Lords Sitting of 16 March 2004

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Oxford.

Circuses: Entertainment Licences
Lord Redesdale Lord Redesdale asked Her Majesty's Government:
Whether they will address the issue of applications for entertainment licences from circuses in the forthcoming guidance to the Licensing Act 2003; and how flexibility will be incorporated into those licences.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, the Licensing Act 2003 makes no provision to treat licensable activities in circuses differently from such activities in other locations. It is not possible for the guidance to amend the 2003 Act, but we have considered the views expressed to us by the circus industry, Equity and the Arts Council, to see where we can make the guidance clearer. The consultation period for the guidance is now over, and we expect to table the draft guidance before both Houses in the near future.
Lord Redesdale: My Lords, I thank the Minister for that reply. Could he say what "the near future" means as regards guidance? We discussed guidance all through the passage of the then Licensing Bill, and the guidance has been delayed somewhat for many reasons, not least of which is that it seems almost unworkable in many areas. Does the Minister not agree that if the guidance on circuses, which is inflexible in its operation, is not changed it could lead to the closing down of some circuses, because of the bureaucracy involved in a travelling circus getting a temporary licence at each location it visits?
Lord McIntosh of Haringey: My Lords, I do not know that I am prepared to define "in the near future". I am not seeking to justify a delay, but the first appointed day for the Act will be in September this year, when applications for licences can start to be submitted. The final implementation of the Bill will not be until the middle of next year, so there is not really a desperate hurry.
I do not think that circuses will be forced to close down. I agree that there are difficulties about the definition of regulated entertainment, and that there are problems where circuses have performances more than 50 times in a year or on a site used for a circus
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more than 12 times in a year. The solution for which we ought to look is for local authorities in the areas concerned to seek the premises licence, and then make the site available to all circuses that wish to perform there.
Baroness Buscombe: My Lords, will the Minister not agree that it is right that we should now be given some clear indication of when the statutory guidance will be issued? He will know that in another place the Secretary of State for Culture, Media and Sport assured honourable Members that the guidance would be forthcoming in November. On 9 December, I asked a relevant question and the noble Lord, Lord Warner, wrote to me to assure me that the guidance would shortly be forthcoming.
Is it not time for the Minister to admit that we are putting up with this extraordinary delay in the publication of the guidance because of a row? Is there not a fundamental difference in terms of policy between Ministers for the Home Office, the DCMS and the Department of Health, notwithstanding other departments, basically because of the problems of alcohol consumption and the impact that the Licensing Act has had on that?
Lord McIntosh of Haringey: No, my Lords, I do not agree. The position taken in yesterday's Written Ministerial Statement on alcohol is that of the Cabinet Office and has the agreement of all relevant government departments. There is no division on that. On whether such a division is the reason for the subject matter of the Question—circuses—I am bit surprised, as most circuses do not serve alcohol at all.
Lord Tebbit: My Lords, if the reason for the delay is not that suggested by my noble friend, will the Minister tell us what it is?
Lord McIntosh of Haringey: Yes, my Lords. As I said in my Answer to the original Question, we have been consulting on the matter. It is not easy. Circuses do not entertain with one single activity. The great joy of circuses is that the performances cover a great variety of activities. However, the latter do not fit easily into the structure of legislation.
Lord Redesdale: My Lords, would circuses actually need a licence if they did not perform any live music? If they avoided live music, the circus could take place quite happily without regulation. Is that not a bizarre aspect of the Act?
Lord McIntosh of Haringey: My Lords, I wish I could answer that simply, but I cannot. Music—incidental, live or whatever—is one of the issues, but there are also questions about whether the activities fall into the category of sports events—for example, those of trapeze artists. It sounds daft to the noble Lord, Lord Redesdale, and it sounds daft to me.

Wind Generators: Low-flying Aircraft
2.41 p.m.
Lord Tanlaw Lord Tanlaw asked Her Majesty's Government:
Whether the Ministry of Defence has issued wind generator hazard notices to the pilots of all low-flying aircraft.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, we do not issue particular hazard notices. When the Ministry of Defence is made aware of wind generators, they are displayed on military low flying charts, as well as being incorporated into volume three, part one, of the military aeronautical planning document, in the same way as any other obstruction. The MoD takes flight safety issues very seriously. It has very rigorous training standards, which are applied to ensure that pilots fly only in situations for which they are suitably prepared.
Lord Tanlaw: My Lords, I thank the Minister for that reply, which, if I interpret it correctly, might indicate that wind turbines are not really a special danger to pilots after all. If there is no problem with radar or other electrical interference that cannot be filtered out in the cockpit, why are there still blanket planning objections by the Ministry of Defence to the establishment of both small and large wind farms? Like many people, I thought that they were part of government policy.
Does the Minister therefore agree that those objections may not be proper, but simply the result of an ongoing turf war between civil servants in Defra and the Ministry of Defence, in order to establish which department rules the countryside? If that is correct, will he ask the Prime Minister to intervene favourably on behalf of the wind farm applicants, so that his Government's commendable but highly ambitious targets for renewable energy can be met by 2010?
Lord Bach: My Lords, the Ministry of Defence, like all other government departments, supports the Government's renewable energy policy outlined in the White Paper. The department takes sustainability matters extremely seriously, but it is our duty to ensure that the defences of the United Kingdom are not jeopardised in any way. It is undisputed that wind turbines can affect radar, low flying, and communication links, so we have to ensure that wind farm developments do not impair our operational needs and safety. We do not object, as far as low flying reasons are concerned, outside the three tactical training areas. The noble Lord will know—because one of them is in the part of the country that he comes from—that we do not object outside those areas; and we do not always object even when there are applications inside those areas.
Lord Corbett of Castle Vale: My Lords, can the Minister say what contact he has had with the Defence
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Department of the Danish Government, since they have many offshore wind farms in areas over which their planes fly, as far as I know, without accident?
Lord Bach: My Lords, we are constantly in touch with the Danish Defence Department. We have taken a rather more cautious attitude than some other governments. We make no apology for that. As far as low flying is concerned, it is only in those three tactical training areas that we ever object to wind farms.
Lord Astor of Hever: My Lords, does the Minister agree that pilots must be able to train safely in low flying skills, especially as flying hours have been reduced? Should this not be an overriding factor when permission is sought for any planned wind farm?
Lord Bach: My Lords, the noble Lord is absolutely right, and I agree with him. The priority is to ensure that our pilots who are training for their vital tasks are safe. As the noble Lord will know, pilots are trained to see and avoid obstacles and other users of air space. While pre-knowledge of particular obstacles is useful in planning routes, we expect our pilots to maintain constant vigilance for previously unknown hazards.
Lord Ezra: My Lords, arising out of the Question asked by the noble Lord, Lord Tanlaw, can the Minister indicate the likely impact of MoD interventions on the achievement of the renewable energy targets?
Lord Bach: My Lords, in one word, none at all. Three words—none.
Lord Higgins: My Lords, the noble Lord has made an important statement that there is no question that wind farms affect radar. Yet under the Energy Bill, the Government are proposing to put wind farms in the middle of some shipping lanes, without having carried out any study whatever into whether ships' radar are likely to be affected. There could be disastrous consequences if they go straight into a wind farm.
Lord Bach: My Lords, I am grateful to the noble Lord for bringing that issue to my attention. If he will let me know more details about that, I will take the trouble of looking into it and writing back. Many of the objections made by the Ministry of Defence to proposed wind farms are on the basis of radar and the difficulties that there might be if wind farms are put up in certain places.
Baroness Strange: My Lords, is the Minister aware that windmills are also very dangerous to birds? Birds cannot read notices, so perhaps there is some other way that they could be alerted to the danger ahead.
Lord Bach: My Lords, I am grateful to the noble Baroness, as always. It is always the poor old MoD that is blamed when wind farms are not built in certain areas. Other equally notable institutions, many of them in the conservation field, also object to proposals for wind farms from time to time. Many pre-planning

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proposals are put to various bodies, including the MoD, by the developers. Many of them are sorted out at that stage.
Lord Dixon-Smith: My Lords, how many wind generator hazard notices have been issued? Is the noble Lord aware of any reports from air crew of adverse effects from wind farms during their training programmes?
Lord Bach: My Lords, I answered the noble Lord who asked the Question on the Order Paper that we do not issue particular hazard notices. I think the answer to the question asked by the noble Lord is none—again, none—but I will make sure that I check that out.
Lord Mackie of Benshie: My Lords, is the Minister aware that many of the residents threatened by wind farms would love the Ministry of Defence to intensify its opposition?
Lord Bach: My Lords, I am aware of that. It does not stop us supporting renewable energy, of which wind farms are an important part.
Baroness Byford: My Lords, how many objections have been raised by the MoD with regard to the siting of wind farms?
Lord Bach: My Lords, in the past two years, there have been roughly 1,000 pre-plan notifications of wind farm proposals per year. The MoD did not object to 64 per cent of those. When it got to the planning process, in 2003 the MoD objected to just four of those that went through the planning process.
Lord Redesdale: My Lords, I declare an interest, living next to Otterburn training area. Following on from the answer that the Minister gave to my noble friend, that there might be an intensification of use of those areas that do not have wind farms, does that mean that there will be more low-flying aircraft in those areas? It seems to be an unfair trade to make, not having wind farms and their associated problems, if we are going to get more low-flying aircraft.
Lord Bach: My Lords, I can answer the noble Lord by saying that there is no such intention, either in the area with which he is concerned or in the rest of the country. Our policy on low-flying aircraft is well known. It is vital that our pilots are trained in that way; I think that the House agrees with that. We must use our discretion and be careful that we do not disrupt people's lives any more than they are bound to be.
Lord Rotherwick: My Lords, on the four objections in planning, were those objections upheld in favour of the MoD, or were the applications allowed, although the MoD had objected to them?
Lord Bach: My Lords, I thought that I had done pretty well with figures in my answers, but the noble Lord has defeated me. I shall have to write to him.

Palestinian Communities Healthcare
2.50 p.m.
The Earl of Sandwich The Earl of Sandwich asked Her Majesty's Government:
Whether they propose any action to assist Palestinian communities now being cut off from health services by the new security wall and settlement enclaves.
The Lord President of the Council (Baroness Amos): My Lords, the Department for International Development funds the emergency programme of the Union of Palestinian Medical Relief Committees (UPMRC), which includes the provision of mobile clinics. UPMRC is delivering vital healthcare to many of the increasing number of people now isolated from essential services by the building of the security barrier.
The Earl of Sandwich: My Lords, I am grateful to the noble Baroness for that Answer, but does she agree that the new security wall and the settlement enclaves, which now affect more than half a million Palestinians, put together, are tantamount to a death sentence to Palestinians who suffer from life-threatening illnesses and are attempting to cross the checkpoints? Further, does she recognise that international aid workers are now regularly being held up at those checkpoints and can the Government do something to complain to the Israeli defence forces?
Baroness Amos: My Lords, the noble Earl, Lord Sandwich, will be aware that we consider the route of the separation barrier to be unlawful. We have said that of course Israel has the right to defend itself, but that the barrier will breed further Palestinian resentment. The noble Earl is quite right when he refers to some issues facing Palestinians. About 60 per cent of Palestinians are now living on less than two dollars a day up from 21 per cent in 2000. The quality of service delivery is one of the issues that has contributed to that.
My noble friend Lady Symons is here, has heard the noble Earl's point about international aid workers and, I am sure, will take it on board in her conversations with Israeli Ministers.
Baroness Northover: My Lords, does the noble Baroness agree with the House of Commons Select Committee on International Development, when it states:
"The appalling situation in the Occupied Palestinian Territories is not the result of a natural disaster; it is man-made and as such it requires a political solution"?
Does she agree that, although humanitarian assistance must continue, and while recognising the anxieties of Israel, economic leverage must now be used to persuade Israel to negotiate in good faith a two-state solution?
Baroness Amos: My Lords, the noble Baroness will know that we have been working extremely hard to achieve a two-state solution. That is why we are trying

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to deliver the road map. There are responsibilities on the Palestinians and on the Israelis in that road map. Both sides have failed to deliver. We will continue our efforts. That is vital because development will not happen until peace is secured.
Baroness Ramsay of Cartvale: My Lords, is my noble friend aware that after the completion of the northern part of the fence, only five suicide bombers emanated from that area in 2003, compared with 17 between February and December 2002? Is it therefore any wonder that in a democracy 84 per cent of the Israeli population is in favour of the wall? Is it not also true that only credible attempts by the Palestinian community to contain suicide bombers will lead to an end to the necessity for the wall?
Baroness Amos: My Lords, my noble friend is right to say that we need to work extremely hard on the security agenda. Israel needs to fulfil its road map responsibilities by freezing all settlement activity, removing settlement outposts and improving the humanitarian situation in the occupied territories. In parallel, the Palestinians must make efforts to stop violence and to degrade terrorist capability. My noble friend is right: where there is violence and terrorism, that will breed resentment on both sides.
Lord Wright of Richmond: My Lords, in the light of reports that the great Middle East initiative, on which the noble Baroness, Lady Symons, replied to a Question last week, has been withdrawn, can the Minister confirm what action the United States Government are taking to implement President Bush's undertaking in Belfast to put as much energy into the road map as the Prime Minister had put into Northern Ireland?
Baroness Amos: My Lords, the initiative has not been withdrawn. We continue, with the United States, with our efforts to secure a two-state solution and a peaceful resolution to the issue.
Lord Clarke of Hampstead: My Lords, does my noble friend agree—I am sure that the whole House would—that the time when the fence comes down will be one of rejoicing? In the mean time, does she agree that the importance of the anti-terrorist fence was adequately demonstrated on 3 December, when two suicide bombers were apprehended at the fence on their way to the Yok'ne'am High School with 10 kilograms of high explosive to blow it up? If they had not been apprehended, many of the children at that school today would probably be dead.
Does my noble friend further agree that, as a previous questioner said, the existence of the fence has brought about a reduction in the number of suicide bombers? In 2003, compared with 2004, there has been a 30 per cent reduction in the number of terrorist attacks. The number of victims killed in those attacks has fallen by 50 per cent during the past year. I am sure
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that she will agree with the Prime Minister, who said recently that terrorism is the enemy of the Palestinian people.
Baroness Amos: My Lords, I said in reply to an earlier question that the Government are absolutely clear that Israel has the right to defend itself. However, 89 per cent of the length of the security fence has been built on Palestinian land. Very little of the separation barrier follows the Green Line. As I said earlier, there is the issue of the increasing poverty of Palestinians. So we need both sides—the Palestinians and the Israelis—to fulfil their obligations under the road map. We cannot get away from that.
Lord Phillips of Sudbury: My Lords, does the Minister accept that the degradation and hopelessness of those in the occupied territories—and, indeed, in the camps—is now so utter and complete that it is inimical to hopes for a reduction in violence? The circumstances represent a breeding ground for violence, which no fence will ultimately prevent.
Baroness Amos: My Lords, I do not agree with the noble Lord. Yes, as I said earlier, 60 per cent of Palestinians are now living in extreme poverty, but we all know that the issues that lead to a proportion of people taking the terrorist route are complex and complicated. It would be wrong to make the kind of direct relationship that many people wish to make between conditions of extreme poverty and an immediate move to terrorism. Millions of people living in poverty around the world do not turn to terrorism. It would be wrong for us to make that link.
Lord Howell of Guildford: My Lords, would the noble Baroness remind us which sections of the barrier or fence have been cancelled or actually torn down—I believe that some have? At the same time, could she bring us up to date on where the unilateral plans of Israel for withdrawing from all settlements in Gaza have reached? Are they going ahead despite the lack of any negotiating channel?
Baroness Amos: My Lords, construction has been suspended in some areas and a review process is going on at the moment. If I may, I will write to the noble Lord about the detail of that once I have checked the latest up-to-date position.
Lord Rea: My Lords, I am delighted that my noble friend is still able to take DfID-related questions. Is she aware of a detailed report entitled Health and Segregation, which describes the disastrous effect of the wall on the health services of the community that it divides and skirts around? It was produced by the Health Development Information and Policy Institute, funded by DfID, along with the UPMRC—they closely collaborate—which she mentioned earlier. Can she reassure me that funding for that excellent non-governmental organisation will not be withdrawn, as

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rumoured, and given to the Palestinian Authority which, although completely broke, may not be able to spend it quite so effectively?
Baroness Amos: My Lords, we are aware of the report, although we have not studied it in detail. DfID does not fund HDIP, although we know its director well through our funding of the Union of Palestinian Medical Relief Committees. Of course, we recognise the valuable role that civil society organisations play in Palestinian development.

Zimbabwe: Assets Freeze and Travel Ban
3 p.m.
Lord Howell of Guildford Lord Howell of Guildford asked Her Majesty's Government:
What action they intend to take following the decision of the United States Department of the Treasury to designate seven Zimbabwean entities, three farms and four commercial businesses, each controlled by members of Mr Mugabe's regime, as "Specially Designated Nationals".
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the European Union agreed on 19 February 2004 to extend the list of those on its assets freeze and travel ban from 79 to 95 individuals. The United States assets freeze is on 77 individuals. The EU measures target individuals, not companies. The United Kingdom and other member states have taken the view that targeting companies risks harming ordinary Zimbabweans who are already suffering under the present regime.
Lord Howell of Guildford: My Lords, I am grateful to the noble Baroness for that reply. But is she aware—from her reply, I think that she is that the American approach is now to target those companies that are helping to bank roll the Mugabe regime and companies that are associated in any way with the already targeted individuals? Clearly, that greatly increases the pressure on the Mugabe regime. Now the US has added the potential penalties of up to 10 years' imprisonment or colossal fines for those companies that are involved with these unsavoury individuals. Is that not a much tougher approach than either the EU or HMG currently apply? Could we not follow the American example if we really are determined to end the suffering of the people of Zimbabwe?
Baroness Symons of Vernham Dean: My Lords, I certainly am aware of the differences, as I hope that my initial Answer indicated. There are differences in the regimes, although I would argue that in many ways the EU ban is more extensive in the number of individuals covered; for example, the head of the Electoral Commission, the head of the Media Commission and the leader of the war veterans. Those are very useful extensions made under the 19 February agreement.
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The noble Lord is right: the United States ban does extend to companies. As I have said, we do not wish to extend the EU ban in that way because to do so would hurt those very Zimbabweans who we are trying to protect in the current very difficult situation. Having looked at this, officials are of the view that there is not any hard usable evidence against the business people concerned. The question of trade sanctions doing more harm than good to those who are struck by poverty in Zimbabwe at the moment is a very compelling argument.
Lord Avebury: My Lords, are not some of these businesses wholly owned by individuals on ours and the EU's banned list, such as Zvinavashe investments, Zvinavashe transport and the farms that are mentioned? Why do not the European Union and Britain at least consider the extension of our personal ban to businesses that are wholly owned by people who are already on our list?
Baroness Symons of Vernham Dean: My Lords, they are wholly owned by individuals on our list. They are covered because the individuals on the list are, indeed, covered by our list. The noble Lord's point is answered in his question. If they are wholly owned by individuals where we have already taken sanctions against those individuals, the point is covered.
Lord Renton: My Lords, can the noble Baroness tell us what the United States Treasury will do if the Mugabe regime fails to co-operate in this matter?
Baroness Symons of Vernham: My Lords, I am sorry. I did not catch the last part of the noble Lord's question.
Lord Renton: My Lords, what will the United States Treasury do if the Mugabe regime fails to co-operate in this matter?
Baroness Symons of Vernham Dean: My Lords, I am sorry. I did not hear the point about co-operation. The sanctions that the United States is prepared to use are not available to me. Part of the problem is that the United States does have an unspecified travel ban. While its assets freeze is on 77 named individuals, the travel ban—this is another difference of which I am sure that the noble Lord, Lord Howell, is aware has not been published. The United States believes that it is more disruptive not to publish the travel ban, so that when people apply for visas they find it difficult to obtain them.
Lord Blaker: My Lords, is the noble Baroness aware that last Wednesday I referred to the speech made by the Prime Minister on 5 March when he referred to the Treaty of Westphalia, one of the principles of which is that the internal affairs of a country are for that country alone. He also said that we should not now tolerate the right of a country to oppress and brutalise its own people and that we should do all we can to spread the values of human rights, freedom and the

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rule of law. At that time, I asked whether that applied to Zimbabwe, but I received no answer. Would the noble Baroness be kind enough to give me an answer now?
Baroness Symons of Vernham Dean: My Lords, of course we are interested in the human rights issues in Zimbabwe. How many times have we discussed in your Lordships' House those very issues? We give, for example, considerable aid to Zimbabwe. Its economic position is deteriorating very rapidly. We expect that 7 million people in that country will need food aid by April of this year. The economy of Zimbabwe is shrinking faster than any other economy in the world. It is an extraordinary thing that has happened to that country. Your Lordships will have seen, as I did, the truly ghastly television programme about the youth training camps. We are concerned about those issues. We are supporting civil society where we can. We donate considerable aid, not only for food and aid, but also to help those in civil society.
Lord Acton: My Lords, are we continuing to put as much effort as possible into persuading South Africa, where the key lies, into pressurising the ZANU-PF regime?
Baroness Symons of Vernham Dean: My Lords, your Lordships will know that this is an extremely difficult question. We have put considerable effort into persuading South Africa and, in particular, President Mbeki. On a number of occasions, President Mbeki has said that he believes that the two sides in Zimbabwe can be brought together. I am bound to say that we have yet to see evidence of that. President Obasanjo has been helpful in trying to bring the two sides together and in trying to pinpoint the obligations that Zimbabwe has towards its own people.
It is enormously important that we do our utmost to internationalise the problem and not to leave it as a bilateral difficulty that plays entirely into Mr Mugabe's hands of wanting to depict this as a battle between himself and the British Government.
Earl Peel: My Lords, does the noble Baroness not agree that the dilemma now facing the England and Wales Cricket Board about whether to tour Zimbabwe is becoming intolerable? Is it not time that the Government got off the fence and made a clear, unequivocal statement to the effect that, due to the deeply unsatisfactory political situation in that country, the tour should not go ahead?
Baroness Symons of Vernham Dean: My Lords, the Government are not on the fence. If it were our decision, we would not go. That is clear. But, as always, we have said that we have no power to stop this tour. It is a matter for the ECB to reach a decision. That is its decision. I am afraid that in all these issues there are responsibilities. We all have to shoulder responsibility. It is too easy to turn aside and say, "That is nothing to do with us because we are a cricket
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association". There are responsibilities for everyone. If the noble Earl feels as passionately about it as he clearly does, I hope that he will get in touch with the cricket board and tell it what his views are, as I am perfectly prepared to say what our views are. I have been unequivocal about that.

Science
3.10 p.m.
Lord Haskelasked Her Majesty's Government:
What action they are taking additionally in National Science Week to bring science to the attention of the public.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, now in its 11th year, the National Science Week is a great success story and has done much to celebrate science and its importance to our lives. As well as providing funding to the British Association for the Advancement of Science to allow it to co-ordinate the week, the Government encourage the research councils to hold events during the week and organise events themselves, such as the meeting with the parliamentary Scientific Committee on Thursday morning, in Westminster Hall, on "The Government's Use of Science".
Lord Haskel: My Lords, I thank the Minister for that reply. Does the Minister share my concern about the declining number of people going into science and technology in recent years, together with the increasing concern about science? Does he agree with me that the almost 1,000 events being organised by the British Association and others during National Science Week is a helpful contribution towards reversing this worrying trend?
Lord Sainsbury of Turville: My Lords, I would like to join with my noble friend in congratulating the British Association for the Advancement of Science on its organisation of National Science Week. It does an amazingly good job. The fact that there are 1,000 events across the country, organised on a voluntary basis, is extremely impressive. I would, however, encourage him not to be too pessimistic about the number of young people going into science. Between 1994–95 and 2000–01 the numbers have increased. There is unfortunately a shift away from mathematics, physics and chemistry, which is worrying, but the total number has gone up. Equally, as for public opinion, the OST Wellcome Trust study, which was published in 2000, suggested that the great majority of people are very optimistic and enthusiastic about science, but concerned very specifically with particular technologies.
Lord Tanlaw: My Lords, can the Minister say how he will encourage young people to go into the space sciences—astronomy, astrophysics, astrobiology—when our subscription to the European Space Agency is very small? Will he commit himself, or commit the

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Government, to taking part in Aurora I or Aurora 2 and commit this country to 30 years of space science and exploration of our near neighbours in space?
Lord Sainsbury of Turville: My Lords, we are very keen to encourage young people to go into space science. Recent events have shown that British space science is in very good health and we are involved in some of the most exciting projects taking place in space exploration. We are enthusiastic members of ESA and we are looking very carefully at the Aurora programme, which will be the next generation of space exploration. Providing that goes along the lines which we hope it will—namely, a heavy emphasis on robotic exploration rather than man in space—we will support it strongly.
Baroness Sharples: My Lords, can the noble Lord, Lord Sainsbury, tell us if there is a shortage of teachers in these subjects?
Lord Sainsbury of Turville: My Lords, there is concern about the quality and qualifications of teachers in some of these areas which is extremely worrying. It is an issue on which we are taking action. Unless we get the qualifications of the teachers right, we will not get the inspired teaching that we need in these subjects.
Baroness Sharp of Guildford: My Lords, is the Minister aware that among those actively participating in National Science Week are the hands-on science discovery centres set up around the country? Is he also aware that many of these centres, set up with lottery funding, are now finding it very difficult to meet costs? Can he tell us what discussions he has had with his colleagues in the Department for Education and Skills and the Department for Culture, Media and Sport about this issue and what the outcome of those discussions has been?
Lord Sainsbury of Turville: My Lords, for once I can do even better. We have not only had discussions but have actually taken action. There is a scheme to help some of those millennium centres with hard cash to help them to survive over the next few years, because there are very considerable difficulties. But we are ahead of you: we have taken some action.
Lord Jenkin of Roding: My Lords, is the Minister aware that the decision of his department to establish a science in society unit within the OST is very welcome, following as it does the report of the Select Committee of this House on science in society? Can he reassure me that the next version of the research assessment exercise will give proper weight to the importance of scientists conducting a dialogue with the public? Scientists should be trained in that activity, because that is often much the best way of getting the public to feel that they are being consulted and involved in what are sometimes quite frightening scientific advances.
Lord Sainsbury of Turville: No, my Lords; I cannot give that assurance because I do not think that that is
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what we will do. The RAE has very specifically to be about scientific excellence. If we start putting in lots of other criteria, that simply muddies the water. The people who are on these committees are not there to judge scientific communication; they are there to judge scientific excellence. That is not to say that we should not give encouragement to scientists who get involved in science communication exercises with the public. Much more importantly, we take steps to have the proper public forums where these issues can be debated in front of the public, and they can see what is happening about regulation of these new technologies.

Fire and Rescue Services Bill
Brought from the Commons; read a first time, and ordered to be printed.

Business of the House: Standing Order 47
Baroness Amos: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order 47 (No two stages of a Bill to be taken on one day) be dispensed with to allow the Consolidated Fund (No. 2) Bill to be taken through all its stages today.—(Baroness Amos.)
On Question, Motion agreed to.

Consolidated Fund (No. 2) Bill
Lord McIntosh of Haringey: My Lords. I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read a second time.—(Lord McIntosh of Haringey.)
On Question, Bill read a second time; Committee negatived.
Then, Standing Order 47 having been dispensed with (pursuant to Resolution of today), Bill read a third time and passed.

European Parliamentary and Local Elections (Pilots) Bill
3.17 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, on behalf of my noble and learned friend Lord Falconer of Thoroton, I beg to move that the Commons amendment and reason be now considered.
Moved accordingly, and, on Question, Motion agreed to.
COMMONS AMENDMENT TO A CERTAIN LORDS AMENDMENT AND COMMONS REASON FOR DISAGREEING TO A CERTAIN OTHER LORDS AMENDMENT
[The page and line references are to HL Bill 14 as first printed for the Lords]

European Parliamentary and Local Elections (Pilots) Bill
  LORDS AMENDMENT NO. 1
  1 Clause 1, Leave out Clause 1 and insert the following new Clause—
  LORDS AMENDMENT NO. 1

    Piloting conduct at European and local elections
    (1) An election to which this section applies (a pilot election) must be held—

    (a) only by postal voting, and (for that purpose)

    (b) in accordance with provision made by the Secretary of State by order (a pilot order).

    (2) These are the elections to which this section applies—

    (a) the European Parliamentary general election of 2004 in a pilot region;

    (b) a local government election in England and Wales if the poll at such an election is combined with the poll at an election mentioned in paragraph (a).

    (3) These are the pilot regions—

    (a) North East;

    (b) East Midlands.

    (4) Postal voting is voting where no polling station is used and a person entitled to vote in person or by proxy must deliver the ballot paper by post or by such other means as is specified in a pilot order.
    (5) A pilot order—

    (a) may modify or disapply any provision made by or under a relevant enactment;

    (b) may contain such consequential, incidental, supplementary or transitional provision or savings (including provision amending, replacing, suspending or revoking provision made by or under any enactment) as the Secretary of State thinks appropriate;

    (c) may make different provision for different purposes."

    The Commons agree to this Amendment with the following Amendment—
    1A Clause 1, Line 15, at end insert—

    "(c) Yorkshire and the Humber;

    (d) North West."

    Lord Filkin: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1A to Lords Amendment No. 1. I very much hope that I will have a similar fair wind to my noble friend Lord McIntosh.
    Let me set out in broad terms why we as a Government think and why the Commons think that this is a measure to which this House should agree.
    In short, the Government asked the Electoral Commission to give them advice—I stress the word "advice"—on which regions were suitable for undertaking pilot postal elections as part of the European elections and local government elections. It responded, as it had been asked to do, and said it thought that two regions were suitable for that and a further four regions were possible.
    The Electoral Commission also made it explicitly clear—as if it needed to do so—that it always recognised that it was open to the Government to have discussions with those regions falling into the "potential" category to see whether the reasons identified for not making a positive recommendation could be satisfactorily resolved.
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    The Government have undertaken such investigations with care, patience and thoroughness, and we are now clear that it is perfectly safe to undertake pilot elections in two further regions, and that elections can be delivered in those regions as a consequence. Furthermore—this is the nub of the issue—there are good public reasons for piloting elections in those additional regions. There are benefits to the public consequent on doing so. That is the essence of what I shall seek to set out succinctly.
    I shall give the House a little more detail. As part of the process of deciding where it was right to hold the pilot elections, we focused on the two regions where the commission had indicated that it was possible but not certain that it was good to do so: Yorkshire and Humberside and the north-west. With Yorkshire and Humberside, the questions in the commission's mind were whether there was sufficient security for elections to be carried out and, secondly, whether the electoral returning officers were enthusiastic and willing to undertake the function. We have had considerable discussions with Yorkshire and Humberside, and the regional returning officer for that area has written a letter, a copy of which is in the House. In the letter, he sets it out clearly that they have electoral administrators, have had discussions regarding anti-fraud measures and have a range of measures that they are looking to implement, including sample checks; local electoral awareness campaigns; hot contact points; regular liaison with the police; training of staff; and arrangements for the safe delivery of papers to electors in houses with multiple occupation. They believe that they have put in place adequate measures to make it safe for elections to take place in those areas.
    On the question of whether they want to do it, the position is now clear and is different from what it was, when the Electoral Commission first asked the question. The regional returning officer says clearly that,
    "the view of a significant majority of the same administrators today is that they would prefer to be allowed to proceed with arrangements for an all-postal ballot in June, than now be constrained to revert to planning for a conventional election".
    So, in Yorkshire and Humberside, the regional returning office and the electoral returning office want to be allowed to get on with the job and conduct postal ballots.
    I shall turn succinctly to the north-west. Again, the questions were about fraud, perhaps about willingness and perhaps about complexity. On safety, Sir Howard Bernstein, chief executive of Manchester City Council and the regional returning officer, said in his letter, a copy of which is also in the House:
    "We are committed to taking every possible step to preserve the integrity of the postal ballot".
    They have put in place additional vigilance, strong protocols and programmes and strong liaison with the Greater Manchester Police, which would be the lead police authority in the region. He also said:
    "I have been very impressed by the consistent and positive attitude all Local Returning Officers have shown to the proposed pilot here in the North West … The support was particularly strong from Salford and Trafford Councils which as you may know, enjoy cross-party support for the pilot initiative".

