence where enforcement notice not complied with]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 35:
Page 11, line 7, leave out second ("the").
The noble Lord said: I am absolutely determined to amend the Bill. If I am not allowed to have the amendment, I promise the Government that at some time which will not be specified my noble friend Lord Wilson of Rievaulx will appear on these Benches late in the evening and the Government will be defeated. If the Government will not accept the amendment, that threat will take effect from midnight Greenwich meantime, and at any time thereafter. I beg to move.
Lord Fraser of Carmyllie: In the face of that appalling threat, I give the noble Lord the clearest and most unequivocal of undertakings that the correction will be made when the Bill is next printed.
Lord McIntosh of Haringey: I shall speak to "storm in' Norman" and call off the strike.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 36:
Page 11, line 15, leave out from ("offence") to end of line 19.
The noble and learned Lord said: This is a considerable grouping of amendments. Perhaps I can begin with Amendments Nos. 38 and 43 which add the words:
"for east period of 24 hours during which the breach continues",
respectively subsections (2) (b) and (5) (b) of the new Section 179 for which Clause 8 provides. The amendments are similar to Amendment No. 10 which the noble Lord tabled to Clause 1 which provided for the contravention notice offence to apply to each period of 24 hours for which the failure continues.
We accept that the provisions of subsections (2) and (5) of Section 179 as they appear in the Bill are not entirely satisfactory. We consider that the Government's amendments to Clauses 8 and 33—that is Amendments Nos. 36, 42, 47 and 48—will result in fully effective offence provisions, ensuring that any offence under Section 179 may be charged by reference to any day or subsequent period of time. Where the
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offence continues, a person may be convicted of a second or subsequent offence by reference to any period of time following the preceding conviction.
Similarly, we think that this approach is preferable to the approach suggested in Amendment No. 37 by the noble Lord, Lord Coleraine. I hope that the Committee will accept that the Government's approach will provide for an effective further offence following a first offence.
Government Amendments Nos. 39, 40 and 41 are to aspects of the enforcement notice offence provisions in the new Section 179. Amendment No. 39 is to subsection (3) which provides a defence for an owner of land who is prosecuted for the offence of being in breach of the requirements of an enforcement notice.
As now drafted, this defence requires the person prosecuted,
"to show that he did everything in his power to secure compliance with the notice".
We have concluded, on further consideration of this defence, that the words "everything in his power" impose too onerous a burden on the prosecuted person. The amendment therefore proposes to omit the words, "in his power" and to insert the words,
"he could be expected to do".
Amendment No. 47A which the noble Lord, Lord Carmichael, has tabled, helpfully makes a parallel provision for the Scottish Clause 33. I am sure that he will be pleased to know that we welcome and accept the amendment.
Amendment No. 40 is to subsection (4) of the new Section 179 which provides for an offence where someone,
"who is the occupier of or has an interest in"
the enforcement notice land carries on any activity which is required by notice to cease. This amendment is to omit the words,
"is the occupier of or has"
and to insert
"has control of or".
As now drafted, the reference in subsection (4) to the occupier of the enforcement notice land is not sufficiently wide in its scope to cater for the situation where someone who is responsible for the management of land—for example, a land agent who does not himself occupy the land—is nevertheless in control of any activity taking place on the land. The words to be inserted are intended to comprise occupiers of land, as distinct from owners, and anyone else who, as a matter of fact, has control over the land.
Amendment No. 41 is also to subsection (4) of the new Section 179 of the 1990 Act. As now drafted, subsection (4) requires that the person concerned,
"must not carry on any activity which is required by the [enforcement] notice to cease".
This wording is not sufficiently wide in its scope to cater for the situation where a person does not carry on the activity himself but causes or permits his agent to do so. It would clearly be unsatisfactory if, in such

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circumstances, the planning authority were unable to prosecute that person. This amendment therefore adds the words,
"or cause or permit such an activity to be carried on"
at the end of subsection (4) so that the scope of the offence under this subsection is much more satisfactory. As the noble Lord, Lord Carmichael, may also have picked up, although he has not put down an amendment, the comparable amendment has not been made to Clause 33. However, I indicate to him that a parallel amendment will be made to Clause 33 at Report.
Amendments Nos. 44, 45 and 46 bear on the amount of the penalty. The first amendment would enable the court to decide that a higher penalty should be imposed for any subsequent offence. We appreciate that the amendments are intended to provide for the penalty to be imposed on a person convicted of an enforcement notice offence to be calculated in such a way that a person convicted loses any financial benefit which has accrued or appears likely to accrue to him as a result of the offence. While I understand what is proposed, nevertheless I consider it would be wrong to fetter the court's discretion to impose whatever financial penalty seems appropriate in a particular case.
I appreciate that the Carnwath Report recommended as part of Recommendation No. 13(i) that provision should be made for the prosecution's estimates of any financial benefit to be binding on the court unless disproved. Nevertheless, we do not think that in imposing an appropriate penalty on a convicted person the court should be bound by these provisions. Notwithstanding that, it clearly has wide powers to impose a greater penalty in the event of a second or further conviction. I beg to move.
8.45 p.m.
Lord McIntosh of Haringey: In my intervention on this group, I wish to speak only to Amendments Nos. 44, 45 and 46. As will be evident, Amendments Nos. 38 and 43 will fall when the Government's amendments are carried. We are in favour of the government amendments which clear matters up concerning persistent, continuing offences, in just the same way as the earlier amendments did. We are grateful for that.
I am not happy with the replies of the noble and learned Lord the Lord Advocate on my Amendments Nos. 44, 45 and 46. The replies were to a speech that I had not yet made, but that is the way in which the groupings work. The noble and learned Lord rests his case on the need to leave the courts free to impose such penalties as they think fit. The difficulty has been that in the past penalties for infringements of planning law have commonly been too low. They have made planning law a laughing stock and made it possible and justifiable for people to continue to breach planning laws and get away with it financially, even though they may be convicted.
Amendment No. 44 provides that the courts should impose greater penalties on continuing offences. I
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should have thought that the Government's amendments already tended in that direction and that the Government would have welcomed this clear indication in primary legislation that continuing offences were worse than an initial offence. They ought to be penalised accordingly.
On the important issue of making the punishment fit the financial benefit of the crime, rather than using the vague words, "have regard to" we should say "include in the amount of the penalty the financial benefit which would accrue". Again, this may be a restriction on the flexibility of the courts but I should have thought it was an entirely desirable restriction working only in the direction of improved enforcement. The Government, in line with their thinking, ought to have welcomed it.
Finally, Amendment No. 46 refers to the way in which the calculation should be made of the financial benefit due which has to be calculated. Here again, surely the onus must be on the applicant, the person who is being fined for non-compliance, to disprove other estimates of his financial benefit, otherwise he will simply put up absurd estimates. A great deal of court and public time and therefore public expense will be wasted on trying to disprove his assertions. It must be for him—or perhaps I should say "it", but I assume that these non-compliers are largely men so I think that we can abandon anti-sexism so far as to say that the bulk of breaches of planning law will be incurred by men. It is for the offender to disprove the case made by independent and objective authority. I hope that the Government will reconsider these three amendments.
Lord Fraser of Carmyllie: May I reply briefly to the noble Lord? If he looks at Amendment No. 46, I think he will appreciate the burden which it might impose upon somebody to bring these proceedings. Someone who understands perfectly well that what is being done in breach of the planning law nevertheless may have little or no idea of what might be the value of the hotel built or the amount of profit which it might be making but that would effectively have to be considered. It is a much better idea to leave the matter in relation to the provision that we have in the Bill, that where there is an amount of a fine to be determined the court shall have regard to the financial benefit which has accrued or appears likely to accrue. It seems likely that that allows far greater flexibility than the provision which the noble Lord proposes would allow.
Lord McIntosh of Haringey: Before we leave this matter, I should remind the noble and learned Lord the Lord Advocate that these are recommendations made by the Carnwath Report. If this is part of the package, may we be given specific reasons why we are departing from the package?
On Question, amendment agreed to.
[Amendment No. 37 not moved.]
The Deputy Chairman of Committees (Lord Ampthill): I cannot call Amendment No. 38 as it has been pre-empted.
[Amendment No. 38 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 39:
Page 11, line 22, leave out ("in his power") and insert ("he could be expected to do").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 40 to 42:
Page 11, line 24, leave out ("is the occupier of or has") and insert ("has control of or").
Page 11, line 27, at end insert ("or cause or permit such an activity to be carried on").
Page 11, line 31, leave out from ("offence") to end of line 34 and insert:
("(5A) An offence under subsection (2) or (5) may be charged by reference to any day or longer period of time and a persor may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence.").
On Question, amendments agreed to.
[Amendments Nos. 43 to 46 not moved.]
Clause 8, as amended, agreed to.
Clause 33 [Offence where enforcement notice not complied with]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 47:
Page 39, line 34, leave out from ("offence") to end of line 38.
On Question, amendment agreed to.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 47A:
Page 39, line 41, leave out ("in his power") and insert ("he could be expected to do").
The noble Lord said: I beg to move.
Lord McIntosh of Haringey: It is not a matter of material concern, but Amendment No. 43 was ruled out by Amendment No. 42; Amendments Nos. 44, 45 and 46 were not. I think that I should be given the chance not to move them.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 48:
Page 40 line 4, leave out from ("offence") to end of line 7 and insert:
("(5A) An offence under subsection (2) or (5) of this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence. ').
On Question, amendment agreed to.
Clause 33, as amended, agreed to.
Clause 9 [Stop notices]:
Lord Coleraine Lord Coleraine moved Amendment No. 49:
Page 12, line 25, leave out ("four years") and insert ("twelve months").
The noble Lord said: In this amendment I see that I am knocking against the Carnwath package, but on a previous occasion I was asking the Government why they wine departing from it. Clause 9 deals with stop notices and subsection (5), which is to form part of Section 183 of the principal Act, provides that,
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"A stop notice shall not prohibit the carrying out of any activity if the activity has been carried out … for a period of more than four years ending with the service of the notice".
I know that the finding of the Carnwath Report was based on the difficulty that some local authorities may have in discovering whether a change of use has taken place. But the view was put by the Law Society in reply to the consultation paper, and I still think that there is some force in it, that if a local authority feels that the unlawful use activity is important enough to have a stop notice imposed upon it, it should be able to impose a stop notice within a year and not wait for the full four years to expire before serving the stop notice. I beg to move.
Lord Fraser of Carmyllie: The period of four years to which the noble Lord objects was a recommendation in the Carnwath Report. In view of the way in which I have quietly set aside an earlier recommendation of the Carnwath Report, that may not be the most compelling of reasons. Nevertheless we think this one is justified as a means of enabling a stop notice to prohibit an activity which is causing serious environmental harm. What is considered especially useful is the case where the use of land intensifies suddenly, perhaps after a considerable period in which it was not harmful.
The period of one year, which the noble Lord prefers, has been shown by the experience of the present provisions which are restricted to one year to be too short in some cases. It is for that reason that the period of time has been lengthened to four years. In these circumstances I consider against the background of the existing provision that what is proposed in the Bill is appropriate.
Lord Coleraine: It seems to me that probably there are cases where four years would be appropriate and there are certainly cases where, as my learned and noble friend has said, the use intensifies and it is only after a year or two that it becomes unacceptable. I shall take this amendment away and consider with my advisers whether there is some way in which we can provide one period for one case and a different period for another. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 50:
Page 12, leave out lines 36 to 40.
The noble Lord said: In moving Amendment No. 50, I should like to speak also to Amendment No. 53. As the noble Lord, Lord Coleraine, has said, we are now on the issue of stop notices, which are the most powerful instruments available to local authorities. They are there to deal with particularly severe cases where enforcement is necessary. They are provided with no grounds for appeal and the fines for breaching a stop notice can be unlimited. There can be no doubt that we and the Government treat stop notices with the utmost seriousness.
So it is very difficult to understand why in this clause, and in new subsection (3)(a) the Government should provide that the date of implementation of a