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    It is undoubtedly true that there is complexity in the north-west, given the number of elections that would take place there, but the people to whom we should listen on that matter, having put them on notice of the questions, are the regional returning officer and the electoral returning officers. They tell us that they believe that they can deliver a safe and secure election.
    Why, then, are the Government keen on four, rather than two, regions, which is what the House proposed, when it last considered the matter? There are several reasons, both of principle and practice. First, there are benefits in testing pilot postals in a diversity of situations. Like the Electoral Commission and many others, we think that there are many strong arguments for postal balloting in the future, but we must find out whether it works well and could be extended, for example, to all local government elections. As part of a proper process of testing, we must test the system in various circumstances, including areas in which there is complexity. It is all too easy just to test it in areas in which it would be simple and straightforward. We should also note that this is the last opportunity before 2009 to pilot postal ballots on this scale.
    I have a few final words on fraud, safety and security. I have taken the views and advice of the House very seriously, as I hope I always do. The issues of concern that were raised by the noble Lord, Lord Greaves, and others should be examined seriously because the integrity of the ballot, postal or not, matters. As a result, we have examined ways to prevent and detect fraud, to measure the public's protection of fraud and to assess fraud. That is part of the proper evaluation of a pilot experiment.
    We are working with the commission and with police forces generally on the prevention of fraud at national level and to raise the profile of the issue. I mentioned the work that was going on at regional level in that respect, but we will issue releases nationally and regionally that will make clear the offences that have been put into the Bill as a consequence of our deliberations, and we will encourage regional returning officers to inform administrators of the importance of local publicity. There will be security warnings on the voting literature. There are many other things that we are doing, but I will not weary the House with them.
    The detection of fraud is important for its own sake and for the evaluation of the project. There will be random inspections of security statements. ROs will use the marked register to contact electors, and they will investigate the redirection of proxy vote requests. After the pilot order has been made, all requests for redirection will need to be accompanied by a signed statement from the elector, and regional returning officers are putting in place systems to monitor the number of redirected postal votes.
    Measuring the perception of fraud also matters, and Clause 4 provides for that. On the assessment of fraud, I have said to the House that it is not just the identification of frauds that are reported that matters; we should expect the Electoral Commission to take positive steps to identify what is happening with fraud,
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    reported or not. Without second-guessing them on methods, I expect officials to do that task with energy and sophistication, in an attempt to find out what, if anything, happened on fraud and the perception of fraud.
    It is utterly legitimate for the Government and for the Commons to go for four regions, rather than two or three. The fact that the commission would have preferred three is down to a difference of judgment, and the Government are entitled to make that judgment. My second point is that we believe that the pilots can be done safely. The regional returning officers for the four regions want to do them. Next, the public want and like postal balloting, a fact that is hardly mentioned in our debates. The process will, under evaluated and monitored circumstances, give people the opportunity to undertake postal balloting in European and local elections at the same time. It is good that we are testing how that works in practice in various circumstances.
    The final point is that, if, as I expect, after we have gone through due process, we carry out pilots in the four regions, 2 million more people will vote in the elections, than would otherwise have done so if we see the increase in turnout shown in previous local postal balloting. We must wish that to happen, if we believe in democracy.
    For those reasons, the Commons and the Government think that we should pilot in the four regions. I ask the House to support the Commons in that respect.
    Moved, That the House do agree with the Commons in their Amendment No. 1A to Lords Amendment No. 1.—(Lord Filkin.)
    3.30 p.m.
    Baroness Hanham Baroness Hanham rose to move Amendment No. 1B, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 1A to Lords Amendment No. 1, leave out "agree" and insert "disagree".
    The noble Baroness said: My Lords, it will come as no surprise to the Government that we do not believe that a case has been made out for running the European elections in four regions. We have debated the matter at length in past weeks, and I have read the significant exchange that took place in another place. But I shall again give our reasons for being concerned that the Government have ignored the advice of their own body, the Electoral Commission, and are insisting on piloting in four regions rather than in the two which were recommended.
    It is hard to comprehend why the Government are so stuck on ignoring the advice they have been given. Presumably, what they should be looking to do is to extend the limited pilots already carried out in local government elections by upgrading those to the European regions on a scale sufficiently limited to ensure that a proper test can be carried out and assessed in seats where there is not only enthusiasm to extend the pilots, but also where there is experience,

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    competence and willingness to undertake the huge amount of work involved—now, it must be said, at very short notice.
    It is clear from the many discussions we have had that there are areas—the Minister touched on them—such as the security of ballot papers, the prevention of fraudulent personation, the difficulties of ensuring personal delivery to residents in houses in multiple occupation. guaranteeing the return of all ballot papers to the returning officer, the ability of the Royal Mail to handle the quantity in good time, and the need—not available to these elections—for individual registration as recommended by the Electoral Commission. These are all still unresolved.
    Indeed, the chairman of the Electoral Commission, who, to his credit, seems not to have been browbeaten by Ministers, in his latest letter to Mr Chris Leslie, the Minister in another place, dated 4 March and just before this matter was discussed last time in another place, points out that while the all-postal pilots already run in local government elections have demonstrated almost all of the problems which are likely to arise, there are risks inherent in pilots which will cover, in his words, over a third of the English electorate and that these go further than the commission thinks necessary to test issues of what are so elegantly described as "scaleability", which is the increase in the size of the electorate and electoral areas and complexity. The commission is also concerned that there is currently an absence of underlying legislative change required to address those risks.
    I have given at some length the view of the Electoral Commission because it is obvious from the way in which the letter has been written that Ministers have met the commission suggesting that its views were being misrepresented by others—presumably, the inference was that it was by us, the opposition parties—on the number of regions being proposed and that,
    "a clear statement would help to provide clarity".
    Ministers got their clear statement, which was a reiteration of the fact that the Electoral Commission had found itself able to recommend two pilot regions and that it had named the Minister went through this quite clearly—four others which were potentially suitable, but about which it could make no positive recommendation since these regions did not meet its criteria, which included the capacity and willingness of the regional returning officer and local returning officers to run such pilots.
    What has happened? Yorkshire, Humberside and the north-west are put forward by Ministers without further consultation with the Electoral Commission, which is also made clear in the letter. Head-bashing meetings have obviously taken place with the regional returning officers which have resulted, as the Minister has said—that is no surprise—in their agreeing that they could, if pressed, run all-postal ballots although they had told the Electoral Commission that they did not want to do so.
    There is obvious concern by the commission that the pilots are now ridiculously—that is my word, not the commission's—large. That is what we have been saying throughout these proceedings. How can a test of over one-third of the electorate be described as a "pilot"?
    I have recently seen the ODPM publication of the written evidence on postal voting presented to the Select Committee. It by no means backs up the enthusiastic embracing by the Government of postal votes. Within it there are a number of disturbing submissions on all-postal ballots regarding people filling in other than their own ballot papers; confusion among voters as to what to do; badly conducted elections which give skewed results; the invalidity of papers; concern of the police about personation; and a whole host of anxieties on the administrative process.
    It is a document which is well worth perusing. It, and the speeches we have heard from the noble Lord, Lord Greaves, ought to have woken up the Government to the dangers inherent in jumping too far and too fast on this concept.
    I have made it clear throughout all the stages of the Bill that we are not against extending the experiment of all-postal votes, but it must be realised that that is what it is—an experiment, and one which potentially puts at risk the validity of every person's right to vote at a polling station in secrecy and one which has a number of well documented potential problems.
    The Minister has drawn in aid an increase in turnout and that may be a justifiable goal, but it should not be achieved on the back of a dodgy system. The number of voters in a small-scale local election pilot is vastly different from the number in a whole European electoral region. The scheme may seem the same, but the increase in scale is bound to have enormous implications.
    I urge the Minister to accept that there are good, rational reasons for trying regional voting initially on a limited scale. In our view that would be the two electoral regions put forward by the Electoral Commission, which well substantiated its reasons for keeping to that number. We believe that that would be the correct thing to do. I hope that the Minister will, having had the opportunity to think closely about the concerns which have been cogently expressed, accept that view.
    Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1A to Lords Amendment No. 1, leave out "agree" and insert "disagree".—(Baroness Hanham.)
    Lord Rennard: My Lords, a number of our early debates on this subject have revolved very notably around the opinions of the Electoral Commission on this issue. Since we last considered it, the letter from the commission of 4 March has now been published on its website. It is clear from that letter that no possible interpretation could be made to show that the independent Electoral Commission supports all-postal pilots in four regions. Indeed, I believe that the cleverest lawyer in this House—and there are many of them—could not find such an interpretation. I thank

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    the Minister for acknowledging in his remarks today that the Government are explicitly acting against the advice of the Electoral Commission in trying to proceed with the four postal pilots.
    Accusations about selective quotations—
    Lord Filkin: My Lords, I thank the noble Lord, Lord Rennard, for courteously giving way. The commission signalled that it was open to the Government to go beyond the two pilots. The Government did so, recognising that it would not have been the commission's preference to have gone to four. I believe that the noble Lord put a more negative gloss on the matter than the facts justify.
    Lord Rennard: My Lords, I shall be very precise on this issue because I feel with some passion that it is very clear that the Electoral Commission does not support pilots in four regions. Accusations of selective misquotation abound, but three things are clear from the letter published on 4 March by the Electoral Commission. First, its view is that we do not really need further extensive piloting. The commission says that,
    "so far as all-postal elections are concerned, most of the lessons have been learned".
    Secondly, the commission says that we need more significant safeguards in our electoral process before the rollout of all-postal elections can be justified. It says that,
    "the rollout of all-postal elections needs to be underpinned by a more robust statutory framework".
    What the commission means by that has been made plain on a number of occasions; in this country, we need individual voter registration so that individuals are registered, a specimen of their signature is provided, and, if they vote by post, we can compare their signature on the witness statement accompanying the postal vote against their signature on the electoral registration, thus enabling us to be assured that there is not widespread fraud. We do not have that system in place at the moment, which is why the commission is opposed to rolling out all-postal voting on too wide a scale at present.
    Most explicitly, the commission is saying that there is no justification for all four postal pilots. Having listed some of the problems, the Electoral Commission concludes:
    "Nonetheless we welcome their use on a regional basis in order to test issues of scalability. But in our view pilots that cover over a third of the English electorate in June go further than we think necessary in order to address those issues, especially in the absence of the underlying legislative change we consider necessary".
    The killer fact is in its conclusion:
    "There is also in our view increased risk, with combined elections and in some cases new boundaries, in running on such a large scale and we are not persuaded that the risk is outweighed by what we might learn from four regional pilots as opposed to two".
    After so many debates on the subject, we still have no coherent explanation from the Government of why they moved from saying that there should be no all-postal pilots in June to saying, when they had agreed that there should be combined elections, that there
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    should be three. Then, in response to the Electoral Commission's view that only two pilots could be supported, the Government switched to saying that there should be four.
    If there were to be extensive rollout of all-postal vote elections this year, it should have been agreed prior to considering the question of combining the local and European elections in June. The combining of the elections and the fact that there may be fraud through all-postal voting, causing the result to be different in certain wards and councils, means that many people will oppose the measures. In that sense, the Government are the author of their own misfortune.
    We have heard from the Minister about the views of two of the returning officers most concerned. As he acknowledges, when the same returning officers were asked by the independent Electoral Commission, they expressed misgivings about the pilots on practical grounds, particularly in the north-west, because of widespread accusations of fraud connected with postal voting in certain parts of the region. The Minister now says that things have changed since the Electoral Commission spoke to those returning officers. However, I do not believe that things have changed; what has changed is the people speaking to those returning officers. It has now been the Labour Government speaking to the employees of Labour councils, whose leaders are terrified that, after many decades in office, they cannot persuade their voters to turn out to re-elect them, so the voting systems must be changed to suit those purposes.
    Of course, professional staff under pressure will always say that they will do their utmost to deliver in professional circumstances. However, their initial warnings about fraud and such problems, and the Electoral Commission's advice that the Government were going too far by having four postal pilots, should have been heeded. The Electoral Commission says that it was not involved in the discussions between the Government and the returning officers. Why not? Would it not have been better if the Electoral Commission had been involved in further discussions? Would that not have been a good and necessary public safeguard?
    Having four postal pilots is nothing to do with piloting and experimentation. The commission says that,
    "so far as all-postal elections are concerned, most of the lessons have been learned".
    The all-postal pilots in the four regions are to do with the fears of Labour council leaders, who are worried that, without a change in voting mechanisms, they will lose their positions of power. We would be failing in our duty if we did not ensure that proper respect was shown for the integrity of the electoral process and for proper means of advancing change, by consent wherever possible, and certainly not in the face of the Electoral Commission, which we established to help to avoid the perception that governments manipulate voting systems for their own electoral advantage.
    3.45 p.m.
    Lord Woolmer of Leeds: My Lords, I am a member of the European Union Select Committee, to which representatives from the Belgian Parliament are giving evidence today. With noble Lords' permission, I would like to slip away at some point. I apologise if I am not in the Chamber for the responses.
    I welcome the proposal to pilot postal voting for all electors, certainly in the Yorkshire and Humberside region in June. I welcome the care with which the Government have examined the problems and sought to address them. I was delighted that the regional returning officer, Paul Rogerson, wrote recently—he has been quoted by the Minister today—that a significant majority of the electoral officers in the region would prefer to be allowed to proceed with the arrangements for an all-postal ballot in June. In my experience, electoral returning officers are by nature and duty careful people. Their message is that Yorkshire and Humberside as a region can, and wants, properly to conduct postal vote elections in June.
    The aim of postal voting, after all, is to increase voter participation in our democracy and to give people a larger voice in their choice of government. I have talked to electoral office staff in the region in the past few days to find out about their mood and the practicalities. Overwhelmingly, they are enthusiastic in their desire to proceed with an all-postal vote pilot in the region in June. In any case, there will be a postal ballot in the regional referendum in October. If postal voting cannot be done now because of those problems, why can it be done in October? It would be useful to know whether the Liberal Democrats and the Conservatives would be opposed to that, too—the very same people will have to face the very same problems in October. For my part, it seems useful and sensible to conduct a pilot in June in order to learn lessons from it in time to assist in any tuning to deal with the referendum in October.
    As all noble Lords know, postal voting in local elections has resulted in turnouts of over 50 per cent. That is good for representative democracy. What does it mean in Leeds, the city that I know so well? At present, there are 522,000 electors and the average turnout in local elections is around 29 per cent—roughly 157,000 electors. In an all-postal vote, in the pilots to date, the average turnout has been around 50 per cent or perhaps slightly more. If the pilot goes ahead in June for the local and European elections, a Leeds election turnout of 50 per cent would mean more than 260,000 people voting more than 100,000 additional people in the city casting their vote. I regard that as a massive gain for democracy. Looked at from the point of view of the consumer, the user or, in this case, the voter, 100,000 Leeds citizens expressing their choice on who they want to represent them on the city authority and in Europe seems a massive gain.
    I hope that the Government's proposal is agreed today, and that the amendment is rejected.
    Lord Smith of Leigh: My Lords, I speak on behalf of the north-west but, first, I need to declare an interest
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    as I shall be a candidate in the local elections there in June. I listened with interest to the noble Lord. Lord Rennard, when he portrayed the Government as acting in a devious, politically motivated, manner while the Opposition were adopting the principled stand. We have to recognise that if there is political advantage for one party, the Opposition may think there are political disadvantages for themselves. I do not think they can pretend to be as innocent as they claim.
    We have evidence that postal voting causes a dramatic increase in turnouts at local elections. In fact, it is the only thing in all the experiments carried out which has actually changed the turnout in local elections. We know that turnouts are notoriously poor in European elections. In the 1990 European elections in the north-west, the turnout averaged 15 per cent, which meant that the variations were from single figures upwards. We need to do something to stimulate the idea that people should vote and participate in a democratic election. We know that the postal vote will work, and the debate is about how far we can extend that.
    What my noble friend Lord Woolmer said about Yorkshire and Humberside is true of the north-west. When the Electoral Commission went to get the original information, it did not consult widely across the region in terms of asking returning officers. I know there have now been a number of meetings in the north-west, lead by the Chief Executive of Manchester City Council, Sir Howard Bernstein. The implication that a distinguished public servant like that could be manipulated to say things that he did not believe is discreditable to the noble Lord who said it.
    I do not quite understand where the Electoral Commission is coming from. If we are to get evidence about whether postal votes work and whether they are applicable in elections other than local ones, it seems to me that the more evidence we get, the better. I can imagine, in two or three years' time when we are discussing where else we might extend the use of postal voting, noble Lords opposite might well say, "We don't have enough information. We've only had them in two areas, it's not enough". If the north-west and Yorkshire and Humberside have postal elections, it has nothing to do with the other regions. The capacity in the north-west to conduct a postal ballot does not diminish the capacity to do so in the north-east and the East Midlands.
    We approach this matter after postal voting has been successful in a number of areas, with great momentum, in local elections. My noble friend on the Front Bench mentioned two examples in Greater Manchester, including Trafford. Trafford has conducted three successful postal ballot elections. The electorate is enthusiastic about it, and would regard it as being a diminution of their right to vote if they lost the ability to do so by post. As my noble friend said, this is not a Labour Party scheme in Trafford. It has all-party support.
    Noble Lords have made a lot of the issue of fraud. If they are as concerned as they claim about its dangers in postal voting, I wonder why they think it is all right

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    in the north-east and East Midlands. Why is it all right to have such electoral fraud there as they claim would take place in postal ballots in Yorkshire and Humberside and the north-west? It is all right for those Geordies, they do not care. There is no logic in that.
    At the moment, most of the examples quoted about fraud in postal voting happen under the current system. The big problem with the current system is that it is perpetuated by unscrupulous members of all political parties, the reason being that postal votes are built up by members of political parties for their supporters. They do not go out and canvass a Labour person, for example, who says "I cannot get to the poll". I cannot imagine any noble Lords opposite doing that and saying "Oh yes, here's a way to get to the poll. We'll make sure you get that Labour vote". I do not think so. We build up registers of postal votes for people we have identified as our own party supporters, and try to make sure they get out and vote. That is where fraud can start to happen. If everyone has a postal vote it is not the political parties who determine postal votes, it is the electoral returning officer. Everyone has a vote, and the influence of political parties is greatly diminished.
    Lord Hoyle: My Lords, could I interrupt my noble friend? It is not only in Greater Manchester that the postal vote has proved to be successful; it has also been successful in Chorley in Lancashire, not just on one occasion but on two. If we deny the people of Chorley the chance to cast a postal vote now, they will wonder why that is happening. How can those who are doing this term themselves "democrats" when postal votes lead to a greater return?
    Lord Smith of Leigh: My Lords, I thank my noble friend for the intervention. Of course, he is right, it is not just in Greater Manchester. Saint Helens in Merseyside and other places in the north-west have tried it.
    If we pass this amendment and do not allow postal voting in the north-west, members of the electorate who have become used to participating in elections by postal vote will be denied that opportunity. To deny people the opportunity to vote is not a principle that I support.
    Baroness Hanham: My Lords, I am fascinated that the last three contributors had taken no part in this Bill until now. We had heard nothing of what they have said. We heard nothing either in Committee or on Report of the justification that they have just put forward. We are now in the last moments of this Bill, with which a few of us have been involved from the outset. I give way.
    Lord Filkin: My Lords, I am most grateful to the noble Baroness, Lady Hanham. I just wanted to check whether the noble Baroness was winding up at this point. In which case, I wonder whether the noble Baroness would do me the grace of allowing me to say
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    a few words in response. As a result of advancing age and being slow on my feet, I, not the noble Baroness, am quite clearly at fault.
    Baroness Hanham: My Lords, I do not want to interfere with the procedure. I can say all of that all over again. It gives me a second chance.
    Lord Filkin: My Lords, I shall not detain the noble Baroness for long. The passage of the Bill through this House has been well and thoughtfully handled. I think there have been efforts from all Benches to engage with real issues and seek to address them. On many issues, we have listened to what the House has said and have made a number of concessions. This is not one of them, and that is for no flippant reason. We believe we are perfectly reasonable to have this in four regions. We think it can be carried out securely, and that we will learn from the process of doing so. Therefore, I wanted to emphasise that there are such benefits to the public in more people voting in elections. As has clearly been indicated, it is responsible of us—and I hope that it would be, at some stage, for all parties—to allow this further pilot to proceed in the form we have proposed. I believe that is in the interests of democracy. For these reasons, I hope the noble Baroness will not be minded to press her amendment.
    Baroness Hanham: My Lords, I apologise if I nipped in before the Minister. Having said what I said, I will not refer to it again. I want to remind the House that we are talking about an experiment here, as I said in my opening remarks. We are not talking about a decision having been made for the whole country to vote on an all-postal basis, or the benefits of that. The Government want to test whether all-postal voting does have an impact. I will readily accept that the Minister has been responsive to the practical issues raised about all-postal voting during our deliberations. But these are still trials, and a trial is better done where there is an opportunity to assess it.
    The cat is out of the bag about this: the reason these four regions have been selected is that their next effort will be in October, when they will be invited to decide whether there should be regional assemblies. So this would effectively be a dry run for that. However, I do not think that that is a proper reason for the proposal. If we must have a pilot, examination and test of whether this will work, then, in all honesty, it makes sense to do it on a limited scale.
    The other three contributors, including the noble Lords, Lord Smith and Lord Woolmer, pointed to the fact that the previous pilots have gone down well. That is not the feedback we have had from the areas concerned. Clearly, other views have been presented to us.
    There are inherent problems in the process. The main rationale offered for the proposal is that it would increase turnout. None of us would disagree with that. However, there is no point in measuring increased turnout only against the standard of the convenience of the vote. People will vote if it is more convenient. However, if we are truly to increase turnout, people

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    should want to vote against the background of a manifesto and candidates whom they want to support, not because they see it as an easier way to vote.
    We must also not lose sight of the fact that the proposals distance us from the ballot box. Many people believe that their civic duty entails going to the polling station to vote; not everyone, but many people prefer to do that. We therefore believe that where a recommendation has been made and advice sought and given, that advice should not lightly be thrown in the air and ignored.
    I think that the letter from the chairman of the Electoral Commission is available on the website. I have certainly had a copy of it. It makes it very clear that the original recommendation was for two regions. The commission put forward another four, but it was not consulted on the other two which the Government finally proposed. The commission is concerned about the extension. For all those reasons, I wish to test the opinion of the House.
    4.2 p.m.
    On Question, Whether the said amendment (No. 1B) shall be agreed to?
    Their Lordships divided: Contents, 174; Not-Contents, 130.

    Division No. 2

    CONTENTS

    Addington, L.

    Home, E.

    Allenby of Megiddo, V.

    Hooper, B.

    Ampthill, L.

    Hooson, L.

    Anelay of St Johns, B.

    Howe, E.

    Armstrong of Ilminster, L.

    Howe of Idlicote, B.

    Arran, E.

    Howell of Guildford, L.

    Astor, V.

    HuntofWirrahL.

    Astor of Hever, L.

    Hylton, L.

    Attlee, E.

    Jenkin of Roding, L.

    Avebury, L.

    Jopling, L.

    Barker, B.

    Kilclooney, L.

    Beaumont of Whitley, L.

    Kimball, L.

    Biffen, L.

    King of Bridgwater, L.

    Blaker, L.

    Kingsland, L.

    Bowness, L.

    Knight of Collingtree, B.

    Bradshaw, L.

    Lamont of Lerwick, L.

    Bridge man, V.

    Lane of Horsell, L.

    Brigstocke, B.

    Lester of Herne Hill, L.

    Brooke of Sutton Mandeville, L.

    Livsey of Talgarth, L.

    Brougham and Vaux, L.

    Lucas, L.

    Buscombe, B.

    Luke, L.

    Byford, B.

    Lyell, L.

    Campbell of Alloway, L.

    McColl of Dulwich, L.

    Carlisle of Bucklow, L.

    MacGregor of Pulham Market, L

    Clement-Jones, L.

    Colville of Culross, V.

    Mackay of Clashfern, L.

    Cope of Berkeley, L.

    Mackie of Benshie, L.

    Courtown, E.

    Maclennan of Rogart, L.

    Cox, B.

    McNally, L.

    Craigavon, V.

    Maddock, B.

    Crathorne, L.

    Maginnis of Drumglass, L.

    Crickhowell, L.

    Mancroft, L.

    Dahrendorf, L.

    Mar, C

    Deedes, L.

    Mar and Kellie, E.

    Dholakia, L.

    Marsh, L.

    Dixon-Smith, L.

    Masham of Ilton, B.

    Eccles of Moulton, B.

    Methuen, L.

    Eden of Winton, L.

    Michie of Gallanach, B.

    Elton, L.

    Miller of Chilthorne Domer, B.

    Ezra, L.

    Miller of Hendon, B.

    Falkland, V.

    Molyneaux of Killead, L.

    Fearn, L.

    Monro of Langholm, L.

    Feldman, L.

    Monson, L.

    Fookes, B

    Mowbray and Stourton, L.

    Fowler, L.

    Moynihan, L.

    Freeman, L.

    Naseby, L.

    Gardner of Parkes, B.

    Newby, L.

    Geddes, L.

    Northesk, E.

    Glentoran, L.

    Northover, B.

    Goodhart, L.

    Oakeshott of Seagrove Bay, L.

    Goschen, V.

    O'Cathain, B.

    Gray of Contin, L.

    Onslow, E.

    Greaves, L.

    Palmer, L.

    Greengross, B.

    Park of Monmouth, B.

    Greenway, L.

    Peel, E.

    Griffiths of Fforestfach, L.

    Phillips of Sudbury, L.

    Hamwee, B.

    Pilkington of Oxenford, L.

    Hanham, B.

    Platt of Writtle, B.

    Hanningfield, L.

    Plumb, L.

    Harris of Richmond, B.

    Plummerof St. Marylebone, L.

    Hayhoe, L.

    Prior, L.

    Henley, L.

    Quinton, L.

    Higgins, L.

    Rawlings, B.

    Hodgson of Astley Abbotts, L.

    Razzall, L.

    162

    Reay, L.

    Smith of Clifton, L.

    Redesdale, L.

    Soulsby of Swaffham Prior, L.

    Rees, L.

    Stewartby, L.

    Rees-Mogg, L.

    Stoddart of Swindon, L.

    Renfrew of Kaimsthorn, L.

    Swinfen, L.

    Rennard, L.

    Taverne, L.

    Renton, L.

    Tebbit, L.

    Thomas of Gresford, L.

    Rodgers of Quarry Bank, L.

    Thomas of Gwydir, L.

    Roper, L. [Teller]

    Thomas of Walliswood, B.

    Rotherwick, L.

    Thomson of Monifieth, L.

    Russell, E.

    Tope, L.

    Saltoun of Abernethy, Ly.

    Tordoff, L.

    Sandberg, L.

    Trumpington, B.

    Scott of Needham Market, B.

    Ullswater, V.

    Seccombe, B.

    Vinson, L,

    Selborne, E.

    Waddington, L.

    Selsdon, L.

    Wakeham, L.

    Sharman, L.

    Wallace of Saltaire, L

    Sharp of Guildford, B.

    Walmsley, B.

    Sharples, B.

    Walpole, L.

    Shaw of Northstead, L.

    Watson of Richmond, L.

    Shutt of Greetland, L. [Teller]

    Wilcox, B.

    Skelmersdale, L.

    Windlesham, L.

    NOT-CONTENTS

    Acton, L.

    Goudie, B.

    Ahmed, L.

    Gould of Potternewton, B.

    Alli, L.

    Graham of Edmonton, L.

    Amos, B. (Lord President of the

    Gregson, L.

    Council)

    Grocott, L. [Teller]

    Andrews, B.

    Hannay of Chiswick, L.

    Ashley of Stoke, L.

    Harris of Haringey, L.

    Ashton of Upholland, B.

    Harrison, L.

    Bach, L.

    Haskel, L.

    Barnett, L.

    Haskins, L.

    Bassam of Brighton, L.

    Hayman, B.

    Bernstein of Craigweil, L.

    Hilton of Eggardon, B.

    Bhatia, L.

    Hollis of Heigham, B.

    Billingham, B.

    Howells of St. Davids, B.

    Blackstone, B.

    Howie of Troon, L.

    Bledisloe, V.

    Hoyle, L.

    Borrie, L.

    Hughes of Woodside, L.

    Boston of Faversham, L.

    Hunt of Chesterton, L.

    Brooke of Alverthorpe, L.

    Hunt of Kings Heath. L.

    Brookman, L.

    Irvine of Lairg, L.

    Brooks of Tremorfa, L.

    Jay of Paddington, B.

    Campbell-Savours, L.

    Jones, L.

    Carter, L.

    Jordan, L.

    Chandos, V.

    Kennedy ofThe Shaws, B.

    Chorley, L.

    Kirkhill, L.

    Christopher, L.

    Laming, L.

    Clark of Windermere, L.

    Layard, L.

    Clarke of Hampstead, L.

    Lea of Crondall, L.

    Clinton-Davis, L.

    Lockwood, B.

    Corbett of Castle Vale, L.

    Lofthouse of Pontefract, L.

    Crawley, B.

    McCarthy, L.

    David, B.

    Mcintosh of Haringey, L.

    Davies of Coity, L.

    Mcintosh of Hudnall. B.

    Davies of Oldham, L. [Teller]

    MacKenzie of Culkein, L.

    Dean of Thornton-le-Fylde, B.

    Mackenzie of Framwellgate, L.

    Dealing, L.

    Mason of Barnsley, L.

    Dixon, L.

    Massey of Darwen,

    Dubs, L.

    Merlyn-Rees, L.

    Elder, L.

    Mitchell, L.

    Evans of Parkside, L.

    Morris of Aberavon, L.

    Evans of Temple Guiting, L.

    Morris of Manchester, L.

    Farrington of Ribbleton, B.

    Orme, L.

    Faulkner of Worcester, L.

    Parekh, L.

    Filkin, L.

    Patel, L.

    Fitt, L.

    Patel of Blackburn, L.

    Fyfe of Fairfield, L.

    Pendry, L.

    Gale, B.

    Peston, L.

    Gibson of Market Rasen, B.

    Pitkeathley, B.

    Gilbert, L.

    Plant of Highfield, L.

    163

    Prys-Davies, L.

    Thornton, B.

    Ramsay of Cartvale, B.

    Tomlinson, L.

    Randall of St. Budeaux, L.

    Triesman, L.

    Rea, L.

    Turner of Camden, B.

    Rendell of Babergh, B.

    Walton of Detchant, L.

    Roll of Ipsden, L.

    Warner, L.

    Rooker, L.

    Warwick of Undercliffe, B.

    Sainsbury of Turville, L.

    Sawyer, L.

    Weatherill, L.

    Sheldon, L.

    Wedderburn of Charlton, L.

    Simon, V.

    Whitaker, B.

    Smith of Leigh, L.

    Whitty, L.

    Strange, B.

    Wilkins, B.

    Symons of Vernham Dean, B.

    Williams of Elvel, L.

    Temple-Morris, L.

    Woolmer of Leeds, L.

    Resolved in the affirmative, and amendment agreed to accordingly.
    Motion, as amended, agreed to.
    4.13 p.m.

  LORDS AMENDMENT
  3 Clause 2, page 2, line 14, at end insert—
  "() The pilot order must provide that—

  (a) all postal ballot papers must be accompanied by a declaration of identity, signed by the elector and by a witness, and containing in legible form the name and address of the witness;

  (b) each elector who has returned a postal ballot paper is sent an acknowledgment by the returning officer."

  The Commons disagree to this Amendment for the following Reason—
  3A Because it is not appropriate to make the requirements to which the Lords amendment relates.
  Lord Filkin: My Lords, I beg to move that the House do not insist on its Amendment No. 3 to which the Commons have disagreed for their reason numbered 3A.
  154
  In seeking to set out clearly why this is so, I can best encapsulate it by saying that if there was any evidence whatever that this measure—the first paragraph, to which I am speaking specifically were of help, we would be open-minded about it. But all the evidence, and there is plenty of it, makes it quite clear that it does not help. In fact it goes the other way.
  The evidence shows that requiring a witness to sign that an elector's signature is valid has been shown to be a barrier to voting, and it does not offer protection against fraud. I do not expect the noble Baroness to take my word for it in this respect, but I do expect her to listen seriously to the evidence that the pilot process has advanced so far. In 2003 every local authority which had also held pilots in 2002 chose to dispense with a witness requirement. They did so because experience showed that a witness requirement increased the number of rejected ballot papers, excluding those who may have difficulty finding a witness. Thus it impacts negatively on turnout.
  The evidence for that is not simply from those individual elections, but also from the report of the Electoral Commission, The shape of elections to come. It gave the example of Trafford, where five times the number of ballot papers had to be rejected when a witness requirement was included compared with when only the elector's signature was required. The Electoral Commission carefully evaluated all the evidence and has concluded that a security statement requiring the signature of an elector but not a witness is the best model. The disability charity Scope agrees with that.
  One would have expected that requiring a witness signature to an elector's signature would increase confidence in the safety and security of the ballot. That is what you would expect to happen. But the evidence from MORI, which undertook an evaluation survey of people's perceptions, found that:
  "Perhaps surprisingly, people who were in postal voting areas where a declaration of identity, witnessed or non-witnessed, was needed were far less likely to rate the process as safe than those in areas where no signed declaration was required".
  The organisation went on to say:
  "The normal declaration particularly affects perceptions of `ease of use', with 20% fewer rating postal voting as good in areas where this is in place".
  For those reasons, there is strong evidence that this is a barrier to voting and does not help those who are disabled. As I have said, the charity for the disabled, Scope, has spoken out strongly against this proposal. Scope is concerned that paragraph (a) of the amendment would create significant barriers for many voters, particularly disabled and older voters, along with those with low literacy, and will negatively affect voter participation in the June elections. Scope, which has undertaken substantial research on postal balloting, went on to say:
  "Evidence suggests that requiring a declaration of identity and a witness signature does not make the ballot significantly more secure, but it does have a dramatic impact on turnout".

  155
  In other words, it has a downward impact.
  For these reasons, the Government are clear that this proposal does not make sense, and the Electoral Commission supports that view. In short, if one wants a measure that will reduce turnout, that will increase the number of spoilt ballot papers, and that will reduce confidence in the security of the ballot, vote for the amendment because that is what it will do.
  I turn to the second issue of asking returning officers to provide acknowledgments that they have received a postal ballot. On the face of it, this may appear sensible, but what has been clearly signalled both by the Electoral Commission and by returning officers is that this would be an administrative nightmare. As well as organising the election, returning officers would have to enter a paper chase in which they would be required to send back acknowledgments as soon as they received the postal ballots, or as soon as they could manage to do so. That in itself is not simple.
  As the Electoral Commission has said,
  "the requirement to send individual acknowledgements will place a considerable burden on Returning Officers and their staff at an extremely busy time, and it would be difficult to guarantee a swift acknowledgement. Any delay in acknowledgement could generate unfounded anxiety on the part of voters; and generate further work for the Returning Officer in dealing with queries".
  Rather than creating a virtuous circle, we would have a vicious circle of complexity.
  My final point is that our initial estimate of the costs of carrying out such an acknowledgment process for little benefit that we can see would be between £2 million and £2·5 million. We cannot see that money as justified, particularly because we cannot see any benefit here.
  It is important that we have had a further chance to reflect on these issues. The Commons and the Government have done so, but the evidence could not be clearer: neither of the proposals would help the process in any way. Therefore, for the reasons I have set out, I hope that the amendment will not be pressed.
  Moved, That the House do not insist on its Amendment No. 3 to which the Commons have disagreed for their reason numbered 3A.—(Lord Filkin.)
  Lord Rennard Lord Rennard rose to move Amendment No. 3B, as an amendment to the Motion that this House do not insist on its amendment 3 to which the Commons have disagreed for their reason numbered 3A, leave out "not".
  The noble Lord said: My Lords, with great respect to the noble Lord the Minister, there is one very fundamental and major flaw in his argument about the declaration of identity. Just five days ago, your Lordships' House agreed without a murmur of protest to the Government's proposed regulations for the conduct of elections in June. Indeed, I understand there was no objection whatever in another place. Five days ago we considered the regulations for the combined elections on 10 June. Within those regulations, three pages set out, in some detail, the requirement for all postal votes that are to be applied
  156
  for to be returned with an accompanying declaration of identity, signed by a witness, to confirm that the person returning the postal vote is the person who should be returning that vote. That is the rule the Government have proposed—we have agreed and the Commons have agreed—should apply in eight, nine or 10 of the 12 regions across the United Kingdom in these elections. There was not a murmur of protest anywhere that this should continue to be the system for checking against postal vote fraud.
  The first part of my amendment therefore simply insists that the same safeguards should apply where is it even more necessary—where postal votes are delivered to every voter irrespective of whether they have requested one. Without it, it would be all too easy to scoop up the votes delivered to places such as homes in multiple occupation, where you can sign that you are the voter and then return those votes. The declaration of identity with a witness signature means that you must get somebody else with different handwriting who must sign and confirm their address to certify that you are the person entitled to return that vote. Without the system of individual voter registration I referred to earlier, I believe that this process remains an essential safeguard everywhere, not just where postal ballots have to be applied for. It is for the sake of consistency rather than for changing the rules that I advocate this system.
  It has of course been suggested that it may be harder for disabled people to get a witness signature than for non-disabled people. I do not believe that argument to have any real basis in logic. Even a disabled person living alone will surely see some other person—perhaps a carer—in the fortnight that they have to vote. If, very sadly, they do not, one wonders quite how the postal vote without a witness signature could be returned in any event.
  I have also heard it suggested that the witness signature may be another measure that undermines the secrecy of the ballot, a point about which we are generally concerned with all postal voting. Those of us familiar with the process of voting by post—indeed, I always vote by post—will know that the ballot paper itself is enclosed in a separate envelope so that nobody witnessing the voter's signature on a separate declaration of identity should actually see the ballot paper itself.
  I accept that the second part of the amendment is rather more experimental, but I find rather strange the argument in another place that we should not do this because it is experimental when the whole purpose of piloting voting systems is to experiment. Throughout all these debates there has been much speculation about the level of fraud. One way of assessing the scale of the problem is by trying to alert people when their ballot paper has been received by the returning officer. This may help to allay fears that their vote has actually been received in time. It will also arouse suspicion if someone knows that a ballot paper that they did not in fact receive and complete has been returned without their knowledge. I beg to move.
  Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 3, to which the Commons have disagreed for their reason nurnbered 3A, leave out "not".—(Lord Rennard.)
  Baroness Gibson of Market Rasen: My Lords, I am speaking today on behalf of my noble friend Lord Carter, who is unable to be in the Chamber at this time. Scope has conducted research into accessible voting systems for the past 12 years, including evaluating the accessibility of 2002 and 2003 election pilot schemes on behalf of the Electoral Commission. It found that requiring voters to have their ballots witnessed by another person not only increased the likelihood of people spoiling their ballot or returning them uncompleted, but also put many disabled and older voters, who are more likely to be isolated or live alone, at a substantial disadvantage.
  Scope wishes to point out that requiring a declaration of identity and a witness signature does not make the ballot significantly more secure but does have a dramatic impact on turnout. Last year, St Edmundsbury, the only postal pilot to retain the need for a witness, had the lowest turnout of any voting pilot in England and Wales. Literally millions of voters would be adversely affected by such a requirement, including 2 million people in Britain who have visual impairments, 1.5 million people who have a learning impairment, and 24 per cent of adults who have low, lower or very low literacy levels.
  Baroness Hanham: My Lords, I rise briefly to support the amendment and to challenge, mildly, the previous speech. We are not talking here about elections across the country where an enormous number of people would be involved. We are talking about the experimentation in what we hope will be two regions but which the Government hope will be four. While I absolutely accept that there will be a significant number of people who will need help with the ballot paper, it does not by any means fall into the number that was being quoted.
  The noble Lord, Lord Rennard, made a very justifiable point. We are in danger here of running two sorts of elections from two different departments. Last week, we went through the regulations from the Office of the Deputy Prime Minister. As the noble Lord, Lord Rennard, said, a witness signature is required. We come to the matter today. A different department is involved and there is a great hue and cry about it.
  One of the aspects of the experiment ought to be to ensure we get the most secure vote. Having a witness signature to the postal vote—which, after all, is now the only method whereby these people can vote—is not beyond the bounds of possibility or credibility, and will possibly give more credibility to the vote. I therefore beg to support the amendment.
  Lord Greaves: My Lords, I held myself firmly down during the debate on the previous amendment. I had difficulty in doing so when the noble Lord, Lord Smith of Leigh, claimed to be speaking on behalf of the north-west. However, like him I should declare a
  158
  potential interest. In my case, depending on various selection processes, I may be on a ballot paper on 10 June—or whenever they are sent out if we have an all-postal vote.
  The Minister said that the witness statement was thought to be a barrier to voting and doing away with it increased ease of use. I would put it in a different way. It may be a barrier to fiddling and it may reduce the ease of fiddling. It would be interesting to know, in the pilots that have already taken place, who sent back the ballots papers that had been rejected because they did not have a witness statement accompanying them. As far as I am aware, nobody has actually done that research. It is all very well using MORI or anybody else to carry out vague opinion polls asking people general questions such as: "Did you like it?"; "Did you have a nice tea the day you voted?"; or whatever it is. However, what we actually need from these pilots is hard investigation and evidence concerning the following points. If there is a difference between the number of rejected papers without the witness and the number of rejected papers that had the witness, who were those people? Has anybody chased them up to find out why they did not send the witness statement back? This is the kind of hard research we want. It just has not been done at all. I hope that it will be done in the pilots that take place in the European and local elections this year.
  I explained in considerable detail in Grand Committee having the witness statements was extremely helpful when we felt it necessary to investigate some local elections in my own borough in Pendle. It may be that you suspect people of going around hoovering up votes and then sending them all in. If you have a witness statement accompanying them, you know by inspecting afterwards who has witnessed those votes. There is a line of inquiry. When you discover that some people have each witnessed more than 100 votes, this should lead to further lines of inquiry and to suspicions about what has happened.
  We are being asked to agree to the proposition that the necessity for a witness statement will make it more difficult for disabled people, visually impaired people and people impaired through low levels of learning or high levels of learning difficulty to complete their ballot papers. I do not buy that. If a person is capable, through whatever means, of understanding the ballot paper and the instructions that accompany it, signing the separate piece of paper, putting the ballot paper in one envelope and then putting all the paperwork in another envelope and sending it back, should we be asked to believe that that person is not capable of getting someone else to sign a separate piece of paper confirming that he or she is the person sending the ballot paper back? I respect what Scope says, but I think it is wrong.
  We all know that the demand for postal votes at the moment is heavily biased towards old people and disabled people. We have never had any serious complaints over the years that it causes them difficulties. As my noble friend said, the idea that some

  159
  people are such recluses that they never see anyone in a fortnight—although, no doubt, there are one or two people in society nowadays in that sad position—and cannot ask one person to sign a form saying that they are who they are meant to be is, quite frankly, not a serious argument.
  As to the second part of my noble friend's amendment, even if the wildest dreams of the noble Lord, Lord Woolmer, who is not in his place, and the noble Lord, Lord Smith of Leigh, come true and there are huge turnouts in the elections as a result of the postal votes, and the turnout across the north-west is more than 50 per cent, that will still mean that almost half the ballot papers sent out will be lying around somewhere during the fortnight in which they can be sent back. They will be piled up in lobbies and in hallways; they will be put on one side; they will be put out in bags for the local waste-paper collection; and they will be lying around in all kinds of other ways. It will be so easy for people to wander around, pick up ballot papers and send them back.
  The ballot papers will be a great temptation to political canvassers when they are going around, knocking on doors and talking to people. If the waste-paper collection is next to the door and the ballot papers are lying on top of it, I cannot put my hand on my heart and claim that no members of any party would ever be subject to temptation. If I could do so, I would, but I do not believe it, quite frankly.
  4.30 p.m.
  Lord Smith of Leigh: My Lords. we have seen it in Oldham.
  Lord Greaves: My Lords, we have indeed seen it in Oldham. Again, it is a pity that the noble Lord, Lord Smith of Leigh. is now interjecting from a sedentary position because we have missed his great experience over the years. It was a great pity that he could not take part in the Grand Committee, in particular, and in the other stages of the Bill. His experience would have been extremely valuable, whether it be from Oldham, Wigan or anywhere else.
  I should say to the noble Lord that there are many reports of landlords voting on behalf of tenants in Oldham. They go round, collect the rent, collect the ballot papers and send them back. The noble Lord is nodding. I would not like to say whether it is limited to one party or to two parties. I would like to say that it is perhaps a cultural issue but, whatever it is, it is highly undesirable.
  On the other hand, if votes are being stolen without the knowledge of the elector and the elector gets a letter from the town hall stating, "Your vote has been sent in", surely that is a fundamental safeguard against fraud. We are all concerned about fraud and I therefore support my noble friend's amendment.
  Lord Filkin: My Lords, I shall be brief. As to the good question of the noble Lord, Lord Rennard, about why last week that and this week this, the answer is that the declaration of identity with witness requirement is the norm for postal ballots in traditional elections. This is different because it is a pilot and we are testing out a different system in this respect. The reason that we have done so in the way proposed initially in the House, which the Commons now insist on, is because the evidence points that way.
  I would be the first to agree with the noble Lords, Lord Rennard and Lord Greaves, that if these measures—perhaps with some caution about the second one, which is expensive—appeared to address the problem, we should look at them. When I first engaged with the Bill, on first flush it appeared to be the case that a witness signature would increase security and would be beneficial. But the evidence from the Electoral Commission in that respect is that that is not so, and the evidence from Scope—a charity for the disabled which has done more research on this than anyone—is that there are significant disadvantages as a consequence. So there is no measure of hostility on this; it is merely that the evidence does not support the fact that these changes will work.
  I also agree with the noble Lord that we should be serious about the assessment of the scale of fraud, in both postal and other elections. I am four square with him on that. But I do not think that an acknowledgement is the way to achieve it. I have sought, in a condensed form, to set out the ways in which I believe that assessment should be carried out as part of the evaluation of these pilots. For those reasons, not through any sense of hostility, I do not think we would be wise to support these measures because there is no evidence that they will work.
  Lord Rennard: My Lords, I agree with the Minister that in due course it will probably be unnecessary to have these declarations of identity accompanied by a witness signature. But, until we have individual voter registration, as my noble friend Lord Greaves explained so persuasively and powerfully, the system is seen to be open to abuse and has been abused in a number of areas.
  We are experimenting now with voting mechanisms and, when we have safeguards in the vast majority of the country for everyone who applies to vote by post, it is wholly inappropriate that we should eliminate those safeguards and simply send out ballot papers, almost willy-nilly, through every letter box. That seems totally wrong.
  The arguments put forward by Scope, much as I respect it and disabled people, have effectively been countered during the debate. In my long experience of elections, these people are used to voting by post rather than going to a polling station. They seem to have no problem with the system at the moment and I do not see why they should have a problem with the system in the future. For those reasons, I should like to test the opinion of the House.
  4.38 p.m.
  On Question, Whether the said amendment (No.3B)
  Shall be agreed to?
  Their Lordshops divided: Contents, 174; Not- Contents, 126.
  Resolved in the affirmative, and amendment agreed to accordingly.
  Motion, as amended, agreed to.
  Bill returned to the Commons with reasons.

Business
Lord Grocott: My Lords, before we move to the next business, it may be helpful if I say that with the agreement of the usual channels proceedings on the Planning and Compulsory Purchase Bill will begin no less than half an hour from now, at twenty past five. If necessary, once the Northern Ireland order has been considered, I shall move that the House do adjourn during pleasure for a short time.
The reason is simple. We have no way of knowing quite how long the Northern Ireland order will take. It is sensible to have a half hour turn round when essentially the same group of noble Lords are debating the European Parliamentary and Local Elections (Pilots) Bill and the Planning and Compulsory Purchase Bill. I am sure it makes sense.

Agricultural Statistics (Northern Ireland) Order 2004
4.50 p.m.
Baroness Amos Baroness Amos rose to move, That the draft order laid before the House on 12 February be approved.
The noble Baroness said: My Lords, the purpose of the order is to replace the Agricultural Statistics (Northern Ireland) Act 1939, which is considered to be no longer fit for purpose, and thereby improve the quality of agricultural statistics on which important decisions are based.
The UK is obliged by the EU to collect data on farmers and persons dependent on farming. The 1939 Act makes provision for the statutory collection of data on crops and livestock, some of which can be accessed through administrative sources, but not for the collection of information on social aspects such as the age of farmers or whether they have any diversification enterprises.
The provisions of the order will therefore require farmers in Northern Ireland to provide a more useful range of statistical information to the Department for
164
Agriculture and Rural Development, which will be invaluable in monitoring trends within the industry during the next decade. In particular, the order specifies: what information may be demanded; the circumstances under which individual information may be disclosed; and the penalties for non-compliance or for wrongful disclosure.
I can assure your Lordships that the order places no additional burden on farmers to provide information and imposes no additional cost on them or on the state. No objections to the order were raised during the 12-week consultation period. I beg to move.
Moved, That the draft order laid before the House on 12 February be approved.—(Baroness Amos.)
Lord Glentoran: My Lords, I thank the Lord President of the Council for bringing the order to the House. First, I should declare an interest as a Northern Ireland farmer.
The order is very welcome. I understand that the Ulster Farmers' Union has welcomed it and I think that many others will. It certainly simplifies matters. It brings statistical collection from 1939 hopefully up to 2004. I am delighted to hear that there will be no increased cost.
In Northern Ireland, farming is a family business. The agriculture industry is arguably the biggest one that we have in Northern Ireland, but it is still operated on a family basis. Farms are worked by their owners and their families. The average farm used to be about 30 acres in size, but has probably increased to about 100 acres. Not so very long ago, the Ulster Farmers' Union brought a petition to Downing Street to complain about the impossibility for families to live off a farming income. Incomes fell so far in Northern Ireland during the foot and mouth and BSE outbreaks. Although they did not occur Northern Ireland, they affected the market adversely. I pay tribute to Brid Rodgers, who did a super job while she was in Stormont as the agriculture Minister during the foot and mouth crisis. For many years, the Department for Agriculture and Rural Development in Northern Ireland has been very much the friend of the farmer. Having spent a little time on the Front-Bench team of MAFF and Defra, I believe that this country has a lot to learn from the way in which agriculture has been managed in Northern Ireland. It is worth making that point on this occasion, but, overall, I welcome the order.
Baroness Harris of Richmond: My Lords, I too thank the Lord President for bringing the order before us. I echo the sentiments of the noble Lord, Lord Glentoran. It is an uncontroversial order. It would appear that extensive consultation has taken place, even to the extent of being posted on the web, on which I congratulate the Northern Ireland Office. There has been neither opposition nor amendment to the order. Therefore, we on these Benches fully support it.
Baroness Amos: My Lords, I thank the noble Lord and the noble Baroness for their comments and for

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welcoming the order. I can assure the noble Lord, Lord Glentoran, that there will be no increased cost. In fact, the number of forms that farmers have to fill out will be rationalised and the system will be simplified.
On Question, Motion agreed to.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 5.20 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 4.55 to 5.20 p.m.]

Planning and Compulsory Purchase Bill
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, I beg to move that the Bill be now further considered on report.
Moved, That the Bill be further considered on Report.—(Lord Rooker.)
On Question, Motion agreed to.
Clause 46 [Simplified planning zones]:
Baroness Hanham Baroness Hanham moved Amendment No. 139:
Leave out Clause 46.
The noble Baroness said: My Lords, Clause 46 amends the Town and County Planning Act's provision for simplified planning zones. According to the clause, a local authority may designate a simplified planning zone only where the need has been identified by the regional spatial strategy. Consequently, the Secretary of State will have significant power as to when and where they are established. My amendment would remove the clause from the Bill.
Business planning zones have had a chequered and unloved career. They have been widely disregarded by both the business community and local authorities, and there are considerable doubts from both as to whether the zones would actually speed up the planning process, strengthen accountability and public confidence in planning, secure development in the area where it is needed, or deliver the high-quality development that is required to meet the Government's urban renaissance programme.
These zones were introduced ostensibly to aid economic growth and were based on an assumption, which has now been exploded by the recent research carried out by Roger Tym and Partners for the Office of the Deputy Prime Minister Select Committee, that planning is bad for the economy and competitiveness. As proved, there is no evidence that planning control hinders either of these desirable outcomes, and it is critical the planning controls should not be jettisoned in a misguided attempt to promote economic growth at the expense of high standards. Against this background, it is quite unacceptable that simplified planning zones should be imposed on local authorities by regional planning bodies, particularly as it is clear
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from all the discussions we have had that spatial strategies could include such policies as the promotion of development on large greenfield sites.
Rather than proceed further with these zones, it would be better now for them quietly to hit the dust. The fact that they have had little take-up and no friends would indicate that they are an obsolete part of the business and economic armoury and should be abandoned. I beg to move.
Baroness Hamwee: My Lords, we have added our names to this amendment and indeed I think that we led on the issue in Committee. We are in amity with the noble Baroness. We have tabled Amendments Nos. 146B and 149A in this group and those are consequential amendments.
At the previous stage of the Bill I asked two questions in connection with simplified planning zones, which I do not think were answered. I referred to the Green Paper's advocacy of business planning zones—I take it that simplified planning zones are what business planning zones become—which would avoid,
"delays [which] can prove a significant obstacle to the development of [fast-moving business]".
I also referred to research for the Select Committee indicating that it is a myth that planning is bad for competitiveness and for the economy. I ask the Minister to take the opportunity to explain what evidence there is that planning hinders competitiveness.
I also asked how simplified planning zones relate to local development orders, since, from what I have read about the proposed use of local development orders, it might well be that they would give the latitude on a local basis to achieve what the Government say is necessary and would be achieved by simplified planning zones.
I have a third question today, which I hope the Minister will be able to answer along with those two. In Committee on 2 February (at col. 475 of the Official Report) the noble Lord twice said that simplified planning zones would be "high-quality" and "high-tech. I can understand "high-tech", if that is what the regional spatial strategy or the Secretary of State identify as being the objective of any simplified planning zone, but how does a simplified planning zone guarantee high quality?
The noble Baroness, Lady Hanham, has said again today that this is not a much-loved provision. She said in Committee that the Bill had few friends and was losing them along the way. The Local Government Association is among those who doubt that simplified planning zones would speed up the process, would strengthen accountability or public confidence, secure development or deliver high quality. It points out that there is little support for them among local authorities—and they are in a position to say so—and we know that the business community does not seem to have come out in enthusiastic support, which one might have expected if it was going to be affected.

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As the Minister was speaking in Committee, I thought that he rather backed up what the noble Baroness was saying about losing friends, because by the end of his brief he was clearly rather relieved to find the assurance that any simplified planning zones would be a long way off. He thought that that might win the Committee over. I think there is a lack of logic in that, if I may say so. Certainly, as he continued, the value of the provision seemed in his own eyes to be diminishing. We support the deletion of the clause from the Bill.
Lord Rooker: My Lords, I have never been very good at spin. There really is not the content to spin this one anyway. Nevertheless, I have to do my duty.
Clause 46 amends the provisions relating to the creation of the simplified planning zones so that they cannot be made by a planning authority unless the need for one has been identified in the regional spatial strategy, or the spatial development strategy in the case of London.
The provision enables the lifespan of a simplified planning zone to be for a period of up to 10 years, rather than restricting it to 10 years. That provision facilitates the creation of areas of high-tech businesses that will be referred to as business planning zones, as first proposed in the planning Green Paper in December 2001. Those business planning zones will provide a flexible planning regime to facilitate the rapid development of high-quality, high-tech business clusters, and encourage investment for growth and regeneration. I do not have any facts and proof to back that up, but that is clearly the aspiration.
As I said originally, we anticipate only one or two business planning zones per region, which must be identified in the regional spatial strategy. It is planned for them to have a low environmental impact. Their locations will be chosen to meet identified strategic needs, and any business planning zone schemes brought forward will be required to undergo environmental impact assessment and public consultation.
The zones are, of course, strategic tools, addressed in the first instance at the regional level. The local development orders are the local instruments, to be promoted entirely at the discretion of local planning authorities to meet a wider range of local needs. That deals with the issue of the similarity to local development orders. Business planning zones will serve a valuable and positive purpose, and should be supported. I therefore ask the noble Baroness to withdraw her amendment.
Baroness Hanham: My Lords, I have heard more enthusiastic speeches from the Minister, and have had more convincing replies. I have never really known the Minister to spin, and he certainly was not spinning today. I think that we should put him out of his misery; we should test the opinion of the House to see if we can get rid of the zones for him.
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5.29 p.m.
On Question, Whether the said amendment (No. 139) shall be agreed to?
Their Lordships divided: Contents, 169; Not-Contents, 114.

Division No. 3

CONTENTS

Addington, L.

Hayhoe, L.

Alton of Liverpool, L.

Henley, L.

Anelay of St Johns, B.

Higgins, L.

Arran, E.

Hodgson of Astley Abbotts, L.

Astor, V.

Home, E.

Astor of Hever, L.

Hooper, B.

Attlee, E.

Hooson, L.

Avebury, L.

Howe, E.

Barker, B.

Howell of Guildford, L.

Beaumont of Whitley, L.

Hunt of Wirral, L.

Biffen, L.

Jenkin of Roding, L.

Blackwell, L.

Jopling, L.

Blaker, L.

Kimball, L.

Bledisloe, V.

King of Bridgwater, L.

Bowness, L.

Knight of Collingtree, B.

Bradshaw, L.

Lane of Horsell, L.

Bridgeman. V.

Lester of Herne Hill, L.

Bridges, L.

Lindsay, E.

Brigstocke, B.

Livsey of Talgarth, L.

Brooke of Sutton Mandeville, L.

Lucas, L.

Brookeborough, V.

Luke, L.

Brougham and Vaux, L.

Lyell, L.

Buscombe, B.

McColl of Dulwich, L.

Byford, B.

MacGregor of Pulham Market,

Campbell of Alloway, L.

L.

Carlisle of Bucklow, L.

Mackay of Clashfern, L.

Chalker of Wallasey, B.

Mackie of Benshie, L.

Chester, Bp.

Maclennan of Rogart, L.

Chorley, L.

McNally, L.

Colwyn, L.

Maddock, B.

Cope of Berkeley, L. [Teller]

Mancroft, L.

Courtown, E.

Marand Kellie, E.

Cox, B.

Masham of Ilton, B.

Craig of Radley, L.

Methuen, L.

Craigavon, V.

Michie of Gallanach, B.

Crathome, L.

Miller of Chilthorne Domer, B.

Crickhowell, L.

Miller of Hendon, B.

Cumberlege, B.

Monro of Langholm, L.

Deedes, L.

Moore of Lower Marsh, L.

Dholakia, L.

Mowbray and Stourton, L.

Dixon-Smith, L.

Moynihan, L.

Dundee, E.

Naseby, L.

Eden of Winton, L.

Newby, L.

Elton. L.

Noakes, B.

Falkland, V.

Northbrook, L.

Fearn, L.

Northesk, E.

Ferrers, E.

Oakeshott of Seagrove Bay, L.

Fookes, B.

O'Cathain, B.

Forsyth of Drumlean, L.

Onslow, E.

Fowler, L.

Palmer, L.

Fraser of Carmyllie, L.

Park of Monmouth, B.

Freeman, L.

Peel, E.

Gardner of Parkes, B.

Perry of Southwark, B.

Geddes, L.

Pilkington of Oxenford, L.

Glentoran, L.

Platt of Writtle, B.

Goodhart, L.

Plumb, L.

Goschen, V.

Plummerof St. Marylebone, L.

GrayofContin, L.

Prior, L.

Greaves, L.

Quinton, L.

Griffiths of Fforestfach, L.

Rawlings, B.

Hamwee, B.

Reay, L.

Hanham, B.

Redesdale, L.

Hanningfield, L.

Rees, L.

Harris of Richmond, B.

Rees-Mogg, L.

169

Renfrew of Kaimsthorn, L.

Stoddart of Swindon, L.

Rennard, L.

Swinfen, L.

Renton, L.

Taverne, L.

Rodgers of Quarry Bank. L.

Tebbit, L.

Roper, L.

Thomas of Gresford, L.

Rotherwick, L.

Thomas of Gwydir, L.

Russell, E.

Thomas of Walliswood, B.

Saltoun of Abernethy, Ly.

Thomson of Monifieth, L.

Sandberg, L.

Tope, L.

Scott of Needham Market, B.

Tordoff, L.

Seccombe, B.

Trumpington, B.

Selborne, E.

Ullswater, V.

Selsdon, L.

Vinson, L.

Sharman, L.

Waddington, L.

Sharp of Guildford. B.

Wade of Chorlton, L.

Sharples, B.

Wakeham, L.

Shaw of Northstead, L.

Walmsley, B.

Shutt of Greetland, L. [Teller]

Walpole, L.

Skelmersdale, L.

Watson of Richmond, L.

Smith of Clifton, L.

Wilcox, B.

Stewartby, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Grocott, L. [Teller]

Ahmed, L.

Harrison, L.

Alli, L.

Haskins, L.

Amos, B. (Lord President of the Council

Hayman, B.

Hilton of Eggardon, B.

Andrews, B.

Hollis of Heigham, B.

Ashley of Stoke, L.

Howarth of Breckland, B.

Ashton of Upholland, B.

Howie of Troon, L.

Bach, L.

Hoyle, L.

Barnett, L.

Hughes of Woodside, L.

Bassam of Brighton. L.

Hunt of Chesterton, L.

Bernstein of Craigweil, L.

Hunt of Kings Heath, L.

Bhatia, L.

Irvine of Lairg, L.

Billingham, B.

Jay of Paddington, B.

Blackstone, B.

Jones, L.

Borrie, L.

Kennedy of The Shaws, B.

Bragg, L.

Kirkhill, L.

Brooke of Alverthorpe, L.

Layard, L.

Brookman, L.

Lea of Crondall, L.

Brooks of Tremorfa, L.

Lockwood, B.

Burlison, L.

Lofthouse of Pontefract, L.

Campbell-Savours, L.

McCarthy, L.

Carter, L.

McIntosh of Haringey, L.

Christopher. L.

McIntosh of Hudnall, B.

Clark of Windermere, L.

MacKenzie of Culkein, L.

Clarke of Hampstead, L.

Mackenzie of Framwellgate, L.

Clinton-Davis, L.

Marsh, L.

Corbett of Castle Vale, L.

Mason of Barnsley, L.

Crawley, B.

Massey of Darwen, B.

David, B.

Merlyn-Rees, L.

Davies of Coity, L.

Mitchell, L.

Davies of Oldham, L. [Teller]

Morris of Aberavon, L.

Dean of Thornton-le-Fylde, B.

Morris of Manchester, L.

Dearing, L.

Orme, L.

Dixon, L.

Parekh, L.

Dubs, L.

Patel, L.

Elder, L.

Patel of Blackburn, L.

Evans of Parkside, L.

Pendry, L.

Evans of Temple Guiting, L.

Peston, L.

Falconer of Thoroton, L. (Lord Chancellor)

Pitkeathley, B.

Ramsay of Cartvale, B.

Farrington of Ribbleton, B.

Randall of St. Budeaux, L.

Faulkner of Worcester, L.

Rea, L.

Filkin, L.

Rendell of Babergh, B.

Fyfe of Fairfield, L.

Rooker, L.

Gale, B.

Sainsbury of Turville, L.

Gibson of Market Rasen, B.

Sawyer, L.

Gilbert, L.

Sheldon, L.

Goldsmith, L.

Simon, V.

Goudie, B.

Smith of Leigh, L.

Gould of Potternewton, B.

Symons of Vernham Dean, B.

Graham of Edmonton, L.

Temple-Morris, L.

170

Thornton, B.

Wedderburn of Charlton, L.

Tomlinson, L.

Whitaker, B.

Triesman, L.

Whitty, L.

Turner of Camden, B.

Wilkins, B.

Warner, L.

Williams of Elvel, L.

Weatherill, L.

Woolmer of Leeds, L

Resolved in the affirmative, and amendment agreed to accordingly.
5.39 p.m.
Baroness Maddock Baroness Maddock moved Amendment No. 139A:
Before Clause 47, insert the following new clause—
"APPLICATION OF SECTION 106 OF THE PRINCIPAL ACT
The Secretary of State shall, prior to the commencement of section 47, publish additional guidance on the application of section 106 (planning obligations) of the principal Act."
The noble Baroness said: My Lords, the purpose of the amendment is to ensure that Section 106 agreements operate better than at present to produce housing and infrastructure that is needed in so many areas. I shall not rehearse in detail the arguments and fears that I and others expressed in Committee. We on these Benches believe that there is much merit in the present Section 106 system, and much to be built on. I know from consultation on planning tariffs that other people agree with us. I am grateful to the Minister for writing to us since Committee to explain how he sees the Section 106 agreements working in the mean time, before they are abolished in favour of planning tariffs.
Grouped with the amendment is Amendment No. 140, which would delete the clause that deals with planning tariffs. There has been consultation on that. I read the summary of that consultation and was really rather shocked. In 23 pages, there is absolutely no quantitative analysis of the results whatever. There are phrases such as "some consultees", "many consultees", "consultees generally" and "a number of consultees". Dare I suggest that if one were doing a project for GCSE and summarised in that way, it would be considered totally inappropriate? We were told how many people actually responded to the consultation, but I am shocked that it is on the basis of such a report that we will decide what to do on the issue.
Since the last time we met and we discussed this issue, one of the big concerns around the House was how the planning system was going to help to deliver more affordable housing. Many of us had fears. The noble Lord, Lord Best, is unable to be with us today, but he put forward graphically the situation from the point of view of housing associations. I declare an interest as the vice president of the National Housing Federation, and I am grateful to it for my briefing. I understand that since that time, the Minister and others at ODPM have met with the noble Lord, Lord Best. I look forward to hearing what the Minister says about the result of that meeting. It may be more appropriate for me to make those comments when the Minister has spoken, because I have concerns about what I think may happen.
I am concerned about this. The Bill has been through two Committee stages in the Commons, and we are now on the last day of Report; but we are still in a mess over this whole area. Kate Barker will probably announce her second report tomorrow. I wonder how we will deal with all of this. Today, I was even more horrified to read in a building magazine—though I do not believe everything that I read, and this gives the Minister an opportunity to say that it is perhaps not true—that Chancellor Gordon Brown is considering imposing a land tax on house builders in the Budget this week.
I hope that the Minister will be able to clarify exactly where we are going on the issue of affordable housing and the planning system. I think that the Minister agrees that there is much good in the Section 106 system, and I think that he will be telling us that they will be looking at how they can make it work better. I will not say any more at this point, because I hope that when he replies the Minister will clarify some of the points that I have raised. I beg to move.
5.45 p.m.
Baroness Hanham: My Lords, we have several amendments in this group, which are designed to delete all the clauses relating to these planning contributions on the grounds that all of this is becoming completely incoherent.
Since Committee stage, we have received—I certainly have, and I hope that other noble Lords have—a letter from the noble Lord, Lord Best, who apologises for not being in his place today. He spoke persuasively last time about the difficulties that could be erased if the Government persisted with their current proposals at the expense of the advantages that can be achieved through Section 106 provisions, particularly in the area of affordable housing. As laid out in his letter, which would have formed the basis of his speech, the Government have—I will be grateful if the Minister could confirm this set up a task force to consider the implications of making some changes to Section 106 provisions and to think through further the tariff systems and their implications.
I am sorry to be so conditional about this—the letter would have been more helpful if the noble Lord, Lord Best, had been able to speak to it. As I understand it, the Minister is thinking of setting up a task force of all the interested bodies to advise on these clauses. That is a strange situation. These clauses were put into the Bill at a late stage in the Commons. It was clear that they had no scrutiny there—at least no meaningful scrutiny—and they arrived here virtually untouched. As it stands, under paragraph 6 of Schedule 6, the Bill would take out the Section 106 provisions completely and just leave us with this rather odd system of tariffs.
In previous stages, the Minister has said that the Section 106 provisions would run alongside the tariff systems to start with. If the proposed omission is left in Schedule 6, we are concerned that, at some stage, it will be put into being and the Government will remove the Section 106 provisions. Our Amendment No. 148
172
would delete the paragraph in Schedule 6 that refers to Section 106 not being part and parcel of the Bill, so that there is no doubt left in anyone's mind that the Section 106 provisions will remain.
We have Section 106, about which there have been some not very firm views as to why it is not working. There are clearly, as always with these things, ways in which this could be improved, but we are back to babies and bath water. It seems a great pity to ditch the Section 106 system when it is now widely perceived as being not only helpful to local authorities but also particularly to the affordable housing areas. The tariff system has been opposed all the way along the line. If this task force is to be set up, then its discussions will take place outside the time-scale of the Bill. This House would not have an opportunity to discuss anything that was decided by it.
I am being a bit hesitant, because I am waiting to see what the Minister has to say. However, that would be unacceptable, in the sense that we have been struggling for the last two stages of the progress of this Bill to sort out what these new provisions would be, how they would be implemented, how local authorities were to deal with them—which is a big area of concern—and how localised the elements in them of the cost of land would have to be.
I very much support what the noble Baroness, Lady Maddock, said. I hope that the Minister may be able to amplify a bit what the noble Lord, Lord Best, would have said. I would certainly like to hear his views on the understanding of the noble Lord, Lord Best, that a task force is being set up. I would very much like to know how these matters will be dealt with when this Bill has left this House.
Lord Rooker: My Lords, I say at the outset that this area has been complicated, and it has changed a couple of times since the planning Green Paper, when the Government rejected tariffs and went for Section 106. Later, because we had more time to deal with the Bill and more time to think about it because of coming from one Session to another, we have put what looks like tariffs back in, but not at the expense of Section 106. I want to repeat that again. We do not want to throw the baby out with the bath water. I hope to deal briefly with the central issues; it would frighten the House if I held up all my notes. I believe that I have a positive answer to the issues that have been raised.
There is a problem about why we have these clauses in the Bill. We have pursued the reform of planning obligations in recent years because there are difficulties in the current system. From my experience in planning when it was my day job, I know that performance varies around the country. Some smaller authorities do not fully exploit all the positive aspects of Section 106. Sometimes, there are legal arguments about whether an issue raised under Section 106 is directly related or ancillary to the development. Some of the issues are very narrow.
We want to capture more of the value of the details of infrastructure projects. We have been looking for easier, more transparent and faster means of doing

173
that. Sometimes, more time is spent debating and discussing Section 106 than the original planning application. The present process causes problems. Therefore we have been searching for a means of reform.
There is a consensus about the need for reform. There is not a consensus about the solution. Given that there is a problem, the Government now think that they have some answers. Planning obligations affect most or all of the players in the planning process, which is why everyone has an opinion on them. It is important that the system is a good one. Business wants a system that is quick and certain, so that it knows what it will have to contribute and can get on with their developments—their prime function.
Likewise, local authorities want a system that is quick, so that they do not have to spend precious local authority resources on lengthy negotiations. Indeed, some authorities do not have the resources to spend on the negotiations, so they lose out on the benefit that Section 106 provides.
Local communities want agreements that are fair, where developers make a fair contribution in respect of the impact of new developments on the local community. As I say, there are arguments that lawyers can have about that. It is also right that the obligations are honoured and spent as intended. Local communities want to see the money properly spent. Developers want an assurance that their contributions have been properly used.
In turn, planning obligations can be a key tool in delivering sustainable communities, whether in a rundown industrial town in need of regeneration or in a growth area seeking infrastructure and services to support new housing. That infrastructure could run right across a community; it does not apply just to transport. It could include old disused railway lines, closed stations that trains still run through, education and/or health facilities. Planning obligations are a part of that, which is why reform of the current system is a priority.
Our solution is twofold. The first and most important change is that planning obligations policy will be established by local authorities up front in the plan-making process. They will need to identify the matters for which they would typically seek a contribution from developers, such as affordable housing, and, where provided in cash, how they would use such contributions. That will promote transparency for local communities and predictability for the development industry. We hope that it will encourage greater participation by the local community in making the development—whatever it may be—acceptable.
The second important part of the proposals relates to the optional planning charge. It is, optional—an alternative. We are not getting rid of the present system, although there is a technical point in the way that the Bill is drafted: Section 106 would disappear, but it would be reconstituted as an alternative in the new tariff system in the regulations. So it is not being
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abandoned. We will not be left with tariffs only. I repeat, we will not be left with tariffs only. That is exactly the opposite of our proposals.
Under the optional planning charge, the local authorities would attach a cost to the contributions that they would expect from the development which they plan in their local community. That would give developers further certainty about the extent of the contribution that they would be expected to make and could speed up the process of agreeing the development. There is no doubt that it also promotes greater transparency and openness and should reduce the number of negotiations taking place behind closed doors. We want to avoid people arguing that a council has been bribed in order to obtain planning pennission. That is the sort of thing that my constituents would have said.
Regarding an individual proposal, the developer will have a choice: to pay the charge or to negotiate a Section 106 agreement. The charge offers speed and predictability. The conventional negotiated route offers greater flexibility. There is a choice. We recognise that where developers opt for the charge, in some cases there are likely to be issues still requiring negotiation and it will be possible to have a separate agreement alongside the charge. As I said at an earlier stage, they will not have to pay for the same thing twice. It will not be possible to negotiate a charge and for the local authority then to try to obtain, under Section 106, the same thing through the other route. The developer will not pay twice for the same items, which is a principle set out in the Bill.
The negotiated system will remain in place very much as it is at present. We intend to reconstitute Section 106 in the secondary legislation; that is, the regulations. That is why Amendments Nos. 148 and 151, which aim to retain Section 106 alongside the new clauses, are unnecessary. That is the broad vision of the Government. Obviously, there are details to be worked through. I could go on, but it would take a lot longer than I think would be useful. Those are some of the issues in terms of regulations and the new advisory group that I think are helpful to the House. That should put the lid on the fact that we are serious and genuine about this.
In Committee, concern was expressed about the process of developing the system proposed by the Government. The view was that there should be full consultation, and not to have a new system rushed through Parliament without proper consideration and broad support from stakeholders. That is true. Initially, there was an intention to consult on tariffs in the Green Paper. When a change was proposed, the ODPM became involved. We looked at it. There was a policy decision not to proceed down that route. I remember telling a senior industry official that we would not slip changes in the Bill through the back door. However, a year later, because of the way the Bill changed due to changes in respect of compulsory purchase and moving into the next Session, we have sought alternatives and additions to give another tool