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stop notice must be not earlier than three days after the date when the notice is served. After all, in three days a determined miscreant can do a good deal of damage.
When I referred earlier to the suggestion of my noble friend Lady Hollis that we should look at particular kinds of offence which are irreversible, three days is quite long enough to do irreversible damage which no implementation of a stop notice could ever put right and for which no fine, however unlimited, would be appropriate. It does not have to be enforced in every case; there is no reason why a local authority should make every stop notice enforceable immediately. But we ought to have the possibility that a stop notice which is used only in the last resort can take effect immediately in order, for example, that a building shall not be demolished, trees shall not be cut down or irreparable damage shall not be done to a building or to land by development which can never be undone.
I cannot believe that the Government, having provided for stop notices in this way, having provided that stop notices shall not have the right of appeal, having provided that there shall be unlimited fines, can be serious about stop notices unless they at least make it possible in extreme circumstances for them to have immediate effect. I do not believe that the public would understand what a stop notice means if it says not "stop", but "stop in three days from now".
That cannot be in accordance with a common understanding of what proper enforcement of planning law should constitute. I beg to move.
9 p.m.
Lord Fraser of Carmyllie: On Amendment No. 50, we share the noble Lord's wish to enable the planning authority to bring a stop notice into effect before the three—day waiting period for which the present Section 184(3) of the 1990 Act provides. Where we differ from him is in preferring not to go as far as his amendment proposes by giving the planning authority complete discretion in bringing any stop notice into force on whatever date it wishes.
As the noble Lord appreciates, a stop notice is draconian in its effect and there is no appeal against it to the Secretary of State. If a person contravenes, or causes or permits a contravention of, a stop notice, there is an immediate offence, under Section 187 of the 1990 Act, for which we propose, later in Clause 9, to increase the maximum summary penalty to £20,000. Because of the severity of these provisions, we think there must be safeguards to ensure that a stop notice is only brought into force earlier than three days after it is served on someone when there are special circumstances to justify an earlier date.
The noble Lord stopped short of referring to special reasons. However, we allow for special reasons for specifying an earlier date. The noble Lord laid stress on the test of irreversibility. That seems to me to be just such a special circumstance where it might be appropriate for a local authority to impose a stop notice earlier than the three-day period.
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The Government's amendment to section 184(3) of the 1990 Act closely follows Recommendation No. 10(III) in the Carnwath Report, where Mr. Carnwath was clearly concerned that the planning authority should have discretion to bring a stop notice into force immediately, but subject to what he called "special reasons justifying it".
With that explanation, I hope the noble Lord will accept that a safeguard on these lines is essential for any recipient of a stop notice. I hope he will appreciate that what concerns him is provided for, but the provision in the Bill is not so draconian as what he would achieve by his amendment.
Amendment No. 53 is similar to previous amendments that the noble Lord tabled in Clauses 1, 2 and 8 to apply the offence provisions of those clauses to each period of 24 hours for which a failure or contravention continues. As with the previous government amendments to the offence provisions in Clauses 1, 2 and 8, we think that government Amendments Nos. 51 and 54 will result in fully effective provisions applying in the case where a second, or subsequent, stop notice offence occurs, so that the recipient can be prosecuted and convicted by reference to any period of time following the preceding conviction.
Lord McIntosh of Haringey: I am grateful for that reply. I recognise that the paragraph which we propose to remove provides for special reasons. However, if one provides for special reasons, one always raises the argument about what constitutes a special reason. If there is no appeal, there could be some difficulty if a local planning authority is conscientious about not using stop notices except in the most extreme circumstances; it may find that all those extreme circumstances give rise to special reasons. What occasions have no special reasons? One could find people applying for judicial review on the grounds that a given local authority has always cited special reasons when applying for stop notices. It is difficult to judge whether a stop notice is being used as a last resort and whether a degree of flexibility is being maintained. I appreciate the arguments that the noble and learned Lord the Lord Advocate has advanced. This is not a matter on which I wish to seek the opinion of the Committee. The noble and learned Lord is quite right to say that the provisions of Amendment No. 53 are already dealt with by government amendments on similar lines. I should have pointed that out myself. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: Before calling Amendment No. 51, I should remind the noble Lord, Lord McIntosh, that I shall be unable to call Amendment No. 53, standing in his name, if Amendment No. 51 is agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 51
Page 13, line 13, leave out from ("offence") to ("References") in line 17 and insert:
("(1A) An offence under this section may be charged by reference to any day or longer period of time and a person

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may be convicted of a second or subsequent offence under this section by reference to any period of time following the preceding conviction for such an offence.
(1B)").
The noble and learned Lord said: In replying to the previous amendments, I have already made some reference to Amendments Nos. 51 and 54. The drafting of these amendments closely follows the approach which the Committee has already considered in corresponding amendments to the offence provisions in Clauses 1, 2, 8, 27, 28 and 33 of the Bill. In each case, the new subsection removes any doubt that the planning authority, when it lays an information in the court for a stop notice offence, may charge that the offence occurred on a particular day, or during any longer period of time during which the person prosecuted has allegedly contravened the prohibition in a stop notice. The new subsection also provides that, following conviction of a first offence, a person may be convicted of a second offence, or subsequent offences, by reference to any period of time following the preceding conviction for such an offence. I beg to move.
On Question, amendment agreed to.
[Amendment No. 52 had been withdrawn from the Marshalled List.]
[Amendment No. 53 not moved.]
Clause 9, as amended, agreed to.
Clause 34 [Stop notices]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 54:
Page 41, line 17, leave out from ("offence") to end of line 20 and insert:
("() An offence under this section may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under this section by reference to any period of time following the preceding conviction for such an offence.").
On Question, amendment agreed to.
Clause 34, as amended, agreed to.
Clause 10 [Certificate of lawful use or development]:
[Amendment No. 54A not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 55:
Page 14, line 8, after ("contravention") insert ("of").
The noble Baroness said: In moving Amendment No. 55, I wish to speak also to Amendments Nos. 64, 66, 67 and 67A to 67F. Amendment No. 64 stands in my name. Amendment No. 67 stands in the name of my noble and learned friend the Lord Advocate, while Amendments Nos. 67A to 67F stand in the name of the noble Lord, Lord Carmichael of Kelvingrove.
Amendments Nos. 55, 64 and 67 correct textual errors in the published Bill. Amendment No. 55, in Clause 10, on page 14 at line 8, is to insert the word "of" after "contravention" in that line. No amendment is needed in the corresponding Scottish provision, in Clause 35, which has been printed correctly.
Amendments Nos. 64 and 67 are in Clause 10, on page 15 at line 3; and in Clause 35, on page 43 at line 20. They correct a mistaken reference, in each case, to
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the provisions of Section 35(2)(a) of the Environmental Protection Act 1990. The correct reference is to Section 36(2)(a).
Amendment No. 66 in the name of the noble Lord, Lord Ross, would insert a new subsection, after subsection (3), in new Section 193 of the 1990 Act, which specifies supplementary provisions applicable to the new procedure for applying to the local planning authority for a certificate of lawfulness of existing or proposed use or development, in new Sections 191 and 192.
The purpose of this amendment is to apply the provisions, in Sections 78 and 79 of the 1990 Act, for an appeal to the Secretary of State against a planning authority's decision on a planning application, to the planning authority's determination on the new application for a certificate. We think there is no need for this amendment because provision is made elsewhere in the Bill for the present "established use" certificate appeal procedures (which are in Sections 195 and 196 of the 1990 Act) to be applied, with suitable modifications, to decisions on applications for the new certificate of lawful use or development. This is achieved by the provisions of paragraphs 19 and 20 of Schedule 6 to the Bill. (on page 99, at lines 9 to 26 inclusive). We accept the noble Lord's premise that a right of appeal to my right honourable friend the Secretary of State is necessary, and it has been duly provided. With that assurance, I hope the noble Lord will withdraw his amendment.
Amendments Nos. 67A, 67C, 67D and 67E in the name of the noble Lord, Lord Carmichael, to Clause 35 seek to remove any doubt about who may make the regulations which will be necessary to operate the new certification procedure and to provide that any regulations made be subject to parliamentary scrutiny. However, the existing Section 273 of the 1972 Act in Scotland, which is concerned with regulations and orders made under that Act, quite clearly provides that it is the Secretary of State who may make regulations, and the proposed insertions aimed at clarifying this are not necessary.
As to Amendment No. 67B, while the noble Lord, Lord Carmichael, may feel that Clause 35 as drafted gives planning authorities too free a hand in such matters, I would assure him that the provision is in similar terms to that which it replaces—paragraph 1 of Schedule 12 to the 1972 Act—and that there is no evidence to suggest after all this time that the existing arrangements give rise to problems of the kind envisaged by the Law Society of Scotland.
As to the suggestion in Amendment No. 67F of an extra subsection requiring regulations to be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, I can again assure the noble Lord that Section 273 of the 1972 Act provides in subsection (2) for this safeguard, and therefore that this addition is not necessary. I hope that the noble Lord is reassured by my explanation and that he will not press these amendments.
Lord Carmichael of Kelvingrove: Whether I am reassured or not, I am impressed by the reasons given. It appears as though the question of the Secretary of State making regulations is covered well enough. The planning authorities have been in existence for some time under the previous Acts and there has been little friction. As the noble Baroness said, this is something about which the Law Society was concerned. I can hardly believe that it was concerned about something unless it had some experience of it.
While I am willing to withdraw the amendments on this occasion, I am sure that the noble Baroness will realise that I shall need to consult with some members of the Law Society about the full statement she made in her speech. I speak about Amendments Nos. 67A, 67B, and 67C to 67F. Parliamentary procedure is always a hoary old question. We wanted powers in order that the Secretary of State's decisions or proposals could be challenged in the House. However, the matter is too big to go into without having advice from others. In the meantime, I thank the noble Baroness for her explanation at this point.
The Deputy Chairman of Committees: The noble Lord rose rather briskly and I had not said that the noble Baroness had moved at page 14, line 8, after ("contravention") insert ("of").
Lord Ross of Newport: I am grateful to the noble Baroness because she has supplied us with a great deal of information. I cannot say that I understand it all. I am sure that she spent the whole of Christmas studying this Bill. It is extremely complicated. It amends the Town and Country Planning Act 1990, which itself was a measure that brought all the previous Acts together. Therefore, I found it complicated.
The noble Baroness sent us a brief on, I think, 6th January. This is where we are changing established use certificates to certificates of lawful use. I think there are going to be people who have an established use certificate who will have, I think, six months or a year to apply for the alternative. It says on the brief, and I think I picked it up in what the noble Baroness said, that in any case someone who wished to appeal from a local planning authority when in fact they were not given the certificate of lawful use could appeal under a different section. They could appeal against it on the amending ground (d) at Section 174(2) of the 1990 Act.
I am not going to complicate matters, but I think the noble Baroness covered the ground about which I was worried. It seemed to me wrong that a right of appeal possibly from a change from this particular form of certificate to another form of certificate might leave some people high and dry, which would not be right. However, I am reassured—and I shall read carefully what the noble Baroness said—that if necessary there can be a right of appeal to the Secretary of State. That still holds, and therefore I accept totally what the noble Baroness reported to the Committee.
On Question, amendment agreed to.
[Amendment No. 55A not moved.]
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 56:
Page 14, line 24, after ("lawfulness") insert ("either").
The noble Baroness said: In moving this amendment I should like to speak also to Amendments Nos. 57, 58, 60 and 62. These amendments are clustered together. Obviously, the point of Clause 10 is that it retrospectively validates an activity, and we think it would be useful for local authorities to have discretion as to whether they should date it from the date of application or the date of determination in those rare circumstances where there is a change in situation between those two events: for example, the passing of a general development order. This is a modest change but a useful addition to discretion. We hope that the Minister agrees to it. I beg to move.
9.15 p.m.
Baroness Blatch: The effect of these two amendments would be to give the local planning authority the discretion to base their determination on whether to grant one of the new certificates on the circumstances either at the time when the application is made or at the time of their determination. We think these amendments should not be made in subsection (4) because they will introduce too much uncertainty into the decision-making process for the new certificate. The onus of providing the authority with relevant information to justify the grant of a certificate is firmly placed upon the applicant by the present provisions of subsection (4). We think the applicant should have to do this by reference to the status of the land and the activities then taking place on it when he submits his application. If, as these two amendments propose, the planning authority could also consider the matter in relation to the circumstances of the land at the later date of its determination, it would be bound to seek further information from the applicant about any change which might have taken place in the meantime.
We think it is essential to have only one date for this purpose, in the interests of all concerned with the application, and that it should be the application date. If the circumstances on the land change in the meantime, it will be up to the applicant to decide whether he wishes to pursue his application, bearing in mind that he may obtain an outdated certificate if the original application does not reflect the current circumstances.
We think that the same objections apply to Amendment No. 60.
Amendment No. 62 would add the words indicated in the next paragraph—paragraph (d)—of subsection (5) of the new Section 191, so that the amended paragraph would provide as follows:
"(d) specify the date of the application for, or, as the case may be, the determination of the certificate",
The amendment follows from one of the noble Lord's earlier amendments (Amendment No. 57) to subsection (4) of Section 191, where he sought to introduce a reference to the time of the planning