175
to local authorities to look particularly for infrastructure products. Basically, we have had another year in which to work on it.
In addition to the consultation that we propose on the draft regulations and draft circular—which will happen because they will come back to this House—I would like to announce today that the Government are to set up a special advisory group of stakeholders to advise them on the reform of planning obligations. We are very grateful to the Royal Town Planning Institute and the other organisations that have expressed an interest in participating. Together they represent the full range of the sectors, including the Royal Town Planning Institute, the British Property Federation, the Chartered Institute of Housing, the Confederation of British Industry, the House Builders Federation, the Local Government Association, the National Housing Federation, the Royal Institution of Chartered Surveyors and Shelter.
The group will meet regularly over the next few months to work through the detail of the proposals. My right honourable friend Keith Hill, the Planning Minister, will chair those meetings where possible. The next months will be critical in developing the detail of the new system so that we can look forward to the valuable input of the special advisory group on the shape of the reforms. We shall also have its views on the draft regulations, the circular and the good practice guide.
I can go through a considerable number of reassurances. I hope that I have convinced the House that the repeal of Section 106 is necessary technically because it is moving from one part of legislation to another. It is not being abandoned; it is still there. As regards affordable housing, concern was expressed by the noble Lord, Lord Best. I understand why he cannot be here today. One of the problems of membership of this place is that of holding down a job that is not in London.
However, the noble Lord and the noble Baroness, Lady Maddock, are very positive about the consequence of the charge for the delivery of affordable housing. In particular, they were both concerned that developers would prefer to pay cash and, as a result, local authorities would obtain less affordable housing through planning obligations. I reassure the House that our objective remains the same. We are committed to the policy objectives of promoting mixed communities and the supply of affordable housing. More will be said about that tomorrow. I am certain that no one here today would remotely expect me to comment on the little bit that I might know, but I am such a small cog in the wheel that I do not know anything. It would be quite inappropriate, but it will all be good and positive news.
Our reforms of the planning obligations, including the charge, do nothing to change our objective of mixed communities and of promoting the supply of affordable housing. There have been misunderstandings regarding our proposals and, frankly, in some ways I am not surprised, simply because of the way the Bill has processed through
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Parliament. It is an object lesson. It is the first time that we have carried a major flagship Bill from one Session to another and made changes during that carry over. There have been lessons to be learned in the way that was done, particularly when you need to be able to take the outside world with you because the Bill affects thousands of people—councillors and developers—whom we need to keep on board with what we are doing.
It also looks a bit daft for a Minister to stand up and say that we are going to operate Section 106 where noble Lords can find bits of the legislation that say, "Section 106 is hereby repealed", and then I have to explain why it is repealed. But it is not. In other words, developers will not be left with only the charge. There will be planning obligations under Section 106 that are broadly the same as they are now. Therefore the package of legislation on planning obligations will give the optional charge—the optional charge—for the developer if it is wanted. It will be there as an alternative. Developers will not be required to pay twice for the same thing. That will be of benefit and hopefully help speed up the process, giving greater certainty, clarity and flexibility where required, and certainly transparency.
I hope that I have said enough to indicate that we are serious and genuine about that. There has been a misunderstanding about Section 106 disappearing, but developers will not be left only with the charge. That would be the direct opposite of what we intend.
6 p.m.
Baroness Hanham: My Lords, I am hound to say that we need to return to this aspect of Schedule 6 next time. You cannot have an absolutely categorical statement in one part of legislation which the Minister says does not mean what it says because "we are going to be doing something else and we will put that in regulations". The Minister would be very wise to accept my Amendment No. 148, which takes that out of legislation. I do not expect that to happen today because I appreciate that that would be unfair, but I think that I will return to that. If Amendment No. 148 is not agreed, then in future people will have to refer to Hansard and the regulations in order to decide whether Section 106 is running alongside the tariffs. I never look for mischief in the Minister—who does not do spin—but I see the possibility of difficulties arising if that clause is left in Schedule 6. We might want to come back to that.
The second point is that I am concerned that a task force that will now discuss a major aspect of the Bill and come to some conclusions is taking place outside this House and without this House having the opportunity to consider what those bodies come up with. Legislation is part of the responsibility of this House and therefore how it translates through ought to be part and parcel of our job. Maybe that aspect of

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the Bill can come back in an affirmative order which we can consider, but I would like the Minister to consider how we deal with that.
Lord Rooker: My Lords, I do not know the mechanics of how that will work, but what is sure is that we are not seeking to bypass this House. That will be legislation—regulation as well as guidance. I will ensure that, before the House is presented with a final decision, at least it will get a report from the special advisory group so that the House knows in advance what is happening. I do not know how long it will take—there is a time scale. It will be chaired by a Minister. It will not meet behind closed doors—one has only to look at the list of participants. I will ensure that the House is not presented with a fait accompli: that is the important point for which the noble Baroness is asking.
We have one opportunity at Third Reading to make sure that, beyond any shadow of doubt, there is clear understanding of what we propose to do in respect of Schedule 6.
Baroness Hamwee: My Lords, noting what the Minister said about the presentation of a report on unamendable regulations, could he at the next stage also explain to the House—which is perhaps the converse of the noble Baroness's point—why it is necessary to include the repeal on the basis of what he has just told the House?
Lord Rooker: My Lords, it is in my notes, but I have been too brief. In respect of the repeal, several members expressed concern in Committee at the repeal of Section 106—which is the subject of Amendments Nos. 148 and 151. The Government intend to reconstitute the existing provisions relating to planning obligations in our regulations to ensure that a negotiated route remains open to applicants. In my comments to the House in Committee, I said that the clause provides for this in regulations, "lock, stock and barrel". That is still the position. There may be some minor modifications as a result of the consultation, but we expect the broad shape to remain the same.
The reason that we are repealing Section 106 is not because we want to do away with the negotiated route. We want to retain the negotiated route. I hope that the House can see that to seek to abolish it would be completely inconsistent with the desire for choice and flexibility, which are at the heart of our proposals.
In fact, we are repealing Section 106 because to leave it would mean that a local authority could not only seek a planning contribution through the proposed new system, but also seek a quite separate one under the existing system. That is unacceptable because it could involve a developer having to negotiate twice and pay twice. That will not be allowed.
What I can say clearly, however, is that we will not commence the repeal of Section 106 until the new regulations are in place. Otherwise there would be a period when no planning obligations procedure was available at all. Since the regulations are subject to the affirmative resolution procedure, that means that this
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House would need to be satisfied with the proposed reconstitution of the negotiated route in regulations before Section 106 can be repealed.
On top of that I have also made a genuine offer, off the cuff, that we will make a report to the House before the House is presented with regulations so that there is no fait accompli.
Baroness Hanham: My Lords, I am very grateful for that assurance. Would it not be easier and more in conformity with the legislation to accept my Amendment No. 148, which preserves Section 106, and make it clear in regulations that it cannot be used as an adjunct to planning contributions? That way round you preserve the legislation and the legislative framework—you see that Section 106 stays as part of the legislation as it stands, but there is a brief explanation that they cannot be used twice. That would seem to be the obvious way, though I am sure that the Minister may not agree, but I shall return to that at Third Reading.
Baroness Maddock: My Lords, at last I am able to reply to the Minister. I am sure that the Minister is genuine in his views about how that has happened, and he understands the problems that we have raised, but he has not convinced me of the need to repeal Section 106. As the noble Baroness, Lady Hanham, said, if the Government want to achieve what the Minister just said then they do not need to repeal it. We are putting in place something rather complicated, outside the system and too late. I am grateful to the Minister for offering to make sure that we get a report from the task force. Before he said that, I was going to ask him whether he might give us the minutes of its meetings so that we could follow what was happening.
We have got this all the wrong way round. We have had the Bill, and we have had consultation. Now, we are going to have a task force. It should have been the other way round. I am worried, and I think that others are too. I can see from the body language in the Chamber that noble Lords support us. They are concerned that something will happen and that it will be difficult for us to scrutinise it as it should be scrutinised.
Much of the consultation that has already taken place supports the idea that Section 106 has worked well over the years, and people have begun to get to grips with a difficult situation. In his letter to me, the Minister said:
"Several local authorities, such as Leeds City Council, Watford Borough Council and Worcester City Council have in fact been operating a range of approaches based on formulae and standard charges in recent years within existing policy and negotiated agreements".
If they can do what the Minister wants them to do under the present system, why must we change it?
The Minister said a lot in his reply. I hope that he will give me and other Members who have taken an interest a little more detail in a letter. It would be helpful to see exactly where we are. We shall have to consider the matter carefully before the final stage,

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which is only next week. We will have all those wonderful statements from Kate Barker tomorrow. We will have to consider the matter carefully.
Lord Rooker: My Lords, I want one more shot. This is serious. I am thinking of the practicalities of what we are planning as an alternative approach. There are two ways of doing it: there is negotiated Section 106, as I shall call it, or there is the charge route that the developers had.
From the point of view of administering the system, it would be better for the planners, the developers and their advisers to have that package of alternative planning obligations consolidated into one document—the regulations—with one set of guidance relating to planning obligations, rather than, as the noble Baronesses would have it, having part of it in primary legislation because Section 106 was still in the Bill and another part in regulations. The guidance would be split between the two. With all that we are doing—lock, stock and barrel, as I said—Section 106 is not disappearing. We would effectively consolidate all planning obligations and planning gain legislation in one set of regulations covering the two different approaches and the guidance. From an administrative point of view, that would be better for planning offices, consultants, architects and planning advisers throughout the country. Rather than making them go to separate bits of legislation, we offer them one document with guidance. That is a practical solution, and it should knock on the head the idea that we are getting rid of Section 106. We are not.
Baroness Maddock: My Lords, the problem is that regulations are not amendable. That is one of the problems for those of us who have taken an interest in the issue. If there is to be genuine choice for people, why can we not have the two systems?
In his letter, the Minister said that the Government would repeal Section 106. We still doubt the wisdom of that. Local planning authorities are heavily pressed. As the Minister said, it is difficult, particularly for smaller authorities. Planning officers have begun to get to grips with Section 106. Now, they will be faced with something else.
Lord Rooker: My Lords, they will not. The noble Baroness is setting a hare running, and she is totally wrong. Negotiated planning obligations under Section 106 will not disappear. They are simply moving from primary legislation to regulations—lock, stock and barrel, as I said. My notes said that that was the case.
The same system that operates today can operate in the future. If the developer wants an alternative route and that route is supplied—a tariff based on whatever has come up; there are various things, but I will not go into them now—that is open to him. The local authorities will be able to operate the same system—the one with which the noble Baroness says they are comfortable—in the future as now. We are not changing their role. Let us not set the hare running that we are removing their choice to operate Section 106
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agreements. I do not know what we call such agreements; perhaps we ought to call them Section 106 agreements in the regulations.
On the other point, I must ask why, if we are moving the process lock, stock and barrel to regulations, does the noble Baroness want them to be amendable? She is satisfied with what is operating now, and we have just said that we will operate it through regulations—lock, stock and barrel. What is the problem? The fact that the regulations are not amendable should not be a problem. No one is seeking to change the system now, because it works well. Because it works well, we want to keep it, and we will do so in the regulations, as an alternative to the charge option. I rest my case.
6.15 p.m.
Baroness Maddock: My Lords, the point that I was making was that local authorities would have a new system as well as the kept Section 106 system in the other form that the Government want. We would not just be using the system that we have and making it better. At previous stages of the Bill's progress, the Minister said that he would improve the way that Section 106 worked. Is he now saying that he will not improve it?
We have had a long debate. I would appreciate a letter from the Minister setting out exactly how things will work and what the timetable will be. People are worried about the timetable and about when things will come into operation. In all fairness, we need to know that. At the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 47 [Planning contribution]:
[Amendment No. 140 not moved.]
Clause 48 [Planning contribution: regulations]:
[Amendment No. 141 not moved.]
Clause 49 [Planning contribution: Wales]:
[Amendment No. 142 not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 142A:
Before Clause 50, insert the following new clause—
"APPEALS AGAINST PLANNING DECISIONS
(1) In section 78 of the principal Act (right of appeal against planning decisions and failure to take such decisions) after subsection (2) there are inserted the following subsections—
"(2A) Where a local planning authority approves an application for planning permission, and—

(a) the planning application does not accord with the provisions of the development plan in force in the area in which the land to which the application relates is situated; or

(b) the planning application is one in which the local authority has an interest as defined in section 316;

certain persons as specified in subsection (2B) below may by notice appeal to the Secretary of State.
(2B) Persons who may by notice appeal to the Secretary of State against the approval of planning permission in the circumstances specified in subsection
(2A) above are any persons who have lodged a formal objection to the planning application in writing to the planning authority for the area in which the land to which the application relates is situated."

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(2) Section 79 of the principal Act (determination of appeals) is amended as follows.
(3) In subsection (2). leave out "either" and after "planning authority" insert "or the applicant (where different from the appellant)".
(4) In subsection (6), at the end insert "(except for appeals as defined in section 78(2A) and where the appellant is as defined in section 78(2B))"."
The noble Baroness said: My Lords, I suppose that the amendment is something of a continuation of a theme. We persist in seeking a provision regarding third-party rights of appeal, which is the shorthand way of describing it, because we want to ensure transparency, trust and confidence in the system. In Committee, I spoke at some length to a similar but more extensive amendment, and I do not intend to go again through the reasons for our support for a third-party right of appeal.
In Committee, the Minister said that such a provision would slow down the system and would not be consistent with a democratically accountable system of planning. He relied on the increased community involvement that he anticipates with the Bill. I think that I have said that we have had a plan-led system for over a decade. Much as I hope that there will be real community involvement, we all know how difficult it is to interest citizens in what happens in their neighbourhood until there is a concrete proposal.
I raise the point again, in order to ask the very good question asked by a Member of the House of Commons, when it debated the provision: if the Government want to speed things up, have they given any thought to removing the right of appeal from an applicant, when the local authority's decision is in line with its own current plan? That question is new to this House, which is why I felt that it was worth raising the matter again. Having heard what the Government had to say about safeguards, I cannot be as enthusiastic about the effectiveness and usefulness of judicial review, given that it is somewhat cumbersome and costly, the powers of the local government ombudsman and other similar administrative arrangements.
I still feel that there are unanswered points. As the question was not asked last time, I shall ask it now. I beg to move.
Lord Chorley: My Lords, I supported third party rights of appeal at Second Reading and at Committee and accordingly I support this amendment, which I find rather easier that Section 106. The restrictions of the rights which this amendment now carries seem entirely reasonable. At earlier stages the Government seemed to have two objections, the first being delay. But is that of much weight given the limited circumstances in which it would now apply and which would trigger an appeal? Moreover, the threat of an appeal alone may well improve both the quality of the planning decision and may even bring the developer to the negotiating table. If planning is a mediating process between conflicting interests and objectives, and I am a firm believer that it is, then this is surely just one desirable aspect of the mediation process. On
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reading Hansard it seemed to me that the Minister agreed that the delay argument was not very substantial.
The second notion was that the third party right of appeal, as the noble Baroness has just said, is somehow undemocratic. To me the notion that a planning decision by an authority in its own favour should for that reason override the right of appeal, simply because the authority has been elected, is extraordinary. It boils down to a notion of democracy which has no concept of checks and balances. which surely is the hallmark of democracy.
The argument that the appellant can resort to judicial review is lacking in both common sense and reality. It is expensive and restrictive, that is to say, not always applicable. To be fair, the Minister recognises that and he does not put that forward as an argument.
There is the question, which I believe I raised originally at Second Reading, of designated areas which are planning authorities. I mentioned at that stage the case of the national parks. To argue that ministerial appointees are democratic because the Minister represents an elected government is to stretch credulity to breaking point.
What about SSSIs? The Minister made some remarks in Committee on the subject of national parks, which I found difficult to construe from reading Hansard. He said:
"At some [time] I will address the national parks issue".—[Official Report, 5/2/04; col. 814.]
After that he was rather difficult to follow so perhaps the noble Lord can help me when he replies and say how other designated areas fall into the scheme.
Lord Bridges: My Lords, I moved an amendment in rather similar terms at Committee stage, but I did not press it to a Division because of lack of support. I am very happy to see it again. Re-reading the speeches made at Committee stage, I believe that a common criticism of what I said was that planning decisions should be taken by elected councillors and that if one did not like that decision, one should kick out the councillors at the next election. I remember the noble Lord, Lord Lucas, speaking effectively in that vein.
But I do not believe that that argument is very convincing. The fact is that fewer and fewer planning decisions are now taken by meetings of the elected councillors. There are two reasons for that. One is the cabinet system which will take a political view about a particular development and will require the ruling majority to support that line in committee. Thus the cabinet effectively excludes the elected councillors meeting together on many occasions.
Secondly, there is a very tight timetable now in force for the taking of the majority of planning decisions, which are delegated to the officers. These matters come before the councillors as cooked meals: there is nothing that the councillors can do about it. I believe that a reasonable third party right of appeal is an

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essential concomitant of the excellent planning system which we have and would be a notable improvement. I hope that this proposal will now find favour.
Lord Lucas: My Lords, when these amendments came before us in Committee I was rude about them, as the noble Lord, Lord Bridges, said. I am much happier with this cut-down version. I believe that the noble Baroness, Lady Hamwee, made a good point when she referred to the possible restriction on applicants who were seeking to do something outside the plan and had been turned down because of the council getting through to the Secretary of State. I would prefer not to go down that road, but to follow the route suggested in this amendment. That would provide some degree of parity.
When we have gone through a process to agree a plan, a variation should allow for a right of appeal. As the noble Lord, Lord Bridges, said, some of the structure which has been imposed on councils recently has led to a diminution in the involvement of councillors in the democratic process in considering individual applications. I would be happy to see something of the kind referred to in the Bill. I would like to see a junk filter in there somewhere. I would like the Secretary of State to have the right to decline to consider an appeal if the matters raised were not substantial in his opinion. Otherwise, people will allege that something is outside the plan and force the department to go through some kind of process to prove the contrary. It should be restricted to significant cases. I do not have a clear idea of how that is to be done, but the amendment is heading in the right direction.
Lord Rooker: My Lords, I said at the outset that I do not believe that the issue of removing the right of appeal by the applicant was raised in earlier debates. At this point we have no plan to remove the right of appeal from applicants.
The new clause reflects the one we debated in Committee, which obviously sought to introduce the right for third parties to appeal against the grant of planning permission by the local authority in specified circumstances. But this clause envisages a more limited third party right of appeal than on the previous occasion. Therefore, I can use a long note rather than a massive one, which is what I was faced with previously.
I genuinely understand the concerns that the clause seeks to address. In her concluding remarks in a previous debate about the issue, the noble Baroness, Lady Hamwee, expressed her concern about two types of circumstances in which this amendment seeks to provide a third party right of appeal. Those circumstances are where the decision to grant planning permission is a departure from the development plan or in which the local authority itself has an interest.
We believe that the proposed measures are neither necessary nor appropriate in these limited circumstances and I shall seek to explain why. As is known, the Government acknowledge that we need greater community involvement in the planning process. If one
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takes this matter in isolation and ignores the rest of the Bill, a very powerful case would have been made, as indeed it has, by the noble Lords, Lord Chorley, Lord Lucas and Lord Bridges.
But one has to look at the rest of the changes that we are making in the Bill to the planning system, which provide opportunities for community involvement. But the Bill builds on that and strengthens those opportunities. I have set out in detail the way in which that will happen so I will not repeat it today.
The Bill will strengthen the opportunities for people to comment on and influence development proposals much earlier in the process and even before a planning application has been submitted. So we believe that it makes sense to continue with a plan-led system of development control. That is why so much of the Bill focuses on improving the processes for developing such plans. The plan provides a framework to engage people in the way in which their communities might grow and change. For businesses it provides an essential source of information about where to propose new developments and of the type likely to be appropriate. There are established, clear and strict rules and procedures to ensure the propriety of the decision-making process and the decisions taken. Therefore, the planning decision must be decided in accordance with the development plan unless material considerations indicate otherwise.
Where proposals for developments do not accord with the development plan, the Secretary of State must be notified so that he can consider whether to call in the application for his own determination. The Secretary of State does not call in every notified case because in many circumstances a decision contrary to the local plan would not conflict with national policies, have significant effects beyond their locality or give rise to substantial controversy.
I am on record as saying that the reason I wanted a third-party right of appeal, prior to becoming the Planning Minister, when I was an elected Member of the other place, is that at every occasion we sought to use it to stop a development. I wanted to use it as a veto on development—I make no bones about that. A decision to depart from the local plan may well be the appropriate one, even if it is not popular. The call-in review process is a safeguard in that respect.
The second proposal in the new clause is for a third-party right of appeal in cases involving planning applications where the local authority has an interest. There appears to be a presumption—it was not spelt out in detail, but it must be the case—that the local authority will act improperly in deciding such cases. I have set out previously the lengthy list of legal and administrative safeguards that apply in decisions in cases where local authorities have a pecuniary interest in the proposed development. The safeguards are designed to ensure that local authorities act in a fair and unbiased manner. Local authorities operate under very strict rules to deal with possible conflicts of interest. We had a list of some of them in Committee. Although they seem extreme at one end, they serve to prevent any impropriety where the local authority has an interest in an application.

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Moreover, in the event that impropriety can be shown—I realise that it does not happen often; I have given figures judicial review by the courts is available. I have demonstrated in Committee that the remedy of judicial review is actively employed by third parties, and decisions of local planning authorities have been overturned as a result. The activity is relatively low, for reasons that we understand, so we would not expect that there would be a need regularly to resort to such proceedings. Judicial review is but one of a range of powerful legal and procedural safeguards in the planning process; it is not the sole recourse in the event of an alleged impropriety in the process. We do not believe that we need to add to this armoury an appeal route to the planning inspectorate. We do not argue against doing so on the basis that it would not be useful on the very few occasions where there may have been an improper decision that should be overturned; rather, our concern is that such a provision would be used by third parties inappropriately, and all too frequently. As I said, too many proponents—I was one of them—of a third-party right of appeal want to use it to veto development, either by obtaining a different decision from the planning inspector or by a process of attrition. We do not want the planning system to be slowed down in that way—I make no bones about that.
I understand that the new clause envisages that the right of appeal would apply to anyone who had objected at the application stage. Our concern is that the provision would confuse and slow down the initial consideration of the planning application. Providing a right of appeal to anyone who had objected at an application stage is likely to encourage the submission of objections in order to safeguard the right of appeal should permission be granted at the application stage. That cannot be a desirable outcome.
We must remember that it is the responsibility of the local planning authorities to act in the public interest when determining planning applications. They must take account of the views of local people on planning matters before taking decisions. Elected members must justify their decisions to their electorate. I realise that, in that respect, it is almost a contradiction of some aspects of the examples taken. They would not take decisions affecting their ward or electorate, because sometimes they would be ruled out. However, as regards their responsibilities, not only do they represent a ward, they are local authority councillors representing the district council and are required to take an overview on certain issues, in the same way as Members of the other place are sometimes required to take a national view rather than a constituency one.
Developers need certainty in order to invest in local areas and they want decisions quickly. A third-party right of appeal would mean that planning approvals could not be implemented pending an appeal, and it would inevitably lengthen the existing decision-making process. Our proposals for greater community involvement throughout the whole planning process—that is, our new proposals in the Bill—coupled with the existing range of legal and procedural safeguards,
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including the availability of judicial review, render unnecessary the third-party right of appeal, even a limited one as set out in the clause.
For all those reasons, I do not see any merit in introducing a third-party right of appeal. I genuinely believe that, because I know from my own practical experience how I would have gone down the road of the third-party right of appeal for the reasons that I have given. I am not saying that everyone would take that approach, but the vast majority would.
I apologise for not answering the point about national parks in the previous debate, despite having said that I would. It is not an elected body; however, the organisation is supposed to work in the best interests of the area of special amenity value. We are not convinced of the need for a third-party right of appeal, even in a major case. I hope that I have made clear that I do not rest the case exclusively on the issue of it not being democratic and elected. In some ways, it is much more serious than that because of how the system would be blocked up. It is a much broader objection. It is a fairly important point, but it is not one on which I rest the case exclusively. To that extent, we expect the planning authorities to work in the best interests of the public at all times in any event.
6.30 p.m.
Baroness Hamwee: My Lords, I thank the Minister for his response. I note his additional remark that it is one that he really believes in. He will need to be careful, otherwise Members of the House will start to separate his responses into those that he is reading and those that he believes in.
The point about whether applicants should be refused a right of appeal is a good one. I do not claim credit for it; Clive Betts in another place raised it. As regards the conduct of local authorities, I do not assume impropriety. I seek a way for local authorities to be seen to be conducting business properly.
The noble Lord, Lord Lucas, raised an interesting point about leave to appeal, which, I can see, might be put in place in the same way as some appeals through the courts require leave before the appeal itself can be instituted. I am not sure whether I am right, but I think that one needs leave before starting a judicial review. I would like to consider that interesting point later. I shall not attempt, therefore, to respond to all the points that the Minister has made. I beg leave to withdraw the amendment.
Amendment by leave withdrawn.
Baroness Hamwee Baroness Hamwee moved Amendment No. 142B:
Before Clause 51, insert the following new clause—
"DURATION OF PLANNING PERMISSION AND CONSENT
(1) Section 91 of the principal Act (limit on duration of planning permission) is amended by inserting at the end of subsection (2) the words "and any other matters which the authority consider relevant"

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(2) Section 18 of the listed buildings Act (limit of duration of listed building consent) is amended by inserting at the end of subsection (1)(b) the words "and any other matters which the authority consider relevant."
The noble Baroness said: My Lords, included in this group are Amendments Nos. 142C and 142E, in the names of the noble Baroness, Lady Hanham, and the noble Lord, Lord Hanningfield, but to which my noble friend and I have attached our names, and Amendments Nos. 142DS and 142E, which are tabled in my name and that of my noble friend. All the amendments relate to the duration of planning consent.
Amendment No. 142B was designed to achieve what the Government appear to be concerned about. It would amend Section 91 of the 1990 Act, the provision dealing with duration, which has a default period of five years but provides that that period can be whatever the authority considers appropriate having regard to the provisions of the development plan and other material considerations. The new clause would provide for the addition of the words,
"and any other matters that the authority considers relevant".
A similar provision would be made in the listed buildings Act.
Under the existing legislation the authority can have regard to material considerations. I am certainly not sufficiently informed of case law on what is "material", hut, as I read the provisions in the existing legislation, it is matters that are material to the application, not to the applicant. In response to a point that I put in Committee, the Minister indicated that matters such as site assembly and putting in place the funding are not material for this purpose. In other words, the local authority could not have regard to those difficulties under the existing legislation. That is why I want it to look at other things it thinks are relevant, because putting the site together for a large scheme is relevant.
The Government is concerned about "land-banking", slowly putting together land and holding on to it until it seems to be a good time, from their point of view, to develop it. I am not saying that we, from these Benches, disagree with the Government wholly in this. But their way of dealing with what they perceive as being a problem is going to make matters worse. The Minister said in Committee that the majority of permissions are implemented within three years—the default provision within the Bill. Surely those are the small, easy applications and not the big schemes. They are not the sites that are difficult, which require remediation—a word I think the Minister had to define yesterday.
I am sure that noble Lords concerned with planning know about the difficulties of contamination, the desirability of building on brownfield land and the obstacles that may be added to that if its developers have to do it in the way that is provided here. We all know about the complexities of funding arrangements. The Government want to get house-building schemes achieved, and we share that objective. To suggest that developers should be required to submit a new
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application to extend a three-year permission will mean a real danger that developers will not undertake the most difficult sites—the brownfield sites in particular—which we want to see developed or redeveloped.
The Government want flexibility—that term has been used—for local planning authorities and for the developers to discuss what is appropriate in each case. "Flexibility" is a favourite word. Our proposal in Amendment No. 142B to allow the authority to extend the matters to which it can have regard, if we are stuck with a three-year provision, would be a helpful one. However, I would prefer that we stay where we are, and support the amendments of the noble Baroness, Lady Hanham, which I appreciate would pre-empt my Amendments Nos. 142D and 142F. We support leaving out subsections (1), (2) and (4), which are the subjects of the amendments on which she will lead, and to which we have attached our names.
The Minister has told us that there has already been a consultation on the three-year default period. I admit that I have not researched this. But I suspect that there must have been a resounding "No" from the development industry in this consultation on just the sort of sites that the Government is concerned about. The more I think about the reduction to three years, the more I am concerned that it will do precisely the opposite of what the Government seek.
Our amendments, which I very much hope will be pre-empted in the course of our agreeing Amendments Nos.142C and 142E, also provide for an alteration to dealing with the three-year period. This is a suggestion which has come from the industry: to start the clock running when all associated consents, permissions or clearances have been given, with a top limit of five years. "Associated consents" means such matters as the following, from the five main statutory agencies which most often require them: the Highways Agency, almost invariably when the scheme is of any size the permission cannot be implemented until there is a new junction or access; the Environment Agency, involving permits for the control of pollution legislation, sewage, water services and so on; water authorities like British Waterways, again involving water and sewage removal; English Heritage, where listed building consent is required and where a separate application to English Heritage for approval is needed; fifthly, English Nature, where the site is a particularly sensitive one and there may be a lengthy, and no doubt important and useful, negotiation period.
I am told, and certainly it has been my own experience, that the Highways Agency has been the cause of—I quote the British Property Federation—"most concern" for a number of organisations in its requirements. I am aware that the president of the Royal Town Planning Institute has written an open letter to the Government about the negative impact that the Highways Agency has on the development process.
I thought it appropriate to speak on those clauses at this point, as I will not be able to come back until the very end of this debate. But I will make it clear again

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that although we start with Amendment No. 142B, we hope to stick to the live-year period and for the Government to explain to local authorities that they have these powers: that the five years is a period which can be shortened should that be the right thing to do. I beg to move.
6.45 p.m.
Baroness Hanham: My Lords, I have tabled Amendments Nos. 142C and 142E in this group. As the noble Baroness, Lady Hamwee, has said, my amendments address directly the time of planning permissions and the reduction, as the Bill would have it, of the consents from a position of five years to three years. We have received an enormous number of representations on this, and it is fair to say that this part of the Bill has been almost universally condemned. There are many concerns that have been expressed and I will try not to cover again the ground that the noble Baroness, Lady Hamwee, already has. I will briefly charge over those.
First, there is confusion as to why these changes need to be made to the current system. Local planning authorities already have powers to shorten the consent from the default five years if they want to. Instead of Clause 51, the Government should issue best practice guidance on when it would be appropriate for councils to exercise their existing rights to issue shorter consents, such as when there is a strong likelihood of house builders banking land, or in very simple developments that could be completed quickly. For once, the option is there for the Government to pick up. But it seems to be the general consensus that, far from saving the local planning authority time and resources, they will no longer be able to grant extensions to planning permissions. Applicants will be forced to submit an entirely new application, and the local authority will be burdened further if the three-year period has been superseded. For many developments, three years is simply not going to be long enough, and this short consent will only serve to put off potential developers. This is especially the case for brownfield city centre sites and mixed use developments—precisely the developments that the Government insist on telling us all the time that they are keen to encourage as part of their sustainable communities agenda. Marginal schemes on complex sites and regeneration areas will be much more difficult.
Funding commercial and mixed development is already problematic, as it is much more risky than traditional house-building, and the changes in the Bill make it harder still. It seems that what the Government are trying to achieve with one hand—successful urban regeneration—will be undermined by the other. By reducing the duration of consent, developers will be discouraged from taking on precisely this type of project.
Many of the organisations we have spoken to have pointed out the same matters raised by the noble Baroness, Lady Hamwee: consents from the Highways Agency; consents from the fire brigade; consents from the Environment Agency; compulsory purchase may
190
be necessary to decontaminate contaminated land; pre-letting; negotiating of finance; and the tendering of contracts.
A whole range of matters are encompassed within the granting of planning permission. Another issue is the time scale within which these matters have to be sorted out before planning and development can actually start. A three-year period will cause immense difficulties for developments of this scale and nature. It will not encourage people to bring them forward. Three years is adequate for smaller-scale planning permissions, but those arrangements are already working well.
Clause 51(2) is concerned not with the granting of full planning permission but with the issue of outline planning permission. The effect of the Government's changes to planning applications is that an application for the approval of reserved matters must be made within three years of the grant of that planning permission. The developer has two years after the local planning authority's approval of the final reserved matters to begin the development. That has a number of strange results. First, while the Bill considers that full planning permission should be implemented within three years, an outline planning permission will have five years or more. The Government's intention to reduce the period for implementing planning permissions applies only to full planning permission.
Secondly, if a reserved matter approval is sought and granted within six months of the grant of outline planning permission, the developer will have to start development in the next two years; that is, two years and six months after the grant of planning permission. Within that time the developer has to sort out the money and everything else that is needed before the development can start.
For the reasons that the noble Baroness and I have outlined, we are strongly against Clause 51 in all its manifestations. We on these Benches very much support her amendments in this group, even if mine pre-empt them.
Lord Lucas: My Lords, I thoroughly support my noble friend in this. It seems that the default ought to be the value which is appropriate in most circumstances. The vast majority of planning permissions are small domestic and personal matters. It seems to me that it is widely accepted that five years is a reasonable time scale for the generally disorganised and stumbling public to have to contend with. It gives someone a reasonable time within which to complete the development for which they have permission without placing them under any undue stress. They can plan things properly; they can get things organised; and they can allow their builders to overrun by two years, as has happened to me on occasion. All the ordinary difficulties that happen to the inefficient individual ought to be allowed for in the general time scale of planning permissions.
As both Front-Benchers said, there is a class of difficult major schemes which require long time scales. There is undoubtedly a class of relatively simple new-builds or major refurbishments which jolly well ought

191
to be got on with and finished in three years. If it has been agreed to build 15 new houses in a village, everyone will want to know when it will start so they can take all the other action. If it is part of providing housing in the area, five years would clearly be too long.
In those circumstances, the process should be telescoped to two years, three years or whatever is appropriate for that development. However, that should be done by giving strong guidance to authorities that they should squeeze the time limit in commercial developments when they can, when it is important, to ensure that housing is provided as swiftly as reasonably possible. That is the way to do it. Exceptions should be dealt with in guidance. We should not distort the overall legislation. We should not make almost every planning permission an exception to the default in legislation. Everyone will want to say, "I need more than three years because I cannot be sure of the builders; my wife cannot decide what colour she wants the bedroom; and I don't want to put the window in until we have that straight".
We are used to a five-year time scale. Everyone seems to be generally happy with it. It is a default that we should stick with. Let us deal with the exceptional cases in an exceptional way and not in the body of the Bill.
Lord Bassam of Brighton: My Lords, my guess is that, ultimately, there ain't a lot between us on the objective; the question is simply how we get there. I have listened carefully, particularly to the practical words spoken by the noble Lord, Lord Lucas. However, I am not persuaded of his point. For that reason, and because it is right that I should do so, I shall go through the points very carefully.
I understand exactly why Amendment No. 142B has been tabled—to address concerns that when a local planning authority considers the length of time that a planning application should remain valid it will not consider matters such as the length of time it takes to assemble the site and organise funding.
Section 91(2) of the Town and Country Planning Act 1990 and Section 18(1)(b) of the Planning (Listed Buildings and Conservation Areas) Act 1990 require the local planning authority to consider "other material considerations". Ultimately, of course, the courts are the ultimate arbiters of what constitutes a material consideration. Our view is that these matters could be material considerations in a decision on how long an application or consent should remain valid. In such a case, a local planning authority considering the duration of time needed for a planning permission might have regard to the time needed to assemble finance and land, particularly in the case of complex regeneration projects. It is perhaps worth pointing out that there are few benefits for the authority in setting periods which prove unworkable if that would result in the developer submitting a new application or consent.
As the noble Baronesses, Lady Hanham and Lady Hamwee, explained, Amendment No. 142C would delete the provision making three years, instead of five
192
years, the default duration of planning permission. It would delete the provision that where planning permission is granted, and that grant of permission is subsequently challenged in judicial review proceedings, the duration of permission will be from the date of grant until three years—or other period as directed by the determining authority—after the completion of the proceedings. It would retain the existing provisions of Section 92 of the Town and Country Planning Act 1990.
Amendment No. 142D would require a permission to be implemented within three years or a later date within five years depending on the date on which the last of all associated consents has been granted, including consents by a judicial body.
Amendment No. 142E would delete the provision making three years, instead of five years, the default duration of listed building consent. It would delete the provision that where listed building consent is granted, and that grant is subsequently challenged in judicial review proceedings, the duration of consent will be from the date of grant until three years—or other period as directed by the determining authority--after the completion of the proceedings.
Amendment No. 142F would require a listed building consent to be implemented within three years or a later date within five years depending on the date on which the last of all associated consents has been granted, including consents by a judicial body.
We have already had a lengthy debate on this, but it is worth going through the points in a little more detail. I want the reasons for the Government's position to be clearly understood.
The noble Baroness, Lady Hanham, said that she did not like Clause 51 because it reduces the period of validity of a planning permission, listed building consent and conservation area consent from five to three years. Local planning authorities will be able to agree longer periods where appropriate. There is a right of appeal to the Secretary of State.
The clause also prevents a developer from seeking to extend a permission by submitting an application to vary a condition. Any developer wishing to extend the time limit will have to submit a new application for planning permission and the local planning authority will consider the entire application afresh.
In Committee, the noble Baroness, Lady Hanham, asked why this clause was necessary as local authorities already have the power to shorten planning consent from the current duration of five years. She has repeated that question today. It was also suggested that instead of this clause the Government should issue best practice guidance—another point repeated today. Furthermore, it has been argued that, for major developments, three years will not be long enough.
I understand those points, but it is our view that the clause is designed to create a clear framework and to send a strong signal that the planning system is to be speeded up. Our intention is to encourage developers to start work at the earliest possible point. No longer will they be able to sit on permissions for years on end without starting works. Circumstances can change in

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three years and a shorter default period for planning permission would allow changes to national guidance to take effect more quickly.
As we have made clear, we recognise the need for flexibility. It is extremely important. Moreover, as I have said before, cases will arise involving complex regeneration projects that take time to put together. They will require a longer period. We intend to specify in guidance that local planning authorities should consider actively longer periods in those cases. In setting time limits, local authorities will need to be mindful of the requirements they impose on the form of planning conditions.
The noble Baroness, Lady Hanham, has contrasted the provision for the implementation of full planning permission within three years with the current position that outline planning permission has five years or more. As we have already indicated, the future of outline planning permission is under review. Whatever we decide about outline planning permission, our resolve to speed up the operation of the planning system remains. I must say that I have been impressed by the fact that, at several different points during debates on the Bill, all sides have concurred with the view that we need to apply more pressure to speed up the planning process. I have not heard too many words spoken in defence of the way in which the current system operates, where delay is inherent.
Both noble Baronesses, Lady Hamwee and Lady Hanham, have raised questions about the provisions set out in subsection (1)(b) on judicial review. Amendments Nos. 142D and 142F address this issue. The noble Baroness, Lady Hanham, raised several legal concerns about the clarity of this subsection. We understand the force of the argument about judicial review and we are now considering carefully how to proceed on this point. A local planning authority might also wish to consider the time needed to secure associated consents—the issue raised in the amendments—when deciding on the appropriate duration for planning permission or a listed building consent.
I also listened carefully to what was said by the noble Lord, Lord Lucas, on this issue. His argument was based on what I think is fair to describe as the large volume of planning cases comprising small, domestic matters that are brought to planning authorities for resolution. The noble Lord defended the right of people to take their time. I understand that entirely, but certainly in my experience most people complete their plans for domestic applications within the three-year period.
We have sought here to ensure that there is pressure to complete such planning matters within the three-year period. We have allowed flexibility for longer and more complex planning applications, in particular those involving regeneration because we recognise their complexity. Furthermore, we have given a commitment to consider some of the additional points raised by the noble Baroness, Lady Hanham, about the drafting of the judicial questions.
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Clause 51, with its core intention to reduce the default period for planning permission, is a central and key part of the Government's programme for modernising and speeding up the planning system. I repeat, I have not heard voices arguing for delay and obfuscation in planning, and I cannot believe that they would be raised, in particular in your Lordships' House. I cannot accept the amendments, although as I have indicated, we will consider how best to deal with the concerns expressed on the issue of judicial review.
For all those reasons, and because of a desire to make the system swifter and more efficient, as well as to create more realistic but flexible and clear targets, I hope that the noble Baronesses will not press their amendments.
Baroness Hamwee: My Lords, the noble Lord says that there is little between us, but there are two years between us here. It is not a question of choosing the bathroom tiling or deciding which colour to paint the back bedroom; it is the question of two years and, certainly in my case, it is the big scheme. To flatter the Minister by copying him, I should say that I genuinely believe in what I am saying—which is likely since I wrote the words.
The noble Lord, Lord Bassam, has said that ultimately the courts are the arbiters of what are material considerations. Today I seem to have heard a slightly different response on whether certain matters may be material from that given on previous occasions, but to be told that associated consents may not be material considerations leaves me, to be frank, too puzzled to want to rely on the courts.
Basically, we are being asked to agree to a strong signal being sent to local authorities to get on with it, or to ensure that the developers do so. However, that strong signal could be given in the form of further guidance to local authorities on the application of Section 91(1)(b) and 91(2) of the Town and Country Planning Act 1990 which states in terms that the permission must be started within five years or,
"such other period (whether longer or shorter) beginning with that date as the authority … may direct".
The Government are not usually coy about advising and guiding local authorities, therefore they can remind them that a limit of three years can be put on the permission.
I am not going to be taken down the road of considering what would be good planning, whether in terms of speed or quality. I return instead to my real concern. The provisions that the Government are seeking to enact in Clause 51 will mean that the major developments we want to see, in particular in housing, will be so much harder to achieve. Members on these Benches are not noted for adopting the developer's point of view in a knee-jerk way, but we do listen to the arguments that have been made. We are very persuaded by those arguments. I should like to test the opinion of the House.
7.8 p.m.
On Question, Whether the said amendment (No. 142B) shall be agreed to?
Their Lordships divided: Contents, 122; Not-Contents, 99.