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authority's determination of an application for a certificate, as an alternative to the circumstances of the land al the time of the application.
I have explained in response to the earlier amendment why we do not think this alternative date would be satisfactory in practice. It follows that this amendment would also be unsatisfactory for the same reasons.
I hope that the noble Baroness will not press these amendments.
Baroness Hollis of Heigham: I thank the noble Baroness for that reply, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 57 and 58 not moved.]
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 59:
Page 14, line 28, after ("shall") insert ("except in the circumstances specified in subsection (4A) below").
The noble Baroness said: I should like to brigade Amendments Nos. 59 and 61 together, and we hope that the Government can accept this pair. Under the old Section 52, now the new Section 106 under the 1990 Act, a local authority and a developer may mutually agree planning gain as part of development, subject to any of the provisions of Clause 12: for example, open space or the provision of a creche. But such planning gain may occasionally be vitiated by an adjacent building, or adjacent activity, of a third party which had not hitherto been brought within the planning process, possibly because it was literally invisible; it might be behind a screening wall. That activity might be time-expired and that third party might be seeking a lawful use certificate which, if it were granted, would nullify the planning gain. These two amendments will protect the local authority in that situation so that the greater public interest—that is, the planning gain—is not undermined by a lawful use certificate of an adjacent third party. Therefore, we hope that the Minister can give local authorities that additional protection. I beg to move.
Baroness Blatch: Before I respond to this amendment, perhaps I may ask whether the noble Baroness is including Amendment No. 63 in the group of amendments.
Baroness Hollis of Heigham: I am very happy to do so. That amendment would offer compensation where the established or lawful use is other than on grounds of being time-expired.
Baroness Blatch: I thank the noble Baroness for that clarification. Amendment No. 61, which goes with Amendment No. 59 tabled by the noble Lord, Lord McIntosh, an amendment to subsection (4), would insert a new subsection (4A) in Section 191 of the 1990 Act. The amendment would create an exception to the requirement for the planning authority to issue a lawful development certificate where the circumstances would otherwise justify it. The planning authority would be enabled, by virtue of this new subsection (4A) to refuse the certificate under
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subsection (4) where it is or would be in breach of any undertaking or other non-contractual undertaking falling within Section 106 of the 1990 Act.
We understand the reasons why the noble Lord tabled the amendment. It would clearly be unsatisfactory if the grant of a lawful development certificate could override the terms of an agreement or undertaking under Section 106 of the 1990 Act. If that were so, it would certainly be desirable to remedy the problem. But there is no suggestion in the new Section 191 that that might happen. The two procedures will operate quite separately.
If a certificate is granted for an activity which is prevented or restricted by an agreement under Section 106, the grant of that certificate will not authorise the prevented or restricted activity and the agreement will remain enforceable between the parties to it regardless of the existence of a new certificate. If the agreement under Section 106 is between the planning authority and another party who has not been concerned with the application for a certificate under Section 191, the authority may still enforce the terms of that agreement against the other party or against the successors in title to that other party.
For those reasons, we see no need to insert the proposed subsection (4A) in the new Section 191. I hope that the noble Baroness will not press the matter further.
Turning to Amendment No. 63, this amendment is directly consequential on Amendment No. 61. I have explained the reasons why we cannot accept Amendment No. 61. It follows that if the proposed new subsection (4A) is not inserted in new Section 191, new subsections (5A) and (5B), would be inappropriate.
Baroness Hollis of Heigham: I thank the Minister for that reply. The legal advice that she is offering to the House differs from the legal advice that we have received in terms of whether, for example, a Section 106 agreement between two parties can or cannot be overridden by a lawful use certificate with a third party.
If the legal advice which the Minister has had is correct, that meets our problem. However, we have received different advice. Perhaps this matter can be considered further between now and Report stage. If in any sense the advice that she has received needs to be corrected, then I am sure that we both recognise that we have a problem on our hands. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 60 to 63 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 64:
Page 15, line 3, leave out ("35") and insert ("36").
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 65:
Page 15, line 40, at end insert:
("(1A) An application for a certificate under section 191 or 192 of this Act shall be accompanied by such fee as the Secretary of State may by regulations prescribe, after consultation with such persons representative of local planning authorities as appear to it to be concerned.").
The noble Lord said: This amendment seeks to discover how serious the Government are about their intention to ensure that fees for planning work should gradually rise to meet the costs of the planning service.
Within the past few weeks this Chamber has debated orders which provide for a substantial increase in fees—a 20 per cent. increase in some planning fees, I believe. In moving those orders, the Minister said that the Government looked forward to a time when the cost of the planning service would very largely be covered by fees, although that time was some way off.
It does not appear to be the case that there is adequate provision for fees for applications for certificates of lawful use and lawful development under Sections 191 or 192 of the principal Act. With this amendment we seek to find out the Government's intentions. Clearly applications for certificates of lawful use and development cost local planning authorities considerable amounts of money. If the Government are serious about covering costs with fees, surely they ought to provide for fees for those applications as well as for other types of planning applications. I beg to move.
Lord Ross of Newport: I am horrified by the proposal and totally opposed to the introduction of planning fees. It is wrong to say that people with an existing use certificate, through no fault of their own and as a result of legislation passed through this House, must now obtain a lawful use certificate and pay a fee for doing so. That is totally wrong, and I hope that the Government are not intending to impose a fee upon them.
Baroness Blatch: We accept that planning authorities should be enabled to charge a fee for the administrative cost involved in dealing with applications for the new certificates. On 8th January my department circulated a consultation paper canvassing proposals about how the new certificates would be brought into operation if Clause 10 were enacted. The consultation paper has been sent to all the associations representing local authorities, the professional and amenity bodies interested in planning control and many other bodies. We shall consider their responses most carefully. I have also sent a copy of the consultation paper to the noble Lord and other Members participating in this debate. A copy has also been placed in the Library of the House. I shall be glad to consider any comments made by Members of the Committee.
One of the proposals in the consultation paper is for a system of charges which applicants for a certificate would have to pay at the time that they made their application to the planning authority. We propose that the charges should be set at a level intended to cover the overall administrative cost of the service. We welcome comments on this proposal. We do not believe that an additional regulation-making power is needed for this purpose because there is already a suitable power in Section 303 of the 1990 Act. Section 303(1) enables the Secretary of State, by regulations, to make such provision as he thinks fit for
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a payment of a fee of the prescribed amount to a local planning authority in respect of an application to them under the planning Acts for any permission, consent, approval, determination or certificate. This power is currently used to prescribe planning application fees. We appreciate that the noble Lord might prefer to see a statutory obligation to consult local planning authorities' representatives included in the new Section 193 but we do not think that this is essential. My department is careful to consult not just the local authorities' associations but a wide range of other interested organisations about the new planning and enforcement proposals. There is no need for a statutory obligation in this matter. I hope that the amendment will not be pressed.
Lord Ross of Newport: I am disappointed with that response. I wonder whether the noble Lord, Lord McIntosh, wants to carry out his suggestion. He appears to be going into market forces. Let us suppose that I have had the use of some land since before 1964 and I have an existing use certificate. If the Government introduced legislation under the Bill obliging me now to obtain a lawful use certificate in order to carry on what I have been doing for the past 30 years, it cannot be right or equitable to impose a fee for that. I realise that the matter has been submitted for consultation; but that imposition would be totally wrong and the Committee should not accept it.
Baroness Blatch: I hope that Members of the Committee will respond and perhaps the noble Lord, Lord Ross, will wish to do so vigorously.
Lord McIntosh of Haringey: I understand the point made by the noble Lord, Lord Ross. I hope that he understands that I sought to obtain a clearer idea of the Government's intentions rather than to pursue an argument in favour of higher fees. I do not and never have supported the view that planning fees should cover all the costs of a planning service. However, that was the Government's view and there appeared to be a gap in their provisions about which I sought to find out more.
I am grateful to the Minister for sending me the consultation document. This is a curious way of producing legislation. Consultation documents have been issued between Second Reading and the Committee stage with such timing that the responses cannot be considered by Parliament. Instead, the Minister merely gives a holding answer by saying that although the Bill is before Parliament, the Government do not propose to take a view on the matter until they have the results of the consultation documents. Surely a consultation document should go out and the consultation period should be completed before the Bill is published. The results should be available to Parliament when it is making up its mind as to whether the Government's proposals are correct. As I said earlier, it is not a question of this Bill being brought forward in a great hurry. It has been in preparation for nearly two years. There is no good reason why that consultation should not have taken place and the results made available in time for the matter to be considered in Committee with the advantage of the full responses to the consultation.

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Although we are grateful for being given copies of the consultation document, I suggest that that is not adequate for those concerned with planning laws—local authority associations, professionals and representatives of individuals affected by planning law. It is the job of Members of Parliament and noble Lords to look at amendments and legislation which have been prepared with the best available information from those expert in the field as to what are the likely effects.
The result of this curious timing presented to us is that we do not have an opportunity to consider adequately what should be the fees. I believe that that is a quite unsatisfactory response to a probing amendment and we may well have to return to the matter on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 66 not moved.]
Clause 10, as amended, agreed to.
Clause 35 [Certificate of lawful use or development]:
9.30 p.m.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 67:
Page 43, line 20, leave out ("35") and insert ("36").
On Question, amendment agreed to.
[Amendments Nos. 67A to 67F not moved.]
Clause 35, as amended, agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 68:
After Clause 35, insert the following new clause:
Rights of entry
(" .—(1) After section 91 of the 1972 Act there is inserted
"Rights of entry for enforcement purposes Right to enter without warrant.
91A.—(1) Any person duly authorised in writing by a planning authority may at any reasonable hour enter any land—

(a) to ascertain whether there is or has been any breach of planning control on the land;

(b) to determine whether any of the powers conferred on a planning authority by sections 84 to 91 or 100 of this Act should be exercised;

(c) to determine how any such power should be exercised;

(d) to ascertain whether there has been compliance with any requirement imposed as a result of any such power having been exercised,

if there are reasonable grounds for entering the land then for the purpose in question.
(2) Any person duly authorised in writing by the Secretary of State may at any reasonable hour enter any la ad to determine whether an enforcement notice should be issued in respect of the land.
(3) The Secretary of State shall not so authorise any person without consulting the planning authority.
(4) Admission to any building used as a dwelling-house shall not be demanded as of right by virtue of subsection (1) or (2) of this section unless 24 hours' notice of the intended entry has been given to the occupier of the building.
Right to enter under warrant.
91B.—(1) If it is shown to the satisfaction of a justice of the peace on information on oath—

(a) that there are reasonable grounds for entering any land for any of the purposes mentioned in section 91A(1) or (2) of this Act; and

(b) that—

(i) admission to the land has been refused, or a refusal is reasonably apprehended; or

(ii) the case is one of urgency,

the justice may issue a warrant authorising any person duly authorised in writing to enter the land.
(2) For the purposes of subsection (1) (b) (i) of this section admission to land shall be regarded as having been refused if no reply is received to a request for admission within a reasonable period.
(3) A warrant authorises entry on one occasion only and that entry must be—

(a) within one month from the date of the issue of the warrant; and

(b) at a reasonable hour, unless the case is one of urgency.

Rights of entry: supplementary provisions.
91C.—(1) A person authorised to enter any land in pursuance of a right of entry conferred under or by virtue of section 91A or 91B of this Act (referred to in this section as "a right of entry"—

(a) shall, if so required, produce evidence of his authority before so entering;

(b) may take with him such other persons as may be necessary; and

(c) on leaving the land shall, if the owner or occupier is not then present, leave it as effectively secured against trespassers as he found it.

(2) Any person who wilfully obstructs a person acting in the exercise of a right of entry shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(3) If any land is damaged in the exercise of a right of entry, compensation in respect of that damage may be recovered by any person interested in the land from the person who gave the written authority for the entry.
(4) If any person who enters any land, in exercise of a right of entry, discloses to any person any information obtained by him while on the land as to any manufacturing process or trade secret, he shall be guilty of an offence.
(5) Subsection (4) does not apply if the disclosure is made by a person in the course of performing his duty in connection with the purpose for which he was authorised to enter the land.
(6) A person who is guilty of an offence under subsection (4) shall be liable on summary conviction to a fine not exceeding the statutory maximum or on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both."").
The noble and learned Lord said: This amendment inserts a new clause for Scotland which parallels the provisions in Clause 11 for England and Wales. It replaces the existing Clause 36 of the Bill which in due course will be withdrawn. It is intended to simplify the drafting of the right of entry provisions.
The clause gives effect to recommendation No. 1 in the Carnwath Report; namely, that what is now Section 265 of the 1972 Act should be amended to allow entry on any land at all reasonable hours on production of appropriate authority for the purpose of investigating any alleged breach on that land or on

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immediately adjoining land for determining the nature of any remedial action or generally for the purpose of the exercise of the authority's enforcement functions.
We believe that this clause provides adequate powers to enable authorities to discharge their enforcement functions efficiently on the basis of reliable information. It also —and this is very important—provides adequate and necessary safeguards for the citizen who rightly resents bureaucratic snooping into his private life.
I shall speak also to Amendment No. 132, which makes changes to the Bill that are consequential upon the withdrawal of Clause 36 and the insertion of the new clause to which I have just made reference.
A fairly substantial number of amendments have been grouped together and perhaps I could turn to Amendments Nos. 69, 70 and 71 in the name of the noble Lord, Lord McIntosh. They make minor but significant changes which I regret we cannot accept. Nobody should have to submit to intrusion on his or his family's privacy without adequate safeguards. If we accepted Amendment No. 69, that would limit those safeguards to the situation where no other use, apart from dwelling-house use, is taking place in the building.
We take the view that the safeguards should apply equally when part of a building is being used as a dwelling house. We do not consider that in practice that will be a serious obstacle to planning authorities in gaining entry to buildings for enforcement purposes even where, for example, there is a flat in an office block which is the only dwelling in use.
While we appreciate that Amendment No. 70 appears to assume that there would be a person in the building who had been authorised by the occupier to allow an authorised officer to enter it for enforcement purposes, I am bound to say that I do not understand who is likely to be such an authorised person. In any event, I consider that it should always be to the occupier of the building that the notice of intended entry should be given and not just any authorised person.
Perhaps I may turn to Amendment No. 71. We are reluctant to omit the words suggested by the amendment at subsection 196B, paragraph 9(b) (ii),
"the case is one of urgency".
The Carnworth Report recommended that the rights of entry provisions should be modelled on those provisions in Section 95 of the Building Act 1984. Section 95(4) of that Act includes a specific reference to the situation where the case is one of urgency. In that sense the new power is already precedented by the Act to which Mr. Carnworth referred. It will have been used by local authorities for the purposes of the 1984 Act. Accordingly it would seem apt to retain that provision.
I turn to Amendment No. 72, which I assume my noble friend Lord Stanley will be moving. That would also modify the right of entry on to land for enforcement purposes. It would require an authorised person, in the case of land which is used for
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agricultural purposes, to consult the Ministry of Agriculture before entering any such land to ascertain whether any order is in force under either the Animal Health Act 1981 or the Plant Health Act 1967 in respect of that land.
I entirely accept that the farming community and the NFU are rightly concerned to ensure that everything possible is done to minimise the risk of spreading communicable disease to animals or plants by anyone who is authorised to enter agricultural land for enforcement purposes. Amendment No. 72 has been carefully considered. Our conclusion is that it is not necessary. We can achieve my noble friend's laudable purpose by an alternative means.
If the present provisions of Clause 11 are enacted, we intend to issue a circular to all planning authorities giving guidance about how right of entry should be exercised when any agricultural land is involved. We shall advise authorities that before any authorised person intends to enter agricultural land they should consult the divisional officer of the Ministry of Agriculture, Fisheries and Food, or the comparable officer in Scotland, regarding whether any restrictions relating to animal or plant health are in force. Planning authorities will be advised that any such restrictions must be complied with at all times, and that any failure to observe them may result in serious damage to livestock or crops. We believe that that administrative procedure will provide the very safeguard that my noble friend rightly seeks.
His second amendment would add the words "or property" after "land" in the first line of paragraph (c) of subsection 196C. Again I sympathise with my noble friend's intentions. However, our conclusion is that this amendment too is unnecessary. The need for the provision of compensation arises because, where damage is caused in the proper exercise of a statutory power, a claim for damages in deed or tort could be defeated by the defence of the statutory authority. While damage might be caused to land which includes buildings in the proper exercise of a right of entry, we believe it improbable that damage to other property, would be so caused. Thus there is a need for a statutory provision for compensation for damage to land when a claim in common law might be defeated by a defence of statutory authority. In the case of damage to other property where a claim at common law could be expected to succeed, we believe that there is no need.
While I understand my noble friend's concern in tabling these amendments, I hope, in view of what I have indicated, that in due course he will consider that there is no need to press them.
Lord McIntosh of Haringey: In dealing with my Amendments Nos. 69, 70 and 71, the noble and learned Lord the Lord Advocate has sought to suggest that we are proposing to extend the right of entry in an unacceptable way which would be in conflict with civil liberties. He should refer to the Carnwath Report before suggesting that. He would then realise how modest and sensible our amendments are. In his report Mr. Carnwath said that local authorities should be given rights of access to,

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"any land, at all reasonable hours on production of appropriate authority, for the purposes of investigating any alleged breach on that land or on immediately adjoining land, for determining the nature of any remedial action, or generally for the purpose of the exercise of the authority's enforcement functions".
That is a very wide-ranging right of entry. I am not surprised that the Government shied away from implementing that in full and in the words used by Mr. Carnwath. We are not suggesting that the Government should. We are not suggesting that there should be a breach of civil liberties, which we believe is implied in Mr. Carnwath's suggestions.
However, there is the possibility, even for dwelling houses, of an inadequate right of entry. Our very modest Amendments Nos. 69, 70 and 71 seek to improve the provision. Amendment No. 69 introduces the word "solely" after the word "used" in line 35. The purpose of that is to deal with the cases not so much where there is a small non-residential use in a dwelling house, but largely where there is a small dwelling use in a commercial or industrial property. There may be a caretaker's flat in an industrial building with an unauthorised use. There may be a minor dwelling application to a building which is far more importantly something else.
A caretaker's flat in an industrial unit should not make it possible for the right of entry to be restricted after 24 hours. We entirely agree with and support the 24-hour restriction for genuine residential use. We do not think that it should be extended to these mixed uses. If the Government intend to resist that amendment, I hope that, in replying, they will recognise that it is incumbent on them to find a way of dealing with minor residential use in basically non-residential property.
Amendment No. 70 deals with the question of an authorised person as opposed to an occupier. That is where my example of a mixed development, say, of a residential flat or an industrial unit comes into play. One could well have the need to gain access through a security guard who would not be an occupier but an authorised person. I suggest to the Government that that another case which they will have to think about again. They will have to consider whether the provisions of Clause 11, as drafted at present, are adequate for the purpose.
I turn finally to Amendment No. 71, which deals with the requirement for showing urgency to obtain a justice of the peace warrant. In the past, through interpretation of the law, the urgency provision has been very severely restricted by reasonable grounds. The justices of the peace have been very reluctant to grant warrants on the basis of urgency when objectively, I suggest, planning authorities have good reason to know that unauthorised use is continuing and could cause irreversible damage. These are modest amendments and they do not go anything like so far as, for example, the powers of environmental health officers. I am not suggesting that they should. I suggest that the provisions in the clause as presently drafted are inadequate and that the Government
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should think again. I particularly put to the noble Lord the Lord Advocate the cases of the mixed uses and of the security guards.
9.45 p.m.
Lord Stanley of Alderley: I thank my noble and learned friend for his comments on my amendments. As concerns Amendment No. 72, I am as reasonably happy as any reasonable farmer at 9.45 p.m. My noble and learned friend has the right message there. I am only slightly worried about what will happen if this does not take place. However, that is a technical point.
I am not so sure about my noble and learned friend's answer to my Amendment No. 73. I am not a lawyer and I do not really understand tort. It is not a minor point. Many local planning authority officers are not agriculturally minded and are quite unaware of the damage they can cause, particularly to livestock if they are kept intensively, and indeed to young plants and seeds. I wonder whether it might be right to issue the same kind of guidance to local planning authority officers as my noble and learned friend suggested in his reply to Amendment No. 72.
Lord Fraser of Carmyllie: I understand what the noble Lord, Lord McIntosh, says about the small flat in a large building. However, his amendment would mean that someone who lived in a flat above a corner shop would similarly be deprived of the 24 hours' notice protection. I should be happy to look at the point again but I have considerable difficulty in seeing how the provision could be drafted so as not to take away the protection of the 24 hours' notice of someone who lives over the corner shop in contradistinction to someone who might occupy the caretaker's flat in what is otherwise a large building. I give no undertaking or make no promise but I shall look at the matter.
I have difficulty in understanding what an authorised person is. It would have to be someone who is authorised. I find it difficult to believe that even a security guard would be advised that he is authorised to receive notice on behalf of his employer or the occupier from the local planning authority. I do not see what "authorisation" means in this context other than a specific authorisation to receive that item of information.
Lord McIntosh of Haringey: The noble and learned Lord is compounding my fears. If a notice can be avoided simply by the occupier not being present and having a security guard or a caretaker who is not necessarily in occupation, the clause as drafted is even weaker than I thought it was. If his response is to say that it is wrong to have the person there with authority to control exit from or entrance to the building and that he cannot be served with the notice or cannot be forced to give access, the provisions in Clause 11 seem easy to get round. I am really worried by what the noble and learned Lord is now saying.
Lord Fraser of Carmyllie: I suggest that the noble Lord reads what I say and considers it carefully. The security guard would have to be given a specific authorisation. I find it difficult to believe that someone employing a caretaker or concierge would say, "By the