Division No. 4

CONTENTS

Addington, L.

McNally, L.

Anelay of St Johns, B.

Maddock, B.

Astor, V.

Mar and Kellie, E.

Attlee, E.

Masham of Ilton, B.

Avebury, L.

Methuen, L.

Barker, B.

Michie of Gallanach, B.

Biffen, L.

Miller of Chilthorne Domer, B.

Blackwell, L.

Miller of Hendon, B.

Bowness, L.

Moore of Lower Marsh, L.

Bradshaw, L.

Moynihan, L.

Bridgeman, V.

Newby, L.

Brookeborough, V.

Noakes, B.

Brougham and Vaux, L.

Northbrook, L.

Byford, B.

Northesk, E.

Carlisle of Bucklow, L.

Northover, B.

Clement-Jones, L.

Norton of Louth, L.

Colville of Culross, V.

Oakeshott of Seagrove Bay, L.

Colwyn, L.

Onslow, E.

Cope of Berkeley, L.

Palmer, L.

Craigavon, V.

Park of Monmouth, B.

Crathorne, L.

Peel, E.

Crickhowell, L.

Platt of Writtle, B.

Deedes, L.

Rawlings, B.

Dholakia, L.

Reay, L.

Dixon-Smith, L.

Redesdale, L.

Dundee, E.

Rees, L.

Eden of Winton, L.

Renfrew of Kaimsthorn, L.

Erroll, E.

Rennard, L.

Falkland, V.

Renton, L.

Ferrers, E.

Rodgers of Quarry Bank, L.

Fookes, B.

Roper, L.

Forsyth of Drumlean, L.

Rotherwick, L.

Fowler, L.

Russell, E.

Freeman, L.

St. John of Bletso, L.

Geddes, L.

Scott of Needham Market, B.

Glentoran, L.

Seccombe, B.

Goodhart, L.

Selborne, E.

Gray of Contin, L.

Selsdon, L.

Greaves, L.

Sharman, L.

Greenway, L.

Sharp of Guildford, B.

Hamwee, B.

Sharples, B.

Hanham, B.

Shaw of Northstead, L.

Hanningfield, L.

Shutt of Greetland, L.

Harris of Richmond, B.

Skelmersdale, L.

Henley, L.

Smith of Clifton, L.

Hodgson of Astley Abbotts, L.

Soulsby of Swaffham Prior, L.

Home, E.

Strathclyde, L.

Howe, E.

Swinfen, L.

Hunt of Wirral, L.

Tebbit, L.

Jenkin of Roding, L.

Thomas of Gresford, L.

Jopling, L.

Thomas of Gwydir, L.

Kimball, L.

Thomas of Walliswood, B.

King of Bridgwater, L.

Tope, L.

Kingsland, L.

Tordoff, L.

Knight of Collingtree, B.

Trumpington, B.

Lester of Herne Hill, L.

Ullswater, V.

Livsey of Talgarth, L.

Vinson, L.

Lucas, L.

Waddington, L.

Luke, L.

Wakeham, L.

Lyell, L.

Walmsley, B.

196

Walpole, L.

Watson of Richmond, L.

NOT-CONTENTS

Acton, L.

Hughes of Woodside, L.

Alton of Liverpool, L.

Irvine of Lairg, L.

Amos, B. (Lord President of the council)

Janner of Braunstone, L.

Jay of Paddington, B.

Andrews, B.

Jones, L.

Bach, L.

Judd, L.

Barnett, L.

Kirkhill, L.

Bassam of Brighton, L.

Levy, L.

Bernstein of Craigweil, L.

Listowel, E.

Blackstone, B.

Lockwood, B.

Borrie, L.

Lofthouse of Pontefract, L.

Bragg, L.

Mcintosh of Haringey, L.

Brooke of Alverthorpe, L.

McIntosh of Hudnall, B.

Brookman, L.

MacKenzie of Culkein, L.

Brooks of Tremorfa, L.

Mackenzie of Framwellgate, L.

Burlison, L.

Mar, C.

Campbell-Savours, L.

Carter, L.

Mason of Barnsley, L.

Chan, L.

Massey of Darwen, B.

Clarke of Hampstead, L.

Merlyn-Rees, L.

Corbett of Castle Vale, L.

Mitchell, L.

Crawley, B.

Morgan of Huyton, B.

David, B.

Morris of Aberavon, L.

Davies of Coity, L.

Morris of Manchester, L.

Davies of Oldham, L.

Orme, L.

Dixon, L.

Parekh, L.

Dubs, L.

Patel of Blackburn, L.

Elder, L

Pendry, L.

Evans of Temple Guiting, L.

Pitkeathley, B.

Farrington of Ribbleton, B.

Ramsay of Cartvale, B.

Faulkner of Worcester, L.

Rendell of Babergh, B.

Filkin, L.

Rooker, L.

Fyfe of Fairfield, L.

Sainsbury of Turville, L.

Gale, B.

Sawyer, L.

Gibson of Market Rasen, B.

Scotland of Asthal, B.

Gilbert, L.

Simon, V.

Goldsmith, L.

Smith of Leigh, L.

Gordon of Strathblane, L.

Symons of Vernham Dean, B.

Goudie, B.

Taylor of Blackburn, L.

Gould of Potternewton, B.

Temple-Morris, L.

Graham of Edmonton, L.

Thornton, B.

Grocott, L.

Harris of Haringey, L.

Tomlinson, L.

Harrison, L.

Triesman, L.

Haskel, L.

Turner of Camden, B.

Haskins, L.

Warner, L.

Hayman, B.

Warwick of Undercliffe, B.

Hilton of Eggardon, B.

Weatherill, L.

Hollis of Heigham, B.

Whitaker, B.

Howarth of Breckland, B.

Wilkins, B.

Hoyle, L.

Woolmer of Leeds, L.

On Question, amendments agreed to.

Resolved in the affirmative, and amendment agreed to accordingly.
7.18 p.m.
Clause 51 [Duration of permission and consent]:
The Deputy Speaker (Lord Lyell): My Lords, I advise the House that if Amendment No. 142C is agreed to, I cannot call Amendment No. 142D.
[Amendment No. 142D not moved.]
The Deputy Speaker: My Lords, if Amendment No. 142E is agreed to, I cannot call Amendment No. 142F.
[Amendment No. 142F not moved.]
[Amendment No. 143 had been withdrawn from the Marshalled List.]
Lord Rooker Lord Rooker moved Amendment No. 143A:
After Clause 51, insert the following new clause—
"TEMPORARY STOP NOTICE
After section 171D of the principal Act (penalties for non-compliance with planning contravention notice) there are inserted the following sections—
"Temporary stop notices
171E TEMPORARY STOP NOTICE
(1) This section applies if the local planning authority think—

(a) that there has been a breach of planning control in relation to any land, and

(b) that it is expedient that the activity (or any part of the activity) which amounts to the breach is stopped immediately.

(2) The authority may issue a temporary stop notice.
(3) The notice must be in writing and must—

(a) specify the activity which the authority think amounts to the breach;

(b) prohibit the carrying on of the activity (or of so much of the activity as is specified in the notice);

(c) set out the authority's reasons for issuing the notice.

(4) A temporary stop notice may be served on any of the following—

(a) the person who the authority think is carrying on the activity;

(b) a person who the authority think is an occupier of the land;

(c) a person who the authority think has an interest in the land.

(5) The authority must display on the land—

(a) a copy of the notice;

(b) a statement of the effect of the notice and of section 171G.

(6) A temporary stop notice has effect from the time a copy of it is first displayed in pursuance of subsection (5).
(7) A temporary stop notice ceases to have effect—

(a) at the end of the period of 28 days starting on the day the copy notice is so displayed,

(b) at the end of such shorter period starting on that day as is specified in the notice, or

(c) if it is withdrawn by the local planning authority.

171F TEMPORARY STOP NOTICE: RESTRICTIONS
(1) A temporary stop notice does not prohibit—

(a) the use of a building as a dwelling house;

(b) the carrying out of an activity of such description or in such circumstances as is prescribed.

(2) A temporary stop notice does not prohibit the carrying out of any activity which has been carried out (whether or not continuously) for a period of four years ending with the day on which the copy of the notice is first displayed as mentioned in section 171 E(6).
(3) Subsection (2) does not prevent a temporary stop notice prohibiting—

(a) activity consisting of or incidental to building, engineering, mining or other operations, or

(b) the deposit of refuse or waste materials.

(4) For the purposes of subsection (2) any period during which the activity is authorised by planning permission must be ignored.
(5) A second or subsequent temporary stop notice must not be issued in respect of the same activity unless the local planning authority has first taken some other enforcement action in relation to the breach of planning control which is constituted by the activity.
(6) In subsection (5) enforcement action includes obtaining the grant of an injunction under section 187B.
171G TEMPORARY STOP NOTICE: OFFENCES
(1) A person commits an offence if he contravenes a temporary stop notice

(a) which has been served on him, or—

(b) a copy of which has been displayed in accordance with section 171E(5).

(2) Contravention of a temporary stop notice includes causing or permitting the contravention of the notice.
(3) An offence under this section may be charged by reference to a day or a longer period of time.
(4) A person may be convicted of more than one such offence in relation to the same temporary stop notice by reference to different days or periods of time.
(5) A person does not commit an offence under this section if he proves—

(a) that the temporary stop notice was not served on him, and

(b) that he did not know, and could not reasonably have been expected to know, of its existence.

(6) A person convicted of an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding £20,000;

(b) on conviction on indictment, to a fine.

(7) In determining the amount of the fine the court must have regard in particular to any financial benefit which has accrued or has appeared to accrue to the person convicted in consequence of the offence.
171H TEMPORARY STOP NOTICE: COMPENSATION
(1) This section applies if and only if a temporary stop notice is issued and at least one of the following paragraphs applies—

(a) the activity which is specified in the notice is authorised by planning permission or a development order or local development order;

(b) a certificate is issued by the local planning authority in respect of the activity under section 191;

(c) the authority withdraws the notice.

(2) Subsection (1)(a) does not apply if the planning permission is granted on or after the date on which a copy of the notice is first displayed as mentioned in section 171E(6).
(3) Subsection (1)(c) does not apply if the notice is withdrawn following the grant of planning permission as mentioned in subsection (2).
(4) A person who at the time the notice is served has an interest in the land to which the notice relates is entitled to be compensated by the local planning authority in respect of any loss or damage directly attributable to the prohibition effected by the notice.
(5) Subsections (3) to (7) of section 186 apply to compensation payable under this section as they apply to compensation payable under that section; and for that purpose references in those subsections to a stop notice must be taken to be references to a temporary stop notice.""
The noble Lord said: My Lords, this is a group of four new clauses. Amendment No. 143A forms a positive response to the review of the planning enforcement system in England, and to the noble Lords opposite who have sought to introduce their own amendments regarding enforcement powers.
The amendment provides local planning authorities with a new discretionary power to serve temporary stop notices to halt breaches of planning control for a period of up to 28 days.
New Section 171E enables the local planning authority to issue a temporary stop notice where there has been a breach of planning control where they consider it expedient to do so to prevent further development. The new section also sets out how the stop notice should be issued, in what form and to whom. The notice must set out the reason for issuing the notice. The temporary stop notice will have effect immediately; it is displayed on the land and ceases to have effect after 28 days unless it is withdrawn earlier.
New Section 171F sets out restrictions for the use of the temporary stop notices. Temporary stop notices do not prohibit the use of a building as a dwelling house and will not prohibit the carrying out of an activity that has already been carried out for four years or more.
New Section 171F also enables the Secretary of State to prescribe in regulations other activities that a temporary stop notice shall not apply to, even though those activities are in breach of planning control. Regulations may set out these activities either by describing them or by setting out the circumstances when an activity cannot be prohibited by a temporary stop notice.
New Section 171G sets out a new offence of breaching a temporary stop notice and the penalties that result from conviction. The penalties for contravening a stop notice are: on summary conviction in a magistrates' court, a fine not exceeding £20,000; and, on conviction on indictment in a Crown Court, a fine. In deciding the level of any fine, the court may take into account the financial gain accrued while the temporary stop notice was breached. The penalties replicate those that already exist in relation to stop notices under Section 187 of the 1990 Act.
New Section 171H sets out the circumstances in which compensation can be claimed from the local planning authority and is limited to: when the activity subject to the temporary stop notice already had planning permission when the stop notice was issued; when the activity has permitted development rights; when the activity has or acquires a lawful development certificate; or when the authority withdraws its notice. These provisions for compensation against losses offer protection against local planning authorities which serve notices in error. The procedure for claiming compensation replicates the provision in the 1990 Act for stop notices.
We have introduced the amendment as a result of the review of the planning enforcement system. This was one of the proposals put forward for comment,
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and over 200 respondents agreed that such powers would be helpful in speeding up the process of enforcement. The proposed temporary stop notice gives a new power to local planning authorities and the means to prevent unauthorised development at an early stage without first having to issue an enforcement notice.
Local planning authorities' enforcement powers are discretionary. The amendment is designed to enable action to be taken which is appropriate to the breach. Currently, stop notices can be served only in conjunction with an enforcement notice and can be used to tackle the most serious breaches.
Before an enforcement notice is issued the local planning authority will usually wait to see whether the unauthorised development is likely to cause harm. Under the current system, in order for work to stop, an enforcement notice has to take effect or a stop notice has to be issued to stop any further work taking place. In the case of an enforcement notice, this can be several months after development or the planning breach has started, particularly if an appeal is made against the enforcement notice. If stop notices are served, no further work can be done.
The temporary stop notice will bring an early halt to development which does not have planning permission. It will help to end the practice whereby a developer can build and apply retrospectively for planning permission for a completed building. If any breach of planning has to be stopped immediately, the planning injunction can be used. But injunctions are only used to prevent serious harm. They require court time and of course are expensive.
The temporary stop notice provides the local authority with a power to stop a breach of planning control for a limited period of time to enable it to decide whether further enforcement is appropriate and what action should be taken without the breach being "compounded" by being allowed to continue.
The planning system exists to control the development and use of land and is in the public interest. Ignoring planning controls is unfair and undermines public confidence in the system. Unauthorised development can be dangerous and damaging to the locality.
Better, faster, more efficient enforcement will help engender confidence and trust in the planning system. Prompt action will act as a disincentive to those who might seek to deliberately ignore planning controls and will give local authorities the confidence to take appropriate action. This power will, I am sure, be welcomed by local planning authorities to use in addition to the panoply of discretionary powers they already have across the range of planning breaches they encounter every day.
As I said, it can be extremely frustrating when a development goes ahead without planning permission. It affects neighbours and it can sometimes be months before any action, if any, is taken by local authorities. I know that from my own experience as a constituency Member of Parliament.
A temporary stop notice does not have to be used in all enforcement cases; local authorities already have at their discretion a number of different ways of taking action. It would be used only where local planning authorities consider it expedient to stop a breach immediately. Current arrangements may be sufficient in most cases. I would expect any use of this power to be reasonable, responsible and proportionate.
These temporary stop notices could be used in a variety of circumstances, many of which have been raised with us in the enforcement review and during the passage of the Bill through Parliament. These might include the inappropriate change of use of someone's back yard to a car paint-spraying business or the construction of an extension without planning permission.
They would also clearly be an option for local authorities to consider where Gypsy and Traveller groups have begun unauthorised development on an inappropriate site, perhaps in the green belt. We are, however, concerned to ensure that the temporary stop notice should not be used unfairly or inappropriately. We are mindful of the difficult circumstances surrounding accommodation for Gypsies and Travellers. A major review is under way in the Office of the Deputy Prime Minister at the moment. As we have said before, to address these problems we need greater site provision—that is, more sites—including greater support for Gypsies and Travellers to identify appropriate sites of their own to develop, alongside more effective enforcement on inappropriate sites.
We are currently reviewing circular 1/94 with the intention of providing more support for Gypsies and Travellers to identify their own appropriate sites. We are also reviewing the operation of housing needs assessment to build in consideration of Gypsy and Traveller accommodation needs at an early stage. These changes will take some time to implement. In the meantime, we are keen to ensure that Gypsies and Travellers are not treated unfairly relative to other groups.
We therefore intend to introduce regulations which will replicate the current exemption for buildings used as dwellings to caravans used as dwellings. The content of the regulations will be a matter for consultation. However, the intention is that they will include measures that, although caravans which are occupied as a sole or main residence on site will be allowed to remain until any follow-up enforcement action is taken, any further associated works will be "caught" by the stop notice.
We are introducing this exemption through regulations rather than on the face of the Bill for two reasons. First, we want the temporary stop notice to replicate the shape of the existing stop notice; secondly, we want the flexibility to change the position with regard to caravans as further detail of the policy around Gypsy and Traveller accommodation develops and as local authorities enable greater site provision in their areas. I hope that broadly explains why we are bringing in this group of new sections.
We are very sympathetic to the spirit of the noble Lord's Amendment No. 143AA that it is right to afford similar protection to Gypsies and Travellers dwelling in caravans as those who live in houses. It is our clear intention to do so. I believe that regulations are a more effective and flexible way of achieving this as they will be subject to consultation, ensuring that the exemptions we propose are both workable and acceptable to those that they cover. The proposal for using the regulations I referred to a short while ago will permit caravans already on site to remain. I hope that answers the points that the noble Lord will make in due course.
Amendment No. 143B seeks to amend the new provisions for the new temporary stop notice compensation by removing the reference to local planning authorities being the only authority to issue a lawful development certificate. It allows lawful development certificates granted on appeal to the Secretary of State to be included in the compensation provisions. That is a valid point which we shall consider.
Amendment No. 144 seeks, through a new clause, to give local planning authorities similar powers in respect of enforcement of a stop notice as they already have for seeking compliance with and taking remedial action in respect of an enforcement notice. That includes steps to be taken to remedy the breach, to remedy any injury to amenity and to seek to cease activity on the land, including the removal of objects. These powers are already available to local planning authorities.
Local planning authorities already have powers to enter land and take the steps required by the enforcement notice to remedy the situation. They can also recover from the person who is then the owner of the land any expenses reasonably incurred by them.
The stop notice can be served only after or at the same time as the enforcement notice and must relate to the activity prohibited by the enforcement notice. Although both the enforcement notice and the stop notice set out details of the activity or development which must cease, it is the enforcement notice which gives details of the remedial action which must be taken, not the stop notice.
We are sympathetic to the aims behind the amendment but duplicating the powers of the enforcement notice in the existing stop notice will not solve the problem of stopping unauthorised development or intensification of the land in the first 28 days after the breach has occurred. We think that a better way to deal with this problem is the new temporary stop notice—provision is in the four new clauses I have introduced—which will give local planning authorities power to stop breaches of planning control immediately the notice is served.
I hope, therefore, that that will be sufficient and that in due course the noble Baroness and noble Lord, having moved their amendments, will feel able to withdraw them. I beg to move.
7.30 p.m.
Lord Avebury moved, as an amendment to Amendment No. 143A, Amendment No. 143AA:
Line 57, at end insert—
"(7) No such notice shall be issued in relation to breach of planning control by gypsies or other travellers unless the Secretary of State has certified that sufficient accommodation exists for gypsies or other travellers residing in or resorting to the region of which the local planning authority forms a part."
The noble Lord said: My Lords, the Minister said that this set of amendments was introduced as a result of the review of the planning enforcement system in which 200 respondents said that it would be helpful to have these additional powers. If that is the case, why could not the amendment have been tabled earlier instead of—as it was—on the Thursday before the first day on Report? If we had not been rather slower than the Government expected and hoped, we should have had 24 hours in which to consider the amendment and to put down our own amendment, with no time to consult those outside concerned in particular as regards the interests of Gypsies and Travellers. As the noble Lord said, they will be affected by the temporary stop notices. I should not be surprised to hear, if the noble Lord can tell me, that no representations among the 200 responses he cites were received from Gypsy or Traveller organisations because they are universally opposed to the provisions of the new sections.
During the two extra weeks we were given to consider the amendments, the Minister will be aware that there was a debate in another place on a Private Member's Bill in which some light was cast on the Government's proposals by the honourable Member for Brentwood and Ongar and some of his colleagues. In reply to that debate, the Minister for Housing and Planning, Mr Hill, said that the Government had anticipated most of the wishes expressed by the honourable Member in his Town and Country Planning Enforcement and Stop Notices Bill. He said that these new temporary stop notices were specifically designed to allow rapid intervention in potentially inadmissible developments and were a response to the strength of feeling demonstrated by Members during Committee and Report stages of the Bill. He added that the Government were greatly concerned about Gypsies carrying out developments without planning permission. Therefore, it is clear that the amendment is not directed against people who use their backyards for paint spraying. It is firmly and exclusively directed against Gypsies and Travellers.
The Government recognise that under the existing planning regime it is virtually impossible for Gypsies to get planning permission. That is why they said the Minister repeated it today—that they will scrap circular 1/94 which Ministers said at the time of the infamous Criminal Justice and Public Order Act 1994 was then designed to enable Gypsies to make provision for their own accommodation in place of the obligation that previously existed on local authorities to provide sites for Gypsies and Travellers.
Obviously, since no local authority has ever given Gypsies any indication of the places where they could develop their own site, but have all adopted under circular 1/94 criteria-based policies which were designed to lead to refusals whenever they sought planning permission, what Gypsies had no alternative but to do was to buy land wherever they could, apply for planning permission, and then to appeal when they were refused, as inevitably happened.
The Minister, Mr Hill, knows perfectly well that it is futile to suggest to Gypsies, as he did in reply to the debate in another place, that they should work with planning authorities to identify land that is suitable for development. If that had been the way forward, there would have been no need to replace circular 1/94 and to make provision in the regional spatial strategy and local development documents for specific numbers of sites and pitches as the noble Lord, Lord Rooker, foreshadowed in our first debate on this subject on 20 January.
The noble Lord has reiterated that stop notices are used only rarely and in extreme circumstances. As Mr Hill, the Minister in another place, put it,
"for an extremely serious breach of planning control".
That is not what the Government say in these amendments. No doubt the Minister will be able to tell the House how many times this "draconian" power—as expressed by a specific district council—has been used since Section 9 of the Planning and Compensation Act 1991 came into effect, substituting new provisions for Sections 181 and 183(1) to (5) of the principal Act. I should like the answer when the Minister replies because the use of the stop notices in the past is some indication of how the temporary notices will be used in the future.
A stop notice may prohibit any use of land, whether ancillary or incidental to the main use of the land. It may prohibit a particular activity taking place on part of the land or intermittent or seasonal use of the land. It may not prohibit the use of any buildings as a dwelling house. I welcome what the Minister said about the extension of that exclusion to persons living in caravans on sites, whether or not they be Gypsies.
In the case of a stop notice issued under the 1991 Act, immediately beforehand the local authority has to issue an enforcement notice which is appealable. While the appeal is awaited the enforcement notice is suspended. The idea of a stop notice was that there were some uses of the land, as the Minister explained, that were so harmful to the community or environment, that for those uses to continue even to the time it took for the appeal to be heard was intolerable. So the stop notice could require immediate cessation of the activity in question with no right of appeal. As the Minister explained, the failure to comply could result in summary conviction and a fine of up to £20,000 or—as he did not say but is the case—an unlimited fine if convicted on indictment.
As the Minister is aware, the ODPM is a listed public body with a legal duty under the Race Relations Act 1976 to eliminate unlawful discrimination, promoting a policy of opportunity and good race

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relations. It is also required to assess the impact of any new or proposed legislation on different racial groups and to consult on the impact that the legislation may have on those groups. Where there would be an adverse impact on a particular group or groups which could not be justified within the wide range of policies then changes would need to be made.
The Commission for Racial Equality is not aware of any consultation having taken place, nor of any impact assessment having been made. It would be unlikely that any such processes could have taken place without the knowledge of the CRE. However, if they did, can the Minister say what impact the ODPM considered these provisions would have on Gypsies and Irish Travellers? It is crystal clear that the temporary stop notices are directed against those communities and not against other serious breaches of planning laws that no doubt occur.
In the absence of any such consideration by the ODPM, the Government have acted unlawfully in bringing the amendment forward. It should be taken away pending consultations with the CRE—which it is seeking—and it should be referred also to the Joint Committee on Human Rights. I drew the attention of the clerk of that committee to the Minister's amendment on March 5, but the committee has obviously not been able to consider the matter and offer its advice. On previous occasions, the committee has repeatedly expressed concern about how little time it is allowed to comment on proposals which may have serious human rights implications and I would be surprised if it does not repeat that concern in this instance. If the Minister has received any letter from the chairman of the Joint Committee on Human Rights, I would be grateful if he would tell the House about it in his reply. If he has not received a letter, perhaps lie could tell us how your Lordships can take into consideration any advice that the committee may give when this stage of the Bill has been passed.
The CRE, Travellers' organisations and the cornrn unities or partnerships which act on behalf of many Gypsies and Travellers have criticised the existing provisions in Section 183 of the principal Act. The CRE expressed concern that the exemption from stop notices of any building used as a dwelling house, but not of a caravan on a site used by Travellers as a dwelling, could be in conflict with the Race Relations Act. It is seeking counsel's opinion, particularly in light of Article 14 of the EU race directive, which requires member states to,
"take necessary measures to ensure that any laws, regulations and administrative provisions, contrary to the principle of equal treatment, are abolished".
I welcome what the Minister said when introducing his amendment; namely, that the regulations would exempt caravans in the same way as dwelling houses. However, it is profoundly unsatisfactory for us to have to rely on some undertaking as to what is going to be in future regulations when what is in the Bill is so clearly discriminatory. That article of the EU directive is reflected in our own law in the Race Relations (Amendment) Act 1976 Amendment Regulations 2003. I would be grateful if the Minister could explain
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what advice he has sought or obtained about the bearing of those regulations on stop notices and, in particular, about the use of stop notices without a preparatory enforcement notice.
I acknowledge that the ODPM is at last addressing the problem of accommodation for Gypsies and Travellers. It is not a moment too soon given that one in five of them in this country is homeless. If the new planning regime set out in the Bill is implemented in accordance with what the noble Lord, Lord Rooker, described previously as the "lead option", a solution is in sight, but it will take some years to achieve, as the noble Lord has acknowledged in moving the amendment.
In the mean time, the proposal will tighten the screw on Gypsies who have nowhere to live because of the 1994 Act and fix in statute the exclusion of the whole Traveller community from the supposed aim of the Government of a decent home for all. My amendment would merely ask the Government to delay the coming into force of those powers until, region by region, they have implemented their own undertaking. I beg to move.
Baroness Whitaker: My Lords, in supporting Amendment No. 143AA, I would like very much to welcome what my noble friend said to guarantee the rights of Gypsies to a home. However, there are difficulties—all those raised so powerfully by the noble Lord, Lord Avebury—but I just briefly want to make two other points. First of all, I should like to ask my noble friend when he plans that these regulations should be in force. If there is any gap between the coming into force of the Act and regulations, you can be sure some local authorities will take advantage of it because that has been the practice of many, but not all, of them.
Lastly, the point of the amendment of the noble Lord, Lord Avebury, is that it gives an incentive to local authorities to provide such sites, whereas, as I understand from my noble friend's rapid résumé of his regulations, caravans will be allowed to remain on site. Now, the site may well not be suitable. It would be much, much better if the local authority had an obligation to find that a proper site existed rather than keep the caravans on a site that was breaching planning requirements.
Baroness Hanham: My Lords, I shall move an amendment shortly, but perhaps I may first make two comments on the Government's amendment. The Law Society has briefed us on it and I shall quickly put forward its points, so that they are considered by the Minister.
First, the Law Society is concerned that the amendment has been tabled at this stage, when the consultation is barely complete. No particular responses have arisen from that. It is hard to see what a temporary stop notice would achieve that a stop notice would not. The Minister has given us some details, but three concerns arise.