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way, if someone comes from the local authority and seeks to give you notice, you are authorised to accept it". The matter of authorisation has to be specific. The noble Lord may shake his head but one cannot conjure up an authorisation from nowhere. The obvious person to whom it should be given in relation to the dwelling house is the occupier.
I invite my noble friend Lord Stanley to consider what I had to say in relation to property. Where there is a right of entry onto land, it may be that where damage is caused there would be the opportunity to plead statutory authority. However, I do not consider that such a defence or line would be open if property rather than the land itself were damaged.
On Question, amendment agreed to.
Clause 11 [Rights of entry for enforcement purposes]:
[Amendments Nos. 69 to 73 not moved.]
Clause 11 agreed to.
Lord Moran Lord Moran moved Amendment No. 74:
After Clause 11, insert the following new clause:
("Meaning of "development"
. After section 55(3) (b) of the principal Act (meaning of "development" and "new development") there is inserted—
"(c) The use of land for the purposes of breeding or rearing fish or shellfish and the use for those purposes of any building occupied together with land so used is not development for the purposes of agriculture".").
The noble Lord said: This amendment is designed to bring under planning control fish farming activities which are currently defined as "permitted developments". But in a broader sense it is a probing amendment designed to elicit from the Government their policy on the relationship of planning with fish farming which is at present in a considerable muddle. Certainly the Agriculture Select Committee in another place in its report on fish farming last year said that this relationship needed to be clarified. I believe that to be right.
Perhaps I may deal with the three different kinds of fish farms in succession and mention the problems which I believe need to be solved. First, there are the marine fish farms in our coastal waters and estuaries. The fundamental problem, as I see it, is that these are outside the jurisdiction of planning authorities. They come under the Crown Estate Commissioners. However, the commissioners have two conflicting interests. In a sense they are both gamekeepers and poachers. Members of the Committee may remember that that was the fundamental reason put forward by the Government for splitting the water authorities and the NRA. It was said that the old water authorities were in fact both gamekeepers and poachers. The same situation applies to the Crown Estate Commissioners. They have a responsibility to control the coastal waters, but they also have to maximise development and the income which they receive from licences. Therefore, they are naturally biased in favour of development. It seems to me that another authority should authorise fish farms in coastal waters.
There is another problem at present in Scotland where there are fish farms at sea. For example, a planning authority may find that the road leading to a fish farm has become damaged because of use by heavy lorries and that it needs to be repaired. However, no provision has been made for such reparation. The authority is responsible for the repair of such damage, but it has no say in the siting or licensing of the fish farm which is causing the problem.
In my view it would be most desirable that these marine fish farms should be brought under the ordinary planning law and the control of local authorities. The proposal that the control of marine fish farming should be transferred from the Crown Estate Commissioners to local planning authorities has, I am advised, the support of the Convention of Scottish Local Authorities and of the Atlantic Salmon Trust.
I should point out that fish farms of all kinds sometimes give rise to serious landscape and environmental problems. That fact was pointed out in the evidence from the NCC and the Countryside Commission for Scotland to the Agriculture Select Committee of another place. They expressed considerable anxiety over the lack of attention paid to conservation and landscape objectives in fish farm applications by the Crown Estate Commissioners.
So much for marine fish farms, I should now like to say a word about those on land. In its contribution to the White Paper the NRA said:
"Fish farms, too, have given rise to concerns about water quality. Many of these could be reduced if such developments were brought into the planning control framework. It would also be of considerable assistance if planning applications were made concurrent with applications for water abstraction and discharge consent, so that a full picture of the environmental consequences of such developments could be assessed simultaneously".
That is solid good sense; but the issue of fish farms was not specifically addressed in the White Paper.
In its submission to the Agriculture Select Committee of another place, the NRA pointed out that there were clear advantages to fish farmers and other river users if the NRA were able to comment at the planning stage of fish farm development. It said:
"There is no current requirement for this nor for NRA advice to be acted upon… The requirements or otherwise for fish farm units to be the subject of planning control have been and continue to be ambiguous. The NFU, in a fact sheet on the subject, suggest most fish farming structures require planning permission although they refer to certain 'permitted development rights'. In practice, because fish farming has often been deemed 'agricultural', developments may escape planning control. These include large scale (up to 500 tonne/annum) fish cage production units.
What the NRA said should be taken seriously. I hope that the Government will be able to modify matters to meet the valid points it puts forward.
The third category of course is fish farms in inland waters such as lakes. There is great uncertainty as to whether such structures constitute development and so come under the planning mechanism. I understand that the Association of County Councils has addressed itself to two of those problems: to the question of marine fish farms, where it suggests that

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planning controls should extend to one mile offshore for all purposes, not merely for fish farms. I believe that the noble Lord, Lord Ross, may move an amendment later in that context. The association also suggested that there should be an amendment after Clause 18 to make it clear that fish farms in inland waters constitute development. Again, I understand that the noble Lord, Lord Ross, may be moving such an amendment.
The matter needs clearing up. In view of the impact that fish farms have on the environment generally, it is important that all categories should be brought under the planning mechanism. I move the amendment jointly with the noble Baroness, Lady David, who has asked me to say that unfortunately because of the late hour she has had to leave, but that had she been here she would have spoken because she feels strongly about the issue. I beg to move.
Lord Stanley of Alderley: I do not entirely support the noble Lord, Lord Moran, on the amendment. I shall ask him three brief questions. First, I cannot see how a local planning authority will control the effluent from a fish farm any better than the NRA. Moreover, because of the controls on fish farms now, it is doubtful that any new ones will be built. Finally, the buildings for fish farms are extremely small and normally underground. Perhaps the noble Lord will deal with that when he replies.
10 p.m.
Lord Ross of Newport: I confirm that it is my intention to move two amendments later in the Bill at the request of the Association of County Councils whose brief I have here. Apparently it does not think that the amendment proposed by the noble Lord, Lord Moran, should be supported. I do not understand the reasons—no doubt it will tell me later—because the amendment seems to be totally on a par with what I have in mind.
One of my first adjournment debates in the other place raised the question of fish farming because I was very much in favour of the idea. It seemed to me natural that we should do all we could in food production to make use of an obvious source which is successful particularly in the Far East. It is now big business. In Scotland it is a major industry. But it causes problems with effluent, as we know. There are also problems with the Crown Estate Commissioners, who not only grant or give the consent but who control the situation. I know from meetings I have had with the NCC in its existing state and with people involved in environmental matters that everyone feels the problem should be faced by the Government and action taken. The noble Lord, Lord Moran, has a close relationship with the NRA, and, as he said, it causes the NRA problems.
I always hesitate to speak on anything which refers more to Scotland than anywhere else, but that is where this business is. My Scottish colleagues do not necessarily agree with all I say on the subject, but I think there is no question that in the Bill we ought to
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make some advance on the matter. It seems to be an opportunity to obtain some control and therefore I support the amendment.
Lord McIntosh of Haringey: I know that, as the noble Lord, Lord Moran, said, my noble friend Lady David would have wished to be here to support the amendment. She is particularly concerned with coastal fish farms, which, as the noble Lord, Lord Ross, said, through an extraordinary historical anomaly are under the control of the Crown Estate Commissioner. They are supposed to work closely with the Nature Conservancy Council in the control of fish farms and a special advisory committee has been set up to advise them. However, I am told that the Crown Estate Commissioners frequently completely ignore the advice of that committee and go against the opinions of the Nature Conservancy Council.
It can only be an historical accident; there can be no rational justification for fish farms being under the control of the Crown Estate Commissioners. If we started from scratch, we should certainly not do it that way. We should put them under the control of the relevant local authorities. As I understand it, both the Association of County Councils and the Convention of Scottish Local Authorities have indicated their willingness to take on these responsibilities. Thus I can see no difficulty in removing the anomaly or in the Government accepting the amendment and doing what ought to have been done many years ago.
Lord Moran: With the Committee's permission, perhaps I may briefly answer the two questions put to me, the first by the noble Lord, Lord Stanley of Alderley. I do not believe there is any conflict between the interests of the local authorities and the NRA. The point that the NRA made is that at the moment there is no requirement for it to be consulted at the planning stage. If it was, when it discusses discharges and effluent it could often propose a sensible solution that would not damage the rivers and would be in the interests of the fish farmer concerned. That would be a great advance.
As concerns the Association of County Councils, like the noble Lord, Lord Ross, I was mystified when I received its brief that it did not support my amendment. However, the brief continued with four admirable paragraphs with which I totally agreed. I pointed out that I agreed with every word and therefore I did not see why it should not support me. However, I should pursue that anomaly with the association.
Viscount Astor: As noble Lords know, last year the House of Commons Agriculture Select Committee made an in-depth study of fish farming in the United Kingdom. The point about the noble Lord's amendment is that it would alter the long-standing definition of "agriculture". The Select Committee recommended that in England and Wales existing permitted development rights for fish farming operations should be removed from national parks, but not elsewhere. It expressed the view that buildings associated with fish farming should be treated in the same way as buildings associated with other agricultural users.