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The temporary stop notice is to be issued if the local planning authority "thinks"—we are back to that word again—that a breach has occurred. The corresponding language in the 1990 Act is "where it appears to the" local planning authority to be the case. Does that change of wording bring uncertainty into the provisions? The Minister might like to take some cognizance of that.
Under the existing system set out by the 1990 Act, a stop notice can be issued only following the serving of an enforcement notice. While there is no appeal against the stop notice, there is provision for appeal against the enforcement notice. By contrast, the new provisions offer no appeal against a temporary stop notice despite the fact that non-compliance carries penal consequences. The only remedies available to the recipient of such a notice would be to seek a declaration from the court that the temporary stop notice is invalid.
The provisions for compensation are also unsatisfactory. It is not clear whether a lawful development certificate has to be issued before or after the issue of the temporary stop notice to justify compensation. That is another example of unsatisfactory drafting.
Compensation on the grounds of the withdrawal of the temporary stop notice is of particular concern. As the new provisions stand, the local planning authority can serve and issue a temporary stop notice requiring a particular activity to cease. If nothing else happens, the notice will have effect for 28 days. Presumably, in that time, the authority will have to institute more permanent enforcement action, but there is no requirement to do so. Compensation may be payable where the local planning authority withdraws a temporary stop notice, but not where the notice simply expires at the end of the 28-day period.
Those are matters that the Minister may not be able to address this evening, but if he can, I would be grateful.
Baroness Hamwee: My Lords, as the noble Baroness said, creating a criminal offence, particularly one where there is no appeal, is a serious business. I shall ask a question that arises from the detail of that. Under proposed new Section 171E (4), the temporary stop notice can be served on,
"the person who the authority think is carrying on the activity"—
or,
"a person who the authority think is an occupier of the land"—
or,
"a person who the authority think has an interest in the land".
In other words, the person on whom the temporary stop notice is served may not be the one who is carrying out the activity. Nevertheless, an offence under new Section 171G(1), with penal consequences, would have been committed.
If one thinks of a landlord who does not know what his tenant is up to, one can see why the Government might want to push the landlord to enforce the terms
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of the lease. However, the lease might not be very well drafted. It might not be possible for the landlord to use his own means to make sure that the stop notice is observed. It is hardly a criminal offence to draft a lease. At least, I hope it is not. It may not be possible for the person on whom a stop notice is served, as I read it, to make a third party stop the activity. Again, it may not be possible to have the detail of this debate today, but I do not know whether the answer is that one does not contravene a stop notice within Section 171G if one is in the position I have just described. I would certainly like to know the answer at some point.
Lord Lucas: My Lords, while I found myself entirely in sympathy with the objectives of the noble Lord's administrative amendments, I have great doubts about the drafting, and about the implications. The very idea that it should be possible to deprive someone of his home just by sticking a notice on a telegraph pole outside it, and that he and his family should then have immediately to quit that home without any sort of appeal, does not square with justice, or indeed the Human Rights Act. I cannot see how that could even be contemplated under this sort of legislation.
I have great doubts, too, about doing this to a business. If the local authority can effectively close down a business if it thinks it contravenes planning obligations, it then only has to pay compensation if, under Section 171H(1)(a), the activity that is specified is actually authorised by planning permission. But what if it is something that does not require planning permission, and the local authority just made a mistake? Under those circumstances it would seem that there is no compensation available, and certainly no mechanism for someone who has their business closed down in this way to take action to get the mistake rectified. It seems to me to be leaving citizens without access to justice in a way that we have been familiar with under this Government recently. but which I find entirely reprehensible.
As far as the amendment of the noble Lord, Lord Avebury, is concerned, I support it entirely. I shall admit to a couple of romantic reasons for doing so. I grew up on a farm that employed a large number of Travellers at harvest time, and I was an avid reader of Tintin and an admirer of Captain Haddock, so I am a great believer in the rights of Gypsies and other Travellers to live among us, and in our obligation to make the necessary provisions to make that possible. It is something that the general community often finds inconvenient, as it does with providing proper accommodation for other activities that most people find inconvenient, but which are none the less lawful. It is something that the Government ought to do. These things are very difficult to resolve at local level. It is up to the Government to place obligations on local authorities and others to make these provisions, so that we can all share the burdens fairly, as it does with airports. That seems to me to be a central function of Government. Something that allows a particular community to be victimised just because they are

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inconvenient to other people, and no provision has been made for their proper accommodation, seems to me to be entirely unreasonable.
Lord Rooker: My Lords, if I might say so, I think that speech was unreasonable as well. I exempt the noble Lord, Lord Avebury. However, if I were from another planet, I would know that all the speeches I have just heard were from people who have never been in the other place, for a start, and have never had to deal with their constituents when they are beside themselves because someone has done something in flagrant breach of planning permission. In other words, I have just heard four or five speeches basically saying that anything goes. That is not what we are doing.
Baroness Hamwee: My Lords—
Lord Rooker: My Lords, I know I wound the noble Baroness up. I intended to, to be honest, because I think some of the points that have just been made are wholly unreasonable. True, I may have rabbited on with my notes a bit too fast. Some of the things I have been criticised for not saying, I actually did say in the speech—they are in the notes, to which I stuck very carefully, because of the importance of this issue. But if the noble Baroness insists on getting up, naturally I shall give way to her.
Baroness Hamwee: My Lords, I am far from actually wound up, but I want to explain that it is not only Members of Parliament who have to deal with wound-up and agitated local residents who get very upset about what their neighbours are doing. I am sure that the noble Baroness, Lady Hanham, and I have both, in our local government careers, had the experience of having to deal with such residents. I make that point not to claim particular experience, but to say that the experience is shared. I hope that the Minister would understand that, to put it in the vernacular, where some of us are coming from is perhaps not where he thinks we are coming from.
Lord Rooker: All right, my Lords. I am well aware of councillors who get phone calls from local business on small factory estates who arrive on a Monday morning and find that none of the 20 enterprises can get on to the car park, because on the previous evening it has been totally occupied by a load of other people. They get the phone calls just the same—that is what I am pointing out. There is a real world out there, and some of the speeches I have just heard ignore what we are actually doing to help the section of the population against whom we do not want to discriminate. I am going to answer all the points. It is important, bearing in mind the lateness of the issue coming before the House, and naturally I accept that point, and also the fact that we have only Third Reading still to come.
We have already said, and I do not want to repeat it, that a review of the policy for circular 1/94 is being undertaken, including the revision. Indeed, Ministers will be meeting Gypsies and Travellers and their
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representatives, as well as the Commission for Racial Equality and local authorities, to hear their views. We are fully engaged with the Gypsy and Traveller groups, hence the series of seminars, and they will be consulted on the regulations. Those regulations will be designed to protect Gypsies and Travellers; I make no hones about that, and I made that point earlier on.
The powers are general and discretionary, and we said that we expect local planning authorities to use these powers reasonably, responsibly and proportionately. I also said in my speech that the proposed regulations will offer similar protection to those in caravans as to those in bricks and mortar, and will ensure that their home is protected. So the nonsense I heard in one speech about a local authority coming along and kicking people out of their home would not be proportionate in any event. That is extravagant language that sends completely the wrong signal to those outside about what we are seeking to do.
Regarding stop notices, there is a problem: a temporary stop notice can only go with an enforcement notice. I explained that the practicalities of getting an enforcement notice mean that it can take months before any action can be taken. There were 183 stop notices issued in England in 2002. We are not aware, although that is not to say that it has not happened, of any of them being used against Gypsies. We do not have any information on that, but certainly no notices have been brought to our attention as being served against Gypsies and Travellers.
The powers will not commence until the regulations are in place, and the regulations will protect the Gypsies and the caravan dwellers—not every caravan dweller classes themselves as a Gypsy. There is nothing illegal about being a nomad. I make that absolutely clear, I have said that before, and that is our position.
The temporary stop notice refers to a situation where the local planning authority thinks—and we are going to come to that later on; we have done a word search on the computer about the number of times "thinks" appears in legislation, and, I can tell the noble Baroness, it is quite a lot—a breach has occurred, whereas a stop notice under the 1990 Act is slightly different. The wording makes it clear that the local planning authority has the discretion to decide whether it is appropriate to issue the temporary stop notice. Our legal advice confirms that the provisions are not in breach of the Human Rights Act, although ultimately it is for the courts to interpret the provision and decide if any action of a local planning authority is to be challenged. However, we would not be proceeding if our legal advice were to the contrary, so I hope we are secure in that.
We are keen to encourage Gypsies and Travellers to make more provision for themselves, providing it complies with planning regulations. That is not a contradiction. In recent years, the number of caravans on authorised, private and owner-occupied sites has risen by 1,245 since 1997, around 130 per year. That is a considerable contribution to addressing needs. Private provision now stands at approximately 4,800

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spaces, up from 1,000 when the caravan count started in 1979. On the other hand, unauthorised developments have more than doubled since July 2000, rising from 803 to 1,664 in July 2003.
I shall deal with the impact assessment on Gypsies and Travellers. There has been ODPM consultation, and consultation by the Commission for Racial Equality with Gypsy and Traveller groups. Let us deal right away with the idea that we have not done anything on the subject. I do not expect people to come along and say "Thank you", but we have to date made £33 million available via the Gypsy sites refurbishment grant to bring underused sites and local amenities back into action and improve the quality of life for residents. The grant now provides funding for authorities to create new transit and stopping places for Gypsies and Travellers.
Provision for compensation will be dealt with in the regulations. The intention is that they should replicate the current provisions. Therefore, clarification of how and when to claim compensation will be in the regulations.
A point was made about there being no right of appeal to the Secretary of State against the issue of a temporary stop notice. The remedy available would be judicial review of the local planning authority's decision to issue the temporary stop notice. Any person affected by the temporary stop notice would be able to exercise other rights under planning legislation. The person would be able to apply for retrospective planning permission for any development that had taken place under Section 73A, and for planning permission in relation to further proposed development. Alternatively, of course, the person may apply for a lawful development certificate where it is considered that the development is indeed lawful.
There is no blanket ban. We are not sticking a note on a pole outside people's homes telling them to leave those homes—far from it. We are genuinely attempting to: meet the needs of people who are discriminated against—I make no bones about that—because of the changes in legislation in the 1990s; to make proper provision for Travellers and those who live a nomadic existence; and to encourage them to make better provision for themselves, in conformity with the regulations. There is no attempt to allow local authorities simply to put up a stop sign and say, "No more Travellers here". It would be quite unacceptable for anyone to seek to do that, because it would not be proportional or a reasonable use of the policy.
As I said, the regulations will be fully consulted on with those affected by them, with an attempt to get regulations that will work and be practical, and that will be helpful in protecting people who do not have sufficient protection under present legislation. That said, I hope that the amendment that I moved, with its proposed new sections, can be part of the legislation. My point about it still stands: we want to put the support in the regulations rather than in the Bill. It would be done after consultation anyway, and there will be plenty of that to come.
8 p.m.
Lord Avebury: My Lords, I do not want to delay your Lordships, as I know that there is important business to come after our debate. I shall say only that I am not aware of the consultations in which the ODPM engaged, which the Minister mentioned, and the CRE is not either. It believes that some aspects of the amendment are in breach of our obligations under the Race Relations Act. The best thing for me to do is to withdraw my amendment at this stage, consult the CRE, and perhaps to come back at Third Reading. Before I do so, I thank all those who have taken part in the debate, particularly the noble Baroness, Lady Whitaker, and the noble Lord, Lord Lucas, who spoke in support of my amendment.
I shall conclude by asking the Minister whether he can signify, perhaps by nodding, whether the regulations exempt those who live in caravans on exactly the same basis as those who live in ordinary bricks-and-mortar houses from the applications of stop notices. Will that be read back into the stop notices under the 1992 Act, as well as applying to the temporary stop notices to be issued as a result of the Bill? It would be very incongruous if the Minister were to say that that was not the case. In spite of the fact that he said that he was not aware of any stop notices being used against Gypsies in 2002, if temporary stop notices could not affect people residing in caravans if there were a prohibition on using temporary stop notices against people who lived in caravans but the regulations did not read that back into the original stop notices that accompanied enforcement notices under the 1992 Act—local authorities might be persuaded to use the original power in preference to the temporary stop notice.
Lord Rooker: My Lords, that is a very fair question to ask and I have no way of answering it, off the top of my head. It might sound reasonable in one sense, but I do not know; I would have to take advice on it. I shall certainly get some advice before Third Reading. The present stop notices can be issued only after the enforcement notice procedure, which is a different kind of procedure. Whether that concession can be read back from the temporary stop notice into the current stop notice is a misuse of the terminology in a way. They are both called stop notices, but we are talking about something where the process is completely different. I shall have to take advice, but it is a wholly reasonable question to ask.
Lord Avebury: My Lords, I am grateful to the noble Lord. Perhaps we can be in touch, even though it is a very short time before Third Reading. If we can have the answer to that question before we make a decision on whether to table another amendment for Third Reading, that would be most helpful. With that, I beg leave to withdraw the amendment.
Amendment No. 143AA, as an amendment to Amendment No. 143A, by leave, withdrawn.
Baroness Hanham Baroness Hanham moved, as an amendment to Amendment No. 143A, Amendment No. 143B:
Line 89, leave out "by the local planning authority" and insert "or granted"
The noble Baroness said: My Lords, I can deal with the matter quite quickly, because I appreciate that noble Lords want to get an Unstarred Question started. I thank the Minister for what he said, which was that he would look at Amendment No. 143B carefully, and perhaps that we would come back to it a later stage.
Amendment No. 144 returns to a matter that we introduced before. It relates to stop notices and would give local planning authorities a power to remove objects, not including buildings, used for prohibited activity from land if that activity were a breach of a stop notice. We gave an example last time that caravans could be removed, and we had a big discussion on that. Where the activity was the unlawful construction of a building, for example, builders' equipment could be removed, and where noisy or un-neighbourly activity starts up, a local authority would be able to remove the troublesome equipment. Many noble Lords are aware of what goes on in barns, sometimes with parties and late night activities. It applies only in circumstances where criminal offences are committed, although there is no need to bring a criminal prosecution.
The amendment is a revision of the amendment discussed in Committee. We have removed the amendments to Section 178, which are not critical to what we are seeking to achieve. The new stop notice clause, Section 186A, is a most important provision. I want to explain why it is needed, because the noble Lord. Lord Bassam of Brighton, said in Committee that,
"local planning authorities have powers under Section 178 of the 1990 Act to enter land and take the steps required to enforce the notice and to remedy the situation. A stop notice can be served only on the back of an enforcement notice and must relate to the activity prohibited. Breach of that notice will mean in most instances that the enforcement notice has also been breached, and the powers of entry which were associated with the enforcement notice would be available, therefore, to the planning authority".—[Official Report, 5/2/04; col. 867.]
Unfortunately, I am advised that that explanation was not correct. The purpose of the enforcement notice is to require a person to remedy a breach, or cease an unlawful activity. An enforcement notice only takes effect—the Minister said this earlier on—when an appeal has been concluded. No breach can arise until after that stage. The purpose of a stop notice is to require an activity to cease before an enforcement notice takes effect. Indeed, under Section 184 of the Town and Country Planning Act 1990, a stop notice will cease to have effect when the enforcement notice takes effect. The Government are wrong to say that there can be a simultaneous breach of a stop notice and an enforcement notice. At the later stage when an enforcement notice is breached, the local authority can then go on to the land under Section 178 and end the breach. If a stop notice is breached, the local planning
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authority does not have that power to go on to the land under Section 178 and stop the activity. Section 178 does not provide an adequate remedy.
This is the difference between enforcing the enforcement notice and stop notice regimes. Given the harm to amenity, which often provokes the issue of a stop notice, a power for local authorities to go on to the land quickly and end the breach will give the lead to hard-pressed local residents. Planning injunctions can be sought under Section 187B, in respect of any breach of planning control. Such injunctions are sought relatively infrequently and usually after criminal proceedings have been brought. There is a cost to local authorities in seeking them, which in practice may not be recoverable, and hearings can take time to come on. Additionally, injunctions will only be granted where a court is prepared to gaol a person who breaches the injunction in contempt of court.
The availability of injunctions does not make enforcement notices or stop notices unnecessary or duplication. The Town and Country Planning Act 1990 contains all these remedies. It also does not answer the need for effective, quick, on-site enforcement mechanisms for stop notices. Rather than pursue slow criminal or civil proceedings when a stop notice is breached, the local authority should be able to take steps to remove objects to shut down the activity. That is the purpose of the amendment. I beg to move.
Lord Rooker: My Lords, I do not want to be too repetitive, but I gave an answer on this. My advice is that the words of my noble friend Lord Bassam of Brighton are correct. There is a dispute about the interpretation, and I will have to take the views of my learned friends in the Box behind me that we are right on this.
I made the point that we are sympathetic to the aims behind this amendment, but in fact it duplicates the powers of the enforcement notice in the existing stop notice. That will not stop the problem of stopping unauthorised development, or intensification of the use of the land in the first 28 days after the breach has occurred. That is why the introduction of the temporary stop notice is a solution to that problem. I am not saying that it is perfect, but that is the way to do it. The powers are already there for local planning authorities to enter land and take steps to require by the enforcement notice to remedy the situation. They recover from the person who is the owner of the land any expenses.
Although both the enforcement notice and the stop notice set out details of the activity or development that must cease, it is the enforcement notice that gives details of the remedial action that must be taken, not the stop notice. There is a dispute here about interpretation of the current legislation. Obviously, I will take further advice between now and Third Reading. The better way to solve the problem is t he use of the temporary stop notice, which was the subject of the four new clauses that I moved.
Baroness Hanham: My Lords, I thank the Minister for that reply. We are slightly at odds here; my advice

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is certainly that a temporary stop notice will not do sufficiently what my amendment does. I wonder whether the Minister would be kind enough between now and Third Reading to meet me to discuss it so that we can assess where our differences lie. I do not think that they are great, but this is an important issue.
Lord Rooker: My Lords, I certainly will.
Baroness Hanham: My Lords, I thank the Minister. I beg leave to withdraw the amendment.
Amendment No. 143B, as an amendment to Amendment No. 143A, by leave, withdrawn.
On Question, amendment agreed to.
Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin not before 9.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Abortion
8.15 p.m.
Lord Alton of Liverpool Lord Alton of Liverpool rose to ask Her Majesty's Government whether they will review the provisions in statute that permit conditions such as cleft palate and cleft lip to be regarded as "serious handicaps" for the purposes of terminating the lives of the unborn after 24 weeks' gestation.
The noble Lord said: My Lords, I am grateful for the opportunity to raise the issue this evening in this short debate. I am grateful to those members of your Lordships' House who are to participate in the debate; and I am especially grateful to the most reverend Primate, who is here for our proceedings.
In 1967, Parliament decided that a pregnancy could be terminated by a registered medical practitioner if two registered medical practitioners were of the opinion, formed in good faith, that there was a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Subsequently, in 1990, Parliament decided to extend that provision, authorising abortion up to and even during birth on those who would otherwise he born with serious disabilities. In almost every other instance, the legal time limit for abortion is 24 weeks. I recall that debate well, having spoken strongly in another place against what I believed to be a discriminatory provision. Tonight's debate provides an important opportunity to highlight the fact that many conditions that are not serious handicaps and were not intended to be covered by the 1990 amendment to Section 1(1)(d) of the Abortion Act are now being used to justify abortions.
Disability rights groups, such as the Disability Rights Commission and Disability Awareness in Action, are extremely concerned about the application
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of Section 1(1)(d) and the way it reinforces discrimination against people with disabilities. These are its words:
"The Section is offensive to many people; it reinforces negative stereotypes of disability and there is substantial support for the view that to permit terminations at any point during a pregnancy on the ground of risk of disability, while time limits apply to other grounds set out in the Abortion Act, is incompatible with valuing disability and non-disability equally".
I recognise the Government's commitment to eradicating discrimination against people with disability and especially welcome the draft Disability Discrimination Bill. But there really is not much point in insisting on loop systems or ramps for public buildings if the law is to be used to deny a disabled person the right to life itself—and specifically to treat disabled people in statute differently from the able-bodied. I hope that when the Minister replies, he will tell us whether the Government intend to use the opportunity of the draft Disability Discrimination Bill to address the concerns of the Disability Awareness in Action group and the Disability Rights Commission—and, indeed, to eradicate eugenic abortion.
In the years 1968 to 2001 inclusive, 4.56 million reported abortions were performed on residents of England and Wales. Of those, 63,897, or 1.4 per cent, were performed under Section 1(1)(d)—cases in which there was a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. As the Government acknowledged in a Written Answer in the other place on 30 January this year, the term "seriously handicapped" has not been interpreted by any court decisions.
Since 1990, when the law was amended to allow post 24-week gestation abortions for disability, the number of abortions performed under Section 1(1)(d), as amended, has increased substantially. In 1990, there were a total of more than 1,601 such abortions; 21 after the 24 weeks' gestation. In 1995, those figures had increased to 1,828; 63 after 24 weeks' gestation. In 2002, a total of 1,863 abortions were performed for disability, of which 110 were after 24 weeks' gestation. So there has been an inexorable rise.
A closer analysis of those disturbing figures proffers further cause for concern. The annual abortion statistics include a table setting out the various conditions for which abortions under Section 1(1)(d) have been performed. Looking at the 2002 statistics, I was shocked by the vague nature of the classification. For example, in 2002, 83 abortions were performed for "other malformations of the brain", 19 of which were performed after 24-weeks gestation. Four abortions were performed for "eye, ear, face and neck" malformations. Thirteen post-24-week abortions were performed for "malformations of the cardiovascular system", whatever that may mean. Nineteen abortions were performed for malformations of "the respiratory system"—again, extremely vague—four of which were after 23 weeks' gestation. I could go on.
This vague classification is simply not good enough. When unborn lives are terminated for disability, the least that we should expect is a proper explanation of

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why. Do the Government have any plans to oblige doctors performing abortions under Section 1(1)(d) accurately to state the nature of this "serious" disability?
This is an issue to which I am returning. In 1990, in another place, I moved an amendment to require the nature of the disability to be stated on the green form. That was defeated on the casting vote of the Speaker of the House because he had to uphold the status quo, that being the tradition in the other place. I believe that it is now timely to return to this issue, given the experience in the mean time.
The number of post-24-week gestation abortions for disability has risen exponentially since 1990. As it is now generally acknowledged that after 24 weeks the unborn child is sentient and, if born prematurely, viable, one wonders whether the growing practice of post-24-week gestation abortion for disability is contrary to Article 2 (the right to life) and Article 3 (the right not to be subject to inhuman and degrading treatment) of the European Convention on Human Rights, which the Government have properly incorporated into UK statute. I hope that the Minister will set out what advice the Government have received on that point.
Since 1996, the Royal College of Obstetricians and Gynaecologists (RCOG) has published guidelines on the termination of pregnancy for foetal abnormality. According to the RCOG, a person is to be regarded as seriously handicapped only if he needs the support described in points 3 and 4 of the World Health Organisation's scale of the severity of disability. Point 3 refers to "assisted performance"; that is, the need for a helping hand. Point 4 refers to "dependent performance"; that is complete dependence on the presence of another person.
How can it be said that those unborn children with, say. Down's Syndrome, of whom six were aborted at post-24-weeks gestation in 2002, or those children with malformations of the "eye, ear, face and neck", fall within the RCOG's and the WHO's definition of "seriously handicapped"? In the case of Re B (A minor) (Wardship: Medical Treatment) [1981], the courts held that it would be unlawful to withhold treatment to remove an intestinal blockage from a child with Down's because there was no evidence that it was in the child's best interests to die. If the courts regard the Down's child once born as not falling within the WHO's definition of disability, surely the same logic should apply to the Down's child in the womb.
According to the RCOG, one factor to be considered in assessing whether the unborn child would be seriously handicapped is the remediability of the condition. So how is it that over the past six years, 26 babies have been aborted because of suspected cleft lip or cleft palate, one after 24-weeks' gestation?
In its own guidelines, the RCOG states that when certifying that there is a "substantial risk" of "serious handicap", medical practitioners,
"should bear in mind that the risk should also be likely to be considered substantial by informed persons with no personal involvement in the pregnancy and its outcome".
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Note the use of the word "informed".
Having spoken to medical practitioners, I understand that current medical practice is such that obstetricians and gynaecologists do not refer to specialists in the condition from which that child suffers. It is therefore doubtful whether they can obtain an accurate view about whether the child has a serious handicap in any event. For example, when faced with a possible diagnosis of cleft palate, how many obstetricians and gynaecologists call in a specialist in cleft palate for an opinion about its severity? Perhaps the Minister will tell us today or, at least, promise to find out.
The terms cleft lip and cleft palate are used interchangeably, including in the abortion statistics, but of course there is some difference. They are not life threatening conditions. Many noble Lords know people with a cleft palate. I have a teenage godson with that condition. It would be absurd to argue that someone like him should have been denied the right to life.
In June 1990, when the other place was considering extending the Abortion Act to allow abortion up to and including birth, my colleagues and I received a legal opinion from Professor John Finnis and Professor John Keown, both of whom at the time were at Oxford University.
Both Professor Finnis and Professor Keown warned that the proposed legislation would lead to abortion until birth in a disturbingly wide range of cases and that,
"some doctors will interpret the onerous conditions that apply to them as including a hare lip or a cleft palate".
I was accused at the time of being irresponsible for suggesting that would happen. The evidence now demonstrates that it has happened and is a reality.
We need to look at this issue again. I am glad to say that I am not alone in holding that view. I refer your Lordships to Early Day Motion 186 in another place signed now by 54 Members of the House of Commons—from the Labour Party, the Conservative Party, the Liberal Democrats, the Ulster Unionists, the DUP and Plaid Cymru. That is an extraordinary range of people, which also includes Dr Jenny Tonge, Dr Vincent Cable—with whom I would not agree on these particular issues—and, yes, people like Miss Ann Widdecombe and Kevin McNamara, but also Gerald Kaufman and a range of people who would certainly not normally take what might be regarded as a so-called pro-life position.
So I think that there is a mood in the country, questioning why it is that in these specific circumstances we are permitting abortion up to and even during birth on a child with very minor abnormalities and disabilities. It is time that we looked at these questions again, and I am grateful for the opportunity this evening of being able to raise this question in your Lordships' House.
8.26 p.m.
Baroness Masham of Ilton: My Lords, I thank my noble friend Lord Alton of Liverpool for bringing this very alarming matter to the notice of your Lordships today.
I must admit at the start that I find abortion at any time and for anyone, especially the most vulnerable, a very disturbing situation. But today we are speaking of a more specific situation and of the law. It seems that there is no definition in law of the term "serious handicap". While the situation means that doctors can and do abort on the grounds of any condition, to press for a definition of the term "serious handicap" would in effect be to sign the death warrants of those babies who fall within the definition; for instance, many with Down's syndrome or spina bifida.
Many disabled people are painfully aware that in this country doctors can abort on grounds of "serious handicap" at any time up until birth. This situation is one which clearly discriminates on the grounds of physical or mental ability. The Disability Discrimination Act came into force in 1999, and yet discrimination on eugenic grounds—
"making a pure and perfect human race"—
has got worse. I do not think that many of the public realise that disabled babies can be terminated after 24 weeks and up to full term. After all, 24 weeks is almost six months.
One of my secretaries was born with a cleft palate. She was operated on. She is a splendid girl, full of vigour, and enjoys life to the full. I am sure that many of your Lordships know people who have been born with cleft palates or hare lips. With microsurgery and surgeons' skills we are talking now of something which can be corrected. Some time ago a paediatric plastic surgeon told me that he was concerned that he was not getting enough babies with cleft palates each year to keep in best operating practice. He needed about 30 babies to operate on each year but this figure had dropped because they were being aborted.
Modern society seems to want only the perfect—designer clothes, designer babies, the immaculate fridge. There is also a growing danger of other people judging the quality of life of those they think will not have as good a life as they have themselves. Is that not playing God?
I hope that tonight's Question will alert some people who may not have realised how far down the road of discrimination we have gone, with regard to the unborn child who may or may not have a handicap.
8.30 p.m.
Lord Chan: My Lords, I thank my noble friend Lord Alton of Liverpool for securing this debate on what I consider an ethical issue connected with pre-natal diagnosis. Abortion of the seriously handicapped would not be possible without pre-natal diagnosis. I shall take a little time to trace the history of such diagnosis.
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Pre-natal diagnosis of the foetus in the mother's womb was first introduced when pregnancies failed because of rhesus blood group incompatibility between the mother and her unborn baby. The mother would be rhesus-negative and her foetus rhesus-positive. With every subsequent pregnancy, the rejection of the foetus due to antibodies in the mother became more severe. The remedy of that condition, which produced premature delivery and death of the baby, was pre-natal diagnosis, measuring maternal antibody levels during the pregnancy and intervening with blood transfusion for the anaemic premature foetus. The lives of ill unborn babies were saved by pre-natal diagnosis and timely treatment with blood transfusion. That technical advance, introduced between 1949 and the early 1950s, led to other developments that could diagnose foetal congenital defects of the developing spinal column or neural tube, particularly severe spina bifida with paralysis of the lower limbs. As a consequence, some—if not most—such unborn babies were aborted, more so after the legislation of 1967.
We know that, although parents favour physically normal babies, groups of people with severe birth defects—the Disability Consortium—remind the public regularly that they are glad to be alive and lead a meaningful life in spite of their disabilities. The Government's disability discrimination legislation also supports the idea that disabled people lead and can enjoy a meaningful life.
Today, pre-natal diagnosis, which was introduced to save the life of ill babies, is being used so that mothers and fathers can decide to terminate the life of their unborn baby. Of course, in most cases of abortion or termination of pregnancy, the unborn foetus is physically normal.
In best practice, women who ask for and are offered pre-natal diagnosis should also be offered counselling. There are some defects of the developing foetus that can be diagnosed by routine ultrasound scan. Cleft lip and palate is one such diagnosable defect. Cleft lip and palate are eminently treatable by maxillo-facial surgeons in the NHS. There is no waiting list for the operation. The results of surgery are usually excellent, if performed on a young baby who can develop not only normal speech but acceptably good looks.
The issue is that doctors are expected to counsel patients who request termination of pregnancy on the ground of serious handicap. As my noble friend said, the number of terminations involving cleft lip and palate has increased. Could all of those unborn babies have severe chromosomal abnormalities with cleft lip and palate? I notice that, in 2000, nine foetuses with cleft lip and palate were aborted before 24 weeks. There are severe abnormalities such as trisomy E or Edwards' syndrome that would be considered for abortion. However, if the affected babies were allowed to progress to birth, some would have died soon after birth, and the rest would have succumbed within months. Therefore, it would be of interest if more details of the diagnosis of these cases could be obtained rather than the vague descriptions read out by my noble friend Lord Alton.

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There was one case of the termination of pregnancy after 24 weeks of gestation which took place in 2001. I fear that the priority of patient's choice might lead to more abortions and the termination of pregnancy for reasons such as cleft lip and palate. This is an issue of concern to all of us, but if it is not, it should be.
8.35 p.m.
Lord Stoddart of Sh indon: My Lords, I cannot bring to this debate the expertise of the noble Lord, Lord Chan. who has just spoken, but I can join him in thanking the noble Lord, Lord Alton, for raising this very important debate tonight on cleft lip and cleft palate. He might be surprised that I am taking part in the debate on his side because he will know that my previous position on abortion has always been to support the 1967 Act, known as the Steel Bill.
Looking back to the debate at that time and my subsequent actions in another place, especially when I was a Government Whip. it seems to me that we have gone a long way from the intentions of the 1967 Act. Those of us who supported it believed that we were supporting a Bill to outlaw back-street abortionists, for example, which was good, and to protect women's health and welfare and the prevention of severely disabled births where there was no prospect of any viable, decent lifestyle. Those were the bases on which we made up our minds.
But we have gone a long way beyond that now. When I have read articles about cleft palates and cleft lips, I have realised that it is time to re-examine what we are doing as regards abortion and severe disablement. That is why the debate tonight is timely. We have gone beyond what we thought we were doing. We now have virtually abortion on demand. We have a woman's absolute right to have an abortion irrespective of other interests and the interests of other people. I believe that we have come a long way too far.
When I was supporting these measures I did not dream that we would reach a figure of 155,000 abortions every single year. That is an enormous number. It is almost the same number of people that the Government say we are short of and wish to allow to immigrate into this country to work. We are allowing the abortion of 155,000 souls every year.
We have now reached a new, alarming situation where viable foetuses which could live a good and useful life—perhaps even be geniuses—are killed unnecessarily. They could live a viable life if allowed to be born. I believe that it is now time to revisit the whole issue of abortion. I am going rather further than the noble Lord, Lord Alton. Perhaps it is people like myself who should be saying that at this time. I believe that we have gone too far and that now is the time to look at things.
In case I am accused of being too old to have decent opinions, I want to say that age brings experience and knowledge. Furthermore, I hope that I will not be accused of being some sort of religious maniac, because I am not. I am completely irreligious. I am sorry to say so when the most reverend Primate is sitting in front of me, but I am sure that he will
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appreciate the honesty with which I speak. I support the noble Lord, Lord Alton. and thank him again for bringing forward the matter.
8.40 p.m.
Lord Tombs: My Lords, I thank my noble friend Lord Alton for giving us the opportunity to debate this important topic. The subject of late-term abortions is distressing for babies, parents and doctors alike. They differ from early abortions in that the aborted child is fully formed and has survived the normal hazards of pregnancy to come within reach of an independent existence. The arguments so often advanced, that the foetus is not recognisable as a human being and so should not enjoy the rights of a human being, do not apply here. Post 24 weeks we are speaking of a baby with a chance of survival. Its form and behaviour are those of a human being, but denial of its life is the objective of abortion.
The argument that such extreme action is justified by the prospect of severe disability is questionable on the simple grounds that many people with severe disabilities lead happy and fulfilling lives. We would not consider denying that to an adult, so on what grounds can we reach a contrary conclusion in the case of a viable baby? I am afraid that the answer lies in the old saying, "Out of sight, out of mind". It is possible, with the help of doctors, to avoid confronting the enforced termination of life in a brutal fashion that would certainly not be tolerated in the case of a visible adult.
However, the slippery slope, aided by concealment, leads to passive acceptance of the unseen and a growing practice of it. Again, the old saying, "Familiarity breeds contempt" has led to a steady growth in post 24-week abortions over the past 10 years, although the total number of abortions has fallen slightly in that time and the number of those performed on the grounds of diagnosed disability has remained fairly constant.
Many of us oppose the death penalty on the understandable grounds that errors cannot be redressed. Such an attitude is based on respect for human life but is denied to the undelivered baby by legislation and by growing practice. A comprehensive study of autopsies on late abortions due to diagnosed abnormalities shows a confirmation rate of 72 per cent. That is a pretty good figure, given the diagnostic difficulties, but it shows that diagnoses are not infallible and that the irrevocable step of terminating a life is taken without the benefit of the doubt being given to the child. Whatever happened to the notion that society does not have the right to destroy life, which is so apparent in the treatment of convicted murderers?
The decision on late abortions is hazardous, depending largely on the attitude of the mother as interpreted by her doctors. It is in the nature of things that such decisions rest on a large measure of individual judgment. It is highly unsatisfactory that legislation offers so little guidance. The slippery slope therefore becomes inevitable. Every violent death

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diminishes society, and never more so than when it applies to an innocent child subjected to brutality sanctioned by the law. Such brutality brutalises society itself, and we have a plain duty to avoid it.
It is beyond question that many prospective parents are deeply disturbed by the prospect of having a disabled child. The fact that many parents survive it and that they and their children share a happy life together does not remove the mental anguish which some parents believe to be beyond them. In such cases, the answer must lie in state provision of support to the parents, often sadly lacking in today's society. In so far as such help is not available, the state is an accomplice to the brutality that I have described. I hope that the Minister will address that problem when he replies.
8.45 p.m.
Viscount Craigavon: My Lords, I was hesitant about the merits of this debate, and it has turned into something very different from what I thought it was going to be. I paid the noble Lord, Lord Alton, the compliment of reading what he had put on the order paper, which largely mentions cleft palates and cleft lip, particularly after 24 weeks. So that is what I have addressed. Partly for those reasons, people who might be expected to speak on the same side as myself in a debate like this have decided not to attend.
I compliment the noble Lord, Lord Alton, on not using this debate to comment on a case which is going through the courts, which I thought he might be going to do. We are in the middle of litigation, and I suspect that this amendment might have originally been put down to further that cause. It is absolutely proper that we are not discussing it today, but, as background to some of my remarks, that had featured in my expectations.
In his introductory speech the noble Lord, Lord Alton, he went very wide of what seemed to be on the Order Paper. I am all in favour of having debates in this House on abortion and anything to do with it, but I think it is discourteous not to give the House proper notice of when that is being tried, and trying to do it in a dinner hour debate is slightly counter-productive. I do not know whether he gave Front-Bench spokesmen notice that this was what he was going to do, but it certainly did not come to my notice.
I am concentrating, in a very short time, on cleft lip and palate and in particular post 24-week abortions. I first remind the House that cleft palate and lip is not a simple syndrome. There are two aspects. First, it can often be associated with severe congenital abnormalities. Secondly, in cases where there is just a cleft lip or palate, there are degrees of severity, with some of the more serious not being amenable to surgical repair. I have the greatest respect for the noble Lord, Lord Chan, and noticed that he used the word "usually", in the context of being usually treatable. I take his point. All that adds to the uncertainty of what has been diagnosed in a particular case. I put all this in the context of the prevalence of a case such as one
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referred to in the Motion, that is post 24-weeks in cleft palate and lip. The Office for National Statistics's figures show that since 1999 there has been only a single case, in 2001, of a termination post 24-weeks for cleft palate. It is unfortunate that this single case must be assumed to be the one which is subject to all this publicity, and the subject of the legal case which we have read about in the papers.
In 2002, the last year for which figures are available, there was one pre-24-weeks case for cleft palate. Similarly, in 2001, there was one other case which was pre-24-weeks. Our attention on what I thought was going to be the Unstarred Question today is focused on the fact that there was one such termination out of over 186,274 abortions in 2001. That is also the sole recorded case post 24-weeks in the last four years. I was questioning whether that was an appropriate subject for a parliamentary debate, to take up the time in the way that we are. As I say, I am very happy to have a more general debate on abortion.
Present abortion legislation was last decided by substantial majorities in both Houses in 1990. The noble Lord, Lord Alton, used the word "eugenic" which I do not think is a parliamentary word to attach to statutes which Parliament has passed. I am not asking him to withdraw it. He did actually use it on the Order Paper of this House. Fortunately, he was persuaded to withdraw it, because it was completely out of order.
It was agreed by Parliament in 1990 to leave the wording relating to grounds in the Act to be interpreted by the doctors involved, in discussion with the patient. One of the changes following the 1990 Act was that all terminations post-24 weeks could only be performed on NHS premises. That is an additional safeguard. It has been the practice under this system that decisions are taken in clinical discussions with the woman. That has served us very well.
In cases such as those mentioned in the Question, none of us knows the circumstances that persuade a woman and her doctors that abortion is the best option in her particular case. I am therefore not persuaded that there should be a review by the Department of Health on this particular aspect of abortion law.
8.50 p.m.
Lord Clement-Jones: My Lords, I, too, must express gratitude to the noble Lord, Lord Alton, for giving us the opportunity to discuss some of the issues raised in the debate. Those issues have broadly been raised in an extremely dispassionate and rather forensic way, which is welcome. I have some qualms about the timing of the debate because some of these matters will soon be tested in court. I would have preferred to have the debate after those issues had been tested. Perhaps the remedy is simply to have another debate when we know what that decision is.
Although I am a longstanding pro-choice supporter who certainly supports the terms of the 1967 legislation of my noble friend Lord Steel, I am also one who believes that the legislation should operate memberconstituency

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intended and not as some kind of lifestyle choice. There has been much debate on this issue in recent months, inspired by the case that we cannot discuss. In some ways, I admire greatly the journalists who have commented on the issue and the facts surrounding it because they have been able to adopt a degree of certainty that I am not able to share. I certainly do not feel the degree of certainty about the issue which they have expressed, largely because each case must be different on its facts. Without the real facts, I refuse to censor. Without the facts I cannot criticise the current state of the law.
As the term "serious handicap" is not legally defined—which is highly regrettable; it should be—future events in court should be welcomed. Moreover, there must be a consideration of the kinds of responsibility on doctors and the way in which they interpret the Act. The testing of that is also to be welcomed. Those aspects are absolutely at the core of the legislation. They are not to be taken lightly. I await developments before the court with considerable interest. As the noble Viscount, Lord Craigavon, mentioned, doctors in a particular case may think that a cleft palate is symptomatic of a more serious underlying condition. I simply do not know the facts. Until one does know the facts, it is very difficult to make a judgment. However, perhaps doctors will be influenced by the mental state of a prospective mother. Again, I do not know the facts.
Although one may regret the sheer numbers of abortions—more than 170,000 in 2002—as the noble Lord, Lord Alton, said, 1,800 of those were performed on grounds of serious disability. However, in terms of today's debate, after the 24-week period, only one of those was performed on the grounds of cleft lip or cleft palate. It is important that we put that in context.
However—and there is a however—I believe that we should seriously consider the court's conclusion, when it comes, and contemplate amendment of the Act if we need to. We should also ensure that when parents have antenatal screening, they receive information and counselling, as the noble Lord, Lord Chan, says, about the nature and consequences of handicaps or disability. I have seen enough parents of handicapped children and children with severe learning difficulties to know that those children are often cherished and joyful additions to families. As one wise journalist said in commenting on this area:
"We should be more accepting of imperfection".
"Serious handicap" is a blanket term, but the range of seriousness in each condition can be enormous, giving rise to very difficult value judgments in these circumstances. So I believe that the key is to ensure that parents take the right decisions, that we do not morally censure them, but that they do have the information and counselling which enable the right decisions to be made.
8.55 p.m.
Earl Howe: My Lords, as the noble Lord, Lord Alton, has indicated, the problem at the heart of his Question is not only the interpretation of the terms used in the
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Abortion Act 1967, it is also a medico-ethical one. It is one matter, and an important matter, to try to determine what Parliament meant when it framed the present law. It is another matter to decide whether, against the background of current medical knowledge and practice, we feel it right to endorse the view that Parliament took in 1990 or to back away from it.
Taking his cue from a current legal case which I do not wish to comment on directly, the noble Lord has questioned the legality of an abortion of a foetus of more than 24 weeks' gestation, diagnosed as having a cleft palate, presupposing that this condition on its own is regarded by the doctors involved as giving rise to a serious handicap in the child, were the child to be born.
The Cleft Lip and Palate Association, to whose work I pay tribute, is quite clear. It states that,
"if only a cleft palate/lip is diagnosed, with no other medical complications, then late termination is not something we would condone".
I associate myself personally with those words. But we should note the qualification, "with no other medical complications". Cleft lip and palate can often be a marker for other congenital anomalies such as serious heart defects or chromosomal disorders. Pre-natal diagnostic tests are usually possible to screen for other conditions once cleft lip and palate have been diagnosed.
The question posed by the noble Lord, Lord Alton, however, presupposes that in a given case no other congenital anomalies have been diagnosed. As to what Parliament believed in 1990 when it amended the 1967 Act, there can, I think, be little doubt. At that time there were those who suggested publicly that under the Act as amended, an otherwise healthy foetus of more than six months could be legally aborted for having a hare lip or a cleft palate. This suggestion was greeted with outrage by various Members of Parliament, among whom were Sir David Steel, now the noble Lord, Lord Steel of Aikwood, and the current Solicitor General, Harriet Harman. The 1990 amendments were based on a report two years earlier by the noble and learned Lord, Lord Brightman, which spoke of,
"an abnormality that would prevent sustained life after birth or that would result in a gross handicap".
When he spoke in the debate on the Bill in your Lordships' House, the noble and learned Lord made a point of excluding hare lip or cleft palate from the scope of this definition.
At the same time, the Act is framed in a way that leaves the decision to proceed with a termination dependent on two doctors, acting in good faith, being of a certain opinion. I do not know how the courts will look at the case that has been mentioned, but it seems to me that this aspect of the Abortion Act—that an abortion, if it is to be legal, must be based on honest medical opinion rather than strictly on the facts—should play an important part in the court's deliberations. There can be no doubt that Parliament took proper cognisance of this in 1990.
Aborting a foetus on the principal grounds of cleft lip and palate is rare. There has been only one instance since 1990 where the foetus has been of more than

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24 weeks' gestation and, I believe, 25 instances where the foetus has been of 24 weeks' gestation or under. Some of us would question whether cleft lip and palate on their own are ever sufficient grounds for a termination. However, any decision to proceed with a termination will be one taken jointly by the woman and her doctors on an informed basis. The doctrine of informed consent applies both ways. The mother must be informed about what cleft lip and palate actually are and what they are not, what treatments are available, the success rate of such treatments, and the quality of life likely to be enjoyed by the child. She should also be informed that any diagnosis of cleft palate is open to a high degree of error; that is, of false positives.
Clinicians, on the other hand, need to interpret the law correctly, and here the guidance issued by the Royal College of Obstetricians and Gynaecologists is crucial. I have read the key parts of that guidance as regards what should constitute "serious handicap" when interpreting the Act, and it seems to be a model of clarity and accuracy. It would, I think, be impossible for any doctor reading those guidelines to conclude it would be legal to abort a foetus of more than 24 weeks' gestation solely on the grounds of cleft lip and palate.
Separate from the state of the law, the wider socio-ethical issue remains. The question is whether, looking at the issues afresh, physical handicap should carry the weight that it does in the Abortion Act and in the scales of decision-making on abortion. Over time, society's attitudes to matters such as this undergo change, and the law needs to keep pace. With the speech of the right reverend Prelate the Bishop of Coventry ringing in my ears from last week, I believe it behoves us all to reflect on the ideas that he emphasised: namely, the notion of personhood and the value we place on individuals who are less than whole. If, in due course, Parliament is given an opportunity to revisit those issues, I look forward to that debate.
9.1 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, I am sure we all appreciate why the noble Lord, Lord Alton, has raised this important issue. I am grateful to all noble Lords who have provided their views in the debate.
As we all know, in 1967 and 1990, Parliament decided, on a free vote, that abortions may lawfully be carried out in the circumstances specified in the act. As such, the Government consider that facilities for abortion treatment should be available. The Government also have a responsibility to monitor the provisions of the act as they are, unless and until Parliament chooses to further amend that law.
As many noble Lords will be aware, last December permission was granted to an applicant for a judicial review of whether cleft lip and palate can ever be considered as a serious handicap under the Abortion Act. The case will now proceed to a substantive hearing, to be heard the week commencing 24 May.
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The following declarations are now being sought: first, that serious handicap in Section 1(1)(d) of the Abortion Act 1967 has to be understand by reference to the remediability of the condition; secondly, that cleft lip and palate does not constitute "serious handicap" within the meaning of Section 1(1)(d); thirdly, that the foetus at 24 weeks has a right to life pursuant to Article 2 of the European Convention on Human Rights, which is only subject to the mother's Article 2 rights; and, fourthly, that Section 1(1)(d) is incompatible with Articles 2,3,8 and 14 of the European Convention on Human Rights. A declaration is also being sought that the police must reconsider their decision not to prosecute the two doctors in the case which led to the hearing.
I should clarify that the Secretary of State for Health has joined these proceedings as an interested party because the Department of Health has responsibility for monitoring the operation of the Act. This is done in three main ways. First, all independent sector places wishing to perform abortions have to be approved by a health minister under the Act. These places are also registered with, and regularly inspected by, the National Care Standards Commission.
Secondly, details concerning every abortion performed are required to be submitted to the Chief Medical Officer on Form HSA4. This notification is used by the department as an aid to checking that terminations are carried out within the law. Form HSA4 contains many details, including: the names and addresses of the doctors who certified there were grounds under the Act; gestation; method used; place of termination. Every form is checked and monitored and forms are returned to practitioners if information is missing or clarification is needed. However, it is possible that published statistics do not fully capture all the detail on forms because a coding process takes place. That is the best answer I can give to the noble Lord, Lord Alton, who raised this particular issue.
Thirdly, the Department of Health investigates any specific complaints and allegations of abuse. Three other interested parties have also joined the proceedings—the Royal College of Obstetricians and Gynaecologists, Antenatal Results and Choices, and Disability Awareness in Action.
As we are awaiting the decision of the court on the judicial review, it would be inappropriate for the Government to review the provisions of the Act and its working as suggested by the noble Lord, Lord Alton. I must proceed with great caution and not in any way appear to anticipate the judicial review. I am sure that your Lordships will understand if I do not venture responses in the debate to all the questions raised.
Turning now to the provisions of the Act, Section 1(1) of the Abortion Act, as amended, provides the grounds under which abortions may be carried out. As noble Lords have said, one of these sections, Section 1(1)(d), states that an abortion may be performed when two medical practitioners are of the opinion, formed in good faith, that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

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The noble Lord, Lord Alton, asked about the compatibility of Section 1(1)(d) with the Disability Discrimination Act. My understanding is that in August 2001 the Disability Rights Commission ventured the view that this section was not inconsistent with the Disability Discrimination Act as that Act is concerned with the rights of living persons.
Turning now to the remediability of treatment, the judicial review will consider whether "serious handicap" should be considered in the context of the ability to treat the condition which has been diagnosed or is suspected. The availability of remedial treatment which might alleviate suffering is clearly a factor which may be taken into account under Section 1(1)(d) of the Act in making that assessment. As the noble Earl, Lord Howe, said, the Royal College of Obstetricians and Gynaecologists has given guidance on the care of women seeking abortion. It states that an opinion that a particular foetal abnormality would be associated with a serious handicap should be based on a careful consideration of a list of factors, not all of which may be relevant in every case but one of which is the probability of effective treatment, either in the womb or after birth.
However, the fact that remedial treatment may be available does not automatically mean that it will be successful and that the child will not suffer from a serious handicap. Remedial treatment may be prolonged, painful, subject to delays and doubts as to success, as well as dependent upon the co-operation of the Parents involved and the nature of the condition in question. Hence all factors in any one case must be assessed before a decision can be reached, as stated in the Royal College of Obstetricians and Gynaecologists guidance. A declaration that serious handicap has to be understood by reference to remediability would fetter the discretion conferred by the Act on doctors to accord remediability appropriate weight depending on individual circumstances.
I know that some may question whether cleft lip and palate should fall within the definition of "serious handicap". However, Parliament did not define serious handicap in the Act. Indeed, it chose to leave this to the expert judgment of the two doctors involved, who are required to form their own opinion about the seriousness of the handicap the child would suffer if born, taking into account the facts and circumstances of each individual case. Although the mother will of course be the person who ultimately must agree that the termination should go ahead, and good practice would require consultation with the parents during the process of reaching a decision about the seriousness of the potential handicap, Parliament decided that the lawfulness of any termination must ultimately be determined by two medical practitioners acting in good faith, as required by Section 1 of the Act.
In conferring on doctors the duty to reach decisions about the risk of serious handicap under Section 1(1)(d) of the Act, Parliament decided that doctors are best placed to reach specialist expert medical judgments on what conditions constitute a "serious handicap". Doubtless in this context the guidance that the Royal College of Obstetricians and Gynaecologists
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provides on these matters to its fellows and members is extremely important in guiding doctors. So, too, is any advice from relevant specialist medical sources, including the Royal Colleges relevant to that specialism, that have specialist knowledge of the suspected handicap in question. Every case is potentially different with a series of interlocking factors to be considered; the background context is the often fast developing area of medical and technological advances which the doctors in question must take into account when reaching such judgments.
We have been advised by doctors specialising in the condition that there are further adverse complications that may be associated with cleft lip and palate. For these reasons, and for the reasons given earlier, the department considers it inappropriate to advance a position as to whether or not the diagnosis of cleft lip and palate would in general terms amount to a serious disability. This is precisely the question that the Act requires the two doctors to answer on the facts of an individual case (having considered the guidance of the Royal College of Obstetricians and Gynaecologists, and other guidance, which is regularly reviewed). It cannot be answered in general terms. I must decline to respond further in this area to the questions posed by the noble Lord, Lord Alton.
In conclusion, the current judicial review will examine many of the issues raised here today and we await the outcome of that review. Noble Lords can be assured that the department takes its role in monitoring the Act very seriously and any complaints or allegations of abuse are investigated and action taken, as appropriate.
Baroness Andrews: My Lords, I beg to move that the House to now adjourn during pleasure until 9.15.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 9.12 to 9.15 p.m.]

Planning and Compulsory Purchase Bill
Further consideration of amendments on Report resumed.
[Amendment No. 144 not moved.]
Baroness Maddock Baroness Maddock moved Amendment No. 144ZA:
After Clause 51, insert the following new clause—
"Meaning of development
In section 55 of the principal Act there is inserted the following paragraph at the end of subsection (2)—
"() the carrying out of the improvement or maintenance of any building of works which fall within regulations made by the Secretary of State and which do not materially increase the overall retail sales floor area of the building by such percentage as the Secretary of State prescribes"."
The noble Baroness said: My Lords, I shall try to be brief. We had a lengthy discussion on the matter in Committee. The noble Lord, Lord Rooker, was sympathetic to my intentions concerning mezzanine development in out-of-town stores. As he has not

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managed to table an amendment on Report, I suspect that he is still considering the issue. Therefore, I shall not repeat all my previous remarks; I shall just go through the purpose of the amendment.
The amendment is slightly different from the one that I tabled in Committee. It would not prohibit any further internal expansion of retail stores; it would simply bring it within the planning system. Any proposals could then be properly assessed at the local level and brought within the democratic process of the planning system. Local planning authorities would then be free to set their own policies in their local development frameworks to allow or restrict such developments. That is totally in line with a plan-led system.
We have seen in the cases that I discussed at an earlier stage of the Bill that local communities find it difficult to defend their policies and town centres. That is why we wish to include a provision in the Bill to improve the situation.
At an earlier stage of the Bill, the Minister thought that we could perhaps address the matter through secondary legislation. There is a problem there because the secondary legislation would contradict provisions enshrined in the Town and Country Planning Act 1990.
I know that the Government have been consulting on the new PPS 6, which concerns retail development. If we do not take the opportunity to include a relevant clause in the Bill, it will be a long time before we have another chance. We have pointed out at several stages of the Bill that planning law is not changed very often and that we shall not have an opportunity to deal with the issue at a future date. That would be a shame because we have realised in recent years that if we are serious about sustainable development and keeping our town centres, we need a robust planning system. More recent planning permissions have understood that. It would be a shame if all that disappeared because we cannot manage to consolidate it with the Bill.
The issue falls within the scope of PPS 6, on which the Government have consulted. I draw noble Lords' attention to two points. Following our interesting exchanges in Committee, I had tea with representatives of Asda, who felt rather hard done by for having been picked out. They thought themselves to be the small players in the supermarket game. I shall speak about that in a moment. I made the point to them that the issue relates not just to town centres or supermarkets, but to sustainability as whole.
Climate change is affected. It is a much wider issue. When it comes to food and supermarkets, the average person now travels 893 miles per year to shop for food, and 60 per cent of that travelling is by car. Food shopping now accounts for 5 per cent of all our mileage in Britain. That is why the issue is a broad one and why we need to deal with it. Various local authorities have explained how they have had difficulty. I gave examples last time, so I shall not go through them again. Even when these authorities have put
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restrictions on planning, they have not been able to carry this through, and developers and owners of out-of-town retail space have appealed and won.
Just so that Asda does not feel that it is the only company being got at, we are not only talking about Asda—which we have to remember is Walmart, the world's largest company—but also Tesco, as well as lots of do-it-yourself companies like B&Q and Homebase. They have a dominant position in the market, and they obviously have an agenda: they want to expand their business. They have found that, because of the way the planning system works, one can change things inside a building without getting permission.
As there are no amendments down, I am not sure the Minister is going to be able to say anything tonight. I hope that he will be able to come forward with something at Third Reading. Given the late hour, I am not going to say anything else on this, other than that I beg to move.
Lord Rooker: My Lords, I can be commendably brief. The amendment proposes, among other things, the application of planning control to mezzanine floors of a certain size. As I stated on 5 February, we are giving this issue serious consideration. That consideration is not yet concluded. I am therefore unable to support the amendment this evening, but I hope to come back to the House as soon as possible.
Baroness Maddock: My Lords, I am grateful to the Minister. I suspected that that was where we had got to. I know it is not easy, because the consultation on the planning policy dealing with out-of-town shopping and trying to preserve our town centres does not only concern the Office of the Deputy Prime Minister, but also, of course, crosses over in to the Department of Trade and Industry, where I suspect some of the problems lie. I hope the Minister will be able to resolve this issue, and I look forward to seeing what he comes forward with. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 52 [Fees and charges]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 144A:
Page 40, leave out line 17 and insert—
"() provision as to the calculation of the charge or fee (including the person by whom it is to be calculated);
() circumstances in which no charge or fee is to be paid,"
The noble Lord said: My Lords, in Committee, in response to an amendment tabled by the noble Lord, Lord Lucas, we undertook to explore further the concept of a performance relationship for fees, and consider whether this is allowed for by the current wording of this clause. I can tell the House that, on examination, we have found that the wording of the clause does not cover such a relationship. However, we do think the concept is an interesting one, and we would like the Bill to allow for it. Therefore, we are tabling amendments 144A and 144B.
These amendments seek to allow the provision of a performance relationship, subject of course to the provision that, where authorities set their own fees, they must ensure, taking one year with another, that the income from the fees and charges does not exceed the cost of performing the function, something that was described very aptly in the local government and financial matters Bill that my noble friend Lord Rooker piloted through your Lordships' House last year. This is in line with our longstanding policy, and actually in line with that of the previous administration, which, I think, bears to be slightly congratulated on this one. Planning fees can be set to recover the full aggregate cost, but no more, of the services to which the fees are related.
I have a longer speaking note, but I think I have probably said enough on this matter. I hope that the amendments we are moving this evening find favour in your Lordships' House. I beg to move.
Lord Lucas: My Lords, I am very grateful that the Government have chosen to pursue this course, although I could never have drafted anything as skilfully as the government draftsmen have.
I would have tabled Amendment No. 144B a little differently; I would have allowed local authorities to make some surplus, perhaps within a prescribed limit. It is quite hard to be told that one must never make money; there is always a processing of the loss that means that, to some extent, there is always a burden on ratepayers. To chastise my noble friend again, I do not think that Kensington and Chelsea sets its parking fees so that it never makes a profit. Whereas one wants to keep such matters within bounds, to say that there should never be a surplus is to say that there always has to be a loss, which is not how I would like to see it. None the less, one should not quibble, and I am delighted that we have made some move in the right direction.
Baroness Hamwee: My Lords, the drafting is so skilful that I was grateful for the explanation; I have to say that I wondered what the amendment was about. We have probably had a helpful letter, too.
On the previous occasion, the Minister said that the Government's long-standing policy, and that of the previous administration, was to set planning fees to recover the full aggregate costs. I thought then that the chance would be a fine thing. It is entirely right that the costs should be covered with perhaps even a surplus to allow a bit of scope. However, I want to put on record that I have very considerable reservations indeed about performance-related fees.
I have reservations about the Government's approach to assessing performance generally, and I can see a lot of problems and elephant traps in somehow relating what can be charged to the performance. It could be the start of a rather difficult slope into thinking such as, "Well, we'd better say yes because of the financial implications". There is enough of that in the exercise of planning functions now, with development control committees being told, "Think of the costs it' you appeal".
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I would also like to voice a note of concern about what I understand as allowing local planning authorities to set individual rates. That could affect where developers choose to develop. The whole point of having spatial strategies, development plans and so on is to both control such matters and encourage development where it is wanted. Fees are in a separate compartment from that, and it will be difficult if there is any mixing up of the two.
Lord Bassam of Brighton: My Lords, I am grateful for the welcome from the noble Lord, Lord Lucas. I take it that he is in spirit with me and is one of those who wants to see a bit of municipal entrepreneurialism. Actually, I would rather like to see a good deal more of it than we have been allowed to achieve in the local government sector in the past. That was why I was rather pleased with the most recent piece of local government legislation, which we put through this House in the previous Session.
I am sorry that we had a less than enthusiastic response from the Liberal Democrats. As leader of a local authority, I struggled to get the planning function to perform at any great speed or to the satisfaction of clients at all during my tenure and watch in that office. It was one of my continuing and enduring frustrations. The provision may well operate as an incentive to some local authorities that do not get a move on, basically, in considering planning applications and do not commit sufficient resource or enthusiasm to the planning process. That is what we need to do. If we were to adopt the concern enunciated by the noble Baroness, I rather think that local authorities would be stuck in the past for ever and would not respond to any sort of incentive or encouragement at all.
With those comments, I hope that noble Lords will generally welcome what we have done.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 144B:
Page 40. line 25, at end insert—
"() After subsection (5) there are inserted the following subsections—

"(5A) If the local planning authority calculate the amount of fees or charges in pursuance of provision made by regulations under subsection (1) the authority must secure that, taking one financial year with another, the income from the fees or charges does not exceed the cost of the performance of the function or doing of the thing (as the case may be).

(5B) A financial year is the period of 12 months beginning with 1 April.""

9.30 p.m.
Lord Rooker Lord Rooker moved Amendment No. 144C:
Page 40, line 40, leave out subsection (4) and insert—
"() The consultee must give a substantive response to any consultation mentioned in subsection (2) or by virtue of subsection (3) before the end of—

(a) the period prescribed for the purposes of this subsection, or

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(b) such other period as is agreed in writing between the consultee and the appropriate authority or the local planning authority (as the case may be)."

The noble Lord said: My Lords, this amendment ensures that the duty to respond within a prescribed period includes a degree of flexibility to allow for situations where a statutory consultee might not be able to respond within a fixed period, for example when an environmental statement is required. We decided that the Bill as drafted did not enable us to provide this flexibility. This amendment will put that right. I beg to move.
Baroness Hanham: My Lords, I am slightly sorry about that explanation. We were looking not so much for flexibility from consultees within these clauses, but an indication that the consultee was going to have to reply within a reasonable space of time, so as not to hold everything up. The Minister may be correct that the flexibility is useful here, but equally useful would have been that the consultee—it could be anyone who needs to reply, English Heritage, the fire brigade—does not hold the proceedings up by not replying within due course. I think that the Minister's amendment does that. There was a slight overemphasis on flexibility, but the prescribed period will presumably be laid down in regulations, because it is certainly not here, or the period will be agreed presumably each time that there is a requirement for a consultee to make a response. Might the Minister be able to give us a bit more indication of what the prescribed period will be, and prescribed by whom?
Lord Rooker: My Lords, I took those out in the interests of making progress. We have already consulted on draft amendments to the Town and Country Planning (General Development Procedure) Order 1995, and its associated guidance, which explains how we want the duty to respond to work. The draft order specifies that the duty to respond will be 21 days or such period as may be agreed in writing by the local planning authority.
On Question, amendment agreed to.
Lord Bridges Lord Bridges moved Amendment No. 144CZA:
After Clause 54, insert the following new clause—
"ENFORCEMENT OF PLANNING CONTROLS

(1) A local planning authority must exercise its powers so as to ensure compliance with planning controls in its area.

(2) A local planning authority may decline to take enforcement action in a case where planning permission would have been granted without conditions."

The noble Lord said: My Lords, I rise to speak to my amendment about enforcement. I had not anticipated the Government's decision in their Amendment No. 143A, which has effectively side-tracked my amendment. I would like to suggest a somewhat different line of approach.
I welcome the Government's decision to take action on the long review of enforcement which ended in December 2002. The procedure envisaged of issuing stop notices is worthy of serious consideration. There
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is one aspect that still concerns me. Hitherto, a planning authority has had some discretion of action in enforcement matters. These authorities were often reluctant to move decisively, because they were under no statutory duty to take such action if the conditions of the planning decisions were not being fulfilled. Understandably, the local authorities preferred to spend more resources on those areas where they did have statutory obligations. Curiously, although the authorities are given extensive new powers in the government amendment, enforcement is still apparently a discretionary activity, permissible but not obligatory.
My reaction to the government amendment is that, while the extensive new powers are welcome, they should be made even better by being linked to the obligation to enforce the terms of the original planning consent as a specific statutory duty. Unless this is included, I fear that the Government's bold initiative will not produce the required results in improving our planning procedures, whatever it does to the Gypsies. I beg to move.
Lord Rooker: My Lords, notwithstanding what the noble Lord just said, the intention behind the amendment is unclear. It seems to be designed to ensure that the local planning authority exercises its powers in such a way as to ensure that breaches of planning control do not occur. The amendment appears to place a duty on local planning authorities to take enforcement action in every case where there is a breach of planning control, except where planning permission would have been granted without conditions. Currently, local planning authorities' enforcement powers are discretionary, as the noble Lord said. That issue has been considered as part of our review of the current planning enforcement arrangements on which we intend to announce the outcome of a public consultation later this year.
Local authorities have the primary responsibility for taking whatever action may be necessary in the public interest. This provides flexibility to tailor their approach to each case to fit the nature and circumstances of the alleged breach of planning control. Minor breaches can often be remedied without the need for a form of enforcement action. Indeed, often such breaches arise out of a genuine misunderstanding of the planning position or a mistaken belief that planning permission was not required.
It is important that a balance is able to be struck between situations where development, though unauthorised, is not causing particular harm and those where enforcement action is essential in order to remedy a more serious breach of control. If unauthorised development is not causing particular harm and where, had an application for planning permission been made it would have been granted unconditionally, the better approach is to invite submission for a retrospective application. The response should be proportionate to the breach alleged to have occurred.
A duty to enforce in all cases, irrespective of the nature and circumstances of the breach, would place an additional and, we think, unwarranted burden on local

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authorities, even in cases where planning permission would have been granted without conditions. It is important that they can target their resources on the most important cases.
Local planning authorities need to consider taking enforcement action in order to ensure compliance with planning controls in their area where a breach is brought to their attention. Obviously, complaints about alleged breaches of control should be recorded and investigated. If a local authority, having considered the circumstances of the alleged breach, has decided that enforcement is unnecessary, it should be prepared to explain and justify that decision. Failure to take enforcement action which was plainly necessary can result in a finding of maladministration by the local government ombudsman. Alternatively, it might be the subject of judicial review by the court.
A duty to take action in all cases, as this amendment seems to imply, would remove the freedom for local authorities to exercise judgment. The responsibility is on local authorities. They should be able to exercise judgment in a responsible, reasonable and, as I said, proportionate way. Therefore, I hope that the noble Lord will be satisfied that the amendment is not justified.
Lord Bridges: My Lords, I am grateful to the noble Lord, Lord Rooker, for replying so fully. I do not read the new clause that he has tabled in quite the same way that he does. I would not say that the local authority would have to take action in every case. But their tendency is not to take action even when pressed to do so. I have prepared a dossier of cases which, if we were speaking at a somewhat different hour, I might have read out one or two examples for the noble Lord. But I am fairly confident in feeling that the degree of voluntary activity left to the local authority will not produce the required results. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanham Baroness Hanham moved Amendment No. 144CA:
Page 114, line 19, at beginning insert "For"
The noble Baroness said: My Lords, at the outset I should like to say that if the Minister was to view this amendment sympathetically and if it were to be included in the Bill at a later stage, it would affect my own borough, the Royal Borough of Kensington and Chelsea. I need to put on record that an amendment I am moving would be of interest to the borough.
The Planning and Compulsory Purchase Bill 2004 seeks to extend planning control to Crown land. However, in respect of the continuation of uses on the transfer of Crown land, the Bill reduces planning control. Amendment No. 144CA seeks to reverse that change and to provide that the continuation of a use by private interests following the disposal of Crown land requires planning permission.
In principle, if land is disposed of by the Crown a private purchaser can continue the use without requiring planning permission. That was decided in a case involving Newbury District Council; namely,
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Newbury District Council v Secretary of. State for the Environment [1977] J.P.L. 373. For instance, if the Crown is allowing its playing fields to be used for commercial events or other events that cause a great deal of disturbance to local residents in terms of, for example, amenity and traffic congestion, the new owner would be able to continue that use.
That problem was recognised when limited planning control over Crown land was introduced by the Town and Country Planning Act 1984. That Act provided for agreements to discontinue uses when land was disposed of by the Crown.
The 1984 Act provisions are now contained in Section 301 of the Town and Country Planning Act 1990. Section 301 provides that a local planning authority and the Crown may make an agreement with respect to a material change of use which has been made or is proposed to be made by the Crown on Crown land. The effect of an agreement is that the particular use will have to be discontinued if the land is disposed of. This is achieved by treating the particular use as having planning permission subject to a condition that the use be discontinued if the Crown cease to use the land. Planning permission will have to be sought if the use is to be carried on by private hands. The local planning authority will be able to consider whether it should continue and, if so, whether conditions should be imposed.
The Bill requires the Crown to seek planning permission for changes of use which take place after the commencement of the new Crown land provisions. It repeals Section 301 agreements, except that those agreements already made shall continue in force (page 114, Schedule 3).
The Bill, therefore, has the following effects. First, if the Crown makes a material change of use after the new provisions are in force, planning permission will be required. The planning permission may provide that the use is discontinued if the Crown ceases to use the land. Alternatively the local planning authority may be content that a private purchaser can continue the use.
Secondly, if the Crown agrees before the Crown land reforms take effect that a use shall be discontinued if it disposes of the land, the agreement continues to bite against a subsequent purchaser. Thirdly, if the material change of use occurs before the new Bill comes into force, but no agreement is in place at that time, the use can be continued by a purchaser. It will not be possible to enter into a Section 301 agreement. Consequently, the ability to control Crown land on disposal is, in an important respect, reduced because of the reforms.
Briefly, therefore, the proposed amendment provides for the discontinuance of uses of land which have not received planning permission, on their disposal by the Crown. It substitutes new text for Section 301.
Where a material change of use has taken place before the new Crown land provisions, the amendment treats the land as having had planning permission subject to a condition requiring the discontinuance of

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the use when it ceases to be used by the Crown. This is the same legal mechanism that is used in the present Section 301 agreements, except that the requirement will now apply automatically. Planning permission will need to be secured either by the Crown or by a private purchaser to enable the use to continue.
The amendment does not apply to post-relevant date changes of use by the Crown as planning permission will be needed for those areas and those uses. It does not affect the use of land which is disposed of by the Crown before the Crown land reforms take effect.
The final amendment in this set removes the carry over provisions for existing Section 301 agreements. These are no longer required as the amended Section 301 has the same effect. I beg to move.
Lord Rooker: My Lords, our policy is that Crown development which has been agreed under the current arrangements, as set out in Circular 1884, shall be treated as if it had planning permission granted under Part 3 of the principle Act. That is set out in paragraph 3 of Schedule 4 to the Bill. That means that authorised uses will run with the land as for any other land with planning permission. That renders Section 301 redundant, which is why we intend to repeal it.
Amendment No. 144CB in effect makes all Crown land subject to Section 301 agreements. That will mean that planning permission will have to be obtained for all disposals of developed Crown land if that use is to continue, even in the most trivial of cases. This amendment would place an unnecessary and disproportionate burden on both the Crown and the local planning authorities, and I hope that the noble Baroness's local planning authority will thank me for making sure that it does not suffer this unnecessary burden.
9.45 p.m.
Baroness Hanham: My Lords, I can assure the House categorically that my local planning authority will not be happy with that response. It is a major concern not only for my authority but for others that the use of land that has been carried out by the Crown passes automatically to a private landowner without any further permission. I think that I am right in saying that it would not have required permission in the first place, as it was Crown land.
I am disappointed with the Minister's reply. It does not get to the heart of the problem. Most planning authorities would not be upset at being required to consider again the use of land that was in Crown hands. That is what the amendment was looking for. The onus on planning authorities would not be great, because it probably would not arise that often. It is a particular problem for my authority, and it will be for others. I am disappointed that the Minister's reply was so negative on the matter. It will cause considerable problems.
I thank the Minister for his reply, and I will consider whether to return to the matter at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 144CB and 144CC not moved.]
Clause 79 [Special provision relating to national security]:
Lord Rooker Lord Rooker moved Amendment No. 144CCA:
Page 54, line 35, leave out "such a person" and insert "a person appointed under subsection (5) or (6)"
The noble Lord said: My Lords, in moving Amendment No. 144CCA, I shall speak also to Amendments Nos. 144CCB to 144CCF and to the related amendments, Amendments Nos. 144CCK to 144CCM, which deal with special advocates under the national security provisions.
I shall speak mainly to Amendments Nos. 144CCA and 144CCB, which amend the principal Act. The amendments make changes and additions to amendments already made in Section 321 of the Town and Country Planning Act 1990. That section enables the Secretary of State to direct that evidence must be withheld from a planning inquiry on the grounds of security and national interest. Where such a direction is sought, the amendments already made provide for the appointment of a special advocate to represent the interests of any parties that would otherwise be prejudiced by their inability to hear or inspect all the evidence. If a direction is made, the special advocate will represent the interests of those parties to the inquiry.
Amendment No. 144CCA is consequential on new subsection (6) of Section 321, which was substituted on Report in another place. As currently drafted in subsection (7), the Lord Chancellor's rules, which set out the special advocate's functions, would apply only when the special advocate had been appointed under the new subsection (5), which relates to occasions on which the Secretary of State is considering whether a direction should be made. The amendment makes it clear that the rules will also apply when the special advocate has been appointed for the purpose of a planning inquiry, after direction has been given, as under the new subsection (6).
With regard to Amendment No. 144CCB, noble Lords will recall that my noble friend Lord Bassam of Brighton agreed to look into specifying who should pay the special advocate, when we discussed the amendment in Committee on 5 February, as reported at cols. 896 of Hansard. Noble Lords will also recall that my noble friend said that the policy was that the Crown body that triggered the need for a Section 321 direction would pay the special advocate, who is called the "appointed person". However, we must allow for the possibility that a private person might also ask for a direction to withhold information, hence the formulation of the first subsection in Amendment No. 144CCB. The second subsection provides for the Secretary of State to determine any dispute about the fees and expenses payable to the special advocate. The third subsection provides for the amount claimed by the special advocate to be certified, whether it was agreed or determined by the Secretary of State. The fourth subsection provides that the certified amount is recoverable as a civil debt.
The provisions have been derived in part from Section 250(4) of the Local Government Act 1972, which is a general provision dealing with the Secretary of State's costs at public inquiries. The concepts in this Bill are not novel.
I turn briefly to the Scottish amendments, which are Amendment No. 114CCK to Amendment No. 144CCM in Clause 90. These make similar provisions for the Scottish principal Act. There is a variation in that both the Secretary of State and the Scottish Ministers have the power to give a direction under the new Section 265A depending on the circumstances. We therefore have provision for whoever is considering giving or has given a direction to specify who should pay the special advocate fee and settle any such disputes.
The Scottish provisions do not have to be repeated because the new Section 265A is carried through in the Scottish Listed Building and Hazardous Substance Acts by means of subsections (2) and (3) of Clause 90. I beg to move.
Baroness Hamwee: My Lords, can the Minister be any more detailed about the first paragraph in Amendment No. 144CCB? He has explained that it would allow the Secretary of State to direct that the developing department, which was the term used at the last stage, or an individual who has brought about the situation, should pay the fees. But the stipulation that any person he thinks is interested in the inquiry is wide. What, for instance, if the Secretary of State were to say, "Mr So-and-So has taken up three weeks of this inquiry with ridiculous questions and should be paying".
The term "interested in the inquiry" does not immediately suggest to me that those who may find themselves the target of the Secretary of State's direction would necessarily fall within those referred to by the Minister in his explanation. I do not know whether the Minister will be able to help tonight.
Lord Rooker: My Lords, most certainly not. I believe that the noble Baroness has put an interpretation on the subsection which is wholly unjustified. The noble Baroness does not trust my right honourable friend the Secretary of State and that has been apparent throughout the passage of the Bill. She believes that he will always behave unreasonably. I have not got a chapter and verse explanation as to whether he would direct any person whom he thinks is interested in the inquiry. That would be legally binding. There will be chapter and verse in making sure that he gets the correct person and not the incorrect one, to pay the fees and expenses of the appointed person. If there is anything else I need to say, or if it is necessary for me to write to the noble Baroness, I shall do so.
Baroness Hamwee: My Lords, with the leave of the House, and as I have said before, it is not the Minister's right honourable friend whom I distrust necessarily. It may be somebody else's right honourable friend when it has to be applied. It is not a question of trusting; it is a question of what the legislation actually provides.
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If Parliament says that this is what the legislation should say, it would be perfectly reasonable for a future Secretary of State to use it in any way which falls within what we appear to be about to agree.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendments Nos. I44CCB to 144CCF:
Page 54, line 38, at end insert—
"() If a person is appointed under subsection (5) or (6) (the appointed person) the Secretary of State may direct any person who he thinks is interested in the inquiry in relation to a matter mentioned in subsection (4) (the responsible person) to pay the fees and expenses of the appointed person.
() If the appointed person and the responsible person are unable to agree the amount of the fees and expenses, the amount must be determined by the Secretary of State.
() The Secretary of State must cause the amount agreed between the appointed person and the responsible person or determined by him to be certified.
() An amount so certified is recoverable from the responsible person as a civil debt."
Page 55, line 12, leave out "such a person" and insert "a person appointed under sub-paragraph (7A) or (7B)"
Page 55, line 15, at end insert—
"() If a person is appointed under sub-paragraph (7A) or (7B) (the appointed person) the Secretary of State may direct any person who he thinks is interested in the inquiry in relation to a matter mentioned in sub-paragraph (7) (the responsible person) to pay the fees and expenses of the appointed person.
() If the appointed person and the responsible person arc unable to agree the amount of the fees and expenses, the amount must be determined by the Secretary of State.
() The Secretary of State must cause the amount agreed between the appointed person and the responsible person or determined by him to be certified.
() An amount so certified is recoverable from the responsible person as a civil debt."
Page 55, line 32, leave out "such a person" and insert "a person appointed under sub-paragraph (7A) or (7B)"
Page 55, line 35, at end insert—
"() If a person is appointed under sub-paragraph (7A) or (7B) (the appointed person) the Secretary of State may direct any person who he thinks is interested in the inquiry in relation to a matter mentioned in sub-paragraph (7) (the responsible person) to pay the fees and expenses of the appointed person.
() If the appointed person and the responsible person are unable to agree the amount of the fees and expenses, the amount must be determined by the Secretary of State.
() The Secretary of State must cause the amount agreed between the appointed person and the responsible person or determined by him to be certified.
() An amount so certified is recoverable from the responsible person as a civil debt."
Schedule 5 [Crown application: Scotland]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 144CCG. 144CCH and 144CCJ:
Page 121, line 42, at end insert "(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament)"
Page 122, line 17, at end insert "(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament)"