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The Government have accepted the recommendation of the Select Committee and will amend Part VI of Schedule 2 to the Town and Country Planning (General Development) Order 1980 so that operations associated with fish farming in national parks in England will require specific planning permission before they can take place. No convincing case has been made for changes in England and Wales outside national parks. There are no permitted development rights for fish farming in Scotland. The fish farming industry in England and Wales is much smaller and the Agriculture Select Committee noted that there has been little controversial development.
If I may turn to other matters that the noble Lord raised, there was the point about the NRA. It has some power over fish farms, but obviously not planning power, because fish farms are subject to the control provisions of the Water Act 1989, and it is an offence to discharge any polluting matter into inland ground estuarial or coastal waters without authorisation. The discharge of fish farm effluent into these waters must be consented to by the NRA, which has wide powers to attach appropriate conditions to consents for the purpose of protecting the quality of the receiving waters. Fish farms also obtain an abstraction licence from the NRA under the Water Resources Act 1963 for the abstraction of more than 20 cubic metres of water per day.
Going back to some of the other points that the noble Lord raised with regard to marine development and fish farms, the planning control generally ends at the low water mark. The important point about the Crown Estate Commissioners is that they are answerable to ministers, they have access to independent and expert advice and they have a fairly large department now, which I have been to see. I believe that there are over 200 people in Edinburgh now. They also have an advisory committee. The Government will keep the activities and procedures of the advisory committee under review to ensure its effectiveness. When it comes to granting licences, it consults local opinion, local landlords and other local interested bodies.
The important point is that local authorities do not have special expertise about conditions at sea. They have no expertise at all in this matter. This is very different from development on land. Existing consultation arrangements enable the Crown Estates Commissioners to take proper account of environmental considerations. I believe that I have answered most of the noble Lord's points.
Lord Ross of Newport: There is a desperate need for people on this side of the Committee to get together before Report stage, because this is a clean Bill for the Crown Estate Commissioners. They are in the same position as local authorities, giving themselves planning consent for land and then selling it for a large amount of money. I have to tell noble Lords that in the NGOs the role of the Crown Estate Commissioners, particularly in Scotland, is not at all highly regarded. People do not believe that they are
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doing their job at all properly, and I do not think it is right that they should be both the seller and the buyer in the same field. The positions ought to be separated.
I have also been told—I am not a fisherman, but the noble Lord, Lord Moran, is—that the Test, which has a lot of trout farms on it, now has very few wild trout. I do not know whether that is right, but the river has certainly been polluted. We must look at the situation in greater detail if we mean what we say about Her Majesty's Inspector of Pollution and the NRA. I agree that they may have some rights. However, the procedure will have to be toughened up considerably.
It would be much better to follow the planning application procedure before someone starts such a project, rather than risk ruining such a project when it is already operating. If someone wishes to set up a fish farm, it would be much better for him to follow the proper procedures rather than be penalised after he has raised the finance and invested capital in the project. I believe the present procedure goes about things in the wrong way. I am sure we shall have to return to this measure later in the Bill.
Lord Moran: I, too, think that we shall have to give more thought to this matter and probably return to it at a later stage. I was disappointed in the Minister's remarks as I think that changes are urgently required. The Minister referred to planning controls being extended only to fish farming in the national parks. The National Rivers Authority was disappointed that the Government, in their response to the report of the Agriculture Committee of another place in December, agreed with the committee that the planning controls should operate only in the national parks. I do not believe that there are many fish farms in national parks. The NRA would certainly like the controls to operate nationally. Having said that, I do not wish to press the amendment at this late hour. I hope that the Government will give more thought to the matter between now and Report, as we certainly shall. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 74A:
After Clause 11, insert the following new clause:
("Agricultural and forestry buildings
.—After section 59(3) of the principal Act (development orders) there is inserted—
"(4) No development order may grant planning permission for the erection of a building or the formation of a private way for the purposes of agriculture or forestry." ").
The noble Lord said: I understand that Amendment No. 74A is to be discussed with Amendment No. 109. The latter amendment stands in the name of the noble Lord, Lord Ross of Newport. Amendment No. 74A places a toe, and only a toe, into the very deep water of the extension of planning controls to agriculture and forestry. I see that the noble Lord, Lord Stanley of Alderley, is still in the Committee. I am sure that he will seek to bite that toe, even if he cannot reach any larger part of my anatomy.
I wish to start by saying that I can well anticipate what the Government will say on the issue of primary

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legislation and general development orders. I am aware that for many years government have taken the view that the extent of the coverage of general development orders should not be a matter for primary legislation. They believe there ought to be the flexibility for government to make changes by amendments to general development orders. Even if the cause is entirely worthy—and I am not convinced that the Government will think this cause is entirely worthy—they believe it should not be included in primary legislation.
I disagree totally with that view. I believe that the issue of what should be covered by planning legislation is a matter for primary legislation, if anything is. It should be a matter for us in Parliament to consider. We should be concerned with the fact that a large part of land in this country outside urban areas is farmland or forestry land. It has been tacitly excluded from planning controls by executive action in general development orders.
I shall not venture into the territory of agricultural or forestry operations. However, I believe that there is a particular abuse which is extremely widespread. It concerns the use of a general development order to allow farm buildings to be constructed which would never be allowed to be constructed under any rational system of planning control. In many cases those buildings are not farm buildings. We have all seen post-modernist barns, cowsheds with pediments, turkey sheds with double glazing and elaborate drives with crazy paving leading up to so-called farm buildings. Such things can be seen all over the country and it is totally impossible for planning authorities to challenge the claim that such buildings are farm buildings even though it is obvious to the naked eye that if there is a farm use at all of such buildings it is only for a temporary period. It is obvious that such a ploy is a way of evading proper planning legislation.
If we could find a way other than changes in development orders of controlling this abuse of planning legislation, this avoidance of planning legislation, I assure the Committee that we would do so. However, planning officers around the country who are charged with this responsibility have discovered that there is no way of doing it. The only way of doing it is what we propose in this amendment, which is to bring farm buildings and farm roads out of the exemption provided by general development orders and into the planning procedures of this country.
After all, why should farming be so different from any other form of economic activity? In every other form of economic activity it is accepted that planning laws, except in enterprise zones, should control the development of the buildings because that develop-ment affects other people. Farms affect other people just as much as anything else. Farms are not, or ought not to be, aside from the rest of the world. We are all concerned with our rural landscape. We are all concerned with the way in which our countryside is used and the way in which our countryside has buildings on it.
The way in which the farming community has abused the freedom from planning control of farm buildings ought not to be accepted. This is the proper Bill in which the matter should be put right, and the only way to do it is to prohibit the general development order from this quite unreasonable, unwarranted and outdated exemption. I beg to move.
10.15 p.m.
Lord Stanley of Alderley: I suppose that I have got to reply to that passionate inveigling against me by the noble Lord, Lord McIntosh. I know that it is 10.15 in the evening but it really was, if I may say so, a flight of imagination as to what farmers do or do not do. Having said that, and having replied to the way in which he put the amendment, my rational answer to his amendment is that, as I understand it, the Government are proposing a system of prior notification, and I really do not see that there is any need for the further control that the noble Lord's amendment suggests. As he is only putting his toe in the water on this, I too shall only just put my little toe in at this stage, but I do not like it much.
Lord Ross of Newport: May I say to the noble Lord, Lord Stanley of Alderley, as a former member of the NFU and as somebody who farmed and who now lives in the countryside not so far away from him, that we see very large agricultural buildings, and I sometimes wonder. I know that the grants are now being substantially reduced, but they went up because there were substantial grants to be had to build them. No doubt the Minister will remind us that there are in existence now planning controls for larger farm buildings over, I think, 5,000 square feet, and I believe that silos also now come under planning law. Perhaps we could get confirmation of that.
I am concerned on behalf of the CPRE. They want to make it clear that they support an amendment giving the Government discretionary power to extend planning controls over agricultural and forestry operations. They envisage that power being used to bring only the most major agricultural operations under control, and to extend planning control over all afforestation above a threshold size to be defined by the Secretary of State. I think that that is even more important. Such controls would enable the public to comment on, and local authorities to prevent or modify, proposals which could have a lasting and damaging effect on the environment.
I make it clear that the amendment that comes from the CPRE does not support planning controls over all agricultural operations, and nor would I want to do so. But there is irrefutable evidence of the damage caused to the countryside by major agricultural and forestry operations, and there is public recognition of the need to change. I should be interested to hear what the Minister has to say in reply to these two amendments, which have unfortunately come on at 20 past 10 at night. I think that this is too important a subject to discuss now and one that we ought to be able to debate at much greater length.
Viscount Astor: Our view is that the planning system should continue to recognise the special

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operational needs of agriculture and forestry businesses. The relationship between fanning and forestry land use is unique, as recognised from the inception of the modern town and country planning system over 40 years ago.
However, that is not to say that we regard any change in the current planning system as it affects agriculture and forestry as out of the question. The fact is that we have shown we are prepared to introduce new controls where we are convinced that they are justified. For instance, two or three years ago we introduced new restrictions on the erection of buildings for livestock close to other residential property.
Last autumn we published a consultation paper on planning and control over agriculture and forestry buildings. That paper invited views on the proposition that all farm and forestry buildings should be subject to prior notification —essentially the same notification scheme as already operates in our national parks. It would enable local planning authorities to control the siting, design and external appearance of farm buildings erected under the general development order. The paper also invited views on the question whether farm and forestry roads should be included in any new notification agreements and on the treatment of extensions and alterations to farm buildings. It also proposed to increase the minimum area of agricultural land attracting permitted development rights under the general development order, with special provision for genuine units below the new higher threshold.
The period for responses to that consultation paper has only just expired and we are still in the process of analysing the several hundred responses we received. It is too early to say what final decisions we want to take in the light of the consultation exercise.
The point I am making today is that we are prepared to consider change where there is evidence that it is needed and, should we be persuaded, the powers already exist which would enable us to require specific planning applications for agricultural and foresty buildings and roads.
As the noble Lord, Lord McIntosh, made clear we consider that this type of development should not be the subject of an amendment like this and should be clearly set out in primary legislation and be subject to full parliamentary debate. The Government do not want a power which will enable the definition of "development" to be amended which will lack that degree of scrutiny.
The noble Lord, Lord McIntosh, also made a point on farm buildings and mentioned various abuses. I think that the strengthened enforcement provisions in the Bill should very much help that situation. However, that is a separate argument from this amendment.
The noble Lord, Lord Ross, mentioned the question of planning permission for large buildings. I think that buildings larger than 5,000 square feet, or higher than 12 metres, are subject to full planning controls at the moment. We are not convinced at this
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stage that there is a need to withdraw permitted development rights for agriculture. Nor are we convinced of the need to extend planning control to agricultural and forestry operations, even on a selective basis. There are, in our view, particular difficulties about using the relatively inflexible mechanism of the planning system to control activities which are necessary in the course of the day-to-day operation of a business. The need for efficient and flexible agricultural and forestry industries remains very important. Therefore, I hope that the noble Lord will withdraw his amendment.
Baroness Seear: Perhaps I might ask whether the noble Viscount began by saying that he thought this should be subject to primary legislation? This is primary legislation, is it not?
Viscount Astor: The point I was trying to make was that it should not be something just tacked on by an amendment in this way but should be subject to full parliamentary debate in a separate Bill.
Lord McIntosh of Haringey: The noble Lord is digging an even bigger hole for himself. First, he misunderstands the relationship between the develop-ment order and primary legislation. Secondly, in response to the noble Baroness, Lady Seear, he said that the only proper primary legislation is that which is put forward by the Government, and that amendments put forward in Parliament are not acceptable as primary legislation.
Viscount Astor: I must correct the noble Lord. I certainly did not mean to say that. I am sorry if he misunderstood me.
Lord McIntosh of Haringey: That is the effect of what was said. I cannot say that I am surprised by the general tone of the Government's reaction to this amendment. However I am bound to say that there are more misstatements and misunderstandings in that short reply than I have known for some time in a government response.
Let me start again from the beginning. The noble Viscount claims that, because the exemption from planning control of agricultural operations started over 40 years ago, somehow that ought to continue. Perhaps I may remind him that the Town and Country Planning Act 1947 was introduced at a time when we had a desperate need to increase agricultural production in order to feed the population because of the food shortages in this country in the post-war period. The position is reversed now. The difficulty is to find ways to reduce agricultural production without throwing too many farmers on the scrap-heap. It is a very different situation and there is no reason for the same exemptions that applied in 1947 to be applied now.
The noble Viscount said that the Government are consulting on this matter. Apart from the objection which I raised earlier to consultation taking place while the Bill is before Parliament so that there is no opportunity for the results of the consultation to be considered by Parliament, the fact is that the consultation is on a very limited basis. It is only about

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prior notification of development of agricultural land. It is not about proper planning control. Notification is by no means the same thing as planning control.
The amendments which are proposed about the size of agricultural units do not affect the size of agricultural buildings. Reference has already been made to the very large agricultural buildings that can be built on small and large agricultural units. If the scope of the consultation had been rather wider we might have taken it more seriously. But clearly it is only a pinprick at the edge of the abuse of planning controls that is now available to the agricultural community.
Lord Stanley of Alderley: Perhaps the noble Lord will allow me to rise. He said that this measure does not apply to agricultural buildings. But, yes, any agricultural building of 474 square metres comes under planning control. I think that that is the figure. I am sure that the noble Lord realises that, does he not?
Lord McIntosh of Haringey: I think that the noble Lord will find that it comes under the notification procedures and not under planning control. As I said, that is a very inadequate substitute for proper control.
Lord Stanley of Alderley: I am sorry to get to my feet again but I do not think that the noble Lord is right. I certainly had to apply for planning permission for the last building that I put up.
Lord McIntosh of Haringey: I yield to the noble Lord's personal experience. No doubt we can talk about this matter at another time and in another place.
Lord Ross of Newport: Surely the point that is being made is that one has to obtain planning permission for a building of 5,000 square feet or above, or so we were told. The fact is that one can erect any number of additional buildings which are, say, 4,500 square feet and continue to add. That is the problem, although the noble Viscount says that it is not so. I say to the noble Lord, Lord Stanley, that what is worrying many noble Lords, and incidentally other people in the rural community as well, including farmers, is that one now finds huge almost industrial buildings in the heart of the countryside. That is what upsets me. I am sorry but it is true. I can take the noble Lord, Lord Stanley, and show them to him at any time.
Lord Stanley of Alderley: I am sorry to have to speak yet again. I had exactly the same problem. If one adds to a building one has to go again to the planning authority.
Lord McIntosh of Haringey: Let us leave on one side the property of the noble Lord, Lord Stanley, and not exercise any right of entry. The fundamental issue remains. If it is not proper in a Bill on the enforcement of planning laws to deal with the abuse whereby a large part of land outside urban areas is exempt from planning laws, it is difficult to understand where it would be proper. My amendment is a modest one. It does not cover agricultural forestry operations as a whole. It covers only buildings and roads. It only covers them because it is necessary to deal with widespread abuse.
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As I said, I am not surprised by the Government's reaction nor by that of the noble Lord, Lord Stanley. However, I am deeply disappointed by the lack of understanding of the need to make our planning laws effective not only in terms of enforcement but also in terms of their coverage. I suggest that this Bill is the right place to do that. It is only because of the time of night that I refrain from seeking the opinion of the Committee. I beg leave to withdraw the amendment.
10.30 p.m.
Viscount Astor: Perhaps I may clarify a point that I made earlier. The amendment tabled by the noble Lord, Lord McIntosh, proposes primary legislation. Our objection was to the proposal in the amendment tabled by the noble Lord, Lord Ross, which proposed action by way of development order.
Lord McIntosh of Haringey: I am grateful. As is now clear, my amendment uses primary legislation to restrict the general development order rather than the reverse. That was why I exclaimed in surprise when the noble Viscount made his comment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 36 [Rights of entry for enforcement purposes]:
On Question, Whether Clause 36 shall stand part of the Bill?
Lord Fraser of Carmyllie: For the reasons that I indicated when moving Amendment No. 68, which inserts a new clause, it would be inappropriate if Clause 36 were to stand part of the Bill. I have given notice of my intention to oppose the Question.
Clause 36 negatived.
Clause 12 [Planning obligations]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 75:
Page 19, line 17, leave out ("or otherwise") and insert ("with the authority").
The noble Lord said: I understand that my amendment is to be taken with Government Amendments Nos. 76, 77, 79, 80 and 82. The Committee will forgive me if I do not comment on those amendments until they have been properly introduced from the Government Front Bench.
Amendment No. 75 is one of the two or three most important amendments to the Bill. It received considerable attention on Second Reading. We feel strongly about the matter and are sorry that the timetable is such that it arises at 10.30 at night rather than at a time when more Members are available to consider it.
Planning agreements—Section 52 agreements as they were; Section 106 agreements as they have been since the consolidation Act of 1990—have been an important part of planning legislation for a number of years. I am aware that some people believe that they can be subject to abuse. I am also aware of accusations made against local planning authorities of selling planning permission and seeking to obtain irrelevant planning gains and financial contributions to local authority services in return for granting planning

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permission which they would not otherwise have granted. Sometimes that can be entirely benign; for example, when provision is made for social housing in a scheme which would otherwise provide only luxury housing. There the proper concern of a planning authority is for the balance of housing in a particular area. But sometimes it can be malign, in the sense that a local authority can give permission for a retail or industrial development on the basis of the provision of car parking facilities, which may or may not be socially desirable or in the interests of the retail development, let alone the wider community.
What is common about all the planning agreements is that they are between the potential developer and the local authority. The Bill now introduces a completely new provision. It is that developers seeking planning permission can make unilateral undertakings without the agreement of the local authority. Those undertakings can be taken into account in later decisions. For example, they can be taken into account by the Secretary of State in considering an appeal. That means that the Secretary of State is able to second-guess the local authority about its own planning priorities. He is able to judge not only whether the local planning authority has been right or wrong in its interpretation of planning law or of the public interest for a particular development but also the local planning authority's wider concerns which would otherwise have been expressed in Section 52 or Section 106 agreement.
That means that in these proposals we have substantial extension of the Secretary of State's power. That means that he now has the power to revoke or modify agreements which have been freely entered into between local authorities and developers. Those are not impositions upon developers but have been agreed between the local authority and the developer. Some people sometimes say that they are impositions by the developers upon the local authority. That means that the negotiating position of the local authority in dealing with developers will be reduced. The negotiating procedure will be prolonged because the uncertainty will exist at the end of the day as to whether the Secretary of State, in considering an appeal, will consider a unilateral undertaking and not simply an undertaking made as part of an agreement between the developer and the local planning authority.
The second implication is that local authorities may be required to enforce unilateral undertakings to which they have not been a party and which they may never have wanted. I cannot see how it can be right for local planning authorities to be put in that position. All the emphasis today has been upon enforcement. Surely enforcement is of the planning policy of the local planning authority and of the law, not of a unilateral undertaking which may go completely counter to the interests of the community as expressed by the local planning authority.
My third objection is that those unilateral undertakings would be most unlikely to take full account of the land use issues in the same way as
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would a voluntary agreement between a local planning authority and a developer. After all, a planning authority must have local knowledge, expertise and accountability to enable it to reach an agreement. That must be the considered view which is put in the end to the Secretary of State at an appeal. However, a unilateral undertaking would have to be enforced and paid for by a local authority because it could involve all sorts of additional expenditure in terms of additional road network, access and other local authority services such as refuse collection and so on. All those agreements will be imposed upon local authorities as a result of something in which they had no part and which they had no wish to see imposed.
Whatever may be the import of the government amendments in this group, the concept of unilateral undertakings as additional to the existing concept of planning agreements is a most undesirable addition to planning law. It will do enormous damage to the ability of local authorities to plan sensibly for their communities and to plan the services which are needed for their communities. I feel most strongly that this is an excrescence on the face of a Bill which in many ways is very welcome. I am sorry to find that the Government are proceeding with this addition to what is in many ways an excellent Bill. I beg to move.
Baroness Blatch: One must agree that there is a fundamental difference between the noble Lords opposite and the Government. Amendment No. 75 is effectively a wrecking amendment. It will remove from Clause 12 one of the main reforms that the Government are seeking to introduce enabling a planning obligation to be created by an undertaking as well as by agreement with the local planning authority. The Government believe that this is a well chosen and well considered reform. It was the subject of full public consultation in 1989 and it was supported by the majority of respondents who commented.
I want to emphasise that the Government see creating an obligation by an undertaking as an alternative to doing so by agreement, not as a replacement. It is an additional weapon in the armoury of a developer faced with a recalcitrant local authority which holds out for excessive and unreasonable gain, and which therefore refuses or even fails to determine a planning application. Plainly developers and authorities would prefer to reach agreement if they possibly can rather than going to the expense and delay of an appeal. But where only an appeal can break the deadlock, an undertaking may help to resolve matters.
It may assist the Committee if I explain the background to the undertaking's provision and how we expect it to work. At present, if there is a planning objection to a development proposal, which only a planning agreement can remedy, but the local authority is unwilling to reach such an agreement, the developer is stuck. He may go to appeal, and the inspector may decide that he is minded to grant permission subject to completion of an agreement. But if the local authority is still unwilling to make such an agreement, the developer is no further forward.