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Page 122, line 29, at end insert "(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament)"
The noble Lord said: My Lords, I shall attempt to be brief. I shall move these three amendments and speak also to Amendment No. 144CCN and Amendments Nos. 154 to 160. These relate to the Scottish provisions of the Bill on the removal of Crown immunity and in particular to the commencement of these provisions.
Amendments Nos. 144CCG to 144CCJ relate to Schedule 5 of the Bill on Crown Application: Scotland. Paragraphs 10, 11 and 13 of the schedule contain powers to amend statutory provisions relating to applications for planning permission, conservation areas, listed building consents and hazardous substances consents made by or on behalf of the Crown. These powers allow us to amend the statutory provisions where they might be inappropriate when applied to applications by the Crown. There are equivalent powers in Schedule 3 relating to England and Wales.
Given the lateness of the hour, I propose to say no more on the matter. The amendments are quite straightforward. I will be happy to take questions on particular amendments, if that would be convenient to noble Lords. I beg to move.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment Nos. 144CCH and 144CCJ:
Page 122, line 17, at end insert "(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament)"
Page 122, line 29, at end insert "(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament)"
Clause 90 [Special provision for certain circumstances where disclosure of information as to national security may occur: Scotland]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 144CCK to 144CCM:
Page 65, line 17, at end insert "and as to the functions of a person appointed under subsection (5)"
Page 65, line 20, at end insert "and as to such functions"
Page 65, leave out line 21 and insert—

"(6A) If a person (the appointed person) is appointed—

(a) under paragraph (a) of subsection (5) and either no direction in relation to the evidence in question has been given under subsection (3) or any such direction so given has been given by the Secretary of State, the Secretary of State may direct any person who he thinks,

(b) under paragraph (a) of subsection (5) and such a direction has been given under subsection (3) by the Scottish Ministers, the Scottish Ministers may direct any person who they think,

(c) under paragraph (b) of subsection (5) and the direction referred to in that paragraph was given by the Secretary of State, the Secretary of State may direct any person who he thinks,

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(d) under paragraph (b) of that subsection and the direction so referred to was given by the Scottish Ministers, the Scottish Ministers may direct any person who they think,

is interested in the inquiry in relation to a matter mentioned in subsection (4) (the responsible person) to pay remuneration or allowances to, and to reimburse any expenses incurred by, the appointed person.

(6B) If the appointed person and the responsible person are unable to agree an amount payable by virtue of—

(a) paragraph (a) or (c) of subsection (6A). the amount must be determined by the Secretary of State,

(b) paragraph (b) or (d) of that subsection, the amount must be determined by the Scottish Ministers.

(6C) The Secretary of State must cause an amount payable by virtue of paragraph (a) or (c) of subsection (6A) (whether determined under subsection (6B) or agreed between the appointed person and the responsible person) to be certified.

(6D) The Scottish Ministers must cause an amount payable by virtue of paragraph (b) or (d) of subsection (6A) (whether so determined or so agreed) to be certified.

(6E) An amount certified under subsection (6C) or (6D) is recoverable from the responsible person as a debt."

Clause 97 [Subordinate legislation: Scotland]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 144CCN:
Page 72, line II, at end insert—
"()In subsection (3), "instrument" includes an instrument made under an Act of the Scottish Parliament."
Clause 98 [Compulsory acquisition of land for development etc]:
Lord Hanningfield Lord Hanningfield moved Amendment No. I 44CD:
Page 72, line 21, leave out "think" and insert "have reasonable grounds to believe"
The noble Lord said: My Lords, these amendments concern local authorities' powers to acquire land compulsorily. In principle, as the Minister knows, I am in favour of anything that widens the powers of local authorities. There is no doubt that the current provisions in the Bill do that. However. I also recognise that powers such as compulsory purchase must strike a delicate balance between the needs of local authorities and the rights of private individuals.
Local authorities already enjoy significant powers to enable them to purchase land compulsorily for the purpose of development, redevelopment or improvement. On this occasion we must pay heed to the significant unease regarding the new provisions, expressed by those sectors of the community most likely to be affected.
Both the National Farmers Union and the Country Landowners' Association have publicly opposed the provisions in the Bill. I am keen to avoid making the lives of local authorities more difficult because the new provisions are widely opposed and discredited. There is clearly a danger of that happening, and such an outcome would be very unfortunate in an area that is obviously sensitive and requires delicate handling.
The amendments that I have tabled are supported by both the NFU and the CLA. They expand on the current provisions for local authorities regarding

245
compulsory purchase but also offer the safeguards that the NFU and CLA are keen to see maintained in the system. In the long run it would be in the interests of local authorities to work within a framework of powers that are broadly supported by the communities affected. These amendments will achieve that balance. I beg to move.
Baroness Hamwee: My Lords, I support the amendments. The Minister may say that the purpose of the first and third amendments, which would delete the term "think", will be met by the requirement that a local authority's decision is reasonably based on Wednesbury principles. In the House of Commons, the Minister simply said that that was implicit; perhaps the Minister in this House can be clearer.
On Amendment No. 144CE, it was said that there were adequate safeguards against the wide provision for facilitating in the Acquisition of Land Act 1981. But that does not seem to explain why it is necessary to use the term "facilitate" rather than have the test of necessity; nor does it say why it is no longer necessary for there to be any obligation to have regard to any plan.
When the Country Land and Business Association contacted me, I asked what was its understanding of this change in the legislation. I hope that I am not putting too many words into its mouth, but, as an active member of the Government's own consultative group, it was still unclear and unconvinced. In response to my question whether the association had had any correspondence with the Office of the Deputy Prime Minister, it sent me a letter in which the ODPM expresses its concern that to replace "will facilitate" by "is necessary for" would impose a more onerous requirement on the local authority; that a requirement to determine what is necessary would introduce less certainty; and that there would be difficulties in determining what is necessary. Are those terms any less clear than what is in the current Section 2261A of the 1990 Act, which uses the term "required":
"required in order to secure the carrying out of development, redevelopment, or improvement'"?
Or:
"required for the purpose for which it is necessary to achieve in the interests of proper planning of an area".
I do not immediately see—nor, indeed, have I thought about it for a bit—that there is a difference between the two terms "necessary" and "required", and why one is less certain than the other.
I asked the Country Landowners' Association why it thought the clause was in the Bill. I expected to hear that there would be problems about ransom strips and so on. They were not able to help me on this. I hope that the Minister can.
10 p.m.
Lord Rooker: My Lords, I will, but it will take some time as I insist on having a proper reply to the lengthy submission of the CLA and the NFU. Having read it myself, and asked for extra notes to be prepared, I am damned it' I am not going to use them.
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I am certain that there is a satisfactory answer. The whole point of Clause 98 is that it clarifies, in simpler terms, the existing planning compulsory purchase powers. By referring to the acquiring authority "thinking" that the necessary circumstances apply, the authority is required to have a belief in what it is doing. We think that this is right and the word "think" should remain. I cannot see what distinction colleagues would seek to make by amending "think" to "have reasonable grounds to believe" except that it does not express what is required so simply.
Local authorities are subject to the overriding requirement that their decisions are justifiable as reasonable in all circumstances. It is therefore superfluous, unnecessary and complicated to add this. The reference to "think" has been used extensively in other parts of the Bill. I am not going to refer to them all. In my letter of 18 February which was sent to noble Lords and noble Baronesses, I also referred to the use of the word "think" elsewhere in the Bill, in the light of questions about whether this was a suitable term for legislation. As that letter explained, an electronic search of the UK statutes database revealed 7,897 uses of the word "thinks", and gave examples.
Amendment No. 144CE seeks to replace "will facilitate" by "is necessary for". While seeking to impose a more onerous requirement on the local authority, the amendment in fact introduces less certainty by imposing a requirement to determine what is meant by "necessary". It may be trying to suggest that there has to be an absolute necessity, but having regard to what, and how would that be assessed?
It may be that the noble Baroness is concerned that acquiring authorities will exercise their compulsory purchase powers in an unreasonable manner. There are, however, already perfectly adequate safeguards—by way of judicial review and challenge—to ensure that authorities act reasonably and cannot acquire land compulsorily unless it is in the public interest to do so. There is also the safeguard that any compulsory purchase order has to be confirmed by the relevant Secretary of State, which I will return to in a moment.
Clause 98 will require a local authority to show why it thinks that the development, redevelopment or improvement for which the land is to be acquired would be likely to contribute to the achievement of the promotion or improvement of the economic, social and/or the environmental well-being of its area.
"Development" is the usual definition contained in the planning legislation. In seeking to use its compulsory purchase powers as a mechanism for implementing its duty of well-being through that means, a local authority will need to be able to establish why it thinks that the compulsory acquisition of the land concerned will contribute to a achieving that objective.
For an authority to be able to demonstrate conclusively that the acquisition is justified to secure the well-being of their area, they will need to be able to show that it is in accordance with their up-to-date planning proposals prepared in full consultation with

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those living and working in the area. These may, for example, be in the community strategy or the pathfinder area prospectus. Ideally, these policies will already have been given a spatial dimension in the authority's development plan. But where there has not yet been time to update that to reflect the current proposals for which the land is required, it does not make sense to delay the acquisition of the land until such time as it is.
Secondly, as I mentioned, in order to be implemented, a compulsory purchase order has to be confirmed by the Secretary of State. He has not only to be satisfied as to the statutory grounds for making the order, but he also has a discretion as to whether to confirm. This is an important safeguard because the Secretary of State acts as an impartial adjudicator of whether the compulsory acquisition of an owner's land is truly justified in the public interest. In exercising his discretion, the Secretary of State must have regard in particular to whether the public interests in compulsorily acquiring the land outweigh the interests of the owners and occupiers in retaining their land. Such owners and occupiers who object will have had an opportunity to make representations at a public inquiry.
Thirdly, if the Secretary of State does not have proper grounds for confirming a compulsory purchase order, an aggrieved party may challenge its validity in the High Court, which has the power to quash it. I realise that that is a daunting and potentially expensive prospect for any potential litigant, but its value is as a safeguard to ensure that decisions are not taken frivolously.
Clause 98 enables a local authority to acquire compulsorily land which it thinks will facilitate the carrying out of development, redevelopment or improvement as a means of bringing economic, social or environmental benefit to its area. It will assist authorities to fulfil their duties under Section 2 of the Local Government Act 2000 to promote the economic, social and environmental well-being of its area. Local authorities have welcomed that.
I hope that the noble Baronesses are now reassured that while Clause 98 will make compulsory purchase an effective tool to help authorities to fulfil their duty of well-being, there are more than adequate safeguards in the compulsory purchase process to ensure that acquiring authorities act at all times reasonably, having regard to the balance which needs to be struck between public and private interests.
I apologise for the length of my reply, but I think it was worth making in view of the quite substantial and detailed note from the CLA and NFU which I read yesterday. I asked for my notes to be extended to take account of it.
Lord Hanningfield: My Lords, I thank the Minister for that very detailed reply. We have previously pointed out the problem of using the word "think" in this legislation and other legislation, as the Minister said. Such usage is unsettling to outside organisations
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as they do not always understand what the Government and the legislation mean by the word "think". The Minister has given a detailed reply which we, the CLA and the NFU will read. We will see if those organisations are sufficiently reassured by the reply. I thank the Minister and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 144CE and 144CF not moved.]
Clause 100 [Procedure for authorisation by a Minister]:
Lord Rooker Lord Rooker moved Amendment No. 144D:
Page 78, line 7, leave out "appropriate authority" and insert "Minister"
Lord Rooker Lord Rooker moved Amendments Nos. 144E to 144W:
Page 78, line 8, leave out "it" and insert "he"
Page 78, line 26, leave out "appropriate authority" and insert "Minister"
Page 79, line 18, leave out "appropriate authority" and insert "Minister"
Page 79, line 19, leave out "it has considered the objection and either" and insert—

"(a) the appropriate authority has considered the objection, and

(b) one of the conditions in sub-paragraph (5A) is satisfied.

(5A) The conditions are"
Page 79, line 20, leave out "it" and insert "the appropriate authority"
Page 79, line 20, leave out ", or"
Page 79, line 23, leave out "it" and insert "the appropriate authority"
Page 79, line 38, leave out "appropriate authority" and insert "Minister"
Page 79, line 43, after first "the" insert "Minister or. if there is a remaining objection in respect of the order, the"
Page 79, line 47, leave out "appropriate authority" and insert "Minister"
Page 80, line 2, leave out "appropriate authority" and insert "Minister"
Page 80, line 3. leave out "complying" and insert "the appropriate authority has complied"
Page 80, line 4, leave out "it" and insert "he"
Page 80, line 4, leave out "complying" and insert "the appropriate authority having complied"
Page 80, line 5, leave out "it" and insert "he"
Page 80, line 7, leave out "appropriate authority" and insert "Minister"
Page 80, line 8, leave out "it" and insert "he"
Lord Hanningfield Lord Hanningfield moved Amendment No. 145:
After Clause 108, insert the following new clause—
"RETURN OF LAND TO FORMER OWNER
The Secretary of State may by regulation make provision regarding the return of land to its former owner by way of sale if—

(a) acquired by or under the threat of compulsory purchase; and

(b) which was no longer required for the purpose for which it was acquired."

The noble Lord said: My Lords, with this amendment we return again to the issue of the Crichel Down rules. I am grateful to the noble Lord, Lord Rooker, for the letter in which he set out the next steps to be taken by the Government on this issue. These will include considering recommendations based on an analysis of their recent consultation on changes to the rules and then publishing a new circular setting out revised non-statutory rules as an interim measure.
We welcome these moves. However, we do not see why our amendment would undermine that process. We appreciate that there is still rather a lot of work to do to work out the terms of the effects, especially in terms of costs on local authorities and others to whom the rules are only commended. We do not want unnecessarily to increase the administrative burden on local authorities.
I set out in Committee why we felt that there was a lot of confusion and inconsistency of application surrounding the Crichel Down rules and why we felt that this amendment represented an important opportunity to put into primary legislation a provision regarding their improvement. So I do not understand why the Government would not want to take this opportunity to signal their commitment to a fairer and more consistent approach to the Crichel Down rules.
This amendment would give the Secretary of State an order-making power in terms of the application of the Crichel Down rules. It would not force him either to exercise that power or prevent the Government from introducing a more comprehensive set of changes to the Crichel Down rules at a later date. Certainly, we do not believe that this amendment either prejudges the analysis of the consultation or prevents parallel changes that Wales might want to apply. Without the amendment, I wonder how long it will be before the Crichel Down rules make it on to the statute book. I beg to move.
Lord Rooker: My Lords, as the noble Lord said, following our debate on 5 February, I wrote to him on 12 February setting out fully our reasons why in our view it would be premature at this stage to put in train primary legislation. The letter was copied to other noble Lords and placed in the Library. I do not intend to repeat its contents because they are now on the record.
Given where we are now in our review of the Crichel Down rules, we think that it would be premature to embark on primary legislation when we have not fully worked out all the necessary detail and the potential impact on disposing authorities. We need to give further thought to the scope of the legislation, including
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discussing parallel arrangements for the National Assembly for Wales. In particular, we need to consider how wide a power we should give to the Secretary of State: whether it should be open-ended or constrained by a statement of principles.
We are committed to rectifying the deficiencies in the current non-statutory system, which is why our first step will be to revise and update the current rules. I cannot go beyond what I set out in my letter, but I suspect that I may be required to give a further update at Third Reading, which I shall be happy to do if that is desired.
Lord Hanningfield: My Lords, I thank the Minister for that reply and for his suggestion that he will return to it at Third Reading. As I said earlier about the Crichel Down rules, I think that the Government announced a review something like six years ago. We are concerned that this may go on for another six years. I think that we should try to use the opportunity provided by this legislation to take a step forward.
However, I thank the Minister for his suggestion that he will come back to the matter at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 110 [Crown]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 145A:
Page 96, line 20, leave out subsection (2) and insert—
"(2) The amendment of an enactment by or by virtue of Part 8 applies to the Crown to the extent that the enactment amended so applies."
The noble Lord said: My Lords, I shall be brief so that I can spend more time on the next set of amendments. This amendment has become necessary as a result of noble Lords agreeing in Committee that Clause 109 should be inserted into the Bill to enable the Secretary of State to make an order amending any enactment where this is necessary to bring it in line with the provisions in Part 8. I beg to move.
Clause 114 [Grants for advice and assistance]:
Baroness Wilkins Baroness Wilkins moved Amendment No. 146:
Page 98, line 24, at end insert—
"() The appropriate authority may also make grants for the purpose of assisting any person to provide advice and assistance to regional planning bodies, local planning authorities and developers in connection with access issues for disabled people arising from planning applications, local development plans and frameworks and regional spatial strategies."
The noble Baroness said: My Lords, Amendment No. 146 would provide for central government funding to support local access groups in the same way that grants are to be made available to Planning Aid.
In Committee I asked whether the current wording of this clause would allow the Secretary of State and the National Assembly for Wales to give grants to local access groups, a question that I am not sure was answered. My noble friend on the Front Bench replied saying that there could be some potential unintended consequences of the proposed wording of my original

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amendment. Consequently the wording has been revised to rule that out. My noble friend did say that he was not unsympathetic to the aim of my amendment, and I hope that he will now elaborate.
Would my noble friend consider reinstating government funding for local access groups, withdrawn in 1998, given the renewed emphasis which government guidance places on consultation with local access groups for building awareness of inclusive design and assisting developers and local authorities alike to achieve inclusively designed buildings?
The ODPM's recent good practice guidance speaks of the importance of developers and local authorities liaising with access groups to achieve the most appropriate solutions for disabled people. It exhorts local access groups to build awareness of inclusive design issues within local authorities and to assist with training. Surely it is unreasonable to expect access groups to fulfil such key functions without providing any financial support from government.
Many local access groups, as I argued in Committee, run on fresh air and enthusiasm and face an uncertain and unsustainable future. Many local authorities help with funding or support in kind, but it simply does not go far enough and many disabled people fund participation out of their own pockets. In the disability movement, there is a saying, "Nothing about us without us". Local access groups made up of local disabled people provide disabled people with a voice and a direct input into the system in a way which no other organisation can.
I repeat a further point made in Committee: Planning Aid could not, and does not intend to, fulfil the remit of supporting local access groups. Therefore, a separate funding stream is essential.
I urge my noble friend the Minister to follow the example set by the Scottish Executive. Following an earlier grant to set up an umbrella organisation under the auspices of the Scottish Disability Equality Forum to provide support for local access panels, the Scottish Executive has recently announced an award of £525,000 for local access panels. This is to be distributed by the umbrella body to the 43 functioning access panels in Scotland, which means that each will receive about £12,000.
The Disability Rights Commission is currently undertaking research scoping the location, resources and experiences of existing local access groups, which will include recommendations on funding needs. Can my noble friend the Minister give me an assurance that serious consideration will be given to implementing any recommendations on funding stemming from this research? I beg to move.
10.15 p.m.
Lord Lucas: My Lords, I support this amendment totally. It would be immensely useful to anyone who wants to achieve the object of making more accessible the developments with which they are involved. Individuals cannot be expected to know what best practice is, the alternatives, the options, or what new
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thoughts have been developed elsewhere in the country on how facilities might be provided. It is extremely difficult, as an individual faced with a problem, to find sources of advice. I tried the other day to find a source of advice on how the Disability Discrimination Act applies to schools. Nobody could tell me. I talked to people at the Disability Rights Commission, but they did not know. There is no one to talk to. You could pay a solicitor several hundred pounds an hour, but they would not even recommend a particular solicitor. You can face such problems and try to search for some friendly advice, but simply be unable to find any. There are no signposts and nowhere to turn. It is extremely frustrating when you are trying, essentially, to do good.
I hope that the Government will see their way to funding such resources so that anybody who is involved in the development process and wants to help to make progress in the direction of increased access for the disabled and others is able to do so efficiently and quickly.
Lord Bassam of Brighton: My Lords, the noble Baroness, Lady Wilkins, is right: I expressed considerable sympathy for the amendment in Committee. I remain sympathetic, not least because in good measure what the Government are already doing goes some way to meet the point, particularly on funding, which is probably at the core of this amendment.
The amendment would allow grant to be made to a person for the provision of advice and assistance to regional planning bodies, local planning authorities and developers in connection with access issues for disabled people arising from the planning process. The purpose of draft Clause 114 is to allow the Secretary of State or the National Assembly for Wales to give grants such as planning aid to bodies which provide advice and assistance to members of the public on all aspects of the planning process. It will enable Planning Aid to become more proactive and will develop a greater role in targeting communities which traditionally do not get involved in the planning system, including disabled people and disability groups.
It is not our intention to give grants to those who provide advice to bodies which have the resources and expertise to manage the planning issues with which they are dealing, such as local authorities and regional planning bodies; nor to those which provide advice to developers.
Our good practice guide on planning and access for disabled people which was published last March following a recommendation by the Disability Rights Task Force already advises that each local authority should seek to appoint an access officer. I think I can fairly say that the better authorities—I am sure that they have some representation in the Chamber this evening—already attempt to achieve that very important objective. As a minimum, it recommends that each local authority should be able to call on appropriate professional advice whenever necessary, either through information and resource sharing with

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other local authorities or by the appointment of consultants with the appropriate experience. That guide also recommends that developers should appoint access specialists to their design teams. To assist this, the National Register of Access Consultants is a resource for building owners, occupiers, developers or planners seeking advice on a inclusive environment.
We recognise the valuable service that local access groups can provide to local authorities, regional planning authorities and developers by giving them the benefit of their personal and practical experience. But this service should not be used by organisations and private companies which have resources as a substitute for an access officer or specialist. We appreciate that most local access groups operate, as has been said, on a voluntary basis. That is why we advise local authorities in the guide not to place too large a burden upon them.
In our view, it should not be beyond the resources of the local authorities or the regional planning bodies and developers to pay the expense of access group volunteers or to support the group with contributions when they call on their service. I say that because, through the planning delivery grant, the Government have made an extra £50 million available to local authorities in the current financial year to improve their planning services. A further planning delivery grant of £130 million in 2004–05 and £170 million in 2005–06 is being made available. There has thus been a considerable expansion of resource which we think should be used in part to enable better representation to be made by access group volunteers.
The planning delivery grant is designed to drive performance improvement but not at the expense of quality. The grant is not ring fenced and can be spent as authorities see fit. The employment of an access officer could and. one might argue, should be financed through the grant. That is the direction our guidance suggests. Similarly, local authorities could use the grant to contribute to local access groups.
Our case is this: we are putting extra money into the planning delivery process. It is our belief that the decision on how that resource should be used should be made locally. We identify the need identified by the noble Baroness in her amendment and we hope that the extra grant that we have been making available to local authorities could and should in part be used so that access officers are taken on by local authorities so that they can match and meet best practice in this specialist area of planning expertise.
For those reasons, I hope that the noble Baroness will feel able to withdraw her Amendment No. 146. I was interested in the Scottish example. I had not been aware of that, but it is clearly something that we could consider. We should obviously look also at any follow-up research that has been undertaken to assess its impact.
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I hope that it is more than sympathy. It is backed by a solid cash commitment and a desire by the Government to see improvements regarding quality and access for groups which have been in the past excluded.
Baroness Wilkins: My Lords, I thank the noble Lord, Lord Lucas, for his kind support and the Minister for his reply which I found extremely disappointing. The extra money towards local authorities to provide access officers is welcome. However, an access officer in a local authority is a very lone person without the support of an access group to advise him and to deal with the huge variety of developments which he meets. I know that from my own local authority which has a good access officer but he is desperately in need of the support of a local group. Volunteers need training and informing. An access group run on the basis of volunteers is bound not to be as well informed as one which is sufficiently resourced.
I hope that the Government will consider the Scottish example. Although I am happy to withdraw the amendment, I shall return to the issue at Third Reading.
Amendment, by leave, withdrawn.
Schedule 6 [Amendments al the planning Acts]:
Lord Rooker Lord Rooker moved Amendment No. 146A:
Page 127, line 12, leave out paragraph 4.
The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 148A, 148B, 148C, 152 and 153.
Following amendments made to the Bill in Committee in this House which gave county councils a statutory role in the revised planning system in relation to regional spatial strategies, it has been decided that the provisions relating to statutory consultation between local planning authorities, regional planning bodies and county councils on planning applications would sit better on the face of the Bill in primary legislation rather than secondary legislation. That is the purpose of the amendments. I beg to move.
Lord Hanningfield: My Lords, I thank the Minister very much. It seems that our work on the early parts of the Bill has paid off. I thank him for the amendments. We agree with him on them.
Baroness Hamwee: My Lords, I join in the thanks. At the risk of being told that I do not trust anyone—it is not a matter of trust—perhaps I may ask a question on sub-paragraph (3)(a) which refers to,
"a development which would by reason of its scale or nature or the location … be of major importance".
Is it intended by the Government to define that more closely through regulations or other means? "Major importance" may be in the eye of the beholder.
The example which came to my mind when I read the amendment—it is not an exact comparison is that the Mayor of London is entitled to direct refusal

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of certain planning applications. Those are basically strategic and major applications. They are defined carefully in secondary legislation. Is it a matter which will be left open to interpretation? I am not sure how I would define it more closely but I can envisage that there could be scope for argument.
Lord Rooker: My Lords, there is always scope for argument, even at the last minute when you look a gift horse in the mouth. I do not know. The provision is drafted fairly widely but whoever uses that subparagraph would have to make the case for a development. It refers to scale, nature or location. It could be small scale in an important location. There could be mix and match as a matrix. It is a little like the elephant on the doorstep: you cannot describe it but when you see it you recognise it. I cannot be more specific about that. Throughout the passage of the Bill, noble Lords have been asking us to put stuff on the face of the Bill, and here am I lifting a load of stuff from regulations on to the face of the Bill and I am still being queried.
I do not have an answer for the noble Baroness. In due course it may be a matter for the courts to decide if someone does not like it. The definition is fairly wide, but it does not mean that you can do what you want. You are restricted by having to define the scale, location and nature.
On Question, amendment agreed to.
10.30 p.m.
Baroness Hamwee Baroness Hamwee moved Amendment No. 146B:
Page 127, line 15, at end insert—
"Sections 82 to 87 (simplified planning zones) are omitted and Schedule 7 (simplified planning zones) is omitted."
The noble Baroness said: My Lords, this amendment is consequential on Amendment No. 139. I beg to move.
[Amendments Nos. 147 and 148 not moved.]
Lord Rooker Lord Rooker moved Amendments Nos. 148A and 148B:
Page 130, line 25, leave out sub-paragraph (4) and insert—
"() For paragraph 7 there is substituted the following paragraph—
"7 (1) A local planning authority must not determine an application for planning permission to which the consultation requirements apply unless it complies with sub-paragraph (7).
(2) The consultation requirements are—

(a) consultation with the RPB for the region in which the authority's area is situated if the development is one to which sub-paragraph (3) applies;

(b) consultation by a district planning authority with the county planning authority for their area if the development is one to which sub-paragraph (4) applies

(3) This sub-paragraph applies to—

(a) a development which would by reason of its scale or nature or the location of the land be of major importance for the implementation of the RSS or a relevant regional policy, or

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(b) a development of a description in relation to which the RPB has given notice in writing to the local planning authority that it wishes to be consulted.

(4) This sub-paragraph applies to—

(a) a development which would materially conflict with or prejudice the implementation of a relevant county policy,

(b) a development in an area in relation to which the county planning authority have given notice in writing to the district planning authority that development is likely to affect or be affected by the winning and working of minerals, other than coal,

(c) a development of land in respect of which the county planning authority have given notice in writing to the district planning authority that they propose to carry out development,

(d) a development which would prejudice a proposed development mentioned in paragraph (c) in respect of which notice has been given as so mentioned,

(e) a development of land in relation to which the county planning authority have given notice in writing to the district planning authority that it is proposed to use the land for waste disposal, or

(f) a development which would prejudice a proposed use mentioned in paragraph (e) in respect of which notice has been given as so mentioned.

(5) The consultation requirements do not apply—

(a) in respect of a development to which sub-paragraph (3) applies if the RPB gives a direction authorising the determination of the application without compliance with the requirements;

(b) in respect of a development to which sub-paragraph (4) applies if the county planning authority gives a direction authorising the determination of the application without compliance with the requirements.

(6) A direction under sub-paragraph (5) may be given in respect of a particular application or a description of application.
(7) If the consultation requirements apply the local planning authority—

(a) must give notice to the RPB or county planning authority (as the case may be) (the consulted body) that they propose to consider the application,

(b) must send a copy of the application to the consulted body, and

(c) must not determine the application until the end of such period as is prescribed by development order beginning with the date of the giving of notice under paragraph (a).

(8) Sub-paragraph (7)(c) does not apply if before the end of the period mentioned in that sub-paragraph—

(a) the local planning authority have received representations concerning the application from the consulted body, or

(b) the consulted body gives notice that it does not intend to make representations.

(9) A relevant regional policy is—

(a) a policy contained in a draft revision of the RSS which has been submitted to the Secretary of State in pursuance of section 6(6) of the 2004 Act, or

(b) a policy contained in a structure plan which has effect by virtue of paragraph 1 of Schedule 8 to the 2004 Act.

(10) A relevant county policy is—

(a) a policy contained in a local development document which has been prepared in accordance with a minerals and waste scheme and submitted to the Secretary of State in pursuance of section 20(1) of the 2004 Act or adopted by the county planning authority in pursuance of section 23 of that Act, or

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(b) a policy contained in a structure plan which has effect by
virtue of paragraph 1 of Schedule 8 to the 2004 Act.

(11) RPB and RSS must be construed in accordance with Part 1 of the 2004 Act.
(12) The 2004 Act is the Planning and Compulsory Purchase Act 2004.""
Page 132, line 24, leave out paragraph 28.
Schedule 8 [Transitional Provisions: Parts 1 and 2]:
Lord Rooker Lord Rooker moved Amendment No. 148BA:
Page 144, line 15, at end insert—
"The Secretary of State may by regulations make provision—

(a) for treating anything done or purported to have been done for the purposes of Part 2 before the commencement of that Part as having been done after that commencement;

(b) for disregarding any requirement of section 19 in respect of anything done or purported to have been done for the purposes of any other provision of Part 2."

The noble Lord said: My Lords, the amendment makes provision for local planning authorities to work on preparation of development plan documents before the Bill is commenced. It enables the Secretary of State to prescribe in regulations that actions taken before commencement of the Bill but carried out in pursuance of Part 2 of it will count towards the preparation of development plan documents. I beg to move.
Schedule 9 [Repeals]:
Lord Rooker Lord Rooker moved Amendment No. 148C:
Page 145, leave out lines 22 and 23.
[Amendment No. 149 not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 149A:
Page 145, leave out line 26.
[Amendments Nos. 150 and 151 not moved.]
Lord Rooker Lord Rooker moved Amendments Nos. 152 and 153:
Page 146, line 4, leave out "4(2) and 7"
Page 146, leave out lines 16 and 17.
Clause 120 [Commencement]
Lord Rooker Lord Rooker moved Amendments Nos. 154 and 155:
Page 100, line 5, after "subsections" insert "(2B),"
Page 100, line 16, at end insert—

"(2A) And the Secretary of State must not make an order which relates to section 90 unless he first consults and has the agreement of the Scottish Ministers.

(2B) The following provisions come into force on such day as the Scottish Ministers may by order appoint—

(a) sections 89 and 91 to 97;

(b) Schedule 5;

(c) section 116(8);

(d) in so far as relating to the Town and Country Planning (Scotland) Act 1997, section 117(2) and Schedule 7;

(e) section 118(2); and

(f) in so far as relating to that Act, to the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 or to the Planning (Hazardous Substances) (Scotland) Act 1997, section 119 and Schedule 9."

Clause 121 [Regulations and orders]:
Lord Rooker Lord Rooker moved Amendments Nos. 156 to 158:
Page 100, line 41, leave out "120" and insert "120(11" Page 100, line 41, at end insert—
"() an order under section 120(2B);"
Page 101, line 7, at end insert—

"(8A) A statutory instrument containing an order under section 120(2B), if it includes provision amending or repealing an enactment contained in an Act, must not be made unless a draft of the instrument has been laid before and approved by resolution of the Scottish Parliament.

(8B) In subsection (3), "enactment" includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament and in subsections (8) and (8A), "Act" includes such an Act and "enactment" includes an enactment comprised in such an Act."

Clause 123 [Extent]:
Lord Rooker Lord Rooker moved Amendments Nos. 159 and 160
Page 101, line 20, leave out from "sections" to "extend" and insert "110(1), 117(2), 119 to 121, this section and section 124"
Page 101, line 22, leave out ", 118(2) and Schedule 5" and insert "and 118(2)"
House adjourned at twenty-seven minutes before eleven o'clock.