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Enabling the developer to create an obligation by means of an undertaking is a way through this impasse. Such an undertaking, where relevant to the proposed development, will be a material considera-tion on appeal, and the inspector will therefore take account of it in determining that appeal. Undertakings will, we expect, be couched in terms promising to do or not to do certain things once planning permission is granted. Once the grant of permission is issued, the developer will be bound.
I should finally clear up some misconceptions about planning obligations created by an undertaking. First, to enter into an obligation someone must have an interest in the land concerned. A developer will not be able to bind himself to do what he manifestly cannot do. Secondly, a developer cannot, by means of an undertaking, bind the local planning authority, or anyone else for that matter, directly to do anything.
I have endeavoured to clarify as best I can what is a verb tricky subject. I hope the noble Lord will withdraw his amendment.
Amendments Nos. 76, 77, 79, 80 and 82 are drafting amendments. They establish that only the local planning authority which is identified in the deed (see the new subsection 106(7) in Clause 12), may enforce a planning obligation. This clarifies the position in the shire counties where there are two local planning authorities; the county council and the district council. They are technical amendments designed to avoid any ambiguity.
Lord Ross of Newport: Perhaps I may say briefly that I give a cautious welcome to the Government's proposal. There are cases where this provision could work very well indeed; on the other hand, it can be abused. We shall have to be very careful. On the whole it has something to be said for it.
10.45 p.m.
Lord Sainsbury of Preston Candover: I support what the Minister has just said. The purpose of the Bill, as agreed by this Chamber, is to make the planning system a more efficient system. This is one of the most important ways that the Bill achieves that. It allows the current planning agreements to continue as well as allowing unilateral undertakings. It will make it more efficient without any loss of control by the local authorities, or indeed by the Secretary of State.
I should like to take up a moment of the Committee's time explaining why it is so important that the efficiency of our planning system is improved. The Government laid down an objective that 80 per cent. of planning applications should be decided within an eight-week period. In 1979 it had been around 60 per cent. During the period 1982–86 it improved to around 70 per cent. Over the past three years that achievement rate has declined, and today it is as low as 46 per cent. Only 46 per cent. of planning applications are decided within the target eight-week period.
The Department of the Environment in its speed of handling planning appeals has as bad a record. The Government set a target of 17 weeks as the average time to process and decide a planning appeal. In the
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third quarter of last year the average time taken to decide a planning inquiry was no less than 39 weeks, which is 22 weeks longer than the Government's target. That was also during the time of the downturn in the economy. Who should doubt the fact that there is a need to examine any means by which the planning system can be made a little more efficient and quicker? Research undertaken by Reading university and which has been vetted (the department has a copy) demonstrates that for every one week that planning decisions in this country are delayed there is extra cost in the region of £35 million to £4O million. Therefore, a 22-week delay over what the department thinks is the right target imposes a huge and unnecessary burden on this country and its development industry. I accordingly believe that any provision which can help to speed up planning requires most careful consideration.
The provision for unilateral undertakings will have effect in reality only when a situation arises in which the Secretary of State has to decide an application on appeal. Obviously, undertakings offered to a local authority and accepted by it prior to, or even during, an appeal would not be unilateral undertakings but planning agreements. Unilateral undertakings will only have a purpose when an application is taken to appeal and the Secretary of State decides that it is appropriate for the appellant to offer a benefit to the local authority in exchange for planning agreement.
At the moment the Secretary of State has two options in such circumstances. He may either give a "minded to allow" decision or accept an undertaking from the developer on behalf of the local authority. If a "minded to allow" decision is given, the developer is likely to face further delays of between three and six months while he and the local authority seek to agree a planning agreement. A major disadvantage of this procedure is that, if the two parties do not agree, then either the Secretary of State has to give approval for the development without any planning gain or an otherwise acceptable development is frustrated.
Alternatively, the Secretary of State is already empowered to choose to accept an undertaking from the developer at an inquiry. There is judicial authority for this. I think the case concerned is that of the Hildenborough Village Preservation Society 1978. However, such existing undertakings lack the statutory backing provided by this Bill. Problems such as difficulties with enforcement and interpretation may arise. Far from restricting the powers of local authorities, I believe that the unilateral undertaking provision offers many real benefits to them. An undertaking would only exist when it had been made by the developer and accepted by the Secretary of State. Since the local authority is not party to the acceptance of the undertaking, it would not be legally bound to accept the benefit.
I turn to the example of the public open space which was referred to by the noble Lord, Lord McIntosh, at Second Reading debate. He quite properly suggested that it would he unfair if a unilateral undertaking imposed additional cost on a local authority since it had not been party to the

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agreement. However, if, following an inquiry, the Secretary of State grants approval for a planning application in exchange for a unilateral undertaking by the developer to give—shall we say?—public open space to the local authority, then there is nothing in the Bill to require the local authority to accept the gift. Indeed it could very easily refuse to accept the conveyance of the land. Not only would the local authority be in a position to choose whether or not to accept the land but it would also be possible for the Secretary of State to require, within the terms of the undertaking, the developer to include with the gift of the land a commuted lump sum to cover maintenance costs.
Under the new system and prior to the Secretary of State's acceptance of a unilateral undertaking, the local authority would of course have an opportunity to make submissions during the inquiry about the content of the undertaking. The Secretary of State will also be bound by his own strict guidance set out in DoE Circular 22/83 as to what is and what is not appropriate in terms of planning gain. It would thus be possible for a local authority to challenge his decision if it felt that the package was inappropriate. Unlike the undertakings which the Secretary of State might accept at present, under the new system the content of undertaking would be clear, being executed by deed, and thus problems of enforcement and interpretation would, I suggest, be considerably lessened.
Lord McIntosh of Haringey: I am deeply conscious of the expertise in this area of the noble Lord, Lord Sainsbury. I am sure that he has given adequate consideration to the issue of whether he should have declared an interest when speaking on these matters.
The noble Lord made a number of statements about the implications of unilateral agreements. I simply cannot agree with him. The critical judgment about whether planning agreements should be entered into and whether they are acceptable in planning terms is set out clearly in planning policy guidance note I. That is the Government's planning policy guidance; it does not come from us. The note says that the facilities to be provided or financed should be directly related to the development in question or the use of the land after development.
The noble Lord's example of the provision of public open space, in respect of which he said that the local authority is not obliged to accept the covenant of the land or to maintain the public open space, indicates to me that he does not fully appreciate the implications of the planning policy guidance note or the relationship between the development and the gain, which is otherwise under an agreement to be agreed between the developer and the local authority. I wonder whether he fully appreciates—and I wonder whether the Government fully appreciate—that if facilities are produced by a developer as ancillary to a planning permission, the local authority has to continue to provide services, has to provide access if it is not available or continue to provide access if it is
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available at the outset, and has to maintain any facilities which are produced for the public benefit. All those things cost money.
When there is an agreement between a developer and a local authority under Section 106, all that is entirely acceptable because the local authority is making the judgment with its eyes open. But when there is a unilateral agreement, or, as is made clear both by the Government and by the noble Lord, an agreement in effect between the developer and the Secretary of State, the local authority is the pig in the middle. The local authority, not necessarily wanting those facilities, will have to maintain them, pay for them or reject them, which means that the so-called planning gain, the undertaking, is of no meaning and the Secretary of State ought not to be considering it.
The Minister tells us that there has been consultation on this matter and that there have been a large number of replies in favour of the Government's proposals. I am bound to ask: who has replied in favour of the Government's proposals? Which of the local authority associations has replied in favour of the proposals? Which of the professional institutes concerned with planning and planning law has replied in favour of the proposals? The Royal Town Planning Institute carried out an extensive survey which unearthed very few abuses of the kind which are alleged for planning agreements.
The Minister says rightly in response to my amendment that there can be no binding commitment to do something which the developer has no power to do. I accept that, but it is not a very powerful argument. I should have thought that it was tautologous. It is claimed that there is no question of binding the local authority directly to do anything. Of course there is no question of binding the local authority directly, but what we are complaining about is that the local authority will be bound indirectly to do many things with which it may not agree.
If I am to be convinced that this major change to planning law is required and that this major weakening of the authority and responsibility of local planning authorities is acceptable, I need to be given examples of the abuse which it is designed to correct. I have had no examples of that abuse. The Royal Town Planning Institute has found no examples of the abuse.
I must say that I am deeply disappointed by the response of the Liberal Democratic Party to the issue. I shall be most interested to see whether it pursues the matter when the Bill reaches another place. I have never before heard the suggestion that it was in favour of unilateral agreements. I believe that the noble Lord, Lord Ross, may find himself alone in the matter.
Lord Ross of Newport: I am not ashamed of that fact. I must point out that we would not have to dig too deep to find examples of local authorities which have been totally and utterly bloody-minded with perfectly capable and excellent developers. Indeed, I could name one in my old constituency. I gave a cautious welcome to this proposal. I realise that it could be abused. But, on the other hand, one of the

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finest things which happened in my old constituency was the completion of a first-class job by a property company. I do not believe that the local authority really wanted to help the company one iota. If developers cannot get any sense out of some of the planning committees then they should have the right to "do a deal" with the Government's consent. After all, Lambeth Council would not even talk to British Rail about Waterloo, which was absolute nonsense. Of course, there will be much talk about it, but there are umpteen examples all over the country of local authorities which, as I said, have been totally and utterly bloody-minded over very sensible developments.
Lord Sainsbury of Preston Candover: If having an interest in a more efficient planning system for this country requires a declaration of interest, I must apologise to the Committee for not declaring such an interest. I suggest to Members of the Committee that the whole country has an interest in a more efficient planning system. I also suggest to the noble Lord opposite that he has ignored the point that a system which protracts decision-taking as regards planning for a further three to six months is not consistent with an object which everyone in this Chamber wants to achieve; namely, a more efficient planning system.
I further suggest to the noble Lord that he has failed to take the point that if a local authority has a good case for not accepting a unilateral undertaking, and not taking responsibility for such a liability, it will have the opportunity of establishing that case in the public inquiry. It will then be a decision for the Secretary of State, and if he makes the wrong decision the matter would be outside our control. It is for the Secretary of State to listen to the local authority and to make a judgment as to whether the authority's reservations about a unilateral undertaking are valid.
Lord McIntosh of Haringey: I do not think that what the noble Lord has just said affects the issue. In my view, we still have the position where the developer and the Secretary of State have the ability between them to come to an agreement which will be indirectly —not directly—binding upon the local authority, which will run the risk of the local authority being involved in extra expenditure and which will also run the risk of providing or financing facilities which are not directly related to the development in question. That the issue. It must be an agreement with the local planning authority, which knows about the needs of the area around the land destined for development, to participate in that discussion and agreement.
The noble Lord, Lord Sainsbury, made very valid points about delays in planning permission which I
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acknowledge. However, the amendment is not about delays in planning permission; it is about unilateral agreements being entered into without the approval of the local authority. The powers for a developer to claim that refusal has been deemed after the expiration of the legal date are not affected by the proposed amendment. The matter can still go to appeal when the allotted number of weeks have expired.
I am sure that the noble Lord is right if in fact he is saying that the time taken to consider planning appeals has increased. If that is so, I hope that he will support future amendments from these Benches which will seek to outlaw the kind of twin-tracking, duplicated appeals which take up so much extra time and which make it more difficult for local planning authorities to keep within the planning period.
What planning authorities do with greater or lesser degrees of efficiency is to deal with the planning applications which come before them. If developers deliberately put forward a number of alternative applications in order to get around the rules, then one of the effects will be that the decision period involved will be prolonged. That will affect not only them, but also everyone else.
The noble Lord and I are on the same side on the issue of delays in planning appeals. It is only on the issue of unilateral undertakings that we are not in agreement. I am conscious that it has been agreed that the Committee will adjourn at approximately 11 p.m. I do not wish to try the Committee's patience. It is extremely unfortunate that this important subject has arisen at this late hour. It is not a matter that we can allow to drop. It is of fundamental importance to the ability of local planning authorities to do their job properly. The Government's proposals are regrettable in an otherwise welcome Bill. We shall be forced to return to this matter at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendments Nos. 76 and 77:
Page 19, line 20, leave out ("by the authority").
Page 19, line 44, at end insert ("by the authority identified in accordance with subsection (7) (d)").
On Question, amendments agreed to.
Viscount Astor: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at eleven o'clock.